Telkom SA v CCMA and Others (JR20/2001, J53/2001) [2001] ZALC 157; [2002] 4 BLLR 394 (LC); (2002) 23 ILJ 536 (LC) (3 October 2001)

Telkom SA v CCMA and Others (JR20/2001, J53/2001) [2001] ZALC 157; [2002] 4 BLLR 394 (LC); (2002) 23 ILJ 536 (LC) (3 October 2001)

The court held that after the disciplinary hearing concluded and the employee accepted the alternative sanction of suspension, the employer was functus officio and could not subsequently change the sanction to dismissal at the in-house conciliation. The in-house conciliation had no jurisdiction to implement a dismissal, and the procedure was procedurally unfair as the employee was not properly informed of the risk of dismissal. Substantively, the employer failed to discharge the onus of proving the alleged misconduct, and the evidence did not support the allegations of intimidation. The arbitration award was well-reasoned and correctly found the dismissal to be both procedurally and...

Citation
[2001] ZALC 157
Parties
Applicant: Telkom SA; Respondent: CCMA & Others
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
3 October 2001
Case Number
JR20/2001, J53/2001
Procedural Posture
Review Application / Judgment After Argument and Reservation
Outcome
Application to review and set aside the arbitration award dismissed with costs; application to make the award an order of court granted.
Judges
Gering
Legal Topics
Unfair Dismissal, Disciplinary Procedure, Arbitration Award Enforcement, Procedural Fairness, Substantive Fairness, Functus Officio
Labour Law Unfair Dismissal Disciplinary Procedure Arbitration Award Enforcement Procedural Fairness Substantive Fairness Functus Officio

Case Brief

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Parties

Telkom SA

Applicant

CCMA & Others

Respondent

Procedural Posture

Review Application / Judgment After Argument and Reservation

Legal Issues

  1. 1 Was the dismissal of the employee both procedurally and substantively unfair under the Labour Relations Act?
  2. 2 Did the employer have the authority to change the sanction from suspension to dismissal at the in-house conciliation?
  3. 3 Should the arbitration award ordering reinstatement be made an order of court?

Ratio Decidendi

The court held that after the disciplinary hearing concluded and the employee accepted the alternative sanction of suspension, the employer was functus officio and could not subsequently change the sanction to dismissal at the in-house conciliation. The in-house conciliation had no jurisdiction to implement a dismissal, and the procedure was procedurally unfair as the employee was not properly informed of the risk of dismissal. Substantively, the employer failed to discharge the onus of proving the alleged misconduct, and the evidence did not support the allegations of intimidation. The arbitration award was well-reasoned and correctly found the dismissal to be both procedurally and...

Court Disposition

Application to review and set aside the arbitration award dismissed with costs; application to make the award an order of court granted.

Orders

  • The application under section 145 of the Labour Relations Act is dismissed with costs.
  • The application to make the arbitration award an order of court is granted.