SATAWU obo Diveti v Bidvest Services (Pty) Ltd t/a Bidvest Prestige Cleaning Services (C162/2022) [2023] ZALCCT 64 (17 November 2023)

SATAWU obo Diveti v Bidvest Services (Pty) Ltd t/a Bidvest Prestige Cleaning Services (C162/2022) [2023] ZALCCT 64 (17 November 2023)

The court found that Ms Diveti participated in an unprotected strike but the evidence did not support the full range of charges against her. The only distinguishing conduct was her holding the door open at Majuba Hostel, which did not amount to serious misconduct justifying dismissal, especially as other participants received lesser sanctions. The disciplinary process was procedurally fair, with Ms Diveti pleading guilty and being afforded an interpreter. However, the company’s delay in dismissing her and its inconsistent treatment of other employees undermined the substantive fairness of the dismissal. The trust relationship was irreparably damaged by the applicant’s dishonest conduct...

Citation
[2023] ZALCCT 64
Parties
Applicant: SATAWU obo Ntombesicelo Diveti; Respondent: Bidvest Services (Pty) Ltd t/a Bidvest Prestige Cleaning Services
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
17 November 2023
Case Number
C162/2022
Procedural Posture
Unfair Dismissal Application / Trial
Outcome
The dismissal of the applicant was substantively unfair. Reinstatement is not ordered due to the breakdown of trust; compensation is awarded.
Judges
BN Conradie
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Strike Action, Remedies for Unfair Dismissal
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Strike Action Remedies for Unfair Dismissal

Case Brief

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Parties

SATAWU obo Ntombesicelo Diveti

Applicant

Bidvest Services (Pty) Ltd t/a Bidvest Prestige Cleaning Services

Respondent

Procedural Posture

Unfair Dismissal Application / Trial

Legal Issues

  1. 1 Was the dismissal of Ms Diveti substantively and procedurally fair?
  2. 2 Did Ms Diveti participate willingly in an unprotected strike or was she intimidated?
  3. 3 Was the disciplinary process conducted fairly and did Ms Diveti plead guilty voluntarily?

Ratio Decidendi

The court found that Ms Diveti participated in an unprotected strike but the evidence did not support the full range of charges against her. The only distinguishing conduct was her holding the door open at Majuba Hostel, which did not amount to serious misconduct justifying dismissal, especially as other participants received lesser sanctions. The disciplinary process was procedurally fair, with Ms Diveti pleading guilty and being afforded an interpreter. However, the company’s delay in dismissing her and its inconsistent treatment of other employees undermined the substantive fairness of the dismissal. The trust relationship was irreparably damaged by the applicant’s dishonest conduct...

Court Disposition

The dismissal of the applicant was substantively unfair. Reinstatement is not ordered due to the breakdown of trust; compensation is awarded.

Orders

  • The dismissal of the Applicant was substantively unfair.
  • The Respondent is ordered to pay the Applicant 8 months’ compensation in the amount of R42,605.84 within 14 days of receiving a copy of this judgment.