SAMWU and Others v South African Local Bargaining Council and Others (D 491/10) [2012] ZALCD 12 (20 September 2012)

SAMWU and Others v South African Local Bargaining Council and Others (D 491/10) [2012] ZALCD 12 (20 September 2012)

The court found that the arbitrator considered all relevant factors, including the applicants' length of service, disciplinary record, and the seriousness of the misconduct. The evidence established that the applicants refused to comply with a lawful and reasonable instruction from their manager, amounting to gross insubordination. The arbitrator's conclusion that dismissal was an appropriate sanction was one that a reasonable decision maker could reach. The applicants' arguments amounted to an appeal rather than a review, and there was no process-related defect or misconduct by the arbitrator. The award was therefore not reviewable.

Citation
[2012] ZALCD 12
Parties
Applicant: SAMWU; Applicant: S. B. Mkhungo; Applicant: R. Ntaka; Respondent: South African Local Bargaining Council; Respondent: N Dubazane; Respondent: Ethekwini Municipality
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
20 September 2012
Case Number
D 491/10
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application dismissed; arbitration award stands.
Judges
Gush
Legal Topics
Review of Arbitration Award, Gross Insubordination, Disciplinary Procedure, Collective Agreement, Procedural Fairness
Labour Law Civil Procedure Review of Arbitration Award Gross Insubordination Disciplinary Procedure Collective Agreement Procedural Fairness

Case Brief

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Parties

SAMWU

Applicant

S. B. Mkhungo

Applicant

R. Ntaka

Applicant

South African Local Bargaining Council

Respondent

N Dubazane

Respondent

Ethekwini Municipality

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding dismissal substantively fair is reviewable.
  2. 2 Whether the applicants were guilty of gross insubordination.
  3. 3 Whether dismissal was an appropriate sanction given the applicants' length of service and disciplinary record.

Ratio Decidendi

The court found that the arbitrator considered all relevant factors, including the applicants' length of service, disciplinary record, and the seriousness of the misconduct. The evidence established that the applicants refused to comply with a lawful and reasonable instruction from their manager, amounting to gross insubordination. The arbitrator's conclusion that dismissal was an appropriate sanction was one that a reasonable decision maker could reach. The applicants' arguments amounted to an appeal rather than a review, and there was no process-related defect or misconduct by the arbitrator. The award was therefore not reviewable.

Court Disposition

Application dismissed; arbitration award stands.

Orders

  • The applicants’ application is dismissed.
  • There is no order as to costs.