IN THE LABOUR COURT OF SOUTH AFRICA
(HELD IN JOHANNESBURG)
Case no: JR 1939/22
Not Reportable
In the matter between:
PRIME SPOT TRADING 23 (PTY) LTD T/A
MANNY’S HARDWARE Applicant
and
CCMA First Respondent
COMMISSIONER D E MATLALTLE N.O. Second Respondent
SOLLY SERAKE SEKOATI Third Respondent
Heard: 10 June 2025
Judgment delivered: 2 October 2025
JUDGMENT
WHITCHER J
[1] This is a review application in terms of section 145 of the Labour Relations Act,
1995 to have reviewed and set aside the following arbitration award: The award
reads as follows:
The dismissal of [Mr Sekoati] is found to be procedurally fair but substantively unfair.
The [company] is ordered to back pay [Mr Sekoati] from the date of his dismissal (i.e.
1 March 2022).
The [company] is further ordered to reinstate [Mr Sekoati] to his position on the same
terms and conditions that were applicable at the time of his dismissal with effect from
15 August 2022.
[2] I agree with the applicant’s main pleaded ground of review 1 that the
commissioner failed to appreciate that the real issue before him was whether
Mr Sekoati had been dismissed by the applicant and that the evidence adduced
demonstrated that there had been no ‘dismissal’ as defined by section 186 (1)
of the LRA. Accordingly, t he CCMA thus lacked jurisdiction to entertain Mr
Sekpati’s claim of dismissal.
The real issue before the commissioner
[3] In his opening address at the arbitration, Mr Sekoati stated that he was
dismissed:
I was questioning about the shortage of my salary …I did not get help from the
supervisor whom I was asking for help from. I therefore looked for one of the
managers to help. According to the company I was wrong for going to a
certain manager looking for help. Those are the reasons for my dismissal.
[4] The applicant’s representative, however, in his opening address pointed out
that Mr Sekoati had claimed in his referral that he had been constructively
dismissed.
[5] More crucially, in the opening address and again in the narrowing of issues, the
applicant’s representative indicated that the applicant’s case was that Mr
Sekoati had not been dismissed.
[6] Following a disciplinary enquiry at work, Mr Sekoati was found guilty of
misconduct (not for the reasons claimed by Mr Sekoati) and handed a written
disciplinary outcome which stated in bold:
As an alternative to dismissal, the period of the defendant’s suspension will be
unpaid. The defendant is to resume his duties on the 01-03-22.
1 Founding and supplementary affidavit.
[7] Mr Sekoati rejected the sanction of suspension without pay , left the workplace
and did not return on 1 March 2022.
There was no dismissal
[8] The following extracts from the record of evidence establish that Mr Sekoati
had not been dismissed, a fact the commissioner himself appreciated during
the proceedings.
[9] A witness for the applicant, Mr Lucas testified that he delivered the written
disciplinary outcome to Mr Sekoati, which document stated in bold:
As an alternative to dismissal, the period of the defendant’s suspension will be
unpaid. The defendant is to resume his duties on the 01-03-22.
[10] At the bottom end of the document , he inserted a signed handwritten note
which reads:
Solly decided not or to reject the alternative to dismissal and opted to be dismissed
and have his suspension paid.
Cross examination of Mr Lucas
[11] Mr Sekoati: What you wrote here is not what I told you. It’s what you wrote because
you said to me if don’t opt for suspension without pay, then it means I opt for dismissal.
[12] Lucas: It’s a blatant lie what he’s saying. You are now lying. I’m sorry to say that
straight. He is lying.
Mr Sekoati’s testimony
[13] Mr Sekoati: They gave me a letter of choice. He produced this letter where he made
me choose whether I’m going back to work without pay or I choose to be dismissed.
[14] Applicant’s Rep: Clearly the chairperson in his ruling, he did not make a ruling that you
must be dismissed. Do you agree with me?
[15] Mr Sekoati: [Inaudible]
[16] No, my question is clear . The chairperson never made a decision that you should be
dismissed.
[17] Mr Sekoati: The decision that was given to me told me that I’m dismissed
[18] Commissioner: Agree you were given this document, yes?
[19] Mr Sekoati: [mother tongue]
[20] Commissioner: No, you were given this document?
[21] Mr Sekoati: Hm
[22] Commissioner: This decision that was communicated to you by Willem, it does not say
that you were dismissed.
[23] Mr Sekoati: [mother tongue]
[24] Commissioner: Now, can you explain to me how come you said you were dismissed
whereas clearly this document does not say you were dismissed. You can only be
dismissed if you don’t report for work.
[25] Mr Sekoati: [mother tongue]
[26] Commissioner: Huh-uh, now you are giving a new testimony now. What I’m saying that
this decision on itself, agree, they gave you this document. It ’s clear they gave you this
document and you read it, ne?
[27] Mr Sekoati: Yes
[28] Commissioner: Did you read it?
[29] Mr Sekoati: Yes
[30] Commissioner: Yes, now this document does not say that they are dismissing you.
They said your punishment is suspension which is unpaid. So , this document was
never saying that. So where do I get this thing that you are dismissed?
[31] Mr Sekoati: [mother tongue]
[32] Commissioner: This whole document, they gave it to you, and it never said you are
dismissed?
[33] Mr Sekoati: Maybe I don’t understand this document.
[34] Commissioner: It says “ as an alternative to dismissal, the period of the defendant’s
suspension will be unpaid. The defendant is to resume his duties on the 01-03-22”, so
they never said you are dismissed. So where did you get that?
[35] Mr Sekoati: [mother tongue]
[36] Commissioner: Hu-uh no man. You don’t argue with me. I’m saying this document
does not say that: If you are dismissed, they cannot say come to duties on the 1 st
[March]?
[37] Mr Sekoati: [mother tongue]
[38] Commissioner: Mr Sekoati, this document they give you the outcome on the 28 th and
then it says that your punishment is…suspension without pay…Now, it does not say
you are dismissed, and it makes clear that come to work on the 1 st? So, and then from
there Willem was here. He said when he gave you this document which you received
then you are the one who chose [inaudible]. Now, can you try to convince me as to
why I should come to the decision that it was the employer’s choice and not yours to
say I’m not going to work?
[39] Mr Sekoati: [mother tongue]
[40] Commissioner: No…This document never said that you are dismissed. It said, come to
work on the 1 st of March. Did you go to work on the 1 st of March? Clearly you didn’t,
isn’t it?
[41] …
[42] Mr Sekoati: [mother tongue]
[43] Commissioner: Then you agree you did not go to work on the 1st?
[44] Mr Sekoati: [mother tongue]
[45] Commissioner: …It’s written that go to work on the day. The defendant is to resume
duties on the 1st of March 2022. It’s clear, in bold.
[46] Commissioner: No, don’t argue with me. Convince me to say that…The chairperson
never dismissed you. The message that came to you never said you are dismissed. It
says come to work. Now, you did not come to work.
[47] Mr Sekoati: [mother tongue]
[48] Commissioner: No man, don’t. The money, the shortage of money we dealt
with…Here the dispute before me is not the shortage of money. I understand it is the
one which gave rise to this. But the [inaudible] must decide whether …Now here I
realised that they never said you are dismissed.
[49] The above exchanges reveal that Mr Lucas testimony was not undermined in
any manner. According to his testimony, Mr Sekoati said he chooses dismissal.
In other words, Mr Sekoati chose to terminate his employment.
[50] But more crucially, when confronted with documentary evidence that he had not
been dismissed and that in fact he chose to leave work and not return to work
been dismissed and that in fact he chose to leave work and not return to work
on 1 March 2022 as directed by the disciplinary outcome, Mr Sekoati became
unresponsive and evasive. It is notable that he initially chose to classify his
case as constructive dismissal , probably bearing in mind that he terminated
employment.
[51] For all the reasons supra, there was no ‘dismissal’ as defined by section 186
(1) of the LRA. Accordingly, the CCMA thus lacked jurisdiction to entertain Mr
Sekpati’s claim of dismissal.
[52] As to costs, the requirements of the law and fairness are best satisfied by each
party bearing its own costs.
I make the following order:
1. The arbitration award of the second respondent issued by the first
respondent under case number GAEK3026- 22 on 26 July 2022 is set
aside and substituted with the following order:
The applicant’s [third respondent’s] claim is dismissed.
2. There is no order as to costs.
________________________________
Benita Whitcher
Judge of the Labour Court of South Africa
APPEARANCES:
For the Applicant: L.P. Hutchinson, instructed by Soldatos Cooper
Inc
For the Third Respondent: D Somo, Legal Aid
Ari.soldatos@sciattorneys.co.za
ElizabethM2@legal-aid.co.za
Donalds@legal-aid.co.za