Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (JR1855/14) [2016] ZALCJHB 133 (5 April 2016)

Ndlovu v Commission for Conciliation, Mediation and Arbitration and Others (JR1855/14) [2016] ZALCJHB 133 (5 April 2016)

The court found that while the applicant was guilty of breaching the employer's trust by disclosing her password and changing shifts without authorisation, the employer's failure to discipline Gladys, who was equally involved, constituted inconsistent treatment. This failure amounted to a gross irregularity in the arbitration process, rendering the dismissal substantively unfair. However, given the applicant's breach of trust and the nature of her misconduct, reinstatement was not appropriate. Compensation was deemed the suitable remedy, considering her long service and lack of personal benefit from the misconduct.

Citation
[2016] ZALCJHB 133
Parties
Applicant: Dubline Ndlovu; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Katlholo Wabile N.O; Respondent: Friendly 7/11 Grayston CC
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
5 April 2016
Case Number
JR1855/14
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The arbitration award upholding the applicant's dismissal as substantively fair is set aside and replaced with a finding of substantive unfairness due to inconsistent treatment. Compensation is awarded.
Judges
Lagrange
Legal Topics
Inconsistent Treatment, Substantive Fairness, Remedy of Compensation, Breach of Trust, Disciplinary Procedure
Labour Law Inconsistent Treatment Substantive Fairness Remedy of Compensation Breach of Trust Disciplinary Procedure

Case Brief

Summary, issues, holding and outcome

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Parties

Dubline Ndlovu

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Katlholo Wabile N.O

Respondent

Friendly 7/11 Grayston CC

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's dismissal was substantively fair in light of alleged inconsistent treatment by the employer.
  2. 2 Whether the arbitrator failed to consider the issue of inconsistent treatment between the applicant and another manager.
  3. 3 What is the appropriate remedy if the dismissal is found to be substantively unfair.

Ratio Decidendi

The court found that while the applicant was guilty of breaching the employer's trust by disclosing her password and changing shifts without authorisation, the employer's failure to discipline Gladys, who was equally involved, constituted inconsistent treatment. This failure amounted to a gross irregularity in the arbitration process, rendering the dismissal substantively unfair. However, given the applicant's breach of trust and the nature of her misconduct, reinstatement was not appropriate. Compensation was deemed the suitable remedy, considering her long service and lack of personal benefit from the misconduct.

Court Disposition

The arbitration award upholding the applicant's dismissal as substantively fair is set aside and replaced with a finding of substantive unfairness due to inconsistent treatment. Compensation is awarded.

Orders

  • The second respondent's finding that the applicant's dismissal was substantively fair is set aside and substituted with a finding of substantive unfairness on grounds of inconsistent treatment.
  • The third respondent is ordered to pay the applicant three months' salary amounting to R17,700.00 as compensation within 14 days of the date of this order.