Wilcocks v Khawula N.O and Others (D 2158/2018) [2022] ZALCD 4 (1 March 2022)

Wilcocks v Khawula N.O and Others (D 2158/2018) [2022] ZALCD 4 (1 March 2022)

The court found that the arbitrator misdirected himself by accepting that the employer had a discretion to dismiss or medically board the applicant, contrary to the Code of Good Practice and the employer's own procedures. Dismissal for incapacity is a measure of last resort, and the employer failed to properly investigate medical boarding as an alternative. The arbitrator's award fell outside the range of reasonable decisions, as it denied the applicant consideration for benefits available under the pension fund and breached procedural fairness. The court substituted the award, finding the dismissal substantively and procedurally unfair, and ordered reinstatement.

Citation
[2022] ZALCD 4
Parties
Applicant: CT Wilcocks; Respondent: M Khawula N.O.; Respondent: SA Local Government Bargaining Council; Respondent: Ugu District Municipality
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
1 March 2022
Case Number
D 2158/2018
Procedural Posture
Review Application / Judgment
Outcome
The arbitration award is reviewed and set aside. The applicant's dismissal is declared substantively and procedurally unfair. The applicant is reinstated with effect from the date of dismissal. The third respondent is ordered to pay the costs of the proceedings.
Judges
Van Niekerk
Legal Topics
Dismissal for Incapacity, Procedural Fairness, Substantive Fairness, Medical Boarding, Code of Good Practice, Remedies for Unfair Dismissal
Labour Law Dismissal for Incapacity Procedural Fairness Substantive Fairness Medical Boarding Code of Good Practice Remedies for Unfair Dismissal

Case Brief

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Parties

CT Wilcocks

Applicant

M Khawula N.O.

Respondent

SA Local Government Bargaining Council

Respondent

Ugu District Municipality

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the applicant's dismissal for incapacity due to ill-health was substantively and procedurally fair.
  2. 2 Whether the third respondent was obliged to consider medical boarding as an alternative to dismissal.
  3. 3 Whether the arbitrator's award was reasonable and in accordance with the law.

Ratio Decidendi

The court found that the arbitrator misdirected himself by accepting that the employer had a discretion to dismiss or medically board the applicant, contrary to the Code of Good Practice and the employer's own procedures. Dismissal for incapacity is a measure of last resort, and the employer failed to properly investigate medical boarding as an alternative. The arbitrator's award fell outside the range of reasonable decisions, as it denied the applicant consideration for benefits available under the pension fund and breached procedural fairness. The court substituted the award, finding the dismissal substantively and procedurally unfair, and ordered reinstatement.

Court Disposition

The arbitration award is reviewed and set aside. The applicant's dismissal is declared substantively and procedurally unfair. The applicant is reinstated with effect from the date of dismissal. The third respondent is ordered to pay the costs of the proceedings.

Orders

  • The arbitration award issued by the first respondent under case number KPD091717 on 4 October 2018 is reviewed and set aside.
  • The award is substituted with a finding that the applicant's dismissal is substantively and procedurally unfair.