Thenjwayo and Another v City of Johannesburg Metropolitan Municipality and Others (JR 2434/19) [2023] ZALCCT 57 (19 October 2023)

Thenjwayo and Another v City of Johannesburg Metropolitan Municipality and Others (JR 2434/19) [2023] ZALCCT 57 (19 October 2023)

The court found that the arbitrator failed to make distinct findings on substantive and procedural fairness and misstated the legal principles regarding the burden of proof. However, the evidence before the arbitrator was sufficient for her to determine the issues, and the court was satisfied that a reasonable arbitrator could have found the dismissals substantively fair. The applicants' conduct during the grievance hearing was aggressive and insubordinate, and the transcript and witness testimony supported the charges. The procedural fairness of Thenjwayo's dismissal was upheld, as he was given reasonable opportunity to defend himself. In contrast, Remmego was deprived of a reasonable...

Citation
[2023] ZALCCT 57
Parties
Applicant: Mbuso Thenjwayo; Applicant: Walter Remmego; Respondent: City of Johannesburg Metropolitan Municipality; Respondent: South African Local Government Bargaining Council; Respondent: Zandile Mpungose
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
19 October 2023
Case Number
JR 2434/19
Procedural Posture
Review Application / Labour Court Review of Arbitration Award
Outcome
The review application succeeds in part. The finding that both applicants' dismissals were procedurally and substantively fair is set aside in respect of Remmego. His dismissal is found to be procedurally unfair and compensation is awarded.
Judges
Lagrange
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Representation Rights, Municipal Systems Act, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Representation Rights Municipal Systems Act Review of Arbitration Award

Case Brief

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Parties

Mbuso Thenjwayo

Applicant

Walter Remmego

Applicant

City of Johannesburg Metropolitan Municipality

Respondent

South African Local Government Bargaining Council

Respondent

Zandile Mpungose

Respondent

Procedural Posture

Review Application / Labour Court Review of Arbitration Award

Legal Issues

  1. 1 Did the arbitrator fail to make distinct findings on substantive and procedural fairness of the dismissals?
  2. 2 Was the dismissal of the applicants substantively and procedurally fair?
  3. 3 Did the arbitrator misstate the legal principles and misapply the burden of proof?

Ratio Decidendi

The court found that the arbitrator failed to make distinct findings on substantive and procedural fairness and misstated the legal principles regarding the burden of proof. However, the evidence before the arbitrator was sufficient for her to determine the issues, and the court was satisfied that a reasonable arbitrator could have found the dismissals substantively fair. The applicants' conduct during the grievance hearing was aggressive and insubordinate, and the transcript and witness testimony supported the charges. The procedural fairness of Thenjwayo's dismissal was upheld, as he was given reasonable opportunity to defend himself. In contrast, Remmego was deprived of a reasonable...

Court Disposition

The review application succeeds in part. The finding that both applicants' dismissals were procedurally and substantively fair is set aside in respect of Remmego. His dismissal is found to be procedurally unfair and compensation is awarded.

Orders

  • The late filings of the review application, answering affidavit, and replying affidavit are condoned.
  • The arbitration award is reviewed and set aside insofar as it concerns the procedural fairness of Remmego's dismissal.