Thabethe and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 2211/23) [2024] ZALCJHB 293 (29 July 2024)

Thabethe and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR 2211/23) [2024] ZALCJHB 293 (29 July 2024)

The arbitrator failed to properly assess the credibility and probabilities of the applicants' version that their conduct was a prank and not theft. The evidence did not support the finding that the applicants intended to steal the phone, and their version was consistent, uncontested, and corroborated. The arbitrator ignored material evidence and failed to provide reasoning for rejecting the applicants' defence. This amounted to a gross irregularity, depriving the parties of a fair trial. The dismissal was substantively unfair, and the arbitration award was unreasonable and unsupported by the evidence. The award was set aside and replaced with reinstatement and a warning for Thabethe.

Citation
[2024] ZALCJHB 293
Parties
Applicant: Mphiliseni Thabethe; Applicant: Eugene Xokiso; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner LD Mahlangu N.O; Respondent: RSC Consulting Services (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
29 July 2024
Case Number
JR 2211/23
Procedural Posture
Review Application / Judgment on Unopposed Review of Arbitration Award
Outcome
Arbitration award set aside and replaced with reinstatement; dismissal found substantively unfair.
Judges
G Fourie
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Credibility Assessment, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Credibility Assessment Procedural Fairness Substantive Fairness

Case Brief

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Parties

Mphiliseni Thabethe

Applicant

Eugene Xokiso

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner LD Mahlangu N.O

Respondent

RSC Consulting Services (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Unopposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator properly assessed the credibility and probabilities of the applicants' version that their conduct was a prank and not theft.
  2. 2 Whether the dismissal of the applicants was substantively fair given the evidence presented.
  3. 3 Whether the arbitration award should be set aside due to gross irregularity in reasoning.

Ratio Decidendi

The arbitrator failed to properly assess the credibility and probabilities of the applicants' version that their conduct was a prank and not theft. The evidence did not support the finding that the applicants intended to steal the phone, and their version was consistent, uncontested, and corroborated. The arbitrator ignored material evidence and failed to provide reasoning for rejecting the applicants' defence. This amounted to a gross irregularity, depriving the parties of a fair trial. The dismissal was substantively unfair, and the arbitration award was unreasonable and unsupported by the evidence. The award was set aside and replaced with reinstatement and a warning for Thabethe.

Court Disposition

Arbitration award set aside and replaced with reinstatement; dismissal found substantively unfair.

Orders

  • The arbitration award issued by the Second Respondent under case number GAEK6642-23 is reviewed and set aside in its entirety and replaced with an award in the following terms:
  • The applicants' dismissal is procedurally fair, but substantively unfair.