SAMWU obo Seanego v SALGBC and Others (JR 436/15) [2016] ZALCJHB 364 (27 September 2016)

SAMWU obo Seanego v SALGBC and Others (JR 436/15) [2016] ZALCJHB 364 (27 September 2016)

The court held that the arbitrator's finding that the applicant was aware of the alteration to the settlement agreement when submitting it to the municipality was not unreasonable and thus not reviewable in respect of the fraud charge. However, the evidence did not support the conclusion that the applicant individually or collectively changed the agreement, as Ramphele admitted to making the alteration himself. Therefore, the arbitrator's finding on gross dishonesty and the fairness of dismissal was unreasonable and reviewable. The dispute regarding charge two was remitted to the Bargaining Council for fresh consideration before a different arbitrator. The disciplinary hearing was found...

Citation
[2016] ZALCJHB 364
Parties
Applicant: SAMWU obo Lesiba Seanego; Respondent: SALGBC; Respondent: Diale Ntsoane N.O.; Respondent: Modimolle Local Municipality
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 September 2016
Case Number
JR 436/15
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside in respect of the finding on gross dishonesty and the fairness of dismissal. The dispute is remitted for fresh arbitration on charge two. No order as to costs.
Judges
A Steenkamp
Legal Topics
Unfair Dismissal, Misconduct, Fraud, Gross Dishonesty, Arbitration Review, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Misconduct Fraud Gross Dishonesty Arbitration Review Procedural Fairness

Case Brief

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Parties

SAMWU obo Lesiba Seanego

Applicant

SALGBC

Respondent

Diale Ntsoane N.O.

Respondent

Modimolle Local Municipality

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant committed fraud by submitting an altered settlement agreement to the municipality.
  2. 2 Whether the applicant was complicit in changing the wording of the settlement agreement, amounting to gross dishonesty.
  3. 3 Whether the arbitration award was reasonable and reviewable in respect of both charges.

Ratio Decidendi

The court held that the arbitrator's finding that the applicant was aware of the alteration to the settlement agreement when submitting it to the municipality was not unreasonable and thus not reviewable in respect of the fraud charge. However, the evidence did not support the conclusion that the applicant individually or collectively changed the agreement, as Ramphele admitted to making the alteration himself. Therefore, the arbitrator's finding on gross dishonesty and the fairness of dismissal was unreasonable and reviewable. The dispute regarding charge two was remitted to the Bargaining Council for fresh consideration before a different arbitrator. The disciplinary hearing was found...

Court Disposition

The arbitration award is reviewed and set aside in respect of the finding on gross dishonesty and the fairness of dismissal. The dispute is remitted for fresh arbitration on charge two. No order as to costs.

Orders

  • The arbitration award under case number LPD 071402 dated 12 February 2015 is reviewed and set aside insofar as the arbitrator found that the municipality had proven the misconduct of the employee on charge two and that dismissal was a fair sanction.
  • The finding on the misconduct complained of in charge one is not reviewable.