Nampak Products (Pty) Ltd t/a Megapak v Commissioner for Conciliation, Mediation & Arbitration and Others (C 512/2018) [2021] ZALCCT 99 (24 June 2021)
The Labour Court held that the CCMA commissioner was required to consider the totality of circumstances when assessing the fairness of a dismissal. The commissioner must weigh the importance of the breached rule, the harm caused, the employee's length of service, and the possibility of rehabilitation. In this case,...
Source-derived case information.
- Citation
- [2021] ZALCCT 99
- Parties
- Applicant: Nampak Products (Pty) Ltd t/a Megapak; Respondent: Commissioner for Conciliation, Mediation & Arbitration; Respondent: Others
- Court
- Labour Court Cape Town
- Jurisdiction
- South Africa
- Case Number
- C 512/2018
- Procedural Posture
- Review Application / Judgment
- Outcome
- The review application was upheld. The arbitration award was set aside and the matter was remitted to the CCMA for rehearing before a different commissioner.
- Legal Topics
- Unfair Dismissal, Review of Arbitration Award, Sanction of Dismissal, Totality of Circumstances
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nampak Products (Pty) Ltd t/a Megapak
Applicant
Commissioner for Conciliation, Mediation & Arbitration
Respondent
Others
Respondent
Procedural Posture
Review Application / Judgment
Legal Issues
- 1 Whether the arbitration award issued by the CCMA commissioner was reviewable under section 145 of the Labour Relations Act.
- 2 Whether the sanction of dismissal imposed by the employer was fair and appropriate in the circumstances.
- 3 Whether the commissioner properly considered the totality of circumstances in assessing the fairness of the dismissal.
Ratio Decidendi
The Labour Court held that the CCMA commissioner was required to consider the totality of circumstances when assessing the fairness of a dismissal. The commissioner must weigh the importance of the breached rule, the harm caused, the employee's length of service, and the possibility of rehabilitation. In this case, the commissioner failed to properly apply these principles and did not adequately consider all relevant factors. As a result, the arbitration award was unreasonable and fell to be reviewed and set aside. The matter was remitted to the CCMA for reconsideration by a different commissioner.
Court Disposition
The review application was upheld. The arbitration award was set aside and the matter was remitted to the CCMA for rehearing before a different commissioner.
Orders
- The arbitration award issued by the CCMA commissioner is reviewed and set aside.
- The matter is remitted to the CCMA for reconsideration before a different commissioner.
Full Case Text
Judgment text and source record
6 paragraphs
[1] (2007) 28 ILJ 2405 (CC), at 2342-3, viz: “[78] In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been I breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
[1] (2007) 28 ILJ 2405 (CC), at 2342-3, viz:
“[78] In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been I breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal.
There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list.”
[2] At 2717.
[3] At 2717, para [16].