Oranjevis v Commission for Conciliation, Mediation and Arbitration and Others (C 274/2003) [2004] ZALC 73; [2005] 1 BLLR 62 (LC) (1 October 2004)

Oranjevis v Commission for Conciliation, Mediation and Arbitration and Others (C 274/2003) [2004] ZALC 73; [2005] 1 BLLR 62 (LC) (1 October 2004)

The court found that the arbitrator misdirected himself by focusing solely on whether the obligation to work night shifts was an express term at the commencement of employment, rather than considering whether such an obligation had become a tacit or implied term through the conduct of the parties. The evidence showed that the third respondent accepted and performed night shift duties for several months, indicating at least a tacit acceptance of the obligation. The court held that the dismissal for incapacity was substantively fair, as reasonable alternatives had been considered and rejected, and the third respondent was unable or unwilling to perform night shifts for health reasons. The...

Citation
[2004] ZALC 73
Parties
Applicant: Oranjevis (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner David Fred Mias; Respondent: Gary Noble
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 October 2004
Case Number
C 274/2003
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside; dismissal declared substantively fair.
Judges
Murphy
Legal Topics
Dismissal for Incapacity, Substantive Fairness, Tacit Terms, Employment Contract, Arbitration Review
Labour Law Dismissal for Incapacity Substantive Fairness Tacit Terms Employment Contract Arbitration Review

Case Brief

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Parties

Oranjevis (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner David Fred Mias

Respondent

Gary Noble

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the third respondent for incapacity due to ill-health was substantively fair.
  2. 2 Whether the obligation to work night shifts was an express, implied, or tacit term of the employment contract.
  3. 3 Whether the arbitrator misdirected himself by failing to consider the factual and legal position at the date of dismissal.

Ratio Decidendi

The court found that the arbitrator misdirected himself by focusing solely on whether the obligation to work night shifts was an express term at the commencement of employment, rather than considering whether such an obligation had become a tacit or implied term through the conduct of the parties. The evidence showed that the third respondent accepted and performed night shift duties for several months, indicating at least a tacit acceptance of the obligation. The court held that the dismissal for incapacity was substantively fair, as reasonable alternatives had been considered and rejected, and the third respondent was unable or unwilling to perform night shifts for health reasons. The...

Court Disposition

Application for review granted; arbitration award set aside; dismissal declared substantively fair.

Orders

  • The award of the second respondent dated 16 April 2003 under CCMA case number WE8403/01 is reviewed and set aside.
  • The dismissal of the third respondent is declared to have been substantively fair.