THE LABOUR COURT OF SOUTH AFRICA
AT CAPETOWN
In the matter between:
SASSO THE FINANCE UNION 080
ALISTAIR STEENKAMP
AND
AFRICAN
D ARBITRATION
Heard: 21 June 2023
Delivered : 30 May 2025 Applicant
1 sr Respondent
2No Respondent
3Ro Respondent 1
JUDGMENT
DUBAAJ
Introduction
[1] This is an application in terms ·of s·ection 145 of the
1995 as amended , to review and set aside the~IQ~
Second Respondent (Commissioner) under t
Respondent (CCMA) on 23 Septembe r; 92;~. ssued by the
Third
[2] In terms of the award1 the Com that the dismissal of the
Applicant , Mr. Alistair Stee as procedurally -and substantively fair.
[4] TH•i!f'-/S.~licant ,Employee) commence employment on 21 May 2018 holding a
o Customer Relations Consultant. At the time of his termination of
em ment he held a position as a Driver, earning an amount of R11 140. 74. 2
[5] On 23 February 2021, the Applicant received a notice2 to attend disciplinary
hearing to be conducted on 2 March 2021. The allegations against the Applicant
are the following:
1 Pleadings bundle P.21
2 Additional documents P 63 -64
... First. charge: Negligence
During the period 25 to 26 October 2019, you allegedly acted in a
negligent manner when you left the company speakers, used e
marketing, overnight in the vehicle when it was raining, /:Ji e yo
aware of the leaking roof The speakers got damage
negligence .
On the 28 November 2019, you allegedlv 19creQ..
not keeping the company laptop safe
you lost the laptop due to your
•,
he company cell phone in an
unlocked vehicle per care, the cell phone was stolen,
f vehicle for private use. 3
Durin "danuary to December 2019, it is alleged that you parked
at times at the residence of a relative without overnight
is is in breach with the Bank's rules and policy.
[6] pleaded guilty on charge one. The chairperson of the inquiry
foun Im guilty on the first charge and not guilty on the second charge. 3
[7] Subsequently , the employment service of the employee was terminated on 31
March 20214. A dispute was declared the CCMA for unfair dismissal and the
matter was arbitrated, which award is before court.
3 Additional documents bundle P 204 -215
4 Pleading bundle P 10, founding affidavit Par 14
4
Overview of the analysis
[8] Before the commissioner, the parties agreed that the central issue for
determination was the harsh.ness of the sanction, and consequent!
dismissal was appropriate under the circumstances.
[9] On the analysis of evidence an? argu~ent the commis
following findings5:
5 Pleadings P 28 38. The Applicant was charged with thr
Applicant admitted guilty to the alle ati
the Applicant's statements regar
admitted in the case of the dama ents was submitted of
wherein the Applicant
rs that he was aware of the
might in the vehicle. The
Applicant statem
kept the lapt g the laptop that went missing shows that he
ats in the vehicle, which is against the
eport, submitted as evidence, indicates that the
the vehicle boot. The laptop was stolen out of the
e Appl cant furthermore confirms in his statement that on the
e"'Gell1>hone was stolen from the vehicle on 28 November 2020,
icle was unlocked and his statement indicates that he was_
e vehicle for a long period of time. rhe facts leading to the
amaged of the speakers differed in relation to the missing laptop and cell
hone. In the case of the .laptop and the cell phone the facts very similar in
that company property.was stolen, whilst it was in po~_session of the
'Applicant. In both circumstances property was remov_ed from the vehicle
and no proof of force entry was found. In the incident where the cell phone
was stolen, the Applicant admitted that he failed to lock the vehicle. The
I,' 5
forensic report indicated that in the incident.of the stolen laptop, it could
not find proof of force entry, which makes it more probable that the
Applicant in that instance, also failed to lock the vehicle. Taking into
consideration the evidence submitted, I find that the Applicant was indeed
negligent when the speakers were damaged and when the laptop and cell
phone were stolen.
39. Evidence was tendered that the incidents of neglige
place at the same time, with the first incident takin p
November 2019, the incident of the stolen lap op ta e
November 2019. The cell phone being stolen o 0 No mber 2020. The
Applicant argued that dismissal was
submitted that the Applicant pl
Schedule 8 of the Good Practic
discipline, where there exists a g ._,.,.,_,, ility of rehabilitation of the
employee . The Applican mi not have had other warnings for similar
conduct, however e hree separate incidents acted in a
negligent m uard the equipment entrusted to him. It
may ha nary process that he was subjected to,· but
this d e fact ·that he was negligent on three separate.
and ta·· ed to learn from earlier incidences of negligence which
e t6 or loss of the employer's property. A period of
ly 11 months elapsed between the laptop and cell phone
m ssing from the vehicle, which indicates that the Applicant failed to
take the necessary precautions to care after the respondent property and
o rehabilitation is evident. Taking into consideration the evidence I
cannot find the chairperson 's considerations were unreasonable and find .. .
the dismissal was fair in the circumstances.
The Review
[1 O] It is trite that the grounds for review must be supported by totality oft
evidence presented during arbitratien proceedings. The primary
commissioners were mentioned in Gold Fields Mining Sout
.. . (Kloof Gold Mine) v CCMA and Others6 where the court
"in short, a review court must ascertain
presented at the hearing
reasona~le to justify the d or she arrived at"
1 sioner committed a gross irregularity in excluding
. .
tion and preventing the Applicant to testify on the
s of the misconduct, .
t the misclassification of the nature of misconduct and the finding
that the conduct of the Applicant was dismissible
Failure by the commission~r to have regard to the collective
agreement and its objectives to apply corrective and progres·sive
discipline
6 [2014] 1 BLLR 20 (LAC) 6
-Failure by the commis~ioner to apply his mind to material facts before
him pertaining to the trust relationship
Gross irregularity in that he misconceived the true nature of the
misconduct which misinformed his assessment on the appr
of the sanction of dismissal.
[12] The court have considered th~ grounds for review and ga e .
those that the arbitration award.adjudicated upon.
[13] According to the Applicant the principl
Commissioner for determination ,. was sanction of dismissa l, within
the totality of faqts and circ es on the matter, was too harsh and
consequently unfair.
[14] The Applicant it ·, at the circumstances and context of a material
the di iplinary process, the Commissioner's finding of a
fair penalty or sanction amounts to a finding, that no
'drrrm'i·'G.c:.i·on~r, acting reasonably could have reached. Also considering the
ial recommended or prescribed penalties for negligence in terms of the
F-:ifs Respondent disc iplinary code under item 387 that:
7 Additional documents bundle P 130 7
8
Negligence, which may or may not be gross arid which may or may
not result in a loss to the bank:
Possible sanction:
Written / final written warning -Dismissal
[15] The Applicant averred that the Commissioner prevented h the
seriousness of the misconduct and the incorrect cl
infuse evidence that the offence hcts an.elem
Applicant was dismissed for neglig·ent .
• justify the dismissal.
[16] The First Responde he Commissioner allowed the par-ties to
t. Therefore, an allege failure to consider the
urrounding the misconduct is not, on its own a fatality as
arges, the commissioner. was correct in his approach on the dispute.
.. - ' ' •
[17] In my view the Commissioner misdirected and misconceive the issues placed
before him as the record indicates otherwise . At the commencement of the
hearing specifically interjected8 the parties during the hearing alleging that the
issues are not in dispute the evidence already exist and the incidents are not in
dispute. As a result, the Commissioner misconceive the nature of the inquiry
which lead to no fair trial of issues with the result that the award sta
aside on that ground alone.
[18] In the matter of Head of Department of Education v Mo
LAC held that:
[30] the failure by an arbitrator to apply
However, the Supreme C 9
an irregularity will result in the setting aside
reveal a misconception of the true enquiry
., .. ___ .,..,. ermination of whether a decision is unreasonable in its result is
rcise inherently dependent on variable considerations and
' '
ircumstantial factors. A finding of unreasonableness usually implies that
some other grounds is present, either latently or comprising manifest
unlawfulness. Accordingly, the. process of judicial review on grounds of
unreasonableness often entails examination of inter related questions of
8 Transcribe record P 77 -78 & P 85 -86
9 (2015) 36 IU 28002 (LAC)
•
10
rationality, lawfulness and proportionality , pertaining to the purpose, basis
reasoning or effect of the decision, corresponding to the scrutiny
envisioned in the distinctive review grounds developed casuistically at·
common law, now codified and mostly specified in section 6 of the
Promotional of Administrative Justice Act (PAJA), such as faifng to apply
the mind, taking into account irrelevant considerations, •
considerations, acting for an ulterior purpose, bad
capriciously etc. The court must, nonetheless
from the flawed reasons of or any irreg 1 rit
could be reasonably reached in Ii
Moreover , judges of the labour
the reasonableness of t
SCA held in Herol efi is subjected to scrutiny. As the
ust not misconceive the inquiry or
~ conceived manner. There must be a fair trial
rities or errors in relation to the facts or issues, therefore , may
t produce an unreasonable outcome or provide a compelling
a 10n that the arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality of the error or irregularity and its-relation to
the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not
have had upon the arbitrator 's conception of the inquiry, the delimitation of ..
': .... the issu~s to be determined and the ultimate outcome. If the but for an
error or.irregularity a different outcome would have resulted, it will ex 11
hypothesi be. material to the determination of the dispute. A material ~rror
of this order would point to at least a· prima facie unreasonable result. The
reviewing judge must then have regard to the general nature
decision, in issue, the range of :relevant factors informi
nature of the competing interest impacted upon b he
ask whether a reasonable equilibrium has be
the objects of the LRA. Provided the r'
answered by the arbitrator, a wron
unreasonable. By the same tok , the
~;Jil,;:i.'fe a misconception of the nature
no f ir trial of the issues, with the result that
n that ground alone.
e Applicant wants to rely upon, that the Commissioner
vie al:51e irregularity 1n no\ making a finding on a material issue, •
~ ...........
as fair for the First Respondent to rely on _the Applicant's
ctober and November 2019, in support of its justification for the
fair es of his dismissal, which was clump with the actions of November 2020
[20] Immediately after the incident of October and November 2019 occurred the First
Respondent effectively had a knowlE;dge of the damage and loss of the its
property, and the Applicant reported the incidents with South African Police
Service.
[21] The extensive delay in instituting the disciplinary action against the Applicant,
was raised during the arbitration proceedings specifically at cross­
of the First Respondent's witnesses. ·
[22] In response the First Respondent testified about the inve • ati
investigator fell and sick and hospitalized, but failed
• effect or to call the investigator and his ab ned.
[23] The allegedly details about the illness or, when he became ill
and hospitalized, when he dis 12
espondent to transfer the investigation to
came apparent that the investigator in unable to
complet m a reasonable time jn accordance with their
ct that the First Respondent ultimately dismissed the Applicant for
a ed acts of negligence by clumping the separate incidence together in one
charge which occurred in October and November 2019 and November 2020.
The First Respondent was required to explain why it would be fair to combine
10 Trans.cribe record P 12
the three incidents, occurred over a period of 13 months, and in doing so that
dismissal was a fair penalty in the circumstances.
[26] In terms of the award the Commissioner accepted that the First Respondent .
was entitled to have regard to all the incidents to be clump togeth
decision to dismiss the Applicant for negligence on three seRa
being fair.
[27] The First Respondent argue that the Applicant s~~ks
between the passage of time between the
charge the Applicant with the miscon 13
the commissioner. It is not open to the to introduce waiver on review.
This ground for review sho
f the seriousness of the misconduct was
the evidence on the record that the First Respondent ·
1 states that:
■ Administering of discipline in the workplace is the duty of
management , which will.be administered in a fair, just, consist~nt
and equitable manner.
11 Additional documents bundle P 117 -122
■ The disciplinary code is necessary for the effective operations of
the bank and the fair treatment of employees, and ensures that
employees:
-Have a fair hearing in a formal or informal setting
• Management and/or Group Forensic Servic
compliant within a period of thirty days
after management has became
e the 30 day period in
ere an investigation takes longer than
nd or the compliant or allege offence is •
in nature, 9r for any other reason, and
e bank hereby undertakes not to unreasonably delay
the initiation of the proceedings .
[30] The Applicant submit that the First Respo~_dent Disciplinary Code confers a
general intention to initiate disciplinary .action within 30 days after the relevant
events has come to their knowledge. At the same time reserves its right to 14
institute such proceedings outside the 30-day period within a reasonable time
and not to unreasonable delay the initiation of the proceedings 15
[31] Under the circumstances, it is the Court finding that the Commissioner failed to
• consider the delay which is in contrave'ntion with the First Respond
• disciplinary code to institute the disciplinary action within a rea
while the First Respondent relied on all three incidents of
the decision to dismiss the Applicant. Considering the tac
extensively challenged the delay, the First Re~q~n,
that the delay to institute the disciplinary _ acti
the Labour Relations Act one of its tu
i~sioner concluded that the penalty of
matter because the Applicant was guilty of negligence
referred to the First Respondent disciplinary code dealing with
anner of approach and possible penalties for the offence of negligence, .
........ , .... ,.ifically that disciplinary ought to be approached in the first instance and in a
progressive manner.
16
[34) It is common cause that the Applicant pleaded guilty to the charges of
negligence, the Applicant submit that was indication of being remorseful and did
not waisted time of the First the Respondent.
[35) The Applicant even sign a salary deduction form as per the policy to
phone back, in .evidence he tesUfied that if he was given the opp0 u
reimburse the laptop and the speakers he would have do
[36) During cross examination the Applicant undertook
happen again under his supervision. The Ap
and genuine remorse. The commission is wrong doing
d.~r such a mitigating
factor for the Applicant.
[37] The Commissioner accept airness of the First Respondent reliance on all
he averring factor for consideration herein is the
from earlier instances of negligence and that no
issioner should have decided why, it was fair to opt for the
the three possible prescribed penalties herein being dismissal.
irst Respondent argued that the Commissioner was obligated to
implement progressive discipline, which is incorrect. In fact, the Commissioner's
awcird prov~s that he considered progressive discipline and found that the
Applicant was not a suitable candidate for progressive discipline .
. .
17
[40] The Commissioner applied his mind to the fact that the Applicant was
persistently negligent. Each time he either cause damage to company property
and or lost it causing the employer financial loss. Progressive corrective
discipline would therefore have not befitted the Applicant considering the
repeated negligent conduct by the AppHcant.
[41J In the matter of Nemadzivhanani v Univer_sity of Venda an,
that:
31 "it is so, as was stated in Toyota SA Motor, (Pt
that certain acts of misconduct are of s ure that no length or
service can save an employee who is em, from dismissal. This is not
reasonable justifica s n uture conduct. A plausible and
a etion imposed was not shown to exist and
m.n~r:rthe appropriate sanction"
ne matter that progressive discipline cannot assist, as the
ever disciplined prior the 02 March 2021. Further that future
xist as the employee was not suspended and the First
ndent trusted him with its similar properties until his dismissal,
considering the fact that the· First Respondent took more than a year tp institute
the disciplinary action against the Applicant.
18
[43] The First Respondent also supmitted the Applicant had an obligation to act in
the best interest of the First Respondent and specifically to safeguard its assets .
. He demonstrated by his own conduct that he was an operational risk, and the
First Respondent's property was not safe with him. It would be Llnten
First Respondent to retain the service of the Applicant despite c
evidence of gross negligence. The breakdown of employ
therefore self-evident. The Court is referred to the matte
Resolution Centre of Motor Industry and Others whe
nature of the offence is such that it would lea
evidence would be required. as
[44] The Applicant argue that he ontinue with his tasks and in fact,
was confirmed by t po denr in its own version that no disciplinary
ltlEktJkltied against the Applicant for over a period of 16
e findings of the Commissioner are unreasonable
' a ter of Magumeni Philemon Mathebula v Provinci_al Department of
Agrim:ilture & Rural Development & Land Administration12 it was held that:
12 (2024) 45 IU (LAC) "The burden is on the employer to provide the reason and evidence to
show that it would be intolerable to grant the reinstatement to an
employee . In Booysen v Safety and Security Sectoral Bargaining
19
Council and Others, the Labour Appeal Court (LAC) held that the
threshold to show intolerability is high and cannot be satisfied by the
employer simply reproducing the evidence that was rejected as
insufficient at the point of seeking to justify the dismissal. "
"The required high threshol9 in showing intolerability
understood in the context of the value which, as stated i
Services (Pty) Ltd v Commissioner of
Arbitration and Other is to protect the
envisaged by the section 23 of the Constit tion o
Africa, 1996." and
~ent as
lie of South
[46] In all the circumstances I am persuade
not one that can be reached by a rea issioner's award is
set aside.
1. ,on' award dated 23 September 2021 under case number
5506-21 'is reviewed and set aside. •
2. The arbitration award is substitLlted with an order that the Applicant is
reinstated from the date of this order and be given a final written warning·.
3. The First Respondent to pay the Appi1c~nt six months remuneration as back
pay.
20
4. There is no order as to costs.
J Duba
Appearances :
For the Applicant: Adv. C. Goosen
Instructed by: BJ Erasmus Pieterse Atto
For the Respondent: J. Foster
Instructed by: