Dept of Finance And Economic Development (The Province of Gauteng) v Mosome (JA1/2013) [2014] ZALAC 46 (19 September 2014)

Mokgoatlheng AJA (Tlaletsi DJP and Musi AJA concurring)

Heard:          17 September 2013

Delivered:   19 September 2014

LAC summary:

Section 193(2) of the LRA, Employee dismissed for insubordination.  First arbitrator finding employee unfairly dismissed but ordered compensation.  Review of arbitration award.  Court a quo setting aside arbitration award and remitting to bargaining council for further evidence to be adduced on whether to reinstate or compensate employee.  Second arbitrator finding employment relationship had irretrievably broken down and confirming compensation – Review of second arbitration awards.  Court a quo setting aside award and reinstating employee.  Appeal court a quo misconstruing first review judgment – First reviewing court setting aside award only for determination of the appropriate remedy.  – Evidence showing employment relationship irretrievably broken down.  Reinstatement reasonably impracticable.  Arbitrator applied his mind to the evidence.

Appeal allowed and Labour Court’s judgment set aside.

[1] This is an appeal against the judgment and order of the Labour Court (Molahlehi J) in terms whereof it reviewed and set aside the third respondent’s (the second arbitrator’s) award made on 7 May 2009 wherein she held that the reinstatement of the first respondent pursuant to Section 193(2) of the Labour Relations Act 66 of 1995 (The Act) was incompetent because the employment relationship between the appellant and the first respondent had irretrievably broken and was rendered intolerable as envisaged in Section 193(2)(b).  The court-a-quo reinstated the first respondent, ordered that a warning be annotated in her employment record, and awarded her seven months compensation in the amount of R101, 423.00.