IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable
Case No: JR 760/21

In the matter between:

SANDTON MINING (PTY) LTD Applicant
and

SOLLY MASHEGO N.O First Respondent

COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent

AMCU obo PIENAAR KHUBEKA Third Respondent

Heard: 20 February 2024
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand- down is deemed to be on 07 May
2025


JUDGMENT

TLHOTLHALEMAJE, J

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Introduction and background:

[1] In this opposed application, t he applicant seeks an order reviewing and
setting aside the arbitration award issued by the first respondent (Commissioner)
acting under the auspices of the first respondent, the Commission for Conciliation
Mediation and Arbitration (CCMA). In the award, the Commissioner found that the
dismissal of the individual third respondent, Mr Khubeka (Khubeka) was
substantively unfair and further order ed his reinstatement together with back -pay.

[2] The application for review was filed some three days outside of the statutory
time limits contemplated in section 145(1)(a) of the Labour Relations Act (LRA)1.
Condonation was sought in this regard and not opposed. Due to the insignificant
amount of the delay and the explanation proffered in that regard, the interests of
justice dictate that the late filing of the review application be condoned.
The proceedings before the Commissioner:
[3] Khubeka was employed with effect from April 2019 and had occupied the
position of Water Bowser Operator at the time of his dismissal in July 2020. Having
referred a dispute to the CCMA and upon the failure of attempts at conciliation, the matter came before the Commissioner for arbitration.
[4] Khubeka was dismissed for alleged misconduct in that on 3 July 2020, he
had called the members of the SAPS and reported that the applicant as an employer , had contravened the then promulgated National Lockdown Regulations.
The report and information to SAPS according to the applicant, was false; done in an attempt to bring its name into disrepute or cause it damage or sabotage its operations . Khubeka was said to have made the report without first utilising the
internal grievance procedure.
[5] The evidence before the Commissioner was that the information or report
made by Khubeka to members of SAPS pertained to the applicant’s alleged non -

1 Act 66 of 1995
3
compliance with Covid -19 regulations pertaining to the issuing of masks, sanitizers
and enforcement of social distancing.

[6] In justifying the fairness of the dismissal, the applicant relied on the evidence
of Mr Ruan Moore, its Site Manager. He had refuted that the applicant had failed to
comply with the Regulations in that all employees were issued with all the required
Covid-19 personal protective equipment (PPE) daily . These included hand gloves,
sanitizers and facemasks. He had further testified that social distancing was adhered
to and always enforced at the workplace. Documentary proof in the form of
attendance registrars of employees and their signatures of acceptance of PPE was
referred to.

[7] Moore had testified that after Khubeka and other employees had
complained, members of the SAPS came to the workplace, and in one instance, they
came on no less than five occasions to the workplace to investigate the complaint .
Meetings were also convened between management, members of the SAPS and employees , where their complaints were addressed.

[8] Moore testified that Khubeka was identified in a meeting held on 20 April
2020 as the employee who had called members of the SAPS and complained about
the applicant’s alleged non- compliance with the regulations. This came about at the
meeting when he was identified by the members of SAPS. His identification came about after the members of SAPS were asked to identify the caller of the complaint’s
phone number , which happen to have been that of Khubeka when his phone rang in
the meeting. According to Moore, K hubeka when identified had initially denied that it
was him, but he later conceded that he was indeed the complainant who made the
call.
[9] The applicant’s Safety Office, Mr Nathi Maseko merely confirmed his
presence at the meeting of 20 April 2020 with the members of the SAPS and employees, and the identification of Khubeka at a meeting through the call to his phone, as the complainant who had contacted the SAPS.

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[10] Khubeka’s version of events in disputing the fairness of the dismissal was
that his phone was used by a shop steward named ‘Shorty’, as the latter did not
have airtime to make the call from his phone. He testified that employees had reason
to be aggrieved because of shortages of PPE.

[11] The Commissioner in the award had recorded that Khubeka’s version was
different from the one he gave at the disciplinary enquiry. When this was put to him
under cr oss-examination, his response was that he could not recall what he had said
at that enquiry . His version at the disciplinary enquiry was that it was his daughter
who had used his phone to call members of the SAPS about an unrelated matter.

[12] Mr Moses Makwakwa’s testimony on behalf of Khubeka was merely to
confirm that employees were aggrieved with problems related to lack of PPEs, and
the shop stewards’ decision, more particularly, the said ‘Shorty’ , to call members of
the SAPS for intervention. He also testified that ‘Shorty’ used Khubeka’s phone to make the call to members of the SAPS.

The Commissioner’s findings :
[13] The Commissioner held that he was confronted with ‘highly factual’ disputes
and different versions and determined that there were two central issues for
determination, i.e., whether Khubeka made the phone call to members of the SAPS,
and whether the complaint was unsubstantiated and false, in the light of the charges preferred against Khubeka.
[14] The Commissioner concluded that from the evidence, Khubeka was the
person who made the call from his own phone to members of the SAPS. The
corroborating evidence of Maseko was not helpful in the absence of that of the said
‘Shorty’, who was not called upon to testify . The Commissioner also drew negative
inferences from the different versions Khubeka gave at the internal disciplinary
enquiry and at the arbitration proceedings.

[15] As to whether the complaint made to members of the SAPS was false, the
Commissioner concluded that indeed there was reason for the employees to
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complain about the shortage of PPE. The Commissioner concluded that the
evidence of Moore and the documentary evidence produced in support of the contention that the applicant complied with the regulations, was unsatisfactory in
proving that there was compliance.

[16] The Commissioner concluded that there were no records placed before him
to prove that PPEs were issued to the employees long before the meeting of 20 April
2020, and accordingly, the applicant failed to show on a balance of probabilities that
Khubeka’s complaint was false. It was against these considerations that the
Commissioner had made a finding of substantive unfairness and the appropriateness
of the award of reinstatement and back -pay.

The grounds of review:

[17] The applicant contends that the Commissioner committed a gross irregularity
in the conduct of the arbitration proceedings in that despite the parties’ agreement at those proceedings that the only issue for determination was whether Khubeka had
made the call to SAPS, the Commissioner had found the dismissal to be unfair
based on a different issue.

[18] It was further submitted that the Commissioner failed to consider certain
evidence led by Moore and Maseko, and that despite acknowledging the narrow issue to be determined, he had nonetheless relied on other issues in making his
findings.
The legal framework and evaluation:

[19] The test on review is well- known. The primary enquiry before the reviewing
Court is whether the conclusion arrived at by the commissioner is one that a
reasonable decision- maker could not have reached based on the material before him
or her
2. In Herholdt , the SCA reaffirmed the need to preserv e the distinction between

2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] 12 BLLR 1097 (CC) at
para 110. See also Herholdt v Nedbank Ltd and Congress of South African Trade Unions (Amicus
6
review and appeal , and appreciated that inasmuch as the reviewing court must
necessarily scrutinise the evidence to determine whether the outcome was
reasonable, it must guard against 'judicial overzealousness ’ in setting aside
administrative decisions that do not coincide with the judge's own opinions.

[20] The SCA reiterated that on the Sidumo test , there would be justification to
set aside an award on review , if the decision was ‘entirely disconnected with the
evidence or was unsupported by any evidence’ and involved speculation by the
commissioner3.

[21] The SCA added that the primary focus of the Sidumo test is on the
reasonableness of a decision reached as opposed to how the decision was reached. Thus, inasmuch as the reasons for the arbitrator’s findings must be examined, a flaw
in the reasoning in arriving at a conclusion, is not in itself sufficient to set aside the award. The reviewing court must still examine whether or not the conclusion reached
by the arbitrator is not one a reasonable decision- maker could reach.
[22] To the extent that the applicant in this case relied on the grounds of review
as contemplated in section 145 (2)( a)(ii) of the LRA in alleging gross irregularities in
the conduct of proceedings, the SCA in Herholdt had held that t he general principle
is that a “gross irregularity” concerns the conduct of the proceedings rather than the merits of the decision. It added that a qualification to that principle is that a “gross
irregularity” is committed where decision- makers misconceive the whole nature of
the enquiry and as a result misconceive their mandate or their duties in conducting the enquiry. That ground of review however, was not to be read in isolation, as it was
suffused in the legal principle of ‘reasonableness’.


Curiae ) (701/2012) [2013] ZASCA 97; 2013 (6) SA 224 (SCA); [2013] 11 BLLR 1074 (SCA); (2013) 34
ILJ 2795 (SCA) at para 25, where it was held;
“… A review of a CCMA award is permissible if the defect in the proceedings falls within one of
the grounds in s 145 (2)(a) of the LRA. For a defect in the conduct of proceedings to amount to a
gross irregularity as contemplated in section 145 (2)(a) of the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable result. 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
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.
3 At para 13.
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[23] Applying the above principles to the facts of this case, it is apparent from the
transcribed record of proceedings that during a process of narrowing down the
issues, the central dispute for determination was whether Khubeka made the
complaints/statement to the members of SAPS. He had denied having made the
complaint . Against this primary issue, the Commissioner informed the parties’
representatives that the onus was then on the applicant to prove that the statement/complaint was made by Khubeka, and that once this was established, that was the end of the matter
4.
[24] The basis of the alleged gross irregularities in the conduct of the
proceedings was that despite the narrow issue for determination as ventilated in the process of narrowing down of the issues, the Commissioner went beyond that issue, and in the process, denied the applicant a fair trial of the issues as he did not allow
its witnesse Maseko to testify on issues surrounding whether the applicant had
complied with the regulations.
[25] It was submitted on behalf of Khubeka that indeed the issues for
determination before the Commissioner were crisp, in that central to the
determination of the fairness of the dismissal were the charges that led to that
dismissal. In this regard, it was argued that the issues were whether Khubeka had made a call to members of the SAPS, and if so, whether the call and statements made were false.
[26] In regards to the issue of who was responsible for making the complaint to
members of SAPS, the Commissioner had concluded that it was indeed Khubeka who had done so from his phone. The applicant’s contention was that the enquiry ought to have ended at that point as this was the main issue for determination as agreed upon in the narrowing down of issues.
[27] The difficulty however with that proposition is that it is trite that within the
framework of section 188(1)(a) of the LRA, a dismissal that is not automatically
unfair, is unfair if the employer fails to prove that the reason for dismissal is fair .

4 See Transcribed Record at pages 14, lines 4 - 25
8
Effectively, the Commissioner was obliged, notwithstanding the parties’ narrowing of
the issues, to determine the fairness of the reason for the dismissal.

[28] The contention that the Commissioner had not allowed evidence to be lead
in regards to the alleged non- compliance with the regulations is however not borne
out by the transcribed record. In this regard, the Commissioner indicated that he
could not leave the issue unaddressed5, and had asked Moore about the documents
(attendance registrars) he had relied upon in proving that there was compliance with
the regulations to demonstrate that the report to the SAPS was false. Moore had
indeed testified on the issue6. The only criticism that can be directed at the
Commissioner is that having asked Moore about these issues, he did not afford the representatives an opportunity to ask Moore any further questions arising from his
own questions. However, w hether this omission constituted a gross irregularity which
had a distorting effect on the outcome ultimately reached in the sense that the applicant was denied a fair trial of the issues is something else. [29] Against the charges that led to the dismissal, even if on the applicant’s
version the finding of the Commissioner in regard to the identity of the caller and
complainant to the SAPS as Khubeka ought to have been the end of the matter
based on the issues as narrowed before the Commissioner, the enquiry went beyond
that, in the sense that the Commissioner was obliged to consider the appropriateness of the sanction of a dismissal. Of course this is not the enquiry the Commissioner undertook as he had considered the overall reason for the dismissal, something he was obliged to do.
[30] Against the omissions on the part of the Commissioner that the Court has
identified, ordinarily an appropriate order to make would be to remit the matter to the CCMA for a hearing de novo. This approach however in my view would not assist
the parties in bringing this dispute to an end since Khubeka’s dismissal in July 2020. Of course some of the delays were at this Court’s door in view of the time it took to deliver the judgment. The Court can only apologise to the parties in this regard.


5 At page 49, lines 21 - 24
6 At pag es 50 55
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[31] The point being made with the above observations is that the full transcribed
record of the proceedings as was before the Commissioner together with the parties
pleadings are before the Court, and it is therefore in a position to finally dispose of
the matter rather than remitting it

[32] The Court in having considered the transcribed record, also takes into
account that the applicant confined its case to the founding affidavit and omitted not
to file a supplementary affidavit . Be that as it may , I have already dealt with the
primary issue for determination as recorded by the Commissioner, being whether it
was Khubeka who had made the complaint to SAPS and the Commissioner’s
conclusions in that regard which are not a subject of a cross -review.

[33] It is my view that a mere finding that it was Khubeka who had made the
complaint could not have been the end of the matter, as it was more the nature and
context of that complaint that would have led the applicant to conclude that the
intention thereof was to sabotage its operations or impugn its reputation. Such a
conclusion could not have been made from a mere confirmation that it was Khubeka
that had made the complaint. It is against these factors that bar the fact that the
Commissioner did not afford the parties an opportunity to ask more questions
emanating from his own questions to Moore, the fact remains that the latter had
indeed testified in regards to how the applicant had complied with the regulations.
Equally so, in Sidumo , it was said in the minority judgment of Ngcobo J, that 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. It was added that
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
7. In my view this is what the
Commissioner had done in this case.

[34] It is apparent from the questions posed by the Commissioner to Moore in
regards to allegations of non- compliance with the regulations, that the former was
not convinced that based on the latter’s evidence and the documentary evidence

7 At para 267
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relied on, there was proof that there was indeed compliance. Other than the
questions posed to Moore by the Commissioner, the record also reflects that the applicant’s representative had even posed questions to Moore about the same
issues, despite the applicant’s complaints in this review that Moore or Maseko were
not afforded an opportunity to address those issue s.

[35] In the light of the above considerations, it is my view that the gross
irregularity allegedly committed by the Commissioner does not qualify as such, and
even if there was any, on the Sidumo test, the Commissioner’s conclusions cannot
be faulted. This is so in that the evidence relied upon by the Commissioner cannot
be said to have been disconnected to the facts, nor can it be said that he
misconceived the whole nature of the enquiry and as a result , misconceive d his
mandate or his duties in conducting the enquiry.

[36] Other than the above considerations, it is trite that a mere finding of guilt is
not sufficient to justify a sanction of dismissal. Item 2 (1) of the Code of Good
Practice: Dismissal provides that whether or not a dismissal is for a fair reason is
determined by the facts of the case, and the appropriateness of dismissal as a
penalty, as such a penalty should be reserved for cases of serious misconduct or
repeated offences. It was long held in Sidumo that a variety of factors must be
considered in determining the fairness of a dismissal, inclusive of aggravating and
mitigating factors
[37] In this case, the Court accepts that Khubeka’s denial that he had made the
complaint is indeed an aggravating factor. However, this factor on its own is not in the light of the Commissioner’s other conclusions on the content and veracity of the complaint, sufficient to have warranted a dismissal. It is correct that Khubeka ought
to have been sanctioned for lying when questioned about whether he was
responsible for contacting the SAPS. However, it is repeated that a sanction of
dismissal on all the facts bef ore the Commissioner was unwarranted. At most , what
can be regarded as not falling within the band of reasonableness is the
reinstatement with full the backpay that was awarded, in circumstances where
Khubeka had lied.

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[38] I have further had regard to the requirements of law and fairness in regards
to costs. It was correctly submitted on behalf of AMCU and Khubeka that each party
must be burdened with its own costs. This is the order I propose to make.

[39] Accordingly, the following order is made’
Order:
1. The late filing of the application for review is condoned.
2. The application to review and set aside the First Respondent’s
award dated 18 March 2021 is successful only to the extent that an award of back -pay was made to the Third Respondent (Mr Khubeka).
3. The First Respondent’s award is accordingly substituted to read as
follows;
(i) The dismissal of Mr Khubeka was substantively unfair .
(ii) The Applicant is ordered to reinstate Mr Khubeka into the same or
similar position he previously occupied prior to his dismissal.
(iii) Mr Khubeka is not entitled to any form of back -pay resulting from the
order of retrospective reinstatement .
4. Each party is to pay its own costs .

Edwin Tlhotlhalemaje
Judge of the Labour Court of South Africa

Appearance :
For the Applicant: Adv. AC Diamond, instructed by Jansen Van Vuuren Attorneys .
For the Third Respondent : Adv. A L. Cooke, instructed by Larry Dave
Incorporated Attorneys .