Zenith Administration Services (Pty) Ltd v Mthethwa and Others (JR 2910/11) [2014] ZALCJHB 491 (19 December 2014)

Zenith Administration Services (Pty) Ltd v Mthethwa and Others (JR 2910/11) [2014] ZALCJHB 491 (19 December 2014)

The commissioner committed a reviewable irregularity by failing to consider the applicant's heads of argument, which were submitted in accordance with the agreed procedure. This failure denied the applicant a fair hearing and breached the requirements for a fair trial as established by the Labour Appeal Court. Furthermore, the commissioner misunderstood the nature of the enquiry by considering consistency and sanction after finding no misconduct. The court found that all relevant material was before it and substituted the commissioner's award, holding that the dismissal of the third respondent was substantively and procedurally fair.

Citation
[2014] ZALCJHB 491
Parties
Applicant: Zenith Administration Services (Pty) Ltd; Respondent: Mthethwa, Bhekinhlanhla Stanley N.O.; Respondent: The Commission for Conciliation, Mediation and Arbitration; Respondent: Swanepoel, Valerie
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
19 December 2014
Case Number
JR 2910/11
Procedural Posture
Review Application / Judgment
Outcome
Application to review and set aside the arbitration award is granted. The dismissal of the third respondent is held to be substantively and procedurally fair.
Judges
Van Niekerk
Legal Topics
Unfair Dismissal, Arbitration Review, Procedural Fairness, Consistency in Discipline
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Procedural Fairness Consistency in Discipline

Case Brief

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Parties

Zenith Administration Services (Pty) Ltd

Applicant

Mthethwa, Bhekinhlanhla Stanley N.O.

Respondent

The Commission for Conciliation, Mediation and Arbitration

Respondent

Swanepoel, Valerie

Respondent

Procedural Posture

Review Application / Judgment

Legal Issues

  1. 1 Whether the commissioner committed a reviewable irregularity by failing to consider the applicant's heads of argument.
  2. 2 Whether the dismissal of the third respondent was substantively and procedurally fair.
  3. 3 Whether the commissioner correctly applied the principle of consistency in discipline.

Ratio Decidendi

The commissioner committed a reviewable irregularity by failing to consider the applicant's heads of argument, which were submitted in accordance with the agreed procedure. This failure denied the applicant a fair hearing and breached the requirements for a fair trial as established by the Labour Appeal Court. Furthermore, the commissioner misunderstood the nature of the enquiry by considering consistency and sanction after finding no misconduct. The court found that all relevant material was before it and substituted the commissioner's award, holding that the dismissal of the third respondent was substantively and procedurally fair.

Court Disposition

Application to review and set aside the arbitration award is granted. The dismissal of the third respondent is held to be substantively and procedurally fair.

Orders

  • The arbitration award issued by the first respondent on 24 October 2011 is reviewed and set aside.
  • The award is substituted by the following: 'The dismissal of the applicant was substantively and procedurally fair.'