Molaetsa Wa Botshelo Trading and Projects CC t/a Cre8work v Gideon and Others (C481/2019) [2021] ZALCCT 42 (15 June 2021)

Molaetsa Wa Botshelo Trading and Projects CC t/a Cre8work v Gideon and Others (C481/2019) [2021] ZALCCT 42 (15 June 2021)

The court found that the arbitrator failed to make express findings on the charges against the employee, despite clear evidence of gross insubordination and obstructive conduct. The arbitrator's reasoning minimized the seriousness of the misconduct and adopted an implausible interpretation of the evidence. The...

Source-derived case information.

Citation
[2021] ZALCCT 42
Parties
Applicant: Molaetsa Wa Botshelo Trading and Projects CC t/a Cre8work; Respondent: Cashief Gideon; Respondent: Gail McEwan, Nominee Officci; Respondent: The National Bargaining Council for the Road Freight and Logistics Industry
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
15 June 2021
Case Number
C481/2019
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The finding that the dismissal was substantively unfair is substituted with a finding that the dismissal was substantively fair. No order as to costs.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Gross Insubordination, Review of Arbitration Award, Disciplinary Procedure
Labour Law Civil Procedure Unfair Dismissal Gross Insubordination Review of Arbitration Award Disciplinary Procedure

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Summary, issues, holding and outcome

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Parties

Molaetsa Wa Botshelo Trading and Projects CC t/a Cre8work

Applicant

Cashief Gideon

Respondent

Gail McEwan, Nominee Officci

Respondent

The National Bargaining Council for the Road Freight and Logistics Industry

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator's finding that the dismissal was substantively unfair was reasonable.
  2. 2 Whether the conduct of the employee constituted gross insubordination justifying dismissal.
  3. 3 Whether exceptional circumstances existed to justify a sanction less than dismissal.

Ratio Decidendi

The court found that the arbitrator failed to make express findings on the charges against the employee, despite clear evidence of gross insubordination and obstructive conduct. The arbitrator's reasoning minimized the seriousness of the misconduct and adopted an implausible interpretation of the evidence. The employee's aggressive and dismissive attitude prevented effective engagement and justified dismissal. No reasonable arbitrator could have avoided finding the employee guilty of misconduct warranting dismissal, especially given his managerial status. The arbitrator's conclusion that dismissal was substantively unfair was not sustainable and was set aside.

Court Disposition

The arbitration award is reviewed and set aside. The finding that the dismissal was substantively unfair is substituted with a finding that the dismissal was substantively fair. No order as to costs.

Orders

  • The arbitration award of the second respondent dated 12 June 2019 under case number WCRFC 55436 is reviewed and set aside.
  • The findings of the arbitrator in paragraphs 14 and 15 of her award and the relief ordered therein are substituted with a finding that the third respondent's dismissal was substantively fair.