SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR831/23
In the matter between:
LEGEND LOGISTICS Applicant
and
SATAWU OBO T[...] M[...] First Respondent
COMMISSIONER MDUDUZI PRICEMAN MNGOMEZULU Second Respondent
NATIONAL BARGAINING COUNCIL FOR THE
ROAD FREIGHT & LOGISTICS INDUSTRY Third Respondent
Heard: 25 February 2025
Delivered: 27 February 2025
Summary: Unopposed review application – employee dismissed for falsely
alleging that her co lleague impregnated her – fairness of dismissal .
JUDGMENT
MKWIBISO, AJ
Introduction
[1] In this matter the applicant (the employer) seeks to set aside on review an
arbitration award that declared its dismissal of the first respondent , Ms M[...]
(the employee) substantively unfair.
[2] The issue is whether the second respondent (the Commissioner)
unreasonably found the dismissal of the employee to be substantively unfair.
Relevant facts and evidence
[3] The relevant facts of this matter are c ommon cause.
[4] The employee commenced her employment with the employer on 08 October
2018 and occupied the position of Debtors Clerk. She was dismissed by the
employer on 13 April 2023, following a disciplinary hearing in which she was
found guilty of the fo llowing allegation: “ giving false information or evidence,
deliberately giving untrue erroneous or misleading information ”.
[5] The employee had been involved in a romantic relationship with a colleague
who was employed by the employer as a Chef and resided o n the premises of
the employer . It seems the employee also had a romantic relationship with
another gentleman, with whom she said they had engaged in protected sexual
intercourse .
[6] The employee fell pregnant and went on maternity leave . She strongly
suspect ed that her colleague was the father of her child , in fact she was
certain that he was the father as she did not suspect the other gentleman of
being the father because she had engaged in protected sex with him.
[7] The employee had a private discussion with her colleague about the child that
was born out of her pregnancy . Her colleague disputed that he was the father
of the child and refused to part -take in a paternity test.
[8] The employee then approached the maintenance court seeking an order t hat
her colleague pay maintenance toward her child as the alleged father of the
child. The maintenance court was seemingly aware that the employee’s
colleague was disputing paternity, and it ordered that the South African Police
Service serve on him a noti ce to participate in a paternity test.
[9] The police served the notice from the maintenance court on the employee’s
colleague, at work. It seems there was some commotion at the workplace
caused by the service of the court notice. In the fullness of time, the
employee’s colleague complied with the court notice by part -taking in the
paternity test. The results were that he was not the father. When the employer
became aware of these results, it decided to charge the employee and
dismiss her for the allegation set out above .
[10] At the disciplinary hearing, the employee had written a statement in which she
accepted that her allegation that her colleague was the father of her child was
incorrect, in light of the results of the paternity test.
[11] Unsatisfied with her dismis sal, the employee referred an unfair dismissal
dispute to the third respondent (the Bargaining Council). She initially sought
reinstatement with full retrospective effect, but it seems she later changed her
mind and claimed compensation instead.
[12] At the arb itration hearing, the employer’s first witness, Mr van Blerk, testified
that he was the Chairperson of the disciplinary hearing that led to the
employee’s dismissal. He applied his mind to the fact that the trust
relationship between the employee and her c olleague was damaged as her
colleague was put through the trauma of being accused of being a father.
[13] Mr van Blerk said the transgression of the employee fell under common law.
When he was asked to explain the rule that the employee had breached in the
workplace, he said:
“Giving false information or evidence, deliberately giving untrue
erroneous or misleading information by saying someone is the father of
your child, going to the maint enance court, bringing the SAPS to the
company. If she had brought them to his house that wouldn’t have
been a problem, but inside the company premises is not on”.
[14] However, Mr van Blerk later accepted that the employee’s colleague resided
on the employer’s premises, which is why the Police had served the court
notice on him at the workplace. He also later confirmed that the employee
was not charged for the Police coming to the workplace, but was charged for
making untrue statements about a colleague being t he father of her child.
[15] The employee averred that this incident did not involve the employer as it
involved conduct outside the workplace.
[16] The Commissioner rendered an award finding that the employee had not
committed misconduct and that her dismissal was substantively unfair. The
Commissioner awarded compensation to the employee in the amount of
R156 000.00, being her eight months’ salary. The employer complains that
the Commissioner’s decision is not one that a reasonable decision -maker
would make based o n the evidence that was presented at the arbitration.
Analysis
[17] The test for setting aside an award on review is trite. In Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others ,1 the Constitutional Court held
1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para
110.
that section 145 of the Labour Relation s Act2 (the LRA) was suffused by the
Constitutional standard of reasonableness:
“[110] To summarise, Carephone held that section 145 of the LRA was
suffused by the then constitutional standard that the outcome of
an administrative decision should be justifiable in relation to the
reasons given for it. The better approach is that section 145 is
now suffused by the constitutional standard of reasonableness.
That standard is the one explained in Bato Star : Is the decision
reached by the commissioner one that a reasonable decision -
maker could not reach? Applying it will give effect not only to
the constitutional rig ht to fair labour practices, but also to the
right to administrative action which is lawful, reasonable and
procedurally fair” (own emphasis).
[18] In Herholdt v Nedbank Ltd ,3 the Supreme Court of Appeal summarised the
review test in the following terms:
“[25] In summary, the position regarding the review of CCMA awards
is this: A review of a CCMA award is permissible if the defect in
the proceedings falls within one of the gr ounds in s 145(2) (a) of
the LRA. For a defect in the conduct of the proceedings to
amount to a gross irregularity as contemplated by s 145(2) (a)(ii),
the arbitrator must have misconceived the nature of the inquiry
or arrived at an unreasonable result. A re sult 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 particular facts, are not in and of themselves sufficient for an
award to be set aside, but are only of any consequence if their
effect is to render the outcome unreasonable ” (own emphasis).
2 No. 66 of 1995 .
3 Herholdt v Nedbank Ltd (2013) 34 ILJ 2795 (SCA) , [2013] 11 BLLR 1074 (SCA), at para 25.
[19] On the undisputed facts of this case, the employee had sexual intercourse
with her colleague, presuma bly outside the workplace . The employer did not
take issue with this conduct. When she fell pregnant, she suspected that her
colleague was the father of her child. Upon his refusal to do a paternity test,
she took him to the maintenance court, outside the workplace. The only
reason why the employer became involved is that the notice directing the
employee’s colleague to take a paternity test was served by the Police on the
employee’s colleague at the workplace, which happened to also be his place
of residence.
[20] In Edcon Limited v Cantamessa and Others ,4 the Court held that “ the general
rule is that an employer has no jurisdiction or competency to discipline an
employee for conduct that is not work related which occurs after working
hours and away from the workplace ”.
[21] In my view, the employee’s conduct was not work -related and was away from
the workplace . She had no control over the service of the notice to part -take in
the paternity test, once she had lodged her complaint with the maintenance
court. There are no exceptional factors that would justify a deviation from the
general rule set out in Edcon Limited v Cantamessa .
[22] Importantly, the employee’s conduct did not amount to misconduct. She was
clearly not dishonest at all. An allegation of dishonesty would presuppose that
she knew that her colleague was not the father of her child but she
nevertheless accused him of being the father of her child. However, this
proposition is defeated by the fact that the employee seemingly had no
objection to her colleague taking a paternity test. She had privately called
upon him to take such a test before approaching the maintenance court for its
intervention once he had rejected her request . She would not have made
such a request if she knew that its results would contradict her allegation that
her colleague was the father of her child , as this would defy common sense or
logic, and there is no evidence that she was illogical to that extent .
4 Edcon Limited v Cantamessa and Others (2020) 41 ILJ 195 (LC), [2020] 2 BLLR 186 (LC) at para
12.
[23] The mere fact that the employee’s suspicion was incorrect does not mean she
committed misconduct. The employer unfairly focused on the feelings of the
male colleague who may have been embarrassed by the allegation that he
was the father of the employee’s child, and ignored the need to determine
with certainty whether the employee ’s colleague was the father in order to
ensure that the child’s right to maintenance was properly upheld . The
employer was insensitive towards the employee as a woman and a mother
and it is unacceptable that she had to lose her job as a result of these
baseless allegations that were brought against her.
[24] Under all the circumstances, the Commissioner’s decisio n that the dismissal
was substantively unfair is one that a reasonable decision -maker would make,
and it should not be disturbed .
Costs
[25] The application was not opposed and as such there should be no order as to
costs .
[26] In the premises, the following order is made :
Order
1. The review application is dismissed .
2. There is n o order as to costs.
_________________________
VG Mkwibiso
Acting Judge of the Labour Court of South Africa
Appearances :
For the Applicant : Adv L Pillay
Instructed by : Yusuf Nagdee Attorney
For the First Respondent : No appearance