Thorburn Security Solutions Southern Region (Pty) Ltd t/a Thorburn Armed Response v Mdletye and Others (C131/15) [2017] ZALCCT 32 (2 August 2017)

Thorburn Security Solutions Southern Region (Pty) Ltd t/a Thorburn Armed Response v Mdletye and Others (C131/15) [2017] ZALCCT 32 (2 August 2017)

The court found that the arbitrator committed a reviewable irregularity by failing to properly weigh the conflicting evidence regarding the employee's right to representation at the disciplinary hearing. The court held that the employee was responsible for ensuring his representative's attendance and that there was no evidence the representative was denied attendance due to being on duty. On the substantive issue, the court determined that the instruction given to the employee was reasonable and lawful, and his failure to comply constituted insubordination. The arbitrator's conclusion that the employer accepted the employee's conduct by allowing him to work the disputed shifts was...

Citation
[2017] ZALCCT 32
Parties
Applicant: Thorburn Security Solutions Southern Region (Pty) Ltd t/a Thorburn Armed Response; Respondent: Sithembela Mdletye; Respondent: CCMA; Respondent: Orlando Moses N.O.
Court
Labour Court Cape Town
Jurisdiction
South Africa
Judgment Date
2 August 2017
Case Number
C131/15
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
The arbitration award is reviewed and set aside. It is replaced with an award that the dismissal of the employee was substantively and procedurally fair.
Judges
A J Steenkamp
Legal Topics
Insubordination, Unfair Dismissal, Disciplinary Procedure, Procedural Fairness, Substantive Fairness
Labour Law Insubordination Unfair Dismissal Disciplinary Procedure Procedural Fairness Substantive Fairness

Case Brief

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Parties

Thorburn Security Solutions Southern Region (Pty) Ltd t/a Thorburn Armed Response

Applicant

Sithembela Mdletye

Respondent

CCMA

Respondent

Orlando Moses N.O.

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the dismissal of the employee for insubordination was substantively and procedurally fair.
  2. 2 Whether the employee was denied the right to representation at the disciplinary hearing.
  3. 3 Whether the arbitrator committed a reviewable irregularity in his findings.

Ratio Decidendi

The court found that the arbitrator committed a reviewable irregularity by failing to properly weigh the conflicting evidence regarding the employee's right to representation at the disciplinary hearing. The court held that the employee was responsible for ensuring his representative's attendance and that there was no evidence the representative was denied attendance due to being on duty. On the substantive issue, the court determined that the instruction given to the employee was reasonable and lawful, and his failure to comply constituted insubordination. The arbitrator's conclusion that the employer accepted the employee's conduct by allowing him to work the disputed shifts was...

Court Disposition

The arbitration award is reviewed and set aside. It is replaced with an award that the dismissal of the employee was substantively and procedurally fair.

Orders

  • The arbitration award dated 5 February 2015 under CCMA case number WECT 17731-14 is reviewed and set aside.
  • It is replaced with an award that the dismissal of Mr Sithembela Mdletye was substantively and procedurally fair.