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[2019] ZALCJHB 328
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Bidair Services (Pty) Ltd v Sekhabisa NO and Others (JR174317) [2019] ZALCJHB 328 (26 November 2019)

THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: JR 1743/17
In
the matter between:
BIDAIR SERVICES (PTY)
LTD                                                           Applicant
and
THABO SEKHABISA N.O.
(AS COMMISSIONER)

First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION

Second Respondent
NUMSA obo SIBANYONI,
PAULUS

Third Respondent
Heard:
19 November 2019
Delivered:
26 November 2019
Summary:
CCMA arbitration proceedings –
review of proceedings, decisions and awards of commissioners –
test for review –
s 145 of LRA 1995 – determination of
gross irregularities and unreasonable outcome
Evidence –
evaluation and determination thereof – arbitrator ignoring
crucial evidence – approach of arbitrator
in deciding matter
irregular – outcome arrived at by arbitrator unsustainable on
the evidence, a misdirection and unreasonable
Dismissal –
dereliction of duties – principles considered – conduct
of employee actually constituting gross negligence
– arbitrator
failing to have proper regard to serious nature of misconduct –
arbitrator having no regard to the essential
requirement of safety in
the aviation industry – finding of substantive unfairness
reviewable
Dismissal –
sanction of dismissal – arbitrator failing to properly consider
the facts and legal principles relating
to the issue of dismissal as
an appropriate sanction – finding that dismissal not being
appropriate unreasonable and reviewable
Review
of award – conclusion of arbitrator irregular and unreasonable
– arbitration award reviewed and set aside –
powers of
the Court under section 145(4) considered – application of
discretion – appropriate in this instance to substitute
award
with award that dismissal substantively fair and not remit matter
back to CCMA
JUDGMENT
SNYMAN. AJ
Introduction
[1]
The
judgment in this instance concerns an application by the applicant to
review and set aside an arbitration award of the first
respondent in
his capacity as a commissioner of the second respondent, the
Commission for Conciliation Mediation and Arbitration
(CCMA). This
application has been brought in terms of section 145 of the Labour
Relations Act
[1]
(the LRA).
[2]
The origins of the current application is
found in the dismissal of the individual third respondent by the
applicant, following
disciplinary proceedings, for misconduct
relating to gross insubordination and dereliction of duties. The
dismissal of the individual
third respondent was then pursued by the
National Union of Metalworkers of South Africa (NUMSA) as an unfair
dismissal dispute,
to the CCMA, and this dispute ultimately came
before the first respondent for arbitration on 30 June 2017.
[3]
The first respondent was called upon to
decide whether the dismissal of the individual third respondent was
substantively fair,
as procedural fairness was not in issue in the
arbitration. Under the heading of substantive fairness, the
individual third respondent
disputed that he committed the misconduct
with which he had been charged, and also placed dismissal as an
appropriate and fair
sanction in issue.
[4]
In an arbitration award dated 10 July 2017,
the first respondent decided that the individual third respondent’s
dismissal
by the applicant was substantively unfair, and afforded the
individual third respondent the consequential relief of reinstatement

with retrospective effect to date of his dismissal, coupled with back
pay in an amount of R132 000.00, being an amount equivalent
to
ten months’ salary. It is this award of the first respondent
that forms the subject matter of the review application brought
by
the applicant.
[5]
The applicant’s review application
was brought on 28 August 2017, and was thus two days outside the six
weeks’ time
limit in terms of section 145(1) of the LRA. The
applicant brought a substantive application for condonation for this
failure.
In addition, the review application itself was opposed by
NUMSA, and their answering affidavit was also filed out of time.
NUMSA
consequently also applied for condonation for this failure.
When this matter was argued before me, neither party opposed the
condonation
application of the other. Having considered both
condonation applications, I was satisfied that good cause had been
shown by both
parties for condonation to be granted, and I
accordingly grant condonation for both the late filing of the
applicant’s review
application, and the answering affidavit of
NUMSA.
[6]
I now turn to considering the merits of the
review application, by first setting out the relevant background
facts in this matter.
The
relevant background
[7]
The applicant conducts business as an
airfreight service provider, and facilitates the transporting of the
freight of a variety
of customers, by air. As such, it works closely
with the various airlines, and is subject to the strict safety
requirements and
stipulations as applicable to the airline industry.
Also, and because the applicant in this instance operates from the OR
Tambo
Airport, which is a key point site, it is also subject the key
point security regulations applicable to such sites.
[8]
For ease of reference in this judgment, I
will refer to the individual third respondent, Paulus Sibanyoni, as
‘Sibanyoni’.
Sibanyoni was employed by the applicant as
the night shift supervisor at its OR Tambo Airport warehouses. He
commenced employment
with the applicant on 6 January 1999. The night
shift commenced at 22h00. Sibanyoni reported to the operations
manager, Joe Fyfer
(‘Fyfer’).
[9]
As a result of security considerations, and
after discussions with staff members, including Sibanyoni, Fyfer
issued an e-mail instruction
to the various managers / supervisors,
with regard to the consolidating and integration of all NS
operations. In terms of this
instruction as contained in an e-mail
dated 25 February 2016, and with effect from 29 February 2016, all
operations were integrated
as one night shift operation, with all
security, save for one, moving to warehouses 4 – 6. As a
result, warehouse 7 had to
be closed from 22h00 to 05h30, with
vehicles parked inside the warehouse, and the doors to the warehouse
closed by security from
the inside. Sibanyoni was directly
responsible for the security of all warehouses, including warehouse
7, and had to ensure that
this instruction was heeded to.
[10]
It appeared that this instruction was
however not adhered to as required. There were a number of instances
referred to in the arbitration
proceedings which happened in July
2016 which showed that the doors of warehouse 7 were wide open with
trucks coming in and out,
long after 22h00. It must have been
patently apparent to Sibanyoni that this was happening. What makes
this more unfortunate is
that Sibanyoni in fact gave the assurance to
the regional manager – Gauteng, Morne Bellingan (Bellingan)
that the instruction
was being adhered to. The failure was only
discovered when a parcel went missing from warehouse 7 in July 2016
and an investigation
ensued, showing the aforesaid state of affairs.
[11]
The answer given by Sibanyoni for this was
that it was not his responsibility to ensure that warehouse 7 was
closed, and that was
the responsibility of the security guard left
there. He also added that during the course of the shift, he was
seeing various clients
at various locations, and could thus not be
held accountable for ensuring that the warehouse is closed. He also
said that it was
the duty of the supervisor with the shift ending at
22h00 to ensure the door was closed. There are however a number of
difficulties
with this explanation, which will be discussed later.
[12]
There was however a far more serious
failure on the part of Sibanyoni, which gave rise to the charge of
dereliction of duty against
him. It is perhaps appropriate in this
regard to pertinently refer to an extract from the job description of
Sibanyoni, which reads
that he must ‘
Ensure
that Manifests / Control sheets are accurate and completed 100%
’.
There is a good reason for this duty, as the facts of this case
properly illustrate.
[13]
In this instance, the applicant had cargo
that was to be transported on Mango Flight JE701 on 26 July 2016,
departing from Lanseria
Airport. The manifest for the cargo showed a
total weight of 1 259.61 kilograms. It is critical that the
manifest must show
the absolute correct weight. As Bellingan
explained, it is a critical component of aviation safety that
aircraft must not be overloaded,
as this may well cause a crash. It
is the duty of the pilots on the aircraft to satisfy themselves as to
the weight of the aircraft
before departure, and in this respect the
cargo manifests form part of the weight calculation. It does not take
a genius to appreciate
that if all cargo service providers provide
manifests to pilots that understate the weight of cargo, such pilots
would be misled
as to the true weight of the aircraft with possible
fatal consequences.
[14]
As stated, it is the specific duty of
Sibanyoni to ensure that the manifest is ‘100%’ correct.
On 26 July 2016, this
did not happen. The driver, Michael Mashigo
(‘Mashigo’) arrived at Lanseria with the cargo concerned
to be laoded on
the aircraft, and then telephoned Sibanyoni,
indicating that 48 parcels were missing from the load, totalling 237
kilograms. But
it turned out that this report by Mashigo was not
correct, and that the parcels were indeed part of the load and that
original
manifest of 1 259 kilograms was correct. However, and
without in any way satisfying himself that the manifest was correct
and that the parcels were or were not part of the load, Sibanyoni
accepted that the manifest simply be amended by hand to reflect
the
weight of the cargo as being 1 022 kilograms. Therefore, what
was conveyed to the pilots was understated by 237 kilograms,
which is
entirely unacceptable.
[15]
This was discovered when the flight arrived
in Cape Town, and the 48 parcels were found to be amongst the cargo.
That was a reportable
safety incident in terms of Civil Aviation
regulations, resulting in an incident report being filed by Mango,
reflecting the safety
incident as being a ‘cargo discrepancy’.
This failure was explained by Sibanyoni as being a ‘miscommunication’

between the driver, Mashigo, and the manifest officer, Lehlohonolo.
Considering the implications, and the clear duties of Sibanyoni
in
this regard, this was an untenable state of affairs and simply not a
proper explanation for such a failure.
[16]
The final issue that gave rise to the
misconduct charges brought against Sibanyoni related to his failure
to prepare a daily regional
flight schedule of flights on which the
applicant could facilitate cargo transport, and then provide this to
the applicant’s
clients so the clients could know when they
could transport cargo. As Bellingan explained, if the clients are not
kept fully up
to date on available flights, they would simply seek
out another service provider in this highly competitive industry. It
is thus
essential that such a daily schedule be prepared and
circulated.
[17]
The evidence was that Sibanyoni should
prepare this schedule and then upload it onto the applicant’s
system, and the applicant’s
system would then automatically
send this information to all clients. It was thus not expected that
Sibanyoni had to actually send
the schedule to clients, and all that
was expected of him was to prepare the schedule and load it on the
system. However, if the
schedule was not prepared, it could not be
sent. It was undisputed that in the period of 19 to 25 July 2016,
Sibanyoni failed to
prepare this flight schedule.
[18]
Once again, and when confronted with this,
Sibanyoni sought to blame everyone else. He blamed other managers and
even the IT department.
He said that preparing the schedule was not
his responsibility, in the face of clear e-mail communication that
indicated the contrary.
These explanations also be dealt with later
in this judgment.
[19]
The upshot of the aforesaid is that on 27
July 2016, Sibanyoni was suspended, followed by a written notice to
attend a disciplinary
hearing to be held on 4 August 2016. He was
charged with gross insubordination relating to the failure to ensure
the closure of
warehouse 7, and dereliction of duties were it came to
the Mango JE701 manifest incident and the failure to prepare the
daily regional
flight schedule. It may be added that there were other
charges contained in the charge sheet as well, but Sibanyoni was not
found
guilty of those charges, which therefore played no role in the
decision to dismiss him, and need not burden this judgment.
[20]
The disciplinary hearing then took place on
4 August 2016, where Sibanyoni pleaded not guilty to the charges. He
was however found
guilty of the charges relating to the three issues
set out above, and ultimately dismissed on 21 September 2016 as a
result of
the sanction of dismissal having been found to be
appropriate for the misconduct concerned.
[21]
Dissatisfied with Sibanyoni being
dismissed, NUMSA, of which Sibanyoni was a member, pursued an unfair
dismissal dispute to the
CCMA, filed on 17 October 2016. The dispute
was unsuccessfully conciliated on 16 November 2016, and then referred
to arbitration
on 15 March 2016. The dispute came before the first
respondent for arbitration on 30 June 2017. Bellingan and Choene
Vinea Sekoadi
(Sekoadi) testified for the applicant, and Sibanyoni
was the only witness that testified in support of his case.
[22]
In deciding this matter, the first
respondent first found that the applicant had failed to lead evidence
on the bulk of the first
charge. As to the issue of the closure of
warehouse 7, which was a part of the first charge, the first
respondent held that Sibanyoni
was not guilty of this charge, because
of the move to warehouse 4 – 6 and that only one security and
cargo handler was left
behind in warehouse 7. The first respondent
also accepted that it was the duty of the supervisor whose shift
ended at 22h00 to
ensure the warehouse was closed. Lastly, the first
respondent held that because Sibanyoni moved to different places
during the
course of his shift, he may not be aware that the door of
warehouse 7 is open. For all these reasons, the first respondent
concluded
that Sibanyoni was not guilty of the first charge.
[23]
The first respondent next dealt with what
he called the third charge, being the charge relating to the duty of
the applicant to
prepare a daily regional flight schedule, so this
information could be sent to clients. The first respondent himself
was highly
critical, in his award, of the defences raised by
Sibanyoni to this charge. He called the defences a ‘
bare
denial of his responsibilities
’.
He further rejected the attempts of Sibanyoni to shift blame for the
failure to prepare these schedules to other employees.
The first
respondent then accepted that it was part of the duties of Sibanyoni
to prepare this daily regional flight schedule,
and that he had
failed to discharge this duty.
[24]
The first respondent then finally dealt
with the issue relating to the manifest of Mango flight JE701. The
first respondent accepted
that this manifest was incorrect. The first
respondent also accepted that the duty was squarely on Sibanyoni to
have ensured that
this manifest was correct. He added that Sibanyoni
failed to communicate with the airline about the cargo that according
to Sibanyoni
was not manifested and not loaded. The first respondent
accordingly accepted that Sibanyoni was guilty of this charge.
[25]
The first respondent then turned to the
issue of an appropriate sanction. He considered that Sibanyoni had a
clean disciplinary
record, because past warnings had expired. He
considered that there was no evidence that the dereliction of duties
of Sibanyoni
was persistent, and what happened was a single act. He
also held that the misconduct in question was not serious, there was
no
complaint from the client or the airline, and the neglect was not
shown to have ‘
disastrous
consequences
’. For these reasons,
the first respondent concluded that the sanction of dismissal was not
appropriate in this instance.
[26]
The first respondent there decided that the
dismissal of Sibanyoni was substantively unfair. The first respondent
directed that
Sibanyoni be reinstated with retrospective effect to
date of his dismissal on 21 September 2016, with full back pay until
then,
as set out above. This prompted the current review application,
which I will now turn to deciding by first setting out the applicable

test for review.
The
test for review
[27]
The
test for review is trite. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[2]
the
Court held that ‘
the
reasonableness standard should now suffuse s 145 of the LRA
’,
and that the threshold test for the reasonableness of an award was:
‘…
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?...’
[3]
.
In
Duncanmec
(Pty
)
Ltd v Gaylard NO and Others
[4]
the Court succinctly summarized the test as follows:
‘
This
test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether
it agrees
with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with the reasons
is not
material.
The
correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there
are
reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by
rational
reasons.
’
[28]
It
is always necessary and important for the Court to enquire into and
consider the merits of the matter in deciding what is reasonable.
[5]
In
Herholdt
v Nedbank Ltd and Another
[6]
the
Court said:
‘…
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to the particular facts, are not in
and of
themselves sufficient for an award to be set aside, but are only of
consequence if their effect is to render the outcome
unreasonable.
’
[29]
What this means is a two stage review
enquiry. Firstly, the review applicant must establish that there
exists a failure or error
on the part of the arbitrator. If this
cannot be shown to exist, that is the end of the matter. Secondly, if
this failure or error
is shown to exist, the review applicant must
then further show that the outcome arrived at by the arbitrator was
unreasonable.
If the outcome arrived at is nonetheless reasonable,
despite the error or failure that is equally the end of the review
application.
In short, in order for the review to succeed, the error
or failure must affect the reasonableness of the outcome to the
extent
of rendering it unreasonable.
[30]
Further,
the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator,
as to whether the
outcome the arbitrator arrived at can nonetheless be sustained as a
reasonable outcome, even if it may be for
different reasons or on
different grounds.
[7]
This
necessitates a consideration by the review court of the entire record
of the proceedings before the arbitrator, as well as
the issues
raised by the parties before the arbitrator, with the view to
establish whether this material can, or cannot, sustain
the outcome
arrived at by the arbitrator. In the end, it would only be if the
outcome arrived at by the arbitrator cannot be sustained
on any
grounds, based on that material, and the irregularity, failure or
error concerned is the only basis to sustain the outcome
the
arbitrator arrived at, that the review application would succeed.
[8]
[31]
Against the above principles and test, I
will now proceed to consider the applicant’s application to
review and set aside
the arbitration award of the first respondent.
Grounds
of review
[32]
In this case, there is no cross review. As
such, the findings of the first respondent that Sibanyoni committed
the misconduct as
contemplated by the charges in respect of the Mango
JE701 manifest and the preparation of the regional daily flight
schedule, stand.
In this regard, the ground of review raised by the
applicant is directly aimed at the decision of the first respondent
that dismissal
was an inappropriate sanction for this misconduct. In
short, and according to the applicant, the first respondent’s
decision
on sanction ignored and negated pertinent evidence,
constituted a failure to apply requisite legal principles, and was a
misdirection,
to the extent of rendering such determination
unreasonable.
[33]
The applicant also takes issue with the
first respondent’s finding where it comes to the charge in
respect of the closure
of warehouse 7. According to the applicant,
the first respondent also failed to have proper regard to, and in
essence ignored pertinent
evidence, especially considering that there
was a direct duty imposed on Sibanyoni to ensure the security of the
warehouse.
[34]
This judgment will focus on these two
review grounds, which I will now deal with below.
Analysis
[35]
From the outset, I must say that I have
sympathy for Mr Mabaso, the attorney representing NUMSA in Court, who
came into the matter
right at the very end. He inherited a case that
was in my view already broken. Mr Mabaso, who clearly properly read
and considered
the record and arbitration award in this case,
appreciated the difficulties with the award of the first respondent,
and in effect
conceded that the award should be reviewed and set
aside. In this respect, this was the responsible course of action to
take, and
for this he cannot be faulted. However, and what Mr Mabaso
suggested is that the consequential relief to be granted once the
award
is reviewed and set aside is not that of substitution, but
rather that the matter be remitted back to the CCMA for arbitration
de novo
.
This contention I will deal with later in this judgment.
[36]
Despite the concession of Mr Mabaso as to
the merits of the review application, this Court must still satisfy
itself that the applicant
has met the necessary thresholds to justify
the reviewing and setting aside of the award of the first respondent.
Having considered
the record in this matter, and for the reasons to
follow, I am satisfied that this threshold has been met, and that the
applicant
has made out a proper case that the award of the first
respondent falls to be reviewed and set aside.
[37]
I will commence with the first charge
relating to the closure of warehouse 7. From the outset, the first
respondent misdirected
himself where it came to the evidence relating
to this charge. According to the first respondent, the move to
warehouse 4 –
6 negated this charge. But the opposite is true.
It is precisely the move to warehouse 4 – 6 that gave rise to
the instruction
which then formed the basis of the charge. Because of
the move to warehouse 4 – 6, all that remained behind in
warehouse
7 for the night shift was one security and one controller.
That is precisely why the warehouse needed to be secured by locking
it from the inside, with the vehicles parked inside, and not
conducting operations out of it. If this was not done, and with the

limited personnel therein, it would be a security risk. The first
respondent thus unfortunately got his evaluation of the evidence
in
this regard all wrong.
[38]
Next, and in terms of the undisputed duties
of Sibanyoni as night shift supervisor, he was responsible for the
security of all the
warehouses in the course of his shift, which
included warehouse 7. It simply cannot be correct to say that the
responsibility to
close warehouse 7 rested with the supervisor going
off duty at 22h00. The reason why this cannot be correct is one of
common sense
and logic. The supervisor preceding Sibanyoni coming on
duty still operates out of warehouse 7 until 22h00. When Sibanyoni
comes
on duty, operations are limited to warehouses 4 – 6 and
warehouse 7 is closed until 05h30. It must surely follow that it is

Sibanyoni that must ensure warehouse 7 is shut for the rest of the
night.
[39]
One also cannot escape a material
contradiction in the defences raised by Sibanyoni where it came to
this charge. On the one hand,
he stated that the duty to close and
lock the warehouse rested with the security and controller in the
warehouse and the instruction
was directed at them. But when
confronted with his duty to ensure the security of the warehouse, he
says that he did comply with
the instruction, but he was not always
able to monitor that the warehouse was closed because he was required
to move around to
see clients. In any event, a proper consideration
of the instruction of 25 February 2016 shows that it is clearly
directed at Sibanyoni.
The first respondent had no regard to any of
this evidence, or contradictions in the explanation.
[40]
But even of the explanation of Sibanyoni
that he had to move around to see clients is considered, there is the
undisputed testimony
of Bellingan that moving around to see clients
was not part of his job, and if he chose to do so, that was of his
own accord and
could excuse him from ensuring the security of
warehouse 7. The further testimony of Bellingan was that warehouse 7
was wide open
with trucks moving in and out, and as far he was
concerned it was simply not possible that Sibanyoni would not have
noticed this.
None of this evidence was dealt with or referred to by
the first respondent in his award, and instead the first respondent
simply
plumbed for the explanation of Sibanyoni.
[41]
Overall considered, it is my view that the
first respondent’s finding that Sibanyoni did not committed
misconduct where it
came to the charge in respect of warehouse 7 is
unsustainable, if proper regard is had to the evidence, and
probabilities, as a
whole. There was clearly an instruction given to
Sibanyoni to ensure that warehouse 7 was closed and locked between
the hours of
22h00 and 05h30. Sibanyoni failed to carry out this
instruction. The finding of the first respondent that Sibanyoni
committed no
misconduct in this regard accordingly falls to be
reviewed and set aside.
[42]
This
then only leaves the issue of dismissal as an appropriate sanction.
From the outset, I must express my grave concerns about
the findings
of the first respondent where it comes to the severity of the
misconduct and the possible consequences thereof, where
it comes to
the Mango JE701 manifest charge. In the airline industry, safety is
of paramount importance. Everything functions on
the basis of
checking and double checking. The reason why this the case is because
if this does not happen, people die. Bellingan
said so in so many
words. For the first respondent to simply negate this, as he did,
without any proper cause or reason, is an
untenable proposition. In
Harmony
Gold Mining Co Ltd v Commission for Conciliation, Mediation and
Arbitrtation and Others
[9]
the Court said:
‘
In
my view the commissioner in the present instance failed to attach
sufficient weight to the evidence led by the applicant's witnesses

concerning all charges that were brought against the fourth
respondent and in particular that contravention of a
safety
rule and procedure
amounts to very serious misconduct which could lead to loss of life
and thus warrant dismissal.
’
[43]
The
weight of an aircraft is a critical safety consideration. An
imbalanced or overweight aircraft is an accident waiting to
happen.
[10]
It is the duty and
responsibility of the pilots on the aircraft to decide if it is safe
to fly. One of the considerations that
must be taken into account
when making this decision is a calculation of the take-off weight of,
and distribution of weight in,
the aircraft.
Part of what is used in that calculation is the cargo manifests. If
those manifests are wrong,
the calculation is wrong, and that
directly compromises the safety of the aircraft. That is surely why
the job description of Sibanyoni
specifically says that his duty is
to ensure that the manifest is ‘
100%
’
correct.
[44]
In
this case, what was ultimately loaded onto the aircraft was 1 259
kilograms in cargo. But what the manifest showed that
was presented
to the flight crew was 1 022 kilograms. It is understated by 237
kilograms. Assuming this may happen with all
other cargo service
providers, the take-off weight may be thousands of kilograms more
than what the flight crew think it is. It
does not take a genius to
appreciate how serious a safety violation this is. That is why it is
a reportable incident. As a general
proposition, the failure of an
employee to follow critical safety requirements is the kind of
misconduct that is deserving of dismissal.
[11]
One can hardly do better than refer to the following
dictum
in
Sasol
Mining (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[12]
:
‘…
Safety
of employees at the
workplace is paramount. It cannot be compromised. An employer cannot
be expected to wait until an employee is
maimed or has lost his or
her life, before taking decisive action against an employee who has
exposed fellow employees to danger.
… ‘
The
first respondent completely misunderstood what the misconduct
actually was, and that, in my view, is a material failure that

renders the outcome unreasonable.
[45]
This brings me neatly the finding of the
first respondent that the airline did not complain. Not true at all.
Mango filed a formal
safety report with regard to the incident in
terms of the civil aviation regulations. If that is not a complaint,
it is difficult
to comprehend what would be. This is therefore
another piece of critical evidence the first respondent simply
negated.
[46]
In my view, and where it comes to the Mango
JE701 manifest charge, it is extremely serious misconduct with
potentially drastic consequences
that justifies the sanction of
dismissal. Added to this, the complete failure by Sibanyoni to
appreciate how he failed and what
the consequences of this failure
could be, and then to own up to it with a commitment that he will
ensure it does not happen again,
is also telling where it comes to
the destruction of the employment relationship and the justification
of dismissal as a sanction.
[47]
The consequences of the failure to secure
warehouse 7 is also serious. As Bellingan explained, safety and
security is one of the
specific requirements of being allowed to
operate a warehouse at the airport, and the applicant could possibly
lose its ACSA licence
to do so if it is found wanting. Bellingan also
explained the serious consequences to the applicant if its clients do
not receive
the daily regional flight schedule, which forms the very
basis of them approaching the applicant for cargo transport. In
short,
this explanation by Bellingan, which was not contradicted, was
that the clients would simply immediately go to a competitor to find

a possible available flight in what is an extremely competitive
industry.
[48]
In
summary, and where it comes to the issue of an appropriate sanction,
the first respondent failed to consider critical and essential

evidence, as well as all the required principles where it comes to
deciding whether dismissal was an appropriate sanction, rendering
the
outcome he arrived at that dismissal was inappropriate in this
instance to be entirely unreasonable.
As
said
in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[13]
:
‘
Where the
arbitrator fails to have regard to the material facts it is likely
that he or she will fail to arrive at a reasonable
decision. …’
[49]
As
to the general principles applicable to deciding whether dismissal is
an appropriate sanction, it must first be said that it
is not the
function of the first respondent as arbitrator to decide whether he
would have dismissed Sibanyoni or not. In deciding
whether dismissal
as a sanction is fair, an arbitrator does not decide the issue on the
basis of a clean slate, so to speak, as
if the arbitrator was the
employer. The premise upon which the issue of dismissal as a fair
sanction must be decided is that of
deciding whether what the
employer did in dismissing the employee was fair. In short, whilst
the arbitrator must not defer to the
employer, the arbitrator must
not act as if he or she was the employer.
As
was said by Ngcobo J in
Sidumo
supra
:
[14]
‘…
the
commissioner… does not start with a blank page and determine
afresh what the appropriate sanction is. The commissioner's

starting-point is the employer's decision to dismiss. The
commissioner's task is not to ask what the appropriate sanction is
but
whether the employer's decision to dismiss is fair’
[50]
In
deciding whether the employer acted fairly in deciding to dismiss an
employee, a variety of factors must be considered, as a
whole.
[15]
These are, in sum: (1) the importance of the rule that had been
breached (seriousness of the misconduct); (2) the reason the employer

imposed the sanction of dismissal; (3) The explanation presented by
the employee for the misconduct; (3) the harm caused by the

employee's conduct; (4) whether additional training and instruction
may result in the employee not repeating the misconduct; (5)
the
service record of the employee; (6)
the
breakdown of the trust / employment relationship between the employer
and employee; (7) the existence or not of dishonesty;
(8) the
possibility of progressive discipline; (9) the existence or not of
remorse; (10) the job function of the employee; and
(11) the
employer’s disciplinary code and procedure.
[16]
Not all the factors are always relevant to a particular case, so only
those that are relevant must be identified, and considered.
[17]
In general terms, what requires consideration by an arbitrator was
articulated in
Vodacom
(Pty) Ltd v Byrne NO and Others
[18]
as
follows:
‘…
the
determination of the fairness of a dismissal required a commissioner
to form a value judgment, one constrained by the fact that
fairness
requires the commissioner to have regard to the interests of both the
employer and the worker and to achieve a balanced
and equitable
assessment of the fairness of the sanction …’
[51]
The
above being the applicable principles, what must be done next is to
apply the facts to the principles that are relevant to this
case, and
then to consider whether the outcome arrived at by the first
respondent that dismissal was not appropriate is reasonable.
As a
point of departure, and as discussed above, there can be no doubt
that the misconduct in this case is serious. What is called

‘dereliction of duties’ in this case, is in essence
nothing else but gross negligence on the part of Sibanyoni. It
is
trite that gross
negligence constitutes the kind of misconduct where dismissal would
normally be justified.
[19]
Also in this case, this is exacerbated by the fact that it is
directly linked to safety issues.
[52]
The explanation offered by Sibanyoni for
his misconduct is not acceptable. He in essence has no explanation
for the failure in respect
of the Mango JE701 manifest issue, other
than that two of his subordinates ‘misunderstood’ each
other. He does not
even acknowledge his responsibility to ensure that
the manifest was correct and his own rule in causing an incorrect
manifest to
be provided. Next, his explanation about the failure to
prepare the daily regional flight schedule and blaming a number of
other
employees for the failure was found by the first respondent
himself to be false. In the end, there are at least two gross
failures
in this case that stand unexplained.
[53]
It follows that the first respondent’s
misconduct in this instance is serious and there exists no acceptable
explanation to
try and justify or mitigate this misconduct. There is
accordingly nothing that can detract from the consequences of such
serious
misconduct. Added to that, the misconduct exposes the
applicant to severe potential harm, being the loss of its licence to
operate
in addition to possibly being responsible for an aircraft
crash. The approach of the first respondent is in fact tantamount to
derogating the misconduct to something far less than what it actually
was, thereby unreasonably negated a critical factor that indicated

that dismissal would be a fair sanction in this case.
[54]
Next,
Sibanyoni showed no true remorse, and never actually acknowledged
wrongdoing. He did not plead guilty in the disciplinary
hearing,
which is of course the first indicator of genuine remorse.
[20]
He sought to blame everyone else for his own failures. He, throughout
the arbitration, either tried to justify what he did, or
contended he
did nothing wrong. This approach persisted at arbitration. As dealt
with above, several explanations he gave to justify
his failures were
false. True remorse was explained in
Absa
Bank Ltd v Naidu and Others
[21]
as follows:
‘…
Therefore,
the crucial question is whether it could be said that Ms Naidu's
utterances empirically and objectively translated into
real and
genuine remorse. In
S v Matyityi
,
the Supreme Court of Appeal remarked as follows on this issue:
'There
is, moreover, a chasm between regret and remorse. Many accused
persons might well regret their conduct, but that does not
without
more translate to genuine remorse. Remorse is a gnawing pain of
conscience for the plight of another. Thus genuine contrition
can
only come from an appreciation and acknowledgement of the extent of
one's error. Whether the offender is sincerely remorseful,
and not
simply feeling sorry for himself or herself at having been caught, is
a factual question. It is to the surrounding actions
of the accused,
rather than what he says in court, that one should rather look. In
order for the remorse to be a valid consideration,
the penitence must
be sincere and the accused must take the court fully into his or her
confidence. Until and unless that happens,
the genuineness of the
contrition alleged to exist cannot be determined. After all, before a
court can find that an accused person
is genuinely remorseful, it
needs to have a proper appreciation of, inter alia: what motivated
the accused to commit the deed;
what has since provoked his or her
change of heart; and whether he or she does indeed have a true
appreciation of the consequences
of those actions.’
’
[55]
Without
the requisite remorse, it is not possible to restore the relationship
of trust that forms the foundation of the employment
relationship. In
De
Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[22]
the
Court said:
‘…
Acknowledgment
of wrong doing is the first step towards rehabilitation. In the
absence of a re-commitment to the employer's workplace
values, an
employee cannot hope to re-establish the trust which he himself has
broken.
’
Sibanyoni
fell far short where it came to this. The first respondent acted
unreasonably in failing to appreciate this.
[56]
The
first respondent placed emphasis on Sibanyoni’s long service
and clean disciplinary record. I accept that there is nothing
wrong
in doing so, and it is of course an important factor any arbitrator
should consider. But certain misconduct is so serious
that long
service and a clean record cannot save an employee from dismissal.
This was specifically recognized in
Toyota
SA Motors (Pty) Ltd v Radebe and Others
[23]
,
where the Court said:
‘
Although a long
period of service of an employee will usually be a mitigating factor
where such employee is guilty of misconduct,
the point must be made
that there are certain acts of misconduct which are of such a serious
nature that no length of service can
save an employee who is guilty
of them from dismissal. …'
The
matter
in casu
is in my view such a case.
[57]
The
first respondent had no regard to the undisputed testimony by
Bellingan that the trust relationship had been destroyed. As
Bellingan explained, and considering the failures in this case, how
could Sibanyoni be trusted to diligently execute his core
responsibilities,
especially considering the nature of his position
and that he was the one where, in effect, the buck stopped on the
night shift.
The absence of such a trust relationship in this case
worked in favour of dismissal as being considered a fair sanction,
and is
a factor which, as said above, the first respondent had no
regard to at all.
T
he
following
dictum
in
Miyambo
v CCMA and Others
[24]
is
apposite,
where
it was held:
‘
It
is appropriate to pause and reflect on the role that trust plays in
the employment relationship. Business risk is predominantly
based on
the trustworthiness of company employees. The accumulation of
individual breaches of trust has significant economic repercussions.

A successful business enterprise operates on the basis of trust...
’
[58]
Another factor to consider is that the
disciplinary code of the applicant provides for dismissal as a
competent sanction for the
disregard of safety rules or common safety
practices. The first respondent did not refer to this at all.
[59]
The
first respondent held that the misconduct in his case was a single
occurrence and not persistent. Presumably, the first respondent
had
in mind the consideration that it was unlikely that Sibanyoni would
repeat the mistake again, and as such, progressive discipline
was
justified. In my view, it however simply cannot be expected of the
applicant to run this risk, especially considering the serious
nature
of the misconduct and the persistent refusal by Sibanyoni to
acknowledge any wrongdoing on his part. In the end, and considering

what happened in this case, the applicant was in my view entitled to
consider it too much of a risk to continue with an employment

relationship with Sibanyoni. As said in
De
Beers supra
[25]
:
‘
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be, a sensible operational

response to risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely

dismissed. Their dismissal has little to do with society's moral
opprobrium of a minor theft; it has everything to do with the

operational requirements of the employer's enterprise.'
[60]
In sum, and where it comes to the first
respondent’s determination on the issue of dismissal as an
unfair sanction, there
exist a number of fundamental failures. He
failed to have proper regard to the seriousness of the misconduct. He
failed to consider
the issues of the complete absence remorse and the
destruction of the trust relationship, as important factors
justifying dismissal.
He failed to consider the potential prejudice
suffered by the applicant, the provisions of the disciplinary code,
and the particular
position of trust and duties of Sibanyoni. He has
no regard to the critical safety considerations, and the absence of
any acceptable
explanation by Sibanyoni for his failures. All these
factors far outweigh the long service and clean disciplinary record
of Sibanyoni,
and eliminate the prospect of possible progressive
discipline.
[61]
Overall
considered, and if the first respondent had proper, reasonable and
rational regard to all of these factors, the only reasonable

conclusion he could have arrived at is that the dismissal of
Sibanyoni was justified, and fair. It can hardly be better described

than the following
dictum
in
Solari
v Nedbank Ltd and Others
[26]
where
the Court said the following, specifically referring to conduct of a
commissioner where it came to deciding if dismissal was
an
appropriate sanction:
‘…
it
is clear on the totality of the evidence before the commissioner that
he did not properly consider all the evidence and therefore
arrived
at a conclusion that a reasonable decision maker could not reach then
the award ought to be set aside. The same will apply
when the
commissioner makes certain inferences from the proven facts that are
totally out of sync with those facts. The inference
reached without a
proper consideration of the proven facts would be an unreasonable
decision or a decision which a reasonable decision
maker could not
reach’
[62]
For
all the reasons as set out above, it is my view that any
determination by the first respondent in his award to the effect that

that the dismissal of Sibanyoni was not an appropriate or fair
sanction is grossly irregular, and resorts well outside the bands
of
what may be considered to be a reasonable outcome.
[27]
As such, the award of the first respondent falls to be reviewed and
set aside.
Conclusion
[63]
Therefore, I conclude that the first
respondent’s finding that the dismissal of Sibanyoni was
substantively unfair cannot
be sustained, and falls to be reviewed
and set aside. It is clear that the only reasonable outcome the third
respondent could have
arrived at, considering the evidence as a whole
and the applicable principles of law, had to be that the first
respondent earned
his dismissal, which was a justified and fair
sanction in the circumstances.
[64]
I
now turn to the passionate plea by Mr Mabaso that this matter, with
the award of the first respondent having been reviewed and
set aside,
be remitted back to the CCMA for arbitration
de
novo
.
In terms of section 145(4) of the LRA,
[28]
I have a wide discretion where it comes to the issue of consequential
relief to be afforded to a review applicant, once it is decided
that
the arbitration award be reviewed and set aside.
[65]
Mr
Mabaso argued that it was the most fair solution for this matter to
be remitted back to the CCMA for arbitration
de
novo
.
He referred me to the fact that several of the versions offered by
Sibanyoni in giving his evidence were never put to the applicant’s

witnesses when they were cross examined, and it would thus be
appropriate if this could be ventilated with such witnesses in an

arbitration
de
novo
.
However, the immediate problem with this argument is that the failure
to put a version to an opponent’s witness has a trite

consequence prescribed by law, and this failure cannot serve as some
basis of justification to then get a second bite at the cherry.
The
legal principle deteriming the consequence of such a failure was
described in
ABSA
Brokers (Pty) Ltd v Moshoana NO and Others
[29]
as
follows:
‘…
A
failure to cross-examine may, in general, imply an acceptance of the
witness’ testimony…
And in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[30]
the
Court said the following:
‘…
The
effect of the failure to put such an important issue to the
third respondent under cross-examination must mean that this
evidence
must be disregarded….’
[66]
I
am thus compelled to decline Mr Mabaso’s invitation to remit
this matter to the CCMA for arbitration
de
novo
before another arbitrator for the reason mentioned above. All
considered, the core factual matrix in this matter was mostly
undisputed,
and all the evidence was properly before me in a record
that was in all respects complete. There is simply no need to go
through
the whole exercise of arbitration again. This matter dates
back to 2017, and it would be contrary to the fundamental principle
of the expeditious resolution of employment disputes to have this
matter start all over again at arbitration.
[31]
This is especially so where I am actually in the proper position to
bring it to an end.
[32]
In
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others
[33]
it was held:
‘
Where
all the facts required to make a determination on the disputed issues
are before a reviewing court in an unfair dismissal
or unfair labour
practice dispute such that the court 'is in as good a position' as
the administrative tribunal to make the determination,
I see no
reason why a reviewing court should not decide the matter itself.
Such an approach is consistent with the powers of the
Labour Court
under s 158 of the LRA, which are primarily directed at remedying a
wrong, and providing the effective and speedy
resolution of disputes.
The need for bringing a speedy finality to a labour dispute is thus
an important consideration in the determination
by a court of review
of whether to remit the matter to the CCMA for reconsideration or
substitute its own decision for that of
the commissioner. Thus, where
the issues are largely common cause, the pleadings comprehensive, the
full record of both the disciplinary
and arbitration proceedings are
before the court, and there has been a elapse of almost 20 months
from the date of dismissal to
the date of finalisation of the review
application, such as in this case, the consideration of bringing the
dispute to a speedy
finality would certainly have a bearing on the
decision of the reviewing court to decide the dispute, and not remit
it to the CCMA,
because it is 'in as good a position' as the CCMA to
do so.’’
[67]
I therefore consider it appropriate and
justified to finally determine this matter. I shall accordingly
substitute the arbitration
award of the first respondent with an
award that the dismissal of Sibanyoni by the applicant was
substantively fair.
Costs
[68]
This
then only leaves the issue of costs. In terms of the provisions of
section 162(1) of the LRA, I have a wide discretion where
it comes to
the issue of costs. Even though
the
applicant was successful, I do not intend to burden the third
respondent with a costs order, especially considering the opportunity

afforded to me to bring this matter finally to an end. Mr Hutchinson,
for the applicant, in any event did not press the issue of
costs.
There is also an ongoing relationship between NUMSA and the
applicant. I am also mindful of the
dictum
of the Constitutional Court in
Zungu
v Premier of the Province of Kwa-Zulu Natal and Others
[34]
where
it comes to costs awards in employment disputes before this Court,
and I do not consider there to be sufficient reason to
depart from
this.
I
accordingly exercise my discretion as to costs in this matter by
making no order as to costs.
[69]
In the premises, I make the following
order:
Order
1.
The applicant’s review application is
granted.
2.
The arbitration award of the first
respondent, arbitrator T Sekhabisa, dated 10 July 2017 and issued
under case number GAEK 10117
– 16, is reviewed and set aside.
3.
The arbitration award is substituted with
an award that the dismissal of the individual third respondent,
Paulus Sibanyoni, by the
applicant, was substantively fair.
4.
There is no order as to costs.
_____________________
S. Snyman
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:

Advocate W Hutchinson
Instructed
by:

Moodie & Robertson Attorneys
For
the Third Respondent:
Mr S Mabaso of S Mabaso Inc Attorneys
[1]
Act
66 of 1995 (as amended).
[2]
(2007)
28 ILJ 2405 (CC).
[3]
Id
at para 110. See also
CUSA
v Tao Ying Metal Industries and Others
(2008)
29 ILJ 2461 (CC)
at para 134;
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
(2008)
29
ILJ
964 (LAC) at para 96.
[4]
(2018)
39 ILJ 2633 (CC) at paras 42 – 43
[5]
Id at para 41.
[6]
(2013)
34
ILJ
2795 (SCA)
at
para 25. See also
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
(2014)
35 ILJ 943 (LAC) at para 14;
Monare
v SA Tourism and Others
(2016) 37 ILJ 394 (LAC) at para 59;
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate
(2015) 36 ILJ 968 (LAC) at paras 15 – 17;
National
Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others
(2015) 36 ILJ 2038 (LAC) at para 16.
[7]
Fidelity
Cash Management Service (supra)
at
para 102.
[8]
See
Campbell
Scientific Africa (Pty) Ltd v Simmers and Others
(2016)
37 ILJ 116 (LAC) at para 32;
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others
(2015)
36 ILJ 1453 (LAC) at para 12.
[9]
(2013)
34 ILJ 912 (LC) at para 26.
[10]
As for example happened in the case of Fine Air Flight 101 on 7
August 1997 in Miami, Florida, where major contributing factors
to a
fatal accident was the
failure
of Fine Air to exercise operational control over the cargo loading
process; and the failure of Aeromar (a cargo service
provider such
as the applicant) to load the airplane as specified by Fine Air,
resulting in an overloaded and imbalanced aircraft
– see the
United States National Transportation Safety Board report issued
under reference
NTSB/AAR-98/02
dated 16 June 1998
.
[11]
See
National
Union of Mineworkers and Others v Sibanye Gold Ltd (Kloof Division)
and Others
(2018)
39 ILJ 2476 (LAC) at para 17;
Impala
Platinum Ltd v Jansen and Others
[2017]
4 BLLR 325
(LAC) at para 17;
of
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 35;
Eskom
Holdings Soc Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[2019] JOL 42300 (LC) at
paras 55 and 74.
[12]
(2015)
36 ILJ 2359 (LC) at para 6.
[13]
(2014) 35 ILJ 943 (LAC) at para 21. See also:
Pam
Golding Properties (Pty) Ltd v Erasmus and Others
(2010)
31 ILJ 1460 (LC) at para 6.
[14]
Id
at
para 178. See also the judgment if Navsa J in
Sidumo
(Id fn 2) at para 79 where the learned Judge said: ‘…
In
terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given the power
to
consider afresh what he or she would do, but simply to decide
whether what the employer did was fair. In arriving at a decision
a
commissioner is not required to defer to the decision of the
employer. …
’
[15]
See
Sidumo
(
supra
)
at
para 78
[16]
National
Commissioner of the SA Police Service v Myers and Others
(2012)
33 ILJ 1417 (LAC) at
para 82;
Bridgestone
SA (Pty) Ltd v National Union of Metalworkers of SA and Others
(2016)
37 ILJ 2277 (LAC) at paras 17 – 18;
Woolworths
(Pty) Ltd v SA Commercial Catering and Allied Workers Union and
Others
(2016) 37 ILJ 2831 (LAC) at para 14;
Msunduzi
Municipality v Hoskins
(2017) 38 ILJ 582 (LAC) at para 30;
Eskom
Holdings Ltd v Fipaza and Others
(2013)
34 ILJ 549 (LAC) at para 54;
Samancor
Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries
Bargaining Council and Others
(2011)
32 ILJ 1057 (LAC) at para 34;
Mutual
Construction Co Tvl (Pty) Ltd v Ntombela NO and Others
(2010)
31 ILJ 901 (LAC) at paras 37 – 38;
Fidelity
Cash Management (
Id
fn 3
)
at
para 94.
[17]
See for example
Duncanmec
(Id fn 4) at para 46.
[18]
(2012)
33 ILJ 2705 (LC) at para 9. See also
Wasteman
Group v SA Municipal Workers Union and Others
(2012)
33 ILJ 2054 (LAC) at 2057G-I.
[19]
See
Nampak
Corrugated Wadeville v Khoza
(1999)
20 ILJ 578 (LAC)
at para 35.
[20]
See:
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2015)
36 ILJ 2273 (LAC)
at para 23.
[21]
(2015)
36 ILJ 602 (LAC) at para 46.
[22]
(2000)
21 ILJ 1051 (LAC)
at
para
25.
[23]
(2000)
21 ILJ 340
(LAC) at para 15.  See also
Schwartz
v Sasol Polymers and Others
(2017)
38 ILJ 915 (LAC) at para 26;
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
(2008)
29 ILJ 1180
(LC) at para 42.
[24]
(2010)
31 ILJ 2031
(LAC)
at para 13.
[25]
Id
at para
22. See also
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v National Union of
Mineworkers and Others
(2001)
22 ILJ 658 (LAC) at paras 21 – 22.
[26]
(2014) 35 ILJ 3349 (LAC) at para 29.
[27]
See
Msunduzi
Municipality
(
supra
)
at para 30.
[28]
Section
145(4)(a) reads: ‘
If
the award is set aside, the Labour Court may – (a) determine
the dispute in the manner it considers appropriate
…
’
[29]
(2005)
26
ILJ
1652
(LAC) at para 39.
[30]
(2013)
34
ILJ
2662 (LC) at para 41. See also
Glencore
(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others (2018) 39 ILJ 2536 (LC) at para 19.
[31]
See
Food
& Allied Workers Union on behalf of Gaoshubelwe v
Pieman
’s
Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC) at para 187
.
See also
Matsha
& others v Public Health & Social Development Sectoral
Bargaining Council & others (2019) 40 ILJ 2565 (LC)
at para 17
and the authorities cited there.
[32]
See
Long
v SA Breweries
(Pty)
Ltd & others (2019) 40 ILJ 965 (CC) at paar 26; Civil &
Power Generation Projects (Pty) Ltd v Commission for Conciliation,

Mediation & Arbitration & others (2019) 40 ILJ 2055 (LC) 63;
Uber SA Technology Services (Pty) Ltd v National Union of
Public
Service & Allied Workers & others (2018) 39 ILJ 903 (LC)
100; General Motors SA (Pty) Ltd v National Union of
Metalworkers of
SA & others (2018) 39 ILJ 1316 (LC) 26 –27
[33]
(2015)
36 ILJ 1511 (LAC) 58
[34]
(2018)
39 ILJ 523 (CC) at para 25.