Minister of Safety and Security v Madikane (CA2/13) [2014] ZALAC 58/67; (2015) 36 ILJ 1224; [2014] JOL 32442 (LAC) (23 October 2014) per Coppin AJA [Tlaletsi DJP and Hlophe AJA concurring]

Appeal allowed and arbitrator’s unreasonable award set aside and substituted and dismissal confirmed.  Review of arbitration award – employee found to have misbehaved by not complying with standing order in handling blood sample and defeating the ends of justice and dismissed.

Arbitrator finding on probabilities that dismissal substantively unfair and procedurally unfair because employee not fit to appear at the disciplinary hearing and ordered reinstatement –

Labour Court partially setting aside arbitration award but upholding arbitrator’s findings on the allegation of defeating the ends of justice.

On Appeal held arbitrator erred materially in his approach to the drawing of inference of employee’s knowledge and participation in the destruction of the blood sample – in not taking into account all the evidence and the probabilities- inference drawn that employee had knowledge and was accomplice in tampering with blood sample.

Arbitrator’s award unreasonable.

Labour Court erred in upholding arbitration award.

Procedural unfairness- Arbitrator failing to take into account employee’s witness’s evidence that employee was fit to appear in the disciplinary hearing if represented and employee’s participation in other proceedings-

Arbitrator’s finding unreasonable.  Cross-appeal on costs dismissed.

[1] This is an appeal against part of the judgment and order of the Labour Court (Lagrange J) in terms of which an award of the third respondent, acting as arbitrator under the auspices of the second respondent and in which it was found that the dismissal of the first respondent (“Mr Madikane”) was substantively and procedurally unfair and reinstating Mr Madikane to his employment, was reviewed and only partly set aside.  Mr Madikane is also cross appealing against the costs order of the Labour Court.