Nitrophoska (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (C109/2010) [2011] ZALCCT 5; [2011] 8 BLLR 765 (LC) (4 March 2011)

Nitrophoska (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (C109/2010) [2011] ZALCCT 5; [2011] 8 BLLR 765 (LC) (4 March 2011)

The Labour Court found that the commissioner’s conclusion that Jacobs was unaware of the allegations against him was unreasonable and unsupported by the evidence. Jacobs had repeatedly acknowledged his managerial failures and was given several opportunities to make representations regarding his continued employment and the breakdown of trust. The Code of Good Practice does not require a formal disciplinary hearing, particularly for senior managers, and the process followed by the applicant was sufficient to meet procedural fairness requirements. The commissioner’s finding of procedural unfairness was set aside and substituted with a finding of procedural fairness.

Citation
[2011] ZALCCT 5
Parties
Applicant: Nitrophoska (Pty) Limited; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Daniel du Plessis, N.O.; Respondent: B L Jacobs
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
4 March 2011
Case Number
C109/2010
Procedural Posture
Review Application / Judgment
Outcome
The review application succeeds. The commissioner’s finding of procedural unfairness is set aside and replaced with a finding of procedural fairness. No order as to costs.
Judges
Steenkamp
Legal Topics
Procedural Fairness, Dismissal, Code of Good Practice, Audi Alteram Partem, Compensation, Trust Relationship Breakdown
Labour Law Civil Procedure Procedural Fairness Dismissal Code of Good Practice Audi Alteram Partem Compensation Trust Relationship Breakdown

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Parties

Nitrophoska (Pty) Limited

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Daniel du Plessis, N.O.

Respondent

B L Jacobs

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Was the dismissal of Jacobs procedurally fair in the absence of a formal disciplinary hearing?
  2. 2 Did Jacobs have sufficient opportunity to know and respond to the allegations against him before dismissal?
  3. 3 Was the commissioner’s finding of procedural unfairness reasonable in light of the evidence?

Ratio Decidendi

The Labour Court found that the commissioner’s conclusion that Jacobs was unaware of the allegations against him was unreasonable and unsupported by the evidence. Jacobs had repeatedly acknowledged his managerial failures and was given several opportunities to make representations regarding his continued employment and the breakdown of trust. The Code of Good Practice does not require a formal disciplinary hearing, particularly for senior managers, and the process followed by the applicant was sufficient to meet procedural fairness requirements. The commissioner’s finding of procedural unfairness was set aside and substituted with a finding of procedural fairness.

Court Disposition

The review application succeeds. The commissioner’s finding of procedural unfairness is set aside and replaced with a finding of procedural fairness. No order as to costs.

Orders

  • The arbitration award of 21 December 2009 under CCMA case number WEC 12523/09 is reviewed and set aside.
  • The award is substituted with a finding that the dismissal of Jacobs was fair.