UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017)

UTI Pharma v GIWUSA obo Luvatsha and Others Whitcher (JR993/14) [2017] ZALCJHB 378 (16 October 2017)

The court found that the Commissioner adopted an unduly technical approach by focusing solely on compliance with Rule 2, without considering the broader duty of employees to provide advance notice of a planned collective absence. The absence of a written rule requiring advance notice did not absolve the employees...

Source-derived case information.

Citation
[2017] ZALCJHB 378
Parties
Applicant: UTI Pharma; Respondent: GIWUSA obo Luvatsha & 9 Others; Respondent: Phala, Motlatsi, N.O.; Respondent: National Bargaining Council for the Chemical Industry
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
16 October 2017
Case Number
JR 993/14
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; substituted with finding of misconduct but substantively unfair dismissal; matter remitted for determination of relief; no order as to costs.
Judges
B Whitcher
Legal Topics
Dismissal for Misconduct, Procedural Fairness, Arbitration Review, Collective Absence, Disciplinary Code
Labour Law Civil Procedure Dismissal for Misconduct Procedural Fairness Arbitration Review Collective Absence Disciplinary Code

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Summary, issues, holding and outcome

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Parties

UTI Pharma

Applicant

GIWUSA obo Luvatsha & 9 Others

Respondent

Phala, Motlatsi, N.O.

Respondent

National Bargaining Council for the Chemical Industry

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner erred in finding the dismissals substantively unfair.
  2. 2 Whether the first respondents' conduct constituted misconduct under the applicable rules.
  3. 3 Whether dismissal was an appropriate sanction for the misconduct committed.

Ratio Decidendi

The court found that the Commissioner adopted an unduly technical approach by focusing solely on compliance with Rule 2, without considering the broader duty of employees to provide advance notice of a planned collective absence. The absence of a written rule requiring advance notice did not absolve the employees from the obligation to act fairly and responsibly, given the operational impact of their absence. While some employees complied with the two-hour notification rule, most did not, and none provided advance warning. The dismissals were substantively unfair as the applicant failed to establish that the final written warnings were for similar offences, and the employees attempted to...

Court Disposition

Arbitration award reviewed and set aside; substituted with finding of misconduct but substantively unfair dismissal; matter remitted for determination of relief; no order as to costs.

Orders

  • The arbitration award issued by Arbitrator Motlatsi Phala on 31 March 2014 under case number GPCHEM 525-11/12 is reviewed and set aside and substituted with an award that the employees were guilty of the misconduct in issue, but their dismissal was substantively unfair.
  • The third respondent is directed to appoint an arbitrator to determine the appropriate relief to be granted, taking into consideration section 193 of the Labour Relations Act 66 of 1995.