Mostamai v Everite Building Products (Pty) Ltd and Others (JR1250/05, JR3100/05) [2006] ZALCJHB 8 (14 December 2006)

Mostamai v Everite Building Products (Pty) Ltd and Others (JR1250/05, JR3100/05) [2006] ZALCJHB 8 (14 December 2006)

The court found that the Commissioner had correctly applied the standard of proof and was justified in preferring the evidence of the first respondent's witnesses over the applicant's denials. The applicant failed to demonstrate any reviewable irregularity in the finding of guilt for sexual harassment, particularly regarding the incidents involving Ms Msibi. The procedural fairness of the dismissal was upheld, as the applicant was afforded an opportunity to state his case during the disciplinary hearing, and the employer's conduct prior to the enquiry did not render the process unfair. The Commissioner exceeded his powers by substituting the sanction of dismissal with re-employment,...

Citation
[2006] ZALCJHB 8
Parties
Applicant: Themba Prince Motsamai; Respondent: Everite Building Products (Pty) Limited; Respondent: S Mthethwa (Commissioner); Respondent: The Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
14 December 2006
Case Number
JR1250/05 & JR3100/05
Procedural Posture
Review Application / Judgment After Consolidated Review Applications
Outcome
The applicant's review application (JR3100/05) was dismissed with costs. The first respondent's review application (JR1250/05) succeeded; the arbitration award was set aside and substituted with a finding that the dismissal was procedurally and substantively fair.
Judges
D Nel
Legal Topics
Unfair Dismissal, Sexual Harassment, Arbitration Review, Procedural Fairness, Substantive Fairness
Labour Law Unfair Dismissal Sexual Harassment Arbitration Review Procedural Fairness Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Themba Prince Motsamai

Applicant

Everite Building Products (Pty) Limited

Respondent

S Mthethwa (Commissioner)

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment After Consolidated Review Applications

Legal Issues

  1. 1 Whether the Commissioner committed a reviewable irregularity in finding the applicant guilty of sexual harassment.
  2. 2 Whether the dismissal of the applicant was procedurally and substantively fair.
  3. 3 Whether the Commissioner exceeded his powers by substituting the sanction of dismissal with re-employment on new terms.

Ratio Decidendi

The court found that the Commissioner had correctly applied the standard of proof and was justified in preferring the evidence of the first respondent's witnesses over the applicant's denials. The applicant failed to demonstrate any reviewable irregularity in the finding of guilt for sexual harassment, particularly regarding the incidents involving Ms Msibi. The procedural fairness of the dismissal was upheld, as the applicant was afforded an opportunity to state his case during the disciplinary hearing, and the employer's conduct prior to the enquiry did not render the process unfair. The Commissioner exceeded his powers by substituting the sanction of dismissal with re-employment,...

Court Disposition

The applicant's review application (JR3100/05) was dismissed with costs. The first respondent's review application (JR1250/05) succeeded; the arbitration award was set aside and substituted with a finding that the dismissal was procedurally and substantively fair.

Orders

  • The application in JR3100/05 is dismissed. The applicant and the Union are ordered to pay the first respondent's costs, the one paying, the other to be absolved.
  • The arbitration award made by the second respondent under case number GA25798-04 on 16 February 2005 is reviewed and set aside.