Mogale v A & D Spitz (Pty) Ltd (JA 36/2011) [2013] ZALAC 21 (22 August 2013)

Mogale v A & D Spitz (Pty) Ltd (JA 36/2011) [2013] ZALAC 21 (22 August 2013)

The Labour Appeal Court held that although the arbitrator did not expressly mention the issue of consistency in her award, the evidence and proceedings demonstrated that the issue was considered. The appellant conceded differences in responsibility between herself and the regional manager, and the evidence established that the store manager had greater oversight and culpability regarding the stock irregularities. The employer justified the differentiation in sanction, and the arbitrator's decision to dismiss the appellant was not unreasonable. The appeal was accordingly dismissed.

Citation
[2013] ZALAC 21
Parties
Appellant: Refilwe Muriel Mogale; Respondent: A & D Spitz (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
22 August 2013
Case Number
JA 36/2011
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment, Limited to the Issue of Consistency in Sanction
Outcome
Appeal dismissed; no order as to costs.
Judges
Tlaletsi, Musi, Coppin
Legal Topics
Consistency of Discipline, Parity Principle, Unfair Dismissal, Arbitration Award Review
Labour Law Consistency of Discipline Parity Principle Unfair Dismissal Arbitration Award Review

Case Brief

Summary, issues, holding and outcome

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Parties

Refilwe Muriel Mogale

Appellant

A & D Spitz (Pty) Ltd

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment, Limited to the Issue of Consistency in Sanction

Legal Issues

  1. 1 Whether the arbitrator failed to apply her mind to the issue of consistency in sanction between the appellant and the regional manager.
  2. 2 Whether the arbitrator's decision on the appropriateness of dismissal was unreasonable in light of the evidence of inconsistent treatment.

Ratio Decidendi

The Labour Appeal Court held that although the arbitrator did not expressly mention the issue of consistency in her award, the evidence and proceedings demonstrated that the issue was considered. The appellant conceded differences in responsibility between herself and the regional manager, and the evidence established that the store manager had greater oversight and culpability regarding the stock irregularities. The employer justified the differentiation in sanction, and the arbitrator's decision to dismiss the appellant was not unreasonable. The appeal was accordingly dismissed.

Court Disposition

Appeal dismissed; no order as to costs.

Orders

  • The appeal is dismissed.
  • No order as to costs is made.