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THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
NotReportable
Case No: PR277/22
In the matter between:
CASHBUILD SA (PTY) LTD Applicant
and
COMMISSIONER V NGUDLE N.O. First Respondent
THE COMMISSIONER FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
LUVOLWETHU DYANI Third Respondent
Heard: 23 July 2025
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by email, publication on the Labour Court website
and release to SAFLII. The date for handing down judgment is deemed to be on 6
August 2025.
JUDGMENT
2
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to review the arbitration award
issued by the first respondent. The applicant raised various grounds.of review
alleging that the first respondent committed various irregularities and arrived at a
decision that a reasonable decision maker could not reach. The outcome of the
award is that the third respondent’s dismissal was unfair both substantively and
procedurally, and that he must be reinstated with eighteen months’ back pay.
Background to dismissal
[2] The applicant conducts business as a retailer of building supplies, hardware and
related products at several hundred stores across the,entire South Africa. The third
respondent was employed by the applicant as the store manager of its Mqanduli
branch. As such, the third respondent was fully accountable and responsible for
the management and operation of the entire store.
[3] The incident giving rise to, this)matter arose on 13 December 2020 when a
customer, one Mzwandile Mdunyelwa (Mdunyelwa), purchased and paid for 10
bags of damaged cement,at.a discounted price. What this transaction entails is
that the bags must have been set aside and taken (removed) by the customer. The
evidence was that the applicant does not ordinarily deliver such stock, but in this
case and: because Mdunyelwa was familiar with the third respondent, the third
respondent undertook to deliver it.
[4] The third respondent, however, failed to set aside the bags and failed to schedule
the same for delivery to Mdunyelwa. Mdunyelwa never received the bags despite
paying for same. Instead, the stock was sold to another customer. The third
respondent never delivered any replacement bags to Mdunyelwa throughout
December 2020, January and February 2021, despite the bags having been paid
for.
3
[5] Ultimately, on 9 March 2021, Mdunyelwa lodged a formal complaint with the
applicant’s head office. It is apparent from this complaint that Mdunyelwa was
dissatisfied with not having received the stock. The complaint resulted in an
investigation by the applicable divisional manager, Rashaad Joel (Joel). The
investigation confirmed that the damaged cement bags paid for by Mdunyelwa on
13 December 2020 were never set aside by the third respondent and thatt was
sold to another customer.
[6] Due to the involvement of Joel, and the third respondent having become aware of
the complaint, the third respondent convinced Mdunyelwa to pay the full price for
undamaged cement bags, which were then delivered. This only happened after
the complaint was lodged on 9 March 2021.
[7] On 19 March 2021, the third respondent was given»notice to attend a disciplinary
enquiry to be held on 23 March 2021 on two charges of misconduct. The first
charge was one of poor customer service/gross negligence in that he failed to
perform his duties with proper care by failing to communicate with the customer
about the delivery of stock and, the cause-of the delay, resulting in a complaint by
Mdunyelwa. The second charge was bringing the company name into disrepute,
based on the same facts.
[8] The disciplinary enquiry took place on 23 March 2021. The third respondent failed
to arrive) for the disciplinary enquiry. A complete disciplinary enquiry was
conducted in»absentia, and the dismissal of the third respondent was
recommended by the chairperson. The third respondent was dismissed on 25
March 2021. The third respondent appealed against his dismissal on 1 April 2021.
An appeal hearing was held on 19 April 2021, during which the third respondent
fully participated. The appeal hearing was adjourned to 22 April 2021 to allow the
third respondent an opportunity to peruse documentation that he had requested
and to prepare. The appeal was unsuccessful.
[9] Dissatisfied with the dismissal, the third respondent referred an unfair dismissal
dispute to the second respondent, which dispute was arbitrated by the first