Sibande v Commission for Conciliation, Mediation and Arbitration and Others (JR1032/04) [2009] ZALC 73; (2010) 31 ILJ 441 (LC) (30 July 2009)

Sibande v Commission for Conciliation, Mediation and Arbitration and Others (JR1032/04) [2009] ZALC 73; (2010) 31 ILJ 441 (LC) (30 July 2009)

The Labour Court found that the Commissioner committed a gross irregularity by failing to require proof of the applicant's alleged illegal immigrant status and by accepting mere suspicion as fact. The employer did not discharge its burden of proof to show a valid and fair reason for dismissal, as no disciplinary...

Source-derived case information.

Citation
[2009] ZALC 73
Parties
Applicant: Morgan Sibande; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner S. Khoza; Respondent: Dunwell Property Services
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
30 July 2009
Case Number
JR1032/04
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award was reviewed and set aside. The dismissal of the applicant was found to be both procedurally and substantively unfair. The applicant was ordered to be reinstated to his previous position with full benefits.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Burden of Proof, Gross Irregularity, Aliens Control Act
Labour Law Unfair Dismissal Procedural Fairness Substantive Fairness Burden of Proof Gross Irregularity Aliens Control Act

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Summary, issues, holding and outcome

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Parties

Morgan Sibande

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner S. Khoza

Respondent

Dunwell Property Services

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award upholding the dismissal of the applicant was reviewable on grounds of gross irregularity.
  2. 2 Whether the applicant was dismissed for a valid and fair reason, specifically whether he was lawfully declared an illegal immigrant.
  3. 3 Whether the dismissal was procedurally and substantively fair in terms of the Labour Relations Act.

Ratio Decidendi

The Labour Court found that the Commissioner committed a gross irregularity by failing to require proof of the applicant's alleged illegal immigrant status and by accepting mere suspicion as fact. The employer did not discharge its burden of proof to show a valid and fair reason for dismissal, as no disciplinary hearing was held and no documentation or testimony from the immigration officer was presented. The process required by the Aliens Control Act to declare someone a prohibited person was not followed, and the applicant was never lawfully declared an illegal immigrant. Consequently, both procedural and substantive fairness were lacking, and the arbitration award was set aside. The...

Court Disposition

The arbitration award was reviewed and set aside. The dismissal of the applicant was found to be both procedurally and substantively unfair. The applicant was ordered to be reinstated to his previous position with full benefits.

Orders

  • The arbitration award issued by the second respondent on 16 April 2004 under case number GA 21845-03 is reviewed and set aside.
  • The dismissal of the applicant is declared both procedurally and substantively unfair.