|This matter concerns the Commissioner’s (the First Respondent) award finding that the dismissal of Cecilia Senatsi, the Third Respondent, by Tsebo Outsourcing Group, the Applicant, was substantively and procedurally unfair, ordering her reinstatement. The Applicant sought an order setting aside the award.
The Third Respondent was employed by the Applicant as an Assistant Catering Manager and was responsible for stock taking at the Cairn Hall Hospital. The Third Respondent’s dismissal arose due to various discrepancies in stock levels and variances that were unacceptably larger than usual. The Third Respondent was given time to report on the reasons for these variances which continued to show in her stock taking, which she failed to do. The Applicant instituted disciplinary proceedings against the Third Respondent for attempting to defraud the Applicant. It was found in the disciplinary enquiry that the Third Respondent was guilty of a competent verdict of gross negligence, recommending the sanction of dismissal.
The Third Respondent challenged the Applicants decision to dismiss her at the CCMA. The First Respondent found that the dismissal was substantively and procedurally unfair, ordering her reinstatement. The Applicant challenged the award on the basis that the First Respondent failed to apply his mind to the evidence before him, misconstrued the evidence and reached an unreasonable decision.
The First Respondent argued that there was no evidence linking the Third Respondent to the charge she faced and that she was dismissed on the chairperson’s perception.
|The relevant test to determine a review application based on erros made by a commissioner was set out in Head of the Department of Education v Mofokeng and Others as follows: “Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him”.
The Labour Court found that the First Respondent misconstrued the dispute before him, conducted the incorrect inquiry, and thus the award was unreasonable. The First Respondent was required to determine the fairness of the Applicant’s conduct for dismissing the Third Respondent for gross negligence, the misconduct she was dismissed for and the misconduct she was charged with. The Labour Court further held that the First Respondent’s award was defective as the commissioner failed to adequately deal with the Applicant’s conduct of charging the Third Respondent with one act of misconduct and dismissing her for another.
The Labour Court further found that the record of the arbitration proceedings did not contain sufficient information on which a decision on the fairness of the Third Respondent’s dismissal can be made. Consequently, the Labour Court reviewed and set aside the arbitration award, and ordered that the matter be remitted to the CCMA to be arbitrated de novo.
|This case highlights the relevant test to determine a review application based on errors made by a commissioner, and outlines that where an employee is dismissed for misconduct different to that which he/she was charged with, the commissioner must determine the fairness of same. Where a commissioner fails to consider the fairness of same and thus misconceives the dispute, conducting the incorrect enquiry, the court must find that the arbitration award is unreasonable, and must be set aside.|
Written by Wesley Pons and supervised by Dewald Claassen