Moolman v Education Labour Relations Council and Others (JR1358/2010) [2010] ZALCJHB 31 (5 November 2010)

Moolman v Education Labour Relations Council and Others (JR1358/2010) [2010] ZALCJHB 31 (5 November 2010)

The arbitrator exceeded his jurisdiction by determining the fairness of the original dismissal in an unfair labour practice dispute, which is confined to disciplinary action short of dismissal. The demotion imposed by the MEC was procedurally unfair as it was done without the applicant's consent, constituting an unfair labour practice. The appropriate remedy is to set aside the arbitrator's award, except for the finding on demotion, and remit the matter to the MEC to reconsider the applicant's appeal against dismissal. No costs order is made due to the possibility of the employment relationship resuming.

Citation
[2010] ZALCJHB 31
Parties
Applicant: Norman Moolman; Respondent: Education Labour Relations Council; Respondent: Coen Havenga N.O.; Respondent: Gauteng Department of Education
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 November 2010
Case Number
JR1358/2010
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside, except for the finding that demotion without consent was an unfair labour practice. The matter is remitted to the MEC to reconsider the applicant's appeal. No order as to costs.
Judges
Lagrange
Legal Topics
Unfair Labour Practice, Demotion Without Consent, Arbitration Review, Jurisdiction of Arbitrator, Disciplinary Sanctions
Labour Law Unfair Labour Practice Demotion Without Consent Arbitration Review Jurisdiction of Arbitrator Disciplinary Sanctions

Case Brief

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Parties

Norman Moolman

Applicant

Education Labour Relations Council

Respondent

Coen Havenga N.O.

Respondent

Gauteng Department of Education

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator had jurisdiction to determine the fairness of the original dismissal in an unfair labour practice dispute under section 186(2)(b) of the LRA.
  2. 2 Whether the imposition of demotion without the applicant's consent constituted an unfair labour practice.
  3. 3 What is the appropriate remedy when the arbitrator's award is set aside due to jurisdictional error.

Ratio Decidendi

The arbitrator exceeded his jurisdiction by determining the fairness of the original dismissal in an unfair labour practice dispute, which is confined to disciplinary action short of dismissal. The demotion imposed by the MEC was procedurally unfair as it was done without the applicant's consent, constituting an unfair labour practice. The appropriate remedy is to set aside the arbitrator's award, except for the finding on demotion, and remit the matter to the MEC to reconsider the applicant's appeal against dismissal. No costs order is made due to the possibility of the employment relationship resuming.

Court Disposition

The arbitration award is reviewed and set aside, except for the finding that demotion without consent was an unfair labour practice. The matter is remitted to the MEC to reconsider the applicant's appeal. No order as to costs.

Orders

  • The arbitration award of the second respondent is reviewed and set aside, except for the finding that the imposition of demotion without consent constituted an unfair labour practice.
  • Within 30 calendar days of service of this judgment on the third respondent, the MEC must reconsider and decide the applicant's appeal against the sanction of dismissal imposed by the chairperson of the disciplinary enquiry.