Top Security (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR519/09) [2011] ZALCJHB 93; [2012] 3 BLLR 311 (LC); (2012) 33 ILJ 992 (LC) (4 November 2011)

Top Security (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR519/09) [2011] ZALCJHB 93; [2012] 3 BLLR 311 (LC); (2012) 33 ILJ 992 (LC) (4 November 2011)

The court held that the Commissioner performed his duty as required by law and, based on the facts and circumstances presented, found the sanction of dismissal to be too harsh. The Commissioner substituted the dismissal with a final written warning and ordered back pay. The reviewing court found that, although the Commissioner may have been wrong, the test is not correctness but reasonableness. The decision was found to be within the range of reasonable outcomes and did not warrant interference. The application was treated as unopposed due to the absence of an answering affidavit and late filing of heads of argument, but the court nonetheless scrutinized the award for reasonableness as...

Citation
[2011] ZALCJHB 93
Parties
Applicant: Top Security (Pty) Ltd; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner M.S. Rafee, N.O.; Respondent: Hlabisa; Johnson
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
4 November 2011
Case Number
JR519/09
Procedural Posture
Review Application / Judgment
Outcome
Application to review and set aside the arbitration award is dismissed.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Arbitration Review, Reasonableness Test, Sanction Substitution
Labour Law Unfair Dismissal Arbitration Review Reasonableness Test Sanction Substitution

Case Brief

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Parties

Top Security (Pty) Ltd

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner M.S. Rafee, N.O.

Respondent

Hlabisa; Johnson

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the dismissal of the employee was substantively unfair.
  2. 2 Whether the matter was opposed when only a notice of opposition was filed without an answering affidavit.
  3. 3 Whether the late filing of heads of argument affected the opposition status.

Ratio Decidendi

The court held that the Commissioner performed his duty as required by law and, based on the facts and circumstances presented, found the sanction of dismissal to be too harsh. The Commissioner substituted the dismissal with a final written warning and ordered back pay. The reviewing court found that, although the Commissioner may have been wrong, the test is not correctness but reasonableness. The decision was found to be within the range of reasonable outcomes and did not warrant interference. The application was treated as unopposed due to the absence of an answering affidavit and late filing of heads of argument, but the court nonetheless scrutinized the award for reasonableness as...

Court Disposition

Application to review and set aside the arbitration award is dismissed.

Orders

  • The applicant's application to review the decision of the second respondent is dismissed.
  • No order as to costs.