Thango v Nsibanyoni NO and Others (JR122/2018) [2021] ZALCJHB 417 (28 October 2021)

Thango v Nsibanyoni NO and Others (JR122/2018) [2021] ZALCJHB 417 (28 October 2021)

The court found that the applicant was guilty of gross insubordination and insolence, having deliberately defied a lawful instruction from his superior and displayed a dismissive attitude. The evidence, including affidavits and emails, supported the finding that the applicant countermanded instructions and undermined the employment relationship. Although there were procedural defects, such as the absence of the applicant's representative during part of the disciplinary hearing and delays in the process, these were deemed minor and did not prejudice the applicant, who remained on full pay. The court held that the dismissal was substantively fair but procedurally unfair. However, given the...

Citation
[2021] ZALCJHB 417
Parties
Applicant: Dumisani Derrick Thango; Respondent: Commissioner Thembekile Nsibanyoni N.O.; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Passenger Rail Agency of South Africa
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 October 2021
Case Number
JR122/2018
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The dismissal of the applicant was substantively fair but procedurally unfair. No compensation is awarded for the procedural defect.
Judges
G.I. Hulley
Legal Topics
Unfair Dismissal, Gross Insubordination, Procedural Fairness, Disciplinary Code, Compensation for Unfair Dismissal
Labour Law Unfair Dismissal Gross Insubordination Procedural Fairness Disciplinary Code Compensation for Unfair Dismissal

Case Brief

Summary, issues, holding and outcome

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Parties

Dumisani Derrick Thango

Applicant

Commissioner Thembekile Nsibanyoni N.O.

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Passenger Rail Agency of South Africa

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant's dismissal was substantively fair.
  2. 2 Whether the applicant's dismissal was procedurally fair.
  3. 3 Whether the applicant is entitled to compensation for procedural unfairness.

Ratio Decidendi

The court found that the applicant was guilty of gross insubordination and insolence, having deliberately defied a lawful instruction from his superior and displayed a dismissive attitude. The evidence, including affidavits and emails, supported the finding that the applicant countermanded instructions and undermined the employment relationship. Although there were procedural defects, such as the absence of the applicant's representative during part of the disciplinary hearing and delays in the process, these were deemed minor and did not prejudice the applicant, who remained on full pay. The court held that the dismissal was substantively fair but procedurally unfair. However, given the...

Court Disposition

The dismissal of the applicant was substantively fair but procedurally unfair. No compensation is awarded for the procedural defect.

Orders

  • The arbitration award is set aside insofar as it found the dismissal procedurally fair.
  • It is declared that the dismissal was substantively fair but procedurally unfair.