Saldanha Bay Municipality v Samwu obo Wilschut (C697/12) [2015] ZALCCT 67 (2016) ILJ 1003 (LC) (17 November 2015) per Steenkamp J.

The Labour Court reviewed and set aside an award that reinstated an employee after a purported settlement agreement had been concluded with the Municipal Manager.  Steenkamp J held that the municipal manager did not have the power ‘to usurp the function of the chairperson by entering into a settlement agreement with the employee and bypassing the disciplinary procedure’.  In addition the employee’s conduct was gross and dishonest and the

‘municipality cannot be expected to keep him in its service.  The municipal manager’s decision to the contrary is grossly unreasonable, even if he had the authority to enter into a settlement agreement’.

Excerpts

[33]    The arbitrator committed an error of law by basing his finding that the settlement agreement was binding on the municipality on the doctrine of estoppel and the application of the Turquand rule.  The resultant conclusion was so unreasonable that no reasonable arbitrator could have reached the same conclusion.  The award must be reviewed and set aside.

[34]    On the evidence before me, the finding on sanction by the presiding officer in the disciplinary hearing – given that the employee had admitted to the misconduct – is entirely reasonable and fair.

[35]    With regard to costs, I take into account that the employee had an arbitration award in his favour.  It was not unreasonable to oppose this application.  In law and fairness, I do not consider a costs award to be appropriate.