Modiba v Samancor Eastern Chrome Mine and Others (JR232/2013) [2016] ZALCJHB 275 (22 July 2016)

Modiba v Samancor Eastern Chrome Mine and Others (JR232/2013) [2016] ZALCJHB 275 (22 July 2016)

The Commissioner erred by placing the burden of proving the reliability of the drug testing equipment on the employee, rather than the employer. The person who operated the equipment, the nursing sister, was not called to testify, and the evidence presented was hearsay. The Commissioner failed to appreciate the correct incidence of onus and misdirected himself on a material issue, resulting in a decision that no reasonable decision-maker could have reached. The employer failed to discharge its duty to prove the fairness of the dismissal on a balance of probabilities. Consequently, the arbitration award was reviewable and should be set aside. The dismissal of the applicant was found to be...

Citation
[2016] ZALCJHB 275
Parties
Applicant: Mafalena Zacharia Modiba; Respondent: Samancor Eastern Chrome Mine; Respondent: The Commission for Conciliation Mediation and Arbitration; Respondent: Khazamola Samuel Ntsumela N.O
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
22 July 2016
Case Number
JR232/2013
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of the applicant is declared substantively unfair. The applicant is reinstated retrospectively without loss of benefits, and the respondent is ordered to pay costs.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Onus of Proof, Review of Arbitration Award, Substantive Fairness, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Onus of Proof Review of Arbitration Award Substantive Fairness Procedural Fairness

Case Brief

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Parties

Mafalena Zacharia Modiba

Applicant

Samancor Eastern Chrome Mine

Respondent

The Commission for Conciliation Mediation and Arbitration

Respondent

Khazamola Samuel Ntsumela N.O

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award upholding the applicant's dismissal was reasonable and supported by the evidence.
  2. 2 Whether the Commissioner correctly applied the onus of proof regarding the reliability of the drug testing equipment.
  3. 3 Whether the dismissal of the applicant was substantively and procedurally fair.

Ratio Decidendi

The Commissioner erred by placing the burden of proving the reliability of the drug testing equipment on the employee, rather than the employer. The person who operated the equipment, the nursing sister, was not called to testify, and the evidence presented was hearsay. The Commissioner failed to appreciate the correct incidence of onus and misdirected himself on a material issue, resulting in a decision that no reasonable decision-maker could have reached. The employer failed to discharge its duty to prove the fairness of the dismissal on a balance of probabilities. Consequently, the arbitration award was reviewable and should be set aside. The dismissal of the applicant was found to be...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of the applicant is declared substantively unfair. The applicant is reinstated retrospectively without loss of benefits, and the respondent is ordered to pay costs.

Orders

  • The arbitration award made by the third respondent under case number LP 6958–12 dated 13 December 2012 is reviewed and set aside.
  • The award is substituted with an order that the dismissal of the applicant was substantively unfair and the first respondent is ordered to reinstate the applicant retrospectively to the date of dismissal without any loss of benefit, including back pay.