Mlotha v Commission for Conciliation, Mediation and Arbitration and Others (C184/17) [2019] ZALCCT 16 (9 July 2019)

Mlotha v Commission for Conciliation, Mediation and Arbitration and Others (C184/17) [2019] ZALCCT 16 (9 July 2019)

The Court found that the Commissioner properly identified and understood the nature of the dispute, dealt with the substantial merits, and gave reasons supported by the evidence. The applicant knowingly breached Woolworths' policies regarding honesty and reservation of items, failed to show contrition, and engineered circumstances to benefit from a discounted purchase. The procedural fairness argument was rejected as no evidence was placed before the Commissioner, and the applicant could have subpoenaed the absent witness. The sanction of dismissal was appropriate given the breakdown of trust, and the decision fell within the band of reasonableness. The review application was therefore...

Citation
[2019] ZALCCT 16
Parties
Applicant: Fundiswa Mlotha; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Lameesah Jooma N.O.; Respondent: Woolworths (Pty) Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
9 July 2019
Case Number
C184/17
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The application to review and set aside the arbitration award is dismissed.
Judges
E Tlhotlhalemaje
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Breach of Trust, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Breach of Trust Procedural Fairness Substantive Fairness

Case Brief

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Parties

Fundiswa Mlotha

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Lameesah Jooma N.O.

Respondent

Woolworths (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award upholding the dismissal of the applicant was reviewable on grounds of procedural or substantive unfairness.
  2. 2 Whether the Commissioner committed a reviewable irregularity by not considering procedural fairness and by relying on hearsay evidence.
  3. 3 Whether the sanction of dismissal was appropriate in light of the alleged breach of trust and company policies.

Ratio Decidendi

The Court found that the Commissioner properly identified and understood the nature of the dispute, dealt with the substantial merits, and gave reasons supported by the evidence. The applicant knowingly breached Woolworths' policies regarding honesty and reservation of items, failed to show contrition, and engineered circumstances to benefit from a discounted purchase. The procedural fairness argument was rejected as no evidence was placed before the Commissioner, and the applicant could have subpoenaed the absent witness. The sanction of dismissal was appropriate given the breakdown of trust, and the decision fell within the band of reasonableness. The review application was therefore...

Court Disposition

The application to review and set aside the arbitration award is dismissed.

Orders

  • The applicant’s application to review and set aside the arbitration award issued by the second respondent under case number WECT 14595-16 dated 10 February 2017 is dismissed.
  • There is no order as to costs.