THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no : JR2023/22
In the matter between:
CINDI ALANI SAMSON Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Responde nt
MASHEGO MAILMELA N.O. Second Respondent
REACH SUMMIT (PTY) LTD Third Respondent
Heard : 11 November 2024
Delivered : 14 January 2025 (handed down by email to the parties)
Summary : Application to review and set aside arbitration award relating to
alleged unfair labour practice. Failure of the commissioner to
apply his mind to the evidence. In the circumstances, applicant
denied a fair hearing, and the outcome was unreasonable.
Application granted.
2
JUDGMENT
DANIELS J
Introduction
[1] The third respondent (the “employer”) issued a final written warning (the
“warning”) to the applicant, who challenged the warning as an alleged
unfair labour practice at the Commission for Conciliation, Mediation and
Arbitration (the “CCMA”). The second respondent (the “commissioner”)
found that the warning did not constitute an unfair labour practice.1
[2] At some point after the warning was issued , the applicant was dismissed
for alleged poor work performance . The fairness of that dismissal was
also challenged, and that dispute has followed its own path. There is
nothing problematic in the approach.2 While the unfair labour practice
dispute and the dismissal dispute could well have been consolidated,
they were not.
[3] This application is brought to review and set aside the arbitration award
in which the second respondent found that there was no unfair labour
practice.
Material facts
[4] The factual matrix set out below is drawn from the documents before the
commissioner as well as the transcript, in particular the evidence of Ms.
Anthea Kallis (“Kallis”), the applicant’s manager.
1 Section 186(2)(b) of the Labour Relations Act No 66 of 1995 states unfair disciplinary action of an
employee, by an employer, that falls short of dismissal constitutes an unfair labour practice.
2 Kock v Commission for Conciliation, Mediation & Arbitration & others (2019) 40 ILJ 1625 (LC) at para 45
3
4.1 On 1 November 2021, the applicant was engaged by the employer
as Project Manager: Recruitment and Placement, subject to a three -
month probation period. This probation expired on 1 February 2022
without incident.
4.2 A few days prior to the expiry of the applicant’s probation period, the
recruitment manager, Ms Van Zyl, who reported to the applicant,
resigned . In the email communicating her resignation , Van Zyl stated:
“There is an unprecedented amount of projects – the first of this
scale in the company’s history and with more projects to come.
You have both mentioned to me that there is no room for error and
I agree, but with these large amounts of recruits, incredibly tight
deadlines and unpredictable circumstances, human error will
inevitably creep in .”
4.3 Very few details, of the targets or deadlines applicable to the
applicant and allegedly missed , are clear from the oral evidence.3 It
is necessary therefore to refer to correspondence, which was
referred to at the arbitration, and remained unchallenged .
4.4 According to the correspondence4 emanating from the applicant’s
attorneys, during mid-February 2022, the employer received a n
unusually large order for recruits. Th e target had to be met by the
applicant with a reduced recruitment team - given the resignation of
the recruitment manager at the end of January 2022 . In the letter , the
applicant’s attorneys indicated that, during February and/or March
2022, the applicant travelled to various sites including Rustenburg,
Polokwane, Mokopane, and Thabazimbi. The attorneys stated that
the applicant had missed the deadline to provide 825 recruits , by one
3 However, Kallis did testify that “to the best of her recollection” deadlines for “Amandabult” and
“Mokopane” were missed. She was unsure whether a deadline for Rustenburg was missed. She did not
clarify the delivery expected, the date of the deadline, or the period by which the deadline was missed.
Record Vol 2, transcript p218 lines 302 – 306
4 Record Vol. 1 pages 25 – 28. Note that the employer did not reply to this letter, dated 28 March 2022,
from the applicant’s attorneys.
4
week. The letter recorded that the applicant was required to execute
tight deadlines, with extreme workloads, in different parts of the
country. At arbitration, t he employer contended that the se deadlines
were set by the applicant. However, this was vehemently disputed by
the applicant.
4.5 Kallis testified:
“Cindi Samson was taking care of recruitment for Platinum
Encumber5 (sic). Before recruitment had taken place, we sat down
and worked out what that recruitment plan would be. We set out
the timelines, being four weeks per project. And that was what
Cindi Samson was comfortable with. She had agreed to that that
was the time that she said that she would need for, to roll out that
project. When we were, when it started, there was quite a little, for
each site, she would travel to the site and then do the recruitment
and the support team would assist in the office . During, I would
say her second week, it became, travelling, it became quite
evident that she was struggling to meet the deadlines. I then had a
conversation with her regarding that and I said to her, since I can
see that she’s struggling, I’ll pull her off the road and she would be
office bound . I then took over the rest of the travel, so I travelled
from Cape Town to the other areas to make sure that I was then
doing the recruitment and she would only be in the office,
concentrating on wrapping up the recruitment drives. I also got in
two of our contract facilitators, who were quite familiar with our
projects and how we work to assist her with recruitment, and she
showed me that that was all she needed and then she would be
on track .”6 (own emphasis)
5 The oral evidence most likely referred to “Kumba” and was incorrectly transcribed. It was common cause
that the applicant was subsequently charged for failing to deliver in relation to two projects referred to by
the employer as the Platinum project and the Kumba project.
6 Transcript p3 lines 66 – 82. This evidence was extremely vague, and omitted much detail.
For example, t he evidence does not disclose the deadline for the “Platinum Encumber ” project nor when
the project commenced. It does not expressly state that the deadline was missed, and by what period . It
fails to state the consequences of the deadline being missed. It suggests that the applicant experienced
problems from “her second week” but does not explain whether this was the second week of the project
or the second week of her employment (commencing in November 2021). It suggests that the witness
(Kallis) took over all the travel, and the applicant was not required to travel, but it does not state the date
when this occurred. It states that two external facilitators were engaged, but does not state when they
were engaged nor the scope of their work. If this oral evidence were simply accepted at face value, it
would appear that Kallis did the vast majority of the work while the applicant (and her team), together
with two external facilitators, were unable to complete the “wrapping up of the recruitment drives” from
the office. This evidence appears to contradict the letter from the applicant’s attorneys which suggests
that the applicant was required to, and did, travel to various sites ( Rustenburg, Polokwane, Mokopane,
and Thabazimbi) to conduct recruitment drives. In addition, Kallis also does not explain why, if she was
doing the vast majority of the applicant’s work, she (Kallis) was not responsible for the deadlines not
being met.
5
4.6 Kallis testified that the employer sought to assist the applicant to
perform her duties. She testified: “ So that was when I would pull
other team members off other aspects or other projects that they
were working on to assist. Our placement manager would jump in
frequently to help as well, take off his team members to jump in and
help. Like I said, we brought in the contractors to help. I took over the
travel, so that she could be based in the office. Those were the
measures taken .”7
4.7 Kallis c onfirm ed8 that the applicant was required, in addition to the
duties she was engaged for, to perform the duties of recruitment
manager (Van Zyl) who had resigned at the end of January 2022.
Kallis testified that she (Kallis) decided to travel to any places where
the former recruitment manager would otherwise have travelled to.
She confirmed that two other individuals (Ms Penelope Chauke and
Ms Sylivia Sono) who were part of the applicant’s team , had resigned
and were not replaced . These individuals were referred to by Kallis
as Penny and Sylvia. Prior to their resignations, these individuals
were recruitment administrators.
4.8 Kallis testified that , initially, the employer opted for a “Performance
Management Process” but later switched to a disciplinary process
without explanation.9
4.9 On 24 March 2022, the employer proposed a mutual separation
agreement, which the applicant did not accept.
7 Record Vol 2, transcript at p212 lines 126 – 130. The witness testified that it committed the time and
resources of several other individuals, including another manager (besides Kallis herself) to assist the
applicant to meet her deadline. This is a clear acknowledgment that workload, and expectations of the
applicant, were significant.
8 Record Vol 2, transcript at p216 lines 232 – 241
9 Record Vol 2, transcript at p221 lines 389 - 402
6
4.10 On 28 March 2022, the employer issued to the applicant a notice
summoning her to attend a disciplinary hearing to face a single
charge relating to the poor quality of her work. Under that rubric, the
employer charged that the applicant had produced work of poor
quality, acted negligently or carelessly, acted inefficiently, acted with
lack of interest or loafing, and had refused to carry out an authorized
instruction in respect of normal work practices.
4.11 Later that same day , the applicant’s attorneys addressed a letter to
the employer , to which it did not reply. In the letter, the applicant
recorded that:
4.11.1 In mid -February 2022, the employer received an unusually
large order for recruits.
4.11.2 This target, set at 825 recruits, had to be met by the
applicant, whose team was reduced following resignations.
4.11.3 The applicant travelled extensively to sites including
Rustenburg, Polokwane, Mokopane, and Thabazimbi to
manage recruitment drives.
4.11.4 The deadlines were reportedly missed by one week, due to
extreme workloads and tight timelines.
4.12 The employer contended that these deadlines were self -imposed by
the applicant, a claim she strongly disputed.
4.13 On 5 April 2022, the employer emailed the applicant advising her that
the notice to attend a disciplinary hearing was retracted. The
employer also retracted its offer of a mutual separation agreement ,
and advised that it no longer intended to engage in a performance
management process . Finally, importantly, the email notified the
applicant that she had been issued with a final written warning, which
7
was attached to the email . The reasons for the warning, set out in the
warning itself, related to:
“Charge 1: Negligence, carelessness
Negligence, carelessness and not following company procedure
throughout the Platinum and Kumba recruitment process has led
to several missed deadlines. This then resulted in several delays
and has resulted in the programmes start being delayed. This has
a knock on effect and has resulted in a loss of income to the
company. As a manager it is imperative that company procedure
should be followed. ”
4.14 It was common cause that the applicant was not given a hearing
before the warning was issued to her. Instead, Kallis testified that she
had several prior conversations with the applicant regarding her
alleged non-performance.10
4.15 The applicant did not appeal against the warning. The employer
testified that the applicant was aware of, and had been informed of,
her right to appeal. However, Kallis conceded that, regardless of the
reason s why the applicant failed to perform to the standard expected,
the employer would not have retracted the warning.11
4.16 The applicant testified that she did not require training to do her job
because she possessed the necessary skills.12 However, she
testified that her recruitment team reduced from 8 to 3 individuals.13
She also testified that “ it was the running joke in the department
about the deadlines, and how it’s, it’s really not going to be
possible .”14 On another occasion, she stated that the deadlines were
10 Record Vol 2, transcript at p226 lines 531 – 542. The implication is that the conversations were about
assisting the applicant and her team to meet the deadlines, as opposed to disciplinary action.
11 Record Vol 2, transcript at p224, lines 466 – 478
12 Record Vol 2, transcript at p 253 lines 1346 - 1354
13 Record Vol 2, transcript at p 248 lines 1234 – 1235, 1242
14 Record Vol 2, transcript at p254 lines 1377 – 1378
8
ridiculous.15 She testified that she was unaware that she could
appeal the warning, and she had not been informed that she could
appeal.16 She testified that she was not given an opportunity to make
representations as to why she should not be given a warning.
Legal principles
Misconduct and poor work performance (incapacity)
[5] There is a fine line between misconduct related to negligence and poor
work performance related to incapacity, but the distinction remains
important. The distinction boils down to culpability. As this court has
stated, two simple questions should be asked where an employee has
failed in his or her duties:
“In my view, the distinction between poor performance and
misconduct (negligence) can be established by the asking of two
simple questions when it has been established that an employee
indeed failed. The first question is 'Did the employee try but could
not?' and the second question is 'Could the employee do it, but did
not?' If the first question is answered in the affirmative, then it has
to be poor performance, because an employee that honestly (for
the want of a better word) seeks to achieve what is expected of
him or her but is unable to do so is incapacitated and would not
behave wilfully or indifferently or fail to apply the necessary care. If
the second question is answered in the affirmative, then it has to
be misconduct, as this would be a situation where the employee is
fully able to do what is required not to fail, and such failure could
therefore only be because of indifference or wilfulness or a failure
to take care .”17 (own emphasis)
[6] Before taking action, e mployers must examine the reasons for the non -
performance carefully. Unattainable targets, inadequate resources, or
unreasonable expectations all align more closely to incapacity than
misconduct.
15 Record Vol 2, transcript at p256 at lines 1433 – 1434
16 Record Vol 2, transcript at p258 lines 1481 – 1488
17 ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman N O (2013) 34 ILJ 2347 (LC) at para 78
9
[7] The reasons for non -performance would, ordinarily, emerge from the
investigation for the non -performance or the disciplinary process , where
the employer has chosen to follow that process. However, these reasons
might only emerge at an arbitration following the employer’s response to
the non -performance .
[8] The CCMA has issued Guidelines for cases of dismissal related to poor
work performance. Th e Guidelines requires the employer, where a
performance standard has not been met, to consider inter alia whether
the employee was aware of the standard, and whether the employee was
given a fair opportunity to meet the performance standard.
Grounds of review
[9] It is trite that the grounds of review must be pertinently set out in the
applicant’s founding and supplementary affidavits.18 These grounds may
not be extended in the replying affidavit or in heads of argument.
[10] The grounds of review pertinent to this judgment are as follows:
10.1 It is alleged that the commissioner acted unreasonably by failing to
properly consider the material evidence.
10.2 It is alleged that the commissioner considered that a number of
material issues were common cause whereas they were disputed. In
this regard, the commissioner erred by considering it common cause
that: (a) the applicant was careless, negligent and had missed
deadlines which caused financial harm to the employer, (b) the
applicant failed to show any improvement in her performance even
after the disciplinary hearing was abandoned, ( c) the applicant and
18 Communication Workers Union and others v SA Post Office Ltd and others (2013) 34 ILJ 626 at paras
35 and 39
10
the employer met to discuss the disciplinary charges against her
before a final written warning was issued to her .
10.3 In the final analysis, the applicant contends that the outcome was not
one which a reasonable decision maker could reach on all the
evidence properly before the commissioner .
[11] It is necessary to make a preliminary remark which is that the parties and
the commissioner blurred the boundaries between incapacity related
poor work performance and poor work performance arising from
negligence . This court has made it clear that different criteria and
considerations apply to these distinct areas.19 A clear example of this
misunderstanding , in this matter, is that the commissioner and the parties
both considered whether the applicant was granted an opportunity to
improve her performance. This was irrelevant given that the applicant
was disciplined for misconduct.
Review applications in general
[12] The arbitration process and the resulting arbitration award both constitute
administrative action. Accordingly, section 33(1) of the Constitution
requires that the process and the outcome must be lawful, reasonable,
and procedurally fair. It was in this context that the Constitutional Court
fashioned the appropriate review test20 in relation to CCMA arbitration
awards in the following terms: is the arbitration award one which no
reasonable commissioner could reach on the material before him or her ?
The test has come to be known as the “ Sidumo test” or the
19 Midas Group Komatipoort v NUMSA and others [2018] ZALCJHB 83 at para 42 where Snyman AJ
stated: “ It is clear from all that I have set out above that the concepts of a dismissal for misconduct on the
one hand, and dismissal for poor work performance (as a species of incapacity) are incompatible. This
means, in short, that an employee cannot be ‘charged’ for poor performance, subjected to disciplinary
process, and then dismissed applying misconduct considerations. In the case of poor performance, the
process has other objectives, which can broadly be described as being to identify the poor performance,
establish what is required to resolve it, providing the employee with assistance to resolve it, and then
allowing the employee a reasonable opportunity to achieve what is required. ”
20 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
11
“reasonableness test .” The court must itself consider whether the
outcome is unreasonable in light of all the evidence.
[13] Subsequently , in CUSA v Tao Ying Metal Industries and Others21 (“Tao
Ying”) the Court held at para 76:
“76] It is by now axiomatic that a commissioner is required to
apply his or her mind to the issues properly before him or her.
Failure to do so may result in the ensuing award being reviewed
and set aside. Recently, in Sidumo, the matter was put thus:
“Parties to the CCMA arbitrations have a right to
have their cases fully and fairly determined. Fairness
in the conduct of the proceedings requires a
commissioner to apply his or her mind to the issues
that are material to the determination of the dispute.
One of the duties of a commissioner in conducting
an arbitration is to determine the material facts and
then to apply the provisions of the LRA to those facts
in answering the question whether the dismissal was
for a fair reason. In my judgment, where a
commissioner fails to apply his or her mind to a
matter which is material to the determination of the
fairness of the sanction, it can hardly be said that
there was a fair trial of issues .” (Own emphasis)
[14] Thus , following Tao Ying , it is clear that the decision maker must apply
his or her mind to all the issues that are material to a fair determination of
the dispute. The failure of the commissioner to apply his or her mind to
the material issues denies the parties a fair trial and, invariably, the
outcome will be unreasonable .
[15] In Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)22 the court
clarified that the Sidumo test did not extinguish the procedural grounds
for reviews contemplated in section 145(2) (a) of the LRA. However, the
procedural defects alleged must indicate that the arbitrator misconceived
the nature of the enquiry, or arrived at an unreasonable result.
21 (2008) 29 ILJ 2461 (CC) (18 September 2008)
22 (2013) 34 ILJ 2795 (SCA)
12
[16] In Bestel v Astral Operations Ltd & others23 the court considered the
narrow scope of review and accepted that an arbitrator’s finding would be
unreasonable if it is unsupported by any evidence, based on speculation,
disconnected from the evidence, supported only by evidence that is
insufficiently to justify the decision , or if it was made in ignorance of
evidence that was uncontradicted. The Court held that:
‘… the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to be correct by
the reviewing court; that is whatever this Court might consider to be a
better decision is irrelevant to review proceedings as opposed to an
appeal . Thus, great care must be taken to ensure that this distinction,
however difficult it is to always maintain, is respected .’ (Own
emphasis)
[17] In Goldfields Mining SA (Pty) Ltd v CCMA and others24 the court held
that the concept of reasonableness embraces a wide range of outcomes,
many of which may be reasonable. The outcome should not be
evaluated on a piecemeal basis, but on the totality of the evidence.
[18] In Head of the Department of Education v Mofokeng and others25 the
court again confirmed that where an arbitrator fail s to apply his or her
mind to the material issues, this will usually indicate that the outcome is
unreasonable or that the arbitrator misconceived the nature of the
enquiry. However, when a mistake of fact or law occurs, what matters is
its materiality - whether the error had a distorting effect on the outcome.
Analysis of the grounds of review
[19] In paragraph 46 of the award, the commissioner found that a meeting was
held between Kallis and the applicant where the “ intention to issue out a
23 [2011] 2 BLLR 129 (LAC) at para 18
24 (2014) 35 ILJ 943 (LAC) at para 14
25 [2015] 1 BLLR 50 (LAC)
13
final written warning was communicated to her and was in the same
meeting afforded an opportunity to state her case before such warning
was eventually issued out .” Having perused the record, it is clear that n o
such evidence was presented by the third respondent, or the applicant.
This incorrect finding had a distorting effect on the award , and the ruling
that there was no procedural unfairness.
[20] The commissioner’s finding that the warning was fairly issued relied
strongly on what the commissioner perceived to be common cause facts .
The analysis of the commissioner, set out in paragraphs 43 to 46 of the
award , demonstrate that the commissioner regarded these critical matters
as common cause. The commissioner states as much, and ma de no
attempt to resolve the material disputes necessary to ensure a fair
hearing . In the circumstances, the conclusion is inescapable that the
applicant was denied a fair hearing.
[21] In this context, where the commissioner treated it as common cause that
the applicant conducted her duties in a careless, negligent, and inefficient
manner it is unsurprising that the commissioner found that the employer
committed no unfair labour practice. However, t he applicant made no such
concession. In fact, at arbitration, the employer did not even put such
version to the applicant. This error of fact clearly had a significant
distorting effect on the outcome. In my view, considering all the evidence
before the commissioner, the outcome falls well outside the range of
reasonable outcomes.
[22] If anything , it was common cause that the workload (of the applicant) was
extreme and the team to whom the work was assigned was significantly
reduced. In such circumstances, it would have been proper for the
commissioner to consider whether the applicant’s alleged failure to meet
deadlines was simply the result of indifference or wilfulness. This was not
explored in evidence, and was not explored by the commissioner either .
14
On the evidence before the second respondent , regardless of whether
deadlines were actually missed, no conclusion is warranted that the
applicant was negligent or careless in the execution of her duties .
Conclusion
[23] In my view, the outcome is one no reasonable decision maker could
have reach ed on the evidence. There is no point in referring the dispute
back to the first respondent, when there is a clear record of all the
evidence. It is in the interests of justice, and the effective resolution of
labour disputes, that the court determine the outcome itself. I note that
neither party has pursued costs with any vigour and, in any event, in
labour disputes, costs do not follow the result as a matter of course.
[24] In the circumstances, for the reasons set out above, I make the following
order:
24.1 The arbitration award issued by the second respondent, on 22 July
2022, under case number GATW 4834 -22, is reviewed and set
aside,
24.2 The final warning issued to the applicant is declared an unfair
labour practice and is set aside.
24.3 There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances :
For the Applicant :
Mr C Higgs
Higgs Attorneys
For the Third Respondent
Mr Jonathan Jones
MacGregor Erasmus Attorneys