THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2093/16
In the matter between:
SOUTH AFRICAN AIRWAYS (SOC) LIMITED Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER BONGE MASOTE N.O. Second Respondent
NTM obo REGGY MASHEGO Third Respondent
Heard: 23 April 2025
Delivered: 1 August 2025
JUDGMENT
SCHENSEMA, AJ
2
Introduction
[1] This is an opposed application brought by the applicant to review and set
aside the arbitration award of the second respondent (the Commissioner) in terms of
which it was found that the third respondent’s dismissal by the applicant was
procedurally fair but substantially unfair.
[2] The applicant was ordered to reinstate the third respondent from 3 October
2016, in the same position he held prior to his dismissal or in any other position
which is equal or above in status to the one the third respondent held before his
dismissal. The third respondent was further awarded back pay in the amount of
R286 666.00, which amount was to be paid within 30 days of the award.
Background
[3] The third respondent was appointed as a full- time union representative in
2011. On 15 August 2012, the third respondent’s status as full time union
representative was terminated, resulting in the third respondent being deployed into
the applicant’s Airports operations.
[4] The third respondent was initially required to report to Mr Darrin Peters
(Peters) which he refused to do on that basis that Peters was at a lower grade than
him. As a result, an agreement was subsequently reached that the third respondent
would instead report to Ms Lwazi Mathivha (Mathivha).
[5] Notwithstanding various accommodations being made for the third respondent
to transition into the applicant’s Airports operations, (which accommodations
included special leave for the month of September 2012) the third respondent
absented himself from numerous scheduled duties which ultimately resulted in the
third respondent being charged with various counts of serious misconduct relating to
unauthorised absence for the period 7, 11, 12, 13, 14, 15, 18, 19 December 2012
and 26, 27 , 28 February 2013, 1 and 4 March 2013, 19 to 20 March 2013 and 29
March 2013.
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[6] The third respondent was further charged with disobedience for events that
transpired on 7 March and 1 April 2013 respectively in that he had failed to follow the
established/known procedures by not obtaining the necessary permission for his
absence from the scheduled duties as well as failing to comply with a reasonable
instruction from his manager Mathivha. In respect of the misconduct of 1 April 2013
the third respondent was further charged with disobedience for contravening the
applicant’s IT policies and procedures.
[7] During the internal disciplinary enquiry, the third respondent was found not
guilty in respect of the charges relating to his absence on 19 December 2012 and 19
to 20 March 2013 and the charge relating to the third respondent having promoted
the objectives of an unrecognised union.
[8] As a result of the guilty finding in respect of the remaining charges, the third
respondent was subsequently dismissed.
Delay between the Referral and Set Down of the Arbitration
[9] The third respondent was dismissed in 2013 however the arbitration in
respect of the award under review was only finalised in 2016. The reasons submitted
for this delay are set out in the applicant’s timeline contained in the pleadings bundle.
[10] In summary, the delay was caused by an allegation made by the union, NTM,
that the third respondent’s dismissal was motivated by his affiliation with the union. In
response Commissioner Cellier issued a ruling on the basis that the Commission for
Conciliation, Mediation and Arbitration ( CCMA) did not have jurisdiction to arbitrate
the dispute. The ruling was subsequently taken on review and the late Steenkamp J
in November 2015 delivered his judgment resulting in the Ruling being reviewed and
set aside and the CCMA being ordered to set the matter down for arbitration.
[11] The arbitration subsequently commenced in March 2016 and was held over a
period of eight days between March and August 2016. In response to the award, the
period of eight days between March and August 2016. In response to the award, the
applicant lodged a review application in October 2016 and various further delays
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were experienced inter alia due to an incomplete record, two Rule 11 applications
and the applicant being placed under business rescue.
The award
[12] The Commissioner analysed the evidence as follows:
12.1 with reference to the notice to attend the disciplinary hearing,
determined that the third respondent had been charged with five counts of
gross misconduct. However, two of these counts related to unauthorised
absences, differing only in the dates, and the remaining three related to
disobedience, again differing only by date. The Commissioner decided to
condense the charges, noting that it was unclear why the applicant had
separated them, given that the only distinguishing factor in each charge was
the date on which the alleged misconduct occurred;
12.2 the Commissioner further recorded in the award that the third
respondent had been charged with being absent from his scheduled
workstation on various dates, as well as with disobedience for failing to
provide his supervisor with prior notice of his absences. However, with
reference to the timesheets presented during the arbitration, it was
established that these timesheets had been authorised by Peters, and
accordingly, the third respondent had been paid for those days. The
Commissioner determined that the purpose of this authorisation indicated the
applicant’s acceptance that the third respondent’s absences, as outlined in the
charge sheet, were permitted. In this regard, the Commissioner found that
Peters had acted on behalf of the applicant when signing the timesheets;
12.3 upon Mathivha’s return from sick leave, she had reversed the days and
instructed that the monies equal to the days taken, be deducted from the third
respondent’s salary. The Commissioner determined that this approach
resulted in the third respondent being ‘punished’ for a wrong that had been
committed by Peters and not the third respondent;
12.4 the Commissioner criticises the applicant for not having tak en
12.4 the Commissioner criticises the applicant for not having tak en
disciplinary action against Peters and Mlangeni by Mathivha or by Mlangeni
against Peters. The Commissioner concluded that the third respondent was
used as a ‘sacrificial lamb’ for the gross negligence of Peters and Mlangeni
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who were not disciplined and that the authorisation by Peters was valid and
the third respondent’s absence was permitted; and
12.5 in light of the applicant’s concession that the third respondent ought to
have only been charged in respect of the dates 5, 6, 7, and 29 March 2013,
and further taking into account that the applicant led no evidence in support of
these charges, whereas the third respondent provided detailed evidence
regarding his whereabouts and stated that he had obtained permission for his
absences, the Commissioner found that the dismissal was substantively
unfair. This conclusion was further supported by the fact that Mathivha, under
cross-examination, was unable to provide any details regarding when the
instructions were allegedly given or the nature thereof. Accordingly, on a
balance of probabilities, the dismissal of the third respondent was found to be
substantively unfair.
Analysis of the award
[13] In effect, the Commissioner found that the third respondent, despite refusing
to report to Peters had obtained his permission for his absences from Peters and
accordingly his dismissal was substantively unfair.
[14] The Commissioner extensively summarises the witnesses’ evidence in his
award, which in summary and in particular with reference to Mathivha’s evidence has
been identified as reviewable. Essentially the Commissioner ’s failure to properly
consider the evidence coupled with his findings in paragraphs 102 to 105 of his
award, is the basis for the applicant’s review.
[15] The Commissioner provides no reasons , despite the fact it was common
cause that the third respondent had refused to report to Peters and that Peters
testified that he was not authorised to sign off the time sheets, as to why he
considered the permission granted by Peters under these circumstances to be
sufficient to prove on a balance of probabilities that the third respondent’s version
was more probable.
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[16] The Commissioner further ignored the evidence that the third respondent was
clearly well aware of the process required to obtain authorisation and that he had
engaged Mathivha in this regard.
[17] The Commissioner further ignored the fact that Peters was not authorised to
give the third respondent the permission.
[18] The Commissioner further failed to consider Mathivha’s evidence in relation to
the misconduct of March 2013, in respect of which Mathivha had testified that no
prior arrangements had been made with her for his absence. As a result, the third
respondent clearly did not have the authorisation to be absent from his scheduled
duties, which evidence the Commissioner simply ignored and determines at
paragraph 104 of the award that the applicant did not lead any evidence. This is
clearly incorrect given the transcribed record which sets out Mathivha’s evidence in
relation to the March 2013 dates.
[19] In short, the Commissioner by disregarding critical evidence, clearly failed to
determine whether the third respondent had committed the misconduct for which he
had been dismissed, which ultimately resulted in the Commissioner misconstruing
the nature of the enquiry before him.
Grounds of review
[20] The applicant holds the view that the Commissioner’s award stands to be
reviewed and set aside for the following reasons:
20.1 The Commissioner committed gross irregularities in the conduct of the
arbitration proceedings;
20.2 The Commissioner committed misconduct in relation to his duties as an
arbitrator by ignoring and/or misconstruing relevant evidence; and
20.3 As a result, reached a decision that a reasonable decision maker could
not reach.
[21] In support of the applicant’s submission that the Commissioner misconstrued
the nature of the inquiry , the applicant emphasises that its case was not one which
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related to the third respondent not being at the workplace, but rather one in which he
had failed to report for the duties he was appointed to perform and that such
absence from his scheduled duty was without permission.
[22] Notwithstanding the Commissioner’s correct understanding of the charge, he
failed to properly assess the misconduct notwithstanding the common cause facts
that:
22.1 the third respondent had raised issues in relation to him reporting to
Peters given that Peters was at a lower level;
22.2 that the applicant had accommodated the third respondent’s concerns
by allowing him to report to Mathivha;
22.3 whilst Mathivha was on sick leave, the third respondent was required to
report to Mlangeni; and
22.4 the third respondent had not reported for his scheduled dut ies on
7,11,12,13,14,15 and 18 December 2012.
[23] In light of these common cause facts, the applicant holds the view that the
only remaining issue that remained for the Commissioner to determine was whether
on a balance of probabilities, the third respondent had the required permission.
[24] In support of its submission, the applicant makes reference to the evidence in
respect of the various dates which can be summarised as follows:
7 December 2012
24.1 the third respondent had attended a group hearing on 7 December
2012 at 09h00 and did not report for his duties which were scheduled to start
at 05h00; and
24.2 the third respondent had testified that permission had been given to
him by Peters.
[25] In response to the third respondent’s claim that he had Peters’ permission, the
applicant submits that, since it is common cause that the third respondent was
unwilling to report to Peters, it would have been impossible for Peters to have
granted such permission. Therefore, the third respondent clearly lacked the
necessary authority, as he was required to obtain permission from Mlangeni.
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11 December 2012
[26] The third respondent ’s defence was that he had not reported for duty as he
was attending Mr Molefe’s hearing. Furthermore, that he had obtained permission
from Peters by way of sms, which sms he no longer had in his possession.
[27] The applicant reiterates that the permission could not have been given by
Peters in light of the third respondent’s refusal to report to him and was therefore
required to obtain the permission from Mlangeni.
12 – 18 December 2012
[28] The third respondent was absent from his duties for the period 12 to 15
December 2012 as he was attending a verification exercise.
[29] On 15 December 2012, the third respondent addressed correspondence to
Mlangeni in which he informed her that he was attending the verification exercise. In
response Mlangeni raised her concern that the third respondent had not timeously
informed her of his abs ence. In light hereof it was proven that the third respondent
did not have the required permission to be absent.
[30] The Commissioner further failed to take into consideration Peters ’ evidence in
which he had testified that he did not have the authority to sign the third respondent’s
timesheets. In conclusion the applicant reiterates that the third respondent could not
be permitted to rely on the fact that he had obtained permission from Peters in
circumstances where he had refused to report to Peters. This evidence was not
considered by the Commissioner and in failing to do so, he misconstrued the nature
of the enquiry with reference to who was the correct person to have given the thir d
respondent permission.
[31] Further criticism is raised by the applicant in relation to the Commissioner’s
findings of inconsistent discipline. The Commissioner was required to determine the
fairness of the third respondent’s dismissal and not to determine whether other
employees should have been disciplined.
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[32] The applicant further contends that the Commissioner failed to consider
crucial evidence presented by Mathivha during her testimony, particularly under
cross-examination, where it was established that evidence had been led concerning
the March 2013 dates. This omission, the applicant argues, constitutes a reviewable
gross irregularity.
[33] The applicant concludes that the Commissioner’s conduct in misconstruing
the nature of the inquiry and by misconstruing or disregarding the evidence before
him, resulted in there being no fair trial of the issues . Ultimately the Commissioner
failed to address the question raised for determination, which was simply whether
the third respondent had committed the misconduct that he was dismissed for.
[34] In opposition, the third respondent takes issue with the applicant’s review
application and emphasises the following:
34.1 that evidence was led during the arbitration that the third respondent
was attending to the verification process, that he had been representing fellow
employees at the disciplinary hearings and that he had reported to his
supervisors his absence from his workstation on the days that it has been
alleged that he had been absent without authorisation.
Test for review
[35] In a range of cases, starting with Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others
1 and the jurisprudence that followed2, the test on review and
as set out in the matter of Herholdt v Nedbank Limited 3, the Supreme Court of
Appeal has defined with greater clarity the standard of review:
35.1 It must be established, either that the arbitrator has misconceived the
nature of the enquiry, or that they arrived at an unreasonable result.
1 (2007) 28 ILJ 2405 (CC).
2 CUSA v Tao Ying Metal Industries and others 2009 (2) SA 204 (CC); Fidelity Cash Management
Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC);
Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) (Herholdt); Gold Fields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v C ommission for C onciliation, Mediation and
Arbitration and others [2014] 1 BLLR 20 (LAC).
3 2013 (6) SA 224 (SCA) .
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35.2 For an award to be unreasonable, the arbitrator’s conclusion must be
one that a reasonable decision- maker could not reach on the material that
was before the arbitrator.
35.3 Material errors of fact, including errors concerning the weight and
relevance to be attached to certain facts, are only of consequence if their
effect is to render the outcome unreasonable.
35.4 If the arbitrator’s reasons provide a reasonable ‘route’ leading towards
the conclusions, it must follow that the decision is one that could have been
reached (and in fact was) by a reasonable decision- maker. A review
application would, in such circumstances, not succeed.
35.5 Even if there are flaws in the arbitrator’s reasons, a review must still
consider whether, apart from the arbitrator’s reasons, ‘ the result is one a
reasonable decision maker could reach in the light of the issues and the
evidence’
4.
24.6 A review court is required to examine the merits ‘in the round’ only.
[36] It is thus obvious that reasonableness can only be assessed with regard to
the evidence before the decision-maker.
[37] It is uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
5 A result
will be considered to be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material presented to him or her.6
[38] In Head of the Department of Education v Mofokeng and Others 7 the Labour
Appeal Court made the following findings:
‘[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
4 Herholdt ibid at para 12.
4 Herholdt ibid at para 12.
5 SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC) at para 25.
6 Ibid.
7 (2015) 36 ILJ 2802 (LAC) at para 30 onwards.
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aside of the award, it must in addition reveal a misconception of the true
enquiry or result in an unreasonable outcome.
[31] The determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations and
circumstantial factors. A finding of unreasonableness usually implies that
some other ground is present, either latently or comprising manifest
unlawfulness. Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination of inter -related questions of
rationality, lawfulness and proportionality, pertaining to the purpose, basis,
reasoning or effect of the decision, corresponding to the scrutiny envisioned in
the distinctive review grounds developed casuistically at common law, now
codified and mostly specified in section 6 of the Promotion of Administrative
Justice Act (“PAJA”);
Such as failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an ulterior
purpose, in bad faith, arbitrarily or capriciously etc. the court must nonetheless
still consider whether, apart from the flawed reasons of or any irregularity by
the arbitrator, the result could be reasonably reached in light of the issues and
the evidence. Moreover, judges of the Labour Court should keep in mind that
it is not only the reasonableness of the outcome whi ch is subject to scrutiny.
As the SCA held in Herholdt, the arbitrator must not misconceive the inquiry
or undertake the inquiry in a misconceived manner. There must be a fair trial
of the issues. (own emphasis)
[32] … 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 . (own
emphasis)
enquiry in the wrong manner or arrived at an unreasonable result . (own
emphasis)
[33] ... The arbitrator however must be shown to have diverted from the
correct path in the conduct of the arbitration and as a result failed to address
the question raised for determination.’
Application to the facts
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[39] The common cause evidence is that the third respondent had refused to
report to Peters. As a result of his refusal, an arrangement had been made that the
third respondent was to report to Mathivha and in her absence to the acting manager
Mlangeni.
[40] In light of the third respondent’s refusal to report to Peters, it would therefore
not have been possible for Peters to have authorised his absence from his
scheduled duties. Accordingly, there was no basis for the Commissioner to have
ignored and/or rejected this evidence.
[41] The Commissioner’s failure to properly assess this evidence in the common
cause context that it was provided, resulted in the Commissioner having
misconstrued the nature of the enquiry. In so doing the Commissioner failed to
properly assess the eight separate instances of misconduct.
[42] The Commissioner also failed to appreciate that these eight acts of
misconduct constituted distinct and independent transgressions. No justification was
provided as to why these incidents were treated as a consolidated whole.
Furthermore, the Commissioner did not appreciate that the third respondent no
longer held the position of full -time union representative, and thus could not justify
his absences. This notwithstanding the third respondent’s assertion that he was
assisting fellow employees.
[43] These errors on the part of the Commissioner resulted in an outcome that is
unreasonable and therefore renders the award susceptible to review.
[44] The Commissioner’s finding that the applicant failed to lead any evidence in
relation to the events of March 2013 is demonstrably incorrect, particularly in light of
the evidence given by Mathivha on this issue. This factual error similarly leads to an
unreasonable outcome and reinforces the reviewability of the award. It is evident that
the Commissioner failed to apply his mind to the material evidence placed before
him.
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[45] These substantial errors, coupled with the Commissioner’s
mischaracterisation of the central issue, namely, whether the third respondent had
obtained proper authorisation for his absences, resulted in the Commissioner entirely
failing to consider the impact of the third respondent’s misconduct on the
employment relationship.
[46] The Commissioner’s conclusion that the dismissal was unfair merely because
Peters and Mlangeni were not also charged, is unsupported by the evidence. The
eight instances of misconduct were factually established and not adequately
addressed. There was no justification for consolidating these separate acts.
Additionally, the third respondent’s credibility was compromised by his contradictory
defence: on the one hand, he claimed to have refused to report to Peters, and on the
other, relied on Peters' authority to justify his absences.
[47] As a result, the award must be set aside. The Commissioner’s irregularities
are such that they result in a misconceived decision which no reasonable decision-
maker could reach on the material that was before him.
[48] In exercising my discretion and given that the complete record of the
arbitration proceedings is before me, I have decided to substitute the arbitration
award rather than remit the matter for a fresh hearing.
Costs
[49] This Court has a wide discretion in awarding costs. I am of the view that this is
a matter where the interests of justice will be best served by making no order as to
costs.
[50] In the premises, the following order is made:
Order
1. The arbitration award issued by the second respondent under case
number GAEK3812/13 20 is reviewed and set aside in its entirety, and is
replaced with an award in the following terms:
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‘The third respondent’s dismissal is procedurally and substantively fair.’
2. There is no order as to costs.
H. Schensema
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : Advocate ZM Navsa
Instructed by : Edward Nathan Sonnenbergs Inc.
For the Third Respondent : Advocate NE Ramasehla
Instructed by : Noko Remaboya Attorneys Inc.