Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018)

Nkomati Joint Venture v Commission for Conciliation, Mediation and Arbitration (JA25/2017) [2018] ZALAC 11; [2018] 8 BLLR 773 (LAC); (2018) 39 ILJ 2484 (LAC) (17 May 2018)

The Labour Appeal Court found that the arbitrator misconceived the central issue by focusing on whether the employee had tampered with the spreadsheet, rather than whether he had altered the formula to his own benefit. The evidence established that only the employee and Mr Packery had access to change the formula, and the employee failed to explain why he did not identify the change that benefited him. The most plausible inference was that the employee acted dishonestly. The arbitrator's decision was not one that a reasonable decision-maker could reach on the material before him, and the Labour Court erred in upholding the award. The dismissal was substantively fair.

Citation
[2018] ZALAC 11
Parties
Appellant: Nkomati Joint Venture; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Noko Nkgoeng N.O.; Respondent: National Union of Mineworkers; Respondent: Mashamba Kharidzha
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
17 May 2018
Case Number
JA25/2017
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal upheld; order of Labour Court set aside and substituted. Dismissal of the employee found to be substantively fair.
Judges
Waglay JP, Phatshoane ADJP, Savage AJA
Legal Topics
Substantive Fairness of Dismissal, Dishonesty, Review of Arbitration Award, Onus of Proof, Inference From Circumstantial Evidence
Labour Law Civil Procedure Substantive Fairness of Dismissal Dishonesty Review of Arbitration Award Onus of Proof Inference From Circumstantial Evidence

Case Brief

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Parties

Nkomati Joint Venture

Appellant

Commission for Conciliation, Mediation and Arbitration

Respondent

Noko Nkgoeng N.O.

Respondent

National Union of Mineworkers

Respondent

Mashamba Kharidzha

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the employee for dishonesty in tampering with the payroll spreadsheet formula was substantively fair.
  2. 2 Whether the Labour Court erred in dismissing the employer's review application of the arbitration award.
  3. 3 Whether the arbitrator's decision fell within the bounds of reasonableness required by law.

Ratio Decidendi

The Labour Appeal Court found that the arbitrator misconceived the central issue by focusing on whether the employee had tampered with the spreadsheet, rather than whether he had altered the formula to his own benefit. The evidence established that only the employee and Mr Packery had access to change the formula, and the employee failed to explain why he did not identify the change that benefited him. The most plausible inference was that the employee acted dishonestly. The arbitrator's decision was not one that a reasonable decision-maker could reach on the material before him, and the Labour Court erred in upholding the award. The dismissal was substantively fair.

Court Disposition

Appeal upheld; order of Labour Court set aside and substituted. Dismissal of the employee found to be substantively fair.

Orders

  • The appeal succeeds with no order as to costs.
  • The order of the Labour Court is set aside and substituted as follows: