THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR835-20
In the matter between:
DEKS SERVICES (PTY) LTD Applicant
and
SIKWANE, LERATO NO First Respondent
COMMISSION FOR CONCILIATION, Second Respondent
MEDIATION AND ARBITRATION
GROBLER C Third Respondent
Heard: 22 May 2025
Delivered: 1 October 2025
Summary: Application to review and set aside arbitration award.
Commissioner failing to consider all the evidence or determine all
the issues, outcome unreasonable. Application successful.
JUDGMENT
2
DANIELS J
Introduction
[1] This judgment relates to an application brought in terms of section 145 of
the Labour Relations Act No. 66 of 1995 (the “LRA”) to review and set
aside the arbitration award of the first respondent (the “commissioner”),
issued on 6 March 2020, under case number GATW11733-19.
Material facts
[2] The facts are largely common cause, particularly given that the third
respondent failed to testify at the arbitration. The facts, drawn from the
evidence, both oral and documentary, are as follows:
2.1 The applicant is a labour broker, which supplies labour in South
Africa inter alia to Kawasaki Robotics (GmBH) (“Kawasaki”).
2.2 Kawasaki, a foreign company, has no offices in South Africa.
2.3 With effect from February 2019, the third respondent was employed
by the applicant, to be the sales representative of Kawasaki in South
Africa.
2.4 The applicant and the third respondent concluded a Confidentiality
and Non- Disclosure Agreement (the “confidentiality agreement”)
which prohibited the third respondent inter alia from making
unauthorised disclosures of confidential and sensitive information of
the applicant.
1
1 The confidentiality agreement does not purport to protect the sensitive or confidential
information of the applicant’s clients.
3
2.5 The managing director of the applicant , Mr Johann De Klerk (“De
Klerk”) is also the managing director of a company known as
Novitiate (Pty) Ltd (“Novitiate”). Novitiate provides training services to
Kawasaki in Gauteng. Novitiate is described as a sister company to
the applicant, but the relationship is not explained further.
2.6 A different company, Directech (“DT”) also provides training services
to Kawasaki , but it does so in Kwa- Zulu Natal . Third respondent’s
father, Mr Marius Grobler, worked for DT based at its offices in
Gauteng.
2.7 On 6 February 2019, Mr Marcus Bretschneider (“Bretschneider”)
emailed the third respondent and advised her that a potential client
had contacted Kawasaki and requested training. Bretschneider
asked the third respondent to consider where the training could be
done. The third respondent replied that the client was in Gauteng,
and the training should therefore be done in Gauteng, by Novitiate.
However, the following day, the third respondent sent the details of
the potential client to her father by WhatsApp messenger. Thereafter,
when De Klerk contacted the client , the client was no longer
contactable. The client required training for two individuals, priced at
R42 000, 00.
2 The applicant believed that, because the third
respondent shared information relating to the potential client with her
father, this business was lost.
2.8 Through DT, Kawasaki provides support services to Ford. However,
because the relationship soured, Kawasaki decided it would no
longer use DT to do so. During May 2019, emails were exchanged
between Kawasaki and Ford concerning this issue. Three of these
2 Record, transcript, pp 77 – 79
4
emails (two on 28 May 2019 and one on 29 May 2019) included the
third respondent as a recipient. In one of the emails, Kawasaki
indicated to Ford that DT has become aware that it may lose
business. In the email, Kawasaki indicates that it is concerned about
this because it wants to ensure a smooth transition for Ford.
2.9 As representative for Kawasaki, the third respondent was instructed
to attend the Africa Automation Fair (“AAF”), at the Dome
Conference Centre, on 4 June 2019.
2.10 On 4 June 2019, at approximately 13h14, De Klerk telephoned the
third respondent and enquired where she was. The third respondent
informed him that she was at the AAF . De Klerk noticed that there
was no background noise and became suspicious , because he
expected the AAF would be noisy. De Klerk tracked the third
respondent’s phone and discovered that, as at 13h41, she was at the
offices of DT in Kya Sand.
2.11 Following an investigation, the applicant discovered that the third
respondent had shared confidential and sensitive information with
DT, which she communicated to her father and the chief executive
officer of DT . The third respondent forwarded internal email
correspondence, to the CEO of DT, on 4 June 2019 at 12h35 and
again at 13h08. These emails had been exchanged between
Kawasaki and Ford. The emails included three attachments: (1) the
Ford – Kawasaki support agreement, (2) a letter dated 3 June 2019
from Kawasaki to Ford explaining that Novitiate would take over
maintenance and service for Ford, and (3) a list of spare parts that
Kawasaki recommended that Ford keep in stock.
5
2.12 The third respondent was charged with the following:
“2.1 Misconduct in that on 7 February 2019 you dispatched sensitive
and/or confidential information relating to our company and that of
Kawasaki Robotics via WhatsApp messenger to your father, Mr
Marius Grobler, currently employed with Directech, our direct
competition resulting in a breach of your confidentiality agreement
with us … attached hereto marked annexure “A”.
2.2 Misconduct in that on 4 June 2019 you provided / dispatched via
email correspondence, sensitive and/or confidential information
relating to our industry, our company and that of Kawasaki Robotics
to Mr Peter Erasmus, current CEO of our direct competition being
Directech resulting in a breach of your confidentiality agreement with
us … attached hereto marked annexure “B”.
2.3 Misconduct in that on 4 June 2019 you dispatched sensitive and/or
confidential information relating to our company and more specifically
Kawasaki Robotics via email correspondence to Mr Peter Erasmus,
current CEO of our direct competition being Directech resulting in a
breach of your confidentiality agreement with us … attached hereto
marked annexure “C”.
2.4 Dishonesty (Misconduct) in that on 4 June you were supposed to
attend to the Africa Automation Fair held at the Dome Conference
Centre as a representative of Kawasaki Robotics, but that you failed
(sic) proof your attendance, at the time you had to attend to the Africa
Automation Fair you were at the premises of our direct competition,
being Directech, and lied about your whereabouts, when questioned
by your employer, Mr Johann de Klerk and Mr Marcus Brets chneider
from Kawasaki Robotics Germany. …
6
2.5 Breakdown of trust and confidence in that you were dishonest about
your whereabouts as stipulated in charge 2.4 supra and due to your
alleged actions as contemplated in charges 2.1 to 2.3 supra.”
2.12 The chairperson of the disciplinary hearing found the third
respondent guilty of charges 2.1 to 2.4 and dismissed her. The third
respondent challenged the fairness of her dismissal at the
Commission for Conciliation, Mediation and Arbitration. Following the
arbitration, the commissioner found that the third respondent’s
dismissal was procedurally fair but substantively unfair. The third
respondent was awarded compensation equivalent to seven months
remuneration.
2.13 At arbitration, the applicant called three witnesses namely De Klerk,
Bretschneider and Ms L. Smit. Ms Smit had chaired the disciplinary
hearing and her evidence related to the procedural fairness of the
dismissal. De Klerk and Bretschneider both testified that , when the
relationship between Kawasaki and DT began to sour, an instruction
was issued to the third respondent that she was not to go to DT
without the prior authorisation of Bretschneider. De Klerk testified
that the third respondent did not attend the AAF and she instead
attended the offices of DT . The third respondent did not testify, nor
did she call any witnesses. Thus, the third respondent did not deny
disclosing sensitive and confidential information, nor did she deny not
attending the AAF while informing De Klerk that she had done so.
Legal principles
[3] In relation to awards of the CCMA, the test on review is settled. The court
is required to ask whether the “arbitration award [is] one which no
reasonable commissioner could reach on the material before him or
7
her?” The test is known as the ‘reasonableness test’ or the ‘ Sidumo test’
named after the case citation. 3
[4] As to what is reasonable, this is determined by the circumstances of
each case. In Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism and others
4 the Constitutional Court held:
“What will constitute a reasonable decision will depend on the
circumstances of each case, much as what will constitute a
fair procedure will depend on the circumstances of each case. Factors
relevant to determining whether a decision is reasonable or not will
include the nature of the decision, the identity and expertise of the
decision-maker, the range of factors relevant to the decision, the
reasons given for the decision, the nature of the competing interests
involved and the impact of the decision on the lives and well -being of
those affected. Although the review functions of the Court now have a
substantive as well as a procedural ingredient, the distinction between
appeals and reviews continues to be significant . The Court should take
care not to usurp the functions of administrative agencies. Its task is to
ensure that the decisions taken by administrative agencies fall within the
bounds of reasonableness as required by the Constitution.”
(own emphasis)
[5] The court on review need not consider every issue raised at arbitration.
Instead, the court must decide whether the commissioner considered the
principal issue before him/her ; evaluated the evidence presented, and
the outcome is reasonable.5
[6] Provided that the commissioner asks the right question, and applies his
mind to the issues, the award is not reviewable merely because the
outcome is incorrect. The court must guard against using the correctness
test in reviews, except where this is mandated by the nature of the
issue.6
3 Sidumo and another v Rustenburg Platinum Mines Ltd and others (2007) 28 ILJ 2405 (CC)
4 2004 (4) SA 490 (CC) at para [45]
4 2004 (4) SA 490 (CC) at para [45]
5 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others (2014) 35 ILJ 943 (LAC)
at paras [15] and [16]
6 Bestel v Astral Operations Ltd & others [2011] 2 BLLR 129 (LAC) at para [18]
8
[7] When applying the review test, the court follows a logical sequence.
7.1 First, it must be determined if there is a failure or error on the part of
the commissioner.
7.2 Second, where there are errors, it must be shown that, but for the
errors, the outcome would have been different. 7 Errors of fact, by
themselves, may not be sufficient to vitiate the award. What matters
is the materiality of the errors.
[8] Importantly, it is only where the award cannot be sustained on any of the
evidence properly before the commissioner that the review will succeed.
8
This principle is recognized in Sidumo at para 119.
[9] More recently, the Constitutional Court, in Vodacom (Pty) Ltd v Makate
and another9 (“Vodacom”) held as follows
“The duty of proper consideration is an integral component of the fair
hearing right. The founding constitutional value of the rule of law and
section 34 of the Bill of Rights require, in my view, that a court should
have regard to all material evidence and all material submissions
bearing on the issues it must decide. And the court must bring its
reasoning to bear on those material issues and reach a conclusion on
them. The evaluation of the evidence and reasoning may – as I say –
be erroneous, but there cannot be a fair hearing in compliance with the
7 Fidelity Cash Management Service (2008) 29 ILJ 964 (LAC) at para [ 96]; Head of the
Department of Education v Mofokeng and others [2015] 1 BLLR 50 (LAC) at paras [32] and [33]
8 Campbell Scientific Africa (Pty) Ltd v Simmers and others (2016) 37 ILJ 116 (LAC) at para
[32]; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and others (2015) 36 ILJ
1453 (LAC) at para [12]
9 (CCT 51/24) [2025] ZACC 13 (31 July 2025) at para [45]
9
rule of law and section 34 if proper consideration of the matter before
the court has not occurred.” (own emphasis)
[10] Given that the reasons given for the outcome acts as the first indication
of whether the evidence and submissions received proper consideration,
Vodacom held that:
“the reasons should deal with the substantial points which have been
raised; include findings on material questions of fact; refer to the
evidence or other material upon which those findings are based; and
provide an intelligible explanation of the process of reasoning that has
led the judge from the evidence to the findings and from the findings to
the ultimate conclusion
.”
Grounds of review and analysis
[11] The grounds of review, in the founding and supplementary affidavits ,
must now be considered. It is trite that heads of argument cannot
broaden the grounds of review, which appears from the pleadings.10
[12] The applicant submits that the commissioner committed a material
mistake of fact by finding that no instruction had been issued to third
respondent that she must not attend at DT (without the prior
authorisation of Bretschneider) . The commissioner found that it was
improbable that such an important instruction would not have been
recorded in writing. The applicant contends that the evidence of De Klerk
and Bretschneider was improperly rejected, and the commissioner ought
to have drawn an adverse inference from the third respondent’s failure to
testify.
10 CWU and others v SA Post Office Ltd and others (2013) 34 ILJ 626 at paras [35] and [39]
10
[13] In a civil case, the question is whether the plaintiff’s evidence is, on the
probabilities, correct. It is only where a consideration of the probabilities
fails to indicate where the truth probably lies, that the court need have
regard to an estimate of relative credibility (of witnesses) apart from the
probabilities.
11 Where the court has regard only to demeanour and not
the probabilities, this constitutes a misdirection. 12 There can be no doubt
that the probabilities must be assessed inter alia on all the relevant
evidence using a blend of common sense, logic and judicial experience.
[14] In this matter, the commissioner rejected the evidence of De Klerk and
Bretschneider (that an instruction had been issued) based only on the
fact that the instruction was not recorded in writing at the time it was
issued to the third respondent. Critically , the commissioner failed to
consider the presence or absence of reasons why the instruction was not
recorded in writing, nor did she consider that subsequent emails between
De Klerk and Bretschneider referred to such an instruction having been
issued. Nor does the commissioner consider that the third respondent
herself did not testify to deny the instruction. In the circumstances, the
commissioner failed to properly evaluate the uncontradicted evidence of
the applicant’s witness . Furthermore, the evidence should have been
evaluated against the probabilities , using all the evidence as the
measure. This failure constitutes a serious irregularity in the
commissioner’s assessment of the evidence.
[15] The applicant contends that the commissioner improperly rejected the
misconduct reflected in charges 2.1 to 2.3 solely on the basis that there
was no confidential or sensitive information disclosed to a competitor of
the applicant. The applicant argues that the commissioner should have
considered that the third respondent disclosed confidential and sensitive
information to a third party when this was impermissible. The
information to a third party when this was impermissible. The
11 National Employers General Insurance Co Ltd v Jagers 1984 (4) SA 437 (E) at 440 – 441
12 Body Corporate of Dumbarton Oaks v Faiga 1999 (1) SA 975 (SCA) at 979
11
commissioner should have considered whether the essence of charges
2.1 to 2.3 was proven. If the commissioner had properly considered the
evidence, it would have been clear that DT and Novitiate were
competitors for the training business of Kawasaki, and the provision of
support services to Ford.
[16] It is trite that an employer is not bound to the precise formulation of the
disciplinary charge.
13 What matters is whether the employee has notice
of the essential elements of the alleged misconduct and is not
prejudiced. In Woolworths (Pty) Ltd v Commission for Conciliation,
Mediation & Arbitration & others14 the LAC held:
“Unlike in criminal proceedings where it is said that 'the description of
any statutory offence in the words of the law creating the offence, or in
similar words, shall be sufficient', the misconduct charge on and for
which the employee was arraigned and convicted at the disciplinary
enquiry did not necessarily have to be strictly framed in accordance with
the wording of the relevant acts of misconduct as listed in the appellant's
disciplinary codes, referred to above. It was sufficient that the wording of
the misconduct alleged in the charge-sheet conformed, with sufficient
clarity so as to be understood by the employee, to the substance and
import of any one or more of the listed offences . After all, it is to be
borne in mind that misconduct charges in the workplace are generally
drafted by people who are not legally qualified and trained. In this regard
I refer to the work of Le Roux & Van Niekerk where the learned authors
offer a suitable example, with which I agree: 'Employers embarking on
disciplinary proceedings occasionally define the alleged misconduct
incorrectly. For example, an employee is charged with theft and the
evidence either at the disciplinary enquiry or during the industrial court
proceedings, establishes unauthorised possession of company property.
Here the rule appears to be that, provided a disciplinary rule has been
Here the rule appears to be that, provided a disciplinary rule has been
13 EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation & Arbitration & others (2019)
40 ILJ 2477 (LAC) paras [16] and [17]
14 (2011) 32 ILJ 2455 (LAC) at para [32]
12
contravened, that the employee knew that such conduct could be the
subject of disciplinary proceedings, and that he was not significantly
prejudiced by the incorrect characterization, discipline appropriate to
the offence found to have been committed may be imposed.'
(own emphasis)
[17] In this matter, the commissioner purported to hold the applicant to the
precise formulation of the charge. This was a misdirection on the facts,
one which had a profound impact on the outcome. In any event , the
commissioner misunderstood the essence of the charges in 2.1 to 2.3.
The essence of these charges was that the third respondent disclosed
information (of the applicant, and Kawasaki) which was sensitive or
confidential information to a third party, without authorisation. The
essence of charges 2.1 to 2.3 is that she “dispatched sensitive and/or
confidential information relating to the company and more specifically
Kawasaki Robotics…”. In the circumstances, the commissioner
committed a material misdirection on the facts, which affected the
outcome. In the absence of evidence by the third respondent, it is hard to
understand how the commissioner could have reached any conclusion
other than that the applicant had disclosed sensitive and confidential
information to a third party without authorisation.
[18] The applicant contends that the commissioner failed to properly consider
the evidence and a reasonable decisionmaker would have concluded
that the third respondent did not attend the AAF and lied about her
whereabouts.
15 The commissioner did not consider the evidence relating
to the charge and made no finding at all in relation to the charge. The
commissioner was duty bound to have regard to all material evidence
and all material submissions bearing on the issues she must decide. In
this instance, the commissioner did not do so. She simply did not decide
15 Pleadings, Supplementary Affidavit, para 15
13
an important issue in dispute. In the circumstances, the outcome is
unreasonable.
[19] The applicant contends that the commissioner unreasonably and
irrationally awarded the third respondent compensation equivalent to
seven months remuneration despite finding that the third respondent was
only employed for a period of six months.
[20] Compensation awarded must be just and equitable in all the
circumstances.
16 In assessing the amount of compensation, the arbitrator
must consider inter alia the extent of the loss, the nature of the unfair
dismissal, and the scope of the wrongful act on the part of the employer.
The purpose of compensation is to make good the employee’s loss and
not to punish the employer.
17 In this matter, the third respondent did not
testify. There was therefore no evidence before the commissioner as to
the extent of the loss. One of the circumstances, before the
commissioner, was the fact that the third respondent had been employed
for only six months. Thus, the award of compensation equal to seven
months was not just and equitable in all the circumstances. The
commissioner’s failure to take all the circumstances into consideration is
an error of law, which impacted on the outcome.
Remedy
[21] The arbitration award is one no reasonable decisionmaker could arrive at
on the evidence before the first respondent . It is apparent that the
commissioner failed to apply her mind to all the relevant evidence and
determine all the issues before her. The arbitration award falls to be
reviewed and set aside.
16 See section 194(1) of the LRA
17 Le Monde Luggage CC t/a Pakwells Petje v Dunn NO & others (2007) 28 ILJ 2238
(LAC) at para 30.
14
[22] The applicant has provided the court with a complete record of the
proceedings. The court is in as good a position to determine the dispute.
This is in the interests of justice, and the expeditious resolution of labour
disputes.
[23] In my view, the applicant has proven on a balance of probabilities that,
by disclosing sensitive and confidential information to a third party
without authorisation, the third respondent committed the misconduct
contemplated in charges 2.1 to 2.3. The uncontradicted evidence also
proved that the third respondent failed to attend the AAF and lied to her
manager that she had done so. This misconduct was serious and
destroyed the trust relationship. An adverse inference must be drawn
from the third respondent’s failure to testify , and the uncontradicted
evidence of the applicant must be accepted. In the circumstances, I find
that the dismissal of the third respondent was procedurally and
substantively fair.
Costs
[24] I see no reason in law and fairness to depart from the rule in this court
that costs do not follow the result. Accordingly, no costs order is made.
Conclusion
[25] The following order is made:
25.1 The arbitration award issued by the first respondent under CCMA
case number GATW11733-19 is reviewed and set aside,
25.2 The dismissal of the third respondent by the applicant was
procedurally and substantively fair,
15
25.3 There is no order as to costs.
RN Daniels
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Adv AJ Nel
Jordaan Smit Inc
For the Third Respondent
Adv T Lautré
Van Zyl Johnson Inc