Zuma and Another v Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) and Others (D914/12) [2015] ZALCD 54; (2016) 37 ILJ 257 (LC) (8 September 2015)

Zuma and Another v Public Health and Social Development Sectoral Bargaining Council (PHSDSBC) and Others (D914/12) [2015] ZALCD 54; (2016) 37 ILJ 257 (LC) (8 September 2015)

The Labour Court found that the commissioner did not commit a gross irregularity by conducting the arbitration on written submissions, as this format was agreed upon by legally represented parties and is permissible under section 138 of the LRA. The commissioner’s reliance on the Delegation 701 letter was reasonable within the agreed format, and the absence of oral evidence did not prejudice the parties. The court held that the commissioner’s decision to award compensation instead of reinstatement was unreasonable, as there was no evidence to support impracticability or intolerability of reinstatement. Delay alone does not justify departure from reinstatement, and the respondents failed...

Citation
[2015] ZALCD 54
Parties
Applicant: Thulisile Lynette Zuma; Applicant: Phumzile Revival Bekwa; Respondent: Public Health and Social Development Sectoral Bargaining Council (PHSDSBC); Respondent: Anand Dorsamy N.O.; Respondent: Mahatma Gandi Memorial Hospital; Respondent: Department of Health
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
8 September 2015
Case Number
D914/12
Procedural Posture
Review Application / Judgment on Review and Cross Review of Arbitration Award
Outcome
The arbitration award is reviewed and set aside. The applicants are to be reinstated with backpay limited to twelve months. Costs are awarded against the third and fourth respondents.
Judges
B Whitcher
Legal Topics
Unfair Dismissal, Arbitration Review, Condonation, Remedy of Reinstatement, Backpay, Procedural Irregularity
Labour Law Civil Procedure Unfair Dismissal Arbitration Review Condonation Remedy of Reinstatement Backpay Procedural Irregularity

Case Brief

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Parties

Thulisile Lynette Zuma

Applicant

Phumzile Revival Bekwa

Applicant

Public Health and Social Development Sectoral Bargaining Council (PHSDSBC)

Respondent

Anand Dorsamy N.O.

Respondent

Mahatma Gandi Memorial Hospital

Respondent

Department of Health

Respondent

Procedural Posture

Review Application / Judgment on Review and Cross Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award was reviewable due to the commissioner conducting proceedings solely on written argument.
  2. 2 Whether the commissioner committed a gross irregularity by not calling for oral evidence.
  3. 3 Whether the remedy of compensation instead of reinstatement was reasonable given the substantive unfairness of the dismissal.

Ratio Decidendi

The Labour Court found that the commissioner did not commit a gross irregularity by conducting the arbitration on written submissions, as this format was agreed upon by legally represented parties and is permissible under section 138 of the LRA. The commissioner’s reliance on the Delegation 701 letter was reasonable within the agreed format, and the absence of oral evidence did not prejudice the parties. The court held that the commissioner’s decision to award compensation instead of reinstatement was unreasonable, as there was no evidence to support impracticability or intolerability of reinstatement. Delay alone does not justify departure from reinstatement, and the respondents failed...

Court Disposition

The arbitration award is reviewed and set aside. The applicants are to be reinstated with backpay limited to twelve months. Costs are awarded against the third and fourth respondents.

Orders

  • The Fourth Respondent shall re-employ the Applicants either at the Third Respondent or in any other reasonably suitable work on the same or similar terms and conditions and without any break in service being recorded.
  • The reinstatement is with backpay limited to twelve months, calculated on the basis of what the Applicants would have been earning as of the date of this judgment had they not been dismissed.