SACCAWU v Zamanyambose and Others (D639/14) [2016] ZALCD 3 (19 February 2016)

SACCAWU v Zamanyambose and Others (D639/14) [2016] ZALCD 3 (19 February 2016)

The court found that the applicant failed to establish that the First Respondent had absconded, as the evidence did not demonstrate an unequivocal intention not to return to work. The dismissal was based on absenteeism and not substantiated by a proper disciplinary process, rendering it procedurally unfair. The...

Source-derived case information.

Citation
[2016] ZALCD 3
Parties
Applicant: SACCAWU; Respondent: Zamanyambose Goodness Mthethwa; Respondent: CCMA; Respondent: Commissioner Almeiro Deysel
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
19 February 2016
Case Number
D639/14
Procedural Posture
Review Application / Judgment on Review and Cross Review
Outcome
Both the applicant's review and the respondent's cross-review are dismissed. No order as to costs.
Judges
D H Gush
Legal Topics
Unfair Dismissal, Abscondment, Procedural Fairness, Substantive Fairness, Retrospective Reinstatement
Labour Law Civil Procedure Unfair Dismissal Abscondment Procedural Fairness Substantive Fairness Retrospective Reinstatement

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

SACCAWU

Applicant

Zamanyambose Goodness Mthethwa

Respondent

CCMA

Respondent

Commissioner Almeiro Deysel

Respondent

Procedural Posture

Review Application / Judgment on Review and Cross Review

Legal Issues

  1. 1 Whether the dismissal of the First Respondent constituted abscondment or absenteeism.
  2. 2 Whether the dismissal was procedurally and substantively fair.
  3. 3 Whether the limitation of retrospective compensation to six months was appropriate.

Ratio Decidendi

The court found that the applicant failed to establish that the First Respondent had absconded, as the evidence did not demonstrate an unequivocal intention not to return to work. The dismissal was based on absenteeism and not substantiated by a proper disciplinary process, rendering it procedurally unfair. The arbitrator correctly concluded that the sanction of dismissal was disproportionate to the misconduct, which was not serious enough to warrant termination. The limitation of retrospective compensation to six months was a reasonable exercise of discretion, considering the circumstances and delays. Both the review and cross-review applications failed to demonstrate any reviewable...

Court Disposition

Both the applicant's review and the respondent's cross-review are dismissed. No order as to costs.

Orders

  • The applicant's application to review the award of the Third Respondent is dismissed.
  • The First Respondent's application to review the portion of the Third Respondent's award is dismissed.