Northam Platinum Ltd v Phooko NO and Others (JR3457/09) [2012] ZALCJHB 58 (27 June 2012)

Northam Platinum Ltd v Phooko NO and Others (JR3457/09) [2012] ZALCJHB 58 (27 June 2012)

The court held that the arbitrator's finding of procedural unfairness was reasonable, as the employee was not afforded a proper opportunity to be heard before the sanction was changed from a final written warning to dismissal. The employer's unilateral alteration of the sanction, without clear provision in its disciplinary code or evidence of consistent practice, constituted procedural unfairness. However, the arbitrator failed to provide adequate reasoning for the finding of substantive unfairness, as there was insufficient indication that the arbitrator considered whether dismissal was an appropriate sanction in light of fairness and consistency. The absence of a clear reasoning process...

Citation
[2012] ZALCJHB 58
Parties
Applicant: Northam Platinum Ltd; Respondent: M E Phooko N.O; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: National Union of Mineworkers obo J L Ntholeng
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 June 2012
Case Number
JR3457/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is dismissed in respect of procedural fairness and succeeds in respect of substantive fairness. The matter is remitted to the second respondent for determination of substantive fairness by a commissioner other than the first respondent.
Judges
Bhoola
Legal Topics
Unfair Dismissal, Disciplinary Procedure, Procedural Fairness, Substantive Fairness, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Disciplinary Procedure Procedural Fairness Substantive Fairness Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Northam Platinum Ltd

Applicant

M E Phooko N.O

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

National Union of Mineworkers obo J L Ntholeng

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's finding of procedural unfairness in the dismissal was reasonable.
  2. 2 Whether the arbitrator's finding of substantive unfairness in the dismissal was reasonable.
  3. 3 Whether the employer was entitled to alter the sanction from a final written warning to dismissal without a further hearing.

Ratio Decidendi

The court held that the arbitrator's finding of procedural unfairness was reasonable, as the employee was not afforded a proper opportunity to be heard before the sanction was changed from a final written warning to dismissal. The employer's unilateral alteration of the sanction, without clear provision in its disciplinary code or evidence of consistent practice, constituted procedural unfairness. However, the arbitrator failed to provide adequate reasoning for the finding of substantive unfairness, as there was insufficient indication that the arbitrator considered whether dismissal was an appropriate sanction in light of fairness and consistency. The absence of a clear reasoning process...

Court Disposition

The review application is dismissed in respect of procedural fairness and succeeds in respect of substantive fairness. The matter is remitted to the second respondent for determination of substantive fairness by a commissioner other than the first respondent.

Orders

  • The review on the ground that the first respondent's finding in respect of procedural fairness is unreasonable is dismissed.
  • The review on the ground that the first respondent's finding in respect of substantive fairness is unreasonable succeeds.