Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44; [2019] 10 BLLR 1134 (LAC) (13 June 2019)

Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44; [2019] 10 BLLR 1134 (LAC) (13 June 2019)

The Labour Appeal Court found that the arbitrator did not commit a reviewable irregularity in determining that dismissal was inappropriate for the misconduct committed. The arbitrator correctly considered the disciplinary code, which prescribed a final written warning for insubordination, and took into account the appellant's long service, clean record, and remorse. There was no evidence that the misconduct was so serious as to render continued employment intolerable. The arbitrator's decision was reasonable and supported by the material before him. The Labour Court's substitution of the award was unjustified, and the appeal was upheld.

Citation
[2019] ZALAC 44
Parties
Appellant: Hosea Mushi; Respondent: Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
13 June 2019
Case Number
JA62/2018
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing Arbitration Award
Outcome
Appeal upheld with costs; Labour Court's order set aside and arbitration award reinstated.
Judges
Waglay JP, Murphy, Savage AJA
Legal Topics
Insubordination, Progressive Discipline, Arbitration Review, Sanction Appropriateness, Consistency in Discipline
Labour Law Insubordination Progressive Discipline Arbitration Review Sanction Appropriateness Consistency in Discipline

Case Brief

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Parties

Hosea Mushi

Appellant

Exxaro Coal (Pty) Ltd Grootegeluk Coal Mine

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity in finding dismissal inappropriate for insubordination.
  2. 2 Whether the Labour Court erred in substituting the arbitrator's award with an order that the dismissal was fair.
  3. 3 Whether the disciplinary code's guideline for sanction was properly applied.

Ratio Decidendi

The Labour Appeal Court found that the arbitrator did not commit a reviewable irregularity in determining that dismissal was inappropriate for the misconduct committed. The arbitrator correctly considered the disciplinary code, which prescribed a final written warning for insubordination, and took into account the appellant's long service, clean record, and remorse. There was no evidence that the misconduct was so serious as to render continued employment intolerable. The arbitrator's decision was reasonable and supported by the material before him. The Labour Court's substitution of the award was unjustified, and the appeal was upheld.

Court Disposition

Appeal upheld with costs; Labour Court's order set aside and arbitration award reinstated.

Orders

  • The appeal is upheld with costs.
  • The order of the Labour Court is set aside and substituted with: 'The review application is dismissed with costs.'