Pick 'n Pay Hypermarket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)

Pick 'n Pay Hypermarket v Commission for Conciliation, Mediation and Arbitration and Others (JR715/13) [2015] ZALCJHB 393 (12 November 2015)

The court found that the arbitrator misconstrued both the primary task of weighing the probabilities of the two versions and the standard of proof applicable to arbitration proceedings. The arbitrator's rejection of the applicant's witnesses was illogical and based on speculative reasoning, including factors not...

Source-derived case information.

Citation
[2015] ZALCJHB 393
Parties
Applicant: Pick 'n Pay Hypermarket; Respondent: Commission for Conciliation, Mediation & Arbitration; Respondent: Mr Joseph Mpahpulu N.O.; Respondent: SACCAWU obo Mr Thami Mnisi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
12 November 2015
Case Number
JR715/13
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The finding of unfair dismissal and consequential relief is substituted with a finding that the dismissal was fair. No order as to costs.
Judges
Lagrange
Legal Topics
Review of Arbitration Award, Standard of Proof, Admissibility of Evidence, Dismissal for Misconduct
Labour Law Civil Procedure Review of Arbitration Award Standard of Proof Admissibility of Evidence Dismissal for Misconduct

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Summary, issues, holding and outcome

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Parties

Pick 'n Pay Hypermarket

Applicant

Commission for Conciliation, Mediation & Arbitration

Respondent

Mr Joseph Mpahpulu N.O.

Respondent

SACCAWU obo Mr Thami Mnisi

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misconstrued the correct approach to evaluating evidence and the applicable standard of proof.
  2. 2 Whether the arbitrator's award was grossly irregular and irrational.
  3. 3 Whether the dismissal of the third respondent was substantively fair.

Ratio Decidendi

The court found that the arbitrator misconstrued both the primary task of weighing the probabilities of the two versions and the standard of proof applicable to arbitration proceedings. The arbitrator's rejection of the applicant's witnesses was illogical and based on speculative reasoning, including factors not raised by the parties. The arbitrator applied a standard of proof higher than required, and failed to properly consider the corroborative evidence of the security guards. The court held that, on a balance of probabilities, the third respondent admitted to hiding the laptop with the intention to remove it, and that dismissal was an appropriate sanction given the gross dishonesty...

Court Disposition

The arbitration award is reviewed and set aside. The finding of unfair dismissal and consequential relief is substituted with a finding that the dismissal was fair. No order as to costs.

Orders

  • The arbitration award of the second respondent dated 28 March 2013 under case number GAJB 22524-12 is reviewed and set aside.
  • The finding that the third respondent's dismissal was unfair and the consequential relief awarded is substituted with a finding that his dismissal was fair.