Pep Stores v SACCAWU (JA105/97) [1998] ZALAC 5 (2 June 1998)

Pep Stores v SACCAWU (JA105/97) [1998] ZALAC 5 (2 June 1998)

The Labour Appeal Court held that the industrial court erred in considering procedural unfairness, as it was neither pleaded nor properly canvassed in evidence, and had been expressly abandoned in the opening address. On substantive fairness, the evidence established that the second respondent negligently under-rang goods and failed to obtain managerial approval for an exchange, but deliberate misconduct was not proved. The court found that negligence was established on both counts, but the appropriate sanction was a final written warning valid for six months, not dismissal. The reinstatement order was upheld, with the disciplinary record to reflect the offence and a final written warning...

Citation
[1998] ZALAC 5
Parties
Appellant: Pep Stores (Pty) Ltd (Silverton); Respondent: South African Commercial Catering and Allied Workers Union; Respondent: R Sekwati
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
2 June 1998
Case Number
JA105/97
Procedural Posture
Civil Appeal / Appeal From Industrial Court Decision
Outcome
Appeal partially upheld. Industrial court order set aside and substituted. Dismissal found substantively unfair; reinstatement ordered with final written warning for negligence. No order as to costs.
Judges
Nicholson, Myburgh, Froneman
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Disciplinary Code, Negligence, Reinstatement
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Disciplinary Code Negligence Reinstatement

Case Brief

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Parties

Pep Stores (Pty) Ltd (Silverton)

Appellant

South African Commercial Catering and Allied Workers Union

Respondent

R Sekwati

Respondent

Procedural Posture

Civil Appeal / Appeal From Industrial Court Decision

Legal Issues

  1. 1 Whether the dismissal of the second respondent was procedurally and substantively unfair.
  2. 2 Whether procedural unfairness was properly raised and canvassed before the industrial court.
  3. 3 Whether the evidence established deliberate misconduct or mere negligence by the second respondent.

Ratio Decidendi

The Labour Appeal Court held that the industrial court erred in considering procedural unfairness, as it was neither pleaded nor properly canvassed in evidence, and had been expressly abandoned in the opening address. On substantive fairness, the evidence established that the second respondent negligently under-rang goods and failed to obtain managerial approval for an exchange, but deliberate misconduct was not proved. The court found that negligence was established on both counts, but the appropriate sanction was a final written warning valid for six months, not dismissal. The reinstatement order was upheld, with the disciplinary record to reflect the offence and a final written warning...

Court Disposition

Appeal partially upheld. Industrial court order set aside and substituted. Dismissal found substantively unfair; reinstatement ordered with final written warning for negligence. No order as to costs.

Orders

  • The dismissal of the second applicant by respondent on 11 March 1996 was substantively unfair.
  • The second applicant is reinstated in her former position, provided that her disciplinary record reflects the offence of negligence in connection with her duties and a final written warning is imposed for the offence for the purposes of sanction.