Ndwandwe v South African Transport and Allied Workers Union (SATAWU) (JS226-18) [2019] ZALCJHB 95 (10 May 2019)

Ndwandwe v South African Transport and Allied Workers Union (SATAWU) (JS226-18) [2019] ZALCJHB 95 (10 May 2019)

The applicant failed to plead and prove that the disciplinary code and procedure in the respondent's constitution were incorporated into his contract of employment, either expressly or as a tacit term. There was no evidence that his contract provided for the rights set out in the disciplinary code, nor that the respondent's conduct supported the inference of a tacit term. Furthermore, even if such terms existed, the applicant failed to exhaust the internal remedy of appeal to the CEC before approaching the court. As a result, the application for default judgment and the referral were dismissed.

Citation
[2019] ZALCJHB 95
Parties
Applicant: Gift Sandile Ndwandwe; Respondent: South African Transport and Allied Workers Union (SATAWU)
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
10 May 2019
Case Number
JS226-18
Procedural Posture
Default Judgment Application / Application for Default Judgment
Outcome
Application for default judgment and referral dismissed.
Judges
Whitcher
Legal Topics
Unlawful Dismissal, Contractual Damages, Disciplinary Code, Tacit Terms, Default Judgment
Labour Law Unlawful Dismissal Contractual Damages Disciplinary Code Tacit Terms Default Judgment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 2 Party arguments 2
Sign in to unlock

Parties

Gift Sandile Ndwandwe

Applicant

South African Transport and Allied Workers Union (SATAWU)

Respondent

Procedural Posture

Default Judgment Application / Application for Default Judgment

Legal Issues

  1. 1 Whether the respondent unlawfully terminated the applicant's contract of employment.
  2. 2 Whether the disciplinary code and procedure in the respondent's constitution formed part of the applicant's contract of employment.
  3. 3 Whether the applicant was entitled to contractual damages for alleged unlawful dismissal.

Ratio Decidendi

The applicant failed to plead and prove that the disciplinary code and procedure in the respondent's constitution were incorporated into his contract of employment, either expressly or as a tacit term. There was no evidence that his contract provided for the rights set out in the disciplinary code, nor that the respondent's conduct supported the inference of a tacit term. Furthermore, even if such terms existed, the applicant failed to exhaust the internal remedy of appeal to the CEC before approaching the court. As a result, the application for default judgment and the referral were dismissed.

Court Disposition

Application for default judgment and referral dismissed.

Orders

  • The application for default judgment and the applicant's referral are dismissed.