VSB Construction ta Techni-Civils CC v NUM obo Mngqola and Others (PA11/2018) [2021] ZALAC 21; [2021] 10 BLLR 1009 (LAC); (2021) 42 ILJ 2407 (LAC) (23 July 2021)

VSB Construction ta Techni-Civils CC v NUM obo Mngqola and Others (PA11/2018) [2021] ZALAC 21; [2021] 10 BLLR 1009 (LAC); (2021) 42 ILJ 2407 (LAC) (23 July 2021)

The appeal was dismissed because the appellant failed to provide evidence of exceptional circumstances justifying a refusal to reinstate the employee. The arbitrator's finding of substantive unfairness was not challenged, and the only relevant exception under s 193(2)(b) of the LRA requires proof that continued employment would be intolerable. The appellant did not show that the employee's conduct, namely the allegations of racism, were made in public or that they irreparably harmed the employment relationship. The Labour Court correctly set aside the arbitrator's refusal to reinstate, as there was no factual basis for finding intolerability. Without such evidence, reinstatement is the...

Citation
[2021] ZALAC 21
Parties
Appellant: VSB Construction t/a Techni-Civils CC; Respondent: NUM obo Mngqola; Respondent: Bargaining Council for the Civil Engineering Industry; Respondent: Ms M Fouche N.O.
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
23 July 2021
Case Number
PA11/2018
Procedural Posture
Labour Appeal / Appeal Against Labour Court Order Granting Reinstatement After Review of Arbitration
Outcome
Appeal dismissed with costs.
Judges
Davis JA, Sutherland JA, Murphy AJA
Legal Topics
Unfair Dismissal, Reinstatement, Breakdown of Trust Relationship, Labour Relations Act Section 193, Substantive Fairness
Labour Law Unfair Dismissal Reinstatement Breakdown of Trust Relationship Labour Relations Act Section 193 Substantive Fairness

Case Brief

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Parties

VSB Construction t/a Techni-Civils CC

Appellant

NUM obo Mngqola

Respondent

Bargaining Council for the Civil Engineering Industry

Respondent

Ms M Fouche N.O.

Respondent

Procedural Posture

Labour Appeal / Appeal Against Labour Court Order Granting Reinstatement After Review of Arbitration

Legal Issues

  1. 1 Whether the arbitrator was reasonable in refusing reinstatement after finding the dismissal substantively unfair.
  2. 2 Whether the Labour Court was correct to set aside the arbitrator's refusal to reinstate and order reinstatement instead.
  3. 3 Whether the evidence supported a finding that the employment relationship was intolerable under s 193(2)(b) of the LRA.

Ratio Decidendi

The appeal was dismissed because the appellant failed to provide evidence of exceptional circumstances justifying a refusal to reinstate the employee. The arbitrator's finding of substantive unfairness was not challenged, and the only relevant exception under s 193(2)(b) of the LRA requires proof that continued employment would be intolerable. The appellant did not show that the employee's conduct, namely the allegations of racism, were made in public or that they irreparably harmed the employment relationship. The Labour Court correctly set aside the arbitrator's refusal to reinstate, as there was no factual basis for finding intolerability. Without such evidence, reinstatement is the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed.
  • The appellant is ordered to pay the costs.