National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 3125/09) [2012] ZALCJHB 3 (13 January 2012)

National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR 3125/09) [2012] ZALCJHB 3 (13 January 2012)

The court found that the commissioner correctly determined the substantive fairness of the second applicant's dismissal, as the evidence supported the conclusion that the applicant was guilty of misconduct. However, the commissioner erred in requiring the applicant to prove procedural unfairness, contrary to the Labour Relations Act, which places the burden on the employer. No evidence was led to prove procedural fairness, making the commissioner's finding unreasonable and reviewable. The court exercised its power to substitute its own decision, holding that the dismissal was procedurally unfair and awarding compensation equivalent to two months' remuneration, considering the applicant's...

Citation
[2012] ZALCJHB 3
Parties
Applicant: National Union of Mineworkers; Applicant: Eric Nhlanhla Khewu; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Terrance Serero N.O.; Respondent: Protech Khuthele (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 January 2012
Case Number
JR 3125/09
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The second applicant's dismissal is declared substantively fair but procedurally unfair. Compensation is awarded.
Judges
Lallie
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Compensation, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Compensation Review of Arbitration Award

Case Brief

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Parties

National Union of Mineworkers

Applicant

Eric Nhlanhla Khewu

Applicant

Commission for Conciliation, Mediation & Arbitration

Respondent

Terrance Serero N.O.

Respondent

Protech Khuthele (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award issued by the second respondent was reviewable under section 145 of the LRA.
  2. 2 Whether the second applicant's dismissal was substantively and procedurally fair.
  3. 3 Whether the commissioner applied the correct legal principles regarding the burden of proof for procedural fairness.

Ratio Decidendi

The court found that the commissioner correctly determined the substantive fairness of the second applicant's dismissal, as the evidence supported the conclusion that the applicant was guilty of misconduct. However, the commissioner erred in requiring the applicant to prove procedural unfairness, contrary to the Labour Relations Act, which places the burden on the employer. No evidence was led to prove procedural fairness, making the commissioner's finding unreasonable and reviewable. The court exercised its power to substitute its own decision, holding that the dismissal was procedurally unfair and awarding compensation equivalent to two months' remuneration, considering the applicant's...

Court Disposition

The arbitration award is reviewed and set aside. The second applicant's dismissal is declared substantively fair but procedurally unfair. Compensation is awarded.

Orders

  • The arbitration award issued by the second respondent on 22 November 2009 under case number JB31634/2008 is reviewed and set aside.
  • The second applicant's dismissal was substantively fair but procedurally unfair.