Motsamai v Everite Building Products (Pty) Ltd and Others (R1250/05, JR3100/05) [2006] ZALC 117 (14 December 2006)

Motsamai v Everite Building Products (Pty) Ltd and Others (R1250/05, JR3100/05) [2006] ZALC 117 (14 December 2006)

The court found that the Commissioner did not commit a reviewable irregularity in finding the applicant guilty of sexual harassment, as the evidence supported this conclusion. 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 employer's sanction of dismissal with re-employment, without providing rational reasons for such substitution, especially after finding the misconduct to be serious. The arbitration award was therefore reviewed and set aside, and...

Citation
[2006] ZALC 117
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
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) is dismissed with costs. The first respondent's review application (JR1250/05) is granted; the arbitration award is reviewed and set aside, and substituted with an order that the dismissal was procedurally and substantively fair. No order as to costs in respect of the...
Judges
Nel
Legal Topics
Sexual Harassment, Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness
Labour Law Sexual Harassment Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness

Case Brief

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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 ordering re-employment on new terms and conditions.

Ratio Decidendi

The court found that the Commissioner did not commit a reviewable irregularity in finding the applicant guilty of sexual harassment, as the evidence supported this conclusion. 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 employer's sanction of dismissal with re-employment, without providing rational reasons for such substitution, especially after finding the misconduct to be serious. The arbitration award was therefore reviewed and set aside, and...

Court Disposition

The applicant's review application (JR3100/05) is dismissed with costs. The first respondent's review application (JR1250/05) is granted; the arbitration award is reviewed and set aside, and substituted with an order that the dismissal was procedurally and substantively fair. No order as to costs in respect of the...

Orders

  • The application in JR3100/05 is dismissed.
  • The applicant and the Union who assisted him are ordered to pay the first respondent’s cost of suit, the one paying, the other to be absolved.