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THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Not Reportable
Case no: JR 28/23
In the matter between:
SIPHO GOODWILL VILAKAZI Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE
CHEMICAL INDUSTRY First Respondent
P MBATSANA N.O. Second Respondent
AFRICAN OXYGEN (PTY) LTD t/a AFROX Third Respondent
Heard: 18 FEBRUARY 2025
Delivered: 11 March 2025 (This judgment was handed down electronically by
emailing a copy to the parties. The 11 March 2025 is deemed to be the date of
delivery of this judgment).
Summary: The applicant was dismissed for promoting disharmony in the
workplace. He claimed that on the relevant date he was investigating theft of
products and this resulted in a conspiracy against him by his subordinates.
Held that the second respondent did not analyse the evidence, consider the
probabilities of the two versions and come to a decision that a reasonable
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decision maker would make. The matter is remitted to the first respondent to
be heard before another commissioner.
JUDGMENT
SEEDAT AJ
Introduction
[1] The applicant ( Mr Vilakazi) , an operations supervisor employed by the third
respondent (Afrox) at its Trichardt site in Mpumalanga, was dismissed on 16 August
2022 for ‘promoting disharmony in the workplace’ .
[2] He referred a claim of an unfair dismissal to the first respondent and o n 30
November 2022, the second respondent (the commissioner) issued an award upholding the dismissal.
[3] Mr Vilakazi now seeks to review and set aside th e award. Afrox opposes this
application.
The third respondent’s version
[4] Afrox avers that on 19 July 2022, Mr Vilakazi had an argument with Ms
Bukula , a sales counter representative. He then instructed the yard assistants who
are tasked with helping customers to load and offload gas cylinders, not to assist
customers.
The applicant’s version
[5] Mr Vilakazi categorically denies the incidents of 19 July 2022, saying that on
this day he was involved in an investigation relating to theft of stock from the depot
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on the previous day. He claimed that the implicated employees had turned against
him.
The award
[6] The commissioner found that Afrox had established a prima facie case
against Mr Vilakazi and his attempt to claim that his subordinates had conspired
against hi m because he was investigating their “ wrongdoings ” remain
unsubstantiated. He held the dismissal to be fair.
Grounds of review
[7] Mi Vilakazi says that the commissioner committed a gross irregularity or
misconduct in relation to his duties as commissioner or his decision is not one which a reasonable decision maker could reach in that –
• he failed to apply his mind to the issues placed before him and thereby
failed to identify the true nature of the dispute before him ;
• he concluded that Mr Vilakazi raised a “ conspiracy theory ” when he
was investigating several employees, including Ms Bukula, for theft ;
• he failed to appreciate that Mr Vilakazi did not have to prove the
unfairness of his dismissal ;
• Ms Buluka was not called as a witness to confirm her email of 31 May
2022.
The test for review
[8] The test that the Labour Court has to apply in an application for review of an
arbitrator’s award is whether “the decision reached by the commissioner is one that a
reasonable decision maker could not reach?”
1 In applying this test, the court must
1 Sidumo & others v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC)
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enquire into the merits of the matter and all the evidence on record in deciding what
is reasonable.2
[9] Tlhotlhalemaje J in Penbro Kelnick (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration3 cited the Constitutional Court in Duncanmec (Pty) Ltd v
Gaylard NO4 that the “principal enquiry is whether the award itself meets the
requirements of reasonableness, in the sense that there are reasons supporting its conclusions” .
Analysis of the award
[10] The commissioner’s award is disturbingly defici ent in a cogent summation of
the facts and a trenchant analysis of the evidence. In a few words , the commissioner
recounts the evidence of Ms Madi5 and Ms Nkcengani ,6 briefly regurgitates the
testimony of Mr Monnamontso7 and comes to the conclusion that the “testimonies
from these witnesses successfully established a prima facie case against the Applicant” .
[11] There were disputes of fact between the versions of Afrox and Mr Vilakazi and
the commissioner was impelled to decide between the two versions before him .
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[12] The commissioner was obligated to consider the probabilities of the conflicting
versions. The credibility of the witnesses would have been an aid in weighing up the probabilities and coming to a conclusion that would be reasonable in the factual
2 CUSA v Tao Ying Metal Industries & others (2008) 29 ILJ 2461 (CC); Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) ; Southern Sun Hotel
Interests (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2010) 31 ILJ 452
(LC)
3 [2024] 7 BLLR 706 (LC)
4 (2018) 39 ILJ 2633 (CC) at para 43
5 A stores and warehouse learner under Mr Vilakazi’s supervision
6 A cleaner based at Afrox
7 A forklift driver at the site in Trichardt
8 SFW Group Ltd & another v Martell et Cie & others 2003 (1) SA 11 (SCA) at para 5
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context. This the commissioner did not do. He also ignored the fact that Mr Vilakazi’s
version was not put to Afrox’s witnesses.9
[13] Because the commissioner arrived at his decision without properly
considering the evidence, his conclusion was not justifiable in relation to the
evidence presented at the arbitration. The commissioner did not apply his mind to all
the material issues before him and as a result he committed gross irregularities in
the conduct of the arbitration. I must find that that the award is not one which a reasonable decision maker could have made.
[14] Because there are issues of fact that were not considered in the award and
can only be articulated on evidence, the appropriate relief is to set aside the award
and refer it back to the first respondent to be heard de novo by another
commissioner.
[15] This is not a matter that calls for the awarding of costs
[16] In the circumstances, t he following order is made:
Order
1. The arbitration award of the second respondent given under case number
CHEM40 -22/23 dated 22 November 2022 is reviewed and set aside in its entirety
and remitted to the first respondent to be heard de novo by another commissioner .
2. There is no order as to costs.
S Seedat
Acting Judge of the Labour Court of South Africa
Appearances:
Applicant: Attorney MM Baloyi
Instructed by: MM Baloyi Attorneys
9 President of the Republic of South Africa v South African Rugby Football Union2000 (1) SA 1 (CC)
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First Respondent: J Baloyi
Instructed by: Baloyi Attorneys Inc