South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 1147/10) [2012] ZALCCT 28 (25 July 2012)

South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (C 1147/10) [2012] ZALCCT 28 (25 July 2012)

The court held that the arbitrator's general approach to the fairness of the dismissal was reasonable and consistent with Sidumo, given the employee's long service and absence of dishonesty. However, the arbitrator exceeded his powers by finding procedural unfairness on grounds not raised at arbitration and by ordering reinstatement in a non-supervisory position without evidence of the availability of such a post. The award was therefore reviewable and had to be set aside. The matter was remitted to the CCMA for arbitration de novo before a different arbitrator.

Citation
[2012] ZALCCT 28
Parties
Applicant: SA Post Office Ltd; Respondent: CCMA; Respondent: JW McGahey N.O.; Respondent: Communication Workers’ Union; Respondent: S Nodlapiya
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
25 July 2012
Case Number
C 1147/10
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for arbitration de novo before a different arbitrator.
Judges
Steenkamp
Legal Topics
Unfair Dismissal, Arbitration Review, Remedies for Unfair Dismissal, Procedural Fairness, Reinstatement, Compensation
Labour Law Unfair Dismissal Arbitration Review Remedies for Unfair Dismissal Procedural Fairness Reinstatement Compensation

Case Brief

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Parties

SA Post Office Ltd

Applicant

CCMA

Respondent

JW McGahey N.O.

Respondent

Communication Workers’ Union

Respondent

S Nodlapiya

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator applied the correct test for fairness in dismissal.
  2. 2 Whether the arbitrator exceeded his powers in finding procedural unfairness.
  3. 3 Whether reinstatement in a non-supervisory position was a permissible remedy without evidence of availability.

Ratio Decidendi

The court held that the arbitrator's general approach to the fairness of the dismissal was reasonable and consistent with Sidumo, given the employee's long service and absence of dishonesty. However, the arbitrator exceeded his powers by finding procedural unfairness on grounds not raised at arbitration and by ordering reinstatement in a non-supervisory position without evidence of the availability of such a post. The award was therefore reviewable and had to be set aside. The matter was remitted to the CCMA for arbitration de novo before a different arbitrator.

Court Disposition

The arbitration award is reviewed and set aside. The matter is remitted to the CCMA for arbitration de novo before a different arbitrator.

Orders

  • The arbitration award made by the second respondent under case number WECT 13597-10 dated 2 December 2010 is reviewed and set aside.
  • The matter is remitted to the first respondent for an arbitration de novo before an arbitrator other than the second respondent.