Rand Water v Mabusela NO and Others (JR 1377/06) [2009] ZALC 181 (28 August 2009)

Rand Water v Mabusela NO and Others (JR 1377/06) [2009] ZALC 181 (28 August 2009)

The Labour Court found that the Arbitrator fundamentally misconstrued the issue of onus by requiring the employer to prove that Mosala was not sick, despite the fact that the duty to justify absenteeism rests with the employee. The Arbitrator ignored material evidence, including Mosala's failure to produce medical certificates and his lack of communication with the employer during his absence. The Arbitrator also failed to consider the negative operational impact of Mosala's absence and the employer's loss of trust. The finding of procedural unfairness was unreasonable, as Mosala had been given sufficient notice of the hearing and failed to attend without valid excuse. The Court held that...

Citation
[2009] ZALC 181
Parties
Applicant: Rand Water; Respondent: T L Mabusela NO; Respondent: The South African Local Government Bargaining Council; Respondent: SAMWU on behalf of S L Mosala
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
28 August 2009
Case Number
JR 1377/06
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of Mosala is declared substantively and procedurally fair. Costs are awarded against the Third Respondent.
Judges
AC Basson
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness, Onus of Proof, Reinstatement Remedy
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness Onus of Proof Reinstatement Remedy

Case Brief

Summary, issues, holding and outcome

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Parties

Rand Water

Applicant

T L Mabusela NO

Respondent

The South African Local Government Bargaining Council

Respondent

SAMWU on behalf of S L Mosala

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award issued by the First Respondent was reasonable and justifiable.
  2. 2 Whether the dismissal of Mosala was substantively and procedurally fair.
  3. 3 Whether the Arbitrator misconstrued the onus regarding proof of illness and absenteeism.

Ratio Decidendi

The Labour Court found that the Arbitrator fundamentally misconstrued the issue of onus by requiring the employer to prove that Mosala was not sick, despite the fact that the duty to justify absenteeism rests with the employee. The Arbitrator ignored material evidence, including Mosala's failure to produce medical certificates and his lack of communication with the employer during his absence. The Arbitrator also failed to consider the negative operational impact of Mosala's absence and the employer's loss of trust. The finding of procedural unfairness was unreasonable, as Mosala had been given sufficient notice of the hearing and failed to attend without valid excuse. The Court held that...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of Mosala is declared substantively and procedurally fair. Costs are awarded against the Third Respondent.

Orders

  • The award by the First Respondent is reviewed and set aside and replaced by an order that the dismissal of the Third Respondent Mr. SL Mosala was substantively and procedurally fair.
  • The Third Respondent is ordered to pay the costs.