THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable Case
No: JR1400/22
In the matter between:
EAST RAND PLASTICS (PROPRIETARY) LIMITED Applicant
and
NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA obo MABENA, LETTIE First Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL (“MEIBC”) Second Respondent
DLAMINI, KENNETH N.O Third Respondent
Heard: 5 November 2024
Delivered: 8 August 2025
JUDGMENT
ANESTIDIS, AJ
2
Introduction
[1] This matter concerns a review application to review and set aside an arbitration
award issued by the third respondent, acting under the auspices of the second
respondent, in terms of which it was found that the dismissal of the first respondent
was procedurally fair and substantively unfair . In terms of the Award, the first
respondent was to be retrospectively reinstated to the same or similar position, and on
the same terms and conditions of employment, which prevailed prior to the date of her
dismissal on 12 February 2021 (the Award).
[2] As per the applicant ’s notice of motion, it seeks to have the Award reviewed,
set aside and substituted with an order that the dismissal was fair, alternatively, that
the matter be remitted to the second respondent for an arbitration afresh before a
different commissioner.
[3] The review application is opposed.
Background facts
[4] On or about 10 December 2020, the first respondent was charged with the
following alleged misconduct:
“Fraud – Falsifying Quality records and not doing quality checks”
[5] That was the sole charge, from start to finish, and no further particulars or
information were included in the charge.
[6] The first respondent’s disciplinary hearing, eventually, proceeded in February
2021, after several delays, which delays are irrelevant to the present application and,
therefore, need not be dealt with or considered, as the first respondent’s dismissal
was held to be procedurally fair, which finding has not been challenged in this review
application. It is worth noting, however, that when the first respondent’s disciplinary
hearing eventually took place, the hearing was conducted in the first respondent’s
absence, as the first respondent and her trade union representatives walked out of
3
the hearing, at the commencement thereof , since according to them the hearing had
already been conducted before a different chairperson in December 2020 (Mr Jan
Dreyer) and that the parties were still awaiting the outcome of that hearing.
According to the applicant, Mr Dreyer had fallen ill, with the result that a new
disciplinary hearing was convened before a different chairperson.
[7] In support of the charge levelled against the first respondent, the applicant
relied, in the main, on video surveillance (CCTV) footage and an affidavit deposed to
by its main witness, Ms Natasha Northmann (Northmann), together with certain
documentary evidence.
[8] The first respondent essentially denied the charge and denied committing any
wrongdoing whatsoever.
[9] On or about 12 February 2021, the first respondent was summarily dismissed
by the applicant.
The arbitration
Applicant’s evidence
[10] The applicant called one witness to testify in support of its case, namely
Northmann. She testified with reference to video footage, a series of quality record
documents and a previous written statement signed by her.
[11] In summary, Northmann testified that the applicant procured a new client,
called Reynolds, which concluded a contract worth R90,000,000 (ninety million rand)
for the production of a plastic (refuse bag) product called Hefty.
[12] She testified that, at the time of the alleged misconduct, the first respondent
was employed in the position of Quality Control Assistant/Inspector.
[13] She explained that, as per the available video footage, the first respondent did
not perform certain quality checks , as were required of her, during the evening to
morning of 14 – 15 November and 23 – 24 November 2020 (2 nights ), albeit that
4
there appeared to be technical difficulties with the video footage and/or equipment in
respect of 23 – 24 November 2020. Pursuant thereto, so she stated, the first
respondent populated certain quality records, which falsely recorded that she had
conducted certain quality checks and tests, in circumstances where she had not
actually conducted or completed any such checks or tests. Certain of the checks
needed to be conducted every 15 minutes , and the relevant documentation had to
be filled in every 30 minutes.
[14] She further explained that the shift supervisor and operator sign ed off on the
quality records and checks done by the first respondent. She testified that, at the end
of each shift, the supervisor w ould ensure that the documentation was signed and
filled in, and that the checks were done by the first respondent. The shift supervisor
and operator signed off on the documentation in order to confirm that they had
checked and approved the contents thereof.
[15] Northmann explained, in some detail, certain of the checks and tests which
the first respondent was required to conduct, but did not actually do, pursuant to her
falsely completing the necessary quality records.
[16] Under cross-examination, Northmann confirmed that the supervisors, such as
“Chris” and “Mister Twala”, signed off on the checks and quality records performed
by the first respondent. She stated that supervisors do spot checks and look after the
entire factory, not only one employee.
The first respondent’s evidence
[17] The first respondent was the only witness who testified in support of her case.
In summary, s he testified that she understood the charge of misconduct to relate
only to the night of 23 – 24 November 2020.
[18] The first respondent confirmed that at the eventual and relevant disciplinary
hearing, she attended with two trade union shop stewards, Mr Twala Xhosa and a Mr
Vincent. She confirmed that , at this disciplinary hearing, she did not immediately
Vincent. She confirmed that , at this disciplinary hearing, she did not immediately
walk out of the hearing. Rather, she and the two shop stewards signed the
5
attendance register , after which they proceeded to argue that the holding of this
hearing was wrong and unfair, in light of the previous hearing where no outcome was
rendered due to the illness of the chairperson who presided over that hearing. Once
the first respondent’s rights were explained to her, she and the two shop stewards
proceeded to walk out of the hearing, as they felt that the process was unfair and
improper. The first respondent testified that the chairperson duly advised her of the
risks of w alking out of the hearing, in that the process would still proceed, and she
could be dismissed.
[19] The first respondent testified that she was never trained for the Quality
Control position, which she occupied. She also testified that she did not have access
to a computer, and that she only shared one computer with a colleague named
Malefitsi.
[20] She testified that the supervisor did spot checks and signed the same quality
record checklists, which she completed, which confirmed that all the checks were
done and that the quality records were completed correctly. She testified that the
supervisor “okayed everything” by countersigning her quality records.
[21] The first respondent testified that, although the quality records reflect that
certain checks were done at specific times, for example, at 19h40, it does not
necessarily mean that she did, or had to, conduct any actual tests at that time. She
could have been elsewhere or doing other checks at that time.
[22] She testified that she could complete the quality records/checklists at “any
time” and that she was not visible on the video footage because she could have
been elsewhere. She stated that she could simply “multitask” in order to
explain/justify how she was able to still record the measurements in circumstances
where she was not present at the recorded times to conduct the physical checks.
She also stated that she was not visible on the video footage because the camera
She also stated that she was not visible on the video footage because the camera
was situated at the back of the machine and would therefore not capture her.
[23] She confirmed that s he attended a toolbox talk, but argued that it related to
health and safety only, and had nothing to do with the customer, Reynolds, and the
6
new product (the Hefty) to be produced for it.
[24] The first respondent maintained that she duly conducted all her checks, as
required, correctly completed the relevant quality records/checklists and was not
guilty of the charge or any other wrongdoing or misconduct.
Grounds of review
[25] The applicant raised three grounds of review.
[26] The first ground of review entail s that the third respondent misconstrued the
applicant’s case. The third respondent, so it is contended, incorrectly focused on
whether harm had been suffered as opposed to whether any records were falsified
by the first respondent. As part of this ground of review, the applicant contends that
the third respondent ought to have taken issue with the first respondent’s defence (to
the disciplinary charge) that she did not have to be physically at the machines in
order to conduct the necessary checks.
[27] The second ground of review entail s that the third respondent made a
credibility finding in a vacuum. Under this ground, it is alleged that the third
respondent drew an inference that the first respondent was credible and that the
applicant’s witness, Northmann, was not credible, despite not recording a single
piece of evidence analysing any conflicting versions or evidence.
[28] The third ground of review entail s the third respondent rejecting conflicting
versions without providing any reasoning therefor. This angle of attack is directed at
the third respondent’s finding that the first respondent did not receive any training in
respect of performing quality checks and tests, or completing the relevant
documents. The applicant argues that the third respondent effectively rejected a
common cause fact.
First respondent’s submissions
[29] The first respondent reiterated, in her opposing papers, that she had not
7
committed any misconduct or wrongdoing in her view. On this basis, it was
contended that the third respondent took into consideration all relevant factors and
reached a conclusion which a reasonable commissioner would have reached.
[30] The first respondent denied that the third respondent ’s award was
unsupported by the facts before him . The first respondent also critici sed the
applicant for failing to direct this Court to any portions of the evidence in a
supplementary affidavit in terms of rule 7A(8)(a) of the applicable Labour Court’s
rules at the time (i.e. Rules for the Conduct of Proceedings in the Labour Court). The
applicant only filed a notice in terms of rule 7A(8)(b) to stand by its notice of motion
and founding affidavit.
Analysis
The Award
[31] I commence by dealing with the applicant’s contention that the impugned
Award stands to be reviewed and set aside based on the third respondent having
misdirected himself and/or having misconstrued the true nature of the enquiry before
him.
[32] The principles to be applied in this regard are well -established. In Head of the
Department of Education v Mofokeng and others
1, Murphy AJA said the following:
“The failure by an arbitrator to apply his or her mind to issues which are
material to the determination of a case will usually be an irregularity. However,
the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this
court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
and others have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception of the true
enquiry or result in an unreasonable outcome.” (at paragraph 30) (own
emphasis)
“The determination of whether a decision is unreasonable in its result is an
exercise inherently dependent on variable considerations and circumstantial
1 [2015] 1 BLLR 50 (LAC) at para 30.
8
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 interrelated questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or effect of the
decision, corresponding to the scrutiny envisaged in the distinctive review
grounds developed 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 with
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 which 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 ”
(at paragraph 31) (own emphasis)
Further:
“Irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling indication that
the arbitrator misconceived the enquiry. In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the result. Whether
the irregularity or error is material must be assessed and determined with
reference to the distorting effect it may or may not have had on the arbitrator’s
conception of the enquiry, t he determination of the issues to be determined
and the ultimate outcome. If but for an error or irregularity a different outcome
and the ultimate outcome. If but for an error or irregularity a different outcome
would have resulted, it will ex hypothesi be material to the determination of
the dispute. The material error of this order would point to at least a prima
facie unreasonable result . The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant factors informing
the decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable equilibrium has been struck in
accordance with the objects of the LRA. Provided the right question was
9
asked and answered by the arbitrator, a wrong answer will not necessarily be
unreasonable. By the same token, an irregularity or error material to the
determination of the dispute may constitute a misconception of the nature of
the inquiry so as to lead to no fair trial of the issues, with the result that the
award may be set aside on that ground alone. 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. ” (at
paragraph 33) (own emphasis)
[33] Thus, the Award ought to be assessed against the above guiding principles.
Buckle in, as a rather turbulent journey lies ahead in assessing the Award and
dealing with the matter as a whole.
[34] The main portion of the Award on the merits of the matter is rather scant, it
must be said. Be that as it may, the third respondent made certain curious findings in
the Award, which are dealt with more fully below.
[35] Firstly, at paragraph 49 of the Award, the third respondent found that : no
evidence was presented to establish that, as a result of the first respondent not
appearing on the video footage timelines, there were products “which were later
discovered to be non-conforming to the required specifications of the product”.
[36] This finding demonstrates that, indeed, the third respondent misconstrued the
true nature of the enquiry before him and he, consequently, misdirected himself.
[37] The sole disciplinary charge levelled against the first respondent was that of
fraud in relation to the alleged falsification of records in circumstances where the first
respondent did not perform quality checks , a duty required of her position. While
proof of any defective or non- conforming products could serve as an aggravating
factor or consequence of the alleged misconduct , the existence of defective or non-
conforming products, or lack thereof, was, in truth, irrelevant to the true nature of the
conforming products, or lack thereof, was, in truth, irrelevant to the true nature of the
enquiry before the third respondent.
[38] The third respondent was enjoined to determine whether the first respondent
10
had contravened a workplace rule and committed the misconduct with which she
was charged and, if so, whether dismissal was an appropriate sanction for such
misconduct. Therefore, by focusing on an apparent failure by the applicant to
produce evidence in regard to the likely or possible consequences of the first
respondent’s misconduct, the third respondent misdirected himself and misconstrued
the true nature of the enquiry before him.
[39] It was certainly not the applicant’s case that, due to the first respondent’s
misconduct, defective and/or non- conforming products were produced, which
resulted in certain detrimental consequences for the applicant and its business .
Rather, the applicant’s case was simply that the first respondent falsified quality
records when she falsely completed certain documentary checklists (which attest to
her physically being at the machines and actually conducting such tests) in
circumstances where she was not pres ent at particular machines and/or did not
physically or actually conduct such quality checks and tests.
[40] Differently put, even if it were to be established that no products were (later)
discovered to be defective or non- conforming to specification, as a result of the first
respondent’s alleged misconduct, this would not be relevant to or determinative of
whether the first respondent committed the alleged fraud in the form of alleged
falsification of quality records by virtue of not performing quality checks , which was
the only misconduct with which she was charged.
[41] Secondly, at paragraph 50 of the Award, the third respondent found, on
grounds dubious at best, that the applicant’s version on the following important
aspects was highly improbable: (i) that the first respondent had been trained and (ii)
that the first respondent was well aware of what was expected in the production of
the new Reynolds product.
[42] These findings are materially incongruent with the evidence presented during
[42] These findings are materially incongruent with the evidence presented during
the arbitration, with the result that the third respondent committed an error or
irregularity in relation to significant facts , which undoubtedly affected the final
outcome of the arbitration. It is clear that t hese material factual errors had a tangible
distorting effect on the third respondent’s conception of the enquiry before him and
11
his determination of the issues to be decided, which culminated in a patently
unreasonable result.
[43] In confirmation of the above, one need not search further than the first
respondent’s own evidence. The first respondent testified as follows in regard to the
internal training she received from the applicant:
43.1 “MS LETTIE MABENA: I was, to perform, I was shown how to [unclear]
this. So I never attended any training. I was never trained.”2
43.2 “MS LETTIE MABENA: I was shown how to fill this checklist , it’s on
Bundle ‘B’ page 55 and what to fill in, in this [unclear]
…
MS LETTIE MABENA: I’ll say again on record that I was never trained. I was
shown to fill this checklist.”3
43.3 “MS LETTIE MABENA: It means that I’ve done my job correctly. I did
what was showed to me.”4
43.4 “MS LETTIE MABENA: Clearly means that I did what I was shown.”5
43.5 “APPLICANT’S REPRESENTATIVE: In your understanding or
trained… [unclear] I forgot to include this… in terms of the training, if you have
been trained, firstly you might have been trained by a certain institution. What
is expected of a person who is said to have been trained by people, that
would not be us or [unclear] but for the purpose of proof, or proof that you
were training, what is that is expected. You can just give your, just give us
what you know about training. Training and what would subsequently be the
end product of that process?
MS LETTIE MABENA: My definition of being trained is to be trained and be
conducted and inducted and also certified.
APPLICANT’S REPRESENTATIVE: And here, you are not certified?
MS LETTIE MABENA: I was not inducted.
APPLICANT’S REPRESENTATIVE: You’re not inducted?
MS LETTIE MABENA: No.
APPLICANT’S REPRESENTATIVE: You are saying you are not trained?
2 Page 338 of the record, line 22 - 23
3 Page 339 of the record, line 3 – 4 and 20 - 21
4 Page 340 of the record, line 16 - 17
5 Page 347 of the record, line 8
12
MS LETTIE MABENA: No.”6
43.6 “RESPONDENT’S REPRESENTATIVE: Okay. I want us to go to an
example and you make mention that you were not trained, you were shown.
Can you confirm that it’s these documents that you were shown how to
complete, is that correct?
MS LETTIE MABENA: Yes.”7
43.7 “MS LETTIE MABENA: … it means that they passed. I was shown like
that. I said I was never trained but I was shown like that that the operator
bursts, I burst, the supervisor burst and the assistant burst so you have four in
the machine.”8
43.8 “MS LETTIE MABENA: Yes, you will see me, [unclear] at the hand of
the machine, at the front of the machine, I do checks at the front. Hence I was
explaining to the Commissioner when the roll comes in, you stand at the front
of the machine… that is what I was told by Natasha Northmann and also
Shaun, that when the roll starts you stand in the front of the machine. So you
won’t see me, you won’t see me on the video footage because it does not
show where I was but I checked the sample…”
9
43.9 “RESPONDENT’S REPRESENTATIVE: It was twenty minutes, for two
days duration. It was about the quality. The discussion around this is reflected
on pages 34 to 35 of Bundle ‘B’. So you confirm Miss Mabena that this is the
toolbox talk that you yourself attended to on the 20
th of the 8th of 2020? I just
want to know if you agree that you did attend to the toolbox talk.
MS LETTIE MABENA: Yes, I did attend to a toolbox, it was a toolbox talk.”10
43.10 “RESPONDENT’S REPRESENTATIVE: Part of your specifications, are
to follow through with the documentation… [interrupted]
MS LETTIE MABENA: Which I was shown. Which I was shown…”11
[44] The t raining of employees may obviously involve on-the-job training,
internally, by other staff members of an employer
12. Of course, n ot all training need
6 Page 352 of the record, line 1 - 15
7 Page 366 of the record, line 8 – 11.
8 Page 383 of the record, line 12 – 15.
9 Page 389 of the record, line 6 – 11.
8 Page 383 of the record, line 12 – 15.
9 Page 389 of the record, line 6 – 11.
10 Page 394 of the record, line 8 – 13.
11 Page 396 of the record, line 1 – 4.
12 As testified by the applicant’s main witness on page 258 of the record, line 5 – 12.
13
be elevated to the format or status as perceived by the first respondent , which
involves formal induction and certific ation as proof thereof . This would simply be
unreasonable, impractical and out of kilter with reality. In this regard, I found that the
first respondent was plainly disingenuous, which renders the third respondent’s
findings at paragraph 50 all the more unreasonable and tantamount to an error
and/or irregularity.
[45] In regard to the expectations and specification requirements for the production
of the new Reynolds product, the first respondent herself testified as follows:
45.1 On this issue, the first respondent commenced by testifying as follows
on page 343 of the record at line 20 to page 344, line 10:
“MS LETTIE MABENA: … Number one, I don’t have a password to that
computer or whatever she said. So I didn’t see any email of any job
specification, I didn’t see anything because the email was not assigned to me.
APPLICANT’S REPRESENTATIVE: Now, I’m talking about the email, the
email I’m talking Commissioner, is the, are the emails from page 29 to page
41. If you can have [unclear] let’s put one finger on page 49 and other one, we
can look for page 29 to page … Maybe tell us as to whether, is there any
email that you recognise there?
MS LETTIE MABENA: No. As my name is not there, on the recipient. So I
don’t recall reading any emails or getting any emails [unclear]
APPLICANT’S REPRESENTATIVE: Now talk to the fact that she said okay,
she said I sent you an email, one, on the other and when she was asked the
question she said you guys are two and are sharing the password. Who is this
employee that you are sharing your password?
MS LETTIE MABENA: I’m sharing a password? I was working with Malefitsi,
he’s the quality control so I don’t think Natasha really [unclear]”
45.2 Under cross -examination, the first respondent gave the following
evidence at page 390, line 11 to page 391, line 20 of the record:
evidence at page 390, line 11 to page 391, line 20 of the record:
“RESPONDENT’S REPRESENTATIVE: You’ve indicated that these emails,
you never seen them? You don’t have access to a computer. How do you
print your labels?
MS LETTIE MABENA: Sometimes they print it for me, [unclear] prints it for me
or the other supervisor, they do that for me.
14
RESPONDENT’S REPRESENTATIVE: So you don’t print your own labels?
MS LETTIE MABENA: I print sometimes. I don’t go to email.
RESPONDENT’S REPRESENTATIVE: So you do have access to a
computer?
MS LETTIE MABENA: No I don’t have access; they must open it for me first.
RESPONDENT’S REPRESENTATIVE: So you do have access to a computer
[interrupted]
MS LETTIE MABENA: No I don’t have access without them. They must open
it for me so I can access it but normally they print [unclear] the labels for me
or the supervisor prints the labels for me because by the time I’m printing the
labels, the machine is running is there. I must do checks.
…
RESPONDENT’S REPRESENTATIVE: I put it to you that you do have access
to the computer. You yourself has just confirmed that you print your labels. I
also want to draw your attention to the fact that if you do not check your
emails that these emails have been, or it has brought to your attention by the
QC inspector that there is various information that needs to be relayed to you.
What do you say to that?
MS LETTIE MABENA: About what? The emails?
RESPONDENT’S REPRESENTATIVE: That any emails that was sent by
Natasha Northmann, these are relayed to you by the QC inspector.
MS LETTIE MABENA: They relay it to me?
RESPONDENT’S REPRESENTATIVE: Yes.
MS LETTIE MABENA: They might relay it to me but then I didn’t see it or we
don’t even speak about them, in their presence also. Even with the supervisor
because there, they, even was assigned to the supervisor and the [unclear]
inspectors.” (own emphasis)
[46] Again, the first respondent was plainly disingenuous, contradicted herself
and/or altered her version at will. This again renders the third respondent’s findings
at paragraph 50 all the more unreasonable and tantamount to an error and/or
irregularity.
[47] Relatedly and consequently, the credibility finding made by the third
15
respondent in respect of the applicant’s witness, as contained at paragraph 51 of the
Award, was irregular and/or unsupported and unsubstantiated by the evidence
before him and the testimony given by the applicant’s witness, namely Northmann.
[48] Finally, at paragraph 53 of the Award, the third respondent found that, without
any evidence presented before him to “prove that by her conduct the [first
respondent] commit[ed] fraud and that the [first respondent] benefitted and/or there
was a negative and adverse impact in the production of the product as a direct result
of the [first respondent] having not done the required checks as required[,] [the
applicant] failed to discharge its onus as required”.
[49] Again, the third respondent misconstrued the true nature of the enquiry before
him and misdirected himself. The enquiry before the third respondent did not entail
whether or not the first respondent had personally benefited, which was not the
applicant’s case at all. Similarly, it was not the applicant’s case that there were
negative impacts on the production process or the products being produced. The
applicant’s case was simply that the first respondent falsely /dishonestly populated
certain quality record documentation in circumstances where she was not physically
present at particular machines and, therefore, could not have possibly completed the
checks, and in the manner required of her position, which the quality records reflect
she had.
[50] Clearly, the third respondent misconstrued the concept of “fraud”.
[51] Snyman: Criminal Law, at 461, defines fraud as being the unlawful and
intentional making of a misrepresentation which causes actual prejudice or which is
potentially prejudicial to another. As per Gardiner and Lansdown: Criminal law and
Procedure (2), at 1735, the traditional definition of fraud entails a wilful perversion of
the truth made with intent to deceive and resulting in actual or potential prejudice to
another
another
13. An intention to deceive is insufficient for fraud; an intention to defraud
(which is something quite different) is required. Judge Solomon’s definition in R v
13 Followed inter alia in R v Jones and More 1926 AD 350 at p. 352; R v Davies 1928 AD 165 at p.
170; R v Henkes 1941 AD 143 161; S v Heller (2) [1964] 1 All SA 477 (W); S v Shaban [1965] 4 All
SA 226 (W); S v Isaacs [1968] 1 All SA 20 (D).
16
Nay14 is also useful and apt : “Fraud consists of a false representation deliberately
made with the intention of being acted upon by another to his detriment.” . Finally, De
Wet and Swanepoel : Strafreg, at 388, regard fraud as deceiving another person,
thus inducing that person to act in a manner injurious to his or her proprietary
interests.
[52] Based on the above principles, w hether or not the first respondent personally
benefited from the alleged misconduct was an entirely misplaced consideration and,
worse still, a finding to make in the Award. This demonstrates that, indeed, the third
respondent committed an error or irregularity in (i) making such an irrelevant and
misplaced finding and (ii) then utilising such a finding to conclude that the applicant
failed to discharge the onus placed on it.
[53] Relatedly, the finding that there was no evidence of any negative or adverse
impact on the production of the product was misplaced and irrelevant to the true
enquiry before the third respondent. The applicant’s case was simply that of fraud
and, essentially, dishonesty in the falsification of records. Nothing more and nothing
less. The existence or lack of any negative or adverse impact on the production of
the product would not, in truth, directly (or at all) speak to the charge of misconduct
levelled against the first respondent.
[54] If there were indeed negative or adverse impacts on the production process,
and ultimately the products produced, this could potentially have been viewed as an
aggravating factor or consequence of the main alleged misconduct. However, clearly
no such disciplinary charge or allegation was ever levelled against the first
respondent.
[55] Finally, in this regard, any possible negative or adverse impact on the
production process or product would not speak , at all, to any possible intention (on
the part of the first respondent) to deceive the applicant and induce it to act to its
the part of the first respondent) to deceive the applicant and induce it to act to its
detriment. As stated above, any negative impact on the production process or
product could serve as an aggravating factor or consequence of the alleged
14 1934 TPD 52 p. 54
17
misconduct. But it certainly does not speak to any alleged fraud or dishonest y
committed by the first respondent , and, furthermore, this was not at all the
applicant’s case against the first respondent and was not part of the onus which the
applicant was required to discharge before the third respondent.
[56] I, accordingly, find that the third respondent’s errors, irregularities and
misdirection were of a sufficiently material nature to render the Award unreasonable.
The third respondent clearly failed to properly apply his mind to the true issues and
enquiries at hand. The third respondent misconceived the enquiry or , at the very
least, undertook the enquiry in a misconceived manner. The third respondent’s
errors, irregularities and misdirection clearly struck at the heart of the Award, which
renders the Award reviewable.
[57] In conclusion, and for all of the reasons stated above, I find that the third
respondent’s award is reviewable and ought to be set aside.
Whether to remit the dispute or substitute the Award
[58] As held by the Labour Appeal Court in the recent judgment of Phakoago v
SANCA Witbank Alcohol and Drug Help Centre and Others 15, in terms of section
145(4)(a) of the LRA, this Court has the broadest powers to determine a dispute in
whatever manner it considers appropriate. In exercising this power, this Court may,
after reviewing the proceedings, and if it finds in favour of the applicant by upholding
the review, either substitute its decision for that of the commissioner or remit the
matter to the CCMA.
[59] In Phakoago, the Labour Appeal Court considered and applied the judgment
of Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
16, where the court set out the circumstances in which this
Court would rather correct the decision than refer it back to the CCMA as being as
follows:
“(i) where the end result is a foregone conclusion and it would merely be a
15 [2024] 12 BLLR 1271 (LAC).
15 [2024] 12 BLLR 1271 (LAC).
16 (2010) 31 ILJ 452 (LC) at para 33.
18
waste of time to order the CCMA to reconsider the matter;
(ii) where a further delay would cause unjustified prejudice to the parties;
(iii) where the CCMA has exhibited such bias or incompetence that it would
be unfair to require the applicant to submit to the same jurisdiction again; or
(iv) where the court is in as good a position as the CCMA to make the
decision itself.”
[60] In Phakoago, the Labour Appeal Court further considered and applied the
judgment of Auto Industrial Group (Pty) Ltd and Others v Commission for
Conciliation, Mediation and Arbitration and Others17, where the Court held that:
“A court will ordinarily substitute the decision of a commissioner where all of
the available evidence is before the court and little purpose would be served
in a rehearing.”
[61] In light of the above principles, this Court is indeed in a position to substitute
the Award with its own findings, since all of the evidence (in the form of the relevant
portions of the bundles, documentary evidence and transcripts) is before this Court
and it is , consequently, in as good a position as the CCMA to make the decision
itself.
The first respondent’s misconduct and the disciplinary prosecution thereof
[62] Despite my findings above in regard to the Award, the applicant is certainly
not out of the proverbial woods. The formulation of the charge levelled against the
first respondent calls for some scrutiny. The sole charge reads: “Fraud – Falsifying
Quality records and not doing quality checks”.
[63] While the legal position regarding the formulation of disciplinary charge sheets
is unequivocally settled by now, in that such charge sheets should not be akin to or
measured against the criminal law standard of charge sheets and employees need
only be provided with adequate information to ascertain what misconduct they have
allegedly committed and the workplace rule /s they have allegedly breached ,
18 the
17 (2019) 40 ILJ 550 (LC) at para 60.
18 the
17 (2019) 40 ILJ 550 (LC) at para 60.
18 See: Avril Elizabeth Home for the Mentally Handicapped v CCMA and others [2006] 9 BLLR 833
19
charge sheet in this matter calls for further inspection.
[64] In the matter of EOH Abantu (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and others 19, the LAC maintained and held as follows in
regard to disciplinary charge sheets, while recognising the settled legal position
regarding employment charge sheets:
“It is always best for the charges to be precisely formulated and given to the
employee in advance of the hearing in order to afford a fair opportunity for
preparation. The charges must be specific enough for the employee to be
able to answer them…” (at paragraph 15)
and
“… 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 .” (at
paragraph 16)
[65] The charge in casu is vague, lacks particularity (in regard to, for example,
alleged dates/period of the misconduct, details as to which records, or parts thereof,
were falsified and which check s exactly were not performed) and appears to muddle
or include two different allegations into one charge. As the documentation and
evidence traversed during the arbitration proved, different dates were involved, and
the quality records referred to many different quality checks and processes.
[66] Ultimately, the rather poor formulation of the charge was a recipe for a
disorganised and disorderly hearing into the alleged misconduct and, furthermore,
resulted in some prejudice to the first respondent in that it remained unclear and
confusing as to exactly (i) which quality records (or portions thereof) were allegedly
falsified (ii) when those records were allegedly falsified (iii) which quality checks and
tests were allegedly not done and (iv) when those quality checks and tests were
allegedly not done. The applicant effectively adopted a shotgun approach by
allegedly not done. The applicant effectively adopted a shotgun approach by
establishing, at random, that certain checks were not done and certain records were
(LC); and EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others
[2019] 12 BLLR 1304 (LAC).
19 [2019] 12 BLLR 1304 (LAC).
20
falsely completed, without clearly articulating exactly which checks were not done
and which records were falsified in a structured manner.
[67] Since the applicant elected, as dominus litis in the disciplinary process, to
charge the first respondent with “Fraud”, it must then proverbially live or die by this
decision. In this regard, the following passage and finding by the LAC in the matter of
Monare v South African Tourism and others
20, bears reference:
“It was not unreasonable for the Commissioner to rely on the so- called
‘criminal law’ definition of fraud. Fraud has the same elements even in a civil
law context. The first respondent alleged that the appellant was fraudulent
and dishonest and it bore the onus to establish those rather serious
allegations ‘clearly and distinctly’, on a balance of probabilities. The fact that
the appellant did not comply with the company procedures did not make him
guilty of fraud or dishonesty, or even deceitful…” (at paragraph 66)
[68] The above passage is not to be confused with the third respondent’s (in casu)
reviewable irregularities vis-à-vis the irregular manner in which he understood and
applied the principles/elements of fraud in his award, as more fully dealt with above.
[69] Notwithstanding the above considerations, it is indeed apparent that the first
respondent committed certain acts of misconduct involving gross dishonesty,
negligence and/or non-compliance with Company procedure.
[70] Furthermore, this Court has taken into careful consideration the following facts
and circumstances, which ought to be viewed as, at best, mitigating factors for the
first respondent:
70.1 as per pages 29 (second paragraph) and 78 of the record, the first
respondent had, relatively recently (during July 2020), returned from maternity
leave and was placed in a new , alternatively, altered position (Quality Control
Assistant/Inspector) to that which she occupied prior to her maternity leave
Assistant/Inspector) to that which she occupied prior to her maternity leave
(Material Controller). Therefore, at the time of the alleged misconduct, the first
respondent had occupied this new position for a relatively short period of time
20 [2016] 2 BLLR 115 (LAC)
21
and, furthermore, a new process and procedure were implemented
specifically for the applicant’s customer, Reynolds, and the “ Hefty” product
being produced for this customer;
70.2 as per page 43 of the record, during 2020, the first respondent suffered
from a medical complication brought on by a post-c-section infection and
postpartum depression;
70.3 evidence was led during the arbitration 21 confirming that (i) a shift
supervisor signed off the quality records and checks and (ii) an operator also
signs off the quality records and can even conduct certain checks himself,
which are only verified by the first respondent . Under cross-examination22, the
applicant’s witness confirmed that one “Chris” was the supervisor who signed
off on the quality checks and records done by the first respondent , and
evidence was led in relation to a Mr “Bafana Twala” , who was another
supervisor or operator;
70.4 the applicant did not present any tangible or significant aggravating
factors. The applicant merely repeatedly referenced a l ucrative customer
contract, but only in passing and without demonstrating that the contract was
affected in any way;
70.5 no evidence was presented or allegation made that the applicant
suffered any financial (or other) loss or damage to its business; and
70.6 no evidence was presented of any forms of (prior) progressive
discipline having been applied towards the first respondent by the applicant.
The appropriate sanction vis-à-vis the first respondent’s misconduct
[71] I have found that, despite certain concerns regarding the manner in which the
first respondent was disciplined for her misconduct, the first respondent nevertheless
committed acts of serious dishonesty, negligence and/or non- compliance with
Company procedures and processes.
[72] Whether or not the first respondent actually committed fraud, in the true legal
21 Page 218 of the record, line 18 to page 222.
21 Page 218 of the record, line 18 to page 222.
22 Page 291 – 292 of the record; Page 132 of the record also reflects a Mr “X P Mathebula” as signing
next to the first respondent, and an illegible signature is beside the first respondent’s signature on
page 102 of the record, which could be a Mr “Twala” as per page 294, line 22 of the record.
22
or factual sense, is not entirely determinative of the matter and is not prescriptive in
regard to the appropriate sanction to be applied to the first respondent, in light of her
misconduct. Suffice it to add that I have certain doubts and reservations as to
whether the first respondent’s misconduct was tantamount to and reached the
threshold of fraud, which is a crime.
[73] The first respondent still committed se veral repetitive acts of gross
dishonesty, negligence and/or non- compliance with Company procedures and
processes.
[74] In addition, the first respondent’s conduct, both during the relevant internal
disciplinary hearing and CCMA arbitration, left a lot to be desired and, at times, was
tantamount to further perpetration of dishonesty on her part.
[75] Firstly, at the relevant internal disciplinary hearing, the first respondent walked
out of the hearing, together with the two shop stewards who were representing her.
The first respondent (and the two shop stewards) walked out of the hearing,
effectively at the commencement thereof, but after being warned of the risks
associated with such conduct. The first respondent’s reasons for walking out were
poor, even if supplied to her by her trade union and/or the two shop stewards, and
demonstrated a contemptuous attitude towards the process and her employer
23.
[76] Secondly, and as more fully dealt with above, the first respondent was, often,
plainly disingenuous when giving evidence under oath during the arbitration in
relation to material aspects such as the on- the-job training she received and her
access to a computer which she shared with another colleague (Malefitsi).
[77] Thirdly, the first respondent’s evidence during the arbitration, overall, was
rather poor, disingenuous, contradictory and/or contrived. She routinely
manufactured fanciful versions and defences to the allegations against her.
[78] This was clearly apparent from the first respondent’s testimony involving: (i) a
[78] This was clearly apparent from the first respondent’s testimony involving: (i) a
23 Page 332 of the record, line 19, to page 334 line 7; Page 335 of the record, line 11 – 15.
23
curious understanding of what fraud entails 24 (ii) stubborn arguments (albeit
misplaced) that the applicant did not rely on or present any evidence regarding
misconduct perpetrated on 14 – 15 November 2020, which caused unnecessary
debate and ire 25 (iii) raising new arguments and defences for the first time when
giving evidence, which were not put to the applicant’s witness, such as not needing
to be present to conduct physical checks
26, that the times reflected on the quality
records/checklists did not necessarily mean that she was, or had to be, physically
present at the machines at that time
27, she could complete the quality
records/checklists at “any time” 28, that she was not visible on the video footage
because she could have been elsewhere 29, that she could simply “multitask” in order
to explain/justify how she was able to still record the measurements in circumstances
where she was not present at the recorded times to conduct the physical checks
30,
and that she was not visible on the video footage also because the camera was
situated at the back of the machine and would therefore not capture her
31.
[79] In culmination of the above, when concluding her evidence under cross -
examination, the first respondent ended by materially contradicting herself and her
own argument and defence to the charges:
“RESPONDENT’S REPRESENTATIVE: My question was that, according to
the specifications, the applicant did not follow through with the various checks
that need to be conducted. She has herself indicated that the times that she
recorded are not necessarily the times that are indicated on these documents.
Is going to correct Miss Mabena?
MS LETTIE MABENA: No it’s not correct. That statement I dispute it. It’s not
correct.
RESPONDENT’S REPRESENTATIVE: So these times that are on these
documents are a true reflection of the times that you did [interrupted]
MS LETTIE MABENA: Yes.”32
24 Page 351 of the record, line 13 – 14.
MS LETTIE MABENA: Yes.”32
24 Page 351 of the record, line 13 – 14.
25 Page 359 of the record, line 7 to page 364, line 18; Page 367 – 369 of the record.
26 Page 365 of the record, line 18, to page 366, line 4.
27 Page 373 of the record, line 5 to page 377, line 12.
28 Page 377 of the record, line 13 – 18.
29 Page 389 of the record, line 10 – 12.
30 Page 389 of the record, line 13 – 22.
31 Page 390 of the record, line 6 – 8.
32 Page 396 of the record, line 10 – 18.
24
[80] Against all of the above, I am guided by the following case law authority.
[81] In the matter of SASBO – The Finance Union and another v Standard Bank of
SA Ltd and others 33, the LAC held as follows in relation to an employee who
committed acts of documentary dishonesty:
“[1] In National Union of Metalworkers of South Africa obo Nganezi &
others v Dunlop Mixing and Technical Services (Pty) Limited & others the
Constitutional Court held that: ‘ In our law, fiduciary duties are not implied by
law into all employment relationships. They may be inferred as a matter of fact
from employment contracts and moral notions of trust, confidence, loyalty and
good faith.’ This appeal concerns primarily the question whether the conduct
of Ms Charline Frazenburg (the second appellant), insofar as it is alleged by
Standard Bank of South Africa Limited (the bank / the first respondent) that
she falsified its records, amounted to dishonesty and thus breached the duty
of trust and fidelity she owed to the bank.”
…
[17] Dishonesty as an aspect of misconduct is a generic term embracing all
forms of conduct involving deception. This Court in Nedcor Bank Ltd v Frank
& others defined dishonesty as a lack of integrity or straightforwardness and,
in particular, a willingness to steal, cheat, lie or act fraudulently. Deceitfulness
can manifest itself in various forms, which includes providing false
information, non- disclosure of information, pilfering, theft and fraud. The
fiduciary duty owed by an employee to the employer generally renders any
dishonest conduct a material breach of the employment relationship, thereby
justifying summary dismissal...
…
[26] The main thrust of the charge against Ms Frazenburg was that she
balanced her till with money that was not in her safe in order to show a
balanced position during the period 18 to 20 February 2017. According to the
bank, insofar as Ms Frazenburg entered an incorrect figure of her takeover of
bank, insofar as Ms Frazenburg entered an incorrect figure of her takeover of
17 February 2017, she falsified its records. To consider whether Ms
33 [2022] JOL 55532 (LAC).
25
Frazenburg falsified the bank records or that she simply made a mistake
requires a careful scrutiny of the evidence presented. Ms Frazenburg sought
to portray a picture that, at all relevant times, her team leaders had been
around when she attempted to balance her safe.…
[28] Ms Frazenburg agreed to be honest in her dealings with the bank in
her general terms of employment which she concluded with the bank. There
was no debate, in this case, that there is a rule in the workplace that prohibits
falsification of the bank’s record which is legally sound and operationally
rational. Ms Frazenburg did not contest that she was aware of the rule. As
already said, the bank’s disciplinary code lists falsification of the bank’s
records under examples of dismissible offences without previous warnings…
[29] From the aforegoing, the capturing of the false balance on the bank’s
records points to a dishonest conduct and not foolhardiness as found by the
commissioner who clearly paid no attention to the operational needs of the
banking industry. Ms Frazenburg’s persistent plea of a mistake cannot avail
her. The Labour Court correctly reasoned that in the banking environment, as
fully set out in the general terms of employment, the employees are expected
to be honest and not to circumvent the checks and balances put in place to
prevent the misconduct of a kind committed here. The court’s assessment of
the evidence that Ms Frazenburg altered the bank records to reflect a false
picture cannot be faulted.
[30] Ms Cassim testified that Ms Frazenburg’s conduct had an impact on
the relationship of trust and continued employment relationship because she
did not live up to one of the values of the bank which is to act with honesty
and integrity. The need for employees to act with honesty and fidelity is so
fundamental in the financial services industry, more so, where the employees
deal with large sums of money. A breach of trust in the form of conduct
deal with large sums of money. A breach of trust in the form of conduct
involving dishonesty is one that goes to the heart of the relationship and is
destructive of it. It can hardly be argued that the dismissal was not justified.”
(own emphasis)
[82] Furthermore, at no point has t he first respondent ever displayed a shred of
remorse for h er misconduct, either prior to or during the disciplinary hearing and
CCMA arbitration. Instead, she put the employer to the trouble of embarking upon a
26
disciplinary hearing (and subsequent arbitration) to prove her guilt. In De Beer
Consolidated Mines Ltd vs Commission for Conciliation, Mediation and Arbitration
and Others34 the following was held in this regard:
"It would in my view be difficult for an employer to re- employ an employee
who has shown no remorse. Acknowledgement of wrong- doing is the first
step towards rehabilitation. In the absence of a re- commitment to the
employer's workplace values, an employee cannot hope to re- establish the
trust which she herself has broken. Where, as in this case, an employee, over
and above having committed an act of dishonesty, falsely denies having done
so, an employer would, particularly where a high degree of trust is reposed in
an employee, be legitimately entitled to say to itself that the risk of continuing
to employ the offender is unacceptably great." (own emphasis)
[83] In the LAC post Sidumo and another v Rustenburg Platinum Mines Ltd
decision of Timothy v Nampak Corrugated Containers (Pty) Ltd,
35 the following was
held in regard to lack of remorse and progressive discipline:
“[the employee] contended that, given the fact that [the employee] had an
unblemished record and that, until this point, there was no indication in his
conduct of any dishonesty or any impropriety prior to the events that gave rise
to this dispute, a form of progressive sanction would have been more
appropriate. I have no doubt that these arguments would have carried far
greater weight had there been a scintilla of recognition by the appellant of his
wrongdoing... Throughout the disciplinary hearing and the hearing before third
respondent [the employee] continued to take the view that the allegations
brought against him were no more than lies. [The employee] showed no
remorse, no recognition of misconduct, save for a blatant and clearly
dishonest denial. That places this case into an order of different magnitude
from those urged upon us by [the employee].” (own emphasis)
from those urged upon us by [the employee].” (own emphasis)
[84] It is trite that the breach of an employee’s duty of good faith to an employer is
destructive of the employment relationship 36. In the case of Penta Publications (Pty)
34 (2000) 21 ILJ 1051 (LAC).
35 [2010] 8 BLLR 830 (LAC) at p. 834.
36 Thompson vs Samaki Beach Lodge [2009] 3 BALR 302 9 (CCMA) at p. 319.
27
Ltd vs Scoombie 37 the court held that every employee owes a fiduciary duty to his
employer.
[85] The court in Phillips vs Fie ldstone Africa (Pty) Ltd38 held that a contract of
employment is regarded as a contract of the utmost good faith. In Thompson vs
Samaki Beach Lodge
39 the commissioner stated that it is an implied term of the
contract of employment that the employee will act with good faith towards his
employer and that the duty which the employee owes his employer is a fiduciary
one
40. The commissioner relied on the case of Council for Scientific and Industrial
Research vs FIJEN41 where the court held that:
“it is a well- established principal that the relationship between an employer
and employee is an essence one of trust and confidence.”
[86] For all of the reasons stated above, I find that the first respondent’s dismissal
was substantively fair.
Costs
[87] In relation to costs, this Court has a broad discretion in terms of section 162 of
the LRA to make orders for costs according to the requirements of the law and
fairness.
[88] The first respondent was a low earner while employed at the applicant, and
presumably may have been unemployed for some time after her dismissal, and may
still be unemployed.
[89] I therefore find that the interests of fairness, justice and equity dictate and will
be best served by each party bearing their own costs.
[90] In the premise the following order is made:
37 (2000) 2 BLLR 199 (LC).
38 [2004] 25 ILJ 1005 (SCA).
39 [2009] 3 BALR 302 9 (CCMA).
40 Here the court referenced SAPPI Novoboard (Pty) Ltd vs Bolleurs [1998] 5 BLLR 460 (LAC)
41 1996 (2) SA 1 (A) at p. 9 H.
28
Order
1. The third respondent’s arbitration award is hereby reviewed and set
aside;
2. The first respondent’s dismissal was substantively fair.
3. Paragraphs 54, 55, 56 and 57 of the Award are hereby substituted with
the following paragraph:
“54. The Applicant’s dismissal was procedurally and substantively fair.
55. The Applicant’s referral is dismissed.”
4. No order as to costs.
A. Anestidis
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: Mr A J Nel
Instructed by: Darren Ledden Inc
For the first respondent: Letsholo Manasoe of Letsholo Manasoe Inc