Tom v Cacadu District Municipality and Others (P 402/03) [2004] ZALC 87 (24 November 2004)

Tom v Cacadu District Municipality and Others (P 402/03) [2004] ZALC 87 (24 November 2004)

The court found that both parties agreed the arbitrator's reasoning was flawed, particularly in relying on the reasonable employer test and failing to properly consider whether the applicant's failure to communicate his absence warranted dismissal. However, the court held that the flawed reasoning did not automatically render the dismissal unfair, given the applicant's short period of employment and lengthy absence. The evidence did not support reinstatement, and the matter was remitted for fresh arbitration before a different commissioner. The applicant was ordered to pay the first respondent's costs for the opposed application.

Citation
[2004] ZALC 87
Parties
Applicant: Simphiwe Tom; Respondent: Cacadu District Municipality; Respondent: South African Local Municipality Bargaining Council; Respondent: Marion Fouche
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
24 November 2004
Case Number
P 402/03
Procedural Posture
Review Application / Judgment
Outcome
Award set aside; matter remitted for fresh arbitration before a different commissioner; applicant to pay costs of opposed application.
Judges
E Revelas
Legal Topics
Unfair Dismissal, Review of Arbitration Award, Procedural Fairness, Substantive Fairness
Labour Law Civil Procedure Unfair Dismissal Review of Arbitration Award Procedural Fairness Substantive Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

Simphiwe Tom

Applicant

Cacadu District Municipality

Respondent

South African Local Municipality Bargaining Council

Respondent

Marion Fouche

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the arbitrator's award upholding the dismissal was based on flawed reasoning.
  2. 2 Whether the applicant's failure to communicate his absence to the employer justified dismissal.
  3. 3 Whether the matter should be remitted for fresh arbitration or the applicant reinstated.

Ratio Decidendi

The court found that both parties agreed the arbitrator's reasoning was flawed, particularly in relying on the reasonable employer test and failing to properly consider whether the applicant's failure to communicate his absence warranted dismissal. However, the court held that the flawed reasoning did not automatically render the dismissal unfair, given the applicant's short period of employment and lengthy absence. The evidence did not support reinstatement, and the matter was remitted for fresh arbitration before a different commissioner. The applicant was ordered to pay the first respondent's costs for the opposed application.

Court Disposition

Award set aside; matter remitted for fresh arbitration before a different commissioner; applicant to pay costs of opposed application.

Orders

  • The award of the third respondent under Case No. T/cedu/2/2003 is set aside.
  • The matter is referred back to the second respondent and to the CCMA to be arbitrated before a different arbitrator.