Polifin Ltd v Sibeko N.O and Another (J1569/98) [1998] ZALC 93 (29 October 1998)

Polifin Ltd v Sibeko N.O and Another (J1569/98) [1998] ZALC 93 (29 October 1998)

The Labour Court held that the Commissioner exceeded his powers by ordering preferential re-employment for Mr Yacoob after finding that his dismissal was fair. Section 193 of the Labour Relations Act only permits re-employment as a remedy where a dismissal is found to be unfair. Since the Commissioner concluded that the dismissal was fair, he had no authority to order re-employment. The application to set aside paragraph (b) of the award was found to be within the prescribed time, and if not, condonation was granted. Accordingly, paragraph (b) of the award was set aside and costs were awarded against the second respondent.

Citation
[1998] ZALC 93
Parties
Applicant: Polifin Ltd; Respondent: Z Sibeko NO; Respondent: A M Yacoob
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
29 October 1998
Case Number
J1569/98
Procedural Posture
Review Application / Application to Set Aside Part of Arbitration Award
Outcome
Paragraph (b) of the arbitration award is set aside; costs awarded against the second respondent.
Judges
A A Landman
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Condonation of Late Application, Remedies for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Condonation of Late Application Remedies for Unfair Dismissal

Case Brief

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Parties

Polifin Ltd

Applicant

Z Sibeko NO

Respondent

A M Yacoob

Respondent

Procedural Posture

Review Application / Application to Set Aside Part of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner had the power to order re-employment after finding the dismissal was fair.
  2. 2 Whether the application to set aside the award was brought within the prescribed time or should be condoned.

Ratio Decidendi

The Labour Court held that the Commissioner exceeded his powers by ordering preferential re-employment for Mr Yacoob after finding that his dismissal was fair. Section 193 of the Labour Relations Act only permits re-employment as a remedy where a dismissal is found to be unfair. Since the Commissioner concluded that the dismissal was fair, he had no authority to order re-employment. The application to set aside paragraph (b) of the award was found to be within the prescribed time, and if not, condonation was granted. Accordingly, paragraph (b) of the award was set aside and costs were awarded against the second respondent.

Court Disposition

Paragraph (b) of the arbitration award is set aside; costs awarded against the second respondent.

Orders

  • Paragraph (b) of the first respondent’s award of 8 September 1997 is set aside.
  • The costs of this application are to be paid by the second respondent.