Thabane v General Public Service Bargaining Council and Others (JR1026/2003) [2005] ZALC 44; (2005) 26 ILJ 344 (LC); [2005] 3 BLLR 294 (LC) (1 February 2005)

Thabane v General Public Service Bargaining Council and Others (JR1026/2003) [2005] ZALC 44; (2005) 26 ILJ 344 (LC); [2005] 3 BLLR 294 (LC) (1 February 2005)

The court found that the second respondent erred in determining that he lacked jurisdiction to arbitrate the dispute. The applicant's contract was not governed by Section 12A(3) of the Public Service Act or the Ministerial Handbook, and there was no evidence that her dismissal was for operational requirements as defined by the Labour Relations Act. The applicant had stated that she did not know the reason for her dismissal, which triggered the mandatory arbitration provision under Section 191(5)(a)(iii) of the Labour Relations Act. The second respondent's findings were irrational and ignored relevant statutory provisions. Accordingly, the arbitration award was set aside and the matter...

Citation
[2005] ZALC 44
Parties
Applicant: L.M.B. Thabane; Respondent: General Public Service Sectoral Bargaining Council; Respondent: Commissioner J.B. Mthembu; Respondent: Department of Safety, Security & Liaison (FS)
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
1 February 2005
Case Number
JR1026/2003
Procedural Posture
Review Application / Judgment
Outcome
Application for review succeeded; arbitration award set aside; matter remitted for arbitration on the merits by a different arbitrator; costs awarded to applicant.
Judges
Farber
Legal Topics
Unfair Dismissal, Jurisdiction of Bargaining Council, Operational Requirements, Fixed Term Contract, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Jurisdiction of Bargaining Council Operational Requirements Fixed Term Contract Review of Arbitration Award

Case Brief

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Parties

L.M.B. Thabane

Applicant

General Public Service Sectoral Bargaining Council

Respondent

Commissioner J.B. Mthembu

Respondent

Department of Safety, Security & Liaison (FS)

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the second respondent correctly determined that he lacked jurisdiction to arbitrate the dispute between the applicant and the third respondent.
  2. 2 Whether the applicant's dismissal was for operational requirements as contemplated by the Labour Relations Act.
  3. 3 Whether Section 12A(3) of the Public Service Act and the Ministerial Handbook governed the applicant's contract.

Ratio Decidendi

The court found that the second respondent erred in determining that he lacked jurisdiction to arbitrate the dispute. The applicant's contract was not governed by Section 12A(3) of the Public Service Act or the Ministerial Handbook, and there was no evidence that her dismissal was for operational requirements as defined by the Labour Relations Act. The applicant had stated that she did not know the reason for her dismissal, which triggered the mandatory arbitration provision under Section 191(5)(a)(iii) of the Labour Relations Act. The second respondent's findings were irrational and ignored relevant statutory provisions. Accordingly, the arbitration award was set aside and the matter...

Court Disposition

Application for review succeeded; arbitration award set aside; matter remitted for arbitration on the merits by a different arbitrator; costs awarded to applicant.

Orders

  • The decision of the second respondent is set aside.
  • The matter is remitted to the first respondent for the merits of the dispute between the applicant and the third respondent to be determined by an arbitrator appointed by it.