Somi v Transnet Bargaining Council and Others (PR212/20) [2022] ZALCPE 40 (9 December 2022)

Somi v Transnet Bargaining Council and Others (PR212/20) [2022] ZALCPE 40 (9 December 2022)

The court found that the arbitrator erred in her findings on charges 2, 4, and 5. The existence and consistent application of the relevant security policy were not proven by the third respondent, and the applicant's refusal to comply was based on a reasonable belief of exemption due to his disability. The arbitrator failed to properly assess the evidence and apply the correct legal principles in resolving factual disputes, resulting in an unreasonable award. The finding of guilt on charge 3 was supported by the evidence, but the findings on charges 2, 4, and 5 were vitiated. Consequently, the pre-dismissal arbitration award was reviewed and set aside, and the matter was remitted for...

Citation
[2022] ZALCPE 40
Parties
Applicant: Andile Somi; Respondent: Transnet Bargaining Council; Respondent: Catherine Williows N.O.; Respondent: Transnet National Ports Authority
Court
Labour Court Port Elizabeth
Jurisdiction
South Africa
Judgment Date
9 December 2022
Case Number
PR212/20
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Pre-dismissal arbitration award reviewed and set aside; matter remitted for determination of fair sanction on charge 3; no order as to costs.
Judges
Z Lallie
Legal Topics
Review of Arbitration Award, Unfair Dismissal, Misconduct, Onus of Proof, Reasonableness of Award
Labour Law Review of Arbitration Award Unfair Dismissal Misconduct Onus of Proof Reasonableness of Award

Case Brief

Summary, issues, holding and outcome

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Parties

Andile Somi

Applicant

Transnet Bargaining Council

Respondent

Catherine Williows N.O.

Respondent

Transnet National Ports Authority

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator committed gross irregularities in the conduct of the arbitration resulting in an unreasonable award.
  2. 2 Whether the arbitrator's findings on charges 2, 4, and 5 were supported by the evidence.
  3. 3 Whether the applicant's dismissal for misconduct was fair in terms of the Labour Relations Act.

Ratio Decidendi

The court found that the arbitrator erred in her findings on charges 2, 4, and 5. The existence and consistent application of the relevant security policy were not proven by the third respondent, and the applicant's refusal to comply was based on a reasonable belief of exemption due to his disability. The arbitrator failed to properly assess the evidence and apply the correct legal principles in resolving factual disputes, resulting in an unreasonable award. The finding of guilt on charge 3 was supported by the evidence, but the findings on charges 2, 4, and 5 were vitiated. Consequently, the pre-dismissal arbitration award was reviewed and set aside, and the matter was remitted for...

Court Disposition

Pre-dismissal arbitration award reviewed and set aside; matter remitted for determination of fair sanction on charge 3; no order as to costs.

Orders

  • The pre-dismissal award issued by the second respondent under case number TCR 014027 dated 23 November 2020 is reviewed and set aside.
  • The matter is remitted to the first respondent to the extent that the second respondent is directed to determine a fair sanction for the misconduct found in charge 3.