National Union of Mineworkers and Another v Grogan N.O. and Another (JA30/08) [2010] ZALAC 12 (1 June 2010)

National Union of Mineworkers and Another v Grogan N.O. and Another (JA30/08) [2010] ZALAC 12 (1 June 2010)

The Labour Appeal Court found that the arbitrator correctly determined that the dismissal of Giwu, Mahlangu, Mhlaba, Molamu, Mpampi, Sekutenyane, Mashodi and Tokelo was not for a fair reason, as there was no evidence they participated in or had knowledge of the misconduct. The company failed to discharge the onus of proving derivative misconduct against these employees. The arbitrator's limitation of compensation, rather than reinstatement, was upheld due to the closure of the laboratory and the passage of time. However, the arbitrator erred in exonerating Lephoto, who, on the evidence, must have had knowledge of the wrongdoing and failed to disclose it, justifying his dismissal. The...

Citation
[2010] ZALAC 12
Parties
Appellant: National Union of Mineworkers; Appellant: D Besent and Fourteen Others; Respondent: J. Grogan N.O.; Respondent: RSA Geological Services, Division of De Beers Consolidated Mines Ltd.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
1 June 2010
Case Number
JA30/08
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Reviewing Private Arbitration Award
Outcome
Appeal partly successful. Dismissal of certain employees found unfair; compensation awarded in lieu of reinstatement. Dismissal of other employees, including Lephoto, found fair.
Judges
McCall, Davis, Hendricks
Legal Topics
Unfair Dismissal, Derivative Misconduct, Review of Arbitration Award, Procedural Fairness, Remedies for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Derivative Misconduct Review of Arbitration Award Procedural Fairness Remedies for Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

National Union of Mineworkers

Appellant

D Besent and Fourteen Others

Appellant

J. Grogan N.O.

Respondent

RSA Geological Services, Division of De Beers Consolidated Mines Ltd.

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Reviewing Private Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of certain employees was substantively and procedurally fair.
  2. 2 Whether the concept of derivative misconduct justified dismissal of employees who did not directly participate in the misconduct.
  3. 3 Whether the arbitrator's findings regarding the period and motive for the misconduct were correct.

Ratio Decidendi

The Labour Appeal Court found that the arbitrator correctly determined that the dismissal of Giwu, Mahlangu, Mhlaba, Molamu, Mpampi, Sekutenyane, Mashodi and Tokelo was not for a fair reason, as there was no evidence they participated in or had knowledge of the misconduct. The company failed to discharge the onus of proving derivative misconduct against these employees. The arbitrator's limitation of compensation, rather than reinstatement, was upheld due to the closure of the laboratory and the passage of time. However, the arbitrator erred in exonerating Lephoto, who, on the evidence, must have had knowledge of the wrongdoing and failed to disclose it, justifying his dismissal. The...

Court Disposition

Appeal partly successful. Dismissal of certain employees found unfair; compensation awarded in lieu of reinstatement. Dismissal of other employees, including Lephoto, found fair.

Orders

  • The order of the Labour Court is set aside and substituted as follows:
  • The application for review is granted in part; the arbitrator's award is set aside and replaced with: