THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C473/2023
In the matter between:
NELWORX (PTY) LTD t/a OK FOODS STRAND Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
W CONNAN N.O. Second Respondent
LUCAS MENI Third Respondent
Heard: 4 September 2025
Delivered: 12 September 2025
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 and time for handing down judgment is deemed to be 10h00 on 12
September 2025.
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______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter came before the court as an application to review the arbitration
award issued by the second respondent (hereinafter referred to as “the
commissioner”) in terms of section 145 of the Labour Relations Act 1. This review
application is in essence what is referred to as a ‘penalty review’, which means
that the subject matter of the review is the appropriateness of sanction given an
act or acts of misconduct. The challenge in a review application is then based on
a decision-maker’s alleged failure to properly consider and apply the evidence in
support of the decision that they arrived at.
Background
[2] The third respondent (hereinafter referred to as “the respondent” ) was employed
as security officer by the applicant on 1 September 2018. On 2 March 2023, the
respondent and a colleagues Mr. Mtumtum (hereinafter referred to as
“Mtumtum”) were involved in a physical altercation at the workplace in full view of
other employees and customers. Some time prior to the altercation, some
tension existed between the respondent and Mtumtum to the extent that they
were warned by management not to speak to one another unless it was for work
purposes. During the incident on 2 March 2023, the two employees became
involved in a verbal confrontation which led to the respondent grabbing Mtumtum
and pushing him up against a wall. A manager had to step in to separate the two
employees.
1 Act 66 of 1995, as amended.
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[3] Mtumtum laid a criminal complaint with the SAPS. He was eventually issued with
a final written warning for his involvement in the altercation. The fact that the
incident had taken place, the existence of the workplace rule against assault, and
the prescribed sanction of dismissal for breaching the rule, were common cause.
The respondent was charged and eventually dismissed on 8 March 2023. The
respondent referred an unfair dismissal dispute to the first respondent
(hereinafter referred to as “ CCMA”), and the commissioner , after arbitration,
issued an award ruling that the sanction of dismissal was too harsh and that the
respondent’s dismissal was substantively unfair. The commissioner ordered the
applicant to pay compensation in the amount of R48 000.00.
Arbitration award
[4] The commissioner, after surveying the parties’ respective evidence, notes inter
alia that employers must exercise caution before dismissing employees on
charges of assault, even where the assault was serious. Too often employers act
emotively because of the nature of such a transgression which diverts them from
the facts that they need to assess before considering whether dismissal is an
appropriate sanction in those circumstances. The commissioner refers to a quote
where it was stated: ‘Assault is generall y accepted as a valid ground to dismiss
the assailant. The legal requirements for the offense are the intentional and
unlawful application of physical force, however slight, to the complainant’s body
or threat that such force will be applied.’
[5] The commissioner notes that in an employment context, various factors should
be considered before a sanction is imposed on an employee who was found
guilty of assault. These are amongst others the circumstances in which the
assault occurred, the degree of force, the relationship between the employee and
the complainant coupled with the effect of the assault on the interpersonal
relations and the business of the employer. ‘Provocation can be described as an
relations and the business of the employer. ‘Provocation can be described as an
act whereby a person acts out of anger due to being taunted by another person,
4
ultimately resulting in retaliation to the taunting. Provocation is often called the
temporary “loss of control” due to being taunted by another person.’
[6] The commissioner continues and states that ‘Provocation may occur through
either verbal or physical actions and being provoked may be used as a valid
defense to assault. However, the assault arising from the provocation should be
an immediate and sudden act. The offender should not have had time to “cool
off”, as our laws suggest that should a “cooling off” period exist, the defence of
provocation may not be successful, as it may be construed that the offender had
time to think about his actions, resulting in the eventual assault being intentional.”
In conclusion, once provocation was proved, it should be considered as
mitigation in that assault case.
[7] The commissioner turns to the matter before him and finds that the respondent
acknowledged that what he did was wrong, and he regretted it. He went as far as
reporting the incident to management right after it happened and told them that
he fought with Mtumtum. The commissioner fi nds that he is satisfied that the
respondent is guilty of the charge.
[8] The commissioner then turns to the appropriateness of sanction. He notes that it
is common cause that Mtumtum provoked the respondent for which he was
issued with a final written warning. It is stated that the respondent did walk away
from the provocation, but that Mtumtum followed the respondent inside. The
respondent then, as can be seen from the video, suddenly turned around and
grabbed Mtumtum and pushed him to the wall. That was the assault. The
commissioner states that he believes that if Mtumtum did not follow the
respondent inside the store, the assault would not have happened. Why? The
provocation would have stopped. The respondent testified that it was at that point
when Mtumtum told him that he was not one of those he killed, that he lost his
temper and grabbed him.
temper and grabbed him.
[9] The commissioner finds further that the degree of force of the altercation did not
go beyond mere grabbing and pushing Mtumtum against the wall. Surely this
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should have been considered against the part that Mtumtum played in the
orchestration of the incident. The applicant did not. The commissioner finds that
he is satisfied that the assault has arisen from the provocation and that it was an
immediate and sudden act by the respondent as shown in the video clip.
Mtumtum’s attack of words towards the respondent was no less than verbal
abuse.
[10] The commissioner finds that, although the rule is fair, employer must be careful
before they impose a sanction of dismissal, as assault can be mitigated by
provocation in context. He finds that all the factors that mitigate assault in matters
of provocation are applicable in this incident. The applicant’s witness did not
demonstrate how the assault broke the trust relationship. She also did not
demonstrate that the applicant considered any other factor other than the
assault. Had she considered the aforesai d considerations, she would have seen
that both employees were equally guilty of what had transpired and if a sanction
short of dismissal was good for one, it should also have been good for the other.
The commissioner therefore finds the dismissal to be substantively unfair.
Grounds of review
[11] The applicant ’s challenges to the arbitration award were summarised in their
heads of argument to the effect that his ruling on the appropriateness of sanction
falls outside the band of reasonableness due to the following:
a. The commissioner’s failure to understand and accept that the applicant’s
earlier reprimand of the two employees and the warning to them not to
speak to one another unless it was work -related, constituted an earlier
warning.
b. The commissioner ’s unfounded and illogical ruling that the applicant’s
earlier reprimand of the employees and the waring to them not to speak to
one another unless it was work -related, did not resolve the issue but
rather perpetuated same.
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c. The commissioner’s failure to consider and correctly apply the principles
relevant to provocation to the matter before him.
d. The commissioner’s finding that the physical assault by the respondent on
Mtumtum was not sufficiently serious to warrant dismissal, despite his
position, an earlier warning and the juvenile reason for the assault, did not
warrant the sanction of dismissal.
e. The commissioner’s apparent finding of inconsistence despite the fact that
the issue of inconsistence was never raised as an issue in dispute or
addressed by the respondent in his evidence.
Review Test
[12] In Sidumo & another v Rustenburg Platinum Mines Ltd & others,2 the Court held
that “the reasonableness standard should now suffuse section 145 of the LRA ”,
and that the threshold test for the reasonableness of an award was: “ … Is the
decision reached by the commissioner one that a reasonable decision maker
could not reach?... ”3. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions
as Amicus Cu riae)4 the Court applied this reasonableness consideration as
follows:
“In summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the proceedings
falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result. 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
2 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
3 Id at para 110.
4 (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25.
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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.”
[13] This test has thus been applied as a two- stage review enquiry. Firstly, the review
applicant must establish that there exists a failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly,
if this failure or error is shown to exist, the review applicant must then further
show that the outcome arrived at by the arbitrator was unreasonable. If the
outcome arrived at is nonetheless reasonable, despite the error or failure, that is
equally the end of the review application. In short, in order for the review to
succeed, the error or failure must affect the reasonableness of the outcome to
the extent of rendering it unreasonable.
[14] Further, the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator, as to whether the outcome of
the arbitrator arrived at can nonetheless be sustained as a reasonable outcome,
even if it may be for different reasons or on different grounds.
5 This necessitates
a consideration by the review court of the entire record of the proceedings before
the arbitrator, as well as the issues raised by the parties before the arbitrator,
with the view to establish whether this material can, or cannot, sustain the
outcome arrived at by the arbitrator. In the end, it would only be if the outcome
arrived by the arbitrator cannot be sustained on any grounds, based on the
material, and the irregularity, failure or error concerned is the only basis to
sustain the outcome the arbitrator arrived at, then the review application would
succeed.6
5 Fidelity at para 102.
6 See Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ
1453 (LAC); [2015] 4 BLLR 394 (LAC) at para 12.
8
[15] In Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 7
the Labour Appeal Court further explained the reasonableness test in the
following terms:
“[15] A ‘process -related review suggests an extended standard of review,
one that admits the review of an award on the grounds of a failure by the
arbitrator to take material facts into account, or by taking into accounts
facts that are irrelevant, and the like. The emphasis here is on process
and not result. Proponents of this view argue that where an arbitrator has
committed a gross irregularity in the conduct of the arbitration as
contemplated by s145(2), it remains open for the award to be reviewed
and set aside irrespective of the fact that the decision arrived at by the
arbitrator survives the Sidumo test. I disagree. What is required is first to
consider the gross irregularity that the arbitrator is said to have committed
and then to apply the reasonableness test established by Sidumo. The
gross irregularity is not a self -standing ground insulated from or standing
independent of the Sidumo test. That being the case, it serves no purpose
for the reviewing court to consider and analyse every issue raised at the
arbitration and regard failure by the arbitrator to consider all or some of the
issues albeit material as rendering the award liable to be set aside on the
grounds of process-related review.”
and
“[20] To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section 138 of
the LRA which requires the arbitrator to deal with the substantial merits of
the dispute between the parties with the minimum of legal formalities and
do so expeditiously and fairly. This is also confirmed in the decision of
CUSA v Tao Ying Metal Industries. Failing to consider a gross irregularity
in the above context would mean that an award is open to be set aside
in the above context would mean that an award is open to be set aside
7 (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) (4 November 2013).
9
where an arbitrator (i) fails to mention a material fact in his award; or (ii)
fails to deal in his/her award in some way with an issue which has some
material bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts presented at the
arbitration. The questions to ask are these: (i) In terms of his or her duty to
deal with the matter with the minimum of legal formalities, did the process
that the arbitrator employed give the parties a full opportunity to have their
say in respect of the dispute? (ii) Did the arbitrator identify the dispute he
was required to arbitrate (this may in certain cases only become clear
after both parties have led their evidence)? (iii) Did the arbitrator
understand the nature of the dispute he or she was required to arbitrate?
(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is
the arbitrator’s decision one that another decision- maker could reasonably
have arrived at based on the evidence?”
and
“[21] Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable decision. Where the
arbitrator fails to follow proper process he or she may produce an
unreasonable outcome (see Minister of Health and Another v New Clicks
South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is
considered on the totality of the evidence not on a fragmented, piecemeal
analysis. As soon as it is done in a piecemeal fashion, the evaluation of
the decision arrived at by the arbitrator assumes the form of an appeal. A
fragmented analysis rather than a broad based evaluation of the totality of
the evidence defeats review as a process. It follows that the argument that
the failure to have regard to material facts may potentially result in a
wrong decision has no place in review applications. Failure to have regard
to material facts must actually defeat the constitutional imperative that the
to material facts must actually defeat the constitutional imperative that the
award must be rational and reasonable- there is no room f or conjecture
and guesswork”
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[16] The Labour Appeal Court in Head of the Department of Education v Mofokeng
and Others8 provided the following exposition of the review test:
“[33] 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 inquiry. 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 inquiry, 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 determination of the dispute. A 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 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 enquiry 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.”
[17] The court w ill now proceed to consider the review application by the applicant
[17] The court w ill now proceed to consider the review application by the applicant
against the above principles and the test applicable to review applications.
Evaluation of grounds of review
8 (JA14/2014) [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) (1 October 2014).
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[18] In commencing the evaluation of the grounds of review this court notes that it is
common cause that the respondent assaulted Mtumtum and that Mtumtum
provoked the respondent. What is in dispute is whether Mtumtum’s provocation
was sufficiently serious to justify the assault on him by the respondent and
whether the said provocation was a sufficient mitigating factor for the assault that
took place. It is also necessary to look at what exactly the assault entailed, and
the circumstances surrounding the assault such as the assault taking place in
front of other employees and customers.
[19] It will be appropriate to refer to some case law on provocation as a mitigating
factor to an act of assault before applying same to the facts of this matter. It is
also necessary to evaluate the commissioner’s finding in relation to provocation
when he analysed the evidence and arrived at the conclusion that the
respondent’s dismissal was substantively unfair.
[20] The Labour Court in Nampak Products (Pty) Ltd t/a Megapak v CCMA and
Others
9 held as follows:
“[35] … The mere existence of provocation is obviously not the end of the
inquiry. When provocation is advanced as a mitigating factor in an assault,
a critical question is whether the extent of the provocation was such that it
would have caused any reasonable person in the position of the assailant
to have responded in that way.”
and
“[36] In the case of Tedco Plastics (Pty) Ltd v National Union of
Metalworkers of SA & others (2000) 21 ILJ 2710 (LC), the Labour Court
summarised the principles governing provocation as applied in the
criminal and delictual contexts and applied them in the employment
9 (C512/2018) [2021] ZALCCT 99 (24 June 2021).
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context. The court found in the matter before it that there was no evidence
to support a finding of provocation. Moreover, it held, albeit obiter, that the
arbitrator had failed to understand and correctly apply the law relating to
provocation as a mitigating factor:
“[15] … Provocation is recognized in our criminal law and law of
delict as a basis for excusing or mitigating the consequences of
what would otherwise clearly be criminal or delictual conduct. The
debate has not been settled as to whether provocation removes the
unlawfulness of the conduct, or merely mitigates (or extinguishes)
the punishment or damages arising therefrom. (See Neethling,
Potgieter & Visser Law of Delict (3 ed) at 91- 2 and Snyman
Criminal Law (2 ed) at 183ff.) Whatever the correct legal
categorization, however, the very fact that a person's actions were
a reaction to the conduct of another does not mean that the law will
come to their aid. Certainly, in the case of delictual liability, it
appears that two requirements will have to be met, namely, that the
provocative conduct must be such that the reaction to it by way of
physical assault was reasonable, ie would a reasonable person in
the position of the person have acted as he did in the face of the
provocation; and, that the conduct must be an immediate and
reasonable retaliation, ie it must follow immediately on the
provocation and not be out of proportion to the nature and degree
of the provocative behaviour (Neethling et al at 94).”
In that case, the court found that the arbitrator could not have concluded
that provocation could be advanced as a mitigating factor or as a defence
because:
36.1 the assault in question was not defensive but aggressive in
nature;
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36.2 it occurred after the victim had already left the scene and was
thus not an immediate reaction, but marked the commencement of
the new chain of events;
36.3 it was completely out of proportion to the conduct of the victim
of the assault, and
36.4 was contrary to the arbitrator’s own finding that the employee
had decided to take the law into his own hands, which implied a
rational decision to retaliate and not simply an immediate
response.”
and
“[37] In this case, the arbitrator appears to have assumed that the mere
existence of provocative conduct, as such, mitigated the seriousness of
the assault on Yengo. What she failed to consider was whether Yengo’s
conduct was reasonable in the context and whether it was an immediate
response to the provocation.”
[21] The Labour Appeal Court in Nelson Mandela Bay Metropolitan Municipality v
Independent Municipal & Allied Trade Union on behalf of Tshabalala & others
10,
a case which involved a physical fight between two senior employees in the
presence of their subordinates, said the following:
“[26] The employee’s further argument that he acted in self -defence
cannot avail him. The commissioner’s conclusion that ‘any reasonable
person would have reacted in the manner [the employee] did’ and that ‘as
a man he could not walk away from the fight’, goes against the grain of
conduct expected of an employee. In our law every person is expected to
control his/her temper. In addition, there is no obligation on an individual to
10 (2019) 40 ILJ 1021 (LAC).
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accept a challenge. Either employee could have walked away from the
scene.”
[22] Keeping in mind the case law dealing with provocation as a mitigating factor to
an act of assault, it is necessary to consider the evidence presented, and to then
decide whether the commissioner failed to consider and correctly apply the
principles relevant to provocation to the matter before him.
[23] The evidence of the respondent will be considered first insofar as he claimed that
he was provoked leading to the act of assault on Mtumtum. The respondent
testified that he started working at 11h00am when Mtumtum asked “who was not
present yesterday” to which he responded, “I was not here yesterday”. Mtumtum
then started shouting and coming close to him and asked him to move into the
shop to leave the position where he was. On the way inside the shop Mtumtum
continued shouting and swearing at him. He kept moving and Mtumtum kept
moving and was following him. The respondent testified that he thinks the thing
that made him lose his temper is when Mtumtum said that “I am not one of those
the one you are killed”. Meni testified that this was where he lost his temper. He
went back at Mtumtum, grabbed him, and pushed him against the wall.
[24] During cross-examination, the respondent agreed that the initial discussion was
between Rasemetsi and Mtumtum and that he decided to make himself part of
the conversation. The respondent conceded that he did so knowing that he was
previously spoken to about issues he had with Mtumtum and that management
told him to stay away from Mtumtum. The respondent’s explanation was that
Mtumtum was speaking about him, which was disputed. The respondent also
agreed that, at that point, he could have just walked away to management to say
that Mtumtum was taunting him. There was also an issue with Mtumtum
speaking in Sotho and the respondent stating that why did he speak in Sotho
thinking that the respondent did not understand what he was saying. The
thinking that the respondent did not understand what he was saying. The
respondent also agreed that he decided to engage Mtumtum.
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[25] This led to the two of them shouting at each other with Rasemetsi, in the middle
between them, saying “ leave it guys, leave it”. The respondent also agreed that
he lost his temper even though Mtumtum did not touch or attack him. The
respondent disputed the applicant’s evidence that he pointed at Mtumtum and
said to a customer that he would sort that guy out, which led to Mtumtum saying
that he is not the person the respondent can just kill. The respondent also agreed
that he attacked Mtumtum in front of the store and in front of the customers. He
also agreed that what he did by grabbing Mtumtum on the neck and pushing him
against the wall was not the right thing to do and that his actions constituted
assault. The respondent also agreed that assault is a criminal act, which he
committed inside the workplace.
[26] The respondent further agreed that, as a security guard, it was his job to keep
the premises safe, and that he knew that if he assaults someone, he would be
fired. He agreed that by assaulting Mtumtum he did not keep the workplace safe
and that he endangered people. The respondent also accepted that the applicant
could fire him for the act of assaulting Mtumtum.
[27] In analysing the respondent’s own evidence and considering the admission made
during the applicant’s closing argument before the commissioner , this court must
accept that there was provocation. There can be no dispute about this, as
Mtumtum was issued with a final written warning for provoking the respondent.
During Joubert’s own closing submissions to the commissioner (applicant’s
representative during the arbitration proceedings), he conceded that provocation
can be a mitigating factor to be considered in favour of the respondent. However,
it was disputed that the provocation was sufficient to justify the respondent ’s
actions in physically assaulting Mtumtum.
[28] This court is of the view that the commissioner committed an irregularity and
[28] This court is of the view that the commissioner committed an irregularity and
failed to properly and correctly apply the law in respect of provocation in
accepting that the provocation by Mtumtum justified the assault. This is so
because the commissioner failed to take into consideration that the respondent
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firstly involved himself in the discussion between Rasemetsi and Mtumtum. He
failed to consider that, despite Mtumtum following the respondent into the store
and telling him that he is not a person that you can just kill, Mtumtum did not
physically touch or assault the respondent. The court notes that there is a dispute
about whether Mtumtum said that he is not a person that the respondent could
just kill, or that the respondent could do nothing to him.
[29] This court also does not accept the respondent ’s denial that he said to a
customer that he will sort that guy out, pointing to Mtumtum. According to the
applicant’s witness , Rasemetsi, that is what he did, and this is what caused
Mtumtum to retaliate and say that “you cannot do me nothing”. They continued,
however, and Mtumtum continued following the respondent.
[30] The commissioner further failed to consider and accept that the respondent lost
his temper and physically assaulted Mtumtum in front of other staff members,
and in front of customers. The commissioner failed to consider that the
respondent knew that assault is a dismissible, and in fact a criminal offence, and
that despite the respondent ’s duties being to keep the workplace safe, he did
exactly the opposite.
[31] The physical assault of another person is a serious offence and in fact a criminal
offence. The reliance on provocation to justify a physical assault must meet strict
criteria as emanating from the case law referred to above. As held in Tedco
Plastics11, the very fact that a person’s actions were a reaction to the conduct of
another does not mean that the law will come to their aid. There are two
requirements to be met. The first requirement is that the provocative conduct
must be such that the reaction to it by way of physical assault was reasonable,
i.e., would a reasonable person in the position of the person have acted as he did
in the face of provocation. The second requirement is that the conduct must be
in the face of provocation. The second requirement is that the conduct must be
an immediate and reasonable retaliation, i.e., it must follow immediately on the
11 Supra.
17
provocation and not be out of proportion to the nature and degree of the
provocative behaviour.
[32] This court is unable to agree with the commissioner that the nature of the
provocation was such that the respondent ’s reaction was reasonable. In any
event, the commissioner appear s to overlook the fact that the respondent is the
one who involved himself in a discussion between Mtumtum and Rasemetsi, and
that the respondent , on a balance of probabilities, told a customer, pointing to
Mtumtum, that he would sort him out. The provocation of shouting between the
two employees and Mtumtum following the respondent do not justify an act of
physical assault. This is especially so when the assault is done in front of other
staff members and in front of customers. It will create a bad precedent if this
court is to accept provocation, as relied on in this case, to justify a physical
assault on a co- employee. The applicant is required to ensure a safe working
environment for all its employees and, allowing such provocation to justify a
criminal offence of assault, is unacceptable. There was no need for the
respondent to physically assault Mtumtum and insofar as the commissioner
found that the provocation justified the assault, he failed to understand and
correctly apply the law relating to provocation as a mitigating factor.
[33] In relation to the second requirement that the conduct must be an immediate and
reasonable retaliation, this court cannot find that the respondent ’s act of physical
assault was a reasonable retaliation. The respondent ’s physical assault of
Mtumtum was out of proportion to the nature and degree of the provocative
behaviour. The respondent was aware of the serious consequences of any act of
physical assault in the workplace. There was no need for him to physically
assault Mtumtum as a reasonable response to the provocative behaviour,
especially in front of other staff members and customers and given the
especially in front of other staff members and customers and given the
respondent’s primary duty to ensure a safe working environment. The
respondent, knowing the seriousness of any physical assault in the workplace,
must bear the consequences of his actions. It is not a surprise that the act of
18
physical assault in the workplace is regarded as a dismissible offence for a first
offence.
[34] This court will not address the issue of the previous discussions that took place
with Mtumtum and the respondent , although separate from one another, given
the court’s conclusion that the commissioner had failed to understand and
correctly apply the law relating to provocation as a mitigating factor. The court will
also not address the issue of inconsistency, as inconsistency was never raised
as a defence. It is sufficient for this court to note that Mtumtum, who received a
final written warning, did not physically assault the respondent . The respondent,
in turn, physically assaulted Mtumtum and there is no reason to criticise two
different sanctions applied.
[35] Although the commissioner did not specifically refer to the Code of Good
Practice: Dismissal (the Code), this court must determine whether the
commissioner’s findings are in line with the provisions of the Code. Item 3(4)
provides that ‘generally, it is not appropriate to dismiss an employee for a first
offense, except if the misconduct is serious and of such gravity that it makes a
continued employment relationship intolerable’. In this court’s view, the act of
physical assault on a co- employee in the work place and in front of customers
and fellow staff members was sufficiently serious to make a continued
employment relationship intolerable. The applicant, despite being aware that it is
a dismissible offence to physically assault another employee, and the potential
consequences thereof , nonetheless proceeded to physically assault Mtumtum.
An employer cannot tolerate a situation where an employee, with such
knowledge, continues to breach the rule regarding physical assault in the
workplace. Insofar as the com missioner found that the applicant did not
demonstrate how the trust was broken down, this is not entirely correct. The
applicant provided evidence of the seriousness of the offence, and why such
applicant provided evidence of the seriousness of the offence, and why such
action cannot be tolerated in the workplace.
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[36] Item 3(5) of the Code provides, in turn, that ‘when deciding whether or not to
impose the penalty of dismissal, the employer should in addition to the gravity of
the misconduct consider factors such as the employee’s circumstances
(including length of service, previous disciplinary record and personal
circumstances), the nature of the job and the circumstances of the infringement
itself’. Due to the commissioner’ s unreasonable decision that the provocation
justified the physical assault of Mtumtum, he did not consider these factors. The
court, however, considered the evidence and finds that the respondent ’s
circumstances, as presented during his evidence, are not sufficient to depart
from the penalty of dismissal. It may be so that the respondent showed remorse,
albeit after the fact, but the showing of remorse after a serious act of physical
assault does not justify a departure from the normal penalty of dismissal.
[37] Item 3(6) provides that ‘the employer should apply the penalty of dismissal
consistently with the way in which it has been applied to the same or other
employees in the past, and consistently as between two or more employees who
participate in the misconduct under consideration’. The respondent did not
challenge the consistent application of the rule and there is no need for this court
to address this issue other than reiterating that there was a clear reason to
distinguish between Mtumtum and the respondent when it came to issuing of
sanctions.
Costs
[38] In terms of the provisions of section 162(1) of the LRA, this court has wide
discretion when it comes to the issue of costs. The court is mindful of the dictum
of the Constitutional Court in Zungu v Premier of the Province of Kwa- Zulu Natal
and Others12 when it comes to the issue of costs in employment disputes. In the
matter before this court, t his court can find no reason, in law and fairness, to
make any order as to costs . This is especially so since the respondent opposed
make any order as to costs . This is especially so since the respondent opposed
the review of an award that was issued in his favour.
12 (2018) 39 ILJ 523 (CC).
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[39] In the premises, the following order is made:
Order
1. The application for the arbitration award to be reviewed and set aside is
granted.
2. The respondent dismissal was substantively fair.
3. No order is made as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: J Foster
Instructed by: M Kruger from M Kruger Attorneys
For the Third Respondent: K Cato from Cato Attorneys