Van der Merwe v Shiba and Others (JR790/15) [2017] ZALCJHB 354 (27 September 2017)

Van der Merwe v Shiba and Others (JR790/15) [2017] ZALCJHB 354 (27 September 2017)

The court found that the commissioner’s decision to uphold the dismissal was unreasonable because no evidence of aggravating circumstances was presented to justify deviation from the disciplinary code, which prescribed a written warning for dishonesty. The commissioner’s reliance on the breakdown of the trust relationship was not supported by evidence. The third respondent’s disciplinary code distinguished between dishonesty and gross dishonesty, prescribing different sanctions. By dismissing the applicant for dishonesty without cogent reasons for deviation, the third respondent acted unfairly. The commissioner’s error rendered his decision unreasonable, warranting the review and setting...

Citation
[2017] ZALCJHB 354
Parties
Applicant: John Peter Van der Merwe; Respondent: Commissioner George Shiba; Respondent: Commission for Conciliation Mediation and Arbitration; Respondent: Quicksure (Pty) Ltd
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
27 September 2017
Case Number
JR790/15
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The arbitration award was reviewed and set aside. The applicant’s dismissal was found to be substantively unfair. Compensation was awarded in lieu of reinstatement.
Judges
Lallie
Legal Topics
Unfair Dismissal, Disciplinary Code Deviation, Compensation, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Disciplinary Code Deviation Compensation Review of Arbitration Award

Case Brief

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Parties

John Peter Van der Merwe

Applicant

Commissioner George Shiba

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Quicksure (Pty) Ltd

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the commissioner’s decision to deviate from the prescribed disciplinary code sanction was reasonable.
  2. 2 Whether the dismissal of the applicant for dishonesty, rather than issuing a written warning, was substantively fair.
  3. 3 Whether the absence of evidence of aggravating circumstances justified the sanction of dismissal.

Ratio Decidendi

The court found that the commissioner’s decision to uphold the dismissal was unreasonable because no evidence of aggravating circumstances was presented to justify deviation from the disciplinary code, which prescribed a written warning for dishonesty. The commissioner’s reliance on the breakdown of the trust relationship was not supported by evidence. The third respondent’s disciplinary code distinguished between dishonesty and gross dishonesty, prescribing different sanctions. By dismissing the applicant for dishonesty without cogent reasons for deviation, the third respondent acted unfairly. The commissioner’s error rendered his decision unreasonable, warranting the review and setting...

Court Disposition

The arbitration award was reviewed and set aside. The applicant’s dismissal was found to be substantively unfair. Compensation was awarded in lieu of reinstatement.

Orders

  • The arbitration award issued by the first respondent under case number GAEK1520-15 and dated 31 March 2015 is reviewed and set aside and substituted with the following:
  • The applicant’s dismissal was substantively unfair.