Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016)

Rustenburg Platinum Mine v SAEWA obo Bester and Others (JR130/14) [2016] ZALCJHB 75 (26 January 2016)

The Labour Court found that the commissioner failed to properly resolve the material dispute of fact regarding Bester's conduct and the use of the term 'swartman'. The evidence overwhelmingly supported the applicant's version that Bester stormed into a meeting, acted aggressively, and used the term 'swartman' in a manner that was derogatory and racist. The commissioner's finding that the remark was merely descriptive was unreasonable and ignored the context and impact of the words. The applicant had clearly communicated a zero-tolerance policy for abusive and derogatory language, and Bester's conduct constituted serious misconduct warranting dismissal. The arbitration award was therefore...

Citation
[2016] ZALCJHB 75
Parties
Applicant: Rustenburg Platinum Mine; Respondent: SAEWA obo Meyer Bester; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Kobus Erasmus N.O.
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
26 January 2016
Case Number
JR130/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The dismissal of Bester is found to be substantively and procedurally fair. Costs awarded against the first respondent.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Racial Misconduct, Arbitration Review, Workplace Discipline
Labour Law Unfair Dismissal Racial Misconduct Arbitration Review Workplace Discipline

Case Brief

Summary, issues, holding and outcome

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Parties

Rustenburg Platinum Mine

Applicant

SAEWA obo Meyer Bester

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Kobus Erasmus N.O.

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity resulting in an unreasonable arbitration award.
  2. 2 Whether the use of the term 'swartman' by Bester constituted a racist remark and misconduct justifying dismissal.
  3. 3 Whether the dismissal of Bester was substantively and procedurally fair.

Ratio Decidendi

The Labour Court found that the commissioner failed to properly resolve the material dispute of fact regarding Bester's conduct and the use of the term 'swartman'. The evidence overwhelmingly supported the applicant's version that Bester stormed into a meeting, acted aggressively, and used the term 'swartman' in a manner that was derogatory and racist. The commissioner's finding that the remark was merely descriptive was unreasonable and ignored the context and impact of the words. The applicant had clearly communicated a zero-tolerance policy for abusive and derogatory language, and Bester's conduct constituted serious misconduct warranting dismissal. The arbitration award was therefore...

Court Disposition

The arbitration award is reviewed and set aside. The dismissal of Bester is found to be substantively and procedurally fair. Costs awarded against the first respondent.

Orders

  • The arbitration award issued by the third respondent on 19 December 2013 under case number NWKD 1682-13 is reviewed and set aside.
  • The award is substituted by the finding that the applicant's dismissal was substantively and procedurally fair.