THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No.: JR987/2022
In the matter between:
SERITI POWER (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILLIATION, MEDIATION
AND ARBITRATION First Respondent
FAIZEL MOOI N.O. Second Respondent
NATIONAL UNION OF MINE WORKERS Third Respondent
EUGINE MOKALENG Fourth Respondent
Heard: 23 October 2024
Delivered: 21 May 2025
This judgment was handed down electronically by consent of the parties’ legal
representatives by circulation to them via email. The date for hand-down is
deemed to be 21 May 2025.
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JUDGMENT
VUKEYA, AJ
[1] Seriti Power (Pty) Ltd (the applicant), brings an application in terms of section
145 of the Labour Relations Act 1 (the LRA) for the review and setting aside of
an arbitration award issued by the second respondent dated 25 April 2022. In
its Notice of Motion the applicant prays for an order:
‘1.1. Reviewing and setting aside the arbitration award in the dispute
between Seriti Power (Pty) Ltd and NUM OBO MOKALENG E, issued
by the second respondent under case number GAJB 18678-21 on 25
April 2022 and served on the applicant by the first respondent on 26
April 2022;
1.2. Substituting the award, issued by the second respondent with an order
that the third respondent’s dismissal was substantively fair;
1.3. Alternatively to prayer 2 above, directing that the matter be referred
back to the first respondent for consideration de novo before a
commissioner other than the second respondent;
1.4. Directing that such a respondent who opposes the relief sought herein
be ordered to pay the costs of the application, jointly and severally, the
one paying the other to be absolved.’
[2] The applicant bases its application on a contention that the second
respondent committed material irregularities when considering the evidence
and determining the issues before him. It contends that, as a result of this, the
second respondent arrived at an outcome that was unfairly distorted.
1 Act 66 of 1995, as amended.
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[3] Much of the background pertaining to this matter appears from the record
filed, however, the factual matrix can be summarized as follows. The fourth
respondent was the employee of the applicant. His position was that of a
Supervisor, Employee Data M anagement and at the time of the incident, he
was in his 24
th year of employment with the applicant. The fourth
respondent’s duties included overseeing payroll activities, overseeing
movements, hiring and terminations as well as reconciliations of employees ’
remuneration (Package Reconciliation) on a monthly basis.
[4] He faced charges of misconduct and appeared for a disciplinary hearing for
attempted dishonesty, alternatively unacceptable behaviour. Although he
denied the allegations against him, he was found guilty for attempted
dishonesty and was dismissed from employment with the applicant. The
charges were formulated to read as follows:
‘On or around 11 January 2021, you had requested/instructed Ms Christelle
van Jaarsveldt to open a link/folder for her to place her electronic signature on
the package reconciliation with the intention to mislead and to deceive the
Auditors, whilst knowing that the November 2020 and December 2020
reconciliation documents were not compliant. Ms Christelle van Jaarsveldt
thereafter alerted you that she felt uncomfortable to place her signature on
the reconciliation, as she did not have any training to sign off these
documents. You still insisted that she sign off the documents and that you
only needed two signatures to make the recon documents compliant and she
turned down your instruction. Your behaviour is perceived to be unacceptable
as it goes against the Disciplinary Code and Procedure and the Code of
Business Conduct.’
[5] Aggrieved by the decision to dismiss him, the fourth respondent referred a
dispute to the first respondent , the Commission for Conciliation, Mediation
and Arbitration (CCMA) alleging that his dismissal was substantively and
and Arbitration (CCMA) alleging that his dismissal was substantively and
procedurally unfair . Between 26 January and 19 April 2022, the dispute
proceeded to arbitrati on before the second respondent. After hearing
evidence in the dispute the Arbitrator made an award as follows:
‘100. Award
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101. The dismissal of the applicant, Eugene Makaleng, was procedurally
fair and substantively unfair regarding the severity of the sanction. I
reinstate the applicant from the 19 th of February 2022, with two
months and two weeks loss of salary in the sum of R193 744.71. The
amount must be paid by the respondent, Seriti Power (Pty) Ltd, within
thirty days from the date of this Award, but no later than 19
th May
2022. The respondent must reinstate the applicant on the 3 rd of May
2022, or any earlier date negotiated between the parties.’
[6] It is this award that serves before this court for review.
[7] At the Arbitration hearing, the evidence of the Manager of the applicant, Deon
le Roux (Le Roux), was that Ms van Jaarsveld was on his team that manages
payroll and the fourt h respondent a supervisor. Van Jaarsveldt was an
administrator reporting to the fourth respondent. Ms van Jaarsveldt one day
reported to him that the applicant had approached her and asked her to sign
off on two package recon documents and she felt uncomfortable as she never
did them before and complained that she could not be expected to sign off on
something she knew nothing about.
[8] Ms van Jaarsveldt, when asked to explain fully what had happened, said that
she had told the fourth respondent that she feels uncomfortable but the fourth
respondent said she could sign off on the documents and he would train her
later and that it was okay for her to sign as all queries would come to him. It
seems from the evidence that there was an incident of a similar nature during
November 2020 also involving the fourth respondent. It was the evidence of
Le Roux that even though the first incident also involved an element of
dishonesty, the applicant elected to give the plaintiff a second chance and
only gave him a verbal warning. According to Le Roux, dismissal is
recommended on matters of dishonesty even for a first offender.
[9] Christelle van Jaarsveldt said that on 11 January 2021 she received a call
[9] Christelle van Jaarsveldt said that on 11 January 2021 she received a call
from the fourth respondent requesting her to do the package reconciliation.
He told her to apply her electronic signature for November and December
2020 on the recon documents. When she opened the document , she saw the
space where she was requested to sign. She could see from the document
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that the fourth respondent was the person who did the recon and she was
supposed to append her signature as a person who approved it. That made
her feel uncomfortable and she informed him. He then told her that he needed
the document to be compliant for the auditors, that she must append her
signature and he w ill give her the training later. He further told her that he
would deal with the queries should there be any. She did not append her
signature on the recon document and a few days thereafter, she reported the
incident to Le Roux.
[10] In his defence, the fourth respondent testified that he worked for the applicant
since 1997 and was dismissed on 13 September 2021. He was earning a
salary of R78 697.42 per month. During January 2021 when he returned from
leave, he had to do the package recon and when he was about to start he
remembered that he had to train the administrator. He telephoned Ms van
Jaarsveldt to provide her with recon training. When doing the package recon,
he was supposed to copy the previous month’s recon into the current month’s
recon and then run the report for the current month. When he called Ms van
Jaarsveldt, the information on the recon was that of the previous month which
he copied to the current month. He then explained to Ms van Jaarsveldt that
he did the November recon and no one verified it therefore he was starting
with the December recon and needed to train her for the December recon. He
then asked her to check the shared drive where the recons are saved and to
open the December recon. He explained to her that he wanted to train her to
do the December recon and also explained how the package recon worked.
[11] The page she opened was a cover page and it had his name as the person
who did the report and Claudia’s name as the person who verified it . He
explained how the system works and she indicated that she was not
comfortable signing the recon for the first month she was doing the recon. He
comfortable signing the recon for the first month she was doing the recon. He
told her that it was okay if she was not comfortable. When asked by the
arbitrator if he had asked her to sign an act ual recon document or a sample,
the fourth respondent testified that he did not ask her to sign anythi ng, asked
her to open a document which contained information from the previous month
to the current month. He only wanted to train her. The document still had his
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name and Claudia’s name on it. He had only updated it after he did a report
for December and it was not complete yet and therefore there was no reason
to ask her to sign the document. It transpired that the document in question
did not form part of the bundle. He further stated that he had been requested
by Le Roux to train someone and would not have benefitted anything from
what happened even if Ms van Jaarsveldt had signed the recon document.
[12] The fourth respondent denied having told Ms van Jaarsveld to sig n as training
would be provided later. He said he wanted to give her the training at that
stage. He stated that he first inquired from her if she would be comfortable to
do the training on the telephone because after the training, she would have to
sign as the person who did the recon and he would have to sign as the person
who verified it. To this, Ms van Jaarsveldt responded by saying she did not
feel comfortable as she did not think it was enough time for her to understand
the recon. Regarding the incident in November 2020, he was not given a
verbal warning, or a written warning. He was only told in a meeting by Le
Roux not to use Claudia’s signature. He had sent a report to Claudia as she
had to co-ordinate information with the auditors.
[13] As already stated earlier in this judgment, the Commissioner’s findings were
that the fourth respondent’s dismissal was procedurally fair but substantively
unfair. In reaching this conclusion, the Commissioner remarked that i n
criminal law there can be an actual crime such as theft, or an attempt to
commit a crime such as attempted theft. His view was that t o a large degree
the same principles apply in labour law. He further commented that, there can
be no offence of attempted dishonesty . Either someone com mitted an act of
dishonesty or they did not do so, the mere fact that there was an alleged
attempt to be dishonest means that the person did not succeed in being
attempt to be dishonest means that the person did not succeed in being
dishonest and is therefore not guilty. The fact that attempted dishonesty is not
an offence can be seen from the fact that it does not appear in the
respondent’s disciplinary code. The code mentions acts of dishonesty or
attempted fraud or theft. It does not mention attempted dishonesty.
[14] The Commissioner’s view was that the probabilities favour ed that the fourth
respondent did engage in unacceptable behaviour. He also found that Ms van
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Jaarsveldt has provided a version which was more credible than that of the
fourth respondent because the two had a good working relationship and thus,
according to the Commissioner, she had no motive to fabric ate her version. It
is also the Commissioner’s view that Ms van Jaarsveldt was clear in her
evidence about the fact that the fourth respondent asked her to apply her
electronic signature on the documents. Furthermore, according to the
Commissioner, the fourth respondent’s version that he was only training Ms
van Jaarsveldt did not make sense, as there would have been no reason for
her to feel uncomfortable that she would report the matter to Le Roux in light
of the good working relationship between them. The Commissioner also
considered that the manner in which the fourth respondent went about to train
Ms van Jaarsveldt did not demonstrate that he was in fact training her.
[15] It is clear from the above that the Commissioner was not satisfied with the
charge of attempted dishonesty and was of the view that there exists no such
an offence even in the applicant’s code. He was clearly not satisfied with the
evidence of the fourth respondent and reject ed it while favouring that of Ms
van Jaarsveldt. It is therefore apparent from the award that the second
respondent’s finding of substantive unfairness of the dismissal was directed at
the severity of the sanction. He remarked that the sanction of dismissal was
unfair for a charge of unacceptable behaviour because the mere point of
corrective discipline is to increase the severity of a sanction, wherever
possible from a verbal warning to a written warning, a final written warning
and then, as a last resort, a dismissal.
[16] According to the second respondent , because the applicant stated in its
evidence that the fourth respondent was previously given a verbal warning for
a similar offence, a final written warning would have been an appropriate
sanction for unacceptable behaviour. The Commissioner’s concern was that
sanction for unacceptable behaviour. The Commissioner’s concern was that
he was not pointed to any clause in the applicant’s disciplinary Code
regarding an appropriate recommended sanction for unacceptable behaviour
but the closest he could find was “improper conduct” . This conduct attracts a
sanction of a final written warning for a second offence and dism issal for a
third offence. The Commissioner proceeded to consider the lengthy
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experience the fourth respondent had as an employee of the applicant and
concluded that the sanction of dismissal was unfair.
[17] The issues for determination are very crisp in this application and they are:
17.1. Whether the finding that there was no attempted dishonesty or that
there was no act of misconduct sufficiently serious to warrant a
dismissal is justified;
17.2. Whether the re- instatement order is unreasonable and inconsistent
with the evidence placed before the Commissioner and;
17.3. Whether the attachment of weight on the lengthy service of the fourth
respondent in the employ of the applicant is justified.
[18] The applicant contends that the Commissioner’s remarks regarding acts of
dishonesty or attempted dishonesty were inconsistent. It submits that the
commissioner’s remark that in criminal law there can be an actual crime such
as theft, or an attempt to commit a crime such as attempted theft and the
remark that “there can be no offence of attempted dishonesty, either someone
commits an act of dishonesty or they did not do so. The mere fact that there
was an alleged attempt to be dishonest, means that the person did not
succeed in being dishonest and is therefore not guilty”, are inconsistent.
[19] Counsel for the applicant further submits that the second respondent’s
attempt to support his reasoning by pointing out that the applicant’s
disciplinary code did not contain an offence of attempted dishonesty was
without merit and that it indicated a misconception of the evidence before him.
According to the applicant, the Code serves only as a guideline and it is not
peremptory. He referred the court to a clause in the disciplinary code, which
states that the code is used as a guide, and the transgr essions contained
therein are not definitive of all transgressions that may be committed. This
clause also expresses that it is impossible to list all transgressions and the
ones contained in the document are general transgressions. Disciplinary
ones contained in the document are general transgressions. Disciplinary
action could still be taken for unacceptable behaviour not listed in the Code, it
states.
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[20] The plaintiff contends further that second respondent misconceived the
evidence by finding that the fourth respondent did not succeed in being
dishonest and therefore was not guilty of an offence. It submits that the
second respondent applied a materially flawed logic which, if accepted means
an employer who is aware of an employee’s intention to commit misconduct is
powerless and can only take disciplinary action onc e the misconduct is
completed. It is the applicant’s submission that the second respondent
unreasonably applied the principle of progressive discipline without due
regard to the facts of the misconduct by finding that the sanction of dismissal
was unfair for the charge of unacceptable behaviour because, having
conducted himself similarly during November 2020, the fourth respondent was
only issued with a verbal warning and therefore deserved a final written
warning.
[21] The conclusion that, the fourth respondent would not have gained from his
misconduct shows that the second respondent overlooked that he was Ms
van Jaarsveldt’s supervisor and that he used his position of power to
misrepresent the facts to her to try and coerce her to breach an established
practice designed to prevent fraud, the applicant submitted. It laments that the
award is unreasonable, it was arrived at as a result of errors, it is based on
misdirection and therefore, it falls to be reviewed and set aside.
[22] The fourth respondent submitted that a review of an award is permissible if
the defects in the award fall within one or more of the grounds as mentioned
under section 145 (2) (a) of the LRA. It submitted that the award made by t he
second respondent was correct. A lthough it is conceded that the second
respondent failed to consider material evidence before him in arriving at a
determination, it is the fourth respondent’s submission that the award, in so
far as re-instatement is concerned, should not be altered.
far as re-instatement is concerned, should not be altered.
[23] This review concerns the question whether the second respondent committed
gross irregularity in the proceedings and if so, whether the award falls to be
set aside. In seeking the aforementioned order, the applicant relied on the
provisions of section 145 and contended that the Commissioner committed a
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gross irregularity in the conduct of the proceedings. Section 145 provides as
follows:
‘(1) Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(a) … (b) ...
(1A) …
(2) A defect referred to in subsection (1), means-
(a) that the commissioner-
(i) committed misconduct in relation to the duties of the commissioner as
an arbitrator;
(ii) committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii) exceeded the commissioner's powers; or
(b) that an award has been improperly obtained.
(3) The Labour Court may stay the enforcement of the award pending its
decision.
(4) If the award is set aside, the Labour Court may-
(a) determine the dispute in the manner it considers appropriate; or (
(b) make any order it considers appropriate about the procedures to be
followed to determine the dispute.
[24] The applicable test to be applied in applications of this nature when deciding
whether the arbitrator's decision is reviewable has been emphasized
numerous times in numerous decisions and more clearly in Sidumo and
Another v Rustenburg Platinum Mines Ltd and others 2. The Constitutional
Court held that the test is whether the decision reached by the C ommissioner
2 (2007) 28 ILJ 2405 (CC) at para 110.
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is one that a reasonable decision maker could not reach. The court further
held that the arbitrator's conclusion must fall within a range of decisions that a
reasonable decision maker could make.
[25] The labour court has supervisory powers to review proceedings, decisions
and awards. It derives its powers from section 145 of the LRA. When faced
with a review application based on the contention that a gross irregularity has
been committed, the crucial enquiry is whether the conduct of the
Commissioner complained of prevented a fair trial of issues. In Goldfields
Investment Limited v City of Johannesburg and Another 3
Schreiner J expressed the principle as follows regarding gross irregularities:
“The law, as stated in Ellis v. Morgan (supra) has been accepted in
subsequent cases, and the passage which has been quoted from that case
shows that it is not merely high -handed or arbitrary conduct which is
described as gross irregularity; behaviour which is perfectly well -intentioned
and bona fide, though mistaken, may come under that description. The crucial
question is whether it prevented a fair trial of the issues. If it did prevent a fair
trial of the issues then it will amount to a gross irregularity.”
[26] In Ellis v Morgan4 the court said:
“But an irregularity in proceedings does not mean an incorrect judgment; it
refers not to the result, but to the methods of a trial, such as, for example,
some high-handed or mistaken action which has prevented the aggrieved
party from having his case fully and fairly determined.”
[27] In casu, it is contended that the irregularity committed by the Second
respondent relates , amongst others, to his conclusion that the Disciplinary
Code of the applicant did not contain an offence of attempted dishonesty.
Clearly, the second respondent did not well acquaint himself with the contents
of the Disciplinary Code of the applicant hence the misconception. The Code,
in Appendix 1 containing a schedule of Misconducts, Proposes Action and
in Appendix 1 containing a schedule of Misconducts, Proposes Action and
Policy Guidelines states: “the disciplinary code serves only as a guideline” .
3 1938 TPD 551 at 560
4 1909 TS 576.
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This means that even transgressions not included in the list may be
punishable if found to be offensive to the employer.
[28] In a case of this nature, where the Commissioner misconceives the nature of
the inquiry, the ensuing hearing cannot, in principle be said to be fair because
he or she has failed to perform his or her mandate. The disciplinary code, as a
guide, was not peremptory but the second respondent applied it as if it were.
According to the disciplinary code, it is impossible to list all transgressions and
the ones contained in the document are general transgressions . It is also
clear from the disciplinary code that disciplinary action would still be taken for
unacceptable behaviour not listed in the Code. The second respondent,
however, arrived at a conclusion that because the offence was not listed in
the Code, therefore the fourth respondent could not be found guilty of it. This
conclusion was incorrect.
[29] The second respondent accepted the evidence of the applicant’s witnesses,
particularly that of Ms van Jaarsveldt, and rejected that of the fourth
respondent. This means that the evidence of Ms van Jaarsveldt that the fourth
respondent asked her to place her electronic signature on a package
reconciliation for November and December 2020 while she had not perused it,
stands. The fourth respondent, according to this evidence, though
summarized herein, took a substantial step towards committing a crime but he
could not complete it because Ms van Jaarsveldt refused to append her
signature on the package reconciliation . This according to the evidence was
an attempt to deceive the em ployer and/or Ms van Jaarsvel dt and even from
the evidence of the applicant, the purpose of the deceitful behav iour is
unknown.
[30] Be that as it may, it cannot be denied that despite the fact that the purpose of
the deceitful behaviour was unknown, the attempt to act deceitfully was
proven by the applicant and the harm or potential harm could not be achieved
proven by the applicant and the harm or potential harm could not be achieved
because Ms van Jaarsveldt refused to append her signature on the package
reconciliation. The next question is, on the conspectus of the evidence, can it
be said that the fourth respondent attempted to act dishonestly? In Nedcor
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Bank Ltd v Frank and others5 the Labour Appeal Court made reference to the
definitional elements of dishonesty as entailing ‘ a lack of integrity or
straightforwardness and in particular, a willingness to steal, cheat , lie or act
fraudulently.’
[31] The fourth respondent instructed Ms van Jaarsveldt to append her signature
on the package reconciliation without informing her the purpose of doing so,
but only told her he would train her later . The second respondent found this
behaviour to be unacceptable as he did not agree with the concept of
attempted dishonesty. Even so, the fourth respondent’s behaviour amounted
to an attempt to act fraudulently or an attempt to mislead his employer or the
Auditors to believe that the November and December 2020 package
reconciliations were compliant, even though the harm or potential harm could
not be determined.
[32] Based on the above reasons alone, I am inclined to agree with the applicant
that the second respondent’s misconception of the evidence placed before
him caused him to arrive at an irrational and materially flawed decision.
Considering the mosaic of the evidence, a finding of attempted dishonesty
instead of unacceptable behaviour would have been appropriate under the
circumstances. I am therefore of the view that the finding that there was no
attempted dishonesty or that there was no act of misconduct sufficiently
serious to warrant a dismissal was not justified.
[33] Regarding the sanction, the second respondent found that the fourth
respondent was guilty of unacceptable behaviour and concluded that his
dismissal was procedurally fair but substantively unfair. He remarked that the
fourth respondent’s conduct “ cannot be condoned” then ordered that the
fourth respondent be re- instated. He based this finding on reasons such as
that he was not pointed at any clause in the applicant’s disciplinary code
regarding an appropriate recommended sanct ion for unacceptable behaviour
regarding an appropriate recommended sanct ion for unacceptable behaviour
and that t he applicant could not point to any benefit the fourth respondent
would have gained from his misconduct as there does not appear to be any
tangible gain. He remarked that the fourth respondent’s behaviour was foolish
5 (2002) 23 ILJ 1243 (LAC).
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rather than malicious and therefore a sanction less than a dismissal would be
appropriate.
[34] According to the second respondent, the fourth respondent had about 24
years of service while holding a clean record, the second respondent found
this to be a strong mitigating factor especially after not being found guilty of
dishonesty. The second respondent further stated that, considering that in a
previous similar incident the fourth respondent was given a verbal warning, a
final written warning would have been an appropriate sanction if the applicant
were to fulfil the principle of corrective discipline.
[35] Had the second respondent not misconstrued the facts in this matter he would
have arrived at a finding that the fourth respondent did attempt to act
dishonestly which in itself amounts to an act of dishonesty. In terms of the
applicant’s disc iplinary code, the sanction for this offence is a dismissal.
In Nampak Corrugated Wadeville v Khoza 6 the Labour Appeal Court held as
follows:
“The determination of an appropriate sanction is a matter which is largely
within the discretion of the employer. However, this discretion must be
exercised fairly. A court should, therefore, not lightly interfere with the
sanction imposed by the employer unless the employer acted unfairly in
imposing the sanction. The question is not whether the court would have
imposed the sanction imposed by the employer, but whether in the
circumstances of the case the sanction was reasonable.’
[36] The employer’s decision to dismiss the fourth respondent was justified as it
was based on a finding that he attempted to act dishonestly. The decision of
the second respondent that it was procedurally fair but substantively unfair
falls to be dismissed because the second respondent failed to consider
material evidence before him in arriving at this conclusion. The second
respondent’s misconception of the evidence placed before him caused him to
respondent’s misconception of the evidence placed before him caused him to
arrive at an irrational and materially flawed decision and my view is that he
indeed committed a gross irregularity in his findings and in his orders.
6 (1999) 20 ILJ 578 (LAC).
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[37] In the result, I make the following order:
Order
1. The application succeeds.
2. The arbitration award in the dispute between Seriti Power (Pty) Ltd and
NUM OBO MOKALENG E, issued by the second respondent under
case number GAJB 18678- 21 on 25 April 2022, is reviewed and set
aside. it substituted with the following order:
“The fourth respondent’s dismissal was procedurally and substantively
fair.”
3. Each party to pay its own costs.
__________________
L. Vukeya
Acting Judge of the Labour Court of South Africa
----
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Appearances
For the Applicant
Attorney: M.G Maeso
Instructed by
Shepstone Wylie Attorneys
For the 3rd& 4th Respondent
Attorney: R.Makgamatha
Instructed by
Cheadle Thompson &Hysom Inc.
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