Sithole v Metal and Engineering Industries Bargaining and Others (JR318/15) [2017] ZALCJHB 434; (2018) 39 ILJ 472 (LC) (24 November 2017)

Sithole v Metal and Engineering Industries Bargaining and Others (JR318/15) [2017] ZALCJHB 434; (2018) 39 ILJ 472 (LC) (24 November 2017)

The court found that the arbitrator misconceived the true nature of the enquiry by focusing solely on the applicant's lack of a work permit and failing to consider the relevant facts, including the applicant's five years of employment and the circumstances surrounding his dismissal. The breach of section 38(1) of...

Source-derived case information.

Citation
[2017] ZALCJHB 434
Parties
Applicant: Joel Sithole; Respondent: Metal and Engineering Industries Bargaining; Respondent: Joseph Mphaphuli NO; Respondent: Spray System Specialists (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
24 November 2017
Case Number
JR318/15
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The applicant's dismissal is declared substantively and procedurally unfair. Compensation is awarded in lieu of reinstatement.
Judges
P Nkutha-Nkontwana
Legal Topics
Unfair Dismissal, Immigration Act Section 38, Compensation for Dismissal, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Immigration Act Section 38 Compensation for Dismissal Review of Arbitration Award

Source-derived case record

Summary, issues, holding and outcome

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Parties

Joel Sithole

Applicant

Metal and Engineering Industries Bargaining

Respondent

Joseph Mphaphuli NO

Respondent

Spray System Specialists (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant was dismissed by the third respondent.
  2. 2 Whether the dismissal was substantively and procedurally unfair.
  3. 3 Whether the arbitrator misconstrued the applicable legal principles regarding employment of foreign nationals without work permits.

Ratio Decidendi

The court found that the arbitrator misconceived the true nature of the enquiry by focusing solely on the applicant's lack of a work permit and failing to consider the relevant facts, including the applicant's five years of employment and the circumstances surrounding his dismissal. The breach of section 38(1) of the Immigration Act does not shield employers from the consequences of unfair dismissal, and the applicant was entitled to protection under the LRA. The dismissal was both substantively and procedurally unfair. Given the applicant's preference not to be reinstated and his subsequent acquisition of an asylum permit, compensation equivalent to four months' salary was deemed...

Court Disposition

The arbitration award is reviewed and set aside. The applicant's dismissal is declared substantively and procedurally unfair. Compensation is awarded in lieu of reinstatement.

Orders

  • The arbitration award is reviewed and set aside and replaced with an order declaring the dismissal of Mr Sithole substantively and procedurally unfair.
  • Spray System Specialists (Pty) Ltd is ordered to pay Mr Sithole an amount equivalent to four months' wages at the time of dismissal, namely R15,680.00.