NUMSA obo Mere v Commission for Conciliation Mediation And Arbitration and Others (JR1620/11) [2015] ZALCJHB 196 (9 July 2015)

NUMSA obo Mere v Commission for Conciliation Mediation And Arbitration and Others (JR1620/11) [2015] ZALCJHB 196 (9 July 2015)

The court found that the arbitrator misconstrued the application of section 193 of the Labour Relations Act by failing to prioritize reinstatement as the primary remedy for unfair dismissal. The arbitrator did not properly consider whether the statutory exceptions to reinstatement—intolerability or...

Source-derived case information.

Citation
[2015] ZALCJHB 196
Parties
Applicant: NUMSA obo Boase Mere; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Mzondi Job Molapo (n.O.); Respondent: Precious Metal Refinery (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
9 July 2015
Case Number
JR1620/11
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award granting compensation for unfair dismissal is reviewed and set aside. The matter is remitted for a fresh determination of relief under section 193(1) of the LRA.
Judges
R Lagrange
Legal Topics
Unfair Dismissal, Reinstatement, Compensation, Section 193 Lra, Arbitration Review
Labour Law Civil Procedure Unfair Dismissal Reinstatement Compensation Section 193 Lra Arbitration Review

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Parties

NUMSA obo Boase Mere

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Mzondi Job Molapo (n.O.)

Respondent

Precious Metal Refinery (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator erred in failing to order reinstatement after acquitting the applicant of incitement.
  2. 2 Whether the award of compensation instead of reinstatement was justifiable under section 193 of the Labour Relations Act.
  3. 3 Whether the arbitrator relied on factors not canvassed in evidence to deny reinstatement.

Ratio Decidendi

The court found that the arbitrator misconstrued the application of section 193 of the Labour Relations Act by failing to prioritize reinstatement as the primary remedy for unfair dismissal. The arbitrator did not properly consider whether the statutory exceptions to reinstatement—intolerability or impracticability—were supported by evidence. The inference that reinstatement would be untenable was not justified by the evidence, as the employer did not lead any evidence of an irretrievable breakdown in the employment relationship. The arbitrator's reliance on factors outside the evidence and his balancing of fairness to the parties was the wrong test. Consequently, the award of...

Court Disposition

The arbitration award granting compensation for unfair dismissal is reviewed and set aside. The matter is remitted for a fresh determination of relief under section 193(1) of the LRA.

Orders

  • The second respondent’s award to Mr M Boase for unfair dismissal of four months’ compensation is reviewed and set aside.
  • The matter is remitted to the first respondent for a commissioner other than the second respondent to determine the appropriate relief under section 193(1)(a) or (b) of the LRA, based on the original arbitration record and after hearing submissions from the parties.