Nampak Products (Pty) Ltd v Stilwell and Others (D765/05) [2007] ZALC 186 (17 October 2007)

Nampak Products (Pty) Ltd v Stilwell and Others (D765/05) [2007] ZALC 186 (17 October 2007)

The court held that the applicant failed to plead the material allegation regarding the purpose of the rule prohibiting pornography, and thus could not raise it during proceedings. Even if the commissioner did not consider the employer's policy, the penalty imposed—deprivation of approximately five months' remuneration—was reasonable and could have been imposed by the employer with the employee's consent. The misconduct did not destroy the trust relationship, and the penalty represented a fair balance of interests. The review application was dismissed as the commissioner’s award was rational, justifiable, and free of irregularity.

Citation
[2007] ZALC 186
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
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, Disciplinary Penalty, Distribution of Pornography, Mitigating Factors, Employer Policy, Remuneration Sanction
Labour Law Civil Procedure Review of Arbitration Award Disciplinary Penalty Distribution of Pornography Mitigating Factors Employer Policy Remuneration Sanction

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 employer's rule prohibiting pornography.

Ratio Decidendi

The court held that the applicant failed to plead the material allegation regarding the purpose of the rule prohibiting pornography, and thus could not raise it during proceedings. Even if the commissioner did not consider the employer's policy, the penalty imposed—deprivation of approximately five months' remuneration—was reasonable and could have been imposed by the employer with the employee's consent. The misconduct did not destroy the trust relationship, and the penalty represented a fair balance of interests. The review application was dismissed as the commissioner’s award was rational, justifiable, and free of irregularity.

Court Disposition

Application for review dismissed with costs.

Orders

  • The application for review is dismissed with costs.