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[2025] ZALCCT 84
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Fari v Commission for Conciliation Mediation Arbitration and Others (C68/2024) [2025] ZALCCT 84 (22 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Case
no: C68/2024
Not
reportable
In
the matter between:
ISAAC
FARI
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
PHILIP
SACK
N.O.
ZARA
CLEANING SERVICES
Second
Respondent
Third
Respondent
Date
of Hearing:
9 September 2025
Date
of Judgment:
22 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 22 September
2025.
Summary:
(Application to review a CCMA
arbitration award in which the commissioner dismissed a claim for
alleged underpaid bonuses in terms
of section 73A of the BCEA –
Award reasonable – application dismissed).
JUDGMENT
LESLIE
AJ
[1]
This is an unopposed application, brought in terms of section 145 of
the Labour Relations Act 66 of 1995 (“the LRA”)
to review
and set aside an arbitration award issued by the second respondent
(“the commissioner”) under the auspices
of the first
respondent (“the CCMA”).
[2]
The applicant was the claimant in the CCMA. His claim was brought
under section 73A of the Basic Conditions of Employment
Act 75 of
1997 (“the BECA”) for amounts allegedly unpaid to the
applicant by his former employer, the third respondent.
[3]
Most of the background facts were common cause. The third respondent
provides cleaning services to various clients, one
of which is the
Somerset Hospital. The applicant was employed as a Team Leader with
effect from March 2020. Team Leaders are paid
a Team Leader bonus of
R250 on a monthly basis.
[4]
During March 2022, the applicant was promoted to Supervisor. In that
position, the applicant was entitled to a Supervisor
bonus of R2500
per month. The applicant received the Supervisor bonus for part of
March 2022, the whole of April 2022 and part
of May 2022.
[5]
From June 2022 until the termination of his employment in February
2023, the applicant did not receive the Supervisor
bonus. He was paid
the Team Leader bonus.
[6]
The applicant claimed that he was entitled to the Supervisor bonus
for the balance of May 2022 until February 2023. The
amount claimed
was R19125
[7]
The issue in dispute before the commissioner turned on what had
happened in May 2022. The third respondent’s version
was that
the applicant had been unhappy with the money he was being paid in
the Supervisor role. In May 2022, the applicant had
attended the
third respondent’s head office and had stepped down from his
Supervisor role. From then onwards, the applicant
worked as a Team
Leader again.
[8]
The third respondent did not call a witness from its head office to
testify. Instead, Mr Talkmore Chaemesa, employed by
the third
respondent as a Supervisor at the Somerset Hospital, gave evidence on
behalf of the third respondent. He testified that
the applicant was
not happy with the money he received as a Supervisor. In May 2022 the
applicant attended the third respondent’s
head office and when
he returned he was no longer a Supervisor but continued as a Team
Leader. The office had telephonically informed
Mr Chaemesa of this
fact.
[9]
After May 2022, the applicant never complained that he was being
short paid – albeit that he no longer received
the Supervisor
bonus. Mr Chaemesa testified that the applicant performed the
services of a Team Leader from May 2022 until February
2023. He
confirmed in a staff meeting, at which the applicant was present,
that the applicant was no longer a Supervisor.
[10]
The applicant’s payslips continued to record that the applicant
was a Supervisor – something which Mr Chaemesa
referred to as a
technical error. However, the payslips reflected that the applicant
was not paid the Supervisor bonus and that
he only received the Team
Leader bonus. The applicant’s timesheets, used to generate
salary payments, were signed by the
applicant and reflected that from
May 2022 he was a Team Leader.
[11]
The applicant’s version was that he had worked as a Supervisor
from March 2022 until February 2023. He had retained
his Supervisor
uniform and badge. He denied that he had stepped down as a Supervisor
in May 2022. The applicant suggested that
he had not complained about
being short-paid during his employment, as he feared victimisation.
[12]
The commissioner, who was steeped in the matter and heard the
evidence of the witnesses firsthand, found in favour of
the third
respondent. He found that Mr Chaemesa gave clear and concise evidence
and was held to be credible.
[13]
Although the third respondent did not call a witness from its head
office, Mr Chaemesa’s evidence was corroborated
inter alia
by the contents of the timesheets and the applicant’s
payslips. It weighed heavily with the commissioner that the applicant
must have been aware that he was no longer receiving the Supervisor
bonus from May 2022 until February 2023 (a period of eight
months),
yet he failed to raise any complaint about this with his employer.
Although the applicant claimed he was concerned about
being
victimised, he only lodged his claim at the CCMA in June 2023 –
four months after his employment terminated.
[14]
For these reasons, the commissioner held that the applicant had not
discharged his onus under section 73A of the BCEA.
[15]
In order to succeed in this review application, the applicant was
required to overcome the stringent test for reasonableness
set out in
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2) SA 24
(CC), namely that on all the relevant evidence before
the commissioner no reasonable arbitrator could have dismissed the
applicant’s
claim under section 73A.
[16]
In my view, the award is eminently reasonable and does not warrant
interference on review. The commissioner weighed up
the competing
versions and found that the third respondent’s version was more
credible and probable than that of the applicant.
In particular, the
third respondent’s version was corroborated by material
documents – including the applicant’s
signed timesheets
and his payslips. The applicant was unable to plausibly explain why
he had not complained about the alleged short-pay
for the 8 month
period between May 2022 and February 2023.
[17]
I mention, for the sake of completeness, that at the hearing of this
application Mr Fari handed up an affidavit deposed
to by Mr Chaemesa
on 30 August 2025. In that affidavit, Mr Chaemesa states that he was
not present at the head office either when
the applicant was promoted
to Supervisor or at any time thereafter. This is not evidence that
served before the commissioner at
the time when the award was issued.
It can have no bearing on the question that arises for determination,
namely, whether the award
is reasonable in relation to the material
that was properly before the commissioner.
[18]
The review application accordingly falls to be dismissed.
[19]
In the premises, the following order is made:
Order
[1] The application
is dismissed.
[2] There is no
order as to costs.
Leslie
AJ
Acting
Judge of the Labour Court of South Africa
Representatives
–
For
the applicant: In person
For
the first respondent: No appearance