THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 1169/22
In the matter between:
AVENG AFRICA (PTY) LTD Applicant
and
KOBUS BURGER First Respondent
COMMISSIONER BONGIKOSI ZULU N.O. Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Third Respondent
Heard: 2 February 2025
Delivered: 05 September 2025
JUDGMENT
MPHAHLELE, AJ
2
Introduction
[1] Mr. Kobus Burger (“Mr. Burger” ), the First Respondent in this matter, has
been employed by the Applicant (“Aveng Africa (Pty) Ltd or “Aveng Africa”) as a New
Business Development and International Executive of the business unit known as
Aveng’s Infraset business unit . Infraset business unit i s part of Aveng’s
Manufacturing Operating Group.
[2] Mr. Burger has been so employed by Aveng Africa since 1996 and would
have reached the age of 60 on 3 September 2018. His retirement age was changed
from 60 to 62 by agreement, and as a result, if it were not for his dismissal, he would
have retired on 30 September 2020. The incident that led to his dismissal occurred
during the two-year period of his extended retirement.
[3] During 2019, Mr. Wouter De Gidts (“Mr. De Gidts”), Aveng Africa’s interim
Managing Director of Aveng Manufacturing Operating Group, was also the acting
Managing Director of the Infraset business unit whilst Aveng Africa undert ook a
process of appointing a permanent Managing Director of the Infraset business unit.
[4] Mr. De Gidts , for obvious reasons , was involved in this appointment process
for a permanent Managing Director of the Infraset business unit.
Submissions on behalf of Aveng Africa
[5] It has been submitted on behalf of Aveng Africa that:
5.1 On 10 October 2019, at the executive committee (Exco) meeting of the
Infraset business unit, Mr. De Gidts announced that Mr. Q uayle had been
appointed as Managing Director of the Infraset business unit with effect from 1
October 2019.
5.2 The announcement led to an outburst by Mr. Burger , who alleged that
Mr. De Gidts lied to the Infraset Exco; lacked integrity; was dishonest; did not
uphold Aveng Africa ’s values; that he inappropriately influenced the Aveng
Africa group’s thinking; and that he (Mr. De Gidts) did not reply to his e- mails.
3
Mr. Burger concluded by questioning what value, if any, h e is adding to
Infraset. The following day , on 11 October 2019, at a meeting, Mr. Burger
continued with the same utterances he had made on 10 October 2019.
5.3 It is not in dispute that on 6 November 2018, Mr. Burger attacked Mr.
De Gidts and Mr. Barrett during a meeting held with the then- managing
director of Infraset and that on 15 November 2018, Mr. Burger sent Mr. De
Gidts and Mr. Barrett an apology for his personal attack on them. What seems
to be a dispute about this incident is whether Mr. De Gidts demanded an
apology from Mr. Burger, whether such an apology was tendered by Mr.
Burger on his own accord, and whether Mr. De Gidts attempt ed to escalate
the matter.
[6] Mr. Burger was suspended on 17 October 201 9 and subsequently charged
with misconduct in the form of gross insubordination and/or g ross insolence for his
behaviour during the meetings of 10 and 11 October 2019. He was found guilty and
summarily dismissed on 10 December 2019.
[7] Mr. Burger subsequently referred the matter to the Third Respondent
(“CCMA”).
Submissions on behalf of Mr. Burger
[8] It has been submitted on behalf of Mr. Burger that:
8.1 Infraset Exco was kept in the dark concerning the appointment of the
new M anaging Director (MD), and on 26 July 2019, he heard from Hennie
Breedt that Aveng Africa was seeking a new MD. As Infraset E xco, they then
decided to stop the rumour by confronting Mr. De Gidts, and they were taken
aback when Mr. De Gidts told them that there was a possibility of appointing
Mr. Quayle to the position.
8.2 Mr. Quayle was an outside person, white, and did not fit in terms of the
BBBEE requirements, as well as the Infraset succession plan.
4
8.3 Mr. Burger, on 6 September 2019, wrote an email to Mr. De Gidts
highlighting his concerns , but there was no response to the email ; thus, he
escalated the email to the group CEO and Group CFO.
8.4 Mr. De Gidts failed to proffer a proper response to Mr. Burger’s
outburst of 9 September 2019, which was found by the Commissioner to have
been a ‘quite emotionally charged meeting’ and that Mr. De Gidts has
conceded under cross -examination that the meeting ‘was a heated meeting
and people were angry ’. During the said meeting of 9 September 2019, Mr .
Burger called Mr. De Gidts ‘a liar’, and Mr. De Gidts conceded that he had felt
‘embarrassed’ after having called a liar and after everything that had been
said to him.
8.5 On 10 and 11 October 2019, the meetings were those of Infraset
business unit E xco, chaired by Mr. De Gidts in his capacity as acting
Managing Director of Infraset Exco.
8.6 The alleged attack on Mr. De Gidts was on him personally and not in
his capacity as Group Manufacturing MD. The Exco meetings were conducted
in a manner which purposely precluded reliance on seniority, encouraged free
and open criticism and called for accountability without fear of reprisal.
8.7 There were no limitations placed on what was said or how it was said
during E xco meetings. Aveng Africa has , for many years , consistently
tolerated Mr. Burgers’ conduct, outbursts and penchant for addressing issues
directly with his superiors , irrespective of their hierarchical position. Mr. De
Gidts has conceded that he had never indicated to Mr. Burger that his
outbursts would no longer be tolerated and that if he continued with such
conduct, he would be subjected to disciplinary action.
8.8 Aveng Africa applied discipline inconsistently in that it had tolerated the
conduct of Mr. Burger for many years.
Arbitration award
[9] After his dismissal, Mr. Burger referred an unfair dismissal dispute to the
CCMA.
5
[10] On 24 May 2022, the Second Respondent (“Commissioner”) issued an
arbitration award to the effect that Mr. Burger’s dismissal by Aveng Africa was
substantively unfair and ordered Aveng Africa to compensate Mr. Burger the amount
of R1 648 199-97 by 10 June 2022.
[11] The amount of R1 648 199-97 was equivalent to nine months’ salary
calculated on Mr. Burger’s monthly income of R183 133-33.
Review application
[12] Aggrieved, Aveng Africa instituted a review application in terms of section
145, read with section 158 (1) (g) of the Labour Relations Act
1 (“LRA”) against the
arbitration award made by the Commissioner dated 25 May 2022 to:
12.1 review and set aside the award;
12.2 substitute the decision of the Commissioner with a decision that the
dismissal of Mr. Burger was substantively fair;
12.3 alternatively, remitting the dispute to the CCMA for a determination de
novo by a commissioner other than the Second Respondent.
[13] The application is opposed by Mr. Burger.
Findings by the Commissioner
[14] In his arbitration award, the Commissioner made the following findings and/or
came to the conclusion that:
14.1 According to Mr. De Gidts, the disrespect towards him happened only
on 10 and 11 October 2019. Nothing out of the ordinary happened on 9
September 2019.
2 Mr. De Gidts testified that none of the other E xco members
disrespected him.
14.2 Mr. Burger’s outburst c ould not be looked at in isolation , considering
that most of the E xco members were aggrieved and angry at the meetings of
1 Act 66 of 1995, as amended.
2 Arbitration Award at para 37.
6
9 September 201 9, and 10 and 11 October 201 9. Ultimately, Mr. De Gidts
eventually conceded under cross -examination that the meeting of 9
September 2019 was indeed heated and people were angry.
14.3 Mr. De Gidts felt embarrassed at the meeting, corroborat ing the fact
that on 9 September 2019, the Exco members were unhappy. He further
testified that he was called a liar.
[15] The Commissioner made a credibility finding and found the version of Mr.
Burger, with respect to what transpired on 9 September 2019, as more probable than
that of Mr Gidts.
[16] Further, the Commissioner found that:
16.1 Mr. De Gidts trie d to conceal the fact that people in attendance at the
meeting of 9 September 2019 showed their unhappiness to the extent that Mr.
De Gidts said he felt embarrassed after being called a liar and after everything
that was said to him.
16.2 He was evasive when questioned about the said meeting and stated
that nothing was out of the ordinary at this meeting. The Commissioner cannot
be faulted for finding the version of Mr. De Gidts not to be credible. Mr. De
Gidts found words uttered by Mr Burger like, ‘this is the final nail in the infraset
coffin’, and ‘we won’t move forward with him ’, referring to Mr. Quale, and ‘on
previous day nasty things were said and now we could see what people at
Lennings [sic] were saying about De Gidts’, as offensive but did not find being
called a liar offensive. I find that very strange.
16.3 Accordingly, the Commissioner found the above words did not
constitute gross insubordination or gross insolence but were words used to
communicate Mr Burger ’s frustration. He concluded further that Mr Burger ’s
actions and utterances that were directed at Mr. De Gidts during the
respective meetings did not constitute gross misconduct , and the issues
addressed by Mr Burger were work-related, within the scope of his duties and
probably overdue, and it cannot be said th at the conduct of Mr . Burger was
probably overdue, and it cannot be said th at the conduct of Mr . Burger was
aimed at undermining the authority of Mr. De Gidts.
7
16.4 His reasons were based on the fact that the culture in E xco meetings
was that E xco members were encouraged to speak freely , openly , without
fear or favour, and their respective ranks did not count.
16.5 In my view, if this culture is to change and Exco members are expected
to choose their words carefully, this fact should have been communicated to
them before Mr. Burger was charged, more so that Mr. Burger, on previous
occasions when he seemed to have spoken out of turn, was not disciplined.
16.6 Mr. De Gidts conceded that he had concealed the recruitment and
appointment process of the MD from the Infraset Exco team until the rumour
surfaced on 9 September 2019.
16.7 On 9 September 2019, Mr. De Gidts had made a remark that was
perceived by Mr. Burger, Mr. Arai and some Exco members to be a racial slur.
No apology has been tendered by Mr . De Gidts for that utterance. It could
probably be the reasons why Mr . De Gidts made attempts to conceal what
happened on 9 September 2019 to the extent of amending the minutes of the
meeting.
[17] The aforementioned, including the fact that De Gidts invited E xco team to
apply to the position on 9 September 2019 knowing very well that at that stage
applications have closed and his overlooking of BBBEEE grading and the business
unit’s Employment Equity Plan and Succession Plan, support the proposition that the
meetings of 10 and 11 October 2019 was also emotionally charged where some
Exco members were perceived to be agitated.
[18] It is not for me to agree or disagree with the findings of the Commissioner but
to determine whether they are reasonable. In so doing, I must also consider whether
the Commissioner failed to consider relevant evidence or considered irrelevant
evidence. I find nothing that seems to suggest that , in concluding that Mr. Burger’s
conduct at the respective meetings did not constitute gross misconduct , the
Commissioner failed to apply his mind to the evidence before him.
Commissioner failed to apply his mind to the evidence before him.
[19] The finding by the Commissioner that , Mr. Burger did not have a malicious
intent against Mr. De Gidts’s authority, cannot be faulted.
8
[20] Further, in my view , the utterances of Mr. De Gidts that “ Mr Burger operated
above his pay grade and had an elevated impression ” are rude as opposed to what
was said by Mr Burger , save for having called Mr De Gidts “a liar” , which Mr. De
Gidts, however, does not find offensive.
Analysis of the matter
[21] The offence of insubordination in the workplace has, in this regard, been
described by our courts as a wilful and serious refusal by an employee to obey a
lawful and reasonable instruction or where the conduct of an employee poses a
deliberate (wilful) and serious challenge to the employer’s authority.3
[22] The Labour Appeal Court (LAC) in Palluci Home Depot (Pty) Ltd v Herskowitz
and Others 4 (Palluci Home) held that , whereas in some cases defiance of an
instruction may indicate a challenge to the authority of the employer, this is not so in
every case. Insubordination may also be found to be present where disrespectful
conduct poses a deliberate (wilful) and serious challenge to, or defiance of the
employer's authority, even where there is no indication of the giving of an instruction
or defiance of an instruction. It is, therefore, not essential for an instruction to be
given or disobeyed to found a challenge to the employer's authority.5
[23] The Court in Commercial Catering & Allied Workers Union of SA & Another v
Wooltru Ltd t/a Woolworths (Randburg)
6 (Wooltru), emphasised the importance of
distinguishing insubordination from insolence. The reason being that they are
different offences. It equates the offence of insolence with conduct which is
offensive, disrespectful, impudent, cheeky, rude (disrespectful in speech or
behaviour), insulting or contemptuous, and insubordination with ‘ resistance to or
defiance of authority; disobedience’
7, and ‘refusal to obey a reasonable and lawful
3 See: Commercial Catering & Allied Workers Union of SA & Another v Wooltru Ltd t/a Woolworths
(Randburg) (1989) 10 ILJ 311 (IC) (Wooltru) at 314H-J.
(Randburg) (1989) 10 ILJ 311 (IC) (Wooltru) at 314H-J.
4 (2015) 36 ILJ 1511 (LAC).
5 Ibid at para 19.
6 Ibid fn 3.
7 Ibid fn 3 at 315A.
9
command’.8 The refusal by an employee to carry out an employer's instruction is,
therefore, not always required for a finding of insubordination.
[24] The LAC in Palluci Home 9, citing with approval Wooltru, made it clear that
although an employee can be both insolent and insubordinate at the same time, he
or she can be insolent without necessarily being insubordinate.
[25] A mere disrespect for the employer (or insolence, impudence, cheekiness or
rudeness) cannot, on its own, constitute insubordination, which by its very nature
requires disobedience or an outright challenge to authority. Insubordination can
manifest itself in the refusal to obey a reasonable and lawful command or in the
challenge (or resistance) to or defiance of the authority of the employer. It is , of
course, required that insubordination must be deliberate (wilful) and serious. This is
not to say contemptuousness of authority (insolence, impudence, cheekiness,
disrespect or rudeness) cannot constitute a ground of dismissal (provided, of course,
that it is wilful and serious). One should, however, always distinguish between
insubordination on the one hand and insolence on the other hand because they are
not the same offence.
[26] Nevertheless, there is a fine line between insubordination and insolence, and
insolence may very well become insubordination where there is an outright challenge
to the employer’s authority. However, acts of mere insolence and insubordination do
not justify dismissal unless they are serious and wilful. A failure of an employee to
comply with a reasonable and lawful instruction of an employer or an employee ’s
challenge to, or defiance of the authority of the employer may justify a dismissal,
provided that it is wilful (deliberate) and serious. Likewise, insolent or disrespectful
conduct towards an employer will only justify dismissal if it is wilful and serious. The
sanction of dismissal should be reserved for instances of gross insolence and gross
insubordination.10
insubordination.10
8 Ibid at 315E.
9 Ibid fn 4 at para 20.
10 See: Mqhayi v Van Leer SA (Pty) Ltd 1984 (5) ILJ 179 (IC) at 182A-D.
10
[27] Thus, unless the insolence or insubordination is of a particularly gross nature,
an employer must issue a prior warning before having recourse to the final act of
dismissal.11
[28] The circumstances which preceded the conduct of the employee have to be
taken into consideration to determine the employee's intention. They will assist in the
determination of whether the conduct was ‘ wilful or deliberate, persistent and
deliberate challenge to the employer’s authority ’, thus serious enough to constitute
gross insubordination or ‘ impudent, impertinent or, disrespectful’ for it to constitute
gross insolence.
[29] This is apparent from what the LAC said i n Palluci Home , when it said the
following:
‘Although the respondent’s conduct can be described as insolent, impudent,
disrespectful, and rude, it certainly does not constitute insubordination which
in law requires a persistent, wilful and serious challenge to, or defiance of the
employer's authority. Nor, in my view can the first respondent’s conduct
towards Lambrecht be described, on the evidence, as a “calculated challenge”
to the employer’s authority, since it was neither deliberate nor intentional. The
first respondent had been provoked by Lambrecht in two respects: firstly , by
the unlawful deduction of monies from her salary which it is common cause
was the basis of the impasse, and secondly, by the condescending manner in
which Lambrecht had turned his back to her whilst she attempted to discuss
the issue of the deduction with him. This resulted in nothing more than, at
best, an isolated knee jerk in the heat of the moment by the first respondent,
who had been provoked by her employer. It is clear from the evidence that
she did not intend to challenge or defy Lambrecht's authority, but in her anger
at the deduction coupled with Lambrecht's refusal to discuss the issue with
her by inter alia condescendingly turning his back to her, she reacted
her by inter alia condescendingly turning his back to her, she reacted
precipitously by demanding, in a raised voice, that he should not turn his back
to her while she was discussing the issue of the deduction with him. Whilst the
first respondent's conduct was manifestly insolent, it cannot be said to be a
11 Wooltru supra at 315 H.
11
serious, persistent and deliberate challenge to the employer's authority, on
which to found a charge of insubordination or gross insubordination.’12
[30] The LAC considered the fact that the employee had been provoked, which
resulted in an isolated knee-jerk reaction in the heat of the moment by the employee.
This was found by the Court to negat e the intention to challenge or defy the
employer’s authority, as it was precipitated by the employee’s anger.
[31] In casu, the Commissioner found that Mr. De Gidts further conceded that:
31.1 deviation from the Aveng Transformation and BBBEE policy is a
disciplinary offence in terms of that policy;
31.2 Mr. Quayle did not meet the criterion set out in the Transformation and
BBBEE policy , and further that his appointment did not assist Aveng in
securing the targeted number of points each year as per paragraph 4.3 of
Aveng's Transformation and BBBEE policy;
31.3 Aveng Africa took BBBEE seriously, and Mr. Quayle's appointment did
not enhance Aveng's BBBEE status; and
31.4 A t a business unit level , the MD of the business unit had
responsibilities to implement the Transformation and BBBEE policy.
[32] Mr. Burger, for someone who regards himself as a mentor, seems not to be
very pleased by the appointment of Mr. Quayle, whom he regarded as an outsider
who did not fit in in terms of the BBBEE requirements as well as the Infraset
succession plan.
[33] In my view, the appointment of Mr. Quayle, which result ed in the non-
compliance with the Transformation and BBBEE policy, Succession Plan and
Employment Equity Plans of Infraset , is the source of the Exco members’
discontentment, which led to the heated utterances. It cannot thus be said that t he
Commissioner misconstrued the nature of the inquiry by coming to the conclusion
that Mr. De Gidts ’ non-compliance with the Transformation and BBBEE policy
justified Mr. Burger’s outburst or utterances.
12 Palluci Home supra at para 29.
12
[34] In any event , Aveng Africa seems to have, for many years , tolerated Mr.
Burgers’ outbursts and alleged passionate manner of addressing issues directly with
his superiors , irrespective of their hierarchical position and as alleged by Mr. De
Gidts, acted with ‘ a very elevated impression’ of his authority and ‘ operat[ed] way
above his pay scale’. I find it difficult to understand how could Aveng Africa not do so
a few outstanding months before his retirement on 30 September 2020.
[35] This, in my view, supports the submissions made on behalf of Mr. Burger
regarding inconsistency in the application of discipline by Aveng Africa.
[36] I am also seriously perturbed, as was the Commissioner, by Mr. De Gidts ’
attempt to conceal and underplay what transpired in the meeting of 9 September
2019. In my view, what happened on 9 September 2019 was more serious than on
10 and 11 October 2019. As a result, I am of the view that the Commissioner
considered the evidence before him , and applied his mind to the evidence arrive at
his conclusion.
[37] Mr. De Gidts was found not to be a credible witness, particularly in relation to
what took place on 9 September 2019. He was evasive and had amended minutes
of that day , and when questioned, downplayed the issue, which to me is serious in
that the deliberations of the day were omitted. Further, if he was an honest and
having integrity, how could he in vite Exco members to apply to a position knowing
very well that applications have closed?
[38] The LAC and the Supreme Court of Appeal (SCA) have held that in review
proceedings conducted under section 145 of the LRA, material errors of fact, as well
as the weight and relevance to be attached to particular facts, are not in and of
themselves sufficient for an award to be set aside.
13 That is not to say that the
correctness is of no consequence.
13 See: Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11
BLLR 1074 (SCA) (Herholdt).
13
[39] The relationship between the correctness or otherwise of the award under
review and the reasonableness enquiry was the subject of the often- cited judgment
of th e LAC in Head of Department of Education v Mofokeng and others 14
(Mofokeng), where Murphy AJA said:
‘The determination of whether a decision is unreasonable in its result is an
exercise inherently dependent 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 the light of the issues and the
evidence. …’
[40] And further:
15
‘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 upon the
arbitrator’s conception of the enquiry, the delimitation of the issues to be
arbitrator’s conception of the enquiry, the delimitation of the issues to be
determined 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
14 (2015) 36 ILJ 2802 (LAC) at para 31.
15 Ibid at para 33.
14
determination of the dispute. A material error of this order would point to at
least a prima facie unreasonable result. …’
[41] This formulation requires the reviewing court that identifies an error or
irregularity on the part of the arbitrator to determine whether it was material. This
would be the case if , but for the error or irregularity, the arbitrator would have come
to a different result. If this is established, the incorrect result arrived at by the
arbitrator is prima facie unreasonable. The enquiry then moves to a consideration of
whether the result is nonetheless capable of justification, having regard to the totality
of the evidence.
16
[42] In t he present matter, I am of the view that the findings made by the
Commissioner and his conclusions are rationally linked to the evidence and that the
arbitration award thus meets the reasonableness threshold. It follows from Mofokeng
that this calibration, which sets the threshold for reasonableness overall at the level
only of some rational connection between the evidence and the outcome, will not
always account for a decision that is demonstrably or obviously wrong. However, in
the present case, the decision cannot be said to be wrong.
[43] In Herholdt v Nedbank Ltd (COSATU as amicus curiae)
17 (Herholdt), which
endorsed and clarified the operation of the Sidumo test, the SCA emphasised that an
award of an arbitrator will only be set aside on review if both the reasons and the
result are unreasonable. It held that in determining whether the award is
unreasonable, the Labour Court must broadly evaluate the merits of the dispute and
consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result
is nevertheless capable of justification on all material before the arbitrator, including
for reasons not considered by the arbitrator. The SCA in Herholdt further held that
the result of an arbitrator’s award will be unreasonable if it is entirely disconnected
the result of an arbitrator’s award will be unreasonable if it is entirely disconnected
from the evidence, unsupported by any evidence and involves speculation by the
arbitrator.
16 A Myburgh, ‘Reasonableness Review — the Quest for Consistency’ (2024) 45 ILJ 1377 at 1391.
17 See: Herholdt supra.
15
[44] It follows from this that an arbitrator’s award will be reasonable when there is
a material connection between the evidence and the result, or put differently , when
the result is supported by some evidence. Thus, as observed by the SCA:
‘A result will only be unreasonable if it is one that a reasonable arbitrator could
not reach on all the material that was before the arbitrator. Material errors of
fact, as well as the weight and relevance to be attached to particular facts, are
not in and of themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome unreasonable.’
18
[45] As was emphasised i n South African Breweries Ltd v Commission for
Conciliation, Mediation and Arbitration and Others 19, t he test that this Court must
apply in deciding whether the arbitrator’s decision is reviewable has been rehashed
innumerable times since Sidumo 20: it is whether the conclusion reached by the
arbitrator was so unreasonable that no other arbitrator could have come to the same
conclusion.
[46] Zondo JP (as he then was) in Fidelity Cash Management Service v
Commission for C onciliation, Mediation and A rbitration and Others
21 applied the
Sidumo test thus:
‘The test enunciated by the Constitutional Court in Sidumo for determining
whether a decision or arbitration award of a CCMA commissioner is
reasonable is a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and in line with the
objectives of the Act and particularly the primary objective of the effective
resolution of disputes, awards of the CCMA will be final and binding as long
as it cannot be said that such a decision or award is one that a reasonable
decision maker could not have made in the circumstances of the case. It will
not be often that an arbitration award is found to be one which a reasonable
decision maker could not have made but I also do not think that it will be rare
decision maker could not have made but I also do not think that it will be rare
18 Ibid at para 25.
19 [2012] 9 BLLR 936 (LC).
20 Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) (Sidumo ) at
para 110.
21 (2008) 29 ILJ 964 (LAC) (Fidelity) at para 100.
16
that an arbitration award of the CCMA is found to be one that a reasonable
decision maker could not, in all the circumstances, have reached.’
[47] The test for review is thus trite. It is outcome -based – whether the decision
reached by the commissioner is one that a reasonable decision maker could not
reach.
22 Mere failings, errors or irregularities on the part of the commissioner are not
sufficient to review and set aside the award. Awards will be reviewed only if these
failings, errors or irregularities resulted in the commissioner’s decision ultimately
being unreasonable.23
[48] Aveng Africa ’s criticisms, properly examined, are nothing more than
unhappiness and/or displeasure with the Commissioner’s reasons for the decision
that Mr Burger’s dismissal was unfair. The criticisms are , in any event , not
sustainable. The award meets the standard of reasonableness. No case has been
made out to review and set it aside. It follows that the application stands to be
dismissed.
[49] I also find that the Commissioner did not materially misdirect h imself in the
sense that, in awarding compensation, he was influenced by wrong principles or a
misconception of the facts or that his decision is one that could not reasonably have
been made by a commissioner on the material before him and properly directing
himself to the relevant facts and legal principles. The decision has been supported
by reasons. In Duncanmec (Pty) Ltd v Gaylard NO and others
24, the Constitutional
Court reminded us that:
‘This test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether it agrees with
them. That is not the role played by a court in review proceedings. Whether
the court disagrees with the reasons is not material.’
22 Sidumo supra at para 110.
23 Herholdt supra at para 25; Mofokeng at paras 31 – 33.
24 (2018) 39 ILJ 2633 (CC) at para 42.
17
[50] Accordingly, applying the review test 25 to the application, I am not persuaded
that the Commissioner’s decision is one that a reasonable decision maker could not
have reached. Accordingly, the review application stands to be dismissed.
[51] In the premises, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
MS Mphahlele
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv MJ Engelbrecht SC
Instructed by: Wilken Inc.
For the Respondent: Adv T D Hitchings
Instructed by: Charmain Gray Attorneys
25 Ibid; See: Sidumo at para 110; Fidelity at para 100; Mofokeng at paras 31 – 33.