Recent Wins
SUMMARY OF CCMA CASE NO LP 6019/04/ LABOUR COURT CASE NO JR 190/06 & JA 03/10
This matter dates back to 2005 and began with an Arbitration that was heard by the CCMA: Venda (Thohoyandou) and was finalised on 23rd November 2005. The issue to be decided was whether the dismissal of the employees (our clients) was fair or not and what the appropriate releif would be if the finding was one of unfair dismissal.
FACTS OF THE MATTER
The employer is a registered bank, incorporated as a company in terms of company laws of the Republic of South Africa. The three employees, Mr G and Mesdames S and K, were employed by the bank at the Thohoyandou Branch as an ATM Balancing Clerk, Support Clerk and Head of Department Frontline Liaison, respectively.
The employees had a disciplinary hearing prior to being dismissed, which dismissal which was confirmed by an Internal Appeals Committee on the grounds of either disregarding or breaking the bank’s policies and procedures. Ms S had withdrawn from the matter as a result of a settlement agreement she reached with the bank which our firm had facilitated. Ms Du Toit proceeded with the matter on behalf of Mr. G and Ms K.
Commissioner S Negota concluded that in light of the Evidence given and the Arguments of all parties the employees were “luckless victims and scapegoats of the bank’s vicious whichhunt to redeem itself from its financial woes and misfortunes, caused by poor and reckless management”.
The Commissioner found that the dismissal of the employees by the employer was unfair and he ordered that the employees be reinstated with full backpay:
“I find that the dismissal of the two employees by the employer was unfair. I order the employer to reinstate the two employees with full backpay, which is equal to twelve months pay, on or before the 1st of January 2006, on terms and conditions no less favorable than those which applied to them prior to their dismissal. The employees should be paid their backpay as follows;
- 1. R69 306.60
- 2. R89 096.52”.
The matter was taken to the Labour Court as the Employer wanted the court to set aside and review the Arbitration Award. The Honourable Judge Molahlehi amended the award to state that the dismissal of the employees was procedurally fair but the dismissal was substantively unfair. The employer was ordered to reinstate the employees without loss of salary and benefits. This judgment was made on 5th May 2009:
“In the premises I make the following order:
(i) The condonation application for the late filing of the answering and the replying affidavits is condoned.
(ii) The application for costs against the Second Respondent, the CCMA, is dismissed with costs.
(iii) The arbitration award issued by the First Respondent is reviewed and corrected as follows:
(a) The dismissal of the Applicants, Mr G and Ms K was procedurally fair.
(b) The dismissal was substantively unfair.
(c) The Respondent is ordered to reinstate the Applicants retrospectively without loss of salary and benefits.
(iv) The Third Respondent Mr G is substituted with the executrix and for this reason the Applicant is to pay his estate 12 (twelve) months compensation calculated on the salary he received at the time of his dismissal.”
The matter proceeded to the Labour Appeal Court on the insistence of the Employer on 12 December 2009. The matter was enrolled to be heard by the LAC on 17 May 2011 when the parties reached an unexpected settlement.
On the 8th April 2011 the employees and the employer signed a Settlement Agreement for a sizeable amount.
The Firm thanks Riki Anderson Attorneys for their loyal support and professional advocacy work provided in this matter.
Extract from CCMA Ruling issued under Case No GAPT1537/07:
Maria Du Toit (BLC LLB LLM University of Pretoria)
‘Rescission is granted for the following reasons:
(1) The employer party alleges that it did not receive the notice of set down, even though it was allegedly sent to a correct fax number.
(2) The Respondent has set out an alternative version on the merits of the case.’
Date: 31 March 2010
- ‘Rescission is granted in the matter.
Letsema Mokoena (LLB) Wits
The matter is to be re-enrolled for a new hearing and both parties must be properly notified of the hearing arangements.
There is no order as to costs in the matter. ‘
Date:15 March 2010
Extract from CCMA Pretoria Arbitration Award issued under Case No GATW 2472-09:
‘The disciplinary action taken against the employee by the employer on 28 November 2008 is declared to have been both procedurally and substantively unfair.
Accordingly the written warning issued for this purpose on 28 November is declared to have been an unfair labour practice.
[The employer] is directed, with immediate effect, to remove this written warning and any reference to it in its records and from the personal file of [the employee].
I make no order as to costs.’
Date: 4 August 2009
Extract from CCMA Pretoria Arbitration Award issued under Case No GAPT 5477-08:
‘In light of the above, I find the dismissal of the Applicant to be substantively and procedurally unfair.
The Respondent is ordered to compensate the Applicant in the amount of R 128 600 which amount is equal to 5 months compensation;
The amount mentioned must be paid within 2 weeks of receipt of this award, failing which the Applicant may invoke the provisions of section 143 to enforce this award.
Interest will accrue on the amount from the date of payment becomes due, as mentioned above and in accordance with Section 143(2) of the Act.
No order as to costs is made.’
Date: 7 November 2008
Extract from CCMA Pretoria Arbitration Award issued under Case No GAJB 41322-07
‘The default award issued by Commissioner …. on the 15th of January 2008 is rescinded;
The CCMA is directed to schedule the matter for arbitration proceedings at its earliest convenience;
I make no order as to costs.’
Date: 21 May 2008
Extract from CCMA Limpopo Arbitration Award issued under Case No: LP6019-04
‘I find that the dismissal of the two employees by the employer was unfair. I order the employer to
reinstate the two employees with full backpay, which is equal to twelve months pay, on or before the
1st of January 2006, on terms and conditions no less favorable thn those which applied to them prior
to their dismissal. The employees should be paid their back pay as follows:
1.Mr [Employee] = R69 306.60
2. Ms [Employee] = R89 096.52.’
Date: 12 December 2005
On review by the Employer Party to the Labour Court, the outcome was:
‘In the premises the following order is made:
The condonation application for the late filing of the answering and the replying affidavits is condoned.
The application for costs against the Second Respondent, the CCMA is dismissed with costs.
The arbitration award issued by the First Respondent is reviewed and corrected as follows:
(a) The dismissal of the Applicants, Mr. Guduvheni and Ms Kone was procedurally fair.
(b) The dismissal was substantively unfair.
(c) The Respondent is ordered to reinstate the Applicants retrospectively without loss of salary and benefits.
The Third Respondent, Mr. Guduvheni is substituted with the executrix and for this reason the Applicant is to pay his estate 12 (twelve) months compensation calculated on the salary he received at the time of his dismissal.’
Date: Judgment handed down 5 May 2009.
