Nampak Products Ltd v Stilwell and Others (D765/05) [2007] ZALCD 11 (17 October 2007)

Nampak Products Ltd v Stilwell and Others (D765/05) [2007] ZALCD 11 (17 October 2007)

The Court held that the applicant's grounds for review were weakened by the Constitutional Court's decision, which established that fairness is not determined by deference to the employer's decision. The applicant's new argument regarding the purpose of the rule prohibiting pornography was not pleaded and could not be raised for the first time during proceedings. The commissioner imposed a penalty depriving the employee of about five months' remuneration, which was reasonable and represented a fair balance of interests. The nature of the offence did not destroy the trust relationship, and the penalty was sufficient to address the misconduct. The application for review was dismissed with...

Citation
[2007] ZALCD 11
Parties
Applicant: Nampak Products Limited; Respondent: Commissioner Patrick Stilwell; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: C Marion; Respondent: South African Typographical Union
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
17 October 2007
Case Number
D765/05
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed with costs.
Judges
PILLAY D
Legal Topics
Review of Arbitration Award, Dismissal for Misconduct, Distribution of Pornography, Penalty for Misconduct, Mitigating Factors, Employer Policy
Labour Law Review of Arbitration Award Dismissal for Misconduct Distribution of Pornography Penalty for Misconduct Mitigating Factors Employer Policy

Case Brief

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Parties

Nampak Products Limited

Applicant

Commissioner Patrick Stilwell

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

C Marion

Respondent

South African Typographical Union

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner failed to show due deference to the employer's decision to dismiss the employee.
  2. 2 Whether the commissioner took into account mitigating factors that were not well-founded.
  3. 3 Whether the commissioner failed to consider the purpose of the rule prohibiting pornography.

Ratio Decidendi

The Court held that the applicant's grounds for review were weakened by the Constitutional Court's decision, which established that fairness is not determined by deference to the employer's decision. The applicant's new argument regarding the purpose of the rule prohibiting pornography was not pleaded and could not be raised for the first time during proceedings. The commissioner imposed a penalty depriving the employee of about five months' remuneration, which was reasonable and represented a fair balance of interests. The nature of the offence did not destroy the trust relationship, and the penalty was sufficient to address the misconduct. The application for review was dismissed with...

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed with costs.