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[2025] ZALCJHB 589
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Lucchini South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR1794/22) [2025] ZALCJHB 589 (19 December 2025)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
No:
JR1794/22
(1)
Reportable: NO
(2)
Of interest to other Judges: No
(3)
Revised
19/12/2025
In
the matter between:
LUCCHINI SOUTH AFRICA
(PTY) LTD
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
MATOME VICTOR SEHUNANE
Second Respondent
VISHEN
MAHABEER
Third Respondent
Heard:
14 August 2025
Delivered:
19 December 2025
Summary:
An application to review an arbitration
award which found a dismissal substantively unfair and ordered the
maximum compensation
of 12 months, as the employee did not wish to be
reinstated. There were no irregularities, and the award is
reasonable, but the
compensation is reduced to 6 months.
JUDGMENT
GANDIDZE J
Introduction
[1]
The
application by Lucchini South Africa (Pty) Ltd (Lucchini) is in terms
of section 145 of the Labour Relations Act
[1]
,
(LRA) and seeks to review, set aside, and substitute an award issued
by the Commission for Conciliation, Mediation and Arbitration
(CCMA)
on 11 August 2022, in case number GAEK6148-21. The award declared
Vishen Mahabeer’s dismissal substantively unfair,
as procedural
fairness was not contested, and ordered payment of the maximum
compensation of 12 months' salary. Lucchini seeks
an order that
Mahabeer’s dismissal was substantively fair, alternatively an
order substituting the compensation award with
a reduced compensation
order.
[2]
Vishen Mahabeer (Mahabeer), the third respondent, opposed the
application.
Background
[3]
Lucchini manufactures forged freight and
railway wheels, including locomotive, freight wagon, and passenger
wheels. Mahabeer was
appointed its Safety, Health, Risk, and Quality
(SHERQ) Manager, effective January 2021. He was dismissed less than
six months
later, in June 2021, following a disciplinary hearing into
alleged misconduct. Before the hearing, he was placed on
precautionary
suspension pending its outcome. He subsequently faced
five misconduct charges, which have been paraphrased for convenience,
as
the charges themselves are lengthy.
[4]
Charge 1 was breach of clause 26(b)(ii) of
the employment contract, which prohibits, during the course of
employment, taking preparatory
steps to become engaged or interested
in any business which competes or intends to compete with Lucchini.
Mahabeer is alleged to
have negotiated his employment with Scaw
Metal/Cast Products, a direct competitor of Lucchini, while employed
by Lucchini.
[5]
Charge 2 was that Mahabeer undermined
management and defied authority by, during a telephone call,
informing Ms Odette Engle (Engle),
the Human Resources (HR) Manager,
that the Managing Director, Mr Stephan Nel (Nel), should consider how
much Lucchini’s Intellectual
Property (IP) was worth to him.
The call occurred while Mahabeer was suspended and while the parties
were attempting to conclude
a mutual separation agreement (MSA). At
the time, Mahabeer had communicated his intention to resign and join
Cast Products. Lucchini
regarded the statement as a ransom demand and
an act of extortion.
[6]
Charge 3 was that Mahabeer had withheld
crucial information from Lucchini during the retrenchment
consultations held between February
and March 2021. The charge is
that during those consultations, Lucchini’s financial,
operational and sustainability information
was shared with all,
including Mahabeer. At the time, Mahabeer was already negotiating his
employment with Cast Products and did
not disclose this fact, which,
according to Lucchini, constitutes dishonesty. The case was further
that had Mahabeer disclosed
that he was negotiating his employment
with Cast Products, the jobs of employees affected by the
retrenchments would have been
saved, as Mahabeer would have been
dismissed for misconduct.
[7]
Charge 4 was gross insubordination and
mutinous behaviour, including refusal or intentional failure to obey
orders or instructions,
in that when Mahabeer was informed of his
suspension and instructed to hand in company property, he refused to
provide Engle with
the laptop password despite repeated requests, and
told her, ‘
you can get it from the
IT service provider
’.
[8]
Charge 5 was gross dishonesty, in that when
he was hired, Mahabeer negotiated and received a relocation fee of
R20 000, but failed
to relocate from Durban to Gauteng, thereby
deceiving Lucchini.
[9]
The disciplinary hearing was held on 23
June 2021, and Mahabeer was dismissed with immediate effect. The
internal appeal failed;
hence, the dispute was referred to the CCMA.
The CCMA proceedings
[10]
Mahabeer represented himself, and Lucchini
was represented by Mr Gert Brink (Brink), who stated that he was an
official of the National
Labour Association (NELA), an employer
organisation. On review, it is alleged that Brink misrepresented his
capacity, as he was,
in fact, Lucchini’s attorney. The response
to the allegation was that Brink was no longer employed by the law
firm representing
Lucchini. If the allegation that Brink
misrepresented himself as an official of an employer organisation
when, in fact, he was
an attorney is true, then this constitutes
dishonesty, which brings the profession into disrepute. He would have
made the misrepresentation
because legal representation is not
permitted in misconduct dismissals. The third respondent’s
attorneys are urged to bring
this judgment to the attention of the
Legal Practice Council (LPC) for further investigation, if Brink is
still registered with
the LPC.
[11]
Returning to the arbitration proceedings,
Lucchini called three witnesses, namely Mr Andre Ehlers (Ehlers), a
Labour Consultant;
Ms Odette Engle (Engle), the Human Resources
Manager; and Mr Stephan Nel (Nel), the Managing Director. Mahabeer
gave evidence in
support of his own case and did not call any
witnesses.
[12]
The CCMA found Mahabeer’s dismissal
to be substantively unfair and ordered that he be paid compensation
equivalent to 12 months'
salary.
Brief synopsis of the
review legal principles
[13]
An award can be set aside on the grounds
set out in section 145 of the LRA. Those grounds are where a
commissioner (i) committed
misconduct in relation to his duties as an
arbitrator, (ii) committed a gross irregularity in the conduct of the
arbitration proceedings,
or (iii) exceeded his powers or where an
award is improperly obtained.
[14]
With some exceptions,
it is now
established that an award can be interfered with on review if it is
one that no reasonable decision-maker would have made.
It is also
trite that the reasonableness or otherwise of an award is considered
on the totality of the evidence, and not on a fragmented,
piecemeal
analysis.
[15]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2]
(
Fidelity
Cash
),
the court stated that the test for determining whether an award is a
reasonable one is a stringent test, ensuring that awards
are not
lightly interfered with. In
Phalaborwa
Mining Co Ltd v Cheetham and Others
[3]
(
Cheetham
),
the court found that this court must defer to the commissioner’s
decision and should interfere with awards only in limited
circumstances.
The
further principle is that there is a distinction between a review and
an appeal, and that a party cannot seek to appeal against
an award
under the guise of a review application.
Grounds of review
[16]
Lucchini raised six grounds of review. Five
concern the not guilty findings on all five charges, and the sixth
concerns the maximum
compensation awarded to Mahabeer.
Charge 1
[17]
Mahabeer was alleged to have breached his
employment contract by seeking alternative employment with Cast
Products, a competitor
of Lucchini, while still employed by Lucchini.
[18]
The commissioner accepted that Lucchini and
Cast Products were competitors, but found that Mahabeer had a right
to seek employment
without permission from Lucchini, and that a
restraint of trade precludes an employee from being employed by a
competitor after
leaving an employer.
[19]
On review, the submission is made that the
commissioner misconceived the nature of the Mahabeer’s
misconduct by focusing on
his right to seek employment with a
competitor, losing sight of the fact that clause 26(b)(ii) of
Mahabeer’s contract of
employment provides that:
‘
During
your employment you shall not, at any time, (whether during or
outside normal working hours) take any preparatory steps to
become
engaged or interested in any capacity whatsoever in any business or
venture which is in or is intended to enter into competition
with any
of the Businesses.’
[20]
It
was submitted that Mahabeer ought to have been found guilty of the
charge because he did not have permission to seek employment
while
employed by Lucchini, and that the not-guilty finding was
unreasonable. It was also submitted that the commissioner failed
to
consider the probabilities of the versions regarding the permission
granted to Mahabeer, which was limited to the automotive
industry. It
was further submitted that the commissioner misdirected himself by
ignoring facts, and that this had a distorting
effect on the outcome.
Reliance was placed on
Minister
of Safety & Security and Another v Madikane and Others,
[4]
which held that it is wrong for a commissioner not to take into
account all relevant evidence and that a failure to weigh the
probabilities to draw inferences and make findings renders an award
unreasonable.
[21]
It was not in dispute that, before securing
the job at Lucchini, Mahabeer disclosed that he had also attended an
interview at Cast
Products, but that he had ended the negotiations
after receiving an employment offer from Lucchini. However, a month
after Mahabeer
joined Lucchini, a short time was introduced. Shortly
thereafter, Lucchini engaged in a section 189 retrenchment process.
As a
result, Mahabeer decided to reopen negotiations for a position
with Cast Products.
[22]
Lucchini’s case that the Mahabeer’s
contract of employment prohibited him from seeking other work with a
competitor
while he was in its employment.
[23]
Such a contractual provision is
unenforceable as it is contrary to public policy. More so for
employees whose employers have implemented
short-time work and are
losing a portion of their salary. While it is true that an employer
prefers its employees to stay on board
and not jump ship, a rule that
prevents them from seeking other opportunities without a quid pro quo
is neither valid nor reasonable.
[24]
Also, no conflict of interest arises when
an employee looks for greener pastures, even with a competitor.
Mahabeer has a right to
freedom of trade, occupation, and profession,
guaranteed by section 22 of the Constitution. That right cannot be
limited by an
employer, in the manner that Lucchini sought to do.
[25]
Even with restraint-of-trade covenants,
they are enforceable only if there is a protectable interest. A
contractual clause that
prohibits seeking employment while employed
would not pass muster, as there is no proprietary interest worthy of
protection. According
to Lucchini’s own account, Mahabeer
played no part in the tender, which Lucchini lost and which was
awarded to Cast Products.
This raises the question of why Mahabeer’s
conduct in negotiating his employment with Cast Products was regarded
as a conflict
of interest.
[26]
The commissioner’s conclusion that
the rule was invalid and that Mahabeer was not guilty is reasonable.
Charge 2
[27]
The charge was that Mahabeer had tried to
extort Lucchini by threatening to use its IP in exchange for a
favourable monetary settlement.
The commissioner found that Mahabeer
had done nothing wrong in raising the issue of IP during settlement
negotiations.
[28]
On
review, it is submitted that the commissioner misconceived the nature
of the misconduct by failing to appreciate that Mahabeer
used
Lucchini’s IP as a bargaining tool to obtain a monetary
settlement, which could be construed as a ransom demand and
extortion, even though the IP never belonged to Mahabeer. It is
further submitted that this is an irregularity. The submission
was
further that Mahabeer was required but did not provide an explanation
for his conduct, when this was required of him. In that
regard,
reliance was placed on
National
Union of Metalworkers of SA on behalf of
Mathonsi
v Scaw Metals (Pty) Ltd & Others
[5]
.
[29]
The commissioner’s finding that it
was not wrong to raise the issue of IP during the negotiation of an
MSA is one that a reasonable
decision-maker could have reached. This
is one of those issues where reasonable decision-makers could have
reached different conclusions,
but provided the conclusion is not one
that no reasonable decision-maker could reach, it cannot be
interfered with on review.
Charge 3
[30]
The charge against Mahabeer was that he had
taken part in the retrenchment process between February and March
2021 and had failed
to disclose that he had been negotiating his
employment with a competitor. The argument was that had Mahabeer
disclosed this fact,
the jobs of other employees would have been
saved, because he would then have been dismissed for misconduct in
that he had breached
the terms of the employment contract, which
prohibited him from seeking alternative employment with a competitor
of Lucchini.
[31]
The commissioner found that Mahabeer could
seek alternative employment during the consultation process and that
Lucchini’s
consent was not required.
[32]
On review, the submission is that the
commissioner committed an irregularity by misconceiving the nature of
the misconduct, focusing
on the right to seek employment while
ignoring that clause 26(b)(ii) of Mahabeer’s contract
prohibited the conduct complained
of.
[33]
Mahabeer had no obligation to disclose to
Lucchini that he was seeking alternative employment, for the reasons
set out above. The
ground of review has no substance and must fail.
Charge 4
[34]
When Mahabeer was suspended, he was
instructed to leave the company property behind. He handed in his
laptop but did not provide
the password, even after it was requested
of him on at least two occasions, including at the gate when Mahabeer
was about to leave
the premises. He informed Engle that he did not
have to do anything, as he had been suspended, and that Engle could
obtain the
password from an IT service provider.
[35]
The commissioner found that Mahabeer was
within his rights to refuse to provide the password, which was his
personal property. The
commissioner also found that Engle could use
an IT service provider to access the laptop.
[36]
On review, it was submitted that the
commissioner ignored the evidence that the password was required to
access the laptop and the
information on it, and that the laptop and
its contents were Lucchini’s property. It was further submitted
that the gross
irregularity prevented the commissioner from properly
evaluating the charge and its elements, resulting in an unfair
hearing. It
was also submitted that the misconduct irreparably
destroyed the trust relationship and that Mahabeer lacked remorse and
accountability.
The final submission on the charge is that the
commissioner misconceived the nature of the misconduct, failed to
appreciate the
misconduct of insubordination and its elements, failed
to properly apply his mind to the evidential material before him, and
that
had he done so, he would have concluded that Mahabeer was guilty
of the misconduct.
[37]
For
Mahabeer, reliance was placed on
TMT
Services & Supplies (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
[6]
,
where
the court stated that the enquiry into the gravity of insubordination
must consider the employer’s action before the
insubordination,
the reasonableness of the instruction and the presence of wilfulness
by the employee.
[38]
There is no merit to this ground of review,
which is clearly an attempt to appeal the award. To bolster its case,
allegations are
made that Mahabeer initially refused to provide his
address and the laptop, and later relented. The charge was confined
to giving
the laptop password.
[39]
In any event, Engle testified that she was
not in a position of authority over Mahabeer. The password was
Mahabeer’s, as he
had created it, but the lack of access did
not prevent Lucchini from accessing the laptop. He testified that he
was upset about
being suspended despite having done nothing wrong.
While one reasonable decision-maker could have found that Mahabeer
could have
provided the password, like the commissioner, other
reasonable decision-makers could understand why Mahabeer refused to
provide
it. Both approaches fall within a band of what is reasonable.
Charge 5
[40]
The charge was that Mahabeer had been paid
R20 000 to relocate from Durban to Johannesburg, yet by the time of
his dismissal, he
still lived in a guest house rather than purchasing
a property or entering into a long-term lease.
[41]
The commissioner found that to require
Mahabeer to stay at his own home was nonsensical.
[42]
On review, it is submitted that at the
disciplinary hearing, Mahabeer admitted wrongdoing, stating that he
used the money to buy
a TV, yet in the arbitration proceedings, he
sought to justify his conduct. The submission was further that
Mahabeer did not comply
with the relocation conditions in that he
failed to permanently relocate and therefore defrauded or
misappropriated funds intended
for relocation costs, thereby
irreparably destroying the trust relationship.
[43]
The commissioner is once again said to have
misconceived the nature of the misconduct, committed a gross
irregularity, deprived
Lucchini of a fair hearing, and that had the
commissioner had regard to the evidential material before him,
specifically the concessions
by Mahabeer during cross-examination, he
would have found Mahabeer guilty and that the conclusion that he was
not guilty is unreasonable.
[44]
Engle testified that during the recruitment
process, Mahabeer requested that the R20 000 allowance be paid to him
in cash so that
he could purchase new items rather than move his
property, and that it was agreed that payment would be made into his
bank account
upon signature of the employment contract. That version
was confirmed by Mahabeer, who explained that during the disciplinary
proceedings,
he agreed he was wrong, but subsequently remembered the
emails confirming Engle's version.
[45]
The relocation allowance was intended for
Mahabeer to purchase new furniture, and his account that he bought a
large TV with the
allowance was not disputed. It was not a term and
condition of the relocation allowance that he should enter into a
long-term lease
or purchase property. He was required to live in
Gauteng to be close to work, and it was not suggested that he did not
live in
Gauteng.
[46]
The commissioner found that all the charges
made it clear that Lucchini was desperate to get rid of Mahabeer. I
agree, and this
charge is the perfect example. Mahabeer commenced
work with Lucchini in January 2021, yet he was only charged with ‘not
relocating’
in June 2021. Engle knew that Mahabeer lived in a
guest house because she had visited him there, and no issues arose
until after
Mahabeer announced his intention to resign and join Cast
Products. This was the real trigger for the charges against Mahabeer,
which the commissioner correctly found were trumped-up.
[47]
There is no merit to this ground of review.
Compensation awarded
[48]
The commissioner awarded Mahabeer 12
months' compensation for the substantively unfair dismissal. In
arriving at that quantum, the
commissioner recorded that he took into
account that Mahabeer was in Lucchini’s permanent employment,
had six months’
service, that his dismissal was grossly unfair
as he did not commit any misconduct, that there was no doubt that the
manner Mahabeer
was dismissed affected him emotionally and
psychologically, that Mahabeer was unemployed and therefore had no
income. The commissioner
found that the charges against Mahabeer were
contrived and trumped up, that Lucchini ‘barred’ Mahabeer
from resigning
and opted to manufacture charges against him and that
the decision to charge Mahabeer was ‘
wrong’
and ‘
vengeful’.
[49]
On
review, the submission was that the commissioner’s recordal in
the award that Mahabeer was unemployed was factually incorrect,
as
Mahabeer’s version was that he found alternative employment at
Wabtec Corporation, effective 1 October 2021. Therefore,
so the
submission went, Mahabeer suffered a loss of less than three months'
salary, and the compensation ought to have been limited
to this loss.
In support of the submission, reliance was placed on decisions of the
Labour Appeal Court in
Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO & Others,
[7]
(Le
Monde)
and
Total
SA (Pty) Ltd v Meyer & Others
[8]
(Meyer).
[50]
It
was also submitted that 12 months' compensation to an employee with
less than six months' service
[9]
was unreasonable, and that the commissioner ought to have awarded
compensation that took into account Mahabeer’s disruptive
conduct during the arbitration proceedings, including his implication
that Nel was a liar and a thief, and his accusation that
he was not
performing his duties as a managing director.
[51]
The submission was also that the
commissioner’s finding that the dismissal affected Mahabeer
emotionally and psychologically
was not supported by any evidence.
[52]
Finally, it was submitted that the
commissioner incorrectly recorded Mahabeer’s monthly salary as
R109 546, which was the
Total Cost to the Company, when it should
have been recorded as R101 600, which was the gross salary. This last
issue can be easily
disposed of. Mahabeer testified that his salary
was R109 546, and later in the proceedings, Brink submitted that the
gross salary
was R101 600. The issue could have easily been resolved
by submitting into evidence Mahabeer’s payslip. The court was
not
referred to the ‘law’ that was relied upon, which
prescribes that compensation is based on gross salary rather than
the
Total Cost to Company. In any event, the final amount to be paid to
Mahabeer is subject to lawful deductions such as Pay As
You Earn.
Therefore, the monthly salary of R109 546 will not be interfered with
on review.
[53]
Turning then to the maximum compensation
awarded, it is correct that Mahabeer testified that he obtained
employment on 1 October
2021, that is, about three months after the
dismissal. The question is whether the compensation must be limited
to this loss or
whether it can also be punitive in nature. Before
addressing that question, I address the question of the nature of the
discretion
that an arbitrator or court exercises when determining
whether to grant compensation, and if so, the quantum thereof.
[54]
In
McGregor
v Public Health & Social Development Sectoral Bargaining Council
& Others
[10]
,
the
Court stated that when a court awards compensation in terms of
section 193(1), the appeal court’s powers to interfere
with
such an award are not circumscribed, and that the court is at large
to reach its own decision if it finds that the decision
is one no
reasonable decision-maker would have reached.
[55]
However,
when it comes to the quantum of compensation in terms of section
194(1), the reasonableness test does not apply
[11]
because the arbitrator or the court
a
quo
granting the compensation exercises a narrow discretion. This means
that on review (of an arbitrator’s compensation award)
or on
appeal (of the court
a
quo
’s
compensation award), the court’s power to interfere is
circumscribed and is limited to (i) a failure to exercise
a
discretion, (ii) exercising the discretion capriciously, or (iii)
exercised the discretion upon a wrong principle, (iv) has not
brought
its unbiased judgment to bear on the question, (v) has not acted for
substantial reasons or (vi) has misconducted itself
on the facts or
(vii) reached a decision in which the result could not reasonably
have been made by a court properly directing
itself to all the
relevant facts and principles. Ultimately, the question is whether
the compensation awarded was just and equitable
to all the parties,
having regard to all the known relevant factors.
[12]
[56]
In this case, the commissioner erred in
recording that, at the time of the arbitration, Mahabeer was
unemployed. Mahabeer testified
that after his dismissal, he found
employment effective 1 October 2021. The question that arises is
whether an award of compensation
must be limited to this financial
loss.
[57]
While several judgments have held that an
employee’s financial loss must be taken into account in
deciding the compensation
to be awarded to an employee, there are
also Labour Appeal Court decisions that have found that financial
loss or patrimonial loss
is an irrelevant consideration.
[58]
In
Le
Monde,
the court held that the purpose of the compensation is to make good
the employee’s loss and not to punish the employer. Similarly,
in
Minister
of Justice and Constitutional Development & Another v
Tshishonga
[13]
,
the
court considered the financial loss suffered by the employee in
arriving at a compensation order. In
Kemp
t/a Centralmed v Rawlins
[14]
and
Meyer,
the
Court also found that financial loss is a relevant consideration in
determining the compensation to be awarded to an employee.
[59]
However,
several decisions have held that compensation is a solatium, and that
patrimonial loss is irrelevant.
[15]
Recently, in
Le
Grange v Visser t/a Skukuza Medical Practice & Another
[16]
(Le
Grange),
the
Labour Appeal Court was called upon to determine whether compensation
for a procedurally unfair dismissal should be limited
to the three
months that an employee was unemployed. The court described the
proposition as fallacious and stated this:
‘
[24]
The proposition is based on a misunderstanding of the difference
between patrimonial damages and a solatium. In
Johnson
& Johnson (Pty) Ltd v Chemical Workers Industrial Union
,
this court explained it as follows:
‘
The
compensation for the wrong in failing to give effect to an employee’s
right to a fair procedure is not based on patrimonial
or actual loss.
It is in the nature of a solatium for the loss of the right, and is
punitive to the extent that an employer (who
breached the right) must
pay a fixed penalty for causing that loss. In the normal course a
legal wrong done by one person to another
deserves some form of
redress. The party who committed the wrong is usually not allowed to
benefit from external factors which
might have ameliorated the wrong
in some way or another. So too, in this instance.’
[25] Dr Visser
totally disregarded Dr Le Grange’s rights. She had to endure
the indignity of unemployment whilst the
other employees returned to
work, albeit for a short period. Compensation equal to three months'
salary is wholly inadequate.’
[60]
The Court awarded compensation in excess of
the three months the employee was off work.
[61]
After reviewing all the above decisions, my
understanding of the legal position is that the quantum of
compensation must be just
and equitable for both parties, taking into
account all relevant factors, including the financial loss or gain
suffered or realised
by an employee as a result of the dismissal, as
applicable. However, the quantum of compensation is not limited to
the employee's
actual financial loss.
[62]
As noted above, the commissioner’s
finding that Mahabeer remained unemployed at the time of the
arbitration proceedings was
factually incorrect, as Mahabeer secured
alternative employment within three months of his dismissal. There is
no doubt that the
commissioner’s error influenced the decision
to award maximum compensation, and this justifies interference with
the quantum
of the compensation award. However, the compensation
cannot be limited to the three months that Mahabeer was out of work.
[63]
The commissioner found that the charges
against Mahabeer were trumped up and a desperate attempt to dismiss
him, and that finding
is correct. Mahabeer did nothing wrong other
than seek greener pastures, which he was legally permitted to do, and
he lost his
job for doing what the law allows. Mahabeer testified
that being placed on administrative leave and later suspended pending
the
outcome of the disciplinary hearing caused him humiliation, and
this account was not gainsaid. The compensation to be granted must
take that into account. Taking these factors into account, a just and
equitable compensation order, which is not meant to punish
Lucchini
but acknowledges both the patrimonial and non-patrimonial loss to
Mahabeer, is, in my view, six months' compensation.
Therefore, the
award of maximum compensation will be reduced to six months' salary.
Costs
[64]
The parties have been partially successful.
However, Mahabeer was put to the great expense of defending a review
application that
challenged the finding that the dismissal was
substantively unfair, when it ought to have been apparent to Lucchini
that it was
seeking to appeal an arbitration award, which it could
not do. Regurgitating the grounds on which an award can be reviewed
is not
sufficient. Litigants are reminded that the ultimate test is
whether the outcome arrived at by the commissioner was one that no
reasonable commissioner could have reached, unless a commissioner
misconceives the nature of the inquiry, which distorts the outcome.
The fact that the compensation award was reduced cannot be used to
deprive Mahabeer of the costs he incurred in opposing the review
application. In this case, a costs order in accordance with the
requirements of law and fairness is that Mahabeer is entitled to
his
costs on a party-and-party scale.
[65]
In the result, the following order is made:
Order
1.
The award is reviewed and set aside, but only to
the extent that the compensation to Vishen Mahabeer is reduced to six
months'.
2.
Lucchini South Africa (Pty) Ltd is ordered to pay
Vishen Mahabeer’s costs.
T Gandidze
Judge
of the Labour Court of South Africa
Appearances:
For
the applicant:
Mr ASL Van Wyk (Heads drafted by Advocate
Grundlingh)
Instructed
by:
Brink & Van Straaten Attorneys
For
the third respondent:
JA
Wehncke
Instructed
by:
Wehncke Inc Attorneys
[1]
Act
66 of 1995, as amended.
[2]
(2008)
29 ILJ 964 (LAC) at para 95.
[3]
(2008)
29 ILJ 306 (LAC) at paras 4 -5.
[4]
(2015)
36 ILJ 1224 (LAC) para 46.
[5]
(2020)
41 ILJ 254 (LC) at para 45.
[6]
[2019]
2 BLLR 142 (LAC)
[7]
(2007)
28 ILJ 2238 (LAC) at para 30.
[8]
(2021)
42 ILJ 1696 (LAC).
[9]
There
was short time for a period of four weeks.
[10]
(2021)
42 ILJ 1643 (CC) at para 28.
[11]
Edumbe
Municipality v Putini and Others
(2020)
41 ILJ 891 (LAC), and
Kukard
v GKD Delkor (Pty) Ltd
[2015] 1 BLLR 63 (LAC).
[12]
Kemp
t/a Centralmed v Rawlins
(2009) 30 ILJ 2677 (LAC).
[13]
(2009) 30 ILJ 1799 (LAC) at para 19 and 22.
[14]
(2009) 30 ILJ 2677 (LAC) at para 30.
[15]
Zeda
Car Leasing (Pty) Ltd v Van Dyk
(2020)
41 ILJ 1360 (LAC),
Association
of Mineworkers & Construction Union & Others v Northam
Platinum Mine Ltd
(2021) 42 ILJ 2565 (LAC),
ARB
Electrical Wholesalers (Pty) Ltd v Hibbert
(2015) 36 ILJ 2989 (LAC),
Bester
v Small Enterprise Finance Agency SOC Ltd & Others
(2020) 41 ILJ 877 (LAC), and
Bester
v Small Enterprise Finance Agency SOC Ltd & Others
(2020)
41 ILJ 877 (LAC).
[16]
(2025)
46 ILJ 947 (LAC).