National Nuclear Regulator v Commission for Conciliation, Mediation and Arbitration and Others (JR3104/12) [2016] ZALCJHB 177 (11 May 2016)

National Nuclear Regulator v Commission for Conciliation, Mediation and Arbitration and Others (JR3104/12) [2016] ZALCJHB 177 (11 May 2016)

The court found that the Second Respondent conflated the issues of misconduct and the alleged dispensation. The evidence established that the Applicant communicated clear working hours to all employees, including the Third Respondent, via the CEO's email on 14 June 2010. The Third Respondent was not entitled to treat the prior accommodation as a permanent change to his terms of employment. The Applicant followed a process of progressive discipline, issuing warnings and ultimately convening a disciplinary hearing. The Second Respondent erred in finding that the Applicant waived its right to discipline the Third Respondent and in relying on irrelevant evidence regarding performance...

Citation
[2016] ZALCJHB 177
Parties
Applicant: National Nuclear Regulator; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Willem Koekemoer NO; Respondent: Mike Blumenthal
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 May 2016
Case Number
JR3104/12
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; dismissal of Third Respondent declared procedurally and substantively fair; no order as to costs.
Judges
Phala
Legal Topics
Unfair Dismissal, Progressive Discipline, Waiver of Disciplinary Rights, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Progressive Discipline Waiver of Disciplinary Rights Procedural Fairness Substantive Fairness

Case Brief

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Parties

National Nuclear Regulator

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Willem Koekemoer NO

Respondent

Mike Blumenthal

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal of the Third Respondent to be procedurally and substantively unfair was reasonable.
  2. 2 Whether the Applicant waived its right to take disciplinary action against the Third Respondent by not acting for an extended period.
  3. 3 Whether the disciplinary process followed by the Applicant complied with the principles of progressive discipline.

Ratio Decidendi

The court found that the Second Respondent conflated the issues of misconduct and the alleged dispensation. The evidence established that the Applicant communicated clear working hours to all employees, including the Third Respondent, via the CEO's email on 14 June 2010. The Third Respondent was not entitled to treat the prior accommodation as a permanent change to his terms of employment. The Applicant followed a process of progressive discipline, issuing warnings and ultimately convening a disciplinary hearing. The Second Respondent erred in finding that the Applicant waived its right to discipline the Third Respondent and in relying on irrelevant evidence regarding performance...

Court Disposition

Arbitration award reviewed and set aside; dismissal of Third Respondent declared procedurally and substantively fair; no order as to costs.

Orders

  • The arbitration award issued by the Second Respondent under the auspices of the First Respondent is reviewed and set aside and substituted as follows: The dismissal of the Third Respondent is procedurally and substantively fair.
  • There is no order as to costs.