Metcash Trading (Pty) Ltd v Sithole and Others (J1079/97) [1998] ZALC 63 (1 September 1998)

Metcash Trading (Pty) Ltd v Sithole and Others (J1079/97) [1998] ZALC 63 (1 September 1998)

The court held that the CCMA commissioner misconstrued the parity principle and the code of good practice by assuming that consistency must be applied to all employees implicated in misconduct, regardless of the outcome of disciplinary proceedings. The law and code require consistency only among employees found guilty after a fair hearing. In this case, all employees found guilty were dismissed, and those acquitted or whose charges were withdrawn were not dismissed, which is consistent with the law. The commissioner committed a gross irregularity by misunderstanding the law, rendering the award reviewable. Furthermore, the award was not justifiable in relation to the reasons given, as the...

Citation
[1998] ZALC 63
Parties
Applicant: Metcash Trading (Pty) Ltd t/a Trador Cash & Carry Wholesalers; Respondent: Mr Sithole NO; Respondent: Mr Petrus Nkoe; Respondent: Mr Denise Jasson; Respondent: Mr Vincent Mosasa
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 September 1998
Case Number
J1079/97
Procedural Posture
Review Application / Judgment on Review of CCMA Arbitration Award
Outcome
Application for review succeeds; arbitration award set aside and substituted with a finding of fair dismissal.
Judges
A A Landman
Legal Topics
Consistency in Dismissal, Code of Good Practice, Judicial Review, Gross Irregularity
Labour Law Civil Procedure Consistency in Dismissal Code of Good Practice Judicial Review Gross Irregularity

Case Brief

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Parties

Metcash Trading (Pty) Ltd t/a Trador Cash & Carry Wholesalers

Applicant

Mr Sithole NO

Respondent

Mr Petrus Nkoe

Respondent

Mr Denise Jasson

Respondent

Mr Vincent Mosasa

Respondent

Procedural Posture

Review Application / Judgment on Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the CCMA commissioner misconstrued the parity principle and code of good practice in ordering reinstatement of dismissed employees.
  2. 2 Whether the arbitration award was reviewable on grounds of gross irregularity or lack of justifiability in relation to the reasons given.
  3. 3 Whether the dismissed employees were treated consistently with others implicated in the misconduct.

Ratio Decidendi

The court held that the CCMA commissioner misconstrued the parity principle and the code of good practice by assuming that consistency must be applied to all employees implicated in misconduct, regardless of the outcome of disciplinary proceedings. The law and code require consistency only among employees found guilty after a fair hearing. In this case, all employees found guilty were dismissed, and those acquitted or whose charges were withdrawn were not dismissed, which is consistent with the law. The commissioner committed a gross irregularity by misunderstanding the law, rendering the award reviewable. Furthermore, the award was not justifiable in relation to the reasons given, as the...

Court Disposition

Application for review succeeds; arbitration award set aside and substituted with a finding of fair dismissal.

Orders

  • The arbitration award of the commissioner is reviewed and set aside.
  • The dismissal of the third, fourth and fifth respondents is declared substantively and procedurally fair.