New Clicks SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1333\05) [2008] ZALC 171; (2008) 29 ILJ 1972 (LC) (27 February 2008)

New Clicks SA (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR 1333\05) [2008] ZALC 171; (2008) 29 ILJ 1972 (LC) (27 February 2008)

The court found that the arbitration award was reasonable and supported by the evidence. The applicant failed to provide convincing reasons or evidence that reinstatement would be intolerable under section 193(2)(b) of the LRA. Mere loss of trust by the employer, without substantiating evidence of intolerability,...

Source-derived case information.

Citation
[2008] ZALC 171
Parties
Applicant: New Clicks SA (Pty) Limited; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Zoliswa Tshetshe; Respondent: South African Commercial Catering and Allied Workers Union; Respondent: Jerry Shai and Others
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
27 February 2008
Case Number
JR 1333\05
Procedural Posture
Review Application / Judgment
Outcome
Review application dismissed with costs.
Judges
Moshoana
Legal Topics
Unfair Dismissal, Reinstatement, Section 193 Lra, Review of Arbitration Award, Incomplete Record
Labour Law Unfair Dismissal Reinstatement Section 193 Lra Review of Arbitration Award Incomplete Record

Source-derived case record

Summary, issues, holding and outcome

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Parties

New Clicks SA (Pty) Limited

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Zoliswa Tshetshe

Respondent

South African Commercial Catering and Allied Workers Union

Respondent

Jerry Shai and Others

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal unfair was reasonable.
  2. 2 Whether reinstatement was an appropriate remedy under section 193(2)(b) of the Labour Relations Act.
  3. 3 Whether the absence or incompleteness of the record justified review and setting aside of the award.

Ratio Decidendi

The court found that the arbitration award was reasonable and supported by the evidence. The applicant failed to provide convincing reasons or evidence that reinstatement would be intolerable under section 193(2)(b) of the LRA. Mere loss of trust by the employer, without substantiating evidence of intolerability, does not justify refusal of reinstatement. The record, although incomplete in parts, was sufficiently reconstructed and did not prejudice the applicant's ability to present its grounds for review. Consequently, none of the applicant's grounds for review were upheld, and the review application was dismissed with costs.

Court Disposition

Review application dismissed with costs.

Orders

  • The review application is dismissed with costs.