Pep Stores v Commission for Conciliation, Mediation and Arbitration and Others (JR 1164/2019) [2023] ZALCJHB 242; (2023) 44 ILJ 2786 (LC) (11 August 2023)

Pep Stores v Commission for Conciliation, Mediation and Arbitration and Others (JR 1164/2019) [2023] ZALCJHB 242; (2023) 44 ILJ 2786 (LC) (11 August 2023)

The arbitrator committed a reviewable irregularity by reclassifying the employees' misconduct as negligence rather than dishonesty, despite clear evidence of repeated, deliberate breaches of company policy over two years. The arbitrator disregarded the seriousness of the misconduct and the lack of remorse, which...

Source-derived case information.

Citation
[2023] ZALCJHB 242
Parties
Applicant: Pep Stores; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner M.D Maila N.O.; Respondent: Elizabeth Ramatse & 6 Others
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2023
Case Number
JR 1164/2019
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; dismissals found substantively fair; referral dismissed.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Dishonesty in Employment, Progressive Discipline, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Dishonesty in Employment Progressive Discipline Substantive Fairness

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Summary, issues, holding and outcome

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Parties

Pep Stores

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner M.D Maila N.O.

Respondent

Elizabeth Ramatse & 6 Others

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed a reviewable irregularity by reclassifying the misconduct and disregarding relevant evidence.
  2. 2 Whether the dismissal of the employees for dishonesty was substantively fair.
  3. 3 Whether the arbitration award should be reviewed and set aside.

Ratio Decidendi

The arbitrator committed a reviewable irregularity by reclassifying the employees' misconduct as negligence rather than dishonesty, despite clear evidence of repeated, deliberate breaches of company policy over two years. The arbitrator disregarded the seriousness of the misconduct and the lack of remorse, which distorted the outcome. Dishonest conduct undermines the trust necessary for employment, and the Labour Court has consistently taken a strict approach to such behaviour. The arbitrator's decision to substitute dismissal with a final warning was not one that a reasonable decision-maker could reach. The award was therefore reviewed and set aside, and the dismissals were found to be...

Court Disposition

Arbitration award reviewed and set aside; dismissals found substantively fair; referral dismissed.

Orders

  • The arbitration award issued by the second respondent on 19 May 2019 under case number MP 10154-1 is reviewed and set aside.
  • The award is substituted by the following: 'The dismissal of the applicants was substantively fair, and their referral is dismissed.'