van der Westhuizen v Gold One Ltd, Modder Operations and Others (JR 1090/2011) [2012] ZALCJHB 154 (6 December 2012)

van der Westhuizen v Gold One Ltd, Modder Operations and Others (JR 1090/2011) [2012] ZALCJHB 154 (6 December 2012)

The court found that the Commissioner failed to properly consider the seriousness of the alleged assault and the delay in reporting the incident, which indicated that the employer did not regard the offence as serious enough to warrant prompt disciplinary action. The Commissioner also failed to address contradictions in the evidence regarding whether the applicant was properly notified of the disciplinary hearing and whether he was paraded according to policy. The court held that the dismissal was both substantively and procedurally unfair, as the minimum requirements of fairness were not met and there was insufficient evidence of an irretrievable breakdown in the employment relationship....

Citation
[2012] ZALCJHB 154
Parties
Applicant: Johannes Petrus Diederik van der Westhuizen; Respondent: Gold One Africa Limited, Modder East Operation; Respondent: Commissioner Thabo Sekhabisa; Respondent: Commission for Conciliation, Mediation and Arbitration
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
6 December 2012
Case Number
JR 1090/2011
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; applicant's dismissal found to be substantively and procedurally unfair; reinstatement ordered.
Judges
Molahlehi
Legal Topics
Unfair Dismissal, Procedural Fairness, Substantive Fairness, Arbitration Review, Reinstatement
Labour Law Civil Procedure Unfair Dismissal Procedural Fairness Substantive Fairness Arbitration Review Reinstatement

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 4 Party arguments 2
Sign in to unlock

Parties

Johannes Petrus Diederik van der Westhuizen

Applicant

Gold One Africa Limited, Modder East Operation

Respondent

Commissioner Thabo Sekhabisa

Respondent

Commission for Conciliation, Mediation and Arbitration

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the Commissioner failed to consider the seriousness of the offence and the breakdown of the employment relationship.
  2. 2 Whether the dismissal of the applicant was substantively and procedurally fair.
  3. 3 Whether the delay in instituting disciplinary proceedings affected the fairness of the dismissal.

Ratio Decidendi

The court found that the Commissioner failed to properly consider the seriousness of the alleged assault and the delay in reporting the incident, which indicated that the employer did not regard the offence as serious enough to warrant prompt disciplinary action. The Commissioner also failed to address contradictions in the evidence regarding whether the applicant was properly notified of the disciplinary hearing and whether he was paraded according to policy. The court held that the dismissal was both substantively and procedurally unfair, as the minimum requirements of fairness were not met and there was insufficient evidence of an irretrievable breakdown in the employment relationship....

Court Disposition

Arbitration award reviewed and set aside; applicant's dismissal found to be substantively and procedurally unfair; reinstatement ordered.

Orders

  • The arbitration award made by the second respondent under case number GAEK 4340/10 is reviewed and set aside.
  • The dismissal of the applicant, Mr Van Der Westhuizen, was both substantively and procedurally unfair.