Molope v Mbha and Others (JR1950/02) [2005] ZALC 48; (2005) 26 ILJ 283 (LC); [2005] 3 BLLR 267 (LC) (1 February 2005)

Molope v Mbha and Others (JR1950/02) [2005] ZALC 48; (2005) 26 ILJ 283 (LC); [2005] 3 BLLR 267 (LC) (1 February 2005)

The court found that the applicant's dismissal was substantively fair, as she was responsible for the functions of an Area Manager Designate and was guilty of gross negligence and unauthorised use of company funds. However, the dismissal was procedurally unfair because the applicant was denied her right to representation at the disciplinary hearing when her representative withdrew shortly before the hearing and her request for postponement was refused. The right to representation is fundamental and not subject to discretion or convenience. The procedural unfairness was only remedied during arbitration, nearly two years after dismissal. The court set aside the arbitration award insofar as...

Citation
[2005] ZALC 48
Parties
Applicant: Ms Phoebe Molope; Respondent: Commissioner B H Mbha; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Morkels Stores
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 February 2005
Case Number
JR1950/02
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The applicant's dismissal was declared procedurally unfair but substantively fair. The arbitration award upholding procedural fairness was set aside. The matter was remitted for determination of compensation. Costs awarded to the applicant.
Judges
Farber
Legal Topics
Unfair Dismissal, Procedural Fairness, Right to Representation, Compensation for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Right to Representation Compensation for Unfair Dismissal

Case Brief

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Parties

Ms Phoebe Molope

Applicant

Commissioner B H Mbha

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Morkels Stores

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's dismissal was substantively and procedurally fair.
  2. 2 Whether the applicant was entitled to representation at the disciplinary hearing.
  3. 3 Whether the refusal to postpone the disciplinary hearing constituted procedural unfairness.

Ratio Decidendi

The court found that the applicant's dismissal was substantively fair, as she was responsible for the functions of an Area Manager Designate and was guilty of gross negligence and unauthorised use of company funds. However, the dismissal was procedurally unfair because the applicant was denied her right to representation at the disciplinary hearing when her representative withdrew shortly before the hearing and her request for postponement was refused. The right to representation is fundamental and not subject to discretion or convenience. The procedural unfairness was only remedied during arbitration, nearly two years after dismissal. The court set aside the arbitration award insofar as...

Court Disposition

The applicant's dismissal was declared procedurally unfair but substantively fair. The arbitration award upholding procedural fairness was set aside. The matter was remitted for determination of compensation. Costs awarded to the applicant.

Orders

  • The decision of the first respondent upholding the dismissal on procedural fairness is set aside.
  • It is declared that the third respondent acted procedurally unfairly in dismissing the applicant.