Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)

Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)

The court found that the commissioner’s determination that the applicant was aware of the policy and had received on-the-job training was reasonable, supported by the evidence of Ms Mishoene and the inherent probabilities. The applicant’s failure to verify the returned item before authorising a cash refund constituted gross negligence. The commissioner’s upholding of the sanction of dismissal was also reasonable, given the nature of the applicant’s duties, the loss suffered by the employer, and the company’s disciplinary code. The applicant failed to establish that the award was one that a reasonable commissioner could not have reached.

Citation
[2017] ZALCJHB 350
Parties
Applicant: Thembisile Zitha; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Commissioner Akim, N.O.; Respondent: Edcon Limited
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
3 October 2017
Case Number
JR2224/15
Procedural Posture
Review Application / Labour Court Review of CCMA Arbitration Award
Outcome
Review application dismissed.
Judges
Myburgh, AJ
Legal Topics
Gross Negligence, Dismissal for Misconduct, Review of Arbitration Award, Training and Policy Awareness
Labour Law Civil Procedure Gross Negligence Dismissal for Misconduct Review of Arbitration Award Training and Policy Awareness

Case Brief

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Parties

Thembisile Zitha

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Commissioner Akim, N.O.

Respondent

Edcon Limited

Respondent

Procedural Posture

Review Application / Labour Court Review of CCMA Arbitration Award

Legal Issues

  1. 1 Whether the commissioner’s finding that the applicant was guilty of gross negligence was reasonable.
  2. 2 Whether the applicant was aware of the relevant policy and received sufficient training.
  3. 3 Whether the sanction of dismissal was substantively fair and reasonable in the circumstances.

Ratio Decidendi

The court found that the commissioner’s determination that the applicant was aware of the policy and had received on-the-job training was reasonable, supported by the evidence of Ms Mishoene and the inherent probabilities. The applicant’s failure to verify the returned item before authorising a cash refund constituted gross negligence. The commissioner’s upholding of the sanction of dismissal was also reasonable, given the nature of the applicant’s duties, the loss suffered by the employer, and the company’s disciplinary code. The applicant failed to establish that the award was one that a reasonable commissioner could not have reached.

Court Disposition

Review application dismissed.

Orders

  • The review application is dismissed.
  • There is no order as to costs.