NUM and Others v CCMA and Others (JR202/07) [2011] ZALCJHB 177 (15 March 2011)

NUM and Others v CCMA and Others (JR202/07) [2011] ZALCJHB 177 (15 March 2011)

The court found that the arbitrator's decision was reasonable and supported by the evidence. The arbitrator correctly assessed the credibility of the witnesses and the probabilities, accepting the employer's version that the employees did not work the overtime hours claimed and acted dishonestly by clocking out as if they had. The arbitrator's finding that the trust relationship was breached and that dismissal was a fair sanction was not unreasonable. The additional charge against Makgoro for dereliction of duty was also reasonably upheld. Applying the Sidumo test, the award was not reviewable as it was not a decision that a reasonable decision maker could not reach.

Citation
[2011] ZALCJHB 177
Parties
Applicant: National Union of Mineworkers; Applicant: Lukas Makgoro & 12 Others; Respondent: CCMA; Respondent: R Bracks N.O.; Respondent: Vereeniging Refractories (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 March 2011
Case Number
JR202/07
Procedural Posture
Review Application / Judgment
Outcome
Application for review dismissed. No order as to costs.
Judges
Steenkamp
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Dishonesty in Employment, Substantive Fairness, Burden of Proof
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Dishonesty in Employment Substantive Fairness Burden of Proof

Case Brief

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Parties

National Union of Mineworkers

Applicant

Lukas Makgoro & 12 Others

Applicant

CCMA

Respondent

R Bracks N.O.

Respondent

Vereeniging Refractories (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator committed misconduct, gross irregularity, or exceeded his powers under section 145 of the LRA.
  2. 2 Whether the arbitrator's decision that the dismissal was fair is one that a reasonable decision maker could not reach.
  3. 3 Whether the evidence supported a finding of dishonesty and breach of trust by the employees.

Ratio Decidendi

The court found that the arbitrator's decision was reasonable and supported by the evidence. The arbitrator correctly assessed the credibility of the witnesses and the probabilities, accepting the employer's version that the employees did not work the overtime hours claimed and acted dishonestly by clocking out as if they had. The arbitrator's finding that the trust relationship was breached and that dismissal was a fair sanction was not unreasonable. The additional charge against Makgoro for dereliction of duty was also reasonably upheld. Applying the Sidumo test, the award was not reviewable as it was not a decision that a reasonable decision maker could not reach.

Court Disposition

Application for review dismissed. No order as to costs.

Orders

  • The application for review is dismissed.
  • There is no order as to costs.