Setcom (Pty) Ltd v Dos Santos and Others (JR 1864/09) [2010] ZALC 193; (2011) 32 ILJ 1434 (LC) (15 December 2010)

Setcom (Pty) Ltd v Dos Santos and Others (JR 1864/09) [2010] ZALC 193; (2011) 32 ILJ 1434 (LC) (15 December 2010)

The court found that, although the arbitrator relied on a piece of evidence that did not exist, the totality of the evidence before the arbitrator supported the conclusion that the applicant had dismissed the first respondent. The employer's communications and conduct unequivocally indicated termination of employment, and subsequent attempts to recast the dismissal as a suspension were not genuine efforts to rectify the situation. The court distinguished the facts from Kemp, holding that the employer did not acknowledge wrongdoing or offer bona fide reinstatement. Therefore, the arbitrator's finding of unfair dismissal was reasonable and should not be set aside. However, the award of...

Citation
[2010] ZALC 193
Parties
Applicant: Setcom (Pty) Ltd; Respondent: Bronwyn Dos Santos; Respondent: Commission for Conciliation, Mediation, Arbitration; Respondent: Commissioner Sibusiso Magwaza
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
15 December 2010
Case Number
JR 1864/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application to review and set aside the arbitrator's finding of unfair dismissal is dismissed; the compensation award is reviewed and set aside; the matter is remitted for reconsideration of compensation.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Compensation Award, Review of Arbitration, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Compensation Award Review of Arbitration Procedural Fairness Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Setcom (Pty) Ltd

Applicant

Bronwyn Dos Santos

Respondent

Commission for Conciliation, Mediation, Arbitration

Respondent

Commissioner Sibusiso Magwaza

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's finding that the applicant dismissed the first respondent was reasonable and supported by evidence.
  2. 2 Whether the applicant created unreasonable conditions for the first respondent's return to work.
  3. 3 Whether the award of compensation to the first respondent was justified in light of the employer's conduct and the evidence presented.

Ratio Decidendi

The court found that, although the arbitrator relied on a piece of evidence that did not exist, the totality of the evidence before the arbitrator supported the conclusion that the applicant had dismissed the first respondent. The employer's communications and conduct unequivocally indicated termination of employment, and subsequent attempts to recast the dismissal as a suspension were not genuine efforts to rectify the situation. The court distinguished the facts from Kemp, holding that the employer did not acknowledge wrongdoing or offer bona fide reinstatement. Therefore, the arbitrator's finding of unfair dismissal was reasonable and should not be set aside. However, the award of...

Court Disposition

Application to review and set aside the arbitrator's finding of unfair dismissal is dismissed; the compensation award is reviewed and set aside; the matter is remitted for reconsideration of compensation.

Orders

  • The application to review and set aside the third respondent's finding that the first respondent's dismissal was procedurally and substantively unfair is dismissed.
  • The third respondent's award of compensation is reviewed and set aside.