UTATU SARWHU and Another v Moletsane NO and Others (JR82/2014) [2019] ZALCJHB 40 (28 February 2019)

UTATU SARWHU and Another v Moletsane NO and Others (JR82/2014) [2019] ZALCJHB 40 (28 February 2019)

The court found that the arbitrator’s decision to uphold Besent’s dismissal was reasonable and fell within the band of decisions a reasonable decision-maker could reach. The evidence established that Besent persistently refused to obey his manager’s instructions, verbally abused and threatened contracted security officers, and brought Transnet’s name into disrepute. The court rejected the argument that the disciplinary process was inconsistent, as the security officers were contractors and not subject to Transnet’s disciplinary code, and the other employees cited were not similarly situated. The compensation awarded for procedural unfairness was found to be within the arbitrator’s...

Citation
[2019] ZALCJHB 40
Parties
Applicant: UTATU SARWHU; Applicant: E.S BESENT; Respondent: RUSSEL MOLETSANE NO; Respondent: TRANSNET BARGAINING COUNCIL; Respondent: TRANSNET FREIGHT RAIL
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
28 February 2019
Case Number
JR82/2014
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Application for review and setting aside of the arbitration award is dismissed. Condonation for late filing is granted. No order as to costs.
Judges
Tlhotlhalemaje
Legal Topics
Unfair Dismissal, Procedural Fairness, Disciplinary Code, Inconsistent Discipline, Compensation for Unfair Dismissal
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Disciplinary Code Inconsistent Discipline Compensation for Unfair Dismissal

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Parties

UTATU SARWHU

Applicant

E.S BESENT

Applicant

RUSSEL MOLETSANE NO

Respondent

TRANSNET BARGAINING COUNCIL

Respondent

TRANSNET FREIGHT RAIL

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award upholding the dismissal of Besent was reasonable and reviewable.
  2. 2 Whether the disciplinary process was procedurally fair.
  3. 3 Whether the sanction of dismissal was appropriate given the alleged misconduct and Besent's clean record.

Ratio Decidendi

The court found that the arbitrator’s decision to uphold Besent’s dismissal was reasonable and fell within the band of decisions a reasonable decision-maker could reach. The evidence established that Besent persistently refused to obey his manager’s instructions, verbally abused and threatened contracted security officers, and brought Transnet’s name into disrepute. The court rejected the argument that the disciplinary process was inconsistent, as the security officers were contractors and not subject to Transnet’s disciplinary code, and the other employees cited were not similarly situated. The compensation awarded for procedural unfairness was found to be within the arbitrator’s...

Court Disposition

Application for review and setting aside of the arbitration award is dismissed. Condonation for late filing is granted. No order as to costs.

Orders

  • The late filing of the review application and supplementary affidavit is condoned.
  • The application to review and set aside the arbitration award issued by the first respondent dated 6 November 2013 is dismissed.