Moolman v Educational Labour Relations Council and Others (JR 1358/2010) [2010] ZALC 214 (5 November 2010)

Moolman v Educational Labour Relations Council and Others (JR 1358/2010) [2010] ZALC 214 (5 November 2010)

The court found that the arbitrator acted outside his jurisdiction by determining the fairness of the original dismissal in an unfair labour practice dispute, which is limited to disciplinary action short of dismissal. The arbitrator was correct in finding that the demotion imposed by the MEC without the applicant's consent constituted an unfair labour practice. However, the arbitrator erred in reinstating the original dismissal as a remedy, as he lacked jurisdiction to do so. The appropriate remedy is to remit the appeal to the MEC for reconsideration, as the decision on appeal was procedurally flawed. No order as to costs was made, considering the possibility of the employment...

Citation
[2010] ZALC 214
Parties
Applicant: Norman Moolman; Respondent: Education Labour Relations Council; Respondent: Coen Havenga N.O.; Respondent: Gauteng Department of Education
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
5 November 2010
Case Number
JR 1358/2010
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside, except for the finding that demotion without consent constituted an unfair labour practice. Appeal to be reconsidered by the MEC. No order as to costs.
Judges
Lagrange
Legal Topics
Unfair Labour Practice, Disciplinary Sanctions, Demotion Without Consent, Review of Arbitration Award, Jurisdiction of Arbitrator
Labour Law Civil Procedure Unfair Labour Practice Disciplinary Sanctions Demotion Without Consent Review of Arbitration Award Jurisdiction of Arbitrator

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 a 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 sanction imposed on appeal is procedurally defective.

Ratio Decidendi

The court found that the arbitrator acted outside his jurisdiction by determining the fairness of the original dismissal in an unfair labour practice dispute, which is limited to disciplinary action short of dismissal. The arbitrator was correct in finding that the demotion imposed by the MEC without the applicant's consent constituted an unfair labour practice. However, the arbitrator erred in reinstating the original dismissal as a remedy, as he lacked jurisdiction to do so. The appropriate remedy is to remit the appeal to the MEC for reconsideration, as the decision on appeal was procedurally flawed. No order as to costs was made, considering the possibility of the employment...

Court Disposition

Arbitration award reviewed and set aside, except for the finding that demotion without consent constituted an unfair labour practice. Appeal to be reconsidered by the MEC. 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 the applicant's consent constituted an unfair labour practice.
  • Within 30 calendar days of service of this judgment on the third respondent, the Member of the Executive Committee for the third respondent must reconsider and decide the applicant's appeal against the sanction of dismissal imposed by the chairperson of the disciplinary enquiry.