THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2409/21
In the matter between:
OUTDOOR INVESTMENT HOLDINGS (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION (CCMA) First Respondent
COMMISSIONER DIALE NTSOANE, N.O. Second Respondent
NEVER CHIRASHANYE Third Respondent
Heard: 23 May 2024
Delivered: 03 September 2025
JUDGMENT
ERASMUS, AJ
2
Introduction
[1] This application was heard by Makose AJ , on 23 May 2024, but due to her
having become unavailable to render judgment in the matter for an extended period
of time , the parties requested that the matter be placed before another judge for
determination. As a result, the matter came before me for consideration.
[2] The complete file in this matter, including the pleadings, documentary record,
transcripts, notices and heads of arguments , were placed before me on 19 August
2025. On 26 August 2025, the recordings of the oral arguments presented on behalf
of the parties in Court on 23 May 2024 were also placed before me.
[3] This is an application for the review and setting aside of an arbitration award
issued by the Second Respondent (Commissioner) under case number
GATW15092/20 dated 11 October 2021, in terms of which the Commissioner found
that the dismissal of the Third Respondent (Respondent) was substantively unfair
and awarded him reinstatement with full backpay.
[4] The application is in terms of section 145 of the Labour Relations Act
1 (LRA)
and initially came before this Court on an unopposed basis on 18 August 2022, at
which time it was removed from the roll due to t he Respondent having filed an
answering affidavit and condonation application on 12 Augu st 2022. The Applicant
filed an affidavit in opposition to the condonation application, with the Respondent
filing a replying affidavit.
Factual background
[5] The Respondent commenced working for the Applicant as a stock assistant
on 11 April 2012. On 1 October 2020, the Respondent was issued with a final written
warning valid for 12 months for gross negligence due to “not applying the
reasonable/necessary care and attention that may result in potential damage/loss
harm or leads to actual damage/loss/harm ” (sic), after he had attached an incorrect
1 Act 66 of 1995, as amended.
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tag to an item of stock, with an incorrect price on the tag, which could have resulted
in a loss to the Applicant, had a customer insisted on paying such lower price as per
the tag on the item. There was a major difference in price between the two items.
The Respondent did not lodge an appeal against the final warning, and he did not
refer a dispute relating thereto to the First Respondent (CCMA).
[6] The Respondent was subsequently called to a disciplinary hearing to be held
on 6 November 2020, after an incident on 2 and 3 November 2020. The Respondent
faced two charges, namely unauthorised removal of company property, alternatively ,
gross negligence insofar as it related to the Respondent having opened a box and
having left three ta ser cartridges (meant for a taser gun) in circumstances where he
should have removed all the stock from the box before discarding the box.
[7] The Respondent pleaded not guilty in the disciplinary hearing, which was
conducted on 6 and 9 November 2020. The Respondent was found guilty of gross
negligence and summarily dismissed. He referred an unfair dismissal dispute to the
CCMA, where the dispute was arbitrated. Only substantive fairness remained an
issue before the Commissioner , and he found the dismissal to have been
substantively unfair due to the Applicant having failed to prove that it had acted
consistently.
Condonation
[8] The Respondent applied for condonation in respect of the late filing of his
answering affidavit, which application was opposed on paper. The Applicant did not
pursue this in argument before the Court and indicated that it will abide by the
decision of this Court.
[9] The Applicant’s review application was lodged on 19 November 2021. On
25 January 2022, the Applicant lodged the notice and record in terms of the then
Rule 7A(6) and on 9 February 2022, it lodged the notice in terms of the then Rule
7A(8), which triggered the Respondent’s 10-day period within which to lodge his
7A(8), which triggered the Respondent’s 10-day period within which to lodge his
answering affidavit. A notice to oppose the review application was lodged on 1
4
March 2022, followed by the answering affidavit and condonation application on 12
August 2022. The delay is therefore extensive.
[10] The Respondent explained the dire financial situation he was faced with,
being a foreign national from Zimbabwe, battling to find employment and earn a
living, let alone being able to afford data to download documents or airtime to make
or receive calls. He made attempts to seek assistance from the SASLAW offices as
well as from Legal Aid, without success. He was at one stage assisted by a person
who is not a legal representative. He travelled between provinces in search of
employment, which in turn left him out of reach of assistance to pursue opposition to
the review application.
[11] In view of the explanation provided and attempts made by the Respondent to
seek assistance with his matter, the Court deems it appropriate to grant condonation.
Grounds of review
[12] The Applicant raised several grounds of review , contending in essence that
the Commissioner’s finding that the Respondent’s dismissal was unfair due to
inconsistency was unreasonable. It also contended that the award may have been a
result of gross irregularities. The Applicant sought that the award be set aside and be
substituted with an award that the Respondent’s dismissal is fair.
[13] The Respondent contended that the award should be upheld, but agreed with
the Applicant that the employment relationship had broken down irretrievably and
asked that the Court substitute the award of reinstatement and backpay with an
award of compensation. No cross -review had been brought in this regard, and this
was not pleaded on the papers.
[14] The distinction between a right of review and a right of appeal was reiterated
by the Labour Appeal Court in Makuleni v Standard Bank of South Africa Ltd and
Others
2 where Sutherland AJA held as follows:
2 [2023] 4 BLLR 283 (LAC); (2023) 44 ILJ 1005 (LAC) at paras 4 and 13.
5
‘… The court asked to review a decision of commissioner must not yield to the
seductive power of a lucid argument that the result could be different. The
luxury of indulging in that temptation is reserved for the court of appeal. At the
heart of the exercise is a fair reading of the award, in the context of the body
of evidence adduced and an even- handed assessment of whether such
conclusions are untenable. Only if the conclusion is untenable is a review and
setting aside warranted.’
and
‘To meet the review test, the result of the award has to be so egregious that,
as the test requires, no reasonable person could reach such a result.’
[15] In his award, the Commissioner found the following to have been common
cause:
15.1 The Respondent was found guilty and dismissed for gross negligence.
15.2 The Respondent did not flatten a box in which three cartri dges were
found.
15.3 On another occasion, before the Respondent committed the offence
which led to his dismissal, some employees failed to flatten a box wherein six
flasks were found. Nobody was held accountable for this incident.
[16] The Commissioner then correctly referenced Item 7 of Schedule 8 of the
Code of Good Practice: Dismissals as follows:
‘7. Guidelines in cases of dismissal for misconduct .—Any person who
is determining whether a dismissal for misconduct is unfair should consider —
(a) whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to, the work-place; and
(b) if a rule or standard was contravened, whether or not—
(i) the rule was a valid or reasonable rule or standard;
(ii) the employee was aware, or could reasonably be expected to have
been aware, of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer;
and
(iv) dismissal with an appropriate sanction for the contravention of the rule
or standard.’
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[17] The Commissioner accepted that the Respondent was grossly negligent in
that he committed the offence complained of. Although the Respondent pleaded not
guilty in his disciplinary hearing and also tried to escape his liability during the
arbitration proceedings, he ultimately accepted that he was guilty and that he had
made a mistake. The Commissioner then turned to the element of consistency and
found that the Applicant had failed to act consistently , more specifically that the
Applicant had applied its disciplinary code and procedure inconsistently , and as a
result, he held that the dismissal of the Respondent was substantively unfair. The
Commissioner comes to this conclusion without considering whether dismissal was
nonetheless an appropriate sanction in the circumstances , as required by the Code
of Good Practice.
[18] In National Union of Mineworkers obo Botsane v Anglo Platinum Mine
(Rustenburg Section),
3 the Labour Appeal Court addressed the issue of consistency
and held as follows:
‘Moreover, as a matter of practice, a party, usually the aggrieved employee,
who believes that a case for inconsistency can be argued, ought, at the outset
of proceedings, to aver such an issue openly and unequivocally so that the
employer is put on proper and fair terms to address it. A generalised
allegation is never good enough. A concrete allegation identifying who the
persons are who were treated differently and the basis upon which they ought
not to have been treated differently must be set out clearly. Introducing such
an issue in an ambush- like fashion, or as an afterthought, does not serve to
produce a fair adjudication process. (See: SACCAWU & others v Irvin &
Johnson Ltd 2002 (3) SA 250 (LAC); (1999) 20 ILJ 2302 (LAC) at para 29;
also see Masubelele v Public Health & Social Development Bargaining
Council & others [2013] ZALCJHB JR2008/1151 which contains an extensive
survey of the case law about the idea of inconsistency in employee
discipline.)’ (Own emphasis)
discipline.)’ (Own emphasis)
3 [2014] ZALAC 24; (2014) 35 ILJ 2406 (LAC) at para 39.
7
[19] In Absa Bank Ltd v Naidu & others,4 the Labour Appeal Court also held that
the parity principle may not just be applied willy -nilly without any measure of caution.
It held that:
‘Indeed, in accordance with the parity principle, the element of consistency on
the part of an employer in its treatment of employees is an important factor to
take into account in the determination process of the fairness of a dismissal.
However, as I say, it is only a factor to take into account in that process. It is
by no means decisive of the outcome on the determination of reasonableness
and fairness of the decision to dismiss. In my view, the fact that another
employee committed a similar transgression in the past and was not
dismissed cannot, and should not, be taken to grant a licence to every other
employee, willy -nilly, to commit serious misdemeanours, especially of a
dishonest nature, towards their employer in the belief that they would not be
dismissed. It is well accepted in civilised society that two wrongs can never
make a right. The parity principle was never intended to promote or
encourage anarchy in the workplace.’
[20] In the matter before Court and during cross -examination of the Applicant’s
witnesses, the Respondent made vague allegations of other employees also having
acted negligently over the years on other occasions, yet no disciplinary action was
taken against them.
[21] In anticipation of claims of inconsistent discipline, the Applicant’s first witness ,
Mr van Jaarsveld, testified in his evidence-in-chief that the firearms registry had been
recently completed and that no firearms were found to be missing even to the extent
that the firearms which had been stolen during a robbery of a courier vehicle, had
been recovered. He also dealt with the incident whereby flasks were left in a box
which was to be thrown out and the boxes not having been flattened as per the
required rules, to avoid stock theft or losses.
required rules, to avoid stock theft or losses.
[22] During re-examination, the Respondent put the incident regarding the flasks
to Mr van Jaarsveld as constituting inconsistency, upon which Mr van Jaarsveld
4 (2015) 36 ILJ 602 (LAC) at para 42.
8
confirmed that he had reported the incident regarding the flasks to the managers to
investigate and that the outcome was inconclusive.
[23] Mr Nsaliwa also testified on behalf of the Applicant and confirmed that flasks
were found in boxes and that the boxes had not been flattened as required. He
referred to the ladies that brought the boxes to the receiving section where he was
working with the Respondent. He confirmed that the incident was reported to
management.
[24] Mr Beetge testified as the Applicant’s last witness. He was the manager
tasked with investigating both the incident relating to the flasks, as well as the
Respondent’s incident which resulted in his dismissal. In respect of the latter, he
confirmed that not all the items had been cleared from the box by the Respondent
and that approximately one- third of the small box was found to have bubble wrap
and the three taser cartridges in. He confirmed that, upon picking up the small box,
he could clearly hear and f eel that items had remained in the box and that the box
had not been flattened as required.
[25] He confirmed that he had issued the Respondent with a final written warning
in respect of the tag incident in September 2020.
[26] With regards to the incident relating to the flasks, he stated that he did not see
the box with the flasks and that he was tasked afterwards to investigate the incident.
He confirmed that he had viewed the video footage and that ladies from another
department brought boxes into the receiving area. He state d that there had been a
lot of movement in the area that day and that he was not able to trace who had
brought in the exact box that contained the flasks.
[27] During cross-examination, Mr Beetge indicated with reference to the incident
regarding the flasks that the cameras could not see inside the boxes due to the sizes
of the boxes and that he had been called after the incident had taken place, to
of the boxes and that he had been called after the incident had taken place, to
investigate. He reiterated that the incident with the flasks took place on a very busy
day when things were messy and sales staff had also been in and out of the area.
He confirmed that the cameras showed that the three ladies from the clothing
9
department had also brought boxes to the receiving area but that he was not able to
identify who had brought a box with the flasks in them.
[28] He confirmed that, although all staff were requested to flatten boxes that are
brought to the receiving area, it was a mere request for assistance and that the
responsibility for the task laid with the received assistants, being Mr Nsliwa and the
Respondent.
[29] He confirmed having questioned the staff, including the Respondent and his
fellow employee in receiving, Mr Nsaliwa, who said they did not know how the flasks
got there. He could not find the culprit despite his efforts and therefore did not take
any action, apart from cautioning all the staff to be vigilant and to ensure that all the
stock was removed from all the boxes.
[30] The only version put to the Applicant’s witnesses with regards to
inconsistency was the incident of the flasks.
[31] However, during his own testimony, the Respondent sought to refer to various
other incidents of alleged negligence in respect of which he made the assumption
that no action was taken. And even in doing so, he made vague allegations without
sufficient detail to enable for the Respondent to be able to rebut the allegations.
[32] The Respondent objected to such further incidents being raised in the
absence of same having been put to the Applicant’s witnesses, which objection the
Commissioner upheld.
[33] In doing so, the Commissioner stated as follows:
‘The only instance that, the only instance of negligence that you put to the
witnesses, was the one regarding the flasks and unflatten boxes. I think it is
better to confine yourself to that. Because with this ones, they will not be able
to refute it or challenge it because they have already called their witnesses.’
and
‘No no, what I’m saying is, they have already closed their case, they called
their witnesses. And to their witnesses, you didn’t put the ammunition issue ,
10
you didn’t put the serial number issue, which they could have answered. If
they had known of that. You, the only issue that you put across to them was
the one concerning flasks and unflattened boxes. Which gave us the
impression that when it’s your time to testify, you are going to testify on that.
To say, the employer was not considered consistent, there was an instance
where boxes and whatever you whatever whatever.’
and
‘I say you missed it that one. So, you missed it, it’s fine. Just accept it, that
you you didn’t raise it, but confine yourself to issues that you raised with their
witnesses. And that is this flask and the unflattened boxes issue.’
[34] This ruling was in line was the requirements of law and fairness and cannot
be faulted.
[35] The problem arises when one gets to the arbitration award which contradicts
the evidence that was presented and the above statements by the Commissioner
during the arbitration proceedings.
[36] In his analysis of the evidence presented, the Commissioner stated as follows
in his award:
‘The [Respondent] mentioned four instances where employees committed
gross-negligence – the instance involving missing pistol, an instance where a
customer was given a wrong serial number, an instance where the customer
was issued with a wrong transfer number and an instance where other
employees failed to flatten boxes and flasks were found in those boxes – and
argued that no action was taken against the culprits in all those incidents. The
[Applicant] led rebuttal evidence in only one of the four instances – being the
issue involving flasks.’
[37] What has been stated in his award is in direct contradiction with what the
Commissioner had stated during the arbitration proceedings. The Commissioner
cannot uphold an objection raised by the Applicant during the arbitration and prevent
the Respondent from referring to certain incidents due to those not having been put
the Respondent from referring to certain incidents due to those not having been put
to the Applicant’s witnesses and closing the matter only to then, in his award, allow
11
such evidence and allege that the Applicant did not lead rebuttal evidence in
circumstances where it was common cause that those instances had not been put to
the Applicant’s witnesses in order for them to rebut. The award is completely
disconnected from the events during the arbitration proceedings and the evidence
presented.
[38] To make matters worse, the Commissioner had the following to say in his
award insofar as the incident relating to the flasks are concerned:
‘[38] Regarding the flasks issue, the [Applicant] argued that the matter was
investigated but the investigations were inconclusive as the culprits could not
be identified. In his counter argument the [Respondent] contended that the
same method used to identify him (by viewing the CCTV footage three days
after the incident ) could have been used. The [Respondent] further argued
that there were only three employees who were unpacking the boxes
containing the flasks and that a video footage could have identified the culprit.
[39] The three people who were responsible for unpacking the boxes could
have at least being charged with failing to collapse the boxes because the
[Respondent] argued – and [Charles Nsaliwa] corroborated his testimony –
that there was a rule on collapsing boxes after unpacking items . The rule was
that very box ought to be collapsed before it was taken out of the store. The
box containing the flasks was not collapsed. Therefore, the rule was breached
and those responsible for unpacking the flasks should hav e been disciplined
for contravening the known rule.
[40] Parity principle dictates that similar offences must be treated
consistently. The [Respondent] was found guilty of gross negligence, which is
a serious charge the sanction for which is dismissal. But similar cases – which
the [Respondent] alluded to when he p ut statements to the [Applicant’s]
witnesses, his evidence in chief and which [Charles Nsaliwa] also attested to
witnesses, his evidence in chief and which [Charles Nsaliwa] also attested to
in his evidence in chief – happened and the [Applicant] did not take
(disciplinary) action against the perpetrators, led alone dismissing them.’ (sic)
[39] The evidence clearly showed that the incident involving the flasks was
reported when it happened and that Mr Beetge was tasked with investigating the
incident. He managed to see that it was possibl y one of three ladies that was
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responsible for leaving the flasks in the box, but he could not say which one of the
three due to the cameras not being able to see the inside of the boxes as a result of
the boxes being too large, as opposed to the small box involved in the Respondent’s
incident whereby the video footage shown to the Commissioner during the arbitration
was able to identify remaining items in the box due to the small size of the box . For
the Commissioner to suggest that all three ladies should have been brought before
disciplinary hearings and dismissed because one of them left the flasks in the box, is
incomprehensible. The same goes for the Commissioner stating that the same
method used to identify the Respondent, namely the video footage, should have
been used to identify the culprit in the flask incident where it was no t challenged that
Mr Beetge indeed did attempt that without success, due to the difference in sizes of
the boxes.
[40] The issue of the three ladies not having flattened the boxes were not raised
as separate issues of inconsistency in applying discipline. Moreover, the Respondent
was not just dismissed for not flattening boxes. He was found to have been gross ly
negligent in not emptying all the stock from the box , with the flattening of the box
being merely incidental thereto. Furthermore, the Respondent had already been
issued with a final written warning just more than one month prior , which warning
was still valid.
[41] Also, it was not put to Mr Nsaliwa that there was a rule that everyone that
brings boxes to receiving, has to flatten the boxes. Mr Beetge’s evidence was clear
that the rule was that the staff in receiving, being Mr Nsaliwa and the Respondent ,
had the duty to flatten the boxes, although they did request assistance from other
staff insofar as the staff were able to assist. There had however not been an
instruction to other staff to flatten the boxes and it was not a rule in respect of them,
but merely a request to assist if possible.
but merely a request to assist if possible.
[42] During argument, it was contended that inconsistency becomes more
important when we are dealing with a firearms dealer such as the Applicant and that
for that reason alone, the Commissioner cannot be faulted despite the Commissioner
not having said anything about it. To now impute further findings in respect of the
13
matter where the Commissioner himself has not done so and when no cross -review
has been lodged, is untenable. Furthermore, this point was not raised in the papers.
[43] The findings are therefore unsupported by the evidence and disconnected
from it. The Commissioner did not take relevant evidence into account or ignore
irrelevant evidence. His findings are unreasonable and do not fall within the range of
reasonableness.
[44] In light of the findings above, the remainder of the review grounds raised by
the Applicant becomes academic and need not be dealt with.
[45] The parties were ad idem that all the facts had been placed before Court to
enable the Court to substitute the findings with the Court’s own findings in the event
of the award being set aside.
[46] It is common cause that the Respondent had been issued with a final written
warning for gross negligence just more than a month prior to the incident that caused
his dismissal and that such final warning had not been challenged and was valid.
The final warning was issued despite the Applicant’s policy providing for summary
dismissal in respect of a first offence. It was also common cause that the
Respondent was guilty of the second offence of gross negligence. The Applicant has
therefore applied progressive discipline. The mitigating factors presented were not
such to justify a deviation from the finding of summary dismissal.
[47] In relation to costs, the Applicant conceded that one cannot fault the
Respondent for having attempted to defend an award that was made in his favour .
The Court agrees with these sentiments.
[48] In the premises, the following order is made:
Order
1. The Third Respondent’s late service and filing of his answering affidavit
is condoned.
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2. The arbitration award issued under case number GATW15092/20 by
the Second Respondent and dated 11 October 2021 is reviewed and set
aside.
3. The award is replaced by the following order:
3.1. The dismissal of Mr Chirashanye is found to be fair and the file is to be
closed.
4. No order as to costs.
L. Erasmus
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. W. Bekker
Instructed by: JW Botes Inc. Attorneys
For the Third Respondent: Adv. P. Eilers
Instructed by: Erasmus Inc Attorneys