Sibande v Commission for Conciliation Mediation And Arbitration and Others (JR1032/04) [2009] ZALCJHB 25 (30 July 2009)

Sibande v Commission for Conciliation Mediation And Arbitration and Others (JR1032/04) [2009] ZALCJHB 25 (30 July 2009)

The Labour Court found that the CCMA Commissioner committed a gross irregularity by accepting the employer's suspicion and external information as conclusive proof of the applicant's status as an illegal immigrant, without requiring proper evidence or following fair procedure. The employer failed to discharge its burden of proof, as no disciplinary hearing was held, no official documents were produced, and the immigration officer did not testify. The High Court had not found the applicant to be a prohibited person, and the prescribed process under the Aliens Control Act was not followed. Consequently, the dismissal was both procedurally and substantively unfair, and the arbitration award...

Citation
[2009] ZALCJHB 25
Parties
Applicant: Morgan Sibande; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner S. Khoza; Respondent: Dunwell Property Services
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 July 2009
Case Number
JR1032/04
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
Arbitration award reviewed and set aside; dismissal found procedurally and substantively unfair; applicant reinstated.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Burden of Proof, Gross Irregularity, Aliens Control Act
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Burden of Proof Gross Irregularity Aliens Control Act

Case Brief

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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 / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the CCMA Commissioner committed a gross irregularity in finding the dismissal of the applicant to be fair.
  2. 2 Whether the applicant was lawfully declared an illegal immigrant and dismissed on valid grounds.
  3. 3 Whether the dismissal was procedurally and substantively fair under the Labour Relations Act.

Ratio Decidendi

The Labour Court found that the CCMA Commissioner committed a gross irregularity by accepting the employer's suspicion and external information as conclusive proof of the applicant's status as an illegal immigrant, without requiring proper evidence or following fair procedure. The employer failed to discharge its burden of proof, as no disciplinary hearing was held, no official documents were produced, and the immigration officer did not testify. The High Court had not found the applicant to be a prohibited person, and the prescribed process under the Aliens Control Act was not followed. Consequently, the dismissal was both procedurally and substantively unfair, and the arbitration award...

Court Disposition

Arbitration award reviewed and set aside; dismissal found procedurally and substantively unfair; applicant reinstated.

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 was both procedurally and substantively unfair.