Nel v Ndaba and Others (J3688/98) [1999] ZALC 104 (25 June 1999)

Nel v Ndaba and Others (J3688/98) [1999] ZALC 104 (25 June 1999)

The court held that the Commissioner did not commit a reviewable irregularity in finding the dismissal substantively fair but procedurally unfair. The applicant's conduct in referring customers to other dealers and accepting commissions constituted a breach of fiduciary duty and was incompatible with his employment. The distinction between spotter's commission and 'chops' was immaterial, as both involved personal enrichment at the employer's expense. The Commissioner properly exercised discretion in declining to order compensation or reinstatement, given the lack of mitigating evidence and the applicant's representation at arbitration. Allegations of bias and failure to consider...

Citation
[1999] ZALC 104
Parties
Applicant: Nel, L; Respondent: Ndaba, H; Respondent: The Director, CCMA; Respondent: Western BMW
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
25 June 1999
Case Number
J3688/98
Procedural Posture
Review Application / Judgment
Outcome
Application dismissed with costs.
Judges
G J Marcus
Legal Topics
Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Fiduciary Duty, Compensation for Unfair Dismissal
Labour Law Civil Procedure Review of Arbitration Award Procedural Fairness Substantive Fairness Fiduciary Duty Compensation for Unfair Dismissal

Case Brief

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Parties

Nel, L

Applicant

Ndaba, H

Respondent

The Director, CCMA

Respondent

Western BMW

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award should be reviewed and set aside under section 145 of the Labour Relations Act.
  2. 2 Whether the Commissioner committed a reviewable irregularity in finding the dismissal substantively fair but procedurally unfair.
  3. 3 Whether the distinction between spotter's commission and 'chops' is material to the fairness of the dismissal.

Ratio Decidendi

The court held that the Commissioner did not commit a reviewable irregularity in finding the dismissal substantively fair but procedurally unfair. The applicant's conduct in referring customers to other dealers and accepting commissions constituted a breach of fiduciary duty and was incompatible with his employment. The distinction between spotter's commission and 'chops' was immaterial, as both involved personal enrichment at the employer's expense. The Commissioner properly exercised discretion in declining to order compensation or reinstatement, given the lack of mitigating evidence and the applicant's representation at arbitration. Allegations of bias and failure to consider...

Court Disposition

Application dismissed with costs.

Orders

  • The application for review is dismissed.
  • The applicant is ordered to pay the costs of the proceedings.