Tsebo Outsourcing Group v Segole and Others (JR1163/17) [2019] ZALCJHB 206 (30 April 2019)

Tsebo Outsourcing Group v Segole and Others (JR1163/17) [2019] ZALCJHB 206 (30 April 2019)

The commissioner misconceived the nature of the dispute by failing to determine the fairness of the applicant's conduct in dismissing the third respondent for gross negligence, which was the misconduct she was dismissed for, rather than the misconduct she was charged with. This resulted in the commissioner conducting an incorrect enquiry and issuing an unreasonable award. The arbitration award was therefore defective as envisaged by section 145 of the Labour Relations Act. The record did not contain sufficient information to substitute the award, and the matter was remitted for arbitration de novo.

Citation
[2019] ZALCJHB 206
Parties
Applicant: Tsebo Outsourcing Group; Respondent: Commissioner: Silas Segole; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: NASECGWU obo Cecilia Dieketseng Senatsi
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
30 April 2019
Case Number
JR1163/17
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; matter remitted for arbitration de novo.
Judges
Lallie
Legal Topics
Unfair Dismissal, Arbitration Review, Gross Negligence, Procedural Fairness
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Gross Negligence Procedural Fairness

Case Brief

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Parties

Tsebo Outsourcing Group

Applicant

Commissioner: Silas Segole

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

NASECGWU obo Cecilia Dieketseng Senatsi

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner misconceived the nature of the dispute before him.
  2. 2 Whether the dismissal of the third respondent was substantively and procedurally unfair.
  3. 3 Whether the arbitration award should be reviewed and set aside.

Ratio Decidendi

The commissioner misconceived the nature of the dispute by failing to determine the fairness of the applicant's conduct in dismissing the third respondent for gross negligence, which was the misconduct she was dismissed for, rather than the misconduct she was charged with. This resulted in the commissioner conducting an incorrect enquiry and issuing an unreasonable award. The arbitration award was therefore defective as envisaged by section 145 of the Labour Relations Act. The record did not contain sufficient information to substitute the award, and the matter was remitted for arbitration de novo.

Court Disposition

Arbitration award reviewed and set aside; matter remitted for arbitration de novo.

Orders

  • The arbitration award issued by the first respondent under case number FSBF5232-16 dated 20 April 2017 is reviewed and set aside.
  • The matter is remitted to the second respondent to be arbitrated de novo by a commissioner other than the first respondent.