Ntambo v Tokiso Dispute Resolution and Others (JR510/14) [2015] ZALCJHB 435 (17 December 2015)

Ntambo v Tokiso Dispute Resolution and Others (JR510/14) [2015] ZALCJHB 435 (17 December 2015)

The court found that the employer misconstrued clause 5.9 of its termination policy, which is not a deeming provision operating automatically but rather requires the employer to afford the employee an opportunity to show good cause for absence. The employer was aware of the applicant's whereabouts, had communicated with him, and received a death certificate before the seven-day period expired. The arbitrator failed to enquire into whether dismissal was a fair sanction, or to consider the applicant's length of service and disciplinary record. The decision to dismiss was procedurally and substantively unfair, and the arbitrator reached an unreasonable result by upholding the dismissal.

Citation
[2015] ZALCJHB 435
Parties
Applicant: Mzwandile Ntambo; Respondent: Tokiso Dispute Resolution; Respondent: Tshepho Mashigo N.O.; Respondent: Transnet Freight Rail
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
17 December 2015
Case Number
JR510/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The applicant's dismissal was procedurally and substantively unfair. The applicant is reinstated from 1 September 2014. No order as to costs.
Judges
Rabkin-Naicker
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Disciplinary Code Interpretation
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Disciplinary Code Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Mzwandile Ntambo

Applicant

Tokiso Dispute Resolution

Respondent

Tshepho Mashigo N.O.

Respondent

Transnet Freight Rail

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the applicant was procedurally and substantively fair.
  2. 2 Whether the employer correctly invoked the desertion and abscondment clause in the termination policy.
  3. 3 Whether the arbitrator misconstrued the nature of the enquiry and reached an unreasonable result.

Ratio Decidendi

The court found that the employer misconstrued clause 5.9 of its termination policy, which is not a deeming provision operating automatically but rather requires the employer to afford the employee an opportunity to show good cause for absence. The employer was aware of the applicant's whereabouts, had communicated with him, and received a death certificate before the seven-day period expired. The arbitrator failed to enquire into whether dismissal was a fair sanction, or to consider the applicant's length of service and disciplinary record. The decision to dismiss was procedurally and substantively unfair, and the arbitrator reached an unreasonable result by upholding the dismissal.

Court Disposition

The arbitration award is reviewed and set aside. The applicant's dismissal was procedurally and substantively unfair. The applicant is reinstated from 1 September 2014. No order as to costs.

Orders

  • The award under case number TOKISO 2742 is reviewed, set aside and substituted.
  • The dismissal of MW Ntambo was procedurally and substantively unfair.