UNISA v Solidarity obo Marshall and Others (JR197/08) [2009] ZALC 82; [2009] 5 BLLR 510 (LC); (2009) 30 ILJ 2146 (LC) (13 January 2009)

UNISA v Solidarity obo Marshall and Others (JR197/08) [2009] ZALC 82; [2009] 5 BLLR 510 (LC); (2009) 30 ILJ 2146 (LC) (13 January 2009)

The Labour Court held that the arbitrator did not exceed his powers by considering whether the Appeal Committee was authorised to impose a suspension without pay exceeding three months. This issue was critical to determining the fairness of the sanction and was raised in the parties' submissions. The court found that both the Disciplinary Committee and the Appeal Committee are bound by the same limitations in the disciplinary code. The arbitrator's decision to set aside the twelve-month suspension and replace it with a three-month suspension and a final written warning was reasonable and justified on the facts. The delay in the disciplinary process was properly considered as a mitigating...

Citation
[2009] ZALC 82
Parties
Applicant: UNISA; Respondent: Solidarity obo Doctor M M Marshall; Respondent: L Nowosenetz N.O; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court
Jurisdiction
South Africa
Judgment Date
13 January 2009
Case Number
JR197/08
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The review application is dismissed with costs.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Disciplinary Code Interpretation, Arbitration Review, Sanction Fairness
Labour Law Civil Procedure Unfair Dismissal Disciplinary Code Interpretation Arbitration Review Sanction Fairness

Case Brief

Summary, issues, holding and outcome

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Parties

UNISA

Applicant

Solidarity obo Doctor M M Marshall

Respondent

L Nowosenetz N.O

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Appeal Committee had the power to impose a suspension without pay exceeding three months.
  2. 2 Whether the arbitrator exceeded his powers by considering the Appeal Committee's authority.
  3. 3 Whether the delay in disciplinary proceedings should have been considered as a mitigating factor.

Ratio Decidendi

The Labour Court held that the arbitrator did not exceed his powers by considering whether the Appeal Committee was authorised to impose a suspension without pay exceeding three months. This issue was critical to determining the fairness of the sanction and was raised in the parties' submissions. The court found that both the Disciplinary Committee and the Appeal Committee are bound by the same limitations in the disciplinary code. The arbitrator's decision to set aside the twelve-month suspension and replace it with a three-month suspension and a final written warning was reasonable and justified on the facts. The delay in the disciplinary process was properly considered as a mitigating...

Court Disposition

The review application is dismissed with costs.

Orders

  • The review application is dismissed with costs.