IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR593/23
GAJB 20220-22
In the matter between:
UNILEC SA (PTY) LTD Applicant
and
EVANS NTSBADI MAHLO First Respondent
COMMISSIONER LUNGILE MATSHAKA Second Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Third Respondent
Heard: 29 May 2025
Delivered: 10 October 2025
JUDGMENT
PANGO, AJ
2
Introduction
[1] This is a review application launched in terms of S ection145 of the Labour
Relations Act.1 In this review application, the application seeks to review and set
aside the arbitration award issued by the Second Respondent under the
auspices of the Commission for Conciliation, Mediation and Arbitration, the Third
Respondent in these proceedings.
Background Facts
[2] The First Respondent was employed by the Applicant as a general worker since
December 2021.
[3] On 19 September 2022 , the First Respondent went to his workplace to visit the
Applicant’s in-house doctor as he was not feeling well. On his way , he met his
supervisor, Mr Dlamini, who confronted him seeking reasons as to why he was
not at work.
[4] The First Respondent, after that proceeded to the doctor , who after examining ,
found that he was sick and booked off from work.
[5] The following day, the First Respondent was examined by a different doctor who
also found that the First Respondent was sick and also booked him off sick to 21
September 2022.
[6] Sometime later, the First Respondent was charged with being under the
influence of an intoxicating substance during working hours on Monday , 19
September 2022. He was found guilty of the charge and dismissed immediately.
[7] The First Respondent , dissatisfied with the outcome of the disciplinary hearing,
referred a dispute challenging both the procedural and substantive fairness of his
dismissal.
[8] The matter was ultimately referred to arbitration before the Second Respondent ,
1 Act 66 of 1995, as amended.
3
who found that the First Respondent ’s dismissal was both procedurally and
substantively unfair.
Grounds for review
[9] The Applicant’s grounds for review are mainly that the Commissioner failed to
apply his mind to the evidence and that his findings are not those of a reasonable
decision maker.
[10] The Applicant contends that the First Respondent was under the influence of
alcohol during work hours and the Commissioner ought to have found as such.
Further, the Commissioner was unreasonable in relying on the fact that none of
the medical doctors detecte d that the First Respondent was under the influence
of alcohol. According to the Applicant , the Commissioner should have found that
the First Respondent was under the influence since there was direct evidence
regarding.
[11] According to the First Respondent , the Applicant failed to provide any evidence
that the First Respondent was on the day in question not sick and instead
intoxicated. The First Respondent was off sick on the day in question, and this is
supported by at least two medical doctors whom the First Respondent went to
visit on that day. None of these doctors picked up or at the very least indicated
that there were any signs of intoxication.
[12] In Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)2 the Supreme Court of Appeal found that material errors of fact, as well
as the 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 on the test
enunciated in Sidumo & another v Rustenburg Platinum Mines Ltd & others
3.
2 [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (LAC) at para 25.
3 [2007] 12 BLLR 1097 ( CC); (2007) 28 ILJ 2405 (CC) at para 110, the test being: “Is the decision
reached by the commissioner one that a reasonable decision-maker could not reach?’.
4
[13] The test for a review is whether the arbitrator’s decision or the conclusion
reached by the arbitrator was so unreasonable that no other arbitrator or
reasonable decision-maker could have come to the same conclusion. The result
of an award would be considered to be reasonable when there is a material
connection between the evidence and the result , or, put differently, when the
result is reasonably supported by some evidence or is connected with the
evidence.
Analysis
[14] The Commissioner found that the First Respondent’s dismissal was both
substantively and procedurally unfair. The ratio for such findings is premised on
the fact that the commissioner, on a balance of probabilities , accepted the First
Respondent’s version that he was off sick on 19 September 2022, and that the
doctors who tested him did not detect any alcohol instead, they confirmed his
illness. The First Respondent only attended his workplace to visit the company
doctor.
[15] It is quite evident that in arriving at this conclusion, the Commissioner applied his
mind to the evidence before him. Considering the fact that the First Respondent
was charged with being under the influence of alcohol , the Employer did not
support this with sufficient evidence. There were no blood tests submitted to
prove that the First Respondent was under the influence of an intoxicating
substance. The only evidence presented was an invoice which reflected the
nature of tests that were taken. This was not proof that the First Respondent was
under the influence of an intoxicating substance.
[16] During the hearing of this matter, the Counsel for the Applicant attempted to
hand to the court new documentary evidence from the Bar. The court refused to
accept such documents. These proceedings concern the review of the
Commissioner’s award for failing to consider inter alia , the relevant evidence
before him. It is not in dispute that such evidence was never presented in the
before him. It is not in dispute that such evidence was never presented in the
arbitration proceedings, and I am not sure what purpose it will serve at this point
5
to furnish this court with evidence that was never placed before the
Commissioner. The Applicant failed to prove its case. It cannot now , through the
back door, seek to rely on evidence that was never placed before the
Commissioner. A Commissioner should base its decision on material before him ,
which is what was done in this matter.
[17] In the circumstances for the reasons mentioned above, I find that the decision of
the Commissioner was reasonable and based on the facts and evidence before
him.
[18] In the circumstances, I make the following order.
Order
1. The Applicant’s review application is dismissed.
2. The Applicant is ordered to pay First Respondent’s costs.
________________
Pango AJ
Acting Judge of the Labour Court of South Africa
6
Appearance:
For the Applicant: Adv M Du Plessis
Instructed by: Kruger Wilkens Attorneys
For the First Respondent: Ms R Crisp
Instructed by: R Crisp Attorneys