NEHAWU and Others v Commission For Conciliation, Mediation and Arbitration and Others (C459/04) [2008] ZALC 10; (2008) 29 ILJ 1720 (LC) (15 January 2008)

NEHAWU and Others v Commission For Conciliation, Mediation and Arbitration and Others (C459/04) [2008] ZALC 10; (2008) 29 ILJ 1720 (LC) (15 January 2008)

The court found that the disciplinary and arbitration proceedings failed to establish that the applicants' protest action amounted to serious misconduct justifying dismissal. The evidence did not show that the protest caused significant harm to the employer's business or employment relationship. The collective agreement relied upon by the employer was binding only on the union, not on individual members, and the applicants' conduct did not breach its terms. The arbitrator erred in failing to substitute dismissal with a lesser sanction, particularly in the absence of evidence of serious misconduct. Given the delays in prosecuting the dispute, reinstatement was not practicable, and...

Citation
[2008] ZALC 10
Parties
Applicant: NEHAWU; Applicant: J Cornelius & 17 Others; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Bill Maritz N.O.; Respondent: High Rustenburg Hydro
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 January 2008
Case Number
C459/04
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Review application upheld; dismissal found to be unfair; compensation awarded in lieu of reinstatement.
Judges
Gush
Legal Topics
Unfair Dismissal, Collective Agreements, Protected Strike, Disciplinary Procedure, Condonation, Compensation for Unfair Dismissal
Labour Law Unfair Dismissal Collective Agreements Protected Strike Disciplinary Procedure Condonation Compensation for Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

NEHAWU

Applicant

J Cornelius & 17 Others

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Bill Maritz N.O.

Respondent

High Rustenburg Hydro

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the applicants for participating in protest action was fair.
  2. 2 Whether the applicants breached a collective agreement binding on them.
  3. 3 Whether the arbitrator erred in failing to substitute dismissal with a lesser sanction.

Ratio Decidendi

The court found that the disciplinary and arbitration proceedings failed to establish that the applicants' protest action amounted to serious misconduct justifying dismissal. The evidence did not show that the protest caused significant harm to the employer's business or employment relationship. The collective agreement relied upon by the employer was binding only on the union, not on individual members, and the applicants' conduct did not breach its terms. The arbitrator erred in failing to substitute dismissal with a lesser sanction, particularly in the absence of evidence of serious misconduct. Given the delays in prosecuting the dispute, reinstatement was not practicable, and...

Court Disposition

Review application upheld; dismissal found to be unfair; compensation awarded in lieu of reinstatement.

Orders

  • The review application is upheld.
  • The arbitration award is substituted with a finding that the dismissal of the applicants was unfair.