Motsamai v Everite Building Products (Pty) Ltd (JA21/08) [2010] ZALAC 23; [2011] 2 BLLR 144 (LAC) (4 June 2010)

Motsamai v Everite Building Products (Pty) Ltd (JA21/08) [2010] ZALAC 23; [2011] 2 BLLR 144 (LAC) (4 June 2010)

The Labour Appeal Court held that the Labour Court was correct in reviewing and setting aside the CCMA arbitration award. The evidence presented at arbitration established that the appellant committed serious acts of sexual harassment against a subordinate on multiple occasions. The Commissioner’s decision to impose a sanction of re-employment, rather than dismissal, was not reasonable or supported by the evidence, especially given the seriousness and repeated nature of the misconduct and the appellant’s lack of remorse. The employer was not required to follow conciliation or mediation where the victim preferred a formal disciplinary hearing, and the disciplinary process followed was...

Citation
[2010] ZALAC 23
Parties
Appellant: Themba Prince Motsamai; Respondent: Everite Building Products (Pty) Ltd
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
4 June 2010
Case Number
JA21/08
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside CCMA Arbitration Award
Outcome
Appeal dismissed. The Labour Court’s order setting aside the CCMA award and finding the dismissal procedurally and substantively fair is upheld. No order as to costs.
Judges
Waglay, Tlaletsi, Musi
Legal Topics
Sexual Harassment, Unfair Dismissal, Disciplinary Procedure, Arbitration Review
Labour Law Civil Procedure Sexual Harassment Unfair Dismissal Disciplinary Procedure Arbitration Review

Case Brief

Summary, issues, holding and outcome

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Parties

Themba Prince Motsamai

Appellant

Everite Building Products (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Reviewing and Setting Aside CCMA Arbitration Award

Legal Issues

  1. 1 Whether the Labour Court was correct in reviewing and setting aside the CCMA arbitration award.
  2. 2 Whether the sanction imposed by the Commissioner was reasonable in light of the misconduct found.
  3. 3 Whether the dismissal of the appellant was substantively and procedurally fair.

Ratio Decidendi

The Labour Appeal Court held that the Labour Court was correct in reviewing and setting aside the CCMA arbitration award. The evidence presented at arbitration established that the appellant committed serious acts of sexual harassment against a subordinate on multiple occasions. The Commissioner’s decision to impose a sanction of re-employment, rather than dismissal, was not reasonable or supported by the evidence, especially given the seriousness and repeated nature of the misconduct and the appellant’s lack of remorse. The employer was not required to follow conciliation or mediation where the victim preferred a formal disciplinary hearing, and the disciplinary process followed was...

Court Disposition

Appeal dismissed. The Labour Court’s order setting aside the CCMA award and finding the dismissal procedurally and substantively fair is upheld. No order as to costs.

Orders

  • The appeal is dismissed with no order as to costs.
  • Paragraphs 1 and 2 of the Labour Court’s order stand.