Opperman v CCMA and Others (C530/2014) [2016] ZALCCT 29; (2017) 38 ILJ 242 (LC) (17 August 2016)

Opperman v CCMA and Others (C530/2014) [2016] ZALCCT 29; (2017) 38 ILJ 242 (LC) (17 August 2016)

The Labour Court found that the arbitrator committed a material error of law by referring to but failing to apply the principle in Rennies Distribution Services (Pty) Ltd v Bierman, which requires express authority in the disciplinary code for an appeal chairperson to increase a sanction and mandates procedural fairness. Harmony Gold's disciplinary code did not expressly empower the appeal chairperson to impose a harsher sanction, and the applicant was not warned or given an opportunity to make submissions. Furthermore, the employer acted inconsistently by dismissing the applicant while other employees guilty of similar misconduct received written warnings. The arbitrator's finding that...

Citation
[2016] ZALCCT 29
Parties
Applicant: Marina Opperman; Respondent: CCMA; Respondent: Commissioner C L Makama N.O.; Respondent: Harmony Gold Mining Co Ltd
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
17 August 2016
Case Number
C530/2014
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
The arbitration award was reviewed and set aside. It was replaced with an award that the dismissal was substantively and procedurally unfair. The applicant was reinstated retrospectively with back pay limited to the period from dismissal to the date of the arbitration award. No costs order was made.
Judges
A Steenkamp
Legal Topics
Unfair Dismissal, Disciplinary Sanctions, Inconsistency in Discipline, Error of Law, Natural Justice, Internal Appeal Procedure
Labour Law Civil Procedure Unfair Dismissal Disciplinary Sanctions Inconsistency in Discipline Error of Law Natural Justice Internal Appeal Procedure

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 13 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Marina Opperman

Applicant

CCMA

Respondent

Commissioner C L Makama N.O.

Respondent

Harmony Gold Mining Co Ltd

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a material error of law by disregarding binding precedent on increasing sanctions on appeal.
  2. 2 Whether the employer acted inconsistently in imposing a harsher sanction on the applicant compared to other employees.
  3. 3 Whether the appeal chairperson exceeded his powers by increasing the sanction without warning the applicant.

Ratio Decidendi

The Labour Court found that the arbitrator committed a material error of law by referring to but failing to apply the principle in Rennies Distribution Services (Pty) Ltd v Bierman, which requires express authority in the disciplinary code for an appeal chairperson to increase a sanction and mandates procedural fairness. Harmony Gold's disciplinary code did not expressly empower the appeal chairperson to impose a harsher sanction, and the applicant was not warned or given an opportunity to make submissions. Furthermore, the employer acted inconsistently by dismissing the applicant while other employees guilty of similar misconduct received written warnings. The arbitrator's finding that...

Court Disposition

The arbitration award was reviewed and set aside. It was replaced with an award that the dismissal was substantively and procedurally unfair. The applicant was reinstated retrospectively with back pay limited to the period from dismissal to the date of the arbitration award. No costs order was made.

Orders

  • The arbitration award of Commissioner Collins Lenkwasi Makama under CCMA case number NWKD 3964-13 dated 1 June 2014 is reviewed and set aside.
  • It is replaced with an award that the dismissal of Ms Marina Opperman was substantively and procedurally unfair.