Polymark Recycling (Pty) Ltd v Mohulatsi and Others (JR511/08) [2010] ZALC 270 (19 March 2010)

Polymark Recycling (Pty) Ltd v Mohulatsi and Others (JR511/08) [2010] ZALC 270 (19 March 2010)

The court found that the arbitrator misdirected himself in several material respects, including his treatment of the employee's absence from the disciplinary hearing, his failure to properly consider the company's operational requirements, and his approach to the evidence regarding absenteeism and insubordination. The arbitrator failed to give proper regard to the fact that the company runs a continuous operation and that disciplinary hearings are scheduled according to external chairpersons' availability. The arbitrator also erred in accepting the employee's explanation for absence without it being properly put to the company's witnesses and in failing to recognize that the employee did...

Citation
[2010] ZALC 270
Parties
Applicant: Polymark Recycling (Pty) Limited; Respondent: Stoffel Mohulatsi; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: NUMSA obo Dibakwane
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
19 March 2010
Case Number
JR511/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for rehearing before a different arbitrator. Costs are awarded in favour of the applicant.
Judges
KS TIP
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Disciplinary Hearing, Remittal to Ccma
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Disciplinary Hearing Remittal to Ccma

Case Brief

Summary, issues, holding and outcome

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Parties

Polymark Recycling (Pty) Limited

Applicant

Stoffel Mohulatsi

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

NUMSA obo Dibakwane

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator misdirected himself in finding the dismissal of Mr Dibakwane unfair.
  2. 2 Whether the disciplinary hearing was properly scheduled and whether the employee's absence was justified.
  3. 3 Whether the arbitrator failed to consider relevant evidence and misapplied the law regarding absenteeism and insubordination.

Ratio Decidendi

The court found that the arbitrator misdirected himself in several material respects, including his treatment of the employee's absence from the disciplinary hearing, his failure to properly consider the company's operational requirements, and his approach to the evidence regarding absenteeism and insubordination. The arbitrator failed to give proper regard to the fact that the company runs a continuous operation and that disciplinary hearings are scheduled according to external chairpersons' availability. The arbitrator also erred in accepting the employee's explanation for absence without it being properly put to the company's witnesses and in failing to recognize that the employee did...

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for rehearing before a different arbitrator. Costs are awarded in favour of the applicant.

Orders

  • The award delivered by the first respondent on 23 January 2008 under case number NW2615-07 is hereby reviewed and set aside.
  • The third respondent is ordered to pay the applicant's costs in respect of this review.