SAMWU and Another v Ethekwini Municipality and Others (DA18/2016) [2018] ZALAC 46; [2019] 1 BLLR 46 (LAC) (15 August 2018)

SAMWU and Another v Ethekwini Municipality and Others (DA18/2016) [2018] ZALAC 46; [2019] 1 BLLR 46 (LAC) (15 August 2018)

The Labour Court erred by relying on section 193(2)(b) of the LRA and failing to review the arbitrator's exercise of discretion in light of all relevant facts and circumstances. The arbitrator's decision to refuse reinstatement was unreasonable because it was based on narrow considerations and did not properly weigh the employee's long service, clean disciplinary record, proximity to retirement, and the inconsistent application of discipline by the employer. The evidence did not establish that the trust relationship had been irreparably broken or that reinstatement was not reasonably practicable. Accordingly, the primary remedy of reinstatement was appropriate, subject to a final written...

Citation
[2018] ZALAC 46
Parties
Appellant: SAMWU; Appellant: A A Dawood; Respondent: Ethekwini Municipality; Respondent: South African Local Government Bargaining Council; Respondent: Commissioner Ndaba N.O.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
15 August 2018
Case Number
DA18/2016
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award
Outcome
Appeal upheld. Labour Court order set aside. Employee reinstated with a final written warning for insubordination.
Judges
Waglay JP, Coppin JA, Savage AJA
Legal Topics
Unfair Dismissal, Reinstatement, Progressive Discipline, Insubordination, Remedies Under Lra
Labour Law Unfair Dismissal Reinstatement Progressive Discipline Insubordination Remedies Under Lra

Case Brief

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Parties

SAMWU

Appellant

A A Dawood

Appellant

Ethekwini Municipality

Respondent

South African Local Government Bargaining Council

Respondent

Commissioner Ndaba N.O.

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Dismissing Review of Arbitration Award

Legal Issues

  1. 1 Whether the Labour Court erred in upholding the arbitrator's refusal to reinstate the employee despite a finding of substantive unfairness.
  2. 2 Whether the arbitrator properly considered all relevant circumstances in determining that reinstatement was not reasonably practicable under section 193(2)(c) of the LRA.
  3. 3 Whether the primary remedy of reinstatement should have been awarded given the finding of inconsistency and the employee's disciplinary record.

Ratio Decidendi

The Labour Court erred by relying on section 193(2)(b) of the LRA and failing to review the arbitrator's exercise of discretion in light of all relevant facts and circumstances. The arbitrator's decision to refuse reinstatement was unreasonable because it was based on narrow considerations and did not properly weigh the employee's long service, clean disciplinary record, proximity to retirement, and the inconsistent application of discipline by the employer. The evidence did not establish that the trust relationship had been irreparably broken or that reinstatement was not reasonably practicable. Accordingly, the primary remedy of reinstatement was appropriate, subject to a final written...

Court Disposition

Appeal upheld. Labour Court order set aside. Employee reinstated with a final written warning for insubordination.

Orders

  • The appeal succeeds with no order as to costs.
  • The order of the Labour Court is set aside and substituted as follows: