SAMWU obo Makibinyane and Others v SA Local Government Bargaining Council and Others (JR1043/18) [2020] ZALCJHB 140 (11 August 2020)

SAMWU obo Makibinyane and Others v SA Local Government Bargaining Council and Others (JR1043/18) [2020] ZALCJHB 140 (11 August 2020)

The court found that the applicants did not perempt their right to review, as they challenged the arbitration award timeously and did not accept payment as full and final settlement. The review application was not defective, as the relevant documents were available and referenced. On the merits, the Commissioner correctly determined that the termination of employment constituted a dismissal, and that the dismissal was procedurally unfair due to the failure to hold a disciplinary hearing and violation of the audi alteram partem rule. However, the Commissioner was justified in finding the dismissal substantively fair, as the applicants' repeated refusal to comply with lawful and reasonable...

Citation
[2020] ZALCJHB 140
Parties
Applicant: SAMWU obo MP Makibinyane & Others; Respondent: SA Local Government Bargaining Council; Respondent: Suria van Wyk; Respondent: Nala Local Municipality
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
11 August 2020
Case Number
JR1043/18
Procedural Posture
Review Application / Judgment on Opposed Review Application Under Section 145 of the LRA
Outcome
Review application dismissed with costs; arbitration award confirmed.
Judges
T Deane
Legal Topics
Review of Arbitration Award, Procedural Fairness, Insubordination, Audi Alteram Partem, Repudiation of Contract
Labour Law Civil Procedure Review of Arbitration Award Procedural Fairness Insubordination Audi Alteram Partem Repudiation of Contract

Case Brief

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Parties

SAMWU obo MP Makibinyane & Others

Applicant

SA Local Government Bargaining Council

Respondent

Suria van Wyk

Respondent

Nala Local Municipality

Respondent

Procedural Posture

Review Application / Judgment on Opposed Review Application Under Section 145 of the LRA

Legal Issues

  1. 1 Whether the applicants' dismissal was procedurally and substantively fair.
  2. 2 Whether the arbitration award was reviewable under section 145 of the LRA.
  3. 3 Whether the applicants' conduct amounted to peremption of their right to review.

Ratio Decidendi

The court found that the applicants did not perempt their right to review, as they challenged the arbitration award timeously and did not accept payment as full and final settlement. The review application was not defective, as the relevant documents were available and referenced. On the merits, the Commissioner correctly determined that the termination of employment constituted a dismissal, and that the dismissal was procedurally unfair due to the failure to hold a disciplinary hearing and violation of the audi alteram partem rule. However, the Commissioner was justified in finding the dismissal substantively fair, as the applicants' repeated refusal to comply with lawful and reasonable...

Court Disposition

Review application dismissed with costs; arbitration award confirmed.

Orders

  • The review application is dismissed with costs.
  • The order of the Commissioner is confirmed.