NUMSA and Another v Metal And Engineering Industries Bargaining Council (MEIBC) and Others (D469/14) [2016] ZALCD 16 (8 August 2016)

NUMSA and Another v Metal And Engineering Industries Bargaining Council (MEIBC) and Others (D469/14) [2016] ZALCD 16 (8 August 2016)

The court found that the commissioners decision was reasonable and justified on the evidence. Mthethwas refusal to testify was not based on genuine, substantiated fear for his safety but rather on a reluctance to be unpopular among co-workers. The evidence did not support inconsistency in discipline, as distinguishing factors existed between Mthethwa and the comparator employee. Procedural fairness was upheld, as Mthethwa was afforded representation in accordance with the Code of Good Practice, and no right to external representation was established. The applicants failed to meet the threshold for review, and the dismissal was found to be both substantively and procedurally fair.

Citation
[2016] ZALCD 16
Parties
Applicant: NUMSA; Applicant: Sipho Mthethwa; Respondent: Metal And Engineering Industries Bargaining Council (MEIBC); Respondent: Faaiza Syed N.O.; Respondent: Okapi Industries (Pty) Limited
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 August 2016
Case Number
D469/14
Procedural Posture
Review Application / Opposed Review of Arbitration Award
Outcome
Review application dismissed; arbitration award upheld.
Judges
Whitcher
Legal Topics
Dismissal for Disobedience, Arbitration Review, Procedural Fairness, Substantive Fairness
Labour Law Dismissal for Disobedience Arbitration Review Procedural Fairness Substantive Fairness

Case Brief

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Parties

NUMSA

Applicant

Sipho Mthethwa

Applicant

Metal And Engineering Industries Bargaining Council (MEIBC)

Respondent

Faaiza Syed N.O.

Respondent

Okapi Industries (Pty) Limited

Respondent

Procedural Posture

Review Application / Opposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioners award upholding the dismissal of Mthethwa was reasonable.
  2. 2 Whether Mthethwas refusal to testify constituted a valid reason for dismissal.
  3. 3 Whether the disciplinary process was procedurally fair.

Ratio Decidendi

The court found that the commissioners decision was reasonable and justified on the evidence. Mthethwas refusal to testify was not based on genuine, substantiated fear for his safety but rather on a reluctance to be unpopular among co-workers. The evidence did not support inconsistency in discipline, as distinguishing factors existed between Mthethwa and the comparator employee. Procedural fairness was upheld, as Mthethwa was afforded representation in accordance with the Code of Good Practice, and no right to external representation was established. The applicants failed to meet the threshold for review, and the dismissal was found to be both substantively and procedurally fair.

Court Disposition

Review application dismissed; arbitration award upheld.

Orders

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