Msikinya v General Public Servants Bargaining Council and Others (JR2739/2014) [2016] ZALCJHB 97; (2016) 37 ILJ 1457 (LC) (16 February 2016)

Msikinya v General Public Servants Bargaining Council and Others (JR2739/2014) [2016] ZALCJHB 97; (2016) 37 ILJ 1457 (LC) (16 February 2016)

The court held that the arbitrator exercised her discretion fairly and judicially in limiting the applicant's back-pay to nine months. The delay in finalising the arbitration proceedings was primarily attributable to the applicant and his representatives, and it would not be fair to require the employer to...

Source-derived case information.

Citation
[2016] ZALCJHB 97
Parties
Applicant: Ntsele Wonga Msikinya; Respondent: General Public Servants Bargaining Council; Respondent: Commissioner Zarina Walele N.O; Respondent: MEC for Sports, Arts Culture and Recreation: Gauteng
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 February 2016
Case Number
JR2739/2014
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application dismissed.
Judges
Bakker
Legal Topics
Unfair Dismissal, Reinstatement, Back Pay Limitation, Judicial Discretion, Arbitration Review
Labour Law Unfair Dismissal Reinstatement Back Pay Limitation Judicial Discretion Arbitration Review

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Summary, issues, holding and outcome

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Parties

Ntsele Wonga Msikinya

Applicant

General Public Servants Bargaining Council

Respondent

Commissioner Zarina Walele N.O

Respondent

MEC for Sports, Arts Culture and Recreation: Gauteng

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator exercised her discretion correctly in limiting the applicant's back-pay to nine months.
  2. 2 Whether the delay in arbitration proceedings justified the limitation of back-pay.
  3. 3 Whether the arbitrator committed an error of law or fact in her awards.

Ratio Decidendi

The court held that the arbitrator exercised her discretion fairly and judicially in limiting the applicant's back-pay to nine months. The delay in finalising the arbitration proceedings was primarily attributable to the applicant and his representatives, and it would not be fair to require the employer to remunerate the applicant for periods where he was responsible for the delay. The arbitrator considered all relevant facts, acted on correct legal principles, and provided adequate reasons for her decision. The applicant was afforded opportunities to make submissions on remedy and delay, both during the arbitration and in the variation application. The court found no error of law or...

Court Disposition

Application dismissed.

Orders

  • The application is dismissed.
  • No order as to costs.