1
IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
CASE NO: JR2220/23
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION WORKERS UNION (“AMCU”)
OBO ZONDO, ZM AND 81 OTHERS Applicant
And
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
WERNER KRUGER N.O Second Respondent
VIBRO BRICKS AND PAVING Third Respondent
Heard: 3 June 2025
Delivered: This judgment was handed down electronically by circulation to the
Applicant and Third Respondent’s Legal Representatives by email,
publication on the Labour Court website and release to SAFLII. The
2
date and time for handing - down is deemed to be 15 h30 on 14
October 2025.
JUDGMENT
LALLIE J
[1] The individual applicants were employed by the third respondent. Owing to a
mutual interest dispute which included wage increase and night shift allowance
the applicant trade union, AMCU, approached the first respondent (the CCMA) in
an effort to conclude an agreement on picketing rules with the third respondent.
On 10 August 2021 the applicant and the third respondent agreed on picketing
rules under CCMA case numbers GATW8787- 21 and GATAW8786- 21. On 7
March 2022 the applicant issued the third respondent wi th a notice of intention to
strike. The protected strike commenced at the third respondent’s Rosselyn
premises on 9 March 2022. As a result of incidents which occurred during the
protected strike, the third respondent instituted a disciplinary enquiry against the
individual applicants. The following charges were preferred against the individual
applicants:
“Rule 34 insubordin ation – refusal to obey reasonable instructions related to
work, specifically picketing rules under case number GATW8787-21 and
GATW8686-21.
IN THAT: Despite picketing rules signed under the auspices of the CCMA
(case numbers GATW8787-21 AND GATW8686-21), AMCU and its members
are in total disregard of these rules , specifically paragraph 4 - location of
3
picket and number of picketers, paragraph 6.4 - pickets may not, and
paragraph 7 – controls of pickets. The company needs to investigate this
matter in the form of a disciplinary hearing.”
[2] The chairperson of the disciplinary enquiry found the individual applicants guilty
of the acts of misconduct they were charged with and they were dismissed on 11
April 2022. The applicant referred an unfair dismissal dispute to the CCMA. An
effort to resolve the dispute through conciliation did not succeed and it was
referred to arbitration. Having arbitrated the dispute, the second respondent (the
commissioner) issued an arbitration award dated 25 September 2023 in which he
found the individual applicants’ dismissal fair. In this application the applicant
seeks an order reviewing and setting the arbitration award aside. The application
is opposed by the third respondent.
[3] The applicant’s main grounds for review are that the commissioner committed
gross irregularities in the conduct of the arbitration which rendered his arbitration
award unreasonable. The correct legal position in adjudicati ng review
applications based on gross irregularities committed by commissioners in the
conduct of arbitrations is that errors commissioners make in conducting
arbitrations do not necessarily render their awards unreasonable. In addition to
proving that a commissioner erred when conducting the arbitration, the applicant
must establish that the error lead the commissioner to reach an unreasonable
4
decision. The principle is re- affirmed as follows in Head of the Department of
Education v Mofokeng and Others1:
“[32] However, sight may not be lost of the intention of the legislature to restrict
the scope of review when it enacted section 145 of the LRA, confining review to
“defects” as defined in section 145(2) being misconduct, gross irregularity,
exceeding powers and improperly obtaining the award. Review is not permissible
on the same grounds that apply under PAJA. Mere errors of fact or law may not
be enough to vitiate the award. Something more is required. To repeat: flaws in
the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance
on irrelevant considerations or the ignoring of material factors etc. must be
assessed with the purpose of establishing whether the arbitrator has undertaken
the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent or patent irregularities and
instances of dialectical unreasonableness should be of such an order (singularly
or cumulatively) as to result in a misconceived inquiry or a decision which no
reasonable decision-maker could reach on all the material that was before him or
her.”
[4] The reasons given by the commissioner for finding the individual applicants’
dismissal fair were that the third respondent correctly took disciplinary action
against them for committing misconduct which constituted a breach the picketing
rules. He rejected the applicant’s contention that the third respondent should
have relied on clauses 10 and 11 of the picketing rules and approached this court
for appropriate relief. He found it common cause that the individual applicant s left
1 [2015] 1 BLLR 50 (LAC) at para 32.
"" ~~ ~
'-.~ -' ,,.,
r ',..,.
~ '-.. ,I
~ '
5
the designated picketing area. He noted that the question whether the individual
applicants prevented people from entering the gate, burnt tyres or threw stones
constituted factual disputes which did not require the interpretation of the relevant
clauses of the picketing rules. He found clauses 10 and 11 of the picketing rules
inapplicable.
[5] The commissioner observed that the individual applicant s conceded that they
breached the picketing rule which required them to picket at the designated area.
The explanation for their conduct was that they wished to get the result they
wanted so that they could end the strike. He interpreted the breach to be an
attempt to pressure the third respondent to accept the individual applicants’
demands. He found that the individual applicants were in flarant disregard of the
picketing rules on more than one oc casion. Their non- compliance resulted in
other employees feeling that they were held hostage and other people being
prevented from entering and leaving the third respondent’s premises. He found
that the individual applicants’ conduct made the employment relationship
intolerable and concluded, based on those reasons that the individual applicants’
dismissal was fair.
[6] The gross irregularities the applicant sought to rely on include the submission
that the commissioner failed to consider the binding nature of the picketing rules
particularly the dispute resolution clause. The applicant further submitted that
had the commissioner properly considered the law of contract and the binding
nature of invoking the dispute resolution clause he would have come to a vastly
different finding on the substantive fairness of the dismissal. The third respondent
6
denied that the error was made and submitted that the commissioner was well
aware of his statutory duties, assessed the evidence properly and issued a
reasonable award.
[7] The conflict resolution clause in the picketing rules reads thus:
“11.1 Any dispute about the interpretation or application of these Rules or any
alleged breach thereof shall be dealt with in accordance with section
69(8),(9) and (11) of the Act or section 158(1)(g) of the Act. This does not
affect any other right that any person may have in terms of the Act or any
other law.
11.2 It is recorded the employer, the union and persons taking part in the
picket are subject to the protections and provisions set out in section 67
of the Act”
[8] The applicant’s contention that the commissioner failed to consider the conflict
resolution clause of the picketing rules is incorrect. It overlooks the last portion of
clause 11.1 of the dispute resolution clause which expressly states that the
obligation to have the provisions of section 69(8), (9) and (11) as well as section
158(1) of the LRA does not affect any other right any person may have in terms
of any other law. The parties therefore agreed that the third respondent would
retain its power to take disciplinary action against the individual applicants in
clause 11.1 of the picketing rules. Further, section 67(5) of the Labour Relations
7
Act2 (the LRA) grants employers the right to dismiss fairly an employee who
commits an act of misconduct during a protected strike.
[9] The applicant further submitted that the commissioner erred in finding the
sanction of dismissal appropriate. It was argued that the sanction was severe
and based on the commissioner’s erroneous finding that AMCU and the
individual applicants flagrantly breached the picketing rules. The allegations were
denied by the third respondent.
[10] Clause 4 of the picketing rules provided that picket may be held at the
designated places. The applicant conceded that the individual applicants
breached clause 4 in that they congregated at the third respondent’s gate outside
the designated area. It, however, justified the conduct by stating that the
individual applicants needed to give their trade union official a mandate. Clause
6.5.5 of the picketing rules precluded the individual applicants from using or
possessing any inflammable substance. It is common cause that the individual
applicants made a fire in front of the third respondent’s gate in breach of the
picketing rules. The applicant alleged that the conduct was justified because it
was cold.
[11] I accept the applicant’s submission that the commissioner erred in finding that
some employees were held hostage by the individual applicants because no
admissible evidence was led i n support of the hostage taking. The
reasonableness of an arbitration award is determined on the totality of the
2 Act 66 of 1995, as amended.
8
evidence led. For an error to justify the setting aside of an arbitration award it
must have the effect of leading the commissioner to reach an unreasonable
decision. Section 191 read with section 138 of the LRA grant commissioners the
authority to determine the fairness of dismissals for misconduct. Commissioners
therefore use their sense of fairness in exercising the authority. The
commissioner found the individual applicants’ disregard for the picketing rules
flagrant and that it happened more than once.
[12] The commissioner found the violation of the picketing rules serious . The finding
is supported by common cause evidence. Contrary to the applicant’s
submissions, the commissioner considered the appropriateness of the sanction
of dismissal. He relied on Pailpac (Pty) Ltd v De Beer NO & Other
3 where the
LAC found the dismissal of employees for carrying weapons during a strike in
breach of the picketing rules fair.
[13] I accept the applicant’s submission that the commissioner erred in not making an
express finding that the individual applicants ’ dismissal was procedurally unfair.
Section 193(2)(d) provides that the relief of reinstatement may not be granted to
an employee whose dismissal is unfair because the employer did not follow a fair
procedure. A commissioner’s obligation to state expressly whether a dismal is
procedurally fair assists in determining whether the decision on the relief granted
in an arbitration award is reasonable.
3 [2021] 6 BLLR 570 (LAC).
9
[14] The third respondent denied that the commissioner’s omission to make a finding
on procedural fairness was unreasonable. The basis of the argument was that
the record and award reflect that the commissioner applied his mind to the
procedural fairness of the dispute and his decision is subsumed in the finding
that the dismissal was fair. In Fidelity Cash Management Service v CCMA &
Others
4 it was held that the rationality of an award must be determined on all the
evidence properly tendered at arbitration including facts not expressly relied on
by the commissioner in the award.
[15] The commissioner noted the evidence on the procedural fairness of the individual
applicants’ dismissal. It was tendered by Ms Briedenham (Briedenham), the
chairperson of the individual applicants’ disciplinary enquiry. She testified that
because the situation at the third respondent was volatile she and the third
respondent’s representative had to be fetched by security personnel from a
garage 5 kilometers f rom the third respondent’s premises. She added that at the
disciplinary hearing the only objection by the applicant’s representative, Mr
Mohamose (Mohamose), was that the disciplinary enquiry should not have been
held as the third respondent was supposed to have acted in terms of the dispute
resolution clause in the picketing rules. When the objection was dismissed
Mohamose stopped participating in the disciplinary enquiry which was proceeded
with and concluded.
[16] In determining the procedural fairness of the dismissal the commissioner had to
establish whether the individual applicants’ dismissal was effected in accordance
4 [2008] 3 BLLR 197 (LAC).
10
to a fair procedure. The evidence tendered at arbitration was that the third
respondent afforded the applicant an opportunity to state a case before taking
the decision to dismissal the individual applicants. The opportunity was not
seized but the applicant’s representative elected not to participate when his
objection on the procedure to be followed was dismissed. The third respondent’s
evidence that the opportunity was granted was not refuted and no evidence was
tendered at arbitration which supported the finding that the dismissal was
procedurally unfair. The totality of the evidence tendered at arbitration proves
that the commissioner considered the procedural fairness of the dismissal and
that his decision on it is included in his final decision that the dismissal was fair.
The commissioner’s omission to make an express finding that the dismissal was
procedurally fair did not constitute an irregularity. It did not have the effect of
distorting his decision.
[17] I accept the third respondent’s submission that the applicant’s contention that
commissioner incorrectly upheld the dismissal of faceless and nameless
employees is invalid as it is inconsistent with the evidence led at arbitration. The
record reflects that the commissioner applied his mind to the issue of the identity
of the dismissed employees. He dealt with it as follows:
“COMMISSIONER: Thank you. One thing that is just important for me and I want
to make 100% sure. At the beginning when I saw the pre- arb it was the Union’s
case that it was not misconduct. That whole thing about it. During one of your
questions you said that all 89 people were not there. Di d you change your
11
position? Because I need to know whether …. The Respondent needs to know
whether they must go through an identification exercise.
Mr MOHAMOSE: No, no Commissioner we were just putting it as a question. I
think our case still remains as our opening that whether there was misconduct or
a breach of Picketing Rules.
COMMISSIONER: Okay. So I can put it on the record there is no need for an
identification that we now need to go through every single video footage and
identify the employees.
MR MOHAMOSE: I confirm on record so Commissioner.
COMMISSIONER: Okay.”
[18] The applicant’s attempt to rely on the commissioner’s omission to consider
mitigating circumstances before reaching his decision on the fairness of the
dismissal cannot succeed. Item 7 of schedule 8 to the LRA which provided
guidelines in cases of dismissal for misconduct at the time the arbitration was
held provided as follows:
“Guidelines in cases of dismissal for misconduct
Any person who is determining whether a dismissal for misconduct is unfair
should consider-
(a) whether or not the employee contravened a rule or standard regulating
conduct in, or of relevance to, the workplace; and
(b) if a rule or standard was contravened, whether or not –
(i) the rule was a valid or reasonable rule or standard;
12
(ii) the employee was aware, or could reasonably be expected to have
been aware , of the rule or standard;
(iii) the rule or standard has been consistently applied by the employer;
and
(iv) dismissal was an appropriate sanction for the contravention of the rule
or standard.”
[19] It can be seen f rom the above guidelines that the commissioner was not
specifically expected to consider the individual applicants’ mitigating
circumstances. A reading of the arbitration award reveals that the commissioner
complied with the provisions of item 7 of schedule 8 to the LRA. Section
138(7)(a) required the commissioner to issue an arbitration award with brief
reasons. He fulfilled that requirement.
[20] The totality of the evidence before the arbitrator was that the individual applicants
breached picketing rules deliberately and committed misconduct in the process. I
accept the third respondent’s argument that the commissioner justifiably found
that the gravity of the individual applicants’ conduct justified dismissal. The right
to strike is enshrined in the constitution. The LRA regulates the way in which it
must be exercised. Part of that regulation is found in section 69 of the LRA which
grants registered trade unions the right to authorize a picket by its members and
supporters to peacefully demonstrate in support of a protected strike. The letter
of the LRA requires the right to strike to be exercised peacefully in a manner that
does not disturb the employer’s efforts to conduct business during the protected
strike. The commissioner’s decision that the individual applicants’ conduct
13
rendered the continued work relationship between the parties before him
intolerable is consistent with the purpose and letter of the LRA. The errors he
made in the conduct of the arbitration did not render his decision unreasonable.
The arbitration award is based on evidence properly placed before the
commissioner and reasonable.
[21] The applicant and third respondent have a continuing relationship. A costs order
against the applicant will therefore be inappropriate.
[22] In the premises, the following order is made:
1. The application for review is dismissed.
2. There is no order as to costs.
MZN Lallie
Judge of the Labour Court of South Africa
('..
14
Appearances
For the Applicant: Advocate Cook
Instructed by LDA Inc Attorneys
For the Third Respondent: Advocate P. Bekker SC
Instructed by Maritz Smith Inc