Samuel v Old Mutual Bank and Others (D398/11) [2018] ZALCD 16; (2019) 40 ILJ 205 (LC) (21 September 2018)

Samuel v Old Mutual Bank and Others (D398/11) [2018] ZALCD 16; (2019) 40 ILJ 205 (LC) (21 September 2018)

The court found that the arbitrator's refusal to order reinstatement was not justified by the evidence or the law. The arbitrator had found the dismissal to be unfair and likely based on trumped-up charges, yet declined reinstatement based on workplace discord and the applicant's relationship with certain managers. The court held that these reasons did not meet the statutory exceptions under section 193(2) of the LRA, which require that reinstatement be intolerable or not reasonably practicable. The evidence did not show that reinstatement was impossible or that the employment relationship was intolerable in the statutory sense. The court further held that the applicant's attainment of...

Citation
[2018] ZALCD 16
Parties
Applicant: Rumba Samuel; Respondent: Old Mutual Bank; Respondent: Commissioner Jabulani Ngwane; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
21 September 2018
Case Number
D398/11
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The applicant is reinstated for the period from dismissal to retirement. Costs are awarded to the applicant.
Judges
Gush
Legal Topics
Unfair Dismissal, Reinstatement, Compensation, Retirement Age, Review of Arbitration Award
Labour Law Unfair Dismissal Reinstatement Compensation Retirement Age Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Rumba Samuel

Applicant

Old Mutual Bank

Respondent

Commissioner Jabulani Ngwane

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's refusal to order reinstatement and award of compensation instead of reinstatement was reviewable.
  2. 2 Whether the applicant was entitled to reinstatement despite having reached retirement age by the time of the review.
  3. 3 Whether the circumstances justified compensation rather than reinstatement under section 193(2) of the Labour Relations Act.

Ratio Decidendi

The court found that the arbitrator's refusal to order reinstatement was not justified by the evidence or the law. The arbitrator had found the dismissal to be unfair and likely based on trumped-up charges, yet declined reinstatement based on workplace discord and the applicant's relationship with certain managers. The court held that these reasons did not meet the statutory exceptions under section 193(2) of the LRA, which require that reinstatement be intolerable or not reasonably practicable. The evidence did not show that reinstatement was impossible or that the employment relationship was intolerable in the statutory sense. The court further held that the applicant's attainment of...

Court Disposition

The arbitration award is reviewed and set aside. The applicant is reinstated for the period from dismissal to retirement. Costs are awarded to the applicant.

Orders

  • The arbitrator's award refusing reinstatement is reviewed and set aside.
  • The dismissal of the applicant was substantively unfair.