Not Reportable
THE LABOUR COURT OF SOUTH AFRICA,
HELD AT CAPE TOWN
Case no: C97/2022
In the matter between:
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA obo B GXESI & OTHERS Applicant
And
FAURECIA EMISSION CONTROL TECHNOLOGIES
(PTY) LTD First Respondent
DISPUTE RESOLUTION CENTRE
(A DIVISION OF THE MOTOR INDUSTRY
BARGAINING COUNCIL) Second Respondent
W RIEKERT N.O. Third Respondent
Date of Hearing: 03 July 2025
Date of Judgment: 06 August 2025
Summary: Review of determination of arbitrator in MIBCO DRC in respect of
unfair dismissal claim
Page 2
JUDGMENT
STELZNER AJ
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act,
66 of 1995 (LRA) to review and set aside the arbitration award issued by
the Third Respondent (the arbitrator) under the auspices of the Second
Respondent, the Dispute Resolution Council of the Motor Industry
Bargaining Council (DRC MIBC O), dated 21 January 2022 under case
number MICT31244 (“the award”).
[2] In terms of the award the arbitrator held that the First Respondent’s (the
company’s) dismissal of the Applicants was substantively fair.
[3] The reference herein to the Applicants is intended to be a reference to the
individual applicant employees who were dismissed and on whose behalf
their union referred the unfair dismissal dispute to arbitration before the
DRC MIBCO and on whose behalf the union has now referred that decision
of the arbitrator to this Court on review.
[4] A total of 15 employees were dismissed. Two of the dismissed employees
referred their dismissal disputes separately and as individual dismissal
disputes using their own representatives to arbitration. In the one case
the dismissal was found to have been fair, in the other the dismissal was
held to have been substantively unfair and the employee was reinstated.
This review is in respect of the arbitration which was held to determine the
fairness of the dismissals of the 13 employees identified in paragraph 4 of
the Arbitration Award.
Page 3
Common cause facts in the arbitration
[5] The parties’ representatives filed a detailed pre-arbitration minute setting
out the agreed facts for purposes of the arbitration. 1
[6] In terms of their pre -arbitration minute the parties agreed on a number of
facts. Those most pertinent to the arbitrator’s award and this review are
recorded hereinbelow:
6.1 The Respondent operates the business of manufacturing
automotive exhaust systems.
6.2 There are two main departments in respect of the respondent’s
direct operations, Production (P) and Production Control &
Logistics (PC&L).
6.3 The operational staff in direct operations other t han support
staff consist of managers, supervisors, team (GAP) leaders and
the rest of the employees (UAP’s).
6.4 A normal workday during the week is three 8 hour shifts in a
24hr period, from 7 am to 3 pm, 3 pm to 11 pm and 11 pm to 8
am.
6.5 Work on weekend s is considered overtime. Work during the
week over and above 40 hours is also considered to be
overtime.
6.6 Transport is provided to, and from work before and after every
shift unless an employee elects to organise their own transport.
6.7 When a stock take needs to be done, the general rule is that it
takes place over a 12 -hour shift, that it is from 7am until 7pm.
Stock take has continued until 11pm in the past.
1 The applicant’s legal representatives in the review provided the Court with a copy of that
minute. The minute had to be retyped. This has assisted the Court in its preparation of
this judgment.
Page 4
6.8 On 21 November 2019 the Respondent’s Cape Town PC & L
Manager Quentin Prieur (“Prieur”) informed certain employees
of the Cape Town plant via email that the annual stock take
would take place from the 24 th to the 27th of November. It did
not occur on those dates. On 28 November 2019 these
employees were advised that the stock take had been
postponed from the 1 st of December until the 4th of December
2019 (as per notice of 28 November 2019).
6.9 The Applicants were not recipients of this e -mail. The
Respondent’s annual stock take for 2019 took place from the
1st until the 4th of December 2019.
6.10 Before that, the 2019, stock take had been postponed on at
least two occasions. Initially it was schedule d to take place on
17 November. It was then cancelled and rescheduled for 24 -
27 November and then cancelled and rescheduled again for 1 -
4 December 2019.
6.11 Some of the employees did not attend work the week / days
preceding the stock take due to being either on short time or
leave or sick leave. Thobani Rodney and Kholosani Mdingi
were on leave the week of 25 - 29 November 2019. Kyle
Petersen was on short time 28 and 29 November 2019. Two
other GAP leaders were also on leave that week, being Graham
Africa and Khaya Sam.
6.12 Preparations for the stock take commenced on 1 December
2019. Applicants Gxesi, Dawethe, Bonga, Peter and Mankanku
took part in this preparation for the stock take.
6.13 All the Applicants save for Mlahlwa and Mdingi arrived at work
at 07H00 on 2 December 2019.
6.14 The two named employees arrived at work later that morning.
6.15 All the Applicants (except one, which is disputed by the
Respondent) engaged in stock take activities from their arrival.
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6.16 At around 10:00am on the 2 nd of December 2019, a dispute
arose relating to the provision of a free meal to employees
participating in the aforesaid stock take.
6.17 The Respondent had provided meals at all previous stock
takes.
6.18 On an ordinary working day, employees are responsible for
their own meals.
6.19 The dispute about meals was resolved when the Respondent
agreed to provide food to all employees who would be
participating in the stock take.
6.20 Meals were provided to those employees who indicated their
willingness to participate in the stock take.
6.21 During the course of the day, an overtime sheet / list was
circulated by the supervisors (Ruan Haggard and Basee r
Volkwyn) for signature.
6.22 The reason this was done is in dispute.
6.23 On 2 December, the Applicants clocked out around 15H00 and
did not take part in the stock take after 15H00.
6.24 The other employees in PC & L worked beyond 15H00,
continuing with the stock take.
6.25 When leaving the Respondent’s premises, employees clocked
out of the area where they had worked and then out of the gate.
6.26 The clock -out times for the Applicants on 2 December 2019
were agreed – all within some minutes of 3 pm, and no later
than 3.15.
6.27 In previous years, employees in Production had assisted with
stock takes.
6.28 The Applicants (except Chad Schippers) made us of company
subsidised transport. For employees knocking off at 15H00, the
transport leaves at 15H15.
Page 6
6.29 The Applicants reported for work on the 3rd of December 2019
and were issued with suspension notices for having participated
in a concerted and collective cessation of work in the presence
of fellow employees and in defiance of requests and instructions
by management.
6.30 The aforementioned notice of suspension further stated that the
matter was currently being investigated and that if any of the
individual Applicant’s employees wanted to make
representations on why they should not be suspended, they
could do so at the first opportunity afte r receiving the notice of
suspension.
6.31 A disciplinary enquiry was held on the 6 th of December 2019
and concluded on the 17th of December 2019.
6.32 The aforementioned disciplinary enquiry was chaired by
Quinton Matheson (hereinafter “Matheson”) of LabourNet.
6.33 Applicants Kyle Petersen and Chad Schippers testified on 06
December 2019, and on 11 December 2019, Trevor Langton,
Shahied Stoffels and Shilton Lewis testified.
6.34 The Applicants were informed that they were found guilty and
dismissed for ‘gross insubordination in that on 2 December
2019 they had participated in a concerted and collective
cessation to work in the presence of fellow employees and in
defiance of requests and instruc tions of management by
abandoning a scheduled stock take’.
6.35 The Respondent’s stock take policy requires that all stake
holders be given a least two weeks’ notice of stock take.
6.36 In previous years, the Respondent posted the names of those
scheduled to take part in a stock take on the notice board.
6.37 There was no notice posted for the 2019 stock take.
6.38 Most of the Applicants had participated in the stock takes
conducted in previous years.
Page 7
6.39 There had been prior notice of these stock takes.
6.40 Overtime is voluntary.
6.41 There is no contractual provision or collective agreement
compelling the Applicants to work overtime.
6.42 The applicable collective agreement requires an employer who
requires employees to work overtime for a stock take, to give 7
days’ notice.
6.43 At the tim e of the dismissals, all the Applicants except Trevor
Langton and Kholosani Mdingi earned below the earnings
threshold set out in the Basic Conditions of Employment Act.
The named employees earned R110.60 per hour.
6.44 Ruan Haggard, a supervisor, was not at work during the period
24 November and 30 December 2019.
6.45 At the time of the December 2019 stock take, the Respondent
had implemented short time.
6.46 As recorded above, Employees are paid for 40 hours a week
and hours worked over and above the 40 hours are considered
overtime.
6.47 Sunday work is remunerated at Sunday rates.
6.48 While short time was in place, any overtime worked was used
to top up an employee’s weekly normal hours and that overtime
would only be paid at overtime rates if an employee had worked
the full 40 normal hours a week.
6.49 The previous stock takes happened over weekends.
6.50 The 2019 stock take was not an emergency.
6.51 All Applicants had clean disciplinary records.
6.52 Years of service ranged between 6 years (shortest) and 19
years (longest).
6.53 Procedural fairness was not in dispute.
Page 8
6.54 Due to the way the workplace was set up, Applicants would
have known it was stock take when they arrived at work on 2
December.
Disputed facts in the arbitration
[7] The following facts were recorded in the pre-arbitration minute as being in
dispute:
7.1 The Applicants were aware of the requirement to work twelve
hour shifts on three consecutive days in order to complete the
annual general stock take.
7.2 The Applicants [in plain sight of their colleagues and without
permission of Managemen t] clocked out and left the
Respondent’s premises despite an announcement on the
company intercom to attend a meeting with the PC&L Manager.
7.3 The Respondent’s annual stock take was announced in a notice
on 26 October 2019, however postponed until the 2 nd of
December 2019.
7.4 (Assisting with) The annual stock take was compulsory.
7.5 The only issue that was ventilated with management on 2
December 2019 was whether food would be provided –
management was not asked to assess whether adequate notice
had been given.
7.6 GAP leaders informed staff of the compulsory annual stock take
during the “Top 5” meetings.
7.7 On 28 November 2019, the Respondent’s Cape Town PC & L
Manager, Quentin Prieur (hereinafter “Prieur”) advised various
employees of the Cape Town plant’s general stock take via
email correspondence and that the compulsory annual stock
take would take place from the 2 nd until the 4th of December
2019.
Page 9
7.8 Mzwakhe was not engaged in work on the production line.
7.9 Employees were given a time and reason for the meeting which
the Respondent avers was scheduled for 3pm and announced
by Ruan Haggard.
7.10 The list (which was circulated amongst employees on 2
December 2019 for them to sign ) did not seek to secure
agreement to work overtime, but was rather part of a risk
assessment when rumours of a walk-off surfaced.
7.11 Although the shop steward indicated to management that the
food issue had been resolved (and this is also the Respondent’s
version in that regard), it is the Respondent’s version that the
Applicants remained disgruntled that the company had wanted
to withhold food at all.
7.12 Due to how shift scheduling and rotation works (which would be
testified to), B Peter, C Schippers, K Gxesi and K Mdlingi, L
Dawethe, M Bonga, T Mlahlwa, T Langton and W Kutshwa
would not have been scheduled to be at work at 7am – yet they
all climbed into company transport and reported at 7am (on the
day of the stock take).
7.13 K Petersen testified that at the disciplinary hearing that he had
been aware of the scheduled stock take as he had been
informed the previous week while on night shift.
7.14 He also testified that he had resolved to leave at 3pm once he
had heard about the food issue.
7.15 S Lewis testified at the disciplinary hearing that he had been
unhappy about the food because he had only brought one meal
for teatime – and that this was the first time that no food was
provided.
7.16 Employees have never been requested to participate in a stock
take – they have always been informed that it ha d been
scheduled.
Page 10
7.17 Applicants were all engaged in stock take activities upon their
arrival at work on 2 December.
7.18 No employee tendered an excuse before they clocked out at
3pm.
7.19 No one complained of a lack of knowledge of the stock take or
not being able to stay.
7.20 It is the Applicants’ version that they were not grossly
insubordinate as alleged or at all.
7.21 With the exception of GAP leaders (Mdingi and Langton) , who
earn above the BCEA threshold, for 11 of the Applicants,
overtime is voluntary and therefore they could not be compelled
or i nstructed to work overtime in circumstances where there
was no emergency.
7.22 Cumulatively (for the 11 Applicants) and for the GAP leaders,
at no point were they instructed to work overtime on 2
December.
7.23 Until Sunday 1 December 2019, there was no confirmation that
the stock take would continue on 2 December and that
employees would be required to work overtime.
7.24 Prior notification is required both in terms of the stock take
policy, the collective agreement and as per practice.
7.25 Because there had been no reasonable prior notification of the
stock take, the Respondent informed the employees that they
had a choice whether or not to work overtime that day.
7.26 Those who were willing and available to work overtime signed
on the overtime sheet to indicate as much.
7.27 Those who were unwilling and/or unavailable to work over time
did not complete the overtime sheet.
7.28 There was never an instruction issued to work overtime and the
Respondent is put to the proof thereof.
Page 11
7.29 The instruction / request to work overtime, if any, (which is
denied) without giving reasonable notice and in circumstances
where there was no legal obligation to work overtime was
unreasonable and unlawful and therefore the Applicants acted
reasonably in not complying with same.
7.30 Their reasons for leaving after 15H00 on 2 December 2019 had
nothing to do with the provision of meals.
7.31 The starting time of and agenda for the meeting announced
around 14h50 were not shared when the meeting was
announced over the intercom.
7.32 All Applicants except for Bongani Peter, Mzwakhe Thukuthezi
and Gxesi presented themselves for the meeting which was
announced around 14H50 but they left after no one arrived to
address the meeting.
7.33 Those members of management who were present stood by
and did not address the meeting.
7.34 The Applicants specifically deny participating in a concerted or
cessation of work as alleged.
7.35 They clocked out at different times and not in a single file as
alleged by the Respondent.
7.36 Each one of them did not and could not work overti me on 2
December 2019 for reasons that were not collective but rather
for individual reasons.
7.37 The versions of the respective Applicants, which were to be
amplified in evidence, were as follows:
7.37.1 Thukuthezi – there were some unconfirmed reports that
everyone must report for duty on Monday morning 2 Dec.
He did and discovered that it was stock take. He worked
on the production line until 15H00 and clocked out. He
had other plans which he could not re-arrange. He did not
attend the meeting at the end of the shift as he did not hear
the announcement.
Page 12
7.37.2 Mlahwa – since he arrived at work around 10am and had
already lost 3 hours of paid work, his inquiry about how
the lost hours due to no fault of his was not responded to.
Haggard was informed about this concern.
7.37.3 Gxesi – he worked on 1 December preparing for stock
take. He specifically inquired from Faizel Martin whether
stock take would continue the following day and the
response was that there was uncertainty but that everyone
was required to report for duty on Monday morning. He
reported for duty and learnt that stock take was continuing.
There were times when there were preparations for stock
take but then the actual stock take is cancelled. He
understood that he had a choice whether or not to work
overtime and he chose not to. He informed Haggard of
this fact and he did not tell him that he didn’t have a choice
in the matter. He did not hear the announcement made
around 14H50 to attend the meeting and therefore did not
attend the meeting.
7.37.4 Langton – On Friday 29 November, despite his efforts,
there was no clarity on whether stock take would take
place on Monday 2 December. He came in on Monday
morning as instructed by Roland Da Rocha even though
this did not suit him due to other family responsibilities. He
was scheduled to be on short time 5 and 6 December and
he opted to work overtime as his overtime hours would be
allocated as normal hours to make up the 40 hours a
week. He told management of his concern.
7.37.5 Lewis – he was off sick on Friday 29 Nov and only found
out about the stock take on Monday 2 December. He
could not work unplanned overtime due to family
responsibility duties and on two occasions he told
Haggard about this. He was not aware of the meetings
held earlier regarding meals.
Page 13
7.37.6 Schippers – he worked on Friday 29 November and
Langton told them to report for duty on the Monday
morning and he did. He found out that it was stock take.
Initially the thought he work overtime but on further
reflected, he decided against it, unhappy about the several
changes made without consideration.
7.37.7 Petersen – he was sick leave the Thursday and Friday
before the week of stock take. He arrived at work on the
morning of 2 December and learnt that he it was stock
take. Initially he indicated that he would work overtime
and received the meal voucher but later changed his
position after his wife informed him that he needed to
babysit as she was finishing work at 6pm and their child
minder leaves at 4pm. He returned the meal voucher. He
understood that he had a choice whether or not to work
overtime and for this reason, did not explain his reasons
for not being able to work overtime.
7.37.8 Mdingi – GAP leader but unaware of the stock take as he
was on leave the previous w eek. He o nly came in on
Monday 2 December because Thukuthezi telephoned him
whey there were at Mdingi’s pick up area and he was not
there. He telephoned work and was instructed to come in.
He went and arrived just after 08H00. He was aggrieved
that even as gap leader he had not been informed about
the stock take. From what was explained, he also
understood that he had a choice whether or not to work
overtime.
7.37.9 Bonga – he worked the week before the stock take week
and there were unconfirmed rumours of a stock take. The
stock take as confirmed on Monday 2 December. When
he realised that he was scheduled to work short time later
in the week, he decided against working overtime on 2
December.
Page 14
7.37.10 Dawethe – he worked the week prior to stock take as well
as on 1 December. On Sunday Martin confirmed the stock
take but he could not work over time on 2 December due
to family responsibility duties. He needed to fetch his son
from school.
7.37.11 Peter – he worked the week preceding stock take.
Schedule work night shift on Monday 2 December but
came in the morning as instructed by Martin. Before the
overtime sheet was circulated, he learnt that there might
be issues with his child’s whereabouts. When the
overtime sheet was circulated, he realised that he might
be able to work for this reason. Then later in the day he
learnt that his child was missing and he left immediately
after shift to look for his child. He did not tell anyone as
he did not think it was necessar y since he had already
indicated that he cannot work overtime.
7.37.12 Mankanku – He did not know about the stock take. He
decided against working overtime as he was scheduled to
be on short time on Thursday and Friday in the week of
the stock take. Also underst ood that they had a choice
whether or not to work overtime.
7.37.13 Kutshwa – (his explanation was not part of the minute)
7.38 In some cases management was made aware of the inability /
unwillingness of the Applicants to work overtime, as set out
above.
7.39 The version of the Applicants during the disciplinary hearing.
7.40 More specifically, the versions of K Petersen and S Lewis as
alleged by the Respondent and whether Mankanku testified at
all.
7.41 Whether the annual stock take was compulsory.
7.42 More specifically, whether the employees were obliged to work
overtime during stock take.
Page 15
7.43 Whether with previous stock takes, all employees were required
to take part in stock take or only those required to do so took
part in stock take.
7.44 Whether Mankanku worked on 1 December 2019.
7.45 Whether the Applicants were notified or made aware of the
annual stock take scheduled to take place on 2 December 2019
and if so, when and by whom.
7.46 The reason those Applicants who were scheduled to work the
afternoon or evening shift on 2 December reported for duty in
the morning.
7.47 Whether any of the Applicants left the Respondent ‘s premises
on 2 December 2019 for reasons related to the provision of
meals.
7.48 The reasons each Applicant employee left work around 15H00
on 2 December 2019.
7.49 Whether the Respondent was made aware of the reasons some
of the Applicants could not work overtime on 2 December 2019.
7.50 Who called for the meeting on the 2nd December 2019 towards
the end of the morning shift over the Respondent’s intercom
system and wheth er the agenda for this meeting was also
announced.
7.51 Whether all PC& L employees heard the announcement to
attend the meeting.
7.52 Whether, other than a single line for morning shift, no
employees related to direct Production attended work on 2
December 2019.
7.53 Those who did not work left at the end of the shift which ended
at 15H00 and whether all other employees were involved in
stock take activities.
Page 16
7.54 The lawfulness of the Respondent’s conduct in how it paid
overtime for employees who had not worked a total of 40 hours
a week due to short time.
7.55 When the employees who took part in the stock take on 2
December finished work.
7.56 Whether there was any stock take in 2019.
Issues in the arbitration
[8] The Third Respondent was required to determine:
8.1 All facts in dispute
8.2 Whether the Applicants’ dismissal was substantively fair.
8.3 In this regard the Third Respondent was required to decide
whether the employees committed misconduct as alleged or at
all. 2
8.4 If the Third Respondent found this to be the case, he was
required to decide whether dismissal was a fair sanction in the
circumstances.
8.5 If not, the Applicants asked for reinstatement alternatively
compensation.
8.6 The First Respondent asked for dismissal of the claim.
The approach of the arbitrator to the dispute before him
[9] The charges which were presented at the disciplinary hearing conducted
by an outside consultant for the Respondent against the Applicants (and
2 The alternative is significant. This will be returned to when discussing the approach which
the Arbitrator adopted in deciding the dispute before him.
Page 17
against two other employees who as stated at the outset referred their
disputes to arbitration separately from t he Applicants ) was that of
“Collective Gross Insubordination” in the form of a “concerted and
collective cessation of work” in “defiance of requests and instructions
of management by abandoning a scheduled stock take ”. They were
dismissed on these charges. The reasons for the sanction of dismissal
having been imposed are also set out in the written determination of
the chairperson of the disciplinary hearing.
[10] These dismissals were referred as individual dismissals to the MIBCO
DRC - for not working overtime (misconduct) and not as strike related
dismissals over which the arbitrator would potentially not have had
jurisdiction if the claim was one of automatically unfair dismissal.
[11] Neither the union on behalf of the Applicants nor the First R espondent
suggested in either the MIBC or in this review that the employees had in
fact been dismissed for unlawful strike action. 3
[12] In any event, no one claimed that the third requirement for strike action ,
namely that there was a common purpose on the part of the employees,
that of obtaining redress for the first respondent’s decision to require them
to work overtime, when they refused to work beyond 3 pm on 2 December,
was met.
[13] It was never claimed by any of the parties to this application that the
purpose of the refusal to work was to place pressure on the employer to
remedy a grievance or to resolve a dispute, for example to not require them
to work overtime on that day or the days thereafter , when the stock take
was set to continue.
[14] The unfair dismissal claim of the Applicants before the arbitrator was
premised on the argument that their refusal to work overtime for the stock
3 Cf the definition of ‘strike’ in section 213 of the LRA - strike' means the partial or complete
concerted refusal to work, or the retardation or obstruction of work, by persons who are or
have been employed by the same employer or by different employers, for the purpose of
remedying a grievance or resolving a dispute in respect of any matter of mutual interest
between employer and employee, and every reference to 'work' in this definition includes
overtime work, whether it is voluntary or compulsory. The refusal may have been to work
overtime, but no one suggested in the arbitration, or in this review, that that refusal h ad
been for the purpose of remedying a grievance or resolving a dispute in respect of a matter
of mutual interest.
Page 18
take in issue on 2 December was in response to a failure
on the part of the employer to perform its obligations, i.e give them proper
(timeous written) notice to work overtime, as required under their contracts
of employment, the MIBCO Collective Agreement and the past practice of
the employer.
[15] The defence of the Applicants to the charges before the DRC was
therefore that there was a lawful refusal to work overtime and that this did
not amount to a breach of contract or misconduct on their part.
[16] In short, the employees claimed they were legally entitled to refuse to carry
out their side of the employment con tract on that day and it was the
employer who breached their employment contract by unlawfully failing to
perform its reciprocal obligation(s).
[17] In the alternative, in respect of the sanction of dismissal which was
imposed in the disciplinary hearings , the claim was that on the facts the
sanction of dismissal was too severe.
[18] This approach of the parties to the dispute before the arbitrator and in this
review therefore removes the need to consider the issue which was
decided in National Union of Mineworkers Obo 112 Employees v
Commission for Conciliation Mediation and Arbitration and Others (CA
11/2007) [2011] ZALAC 7 (1 May 2011), and in which the dictum in Nkutha
and Others v Fuel Gas Installations (Pty) Ltd [2000] 2 BLLR 178 (LC) at
paras 69 – 72 was held by the LAC to “not
adequately reflect the position as encompassed in section 213”.
[19] The Applicants in this matter in effect claimed that their refusal to work
overtime on 2 Decem ber was in response to the failure
on the part of their employer to perform its obligations, i.e give them proper
notice of the fact that overtime work would be required on that day. This
was a lawful refusal (to an unreasonable and unlawful demand /
instruction) which did not amount to a breach of contract or misconduct. In
other words, the employees were legally entitled to refuse to carry out their
other words, the employees were legally entitled to refuse to carry out their
side of the employment contract. In fact, it was the employer who
breached the employment contract by unlawfully failing to perform its
reciprocal obligation(s).
Page 19
[20] It is to be noted in all of this that the Applicants avoided placing any reliance
on the issue about the employer providing them with a meal on the day as
being the cause of their displeasure and the reason for their refusing to
work beyond 3 pm.
[21] This would have required an investigation into whether the employees had
been informed that during the stock take that year, which was to be on
weekdays, the employer would not be providing a meal as in the past,
when it was over a weekend, whether the grievance wa s then that the
meals which were provided were not provided timeously on the day (after
the employer had relinquished and agreed meals would be provided but
there was some delay in this occurring on the 2nd of December).
[22] These issues were not relied on i n the arbitration before the Third
Respondent as being grounds for justification or mitigation of sanction.
The food issue was not relied on as a defence for the employees’ conduct
on the day. The review itself, as will be explained later in this judgmen t,
relied on other factual and legal contentions.
[23] The arbitrator, relying on EOH Abantu (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others (JA4/18) [2019] ZALAC
57; (2019) 40 ILJ 2477 (LAC); [2019] 12 BLLR 1304 (LAC) (15 August
2019), adopted the “ not too formalistic or technical approach ” to the
charges against the Applicants, stating that “some careful navigation
of the facts” was required in deciding the issues before him.
[24] The arbitrator understood that “it will normally be sufficient if the
employee has adequate notice and information to ascertain what act
of misconduct he is alleged to have committed. The categorisation by
the employer of the alleged misconduct is of less importance”. 4
[25] In paragraph [16] of EOH Abantu the LAC held further that “The principle
in such cases is that provided a workplace standard has been
contravened, which the employee knew (or reasonably should have
contravened, which the employee knew (or reasonably should have
4 Para [15] of EOH Abantu referring to Durban Confectionary Works t/a Beacon Sweets v
Majangaza (1993) 14 ILJ 663 (LAC); and National Arbitrator, SAPS v Myers [2012] 7 BLLR
688 (LAC) at para 97.
Page 20
known) could form the basis for discipline, and no significant prejudice
flowed from the inco rrect characterisation, an appropriate disciplinary
sanction may be imposed. It will be enough if the employee is informed
that the disciplinary enquiry arose out of the fact that on a certain date,
time and place he is alleged to have acted wrongfully or in breach of
applicable rules or standards.”
[26] The arbitrator can accordingly not be faulted for the approach which he
adopted in deciding whether the dismissals were substantively unfair on
the basis that they needed to be seen as acts of alleged misconduct by
some 15 employees as opposed to collective action in support of a
demand or grievance.
[27] Before dealing further with the specific grounds of review on which the
Applicant relies in this review, it is apposite to set out the general principles
which find application in a review such as the present.
The principles
[28] It is important to note that the present application is a review, not an
appeal, and although unreasonableness as ground of review requires
consideration to be given to the facts which were established in evidence
before the arbitration hearing and the arbitrator’s evaluation of those facts
in a manner which comes close to deciding whether the arbitrator was
correct in his approach to and evaluation of the facts, the distinction
between appeal and review still exists and needs to be appreciated.
[29] The same applies to the further grounds relied on in the present
application, namely that the arbitrator failed to apply his mind to certain
issues / failed to consider certain material facts and ignored others.
[30] As explained in Head of Department of Education v Mofokeng & others
(2015) 36 ILJ 2802 (LAC) at para [32] – “….. sight may not be lost of the
intention of the legislature to restrict the scope of review when it enacted s
145 of the LRA, confining review to 'defects' as defined in s 145(2) being
Page 21
misconduct, gross irregularity, exceeding powers and improperly obtaining
the award. Review is not permissible on the same grounds that apply
under PAJA. Mere errors of fact or law may not be enough to vitiate the
award. Something more is required. To repeat: flaws in the reasoning of
the arbitrator, evidenced in the failure to apply the mind, reliance on
irrelevant considerations or the ignoring of material factors etc must be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken the enquiry in the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness, latent
or patent irregularities and instances of dialectical unreasonableness
should be of such an order (singularly or cumulatively) as to result in a
misconceived enquiry or a decision which no reasonable decision maker
could reach on all the material that was before him or her.” 5
[31] The Constitutional Court explained the test further in Duncanmec (Pty) Ltd
v Gaylard NO and others 6, as follows: “This test means that the reviewing
court should not evaluate the reasons provided by the arbitrator with a view
to determine whether it agrees with them. That is not the role played by a
court in review proceedings. Whether the court disagrees with the reasons
is not material. The correct test is whether t he award itself meets the
requirement of reasonableness. An award would meet this requirement if
there are reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified by rational reasons.”
5 See also paras [30] ff in Mofokeng and the references therein to Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae) 2013 (6) SA 224 (SCA); (2013) 34 ILJ
2795 (SCA), Gold Fi elds Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20
Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20
(LAC) which held that before an irregularity will result in the setting aside of the award, it
must in add ition reveal a misconception of the true enquiry or result in an unreasonable
outcome. The LAC further relied on Commercial Workers Union of SA v Tao Ying Metal
Industries & others 2009 (2) SA 204 (CC); (2008) 29 ILJ 2461 (CC); [2009] 1 BLLR 1 (CC)
at paras 76 and 134 where the Constitutional Court held that it is now axiomatic that a
arbitrator of the CCMA (or an arbitrator of a bargaining council) is required to apply his or
her mind to the issues before him or her and that failure to do so may result in the ensuing
award being reviewed and set aside. The irregularity must however result in an
unreasonable outcome or misconception of the true enquiry resulting in no fair trial of the
issues. See also Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA
24 (CC); (2007) 28 ILJ 2405 (CC)
6 [2018] 12 BLLR 1137 (CC) at paras 42 - 43.
Page 22
[32] Mere errors or irregularities are not sufficient to vitiate the award. To
warrant interference from a review court, the award must be
disconnected from the evidence resulting in an unreasonable
outcome7 and / or the failings, errors, irregularities or misconduct
must have resulted in the award ultimately being unreasonable. 8
[33] These governing principles applicable to a review, in which the
reasonableness of an arbitrator’s findings are at issue, were most recently
summarised in Sulzer Pumps SA (Pty) Ltd v Nomxanya & others (2024)
45 ILJ 2398 (LC) as follows:
26.1 The result will only be unreasonable if no reasonable arbitrator
could have reached the conclusion they did on the material
before them. 9
26.2 A mere failure by an arbitrator to apply their mind to i ssues
material to the determination of a dispute will usually amount
to an irregularity, but to set aside an award that failure must
either result in an unreasonable outcome or a misconception
of the true enquiry. 10
26.3 Erroneous factual findings or erroneous weighing of evidence
by an arbitrator will not warrant setting aside an award unless
the effect of those errors is to render the result unreasonable.
26.4 A failure to mention material facts or deal with a material issue
or an error in the assessment of evidence is insufficient to set
aside an award and a review must be evaluated in relation to
the totality of the evidence, not on a piecemeal basis. To do
otherwise would be tantamount to treating a review as an
appeal and would undermine the requ irement of s 138 of the
7 Duncanmec (Pty) Ltd v Williams Itumeleng NO and others [2020] 7 BLLR 668 (LAC) at
para 23.
8 See Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) [2013] 11
BLLR 1074 (SCA) at para 25
9 Sidumo & another v Rustenburg Platinum Mines Ltd & others 2008 (2) SA 24 (CC); (2007)
28 ILJ 2405 (CC) at paras 110 and 119.
28 ILJ 2405 (CC) at paras 110 and 119.
10 Head of Department of Education v Mofokeng & others (2015) 36 ILJ 2802 (LAC) at para
30
Page 23
LRA, which requires an arbitrator to deal with the substantial
merits of the dispute with a minimum of legal formalities and
to do so expeditiously and fairly. 11
26.5 If the arbitrator misconceives the nature of the enquiry, that
amounts to a gross irregularity as contemplated in terms of s
145(2)(a)(ii) of the Labour Relations Act, rendering the award
reviewable. 12
26.6 An irregularity or error, which results in a misconception of the
dispute by the arbitrator, must be one that is material to the
determination of the dispute, such that it distorts the
arbitrator’s conception of the enquiry, the delimitation of issues
for determination and the final outcome. It must result in the
arbitrator failing to address the question raised for
determination, which means that there was no fair trial of the
issues. 13
26.7 Notwithstanding the flawed reasoning of an arbitrator or any
irregularity committed, the court itself must still consider if the
result could reasonably be reached considering the issues and
evidence before the arbitrator.
26.8 The review court must not be swayed by an argument that the
result could have been different, which is something that can
only be considered in appeal proceedings.
The specific grounds of review
[34] The Applicants submit that the arbitration award is unreasonable and
should be reviewed and set aside on essentially three grounds. It is
11 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation
& Arbitration & others (2014) 35 ILJ 943 (LAC) at paras 19 and 20.
12 Mofokeng at paras 32 and 33, reaffirmed and emphasised in Makuleni v Standard Bank
of SA (Pty) Ltd & others (2023) 44 ILJ 1005 (LAC) at para 3.
13 Further footnotes in this extract from the Sulzer Pumps decision omitted
Page 24
submitted that the arbitrator committed gross irregularities in that he
made material errors of fact and law in finding that:
34.1 The company instructed the Applicants to work overtime
beyond 15h00,
34.2 To the extent that there was an instruction, the instruction was
lawful and reasonable,
and
34.3 To the extent that the Applicants committed misconduct,
dismissal was an appropriate and fair sanction under the
circumstances.
[35] The defence of the Applicants was in essence that they were entitled to
written notice of 7 and 14 days of the employer’s s tock take and the
overtime requirement on those days on which the stock take was to take
place, this was not provided and therefore the employees were not
required to work overtime on the day in question and were permitted to
return home at 3 pm that day.
[36] The arbitrator noted in paragraph 1 of his award, a 33 page document
which dealt extensively with large parts of the evidence before him , that
the hearing before him had taken place over 12 days from May to
December 2021, of which 5 days had been via a virtual hearing platform.
[37] The parties were represented by attorneys on both sides.
[38] He noted further that he “considered all the evidence ( more or less 60
hours of audio recording)” but because s 138(7) of the LRA requires brief
reasons he would only refer that part of the evidence which he considered
top be necessary to determine the dispute and substantiate his findings.
As set out above he was not only entitled to adopt this approach, but was
required to do so.
[39] In his survey of the e vidence he dealt with the material issues by way of
overview. The facts as determined by him in this part of his award
correspond in material parts largely with the facts as recorded in the pre-
arbitration minute to which reference is made hereinabove and to which
reference was also made in this part of his award.
Page 25
[40] Under separate headings he dealt with the issues of “Notice to the
employees” (being their entitlement to 7 days ’ written notice in respect of
overtime (in terms of the Collective Agreement for t he industry, MIBCO’s
Main Collective Agreement) and 14 days’ notice in terms of the employer’s
policy.
[41] He also dealt separately with the general practice of stocktakes being done
over a 12 hour shift, Overtime being voluntary, the employees’ tacit
agreement (at first) to work overtime on the day in question, their deciding
to leave, the relevance of the overtime sheet they were asked to complete,
the position of each of the 13 Applicants, separately and with reference to
their respective evidence each time, and the instruction to them to gather
at 15h00 in order for the employer to address them (which did not happen,
because the employer was some 15 minutes late in arriving, by which time
the Applicants had left work, using the company transport w hich was
scheduled to leave at that time.
[42] The arbitrator made inter alia the following findings based on the evidence
before him:
42.1 The arbitrator found that the employees received notification and
were aware of the stock take on 2 December 2019.
42.2 This was inter alia based on the fact that notice of the stock take
had been given before for earlier scheduled stock takes, the
dates for which had been postponed, with the employees having
been informed of the postponed dates, if not directly via their
managers.
42.3 Be that as it may, on the day in question the Applicants all
attended the premises (save for two who arrived at later) at
07h00, when the 12 hour shift was to commence, at which time
the premises had already been prepared for the stock take.
42.4 The Applicants would have seen from this that the stock take was
scheduled for the day, and from past experience would have
known that it was scheduled for a 12 hour shift on that day.
42.5 No complaints were raised about this at that time.
Page 26
42.6 The only complaints came about when the Applicants became
aware of the fact that no meals would be provided.
42.7 That was the issue for them at first, not the fact that overtime
work / the stock take was set to follow.
42.8 When the Applicants reported for duty on 2 December 2019, they
did not register any objection to working on the stock take that
day on account of not having received proper notice.
42.9 On the contrary, the evidence established that they participated
in the stock take.
42.10 The additional 4-hours of overtime in the context of the 12 -hour
stock take shift was agreed to and accepted by the applicant
employees.
42.11 That had been the general practice, and the Applicants reported
for duty on 2 December 2019 , commenced their duties on the
basis that they would need to work for 12 hours on that date, only
to abandon the stock take at 15h00.
42.12 In that process the arbitrator in effect found that the Applicants
had acceded to the Respondent’s over time / stock take demand
and had waived whatever rights they may have had to insist on
written notice to them for a longer period.
42.13 The arbitrator considered the Applicant’s contention that they
were offered a choice whether to work beyond 15h00 or not by
the employer on the day.
42.14 The alleged ‘choice’ was based on an informal meeting at the
loading bay.
42.15 After the food issue had been resolved, the Respondent’s
supervisor, a certain Ruan Haggard, went around to employees
with the list and upon handing out food vouchers to the
employees for the meal which had previously been the source of
their complaint, and asking the employees to indicate by signing
the list that they were going to stay on for the stock take beyond
3 pm, the Applicants refused to sign the list.
Page 27
42.16 Haggard testified that the purpose of this was a risk assessment
exercise in order to establish which of the applicants were going
to stay now that the promised food was being provided (in the
form of the vouchers) after there had been threats from
employees that they were going to leave (upon realising during
the course of the stock take that no food was being provided that
day).
42.17 Once again, the issue in dispute was the food question, not a
dispute about having to work overtime.
42.18 There was no evidence that anyone from management gave any
employee permission to leave at 3 pm.
42.19 This was all consistent with the general practice that stock takes
took place over a 12 -hour shift and that employees were not
permitted to leave half-way through the stock take.
42.20 The evidence also established that it was not a requirement that
an employee had to sign the list in order to work overtime.
42.21 The evidence established further that it was improbable that the
Respondent would provide its workforce with a choice in the
circumstances where it required “all hands on deck” in order to
complete the stock take within the allocated time for this, given
that its usual production was interrupted by the stock take.
42.22 As a result of the Applicants being suspended from work as a
result of their refusal to c ontinue with the stock take on the day
in question, the stock take taking longer than would otherwise
have been the case and replacement labour having to be
employed for that purpose in order to complete the stock take,
the employer / Respondent suffered h undreds of thousands of
Rand in lost production.
42.23 The Applicants who relied on the alleged choice also tendered
“dubious excuses” regarding why they could not continue with
the stock take, according to the arbitrator.
Page 28
42.24 None of these excuses for employees hav ing to leave work on
the day (as raised in the arbitration) was brought to
management’s attention on the day nor was any of them raised
during the disciplinary hearing.
42.25 Certain of the excuses, for example one of the Applicants’
daughter having gone missing on the day, and ultimately having
to be collected from the police station (in support of which a letter
from the headmaster of her school was tendered in the
arbitration), would have met with understanding and sympathy
by the employer had the request to be excused been made by
the father at the time of this happening (which was some hours
before 3 pm in any event). That was not done, leading the
arbitrator to conclude that the explanation was not a credible one.
[43] Ultimately, in the Court’s view, with the arbitrator having had proper regard
to the evidence before him, the arbitrator reasonably found that when
Haggard handed out meal vouchers and conducted a risk assessment, he
did not present the employees with a choice to leave at 15h00, but simply
sought to ascertain whether the employees would be complying with their
duties now that the food issue had been resolved.
[44] The fact that the Applicants decided to leave at 3 pm and sought to justify
their decision to do so with reference to their being asked to sign the list
suggests that they were indeed still aggrieved about the food issue ( with
the Respondent ’s kitchen only being able to provide the promised food
somewhat later that day, at about 14h00).
[45] This lends further support to the arbitrator’s finding that the Applicants had
at first agreed to work the overtime in question, but then refused to do so,
in breach of that which their contracts of employment required of them,
and in disregard of that which the employer required of them.
[46] The claim that that which was presented to them (the signing of the list)
being the employer asking for an indication from them, at that late stage,
being the employer asking for an indication from them, at that late stage,
as to whether they were prepared to work over time on the day, i.e asking
them to volunteer to do so, was highly improbable and the arbitrator acted
reasonably in concluding that which he concluded on this score.
--
Page 29
[47] Regarding the announced Top 5 (“T5”) meeting just before 15h00, the
arbitrator reasonably found that it was “strange” that only 2 employees out
of a workforce of 42 did not hear the announcement over the intercom.
[48] It was similarly strange that 5 of the 13 Applicants alleged they did not hear
the announcement but made no enquiries regarding the reason all other
employees were gathering at the T5 area.
[49] By leaving the meeting, the arbitrator reasonably determined that the
Applicants’ defiance of the instruction to remain at work in order to continue
with the stock take beyond 3 pm was persistent and deliberate.
[50] When the Applicants decided not to wait at the T5 area for management
and, furthermore, proceeded to clock out, they deprived the employer of
an opportunity to place them on terms and explain the seriousness of their
refusal to work overtime to them.
[51] Prior to that, by arriving at work at 7 am on the day and commencing with
the stock take without objection, the Applicants had accepted the
instruction on the part of the Respondent to do the stock take without
objection and in that process agreed to working overtime, without objecting
to whatever short notice thereof there may have been.
[52] Having regard to the totality of the evidence before him, the arbitrator , in
the Court’s view on reasonable grounds and after a proper consideration
of the facts before him, determined that:
52.1 The Applicants committed serious misconduct.
52.2 They knew they were required to work the 12 - hour shift on the
day for the annual stock take (and for the days following on 2
December);
52.3 They did not have permission to leave at 15h00;
52.4 They left in wilful disregard of their instructions.
[53] His finding that the Applicants were required to work overtime on the day,
that the instruction to do so had been given to them by their employer and
had been accepted by them, that that instruction was not unlawful, and
had been accepted by them, that that instruction was not unlawful, and
had in any event been accepted by the employees when they arrived at
Page 30
work on 2 December or by arriving at work on 2 December at 07h00
without raising any objection then or thereafter, which prevented them from
claiming at the arbitration that the original instruction was unlawful and
could have been ignored, was in my view also a reasonable determination
based on a proper assessment of the facts as presented to him in
evidence.
[54] Having regard to the totality of the evidence before him, the arbitrator in
my view on reasonable grounds and upon a proper consideration of the
facts before him, determined the following issues too (if not expressly, by
necessary implication) –
54.1 the instruction to work overtime was given by the employer
(expressly)
54.2 it was accepted (expressly, tacitly / through conduct and without
objection) by the employees
54.3 the instruction was clear
54.4 it was lawful
and
54.5 the Applicants had no good cause / excuse for not complying with
the instruction.
[55] They were accordingly held to have committed the disciplinary offences
with which they were charged, if not in the same form, in substance and
on the same facts, that of wilful disregard of a reasonable instruction –
insubordination.
Sanction
[56] The next issue for determination in this review is whether the arbitrator’s
finding that the employer’s sanction of dismissal was justified / reasonable
in the circumstances.
[57] The Third Respondent in conclusion found that the employees had
committed serious misconduct on the grounds that :
Page 31
57.1 they knew they had agreed to work the 12 hour stock take shift,
57.2 they did not have permission to leave at 15h00
and
57.3 they “wilfully abandoned the stock take”.
[58] Elsewhere in his award he expresses the view that “When one walks off a
shift and there could be the slightest doubt that one does not have
permission to leave one should make sure that permission is expressly
granted. It must be remembered that the employment relationship is a
subservient one.”
[59] And “It simply makes no sense to lose 30% of the employer’s workforce
when there are still 4 hours left in a 12 -hour shift, especially considering
the time that was lost as a result of the dispute about food.”
[60] And “…it is more probable that the employees’ leaving the stock take was
a wilful act. Their excuses / reasons for leaving were fabricated after the
event.”
[61] This in my view amounts to a finding of gross insubordination, a wilful and
serious refusal to obey a lawful and reasonable command alternatively
conduct by the employees which posed a deliberate and serious challenge
to the employer’s authority.
[62] The Respondent proved before the Third Respondent that the employees
had been instructed to do the stock take on the day and that they knew
and accepted that they were required to work a 12 hour shift (4 hours of
overtime) in order to do so.
[63] The framing of the charge against the employees included the phrase ‘(in)
defiance of requests and inst ructions by abandoning a scheduled stock
take’.
[64] The finding of the chairperson who conducted the disciplinary hearing
included a reference to the “Company submitted that the trust relationship
is absolutely broken”, “….. the misconduct was harmful in that it placed the
Company in a difficult position with regard to stock take ….”, all of which
amounted to a finding of gross insubordination justifying dismissal.
Page 32
[65] The chairperson of the disciplinary hearing and the Third Respondent both
gave proper consideration to the severely adverse consequences of a
dismissal for the employees, their personal circumstances and other
factors in mitigation of sanction.
[66] They ultimately decided the dismissals were justified, the chairperson in
the disciplinary hearing also finding that the Applicants were unremorseful
for their conduct.
[67] The same or similar considerations were taken into account by the
Arbitrator in upholding the dismissals , finding them to have been
substantively fair and dismissing the claim of substantively unfair
dismissals which had been placed before him for determination.
[68] In this regard too it cannot be said that the determination of the arbitrator
that the sanction of dismissal was substantively fair was so unreasonable
that no reasonable commissioner could have come to that conclusion on
the same facts.
[69] The fact that one of the employees’ referral of his dismissal to separate
arbitration suffered a similar fate to that of the Applicants in the case before
the arbitrator is further proof that the findings of the arbitrator in this matter
were within the broad band of reasonableness which render s an award
such as his unassailable on review.
[70] The arbitrator complied with his duty to, inter alia, deal with the substantial
merits of the dispute.
[71] The award demonstrates that he grappled with the merits of the dispute
before arriving at a reasonable conclusion, having had proper regard to
the evidence which had served before him.
[72] It also apparent from the arbitrator’s assessment of the evidence that he
was alive to the disputes of fact that existed in relation to the parties’
respective versions.
[73] The award plainly reveals that the arbitrator, inter alia, properly assessed
the credibility of the various fac tual witnesses; their reliability; and the
probabilities.
Page 33
[74] The award is reasonable and justifiable if regard is had to the material
which was placed before the arbitrator and the extensive evidence which
was led, assessed by him . This demonstrated that the Applicants’
dismissal was substantively fair.
[75] Third Respondent (the arbitrator) therefore:
75.1 properly identified the dispute he was required to arbitrate,
75.2 understood the substantive nature of the charges which had
been brought against the Applicants in their disciplinary hearing,
75.3 understood the nature and ambit of the dispute he was required
to arbitrate,
75.4 identified the issues correctly and applied his mind to the relevant
issues,
75.5 gave the parties , who were represented by attorneys, a full
opportunity to have their say in respect of the dispute , over the
course of many days of evidence,
75.6 considered the material evidence properly and thoroughly,
75.7 dealt with the substantial merits of the dispute,
and
75.8 arrived at a decision that another decision maker could
reasonably have arrived at based on the evidence properly
assessed in similar fashion.
Conclusion
[76] In the result the application for the review of the award issued by the Third
Respondent is dismissed.
[77] Given that the Applicant trade union is representing its members in this
dispute and the y (the union and its members) are entitled to have the
determination of the Third Respondent in this matter challenged by way of
Page 34
this review, the Court is satisfied that the requirements of law and fairness
dictate that each party should pay its own costs in this review.
[78] An adverse costs order in this matter may serve as disincentive to other
applicants and their unions in similar circumstances when deciding
whether to approach this Court for relief in respect of a similar finding, the
consequences of which it is accepted would have been severely prejudicial
to those who lost their jobs as a result of their conduct . They are entitled
to have that issue properly ventilated and determined in the various fora
available to them, as has been the case here.
Order:
1. The application is accordingly dismissed.
2. There is no order as to costs.
_______________________
Stelzner AJ
Acting Judge of the Labour Court of South Africa
Representatives:
For the Applicants: Jeremy Phillips from Cheadle Thompson and
Haysom
For the First Respondent: Adv L Voultsos instructed by Joubert Galpin
Searle