IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR1899/21
In the matter between:
MEDICLINIC NELSPRUIT (PTY) LTD Applicant
and
CHARLES THAMSANQA SHIBA First Respondent
GEORGE GEORGIADES N.O. Second Respondent
COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION Third Respondent
Heard: 27 June 2024
Delivered: 09 June 2025
This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing- down is deemed to be 14 h00
on 09 June 2025
JUDGMENT
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ZWANE, AJ
Introduction
[1] A whirlwind workplace romance between the first respondent (Shiba) and his
colleague, Nyakane soured and eventually ended towards the end of the year 2020.
This resulted in the first respondent crashing out ,
1 colloquia lly speaking.
[2] Shiba was later disciplined for continued interactions with Nyakane despite
the applicant’ s management having requested him to cease all communication and
contact with Nyakane, who is employed by the applicant as a reception
administrator. Shiba referred his dismissal to the third respondent (CCMA) claiming
unfair dismissal. Shiba ’s application was successful in that he was reinstated.
[3] Aggrieved by the second respondent’s ruling under the auspices of the
CCMA, the applicant filed the current application for review2 in terms of Section 145
of the Labour Relations Act3 (LRA) .
[4] The applicant seeks an order reviewing and setting aside the second
respondent’s arbitration award (award) which was in favour of Shiba . At the time of
his dismissal, Shiba was employed as a Human Resources Business Partner
(HRBP) , and he opposes this application for review.
Synopsis of relevant background
[5] According to the applicant, Shiba refused to accept that Nyakane no longer
wished to continue their romantic relationship. Consistent with this refusal, Shiba
continued to contact Nyakane via telephone calls and messages. Shiba would also
go to Nyakane’s home to persuade her to reconsider ending their romantic
relationship.
1 Pleadings: founding affidavit, page 8, para s 14 and 15 .
2 Pleadings: notice of motion, pages 1- 4.
3 Act 66 of 1995, as amended.
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[6] Fed up, Nyakane approached the local Court in January 2021 for a protection
order against Shiba , which protection order was granted. On broad strokes, the
protection order prohibited Shiba from communicating with Nyakane either by way of
calls or text messages. The applicant avers that Shiba ignored the protection order
by communicating with and harassing Nyakane at work , as he believed that the
protection order did not extend to the workplace. The harassment included Shiba
phoning Nyakane on her landline at work after she had blocked his calls on her
mobile phone.
[7] The applicant submits that at one point , there was an altercation between
Shiba and Nyakane at the reception area which is the latter’s workstation. Shiba was
at Nyakane’s workstation despite him having been requested by the applicant’s
management to stay away from and cease all contact with Nyakane. It is apposite
that Nyakane did not report to Shiba .
[8] Shiba ’s attempt to win back Nyakane’s heart went haywire. He would rock up
at work on the days he was not on duty just to pass by Nyakane’s workstation. He
request ed a colleague to speak with Nyakane on his behalf.
[9] Shiba was later charged with misconduct namely unprofessional and
unacceptable conduct towards Nyakane and using his position to intimidate her . The
upshot of the disciplinary hearing was a recommendation that Shiba be dismissed,
which recommendation the applicant accepted.
[10] Aggrieved, Shiba referred a dispute of an alleged unfair dismissal to the third
respondent .
The arbitrat ion proceedings
[11] As the dismissal was not in dispute, the applicant bore the duty to begin and
to prove the fairness of the dismissal. The applicant led the evidence of 5 witnesses,
namely Ms Tentile Motha, Ms Carmen Savva, Ms Cecile Strumpher, Mr Bongani
Magagula and Nyakane.
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[12] According to Savva, the applicant was one of the 4 senior managers at the
time responsible for all human resources related issues. Shiba’s conduct towards
Nyakane was in breach of the applicant’s terms and conditions of employment in that it put the name of the applicant into disrepute.
[13] She got wind of the issues between Shiba and Nyakane on 3 March 2021
through an email correspondence from Strumpher, Patient Administration Manager,
who requested her to investigate the matter. She instructed Shiba to stop all contact with Nyakane and her colleagues at the reception. Shiba was later disciplined and
dismissed.
[14] Strumpher testified that Magagula, Reception Supervisor and Nyakane’s
direct line manager, reported the reception incident to her. The incident is that Shiba phoned reception and asked to speak with Nyakane . Magagula answered the call
and advised Shiba that Nyakane was unavailable as she was busy attending to patients at reception. Shiba then came to the reception and asked to speak with
Nyakane. She refused to talk to Shiba and was upset as a result. Shiba left the
reception.
[15] When Magagula came to Strumpher’s office to report the reception incident,
Shiba was in her office. In his defence, Shiba mentioned that the reception incident happened because Nyakane had disrespected him. As a result of the said incident, Magagula changed Nyakane’s day shift to night shift to limit potential interaction
between Nyakane and Shiba.
[16] When testifying, Shiba denied that he had acted inappropriately or
unprofessionally towards Nyakane. And called no witnesses to corroborate his
version.
[17] At the conclusion of the arbitration, t he second respondent found that the
dismissal was procedurally and substantively unfair and ordered that he be
reinstated. It is this outcome that the applicant is challenging on review.
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Evaluation
[18] Key to his defence is Shiba ’s claim that his workplace interactions with
Nyakane were of a professional nature. However, the evidence contained in the
record of proceedings filed with this Court cont radicts Shiba ’s version. At all material
times after the relationship ended, Shiba’s interactions with Nyakane at work were
an endeavour to win back Nyakane’s love.
[19] The instruction from Savva to Shiba was unambiguous . Shiba had to stop
interactions with Nyakane. It is this instruction that Shiba defied and continued reaching out to Nyakane. Although Shiba was not charged with ins ubordination,
however his continuation to interact with Nyakane regarding their ill -fated relationship
led to him being disciplined.
[20] There was no evidence before the second respondent that Shiba’s
interactions with Nyakane were work -related. In fact, there was no reason for Shiba
to interact with Nyakane on any work -related matters as she did not report to him
directly or indirectly. Magagula is Nyakane’s direct line manager and Strumpher is
her second line manager.
[21] For some reason, this critical aspect of the evidence led before him seems to
have escaped the second respondent’s attention. Had he properly considered this evidence, he would have reached a different conclusion.
[22] In relation to proc edural fairness, the second respondent found that the
applicant fell short on procedure because the charge sheet was not articulately
drafted and that Shiba was neither given sufficient time to prepare for the disciplinary
hearing nor did he understand the charges against him. The second respondent adopted a rather rigid and inflexible approach. It is trite law that the charge sheet, at the minimum, should be in a language which an employee understands.
[23] The undisputed evidence is that at the first sitting of the hearing, Shiba was
afforded 48 hours’ time to prepare for the hearing. At the reconvention of the hearing, Shiba indicated that he was ready to proceed with the hearing. It does not
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seem like Shiba protested either the charge sheet or insufficient time to prepare.
Moreover, Shiba meaningfully participated in the hearing. Ultimately, he understood
the case he had to answer. To me, there are no reasonable basis for the second
respondent’s conclusion that the dismissal of Shiba was procedurally unfair.
[24] In relation to the finding on substantive unfairness , the second respondent
stated the following in his award –
‘137. The workplace behaviour referred to by the respondent, extended over
4 months and only, and not 14 months. The applicant testified that the
personal relationship between him and Ms. Nyakane was kept separate to
their professional relationship. Ms Nyakane testified that she only told the
hospital management of her personal relationship with the applicant in March
2021. This implies that the workplace behaviour of the applicant, referred to
by the respondent, was either of a personal nature or alternati vely, for a
period of around 4 months only.
138. This suggests that if the behaviour referred to, was of a prof essional
nature, it did not span over 14 months as suggested by the respondent, but only 4 months. The charges, however, refer to the “recent establishment” of
the alleged transgressions .
139. If the behaviour was of a personal nature, it follows that the dispute
was not one that the CCMA had jurisdiction to hear and that the dispute would
be required to be disposed of by a civil court. ’
[25] It seems to that the second respondent’s assessment of the evidence as
enunciated above was fundamentally flawed. The romantic relationship between
Shiba and Nyakane ended around October 2020. In January 2021, Nyakane
obtained a protection order against Shiba. In March 2021, Savva instructed Shiba to cease all communication and contact with Nyakane at the work place. In defiance of
Savva’s instruction, Shiba continued, and this led to him being disciplined and
dismissed.
[26] Accordingly, it matters not whether Shiba’ s conduct complained of spanned a
period of 14 or 4 months. Shiba’s attempt s at reconciliation with Nyakane were
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unwelcome by Nyakane and this was well known to Shiba. Despite this knowledge,
Shiba persisted to attempt communicating with Nyakane.
The applicable law
[27] The law on reviews of this nature is trite. This Court will only interfere with the
arbitration award only if the commissioner has reached an unreasonable result. In
other words, this C ourt must assess whether the decision of the commissioner is that
of a reasonable decision maker in light of the evidence which was led before him or her.
[28] In Herholdt v Nedbank Ltd (Congress of south African Trade Unions as
amicus curiae) ,
4 the Court stated that:
‘A review of a CCMA award is permissible if the defect in the proceedings falls
within one of the grounds in s ection 145(2)(a) of the LRA. For a defect in the
conduct of the proceedings to amount to a gross irregularity as contemplated by section 145(2)(a)(ii), the arbitrator must have misconceived the nature of
the inquiry 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.’ (own
emphasis)
[29] In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation , Mediation and Arbitration and others , the Labour Appeal Court held
as follows in relation to an irregularity committed by a Commissioner:
‘In a review conducted under s ection 145(2)(a) (c)(ii) of the LRA, the reviewing
court is not required to take into account every factor individually, consider how the arbitrator treated and dealt with each of those factors and then determine whether a failure by the arbitrator to deal with one or some of the
4 [2013] 11 BLLR 1074; (2013) 34 ILJ 2795 (LAC) at para 25.
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factors amounts to a process -related irregularity sufficient to set aside the
award. This piecemeal approach of dealing with the arbitrator’s award is
improper as the reviewing court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision- maker could make.’
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[30] In Minister of Health and another NO v New Clicks South Africa (Pty) Ltd and
others (Treatment Action Campaign and another as Amici Curiae) ,6 the
Constitutional Court remarked –
‘There is obviously an overlap between the ground of review based on failure
to take into consideration a relevant factor and one based on the unreasonableness of the decision. A consideration of the factors that a
decision- maker is bound to take into account is essential to a reasonable
decision. If a decisionmaker fails to take into account a factor that he or she is
bound to take into consideration, the resulting decision can hardly be said to be that of a reasonable decisionmaker.’
[31] In the case of Head of the Department of Education v Mofokeng and others7
the LAC stated thus:
‘[30] The failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be an irregularity. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this
court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and others have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.
… [33] Irregularities or errors in relation to the facts or issues, therefore, may
or may not produce an unreasonable outcome or provide a compelling
indication 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
5 [2014] 1 BLLR 20 (LAC) ; (2014) 35 ILJ 943 (LAC) at para 18.
6 2006 (2) SA 311 (CC) ; [2005] ZACC 14 at para 511.
7 [2015] 1 BLLR 50 (LAC) ; (2015) 36 ILJ 2802 (LAC) at paras 30- 33.
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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 issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would point to at
least a prima facie unreasonable result. ’
[32] In the totality of the circumstances, it is my view that the second respondent
committed a gross ir regularity which distorted the outcome of the arbitration
proceedings.
Costs
[33] In terms of Section 162 of the LRA, this Court has a broad discretion to make
appropriate cost orders in accordance with the requirements of law and fairness.
[34] In my view, this is one of those cases where the interests of justice will be
best served by each party bearing its own costs.
[35] In the result , I make the following order:
Order
1. The arbitration award under case number MPMB1048 -21 is reviewed
and set aside, and replaced with the following order –
‘a. the dismissal of the applicant was procedurally and substantively fair .
b. The application is dismissed. ’
2. There is no order as to costs.
N.I. Zwane
Acting Judge of the Labour Court of South Africa
Appearances
For the A pplicant: Adv. M. C. Edwards
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Instructed by: Cliffe Dekker Hofmeyr Incorporated
For the First Respondent: Self-representing