First Garment Rental (Pty) Ltd v CCMA (JA01/14) [2015] ZALAC 38; [2015] 11 BLLR 1094 (LAC) (9 September 2015) per Mngqibisa-Thusi AJA [Landman and Sutherland JJA concurring]
The Labour Appeal Court disallowed the appeal and upheld the order of the Labour Court (Bruinders AJ) which upheld the reinstatement award of the CCMA because it was not unreasonable. The employees were alleged to have assaulted a manager during a violent strike. Evidence of the violence was adduced by means of a video tape recording, but it did not identify the employees alleged to have assaulted the manager. There was no other clear and convincing evidence of the assault so the employer failed to discharge the onus of proving a valid, let alone a fair, reason to dismiss related to conduct.
BLLR headnote:
Dismissal – Misconduct – Assault – Employer dismissing employees for assault during strike on basis of video recordings which failed to capture particular incident – Misconduct not proved and dismissal unfair.