Toli v Adair and Others (J580/98) [1998] ZALC 82 (23 October 1998)

Toli v Adair and Others (J580/98) [1998] ZALC 82 (23 October 1998)

The Commissioner exceeded her powers by exercising discretion in calculating compensation, rather than applying the rigid formula prescribed by Section 194(1) of the Labour Relations Act. The correct approach is to calculate compensation from the date of dismissal to the last day of the arbitration hearing, less any period of unreasonable delay caused by the applicant. The Commissioner’s award was therefore defective and must be set aside. The applicant did not establish any gross irregularity in the Commissioner’s consideration of evidence or any prejudging of the issues. The court substituted its own award, granting compensation for the appropriate period, and declined to award costs...

Citation
[1998] ZALC 82
Parties
Applicant: Smanga Hendrik Toli; Respondent: B Adair; Respondent: Southern African Clothing & Textile Workers Union; Respondent: Commission for Conciliation Mediation & Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
23 October 1998
Case Number
J580/98
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside; the court substitutes its own award for compensation calculated from 10 September 1997 to 23 January 1998 at R3,500 per month; no order as to costs.
Judges
Seady
Legal Topics
Unfair Dismissal, Compensation Calculation, Arbitration Review, Gross Irregularity, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Compensation Calculation Arbitration Review Gross Irregularity Procedural Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Smanga Hendrik Toli

Applicant

B Adair

Respondent

Southern African Clothing & Textile Workers Union

Respondent

Commission for Conciliation Mediation & Arbitration

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the Commissioner exceeded her powers by exercising discretion in calculating compensation instead of applying the rigid formula prescribed by Section 194(1).
  2. 2 Whether the Commissioner committed a gross irregularity by failing to consider evidence of inconsistent treatment of the applicant.
  3. 3 Whether the Commissioner prejudged the issues by suggesting settlement terms before arbitration commenced.

Ratio Decidendi

The Commissioner exceeded her powers by exercising discretion in calculating compensation, rather than applying the rigid formula prescribed by Section 194(1) of the Labour Relations Act. The correct approach is to calculate compensation from the date of dismissal to the last day of the arbitration hearing, less any period of unreasonable delay caused by the applicant. The Commissioner’s award was therefore defective and must be set aside. The applicant did not establish any gross irregularity in the Commissioner’s consideration of evidence or any prejudging of the issues. The court substituted its own award, granting compensation for the appropriate period, and declined to award costs...

Court Disposition

The arbitration award is reviewed and set aside; the court substitutes its own award for compensation calculated from 10 September 1997 to 23 January 1998 at R3,500 per month; no order as to costs.

Orders

  • The arbitration award of the First Respondent dated 5 February 1998 under CCMA Case Number GA15606 is reviewed and set aside in terms of Section 145 of the Act.
  • The Respondent must pay to the Applicant an amount of compensation equal to the remuneration the applicant would have been paid from 10 September 1997 to 23 January 1998, calculated at the rate of R3,500.00 per month.