Moni v Phiko Security Services (Pty) Ltd (PR60/23) [2024] ZALCPE 7 (27 February 2024)

Moni v Phiko Security Services (Pty) Ltd (PR60/23) [2024] ZALCPE 7 (27 February 2024)

The Labour Court found that the commissioner misconstrued the evidence and failed to appreciate the burden of proof resting on the employer. The commissioner erred in inferring negligence without direct evidence and in dismissing the applicant's version regarding the supervisor's conduct. The employer did not prove how the intruder gained access or that the applicant was negligent. Furthermore, the commissioner failed to consider whether the employment relationship had irretrievably broken down, as required in the substantive fairness enquiry. The award was disconnected from the evidence and unreasonable. The dismissal was declared substantively unfair, and the applicant was entitled to...

Citation
[2024] ZALCPE 7
Parties
Applicant: Nosipho Moni; Respondent: Phiko Security Services (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: William Pretorius N.O.
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
27 February 2024
Case Number
PR60/23
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal is declared procedurally fair but substantively unfair. The applicant is reinstated retrospectively with full backpay. No order as to costs.
Judges
M Makhura
Legal Topics
Unfair Dismissal, Substantive Fairness, Procedural Fairness, Reinstatement, Backpay, Burden of Proof
Labour Law Unfair Dismissal Substantive Fairness Procedural Fairness Reinstatement Backpay Burden of Proof

Case Brief

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Parties

Nosipho Moni

Applicant

Phiko Security Services (Pty) Ltd

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

William Pretorius N.O.

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the applicant's dismissal substantively and procedurally fair was reasonable.
  2. 2 Whether the applicant was guilty of negligence in the performance of her duties.
  3. 3 Whether the employer proved a breakdown in the employment relationship justifying dismissal.

Ratio Decidendi

The Labour Court found that the commissioner misconstrued the evidence and failed to appreciate the burden of proof resting on the employer. The commissioner erred in inferring negligence without direct evidence and in dismissing the applicant's version regarding the supervisor's conduct. The employer did not prove how the intruder gained access or that the applicant was negligent. Furthermore, the commissioner failed to consider whether the employment relationship had irretrievably broken down, as required in the substantive fairness enquiry. The award was disconnected from the evidence and unreasonable. The dismissal was declared substantively unfair, and the applicant was entitled to...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal is declared procedurally fair but substantively unfair. The applicant is reinstated retrospectively with full backpay. No order as to costs.

Orders

  • The arbitration award issued by the third respondent dated 15 March 2023 under case number ECEL2918-22 and ECEL2853-22 is reviewed and set aside.
  • The award is substituted with an order declaring the dismissal of the applicant procedurally fair but substantively unfair.