THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 742/2024
In the matter between:
FEMPOWER PERSONNEL (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER JAN LE FLEUR Second Respondent
PULE RADITHEPA TLALE Third Respondent
Heard: 26 September 2024
Delivered: This judgment was handed down electronically by circulation to
the parties by email and publication on the Labour Court’s website. The date
for hand down is deemed to be 16:00 on 08 January 2025 .
JUDGMENT
MPHAHLANE, AJ
2
Introduction
[1] This is an application to review and set aside the arbitration award issued by
the Second Respondent (the C ommissioner ) under case number GAVL4149 -
22 dated 14 September 2023 , and the variation ruling of the Commissioner
under the same case dated 12 October 2024, in terms of which the
Commissioner found that the dismissal of the Third Respondent ( the
Employee ) was procedurally fair but substantively unfair and awarded the
Employee compensation in the amount of R214,143.48.
[2] The application is in terms of section 145, read with sections 158(1)(g) and
157(1), of the Labour Relations Act1 (the LRA) and came before this Court on
an unopposed basis. I must mention , however, that where a review
application is not opposed, it does not follow that a Court of review shall
exercise its review powers in the absence of grounds of review being proven,
simply because the application is unopposed.
Factual background
[3] According to Lungelo Luthuli ( Luthuli ), the deponent to the founding affidavit,
the Employee was employed by the Applicant on a fixed term contract
commencing 10 October 2022 and ending 31 December 2022 . However,
according to the Commissioner’s arbitration award, the Applicant’s Accounts
Manager, Mthunzi Twala (Twala ), testified that the contract commenced from
25 August 2022. As will be shown below, the commencement date of the
employment contract is not particularly material to the review application.
[4] The Employee was placed at the Sasolburg site of Sasol, the Applicant’s
client , as a miner. He worked 10 hours a day earning at an hourly rate of
R221.16. The Employee was paid weekly.
1 No. 66 of 1995, as amended.
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[5] On 25 November 2022, the Employee was dismissed by the Applicant for
gross negligence following a disciplinary hearing. It was alleged that on 07
November 2022, the Employee cut 13.38 metres which was in excess of the 5
metres cut required by Sasol.
[6] Aggrieved, on 28 November 2022 , the Employee referred an unfair dismissal
dispute to the First Respondent , Commission for Conciliation, Mediation and
Arbitration (CCMA ), challenging the substantive fairness of the dismissal in
that the rule or standard he transgressed has not been consistently applied by
the Applicant.
[7] On 21 April 2023 and 04 September 2023 , the dispute proceeded to
arbitration before the Commissioner. The Employee presented evidence to
the effect that miners employed by the Applicant and Sasol , often exceeded
the required 5 metres and no one, except him, was disciplined for the
transgression. The Employee presented a list of twelve miners , some of
whom were the Applicant’s employees, who the Employee alleged cut in
excess of 5 metres and were never charged , let alone dismissed. The Third
Respondent testified that he informed Twala about this practice, and further
that the Applicant’s management received daily reports from miners regarding
the daily cutting . Therefore , the Applicant was aware that the miners often
exceeded 5 metres.
[8] Twala, on the other hand, testified that he was informed about the
transgression by the Sasol’s mine captain. Twala further testified that he was
not aware that other employees also cut in excess of the 5 metre s
requirement, but that the Applicant may have received this information from
the shift boss.
[9] After hearing evidence, the Commissioner determined that the dismissal of
the Employee was procedurally fair , but substantively unfair , and awarded the
Employee compensation in the amount of R66,300.00 , being, according to the
Commissioner, six months ’ compensation calculated at a monthly salary of
R11,050.00.
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[10] The Commissioner found that the Employee’s dismissal was substantively
unfair because the Employee proved that the Applicant and Sasol were
inconsistent in the application of the rule the Employee transgressed.
[11] Subsequently, the Employee applied for the variation of the award , that is
variation of the amount of R66,300 .00, on the basis that the Commissioner
erroneously calculated the compensation on the salary scale of R11,050.00
per month instead of R11,050.00 per fortnight. The Applicant did not oppose
the variation application , and the Commissioner accordingly varied the
compensation amount to R258,558.15 . The variation ruling is dated 12
October 2022.
[12] On 18 October 2023, the Applicant launched its own variation application ,
seeking the variation of the Commissioner’s variation ruling dated 12 October
2022. The Applicant contended that (a) the compensation should have been
based on 37.27 average weekly hours , and not 45 hours per week, and (b)
the Employee should have been awarded not more than a month’s salary as
compensation.
[13] The Commissioner agreed to vary the weekly hours worked from 45 hours to
37.37 hours , but determined that compensation which was equal to six
months’ salary was appropriate . In the result, the total compensation amount
was reduced to R214,143.48 . The Commissioner’s variation ruling is dated 12
April 2024.
[14] The Applicant seeks the review of this variation ruling and the arbitration
award.
Grounds of review
[15] The Applicant’s grounds of review are essentially that t he Commissioner : –
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15.1 committed a gross irregularity in that he failed to consider the
submissions and documentary evidence presented by the Applicant
and based his findings on speculation as well as hearsay evidence ;
15.2 undertook the enquiry in an incorrect manner and committed
misconduct in relation to the duties of the Commissioner as an
arbitrator by failing to consider the submissions by the Applicant at all ,
as is evident from paragraphs 28 to 33 of the variation ruling ;
15.3 committed a gross irregularity and misdirected himself in applying the
wrong test insofar as the challenge for inconsistency is concerned ;
15.4 exceeded his powers by finding that compensation equal to six months’
salary is just and equitable in the circumstances ; and
15.5 committed a gross irregularity and erred in considering irrelevant
factors when awarding the Third Respondent six months ’
compensation.
Evaluation
Failure to consider the Applicant’s submissions and documentary evidence and
reliance on speculation as well as hearsay evidence.
[16] The Applicant avers that the only reason the dismissal was found not to be
substantively fair was because the Employee alleged that the rule was not
consistently applied in relation to twelve other miners . The Applicant contends
that the Commissioner’s finding was wholly based on speculation and hearsay
evidence as the other miners were not called to testify and no documentary
evidence was presented showing similar deviations.
[17] I do not agree that the Commissioner’s finding was based on speculation . The
Commissioner clearly relied on the direct evidence of the Employee , which
was not controverted by the Applicant.
[18] I also do not agree that the Employee’s evidence was hearsay , because the
other miners the Employee referred to were not called to testify and no
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documentary evidence was presented showing similar deviations. Section
3(4) of the Law of Evidence Amendment Act2, defines hearsay as “evidence”,
whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence. I t can
hardly be said that the probative value of the Employee’s evidence depended
on the credibility of other miners or documentary evidence . The Employee’s
testimony regarding inconsistency was direct evidence the probative value of
which depended upon the credibility of the Employee himself .
[19] Accordingly, this ground of review falls to be dismissed.
Failure to consider the submissions by the app licant
[20] The Applicant contends that it is evident from paragraphs 28 to 33 of the
variation ruling that the Commissioner failed to consider the Applicant’s
submissions.
[21] I do not follow the Applicant’s logic in respect of the basis of this ground. In
paragraphs 28 and 29 of the variation ruling , the Commissioner sets out the
relevant statutory provisions that empowers a Commissioner to vary an
arbitration award . In paragraphs 30 to 32 of the variation ruling , the
Commissioner sets out his determination of the compensation that must be
paid to the Employee, effectively varying his variation ruling dated 12 October
2023 , in so far as it relates to the calculation of the Employee’s salary.
[22] The determination by the Commissioner that the Employee must be paid
compensation equal to six months’ salary , as opposed to one month ’s salary,
does not mean that the Commissioner did not consider the Applicant’s
submissions. To the contrary, the fact that the Commissioner varied
downwards the calculation of the Employee’s monthly salary , is indicative of
the fact that the Commissioner considered the Applicant’s submissions .
2 45 of 1988.
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[23] In the circumstances, this ground of review also falls to be dismissed.
Wrong i nconsistency test
[24] The Employee challenged his dismissal on the basis that the Applicant
applied the rule inconsistently. The Employee alleged that miners employed
by the Applicant and Sasol often exceeded the required 5 metres and no one,
except him, was charged and dismissed for the misconduct . The Applicant
presented a list of twelve miners, some of whom were the Applicant’s
employees, who he alleged cut in excess of 5 metres , and were never
charged. He asserted that the Applicant’s management received daily reports
from miners regarding the daily cutting . Therefore , the Applicant was aware
that the miners often exceeded 5 metres.
[25] In response, Twal a stated that he was informed by Sasol about the
Employee’s transgression. Twala insisted that he was not aware that other
employees also cut in excess of the 5 metre s requirement , but conceded that
the Applicant may have received this information from the shift boss. This is a
significant concession.
[26] The Commissioner found that the dismissal of the Employee was procedurally
fair, but substantively unfair , on the basis that the Applicant was inconsistent
in the application of discipline. The Commissioner held the view that the
Employee proved that the Applicant and Sasol were inconsistent in the
application of the rule. The Commissioner reasoned that:
“23. It was common cause amongst the parties that the Applicant indeed
exceeded the required 5 -metre cut. It was further common cause that
the other twelve miners including the Applicant also exceeded the
required 5 -metre cut, which included the client’s employees.
24. The Applicant’s witness testified that he was not aware of the other
employees , neither did he go underground to check these reports.
The Applicant’s witness was called by the mine captain when the
Applicant exceeded the 5 -metre cut on 07 November 2022.
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25. The Applicant’s witness thinks that the Applicant may have received
this report on bundle C from the shift boss. This clearly indicates the
shift boss was aware that this was a norm to exceed the required cut
of 5 metr es.
26. The Applicant did not investigate after the arbitration was adjourned
on 21 April 2023 and verify why other employees were not charged for
the same offence. The Applicant ’s defence was that the inconsistency
was only raised at arbitration and not at the disciplinary hearing. I find
this as an extremely poor excuse from the Applicant .
27. In the matter of SAPS v SSSBC and Others (2011) ILJ 715 (LC), the
Court , per Langrange J , restated the applicable approach in matters
where inconsistency is raised in terms of onus and the following was
said at paragraph 10. Once the employee has pertinently put the issue
of consistent treatment in issue, the employer has a duty to rebut such
allegations. As regards the onus, the onus of proving that the
dismissal was fair, and thus of rebutting the allegations of
inconsistency, is one which rests squar ely on the employer.
28. The arbitration was adjourned on 21 April 2023 to enable the
Respondent to rebut this allegation of inconsistency. The Respondent
dismally failed to rebut this allegation on 04 September 2023.
[27] The substantive fairness of a dismissal for misconduct is assessed according
to a number of criteria. These are set out in item 7 of the Code of Good
Practice which provides that:
7. Guidelines in cases of dismissal for misconduct – any person who
is determining whether a dismissal for misconduct is unfair should
consider –
(a) whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to the workplace, and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware or could reasonably be
expected to have been aware, of the rule or standard;
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(iii) the rule or standard has been consistently applied by
the employer, and
(iv) dismissal w as an appropriate sanction for the
contravention of the rule of standard. ’
[28] The Applicant’s contention is that the Commissioner committed a gross
irregularity and misdirected himself in applying the wrong test insofar as the
challenge for inconsistency is concerned. Mr Kungwimba, appearing for the
Applicant, argued that t he Applicant d id not have oversight of all employees
placed at Sasol ’s site , and therefore , it was not aware that other employees
also exceeded the 5-metre cut. Therefore, the Commissioner’s finding of
inconsistency is contrary to the subjective test enunciated in Southern Sun
Hotel Interests (Pty) Ltd v C ommission for Conciliation, Mediation and
Arbitration and Others3 (Southern Sun ) where Van Niekerk J (as he then was)
stated that:
“A claim of inconsistency (in either historical or contemporaneous terms) must
satisfy a subjective element – an inconsistency challenge will fail where the
employer did not know of the misconduct allegedly committed by the
employee used as a comparator. (see, for example, Gowensha v CCMA &
others [2006] 3 BLLR 234 (LAC) at paras 37 – 38).”
[29] Mr Kungwimba also submitted that the Employee should have raised the
issue of inconsistency at the disciplinary hearing. Mr Kungwimba relie d on the
judgment in Southern Sun for this proposition .
[30] The test in evaluating whether or not to review an arbitration award of a
Commissioner , is enunciated in Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others4. In terms of the Constitutional Court judgment , and
those that followed thereafter , the question to answer in assessing whether to
interfere with the arbitration award is whether the decision of the arbitrator is
one which a reasonable decision maker could not reach.
3 [2009] 11 BLLR 1128 (LC) at para 10.
4 [2007] 12 BLLR 1097 (CC) .
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[31] In Westonaria Local Municipality v South African Local Bargaining Council
and Others5 Molahlehi J (as he then was) said the following:
“[16] It is trite that in unfair dismissal disputes , the first task of the arbitrator
is to determine whether the employee was guilty of the offence he or
she is alleged to have committed. If it is found that indeed the
employee was guilty as charged , the next task of the arbitrator is to
enquire into the fairness of the sanction imposed by the employer.
The onus to show that the employee was guilty of the offence and that
the dismissal was fair rests with the employer. The emp loyer also
bears the duty to show that the trust relationship between it and the
employee has broken down because of the offence committed by the
employee. ”
[32] Mr Kungwimba emphatically submitted that the Applicant has a right to
discipline its employees. In this regard, the Constitutional Court in Sidumo
(supra) said the following:
“[75] It is a practical reality that, in the first place, it is the employer who
hires and fires. The act of dismissal forms the jurisdictional basis for a
commissioner, in the event of an unresolved dismissal dispute, to
conduct an arbitration in terms of the LRA. The commissioner
determines whether the dismissal is fair. There are, therefore, no
competing “discretions”. Employer and commissioner each play a
different part. The CCMA correctly submitted that the decision to
dismiss belongs to the employer but the determination of its fairness
does not. Ultimately, the commissioner’s sense of fairness is what
must prevail and not the employer’s view.”
[33] In the present case, the arbitrator ’s conclusion that the dismissal of the
Employee was substantively unfair is based on what the Commissioner found
to have been the inconsistent application of discipline by the Applicant. In
Gcwensha v CCMA and Others6, the Labour Appeal Court , in confirming its
5 [2010] 3 BLLR 3 42 (LC) at 16.
6 [2006 ] 3 BLLR 234 (LAC) at para 36 .
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decision in SA Commercial Catering and Allied Workers Union and others v
Irvin and Johnson Ltd7 held that:
“Disciplinary consistency is a hallmark of progressive labour relations that
every employee must be measure d by the same standards.”
[34] The Commissioner’s finding on inconsistency is based on the evidence
presented by the Employee which was not controverted by Twala. All Twala
could say was that he was not aware about the transgressions of the other
employees.
[35] It is recorded in the arbitration award that Twala was given the opportunity to
investigate the Employee’s allegations , but failed to do so. The Labour Court
in SAPS v SSSBC and others8 held that where the employee lays a credible
factual basis for a claim of inconsistency, or where it is common cause that
other employees had been treated differently, it is incumbent on the employer
to advance a plausible explanation. The Applicant did not do so.
[36] Unlike Mr Kungwimba, I do not think that Southern Sun is authority for the
proposition that an Employee can raise an inconsistency challenge at
arbitration proceedings only if the Employee has done so at the disciplinary
hearing. I am of the view that the Employee was within his rights to challenge
his dismissal, which is the outcome of the disciplinary hearing, in the manner
he did , that is at arbitration proceedings which, in any event, constitute a de
novo hearing.
[37] Under the circumstances, I am of the view that the Commissioner cannot be
faulted on any basis and his conclusion is clearly rationally connected to the
reasons he gave, based on the material available to him.
[38] In the circumstances, I find no legal basis to interfere with the Commissioner’s
finding regarding inconsistency. As a result, the ground of review under
discussion stands to fail.
7 (1999) 20 ILJ 230 2 (LAC) .
8 (2011) 32 ILJ 715 (LC) .
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Compensation
[39] Having found that the Employee’s dismissal was substantively unfair, the
Commissioner ordered the Applica nt to pay the Employee an amount equal to
six months’ salary in compensation.
[40] The Applicant avers that the Commissioner exceeded his powers in finding
that six months’ salary in compensation was just and equitable. The Applicant
contends that the Commissioner ignored the binding judgment of the Labour
Appeal Court in Jorgensen v I Kat Computing (Pty) Ltd and others9 where the
Court found that there was no cause to award an employee compensation
more than his actual loss of income.
[41] The Employee was on a fixed term contract which expired on 31 December
2022 , and was dismissed on 25 November 2022 ; that is one month and six
days before the expiry of the contract.
[42] Section 194(1) of the LRA reads:
‘The compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the reason for dismissal
was a fair reason relating to the employee’s conduct or capacity or the
employer’s operational requirement or the employer did not follow a fair
procedure, or both, must be just and equitable in all the circumstances, but may
not be more than the equivalent of 12 months remuneration calculated at the
employee’s rate of remuneration on the date of dismissal.’
[43] The Labour Appeal Court has already observed that a determination of what
is just and equitable is a difficult horse to ride.10 However, I agree that t he
term ‘ just and equitable in all the circumstances ’ implies that compensation
must be fair to the unfairly dismissed employee as well as the employer.11
9 [2018] 3 BLLR 254 (LAC) .
10 See for example : ARB Electrical Wholesalers (Pty) Ltd v Hibbert (2015 ) 36 ILJ 2989 (LAC) .
11 Giles & Du Toit Compensation for unfair dismissal 124.
13
[44] In Ledwaba v Laxness (Pty) Ltd,12 Moshoana J stated that:
“Compensatory relief in terms of the LRA is not strictly speaking a payment
for the loss of a job or the unfair labour practice but in fact a monetary relief
for the injured feeling and humiliation that employee suffered at the hands of
the employer. Put differently, it is a payment for the impairment of the
employee’s dignity.”
[45] In the present case, it can hardly be said that the Employee’s dignity was
impaired , or that the Employee suffered humiliation at the hands of the
Applicant.
[46] The Commissioner records in the arbitration award that he considered the
period the Employee was unemployed , and the possibility of finding
alternative employment. It is difficult to appreciate why the Commissioner took
these two factors into consideration . To me, these factors are irrelevant given
the fact that the Employee was left with a pproximately a month before the
expiry of his contract with the Applicant , and there is no evidence to the effect
that the Applicant intended to renew the Employee’s contract or that t he
Employee had a legitimate expectation that his contract would be renewed.
Thus, it would not be fair to the Applicant to award the Employee
compensation equal to six months’ salary on the basis alluded by the
Commissioner.
[47] Clearly, the Commissioner failed to take into consideration the fact that the
Employee’s fixed term contract was actually a short -term cont ract, that is not
more than 4 months, and there was only approximately a month left before its
expiry. These, in my view, are relevant factors which the Commissioner
should have taken into consideration . Failure to take these factors into
consideration, and the taking into consideration of irrelevant factors, is an act
of gross misconduct on the part of the Commissioner, warranting the review
and setting aside of his arbitration award inso far as it relates to compensation.
12 (JS571/16) [2018] ZALCJHB 377 (16 October 2018) at para 23 .
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[48] I agree with the Applicant that fairness dictates that the compensation that
must be paid to the Employee should be limited to the balance of his fixed -
term contract. Clearly, there was no cause for the Commissioner to award the
Employee compensation of more than his actual loss of income.13
[49] The Applicant submitted that the matter be finally determined, as opposed to
remitting it to the CCMA. I am of the view that remitting the matter to the
CCMA would result in a further delay which would cause unjustified prejudice
to the parties .
[50] Accordingly , I make the following order:
Order
1. The arbitration award and variation ruling dated 14 September 2023
and 12 April 2024 respectively issued by the Second Respondent
under case number GAVL4149 -22 are reviewed and set aside.
2. It is determined that the dismissal of the Third Respondent is
procedurally fair but substantively unfair.
3. The Applicant is ordered to pay the Third Respondent an amount equal
to one month’s salary as compensation, to wit: R32 ,969.64 , within 30
days of this order.
4. There is no order as to costs.
_____________________
T. Mphahlane
Acting Judge of the Labour Court of South Africa
13 See: Jorgensen v I Kat Computing (Pty) Ltd and Others (supra ); Toyota SA Motors (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others [2023] 5 BLLR 385 (LAC) .
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Appearances:
For the Applicant : E Kungwimba
Instructed by : Hunts Incorporated