Zimu v Commission for Conciliation Mediation and Arbitration and Others (JA 23/10) [2011] ZALAC 34 (28 September 2011)

Zimu v Commission for Conciliation Mediation and Arbitration and Others (JA 23/10) [2011] ZALAC 34 (28 September 2011)

The Labour Appeal Court held that the appellant and her superior, Ms Sylvia Kunene, were charged with different acts of misconduct. While both breached company rules regarding user ID and password confidentiality, the appellant was additionally charged with misrepresenting facts to the company by signing deposit slips she had not checked, which constituted dishonesty. Kunene was not charged with dishonesty or misrepresentation. The court found that the commissioner failed to properly distinguish between the charges and did not apply his mind to the critical fact that only the appellant was charged with dishonesty. The employer was entitled to impose a different penalty for distinct acts...

Citation
[2011] ZALAC 34
Parties
Appellant: Fancy Sizakele Zimu; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Braam van Wyk N.O.; Respondent: Edgars Consolidated Stores Limited
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
28 September 2011
Case Number
JA 23/10
Procedural Posture
Labour Appeal / Appeal From Labour Court Judgment Setting Aside Arbitration Award and Substituting Dismissal as Substantively Fair.
Outcome
Appeal dismissed. Each party to pay its own costs.
Judges
Murphy, Waglay, Mocumie
Legal Topics
Consistency in Dismissal, Dishonesty in Employment, Code of Good Practice Dismissal, Arbitration Review, Trust Relationship
Labour Law Civil Procedure Consistency in Dismissal Dishonesty in Employment Code of Good Practice Dismissal Arbitration Review Trust Relationship

Case Brief

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Parties

Fancy Sizakele Zimu

Appellant

Commission for Conciliation, Mediation and Arbitration

Respondent

Braam van Wyk N.O.

Respondent

Edgars Consolidated Stores Limited

Respondent

Procedural Posture

Labour Appeal / Appeal From Labour Court Judgment Setting Aside Arbitration Award and Substituting Dismissal as Substantively Fair.

Legal Issues

  1. 1 Whether the dismissal of the appellant was inconsistent with the sanction imposed on her superior for similar misconduct.
  2. 2 Whether the commissioner properly distinguished between the charges of dishonesty and negligence.
  3. 3 Whether the Labour Court correctly substituted the finding that the dismissal was substantively fair.

Ratio Decidendi

The Labour Appeal Court held that the appellant and her superior, Ms Sylvia Kunene, were charged with different acts of misconduct. While both breached company rules regarding user ID and password confidentiality, the appellant was additionally charged with misrepresenting facts to the company by signing deposit slips she had not checked, which constituted dishonesty. Kunene was not charged with dishonesty or misrepresentation. The court found that the commissioner failed to properly distinguish between the charges and did not apply his mind to the critical fact that only the appellant was charged with dishonesty. The employer was entitled to impose a different penalty for distinct acts...

Court Disposition

Appeal dismissed. Each party to pay its own costs.

Orders

  • The appeal is dismissed.
  • Each party is to pay its own costs.