Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others (JR 2191/09) [2011] ZALCJHB 113; (2012) 33 ILJ 1481 (LC) (1 December 2011)

Transnet Rail Engineering Ltd v Transnet Bargaining Council and Others (JR 2191/09) [2011] ZALCJHB 113; (2012) 33 ILJ 1481 (LC) (1 December 2011)

The court found that the arbitrator committed a gross irregularity by accepting expert reports without calling the authors to testify and failing to scrutinise the evidence. The respondent's defence of kleptomania was not substantiated by admissible or credible evidence, and his version was inconsistent and contradictory. The arbitrator misconceived the issue of trust, which is central to the employment relationship, especially in cases of dishonesty. The dismissal was found to be substantively fair, and the arbitration award was set aside and substituted with an order dismissing the respondent's claim for unfair dismissal.

Citation
[2011] ZALCJHB 113
Parties
Applicant: Transnet Rail Engineering Ltd; Respondent: Transnet Bargaining Council; Respondent: W. de J. Stapelberg N.O.; Respondent: United Transport and Allied Trade Union; Respondent: Herman Rossouw
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
1 December 2011
Case Number
JR 2191/09
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award set aside; respondent's claim for unfair dismissal dismissed; costs awarded against the fourth respondent.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Admissibility of Expert Evidence, Progressive Discipline, Trust Relationship, Gross Dishonesty
Labour Law Civil Procedure Unfair Dismissal Admissibility of Expert Evidence Progressive Discipline Trust Relationship Gross Dishonesty

Case Brief

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Parties

Transnet Rail Engineering Ltd

Applicant

Transnet Bargaining Council

Respondent

W. de J. Stapelberg N.O.

Respondent

United Transport and Allied Trade Union

Respondent

Herman Rossouw

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator properly applied the rules of evidence in accepting expert reports without oral testimony.
  2. 2 Whether the respondent established kleptomania as a defence to theft and dismissal.
  3. 3 Whether the penalty of dismissal was appropriate given the facts and evidence.

Ratio Decidendi

The court found that the arbitrator committed a gross irregularity by accepting expert reports without calling the authors to testify and failing to scrutinise the evidence. The respondent's defence of kleptomania was not substantiated by admissible or credible evidence, and his version was inconsistent and contradictory. The arbitrator misconceived the issue of trust, which is central to the employment relationship, especially in cases of dishonesty. The dismissal was found to be substantively fair, and the arbitration award was set aside and substituted with an order dismissing the respondent's claim for unfair dismissal.

Court Disposition

Arbitration award set aside; respondent's claim for unfair dismissal dismissed; costs awarded against the fourth respondent.

Orders

  • The arbitration award of the second respondent is reviewed and set aside.
  • The second respondent’s arbitration award is substituted with an award that the dismissal of the fourth respondent was for a fair reason and his claim for unfair dismissal is dismissed.