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[2025] ZALCPE 21
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Netcowave (Pty) Ltd ta Vincent Park Convenience Centre v Dispute Resolution Centre and Others (PR117/23) [2025] ZALCPE 21 (13 October 2025)
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THE
LABOUR COURT OF SOUTH AFRICA, QGHEBERHA
Not
reportable
Case
no: PR117/ 2023
In
the matter between:
NETCOWAVE(Pty)
Ltd t/a VINCENT PARK
CONVENIENCE
CENTRE
Applicant
THE
DISPUTE RESOLUTION CENTRE
First Respondent
COMMISSIONER
CWILLOWS
N.O
Second Respondent
NUMSA
obo MELIKHAYA SONGELWA & SIX OTHERS
Third Respondent
Heard:
20 November 2024
Delivered:
13 October 2025
(This
judgment was handed down electronically by emailing a copy to the
parties. The 13 October 2025 is deemed to be the date of
delivery of
this judgment).
JUDGMENT
MAHALELO,
AJ
[1]
This is an application brought in terms of section 145 of the Labour
Relations Act
[1]
(LRA) to review
and set aside an arbitration award issued by the second respondent
(the arbitrator), under the auspices of the
first respondent (the
Dispute Resolution Centre), dated 8 June 2023 under case reference
number MICT 34464, where the arbitrator
found that the employees
represented by their union were dismissed from the applicant’s
employ unfairly on the grounds of
misconduct. The arbitrator found
their dismissal to be substantively unfair.
[2]
The application seeks to have the award reviewed, set aside and
substituted with an order that the dismissal of
the applicants was
substantively fair. The application is opposed by the third
respondent.
Material
Evidence and Chronology of Facts
[3]
Material facts can be summarised as follows:
[4]
The applicant employed the individual respondents (employees) as
petrol attendants until their dismissals on 25
October 2022 and 14
November 2022. At the time of dismissal, the employees were each
earning R1746.45 per week. The employees were
charged with misconduct
arising from incidents that took place on 8, 16, and 17 October 2022.
The specific allegations of misconduct
which led to their dismissal
are:
“
Melikhaya Songelwa
“Fraud and/or dishonesty in that on 16 October 2022 you filled
containers with diesel amounting to R36
456.00 and swiped the
customer’s fleet card twice when you are aware that you cannot
swipe a fleet card for filling, containers,
and you impute an
odometer reading of 207 877.”
Moses Lokhwe “
Fraud and/or dishonesty in that on the 17 October 2022 you filled
containers with diesel amounting to R36 456
00 and swiped the
customer’s fleet cards twice you are aware that you
cannot swipe a fleet card for filling containers
and you input an
odometer reading of 208169, and Fraud and or dishonesty in that on
the 17 October 2022 you wrote the incorrect
registration numbers of a
vehicle in which you filled diesel in containers thereby giving the
company false information.”
Sipho Mgwenyane: “Fraud
and /or dishonesty in that on the 8 October 2022 you filled
containers with diesel amounting to R
18 288.00 and swiped the
customer's fleet card for filling containers when you are aware that
you cannot swipe a fleet card for
filling containers and you input an
odometer reading of 25195.”
Sithembiso Sineyile:
“Fraud and /or dishonesty in that on the 8 October 2022 you
filled containers with diesel amounting to
R 26 040.00 and swiped the
customer's fleet card for R 18 288.00 and customer paid the balance
in cash without reporting to management
for bank authorization when
you are aware that you cannot swipe a fleet card for filling
containers and you input the odometer
reading of 25 051.
Vusumuzi Khula: “Fraud
and/or dishonesty in that on 17 October 2022 you filled containers
with diesel amounting to. R15000.
00 and R 18 288. 00 and swiped the
customer's fleet card when you are aware that you cannot swipe a
fleet card for filling containers
and you input an odometer reading
of 208158 on both occasions, and fraud in that on the 17 October 2022
you filled diesel in containers
for a vehicle with registration
numbers K[...] for an amount of R 15 000.00 and R 18 288.00 but
swiped different fleet cards for
each transaction and you input
odometer reading of 208 158 for both transactions.”
Zanethemba Ngcala: “Fraud
and/or dishonesty in that on 8 October 2022 you filled containers
with diesel amounting to R26 040.00
using someone else's tag and
swiped the customer's fleet card for R 18 288.00 and customer paid
the balance in cash without reporting
to management for bank
authorization when you are aware that you cannot swipe a fleet card
for filling containers and you input
the odometer reading of 25 051,
and dishonesty in that on the 8th of October 2022 you filled diesel
in containers using someone
else's tag without authorization from
management, when your own tag was with you and in working condition.”
Mthandazo Qase: “Fraud
and/or dishonesty in that on 16 October 2022 you filled containers
with diesel amounting to R 15 000.00
and swiped the customer's fleet
card when you are aware that you cannot swipe a fleet card for
filling containers and you input
an odometer reading of 207926.”
[5]
Following the disciplinary hearing, the employees were found guilty,
and a sanction of dismissal was imposed on
them.
[6]
Aggrieved by the applicant’s decision to dismiss them, they
referred a dispute of unfair dismissal to the
Dispute Resolution
Centre (DRC). The dispute was conciliated unsuccessfully and was
referred to arbitration.
The
Arbitration Award
[7]
The issue before the arbitrator was whether the employees’
dismissal was substantively unfair. At the arbitration,
the applicant
called Ms Tembela Dlokweni as a witness. She identified herself as a
director of the applicant. She testified that
the employees were
dismissed for dishonesty and fraud because they dispensed fuel into
containers and permitted payment with fleet
cards when they knew that
they are not allowed to do so. Standard and First National Banks
subsequently reversed the transactions,
and the applicant suffered a
total loss of approximately R150 000. All petrol attendants were
trained in the different methods
of effecting payment. A fleet card
is issued in respect of a particular vehicle, model, and make, and
requires the petrol attendant
to capture the odometer reading of that
vehicle and to put it on the speed point. On all the occasions in
question, the employees
filled containers with diesel and permitted
payment to be made with the fleet cards. She further stated that all
petrol attendants
were issued a tag at the start of each shift. Tags
cannot be swapped between employees without prior authorization,
because this
contaminates the system, and when the incentivisation of
employees and balancing of the system is done, the records and
performance
statistics are obtained from the tags.
[8]
Ms Dlokweni stated that all employees were experienced petrol
attendants. They are aware that they are not permitted
to swap tags,
and it is an irregular practice to do so. She further stated that the
employees were well aware of the fraudulent
practices of buying fuel
in containers with fleet cards, and if they were unsure of anything,
they could contact management, and
although there is no manager on
site, employees could contact her on her cell phone 24 hours a day.
Fraud is prevalent with fuel
in containers and especially with the
volume of litres requested by the customer in October 2022. The
activity of the customer
was suspicious because he came twice in a
day.
[9]
The steps in terms of serving customers was also well known in that
it is asked what type of fuel is requested and
how payment is to be
made. If a fleet card is shown, the petrol attendant is to compare
the details on the card with the vehicle
and registration number.
Payment by fleet card is not permitted if the details do not
correspond. The employees in question failed
to alert management that
a customer was making several trips to the applicant's site to fill
containers. This is indicative of
dishonest behaviour. The
transactions occurred over three days, and on some days the bakkie
went twice within the same shift. The
employees were deliberate in
their acts of dishonesty as neither of them brought to the attention
of management that there was
a bakkie with drums that was filling
containers using fleet cards, however, it required the odometer
reading.
[10]
All the employees were experienced, and the daily part of their
operation is processing payments using different
cards. The face of
the card would not deter an attendant from identifying a fraudulent
card because, on processing the payment,
the speed point would
require the information of the true card that was cloned. So, when a
debit card requires odometer and does
not want a pin then the
attendant who is not deliberate in being dishonest would know and
alert management.
[11]
Ms Dlokweni testified that the acts of gross dishonesty were
intentional and twofold, as the employees all denied
that the card
was a fleet card, irrespective of the face of the card; however, they
all did put in odometer readings. Secondly,
they denied any knowledge
of the illegality of filling a container with a fleet card yet
entered an odometer reading for a container
that has no odometer. Mrs
Dlokweni concluded that the offences the employees were charged with
were serious, and the sanction of
dismissal was appropriate because
the trust relationship between the employer and the employees was
broken.
[12]
Each of the employees provided oral evidence under oath. Their
respective versions are captured below.
[13]
Melikhaya Songelwa testified that he commenced employment with the
applicant in April 2019. On 16 October 2022,
a customer attended the
forecourt at 9h57, driving a white Ford Ranger and requested that
three containers (one large and two small)
be filled with petrol.
Once the first container was filled with 700 liters, the customer
paid and went to drop it off. He returned
and paid for the remaining
2 containers which were filled with 700 liters. The total amount came
to R18 288, 00 for each container.
The customer paid with an FNB
green card, which had the words “unlimited” written on
it. It was not a fleet card. To
support this the customer also used a
Click's club card to earn points. Clicks’ club cards cannot be
used with fleet cards.
He completed the registration of the vehicle
on the slip as K[...]. Songelwa testified that during that time,
there was a competition
among all the employees of the filling
station to reach the target of selling more litres of fuel. The
employee who won the competition
would be given a free litre of cold
drink. He further stated that it was a common practice at the
applicant to swap tags between
employees in the view of working
together and that they use fleet cards to fill containers and have
not been told not to do so
as it is common practice.
[14]
Mthandazo Qase testified that he was employed by the applicant in
January 2021. On 16 October 2022 at 19h50 he
attended to a customer
who came to the filling station and requested that the container be
filled with diesel. He enquired from
the customer whether the card
was a debit or credit card and filled the container. The customer
replied that he would phone the
owner to enquire. The customer went
away, and when he came back, he was busy with another customer. His
colleague Vusimuzi Khula
took over the transaction. Khula effected
the payment and signed the receipt. Qase stated that they were not
told that they could
not use fleet cards to fill containers. He found
other employees accepting fleet cards to fill containers with fuel
when he started
working for the applicant.
[15]
Vusimuzi Khula testified that he commenced employment with the
applicant in 2011. On 17 October 2022 at 3h29 he
attended to a
customer at the applicant’s filling station. The customer was
driving a white Ford Ranger. He poured 576. 037
litres of fuel for
the customer in a container. The customer paid using a fleet card. He
wrote the registration number of the vehicle
the customer was driving
on the slip. At 3h50, the same customer came for the second
transaction. This time, he poured 700 litres
of diesel into another
container for the customer. The customer paid with an ‘SK
Civils Unlimited’ card. Khula testified
that employees at the
applicant’s filling station were permitted to accept fleet
cards to process payment for fuel poured
into containers. If the
registration number on the card matched the registration number of
the vehicle, there is no reason not
to fill the container.
[16]
Moses Lokhwe commenced employment with the applicant on 19 November
2009. On 17 October 2022, he attended to the
same customer at 8h15
and 8h32. The customer requested that a container be filled with 700
litres of fuel. He duly did so, and
the customer provided a card that
cited unlimited. The card had no registration number of the vehicle
and no expiry date reflected
on it. The customer requested that a
further 700-liter container be filled with fuel. The registration
number that he wrote on
both transaction slips was the registration
number of the vehicle the customer was driving, namely NK 78 BT GP.
He stated that
the employees of the applicant were permitted to
utilize fleet cards to fill containers with fuel and the knowledge he
has is from
experience as no training was provided.
[17]
Zanthemba Ngcala commenced employment with the applicant in 2020. He
was on night shift duties on 8 October 2022
with Sthembiso Sineyile.
Because Sineyile was busy he assisted him. He swiped Sineyile’s
tag as he wanted the litres to be
recorded to Sineyile instead of
himself, as he was going on leave the following day. This was in
terms of the incentive or competition
as to who could sell the most
litres of fuel to obtain a cold drink. There is no prohibition
on swapping tags, as he was
never told not to do so. It often
occurred during the day when they helped each other out that they
would swap tags in the name
of teamwork.
[18]
He served the customer at 21h04. The customer requested that 1000
litres of fuel be filled in containers. This
amounted to R26 040.00.
The customer paid with a card that was written unlimited with no
expiry date. The transaction was declined,
and the customer made a
phone call. The instruction that came was to only process 700 litres
on the card. The transaction went
through. The customer tried to use
another card to pay for the remaining litres, but the card declined.
The customer went to draw
cash from the ATM and settled the
outstanding amount. No one had ever informed him that he could not
fill containers where payment
is made using a fleet card. There was
no prohibition on swiping a colleague’s card.
[19]
Sithembiso Sineyile testified that he commenced employment with the
applicant in 2014. On 8 October 2022, he was
on duty, and he served a
customer at 21h04. He gave his colleague Sinathemba his tag as he was
busy with another customer. This
would often happen when colleagues
swap tags to render speed service. He was also going on leave the
following day, so he wanted
his tag to reflect the sale for the
one-liter cold drink prize. He stated that he has always used fleet
cards for filling containers
since he commenced employment with the
applicant and that companies such as ADT and Russell have such a
practice.
[20]
Siphiwo Mgwenyane commenced employment with the employer in 2011. He
testified that on 8 October 2022, he assisted
a customer who asked to
fill a container with 700 litres of fuel. The customer used a card
written “unlimited” to pay.
The speed point required an
odometer reading. He put in the odometer of the vehicle the customer
was driving. When he received
the slip of the transaction from the
cashier, he took it to the manager to claim his one-litre cold drink.
He showed the slip to
the manager and stated that the speed point
required the odometer. The manager did not comment. They would
normally fill containers
using fleet cards, and fellow employees
would swap tags when the forecourt is busy.
[21]
Noxolo Ngcayi testified that she is employed as a cashier at the
applicant since 2011. She represented the employees
in the internal
disciplinary inquiries. She testified that fleet cars are used to
fill fuel into containers, and the practice continues
to date. Tags
are also swapped in the name of teamwork. In closing, she stated that
the issue in dispute is the alleged dishonesty
and fraudulent conduct
on the part of the employees, but there was no evidence that the
employees broke a rule. No rule existed
with regard to using fleet
cards to pay for fuel placed in containers, nor well as a rule exist
with regard to the swapping of
tags. There were no dishonest acts on
the part of the employees, and the manager was well aware of the
transactions but was not
called to testify. She stated that there was
no rule prohibiting the employees' conduct. There was also no
evidence of the breakdown
of a trust relationship between the
applicant and the employees.
[22]
In the arbitration award, the arbitrator found that:
‘
1.
There was no evidence of formal rules prohibiting the conduct or
proof of training regarding prohibited practices.
2. The
employer failed to establish that the employees committed fraud or
dishonesty.
3. The
dismissal is found to be substantively unfair.’
[23]
Having concluded as he did, the commissioner reinstated the employees
with back pay on the same or similar positions
that preceded their
dismissal on 25 October 2022 and 14 November 2022 on the terms and
conditions no less favourable to them than
those that govern their
employment relationship immediately prior to their dismissal.
Test
on Review
[24]
It is now trite that the requirements for the review of an award
under the LRA are stringent and that the applicable
test in reviews
is that of reasonableness: an award of an arbitrator of the CCMA or a
Bargaining Council is reviewable if the decision
reached by the
arbitrator was one that a reasonable decision-maker could not reach.
[25]
In
Herholdt
v Nedbank Limited
[2]
,
the Supreme Court of Appeal stated as follows:
‘
[26] …
Material errors of fact, as well as weight and relevance to be
attached to particular facts, are not 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.’
[26]
In
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[3]
,
it was stated that:
‘
in short, a review
court must ascertain whether the arbitrator considered the principal
issue before him/her; evaluated the facts
presented at the hearing
and came to a conclusion which was reasonable.’
[27]
The Labour Appeal Court went on to state, per Waglay JP, as follows:
‘
[20] 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?’
[28]
More recently, in
Delmas
Coal (Pty) Ltd v CCMA and others
[4]
,
the Labour Court, having regard to
Gold
Fields Mining SA supra
and
Head of
the Department of Education v Mofokeng and Others
[5]
,
summed up the position as follows:
‘
[10]
What this analysis requires is that the review court determine first
whether the arbitrator perpetrated any
‘defect’ or
irregularity contemplated by s 145 (2). Secondly, the court must have
regard to the distorting effect that
the error may have had on the
outcome of the arbitrator’s award. Thirdly, if it is reasonably
clear that but for the identified
error relied upon the award would
have been different or cannot stand on its own reasoning, then the
award is prima facie an unreasonable
award. Finally, the court must
have regard to the issues and the evidence as a whole to determine
whether or not the outcome is
nevertheless capable of being sustained
on the Sidumo test. Put more plainly, the review court must ask
whether but for the defect,
a reasonable decision-maker could have
come to the conclusion reached in the award on the same material.
[11]
When conducting this analysis, the review court must avoid falling
into the trap of what the Labour
Appeal Court in Gold Fields referred
to as a ‘piecemeal analysis’ of each of the arbitrator’s
findings. The question
to be answered ultimately is whether on the
totality of the evidence, a relationship of reasonableness exists
between that evidence
and the result reached by the arbitrator have
committed.’
[29]
Ultimately, the applicant in this case is required to establish that
the award was one that could not have been
made by a reasonable
decision-maker on the evidence presented.
Grounds
for Review
[30]
The grounds of review relied upon by the applicant in its review
application are set out in its founding affidavit
and may be
summarized as follows.
‘
(1)
The second respondent handed down an award, which is not an award a
reasonable decision maker
would make.
(2)
The second respondent failed to apply her mind. The second respondent
misconducted herself
and committed a gross irregularity in the
proceedings.
(3)
The second respondent abrogated her fundamental responsibility and or
misconceived the
nature of the inquiry and/or failed to apply the
pertinent legal principles, ultimately resulting in the applicant
being denied
a fair hearing by:
i)
unjustifiably concluding as a matter of fact that the fleet cards
used
during the transactions under scrutiny were cloned without any
evidence to this effect.
ii)
The second respondent further found that the applicant’s
business was
besieged by a criminal syndicate during October 2022,
whilst no such evidence was presented at the proceedings.
iii)
The conclusions highlighted by the second respondent resulted in her
unreasonably
considering the facts within the context of the
incorrectly established cloning and criminal syndicate operating, and
ultimately
unreasonably finding that the third respondent's version
was the more probable.’
Analysis
of the reasonableness of the award on the evidential material placed
before the commissioner
[31]
The Commissioner found that Mrs Dlokweni’s evidence that all
employees were trained on the various types
of cards and methods of
payment was directly in contrast with the evidence of all employees
who testified and corroborated the
version that no induction was ever
done and no training on payment methods and suspicious activity was
ever implemented. Further
that there was no evidence that any
notification was placed in any of the areas visible to employees as
to suspicious activity
and what to do in such situations. It was
further found by the Commissioner that none of the evidence submitted
by the employer
indicated that there existed any rule as to utilizing
fleet cards as payment for filing of containers, as well as any
prohibition
on swapping of tags. The evidence of the employer that
this was prohibited conduct was contradicted by that of all employees
who
testified that it was common practice and had been a practice for
a long period of time.
[32]
From the evidence submitted by the parties, it is clear that no
evidence was presented by the applicant that any
rule in the
workplace prohibited the filing of containers utilizing fleet cards
as payment. Similarly, no evidence was tendered
by Mrs Dlokweni that
the rule was in place that prohibited the swapping of tags between
colleagues.
[33]
Rules in the workplace are fundamental. They allow parties to know
the boundaries of conduct and what is expected
of them. One cannot
hold an employee to account for a rule that does not exist or has not
been communicated. One would have at
least expected a rule of this
importance to be written down or properly communicated to the
employees.
[34]
The court in
Woolworths
(Pty) Ltd v SACCAWU and Others
[6]
laid down the steps for
an inquiry into breach of a rule and held that commissioners must
consider the following:
‘
1.
Whether there was a rule breached
2.
The nature and importance of the rule breached
3.
Whether the employee had knowledge of the rule or was expected to
have such knowledge.
4.
Whether the rule has been consistently applied and.
5.
Whether dismissal was an inappropriate sanction.’
[35]
Where there is an alleged breach of a rule, the burden is on the
employer to lead evidence on the existence, the
specific content, the
dissemination, as well as knowledge of the rule on the part of the
employee. In my view, the Commissioner
applied her mind to the
evidence presented and correctly assessed the versions and found that
the employer failed to establish
that there was a rule in place
prohibiting the filling of containers with fuel using fleet cards as
a form of payment and the swapping
of tags, which the employees
breached. The Commissioner’s award is sustained by the evidence
and meets the reasonableness
threshold. The review application stands
to fail.
Costs
[36]
As to costs, the requirements of fairness and the law are best served
by each party bearing its own costs.
[37]
In the result, the following order is made:
Order
1. The review
application is dismissed.
2. There is no
order as to costs.
M.B.
Mahalelo
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant:
Adv. Riaan de Lange
Instructed
by:
Lampert Inc.
For
the respondents: Ms. Busisiwe Matsena
Instructed
by:
NUMSA
[1]
Act 66 of 1995, as amended.
[2]
(2013)
34 ILJ 2795 (SCA) at para 26.
[3]
(2014)
35 ILJ 943 (LAC) at para 16.
[4]
(J440/17) [2018] ZALCJHB 233 (26 June 2018) at para 10.
[5]
(2015) 36 ILJ 2802 (LAC).
[6]
(2018) 39 ILJ 222 (LAC). See T Giliomee
Fair
Reason for Dismissal for Misconduct
https://labourman.co.za/fair-reason-for-dismissal-for-misconduct