SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC) (13 March 2023)

SAMWU obo A N Malatsi v South African Local Government Bargaining Council and Others (JR 1211 / 2018) [2023] ZALCJHB 63; [2023] 6 BLLR 581 (LC) (13 March 2023)

The court found that the principle of double jeopardy did not apply because the charges in the second disciplinary hearing were distinct from those in the first. The second charges arose from new information revealed during the first arbitration, specifically the sharing of the password and breach of IT policy, which exposed the Municipality to significant risk. The arbitrator's finding that the dismissal was fair was reasonable, as the applicant's conduct went to the heart of the employment relationship and he showed no remorse. The applicant's interpretation of the first arbitration award was incorrect, as there was no alternative charge or lesser sanction for password sharing at that...

Citation
[2023] ZALCJHB 63
Parties
Applicant: SAMWU obo A N Malatsi; Respondent: South African Local Government Bargaining Council; Respondent: A N Mafa N.O.; Respondent: Gert Sibande District Municipality
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
13 March 2023
Case Number
JR 1211 / 2018
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review dismissed; costs awarded against the applicant.
Judges
Prinsloo
Legal Topics
Unfair Dismissal, Double Jeopardy, Disciplinary Procedure, Review of Arbitration Award, Costs Award
Labour Law Civil Procedure Unfair Dismissal Double Jeopardy Disciplinary Procedure Review of Arbitration Award Costs Award

Case Brief

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Parties

SAMWU obo A N Malatsi

Applicant

South African Local Government Bargaining Council

Respondent

A N Mafa N.O.

Respondent

Gert Sibande District Municipality

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the applicant was subjected to double jeopardy by being disciplined twice for the same misconduct.
  2. 2 Whether the second dismissal of Mr Malatsi was substantively and procedurally fair.
  3. 3 Whether the arbitrator's award upholding the dismissal was reasonable and reviewable.

Ratio Decidendi

The court found that the principle of double jeopardy did not apply because the charges in the second disciplinary hearing were distinct from those in the first. The second charges arose from new information revealed during the first arbitration, specifically the sharing of the password and breach of IT policy, which exposed the Municipality to significant risk. The arbitrator's finding that the dismissal was fair was reasonable, as the applicant's conduct went to the heart of the employment relationship and he showed no remorse. The applicant's interpretation of the first arbitration award was incorrect, as there was no alternative charge or lesser sanction for password sharing at that...

Court Disposition

Application for review dismissed; costs awarded against the applicant.

Orders

  • The application for review is dismissed.
  • The Applicant is to pay the Third Respondent’s costs.