THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR 1505/23
In the matter between:
SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION obo MANZINI,
MILDRED Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER KHOZA, GERALDINE Second Respondent
CHECKERS HYPER VALENCIA Third Respondent
Heard: 18 March 2025
Delivered: 9 May 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 10h00 on 9 May 2025.)
2
JUDGMENT
PHEHANE , J
Introduction
[1] This is an application by the applicant union on behalf of its member, Ms
Mildred Manzini (Ms Manzini) to review and set aside the arbitration award by the
second respondent, in which award, the second respondent upheld the decision by the third respondent to overturn the sanction of its internal disciplinary hearing of a
final written warning and replaced it with a sanction of a dismissal of Ms Manzini.
Should this Court review and set aside the arbitration award, the applicant seeks reinstatement, alternatively, that the matter be remitted to the first respondent for a
hearing de novo before a different commissioner.
[2] Although the second respondent records that she was to determine
substantive fairness,
1 the second respondent was to de termine both procedural and
substantive fairness.2 The second respondent ultimately f ound the dismissal of Ms
Manzini to be both procedurally and substantively fair.
[3] The t hird respondent concedes the issue of procedural unfairness . Mr.
Mndebele, for the third respondent , submits that three months’ salary compensation
would be a fair remedy. No counter -submissions were made by the applicant on this
remedy.
[4] Therefore, the only issue that this Court is to determine is whether the second
respondent’s decision on substantive fairness is reasonable.
Factual background
[5] The background is largely common cause.
1 Pleadings, arbitration award at para 3 on p 24.
2 Reconstructed reco rd, 5 5 at lines 14 to 18.
3
[6] Ms Manzini w as employed by the thi rd respondent as a customer services
clerk at the time of her dismissal.
[7] Ms Manzini and a fellow employ ee, Ms Thandeka Hlatwayo (Ms Hlatwayo) ,
engaged in a physical altercation in the workplace on 7 February 2023, when they
fought in full view of customers and fellow employees . This conduct was captured on
video footage, which was before the chairperson of the disciplinary hearing and the
seco nd respondent . This video footage was made available to the Court in an
electronic format, as it formed part of the record of the arbitration proceedings.
[8] It was explained to the Court by Mr. Mndebele, that the video footage shows
the other employee, identified in the papers as Ms Hla twayo, pulling off the wig of Ms
Manzini and Ms Manzini retaliates by holding Ms Hlatwayo down by her scarf to force her to put the wig back on Ms Manzini’s head.
[9] The following is observed by the Court from the video footage: Ms Hlatwayo
and Ms Manzini are inside a cubicl e during operating hours , standing at a till . One
other individual is present, observing. Ms Hlatwayo pulled off Ms Manzini’s wig,
exposing Ms Manzini’s plaited hair. Ms Manzini immediately retaliated by forcibly
pulling Ms Hlatwayo down to the ground with her left arm , and holding Ms Hlatwayo
down; Ms Hlatwayo managed to get on her feet , and Ms Manzini, seating herself on
a chair, held Ms Hlatwayo by her scarf . The scuffle ensues with Ms Manzini holding
Ms Hlat wayo by the scarf while Ms Hlatwayo attempts to loosen herself from Ms
Manzini’s firm grip; an individual walks into the cubicle and observes the scuffle; this
does not deter Ms Manzini, who retains her firm grip on Ms Hlatwayo’s scarf until Ms Hlatwayo removes the scarf over her head and moves aw ay from Ms Manzini. Ms
Manzini appr oaches Ms Hlatwayo, wrestles with h er and forces Ms Hlatwayo to pick
the wig up from the ground, while holding Ms Hlatw ayo for cibly by the collar,
motioning her to put the wig back on her head while Ms Manzini takes a seat and
continues to hold Ms Hlatwayo by the collar. When the wig is placed back on Ms
Manzini’s head by Ms Hlatwayo , Ms Hlatwayo mo ves away from Ms Manzini and
picks up her scarf from the floor , as Ms Manzini fixes the wig on her head while
seated.
4
[10] Both employees were subjected to separate disciplinary hearings before
different chairpersons . Ms Hlatwayo was dismissed , but Ms Manzini was served with
a final written warning for her conduct.
[11] The chairperson of Ms Manzini’s disciplinary inquiry took into consideration
the evidence by Ms Manzini that Ms Hlatwayo was the instigator of the violent
conduct and that Ms Manzini acted in self -defence, was not the aggressor and was
humiliated when the wig was removed from her head by Ms Hlatwayo.
[12] Faced with this sanction less than dismissal which, in view of the sanction of
dismissal meted out againt Ms Hlatwayo and the history of violent conduct in the
workplace, the third responde nt’s Human Resources Manager, Mr Hageman
considered the documentary evidence of Ms Manzini’s diiscip linary hearing and
reviewed the decision by overturning the chairperson's decision of a final written
warning and prelacing it with a sanction of a dismiss al. In so doing, Mr Hageman
relied on the provisions of paragraph 37 of the third respondent ’s disciplinary
procedure, which read s as follows :
‘In order to ensure that there is consistency in sanction or where the sanction is too harsh or too lenient, the divisional HRM may, based on documentary evidence and the minutes of the disciplinary inquiry, vary the sanction
imposed by the chairperson.’
3
[13] Aggrieved with th e review of the disciplinary hearing sanction by the third
respondent, the applicant referred an unfair dismissal dispute to the first respondent ,
which was arbitrated by the sec ond respondent , who issued the arbitration award
that is the subject matter of this application.
Grounds of review
[14] The grounds of review , in essence, are:
3 Documentary record bundle, at p 66.
5
1. The issue before the second respondent concerned the principle of
double jeopardy . The second respondent misconstrued and/or misapplied the
principle of double jeopardy.
2. The second respondent found that the third respondent’s reliance on
clause 37 of its disciplinary code was justified. T he applicant contends that
failing to provide Ms Manzini an opportunity to be heard before reviewing the
disciplinary hearing sanction offends against the maxim audi alteram partem
and therefore, clause 37 is in conflict with section 35(3)(m) of the Constitution
4
and consequently, the second respondent’s decision is unlawful.
3. The second respondent disregarded the reasons that the chairperson
of the internal disciplinary hearing took into account in meting out a sanction
of a final written warning.
[15] In summary, the applicant categori ses the conduct of the third respondent as
double jeopardy . It contends that in failing to grant Ms Manzini the opportunity to be
heard before replacing her sanction, the third respondent offended the principle of audi alteram partem, and therefore, her dismissal was both procedurally and
substantively unfair. The applicant contends that the second respondent ignored the
evidence relating to procedural unfairness and failed to apply her mind to the
principle of double jeopardy. In the premises, the appli cant contends that the
arbitration award is unreasonable and therefore, reviewable.
Opposition
[16] It was submitted by Mr Mndebele that the ground of review on unlawfulness is
unmeritorious , as the principle of subsidiarity requires that this review application
should fall under the purview of the Labour Relations Act
5 (LRA). Section 145 of the
LRA sets out the circumstances under which an arbit ration award may be reviewed
and set aside, and the review test is a reasonableness test as set out in Sidumo and
4 Constitution of the Republic of South Africa, 19 96.
5 Act 66 of 1995, as amended.
6
Another v Rustenburg Platinum Mines Ltd and Others .6 Therefore, the ground of
review of unlawfulness prem ised on section 35 of the Consti tution must fail.
[17] The third respondent further contends that the review groun d premised on
double jeopardy is ill -conceived, as the third respondent was empowered by clause
37 of its disciplinary code and procedure, in circumstances where ther e was
inconsistency of discipli ne or where the sanction was too lenient, as in the present
matter, to review that sanction of the disciplinary hearing. Therefore, the principle of
double jeopardy does not arise, and this review ground ought to be dismissed.
[18] The third respondent referred this Court to Samson v C ommission for
Conciliation, Mediation and A rbitration and Others7 (Samson) where t his Court dealt
with the review of an arbitration award, where, as in the pr esent case, the employer
overturned a sanction of a disciplinary hearing of a warning for serious misconduct and substituted the decision with a dismissal. The Court in Samson held that an
employer is entitled to substitute a penalty with a harsher sanction when it is fair to
do so.
[19] That there was an empowering provision permitting the third respondent to
review the decision on the disciplinary hearing on the grounds as stated in the
empowering provision distinguishes the facts of this present case from those in
South Af rican Revenue Service v CCMA ( Kruger )
8 (Kruger ) on which the applicant
relies . In Kruger , no empowering provision existed for the employer to overturn a
decision of a disciplinary hearing - the disciplinary code provided that the decision of
the disciplinary hearing is final and binding.
[20] The third respondent accordi ngly submits that it is only where there exist s no
empowering provision to overturn a disciplinary hearing that exc eptional
circumstances must exist before such a decision may be overturned. Put differently,
the third respondent submits that it is not necessary for it to have shown that
exceptional circumstances exist , warranting the overtur n of the sanction of a
6 [2007] 12 BLLR 1097 (CC) (Sidumo) .
7 (2010 ) 31 ILJ 170 (LC).
8 (JA 06/11) [2015] ZALAC 62 (8 December 2015).
7
disciplinary hearing, as it was empowered by clause 37 of its disciplinary code and
procedure to overturn that sanction for reasons mentioned in clause 37.
[21] However, the thir d respondent further contends that not only did it consider
inconsistency and t he leniency of the sanction, but four further reasons were
provided by Mr Hageman in overturning the sanction of a final written warning, which
were the following:
1. Ms Manzini pleaded not guilty to the charge against her, how ever, she
chose to retali ate;
2. Ms Manzini did not show remorse during the hearing;
3. She did not give an undertaking to refrain from such conduct; and
4. The incident occurred during t rading hours in full view of customers
and other employees.
9
[22] The third respondent submits that i n determining whether dismissal was the
appropriate sanction, the second respondent considered the evidence before her
and provisions of item 3(6) of S chedule 8 of the LRA in reaching her decision.
[23] Therefore, the third respondent contends the second respondent’s decision
on substantive fairness is reasonable and the review application, on this leg , ought
not to succeed.
Analysis
Test on review
[24] The test on review is mentioned earlier in this judgment . It is trite and need
not be repeated.
Unlawfulness and the doctrine of subsidiarity
9 Review finding, documentary records bundle at p 61.
8
[25] It is now well- established that di sputes under the purview of the LRA , such as
the present, do not concern unlawfulness, but fairness .10 Nothing further needs to be
said in his regard, save a restatement on the doctrine of subsidiarity.
[26] In Minister for Transport and Public Works : Western Cape and Others v
Adonis and Others and a related matter11, the Supreme Court of Appeal restated this
doctrine:
‘It is necessary, first, to highlight that the principle of constitutional subsidiarity
is part of our constitutional framework. The foundational norms of the
Constitution are expressed in general terms. Where legislative and other
measures have been enacted to realise the rights and obligations in the Constitution, the foundational norms espoused in the Constitution should find
expression in such legislative measures . By way of example, the preamble to
SPLUMA recognises that many people in South Africa continue to live and work in places defined and influenced by past spatial planning, land use laws,
and practices, which were based on racial inequality, segregation, and
unsustainable settlement patterns. It provides that it is the obligation of the
State to realise the constitutional imperatives in sections 24– 26 and 27(1) of
the Constitution. Section 12(1) of SPLUMA imposes an obligation on the
national, provincial and local governments to prepare spatial development
frameworks. The statute, rather than the Constitution, is therefore the direct
source of the rights and obligations relating to preparation of spatial
development frameworks. It is to its statutory provisions that litigants must
look in asserting their rights and the obligations owed to them. ’
[27] In a similar vein, section 23 of the Constitution provides that everyone has the
right to fair labour practices. One of the pieces of legislation that gives effec t to this
constitutional right is the LRA. Therefore, it is impermissible on the doctrine of
subsidiarity for litigants to invoke section 23 of the Constitution to enforce their labour
law rights and obligations. They are first to invoke the legislation enacted to give effect to the rights espoused in the Constitution. Section 35 of the Constitution, in
10 Steenkamp and Others v Edcon Ltd 2016 (3) SA 251 (CC).
11 [2024] 3 All SA 49 (SCA).
9
any event, finds no application in labour law, as section 35 deals with the rights of
arrested, detained and accused persons in the criminal justice system.
[28] That being said, the ground of review on unlawfulness premised on section 35
of the Constitution lacks merit.
Evidence at arbitration
[29] Ms Manzini faced an internal disciplinary inquiry in which she had to answer
to charges of serious misconduct relating to having fought with a fellow colleague in
full view of customers and staff members in breach of the third respondent’s
workplace rules and regulations.
12 The workplace rules and regulations of the thrid
respondent as set out in the charge sheet , state that employees must at all times
maintain the good reputation of the company, must not conduct themselves in any
manner that may negatively affect the company’ name; misconduct which brings the
name of the company in disrepute is viewed in a serious light in may result in
summary dismissal ; misconduct that may affect the employment relationship, may
result in summary dismissal ; employees must at all times treat customers and all
other employees with respect ; the company does not tolerate any violent conduct
whether verbal or physical in the workplace, and employees must refrain from
threatening or acting in a violent or aggressive manner towards management, fellow employees , customers or suppliers ; the company views any violent or aggressive
conduct in a serious light and a breach of this rule may result in summary dismissal ;
finally, employees have a duty at all times to act in the best interest of the company
which includes notifying the company of misconduct by other employees .
[30] The applicant admitted the incident as it was captured in the video footage.
13
[31] Mr. Hagemann testified during the arbitration proceedings that he viewed the
video footage and documents of the hearing when he reviewed the sanction of the
disciplinary hearing.
12 Founding affidavit at pp 4 to 5.
13 Reconstructed record, p3 at lines 1 to 8.
10
[32] After viewing and cons idering the video footage, the second respondent
found, and correctly so, that the applicant’s version that she was provoked by Ms
Hlatwayo did not align with what the video footage depicted and that Ms Manzini’s
reaction was very violent.
[33] On the evidence before the second respondent, Ms Manzini admitted being
aware that physical altercations or violent conduct were not allowed in the
workplace. Ms Manzini further admitted being aware that employees were required
to report violent conduct. However, she failed to do so. The reason provided by Ms Manzini for failing to report the incident was because Ms Hlatwayo apologi sed and
the issue had been resolved – her wig had been returned to her, therefore, there was
no need to report the incident to management.
Double jeopardy and managerial review of a sanction [34] The principle of double jeopardy applies in situations where an accused
employee is subjected to more than one disciplinary hearing on charges arising from
the same set of facts .
[35] The managerial review of a sanction occurs when the decision of a
disciplinary chairperson is overturned and a harsher sanction is imposed by a higher
authority. Strictly speaking, this does not amount to double jeopardy, as a second
disciplinary hearing is not held.
[36] Therefore, the decision in BMW (SA) (Pty) Ltd v van der Walt
14 (BMW ), on
which the applicant relies in support of its review groun d of double jeopardy is
irrelevant. This is because in BMW , a second disciplinary hearing was held on new
facts , thus triggering the principle of double jeopardy . This is not what occurred in the
present case. Rather, there was a review of the disciplinary hearing sanction on the same facts , and no second hearing was held.
14 [2000] 2 BLLR 121 (LAC).
11
[37] If I am wrong tha t BMW does not apply and that the principle of double
jeopardy is triggered on the facts of this case, then, as the Court held in BMW , an
employee may be subjected to further disciplinary action provided that it is fair in the
circumstances to do so.
[38] Our Courts have dealt with the overtur ning of disciplinary sanctions by
management in higher positions and have held that fairness is the ultimate
yardstick.15
[39] In National Union of M ineworkers obo M embers and O thers v ArcelorMittal
South Africa L imited and O thers ,
16 this Court confirmed that w here there is no
collective agreement regulating discipline in place, an employer may substitute the sanction of a disciplinary chairperson if it is fair to do so and after engaging the
employee, either in another disciplinary inquiry or by having the employee make
submissions.
[40] The Court in Samson held that ‘ the law as it presently stands is that an
employer is entitled, when it is fair to do so (subject to the qualification that it is only
in exceptional circumstances that it will be fair) to revisit a penalty imposed and
substituted with a more severe sanction’ .
17
[41] Therefore, the finding by the second respondent that clause 37 of the thir d
respondent’s disciplinary code and procedure entitled it to review the sanction less than dismissal and replace it with a harsher sanction, cannot be faulted and is
reasonable on the totality of evidence before her.
[42] In determining substantive fairness and whether dismissal was the
appropriate sanction, the second respondent considered Ms Manzini’s version that
she was not the aggressor, which version she found, in view of the video footage, to
be false. In addi tion, t he second respondent considered the inconsistent appl ication
15 Samson supra. See also: Branford v Metror ail Services (Durban) and Others (2003) 24 ILJ 2269
(LAC) ; Member of the E xecutive Council for Finance, KwaZulu -Natal and Another v Dorkin NO and
Another (2008) 29 ILJ 1707 (LAC).
16 (JR802/18) [2020] ZALCJHB 167 at para [30].
17 Samson supra at para [ 12].
12
of discipline in view of Ms Hlatwayo’s dismissal for the same offence and found that
dismissal was the appropriate sanction.
[43] In view of the aforegoing, on the totality of evidence before the second
respondent, the decision on substantive fairness is reasonable and there is
accordingly no basis for this Court to interfere with this finding.
18
[44] Although the third respondent’s disciplinary code and procedure does not
make a provi sion for representations to be submitted by the employee during a
review of a disciplinary sanction, in keeping with the aforegoing authorities that fairness is the yardstick, the concession by the third respondent regarding the challenge of procedural fairness is frank and has narrowed the issues this Court is to
decide. The offer by the third respondent to pay Ms Manzini compensation equivalent to three months’ salary is very generous in the circum stances of the
seriousness of the offence of a physical, violent altercation in the workplace and in
view of her lack of remorse, which she persisted with in these proceedings.
19
Conclusion
[45] In view of the aforegoing, th e review application partially succeeds.
[46] In the matter of Union for Police Security and Corrections Organi sation v
South African Custodial Managemen t (Pty) Ltd and Others
20, the Constitutional
Court stated that , in labour law disputes, generally, costs do not follow the result .
The requirements of the law and fairness indicate that this is a m atter where the
paym ent of costs should not be awarded. Therefore, I exercise my discret ion not to
make an order as to the payment of costs.
[47] In the premises, the following order is made:
Order
18 Sidumo supra .
19 Nelson Mandela Bay Metropolitan Municipality v Independent Municipal and Allied Trade Union on
behalf of Tshabalala and Others (2019) 40 ILJ 1021 (LAC) .
20 (2021) 42 ILJ 2371 (CC) .
13
1. The review application relating to substantive fairness is dismissed.
2. The review application relating to procedural fairness succeeds.
3. The finding in the arbitration award relating to procedural fairness is set
aside and is substituted wi th an order that the dismissal of the applicant
member, Ms Mildred Manzini is procedurally unfair.
4. The third respondent is to pay Ms Manzini compensation equivalent to
three months’ remuneration calculated as at the date of her dismissal.
5. There is no order as to costs.
M. T. M. Phehane
Judge of the Labour Court of South Africa
Appearances:
For the applicant: Mr. Piet Ngoato of SA CCAWU.
For the third respondent: Adv V. Mndebele
Instructed by: Wilken Incorporated