South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 407/10) [2011] ZALCD 7 (15 November 2011)

South African Post Office Ltd v Commission for Conciliation Mediation and Arbitration and Others (D 407/10) [2011] ZALCD 7 (15 November 2011)

The court found that the commissioner committed reviewable irregularities by failing to consider relevant evidence and by concluding that the employee did not have the requisite state of mind for sexual harassment. The evidence established that the employee's conduct towards the complainants was sexually motivated and unwelcome, and that he was aware or ought to have been aware of the negative impact of his actions. The commissioner improperly suggested that the employee was unaware of his mannerisms, which was not supported by the evidence. The only reasonable conclusion was that the employee committed sexual harassment and that the dismissal was substantively fair. The award was set...

Citation
[2011] ZALCD 7
Parties
Applicant: South African Post Office Limited; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Almeiro Deyzel N.O.; Respondent: Freddy Pillay
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
15 November 2011
Case Number
D 407/10
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review granted; arbitration award set aside and substituted with an award that the dismissal of the employee is substantively fair.
Judges
Reddy AJ
Legal Topics
Sexual Harassment, Disciplinary Code, Dismissal, Arbitration Review, Substantive Fairness
Labour Law Sexual Harassment Disciplinary Code Dismissal Arbitration Review Substantive Fairness

Case Brief

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Parties

South African Post Office Limited

Applicant

Commission for Conciliation Mediation and Arbitration

Respondent

Almeiro Deyzel N.O.

Respondent

Freddy Pillay

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner properly applied the law and evidence in finding the employee's dismissal substantively unfair.
  2. 2 Whether the conduct of the employee constituted sexual harassment under the employer's disciplinary code and sexual harassment policy.
  3. 3 Whether the commissioner failed to consider relevant evidence and arrived at a decision that a reasonable decision maker would not have made.

Ratio Decidendi

The court found that the commissioner committed reviewable irregularities by failing to consider relevant evidence and by concluding that the employee did not have the requisite state of mind for sexual harassment. The evidence established that the employee's conduct towards the complainants was sexually motivated and unwelcome, and that he was aware or ought to have been aware of the negative impact of his actions. The commissioner improperly suggested that the employee was unaware of his mannerisms, which was not supported by the evidence. The only reasonable conclusion was that the employee committed sexual harassment and that the dismissal was substantively fair. The award was set...

Court Disposition

Application for review granted; arbitration award set aside and substituted with an award that the dismissal of the employee is substantively fair.

Orders

  • The application for review is granted.
  • The arbitration award is set aside and substituted with an award that the dismissal of the employee is substantively fair.