Snith v Rex and Others (JR1917/2009) [2013] ZALCJHB 328 (15 November 2013)

Snith v Rex and Others (JR1917/2009) [2013] ZALCJHB 328 (15 November 2013)

The court found that the arbitrator's failure to consider the defence of inconsistency was a material irregularity that affected the reasonableness of the arbitration award. The principle of consistency is integral to labour law and ensures equality and certainty in disciplinary proceedings. The arbitrator was obliged to apply his mind to the evidence regarding whether the applicant was treated differently from other employees who committed similar misconduct. The failure to do so rendered the award reviewable. Other alleged errors by the arbitrator, such as procedural irregularities in the disciplinary hearing, did not affect the reasonableness of the award and were not sufficient...

Citation
[2013] ZALCJHB 328
Parties
Applicant: Gabriel Stephanus P Smith; Respondent: Charlton Rex; Respondent: Safety and Security Sectoral Bargaining Council; Respondent: South African Police Service
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
15 November 2013
Case Number
JR1917/2009
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award was reviewed and set aside. The matter was remitted to the bargaining council for a new arbitrator to determine whether the applicant's dismissal for committing charge 3 was fair.
Judges
Lallie
Legal Topics
Dismissal for Misconduct, Inconsistency Principle, Arbitration Review, Collective Agreement Breach
Labour Law Civil Procedure Dismissal for Misconduct Inconsistency Principle Arbitration Review Collective Agreement Breach

Case Brief

Summary, issues, holding and outcome

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Parties

Gabriel Stephanus P Smith

Applicant

Charlton Rex

Respondent

Safety and Security Sectoral Bargaining Council

Respondent

South African Police Service

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator's failure to consider the defence of inconsistency rendered the arbitration award reviewable.
  2. 2 Whether the applicant's dismissal for referring to Captain Wolfe as a bitch was fair.
  3. 3 Whether procedural irregularities in the disciplinary hearing affected the reasonableness of the arbitration award.

Ratio Decidendi

The court found that the arbitrator's failure to consider the defence of inconsistency was a material irregularity that affected the reasonableness of the arbitration award. The principle of consistency is integral to labour law and ensures equality and certainty in disciplinary proceedings. The arbitrator was obliged to apply his mind to the evidence regarding whether the applicant was treated differently from other employees who committed similar misconduct. The failure to do so rendered the award reviewable. Other alleged errors by the arbitrator, such as procedural irregularities in the disciplinary hearing, did not affect the reasonableness of the award and were not sufficient...

Court Disposition

The arbitration award was reviewed and set aside. The matter was remitted to the bargaining council for a new arbitrator to determine whether the applicant's dismissal for committing charge 3 was fair.

Orders

  • The arbitration award issued by the first respondent under case number PSSS449-08/09 and dated 10 June 2009 is reviewed and set aside.
  • The matter is remitted to the second respondent for an arbitrator other than the first respondent to determine whether the applicant's dismissal for committing charge 3 was fair.