South African Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (D 449/2011) [2012] ZALCD 10; (2013) 34 ILJ 706 (LC) (16 July 2012)

South African Transport and Allied Workers Union and Others v MSC Depots (Pty) Ltd and Others (D 449/2011) [2012] ZALCD 10; (2013) 34 ILJ 706 (LC) (16 July 2012)

The court held that the employer was bound by both the agreement to refer allegations of misconduct to pre-dismissal arbitration under section 188A of the Labour Relations Act and the subsequent court order affirming that agreement. The employer could not unilaterally revoke its consent to the arbitration process,...

Source-derived case information.

Citation
[2012] ZALCD 10
Parties
Applicant: South African Transport and Allied Workers Union; Applicant: ME Buleni; Applicant: DD Jali; Respondent: MSC Depots (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: BD Nayager NO
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
16 July 2012
Case Number
D 449/2011
Procedural Posture
Urgent Application / Application for Final Declaratory and Consequential Relief Following Urgent Proceedings
Outcome
Application granted. Dismissals set aside. Employer ordered to comply with agreement and court order regarding pre-dismissal arbitration.
Judges
A van Niekerk
Legal Topics
Pre Dismissal Arbitration, Section 188a, Breach of Agreement, Review of Arbitration Award, Disciplinary Procedure, Remedies for Unlawful Dismissal
Labour Law Civil Procedure Pre Dismissal Arbitration Section 188a Breach of Agreement Review of Arbitration Award Disciplinary Procedure Remedies for Unlawful Dismissal

Source-derived case record

Summary, issues, holding and outcome

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Parties

South African Transport and Allied Workers Union

Applicant

ME Buleni

Applicant

DD Jali

Applicant

MSC Depots (Pty) Ltd

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

BD Nayager NO

Respondent

Procedural Posture

Urgent Application / Application for Final Declaratory and Consequential Relief Following Urgent Proceedings

Legal Issues

  1. 1 Whether the employer was bound by the agreement to refer allegations of misconduct to pre-dismissal arbitration under section 188A of the Labour Relations Act.
  2. 2 Whether the employer could unilaterally revoke its consent to the arbitration process after the initial award was set aside.
  3. 3 Whether the subsequent dismissals breached the agreement and the court order directing arbitration.

Ratio Decidendi

The court held that the employer was bound by both the agreement to refer allegations of misconduct to pre-dismissal arbitration under section 188A of the Labour Relations Act and the subsequent court order affirming that agreement. The employer could not unilaterally revoke its consent to the arbitration process, nor could it lawfully revert to internal disciplinary procedures after the initial arbitration award was set aside. The dismissals of the second and third applicants, effected after an internal hearing, constituted a breach of both the agreement and the court order. The court set aside the dismissals and directed that any further enquiry into the alleged misconduct must be...

Court Disposition

Application granted. Dismissals set aside. Employer ordered to comply with agreement and court order regarding pre-dismissal arbitration.

Orders

  • The dismissals of the second and third applicants are set aside.
  • The first respondent is directed to conduct a pre-dismissal arbitration as contemplated in section 188A of the Labour Relations Act if it elects to pursue the enquiry.