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[2025] ZALCCT 100
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Koekemoer v Price Water House Coopers t/a PWC (Worcester) and Others (C575/23) [2025] ZALCCT 100 (9 October 2025)
FLYNOTES:
LABOUR
– Dismissal –
Gross
dishonesty
–
Fabrication
of audit documentation – Failure to complete a critical step
in audit procedure – Misconduct involved
deliberate
dishonesty in a profession that demands high ethical standards –
Decision not to suspend employee immediately
did not negate
breakdown in trust relationship – Potential reputational
harm to company – Conclusion that dismissal
was appropriate
supported by evidence – Application dismissed.
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No.: C575/23
In the matter between:
CARMEN
KOEKEMOER
Applicant
and
PRICEWATERHOUSECOOPERS
T/A PWC (WORCESTER)
First Respondent
THE COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
COMMISSIONER C JACOBS
N.O.
Third Respondent
Heard:
4 September 2025
Delivered:
9 October 2025
JUDGMENT
KAHANOVITZ, AJ
Introduction
[1]
This is an application to review and set aside an
arbitration award issued
on 2 October 2023
under case number WECT 2107-23 by the third respondent (hereafter
“the Commissioner”), which upheld
the fairness of the
applicant’s dismissal. This case turns on a decision about the
standard of honesty expected from a trainee
auditor.
[2]
For the review application to be heard by this
Court, it must first be reinstated.
[3]
There are, accordingly, two separate applications
before the Court. The first notice of motion seeks condonation and
reinstatement
of the review application (“the reinstatement
application”). The applicant seeks condonation for the late
service and
filing of the arbitration record, which was required to
be filed within 60 days of the date of receipt of the record.
Assuming
condonation is granted, the applicant seeks reinstatement of
the applicant’s review application, retrieval thereof from the
archive, as well as condonation of the late service and filing of the
applicant’s supplementary affidavit. This application
is
opposed by the first respondent.
[4]
The second notice of motion (“the review”)
- which is of course premised on reinstatement of the archived
application
- seeks review of the arbitration award made by the
Commissioner dated 29 September 2023, as well as remission for the
matter to
be reheard by a commissioner other than the third
respondent. In the alternative, the applicant seeks substitution of
the award
by the Court with a finding that the dismissal was
substantively and procedurally unfair.
Background to the
reinstatement application
[5]
Applicant
launched a review application within the prescribed six-week period.
In terms of this court’s then-Rules
[1]
and Practice Manual
[2]
, she was
required to obtain and file the record within 60 days. The 60-day
period expired on or about 6 March 2024.
[6]
The applicant failed to file the record by the
deadline, and the review application was accordingly deemed withdrawn
in terms of
clause 11.2.3 of the then-applicable Practice Manual. It
was consequently archived.
[7]
The applicant ultimately served and filed a
complete transcript and record on 7 August 2024. This was
approximately 104 days late.
The applicant’s supplementary
affidavit in the review, which was delivered together with the
record, was then also outside
of the period contemplated in the
Rules.
[8]
On 18 September 2024, the applicant launched an
application to reinstate the review seeking condonation.
[9]
The applicant describes the reasons for her
lateness under the following headings: ‘the enquiry launched by
the South African
Institute of Chartered Accountants (“SAICA”)
into the events which led to her dismissal’; ‘problems
encountered
during the festive season recess in obtaining and
transcribing the record due principally to deficiencies in the
material obtained
from the CCMA coupled with additional delays in
requiring the translation of a substantial part of the testimony
which was conducted
in Afrikaans into English’; and ‘personal
circumstances relating to a serious illness which befell the son of
the applicant’s
attorney during the relevant period’. The
applicant submits that she was actively engaged throughout the
relevant time period
in bringing her review to fruition and not
resting on her laurels. The applicant submits that she has accounted
for the entire
period of the delay.
[10]
Emphasis is laid by her on the prejudice that she
claims she would suffer were the court to decline to hear the review.
She submits
that she has good prospects in the main review.
[11]
Her heads of argument then, presumably on the
assumption that condonation and reinstatement are granted, make
submissions on what
are called the core grounds of review, that is,
the review grounds in the main application.
[12]
I will discuss these in due course.
[13]
The first respondent opposes the reinstatement
application firstly, because the applicant filed documents late on
multiple occasions
and in each case the period of delay is submitted
to be excessive, secondly it is submitted that she has failed to
provide a comprehensive
and reasonable explanation for the extensive
period of delay or for the entire period of delay, and furthermore,
that she has not
presented a sufficiently compelling case which would
entitle her to any relief. In other words, it submits she simply has
no prospects
of succeeding with the review application. Finally, it
is submitted by the first respondent that the interests of justice do
not
favour the granting of condonation in the light of the principles
of expedition and finality.
The law on
reinstatement of lapsed reviews
[14]
A
review application which is deemed withdrawn and archived is not
properly before court.
[3]
[15]
The
ordinary principles applicable to applications for condonation also
apply to reinstatement applications brought in consequence
of the
late filing of the record and review.
[4]
[16]
In
Madikizela
v CCMA and Others
[5]
,
it was
held that although an application for reinstatement need not show
excellent prospects of success, non-meritorious reviews
should not be
reinstated so as not to clog the court roll.
[17]
There is some debate in the cases as to how much
(or rather how little) needs to be said - and how strong the case
needs to be -
on the applicant’s prospects of success in the
review in a reinstatement application.
[18]
If one of the purposes of requiring a
reinstatement application is to gate-keep to curb the continuance of
unmeritorious reviews,
then it could hardly make much sense for the
court hearing the reinstatement application to be furnished with a
full record and
to hear full argument in the main review.
[19]
In this case, I have, however, been required to
read the full record and entertain full argument on the main review
before making
a decision on reinstatement.
[20]
I
asked the parties to make submissions on the approach that a court is
required to take in regard to the reinstatement application
if the
full review has itself has already been placed before the court and
argued.
[6]
[21]
In
Emfuleni
Local Municipality v SAMWU obo Mdluli and Others
[7]
,
the
parties agreed to have the reinstatement and review applications set
down simultaneously. The Court approached the matter by
first dealing
with and making a finding on the applicant’s reinstatement
application, whereafter the Court dealt with the
applicant’s
review application (in circumstances where the Court granted the
applicant’s reinstatement application).
[22]
The parties in this matter agree that the
following is the correct approach:
22.1
the Court must first deal with the applicant’s
reinstatement application and make a finding on it;
22.2
If the Court grants the reinstatement application,
then it must decide the review application;
22.3
if the Court dismisses the reinstatement
application, then that is the end of the matter, and the Court need
not decide the applicant’s
review application.
Discussion - The
merits of the reinstatement application
[23]
I am
satisfied that the reasons for delays briefly described above have
been satisfactorily explained. There seems to be little
doubt that
the applicant is committed to having her review heard. She has
certainly gone to considerable trouble and expense in
obtaining a
record, albeit that process has been bedevilled by a number of
hurdles.
[8]
[24]
I was satisfied that, for the purposes of the
reinstatement application, the applicant was able to show at least
prima facie
prospects
of success.
[25]
In the circumstances, the reinstatement of the
review is ordered, and I proceed now to decide the review
application.
Factual background
[26]
The Applicant, who earned a salary of R17 650.00
per month, was employed in terms of a Fixed-term Employment Contract:
Learnership,
which commenced on 1 January 2022 and would have
automatically terminated on 31 December 2024. She held the position
of a Trainee
Accountant /Associate in the respondent's Worcester
office.
[27]
The applicant was dismissed based on the following
charge: ‘
Gross dishonesty in that
during the period of July 2022 and August 2022 you made a false
statement / submitted a falsified document
/ gave false evidence by
deliberately not following the audit procedure to check EFT's and
marking the work as checked in the audit
file’.
The
applicant pleaded guilty to this charge at her disciplinary enquiry.
[28]
According to the first respondent's Disciplinary
Code, the sanction for deliberately attempting to mislead the
respondent through
misrepresentation of a fact, either verbally or in
writing, is dismissal on the first instance.
[29]
It is common cause that the applicant had in the
course of an audit failed to comply with step 4 of the "EFT
Test" which
required her to contact a beneficiary telephonically
to confirm the beneficiary’s banking details.
[30]
In respect of the relevant audits, the applicant
indicated in writing in her audit working papers that step 4 of the
"EFT Test"
had been
complied
with, whereas she had failed to perform step 4 of the "EFT Test"
by not contacting beneficiaries.
[31]
Ms. C. Darlew, a senior manager with the first
respondent, testified. She referred to an investigation report which
was compiled
following irregularities which were discovered.
[32]
The "EFT Testing Process" was put in
place following the discovery of a method of committing fraud, which
had previously
come to light, where a perpetrator would, for example,
obtain approval for a payment from a manager, in respect of
stationery bought
from, for example, Waltons. However, just before
making the payment, the perpetrator would change the banking details
to reflect
her own but still use "Waltons" as a reference.
On the bank statement, the word "Waltons" will appear, and
no one will know, should they only look at the face of the document,
that the payment was not made to Waltons but to the perpetrator
herself.
[33]
To address the above-mentioned type of fraud,
associates at the first respondent are required to perform the
following procedures,
termed the "EFT Test":
33.1
Make a selection of payments from the bank
statements;
33.2
Compare the payments to the beneficiaries’
banking details obtained from the beneficiary list obtained from the
banking system
with the proof of payment;
33.3
Obtain the correlating invoice and compare the
amount paid to the beneficiary’s banking details to that on the
invoice;
33.4
Contact the beneficiary telephonically to confirm
the beneficiary’s banking details.
[34]
Darlew testified that if a fraudulent payment has
been made, the associate will notice in step 3 that the banking
details according
to the invoice differ from the beneficiary's
banking details.
[35]
Darlew explained that phoning the beneficiaries is
a vital part of this test and sometimes the only way to truly ensure
the integrity
of payments made during the year.
[36]
The applicant had been coached on the EFT testing
process and thoroughly understood what was required of her. It came
to the attention
of the first respondent that there were two
instances or audits where the applicant appeared not to have properly
conducted the
EFT testing process. One is referred to in the evidence
as ‘Bossieveld Irrigation Board’ and the other as
‘Indawo’.
A review of the work which she had done on
these audits triggered suspicions and led to further investigations.
[37]
These
investigations revealed that the name of Minette Meiring cited in the
applicant’s working papers as the accountant of
“Van
Deventer Meganies” was a fictitious entry.
[9]
Darlew then adopted the view that the applicant could no longer be
trusted: the purpose of an audit is to determine whether there
have
been any misrepresentations, and an employee herself guilty of
misrepresentation could not be trusted to conduct an audit.
[38]
At the time of these revelations, the applicant
was working on the Kannaland municipality audit. Mr. M Van Tonder, a
partner with
the first respondent, testified that the profession
stands for ethical, qualitative and honest interaction with clients.
He said
that retaining the applicant after proof of her misconduct
created the potential for reputational damage and litigation against
the first respondent. Apart from not doing the required work, the
applicant had falsified the documents to create the false impression
that the work had indeed been done as was required.
[39]
When the applicant was confronted by her employer
about the misconduct, she agreed that the information gathered by her
employer
about her conduct was accurate. She also acknowledged that
she had been in the wrong.
The arbitrator’s
award
[40]
The arbitrator said that the applicant contended
that her guilty plea on the charge of dishonesty was only because she
‘felt
guilty’ and knew the charges had something to do
with her failure to check the EFT payments. She acknowledged that in
certain
instances she had failed to phone the required people while
implying in her working papers that she had done so. She had,
however,
been very remorseful, and by allowing her to continue on the
Kannaland audit, she had been misled by the first respondent, having
been brought under the impression that if she worked hard and showed
her willingness to work overtime, she would be offered a second
chance and not dismissed. She denied that any stricter measures were
implemented related to her reporting lines while she was working
on
the Kannaland audit. The notice of dismissal was the worst day of her
life.
[41]
The arbitrator said that he understood the case of
the applicant to be that the sanction of dismissal was too harsh and
should have
been substituted with a sanction short of dismissal. The
applicant had argued that it cannot be said that the trust
relationship
was broken, considering: (1) The applicant was not
suspended; (2) The delay in prosecuting the matter; and (3) The fact
that the
applicant was tasked to work on the respondent's biggest
audit (Kannaland Municipality) and dismissed the day after her work
was
done. It was alleged in the arbitration that the first respondent
failed properly to consider the applicant’s remorse and
acknowledgement of guilt in imposing the sanction. The question that
naturally arises from these facts, submitted the applicant,
is why,
if the conduct was so serious, the respondent took two months to
charge her and another month to dismiss.
[42]
It was also contended by the applicant that the
trust relationship cannot be said to have been irreparably tarnished,
and this she
said was used as a smokescreen to justify the dismissal.
The applicant was not suspended and had rendered ‘trouble-free’
service for almost two and a half months before her dismissal. She
also contended that an unreasonable delay took place in prosecuting
the matter, and the applicant was severely prejudiced because of the
delay, as she truly believed that she was going to get a second
chance by being allowed to continue working.
[43]
The employer, she argued, failed to consider that
she had readily admitted guilt the moment she was confronted with her
actions
- and throughout the proceedings - she was thus extremely
remorseful. It is imperative for a presiding officer to consider this
aspect when imposing a sanction. Ahe also argued that at no stage was
she aware of the details of the allegations levelled against
her. The
applicant, accepting that she did ‘something’ wrong, and
wanting to proverbially ‘put her best foot
forward’,
merely pleaded guilty as she knew in her own mind what she did was
wrong.
[44]
It is for these reasons that the employee argued
in the arbitration that a finding should be made that the sanction of
dismissal
was too harsh, and the respondent failed to discharge the
onus it bore to prove that the sanction of dismissal was appropriate.
[45]
The applicant acknowledged during
cross-examination that she was dishonest by not doing the required
EFT checks during July and
August 2022 relating to Bossieveld
Irrigation Board and lmdawo, and that her submissions in this regard
on her working papers were
false.
[46]
The arbitrator found that it appears, on a balance
of probabilities, that the applicant acted with intent to deceive,
which is illustrated
by her reference to her Facebook friend Minette
Meiring as the (fictional) accountant who was phoned at Van Deventer
Meganies,
whilst this is not the case. In this regard, the arbitrator
says he also took into consideration Van Tonder's contention that,
over and above not doing the required work, the applicant also had
the intention to falsely document the work to create the impression
that it was completed as required, whilst this was not the case. The
first respondent, therefore, proved that the applicant had
made
herself guilty of gross dishonesty as charged
[47]
On the retention of services between the discovery
of her dishonesty and her dismissal, it was argued that the failure
of the employer
to place the applicant on suspension created an
expectation that the trust relationship still existed. At the time of
the discovery
of the dishonesty, she was working on the Kannaland
audit. This was a large audit which had been in progress for some
time, and
the employer took the view that, from an operational point
of view, it could not immediately remove her from that audit.
Instead,
what it did was to inform her managers in that audit about
what had happened. They instructed the managers to keep it
confidential
and to ensure that her work was double-checked. Had this
not been done, they would not have been in a position to sign off on
the
work that she had done in the course of that audit within the
required time framework.
[48]
The
arbitrator found that the nature of the offence indicates the trust
relationship is broken beyond repair. Referring to the decision
in
Autozone
v Dispute Resolution Centre of Motor Industry and others,
[10]
the arbitrator found that in the case of dishonest conduct, retention
presents operational difficulty as the employer will be hard
pressed
to place trust in such an employee. Not only has she committed gross
misconduct, but the nature of it is in conflict with
the interests of
the employer, which is mandated to root out discrepancies rather than
cause them. The Commissioner found that
dismissal was accordingly an
appropriate sanction.
Sanction-related
review grounds
[49]
There are several review grounds advanced in
support of the conclusion that the decision on sanction was
reviewable. I will for
the sake of convenience deal with all of them
together, although some seem to have been advanced as distinct
grounds of review.
(“Sanction-related review grounds.”)
[50]
As the applicant pleaded guilty, it was obviously
not argued that the finding of misconduct was in and of itself
reviewable. The
focus of the attack was on the decision that
dismissal was the appropriate sanction.
[51]
The applicant argues that the Commissioner failed
to give proper weight to her remorse and plea of guilty. It was
contended that
her demonstration of genuine remorse was not given any
meaningful weight by the arbitrator.
[52]
This alleged misdirection is then linked to the
alleged further misdirection of an unduly harsh and disproportionate
sanction.
[53]
The
first respondent argues that once dishonesty is established,
dismissal is usually an appropriate sanction. Arbitrators have
a wide
discretion when determining the fairness of the sanction, and as long
as the outcome falls in the range of reasonable outcomes,
it must be
found to be rational.
[11]
[54]
Aggravating
factors need to be weighed up against mitigating factors. Both
parties referred this court to the decision in
Hullet
Aluminum (Pty) Ltd v Bargaining Council for the Metal Industry and
others,
[12]
with particular reference being placed
by
the first respondent on the following passages:
‘
[42]
Turning
to the issue of the seriousness of the offence, the presence of
dishonesty tilts the scales to an extent that even the strongest
mitigating factors, like long service and a clean record of
discipline are likely to have minimal impact on the sanction to be
imposed. In other words whatever the amount of mitigation, the
relationship is unlikely to be restored once dishonesty has been
established in particular in a case where the employee shows no
remorse. The reason for this is that there is a high premium placed
on honesty because conduct that involves corruption by the employees
damages the trust relationship which underpins the essence
of the
employment relationship. In this regard the Court in
Sappi
Novaboard (PTY) Ltd v Bolliers
(1998)
19 ILJ 784 (LAC), held that:
“
In
employment law a premium is placed on honesty because conduct
involving moral turpitude by employees damages the trust relationship
on which the contract is founded.”
[43]
The same approach was adopted in the case of
Standard Bank of SA v
CCMA and Others
(1998) 19 ILJ 903, where the court held that
dishonesty in general renders the employment relationship intolerable
and incapable
of restitution. See also
Central News Agency v
CACWUSA & Another
(1991) 12 ILJ 343 (LAC) and
Toyota South
Africa Motor (Pty) Ltd v Radebe & Others
(2000) 21 ILJ
340(LAC).’
[55]
First respondent adds that the profession of
auditing places an extremely high bar on honesty, and evidence was
led that there had
been a breakdown in the trust relationship.
[56]
In my view, it stands to reason that firms
involved in the auditing profession are entitled to insist on high
standards of probity
and honesty from their professional staff. They
can hardly hold out to their clients that books of account have been
properly audited
if they cannot accept that their own professional
staff will diligently and honestly carry out an audit in a manner
consistent
with the standards and rules set by their employers. The
auditing practice in question was implemented to uncover dishonesty,
and
if that practice is itself conducted in a dishonest manner by an
auditor (or a learner auditor), the possible reputational damage
to
the firm in question is unquestionable. Clients would then expect the
firm in question to react accordingly.
[57]
The
decision on sanction accordingly falls within the range of reasonable
outcomes.
[13]
The relevance of the
evidence before the Commissioner to the effect that the applicant
continued working post her admission without
suspension (and
therefore how one could still conclude that there was a
breakdown in the trust relationship)
[58]
I have already canvassed the employer’s
evidence about why, in its view, there was a breakdown in the trust
relationship.
The applicant, however, argues that there was in truth
no breakdown in the trust relationship if one has regard to the
conduct
of the employer after it discovered the alleged dishonesty of
the applicant. If it was genuinely of the view that she could not
be
trusted, why did it fail to immediately suspend her and instead
decide to keep her working on the Kannaland audit?
[59]
The arbitrator found that sufficient reasons were
given by the arbitrator for his failure to suspend her. The employer
argued that
keeping her on temporarily posed no risk of tampering
with the evidence by her and that the extra supervision put in place
on her
work on the Kannaland audit sufficiently mitigated any risks
in respect of that audit. Because of the supervision, immediate
suspension
was not operationally required.
[60]
It seems to me that, at best, a criticism of the
employer could be that, due to its professional duty to complete the
Kannaland
audit timeously, it took a decision not to immediately
suspend the applicant. But, as the arbitrator pointed out, the
employer
has adequately explained why it acted in the manner in which
it did. It did not fail to suspend because it had concluded that
there
was no breakdown in the relationship of trust. There is, of
course, no legal obligation placed on an employer to inevitably place
an employee on suspension pending the outcome of a hearing. It so
happened that on these facts, the employer decided that doing
so
would be operationally detrimental, as it could, in either event,
manage the risk of keeping her on for the brief extra period
that
would be required.
Inconsistency
[61]
No
evidence was produced of any comparable misconduct committed by any
other employee. So, the question of unfair and inconsistent
treatment
did not arise.
[14]
Commissioner
failed to apply the principle of progressive discipline
.
[62]
If dismissal - as has been found - was a rational
outcome, then it cannot be that a failure to issue a final warning
instead of
dismissing is grossly unreasonable
Vagueness and
ambiguity of the charge
[63]
Here, the allegation is that the charge sheet
failed to clearly particularise the misconduct, yet the Commissioner
found it adequate.
[64]
As the Commissioner pointed out in his finding,
the applicant had pleaded guilty. It had never been contended by her
that because
she had difficulty in understanding what was being
alleged, nor that she had difficulty in mounting a defence. If I
understand
the argument properly, it is that she did not understand
that a guilty plea was going to be relied on to sustain a conclusion
of
dishonesty and not merely a conclusion of failure to follow the
prescribed procedure.
[65]
It appears to me that the conclusions relating to
dishonesty were largely based on the evidence of the employer’s
witnesses.
[66]
In
either event, the charges were hardly complicated. They are related
to a confined set of facts and a concise set of allegations.
Avril
Elizabeth Home for the Mentally Handicapped v Commission for
Conciliation Mediation and Arbitration and Others
[15]
holds that all that is required is that the employee must understand
what is being alleged, and a charge sheet adhering to the
criminal
standards is not required. An investigation report was also compiled
by the employer, which contained all the information
relating to the
various clients and what she had allegedly done wrong. This report
was made available to the applicant and was
also read into the record
at the disciplinary hearing. The arbitrator found that she was
therefore sufficiently informed of the
information that she required
for the purposes of the disciplinary enquiry. She was also given the
opportunity to state a case,
cross-examine witnesses, call her own
witness and be represented.
[67]
This ground of review accordingly fails.
Lack of evidence of
dishonesty
[68]
The applicant submits that the evidence revealed a
shortcoming as no fraud or dishonest manipulation on the part of the
applicant
was proved. The applicant acknowledged during
cross-examination that she was dishonest by trying to cover up her
failure to complete
the required EFT tests. I accordingly fail to
understand how it can be submitted that the arbitrator was not
entitled to conclude
that she was guilty of dishonesty.
[69]
I accept it can be argued that the kind of
dishonesty here involved is possibly not the same as, or as serious
as, for example,
theft or fraud for material gain - but proof of
misconduct of that nature was neither required nor the measure.
[70]
The applicant can possibly consider herself
fortunate that her career as an accountant did reach an abrupt end in
consequence of
her misconduct. She subsequently obtained employment
at a different accounting firm, and the accounting body concluded
that, insofar
as its disciplinary procedures were concerned, the
appropriate sanction was a reprimand and a longer training contract
than would
otherwise have been the case.
[71]
As far as cost is concerned, I am mindful of the
principle that in this court there is no rule that costs should
follow the result.
I am indeed of the view that litigating beyond the
CCMA outcome was ill considered on these facts and in fairness the
employer
should not been put to the trouble and no doubt considerable
expense of defending itself. On the other hand, given the vast
economic
differences between the parties it would not be fair to
order the applicant to pay the first respondent’s costs. In the
circumstances
I make no order as to costs.
[72]
I accordingly make the following orders:
Order
1.
The application for the reinstatement of the
review is granted;
2.
The application for a review of the Commissioner’s
decision is dismissed;
3.
There is no order as to costs.
C Kahanovitz
Acting Judge of the
Labour Court of South Africa
Appearances:
For the
Applicant:
Adv M. Du Plessis
Instructed
by:
Mr. PJ Strydom, PJS Inc. Attorneys
For the First
Respondent: M.Balie, Norton Rose Fulbright Attorneys
South Africa Inc
[1]
GN
1665 of 1996: Rules Regulating the Conduct of Proceedings in the
Labour Court (repealed, effective 17 July 2024).
[2]
Practice
Manual of the Labour Court of South Africa, 2013 (repealed,
effective 17 July 2024).
[3]
Stilhoek
Boerderey (Pty) Ltd v Botha and Others
(JR
1785/19) [2023] ZALCJHB 34 (1 March 2023) at para 5 provides that:
‘
It
is by now settled law that this Court lacks jurisdiction to
entertain a deemed withdrawn and/or lapsed review. In order for
this
Court to regain the jurisdictional power, an application to
reinstate must be launched. It has been authoritatively held
that an
application of this nature is effectively an application to condone
the non-compliance. It is trite that condonation
is not there for
the taking. An applicant for condonation is compelled to explain
each and every day of the delay. In casu, Stilhoek
was obliged to
bring a reinstatement application after August 2020 when the
application acquired a status of being deemed withdrawn.
It is trite
principle that a party seeking condonation must do so immediately
after the need to do so arise. The need arose in
August 2020,
however instead of approaching this Court for an indulgence,
Stilhoek busied itself with regularizing the record.
This was an
exercise in futility because there was no more a review
application.’
[4]
MJRM
Transport Services CC v Commission for Conciliation, Mediation and
Arbitration and Others
(2017)
38 ILJ 414 (LC) at para 22.
[5]
(D382/22)
[2024] ZALCD 42 (7 November 2024) at para 27.
[6]
I
would not encourage registrars to permit parties to place the full
review record before a court required only to decide on
reinstatement. It puts the cart before the horse as it obliges
additional precious judicial resources to be devoted to wading
through a record in what may prove to be an unmeritorious review.
[7]
(JR2106/19)
[2025] ZALCJHB 172 (5 May 2025).
[8]
It remains an open
question as to whether or not an applicant involved in proceedings
that were conducted in Afrikaans is required
to obtain a translation
of those proceedings into English prior to filing the record in the
Labour Court. The translation process
is expensive and
time-consuming. As it turns out, in these proceedings, the
translation was obtained and so is not necessary
for this Court to
decide whether the applicant was indeed required to take these
steps. She complains that the first respondent
required her to
obtain a translation in circumstances where there is nothing in the
Rules or Practice Manual that makes this
a requirement. The
applicant contends that she only decided to translate the record to
prevent this `translation dispute’
between the parties from
further delaying the proceedings.
[9]
Meiring
was a Facebook friend of the applicant. Applicant claimed to have
contacted Meiring to confirm her banking details instead
of
contacting the person she was actually required to contact as part
of the EFT procedure. Instead of contacting the beneficiary
she
merely inserted Meiring’s name to create a paper trail which
on the face of it created the impression that the procedure
had
indeed been properly implemented.
[10]
(2019)
40 ILJ 1501 (LAC).
[11]
Citing
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007)
28 ILJ 2405 (CC) at para 119. It will be recalled that the focus of
Sidumo
was
the decision by an arbitrator on sanction. All of the separate
decisions handed down in the CC are unanimous that, in deciding
a
dismissal dispute, a commissioner is not required to defer to the
decision of the employer. The commissioner is, however, not
given
the power to consider afresh what he or she would do but to decide
whether what the employer did was fair. In reaching
a decision, the
commissioner must have regard to all relevant circumstances.
[12]
(2008)
29 ILJ 1180 (LC).
[13]
The
South African Institute of Chartered Accountants (SAICA)
Professional Conduct Committee, in separate proceedings dealing with
the same conduct as that under scrutiny in arbitration, concluded
that the applicant was guilty of dishonest conduct and imposed
a
sanction of
inter
alia
a
reprimand, 12 months added to any subsequent training contract and
attendance at an ethics course.
[14]
If I
understand the argument correctly it was also that the employer was
less strenuous in some other cases in the policing of
any failure to
telephonically confirm banking details. To me it appears as if the
employer viewed more seriously the dishonest
attempt to cover up the
failure to telephonically confirm bank details, than simply the
question of her failure to confirm banking
details. A negligent
falute to do this will obviously be treated differently to a
deliberate decision to not do so coupled with
accompanying
subterfuge.
[15]
(2006)
27 ILJ 1644 (LC). All that would be required is notification to the
employee of any allegations that may flow from an investigation.