SAMWU obo Jele v South African Local Government Bargaining Council (D 854/18) [2022] ZALCD 34 (14 March 2022)

SAMWU obo Jele v South African Local Government Bargaining Council (D 854/18) [2022] ZALCD 34 (14 March 2022)

The evidence presented by the respondent was insufficient to establish that the applicant was properly instructed to attend the workshop. The respondent failed to call key witnesses and relied on leading questions and uncorroborated testimony. The arbitrator's finding that the applicant was given a lawful instruction and dismissed fairly was unreasonable. The applicant's dismissal was substantively unfair, and there was no evidence to justify denying reinstatement. The applicant is entitled to reinstatement with retrospective effect.

Citation
[2022] ZALCD 34
Parties
Applicant: SAMWU obo G. Jele; Respondent: South African Local Government Bargaining Council (SALGBC); Respondent: RM Lyster N.O; Respondent: Nongoma Local Municipality
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
14 March 2022
Case Number
D 854/18
Procedural Posture
Review Application / Judgment After Review of Arbitration Award
Outcome
The arbitration award upholding the dismissal is reviewed and set aside. The applicant's dismissal is declared substantively unfair. The applicant is reinstated retrospectively for 12 months from the date of the order.
Judges
Whitcher
Legal Topics
Unfair Dismissal, Reinstatement, Substantive Fairness, Procedural Fairness, Disciplinary Code Breach
Labour Law Unfair Dismissal Reinstatement Substantive Fairness Procedural Fairness Disciplinary Code Breach

Case Brief

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Parties

SAMWU obo G. Jele

Applicant

South African Local Government Bargaining Council (SALGBC)

Respondent

RM Lyster N.O

Respondent

Nongoma Local Municipality

Respondent

Procedural Posture

Review Application / Judgment After Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant was given a proper instruction to attend the workshop and refused to obey it.
  2. 2 Whether the dismissal of the applicant was substantively and procedurally fair.
  3. 3 Whether the arbitrator's award upholding the dismissal was reasonable.

Ratio Decidendi

The evidence presented by the respondent was insufficient to establish that the applicant was properly instructed to attend the workshop. The respondent failed to call key witnesses and relied on leading questions and uncorroborated testimony. The arbitrator's finding that the applicant was given a lawful instruction and dismissed fairly was unreasonable. The applicant's dismissal was substantively unfair, and there was no evidence to justify denying reinstatement. The applicant is entitled to reinstatement with retrospective effect.

Court Disposition

The arbitration award upholding the dismissal is reviewed and set aside. The applicant's dismissal is declared substantively unfair. The applicant is reinstated retrospectively for 12 months from the date of the order.

Orders

  • The arbitration award made by the second respondent on 24 March 2016 under case number KPD 051505 regarding the substantive fairness of the dismissal of the applicant is reviewed and set aside and substituted with an award that the dismissal of the applicant was substantively unfair.
  • The third respondent is ordered to reinstate the applicant retrospectively for 12 months from the date of this order.