Nxele and Others v Department of Correctional Services and Others (D942/11) [2015] ZALCD 28 (22 May 2015)

Nxele and Others v Department of Correctional Services and Others (D942/11) [2015] ZALCD 28 (22 May 2015)

The court found that the applicants' demotion was both procedurally and substantively unfair. The initial irregularity in their appointment was remedied when they completed the outstanding training module, regularising their status. The respondent's failure to afford the applicants an opportunity to be heard before demotion violated the audi alteram partem rule, rendering the demotion unlawful and invalid. The arbitrator misconceived the nature of the inquiry and failed to give effect to the procedural unfairness, resulting in an unreasonable award. Consequently, the arbitration award was set aside and replaced with an order reinstating the applicants to their previous positions with...

Citation
[2015] ZALCD 28
Parties
Applicant: Thamsanqa Selbi Nxele; Applicant: Sithembile Hycynthia Glenrose Nxele; Respondent: Department of Correctional Services; Respondent: General Public Service Sectoral Bargaining Council (GPSSBC); Respondent: Arbitrator Dr R Maccain
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
22 May 2015
Case Number
D942/11
Procedural Posture
Review Application / Judgment
Outcome
Application for review succeeded; arbitration award set aside and replaced with reinstatement and reimbursement orders.
Judges
Nkutha-Nkontwana
Legal Topics
Unfair Labour Practice, Demotion, Audi Alteram Partem, Review of Arbitration Award, Remuneration Recovery
Labour Law Administrative Law Unfair Labour Practice Demotion Audi Alteram Partem Review of Arbitration Award Remuneration Recovery

Case Brief

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Parties

Thamsanqa Selbi Nxele

Applicant

Sithembile Hycynthia Glenrose Nxele

Applicant

Department of Correctional Services

Respondent

General Public Service Sectoral Bargaining Council (GPSSBC)

Respondent

Arbitrator Dr R Maccain

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the demotion of the applicants was lawful and valid.
  2. 2 Whether the arbitrator's award was reasonable and in accordance with the law.
  3. 3 Whether the applicants were afforded procedural fairness prior to demotion.

Ratio Decidendi

The court found that the applicants' demotion was both procedurally and substantively unfair. The initial irregularity in their appointment was remedied when they completed the outstanding training module, regularising their status. The respondent's failure to afford the applicants an opportunity to be heard before demotion violated the audi alteram partem rule, rendering the demotion unlawful and invalid. The arbitrator misconceived the nature of the inquiry and failed to give effect to the procedural unfairness, resulting in an unreasonable award. Consequently, the arbitration award was set aside and replaced with an order reinstating the applicants to their previous positions with...

Court Disposition

Application for review succeeded; arbitration award set aside and replaced with reinstatement and reimbursement orders.

Orders

  • The arbitration award dated 11 September 2011 under case number PSGA1216-07/08 is reviewed and set aside.
  • The demotion of the applicants is both procedurally and substantively unfair.