IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 2099/22
In the matter between:
NATIONAL UNION OF METALWORKERS OF First Applicant
SOUTH AFRICA (“NUMSA”) obo
SIPHO NKOSI & 4 OTHERS Second to Further Applicant
and
PFG BUIDLING GLASS (PTY) LTD First Respondent
NATIONAL BARGAINING COUNCIL FOR Second Respondent
THE CHEMICAL INDUSTRIES (“NBCCI”)
COMMISSIONER KENNETH DLAMINI Third Respondent
Heard: 04 July 2025
Delivered: 14 October 2025
Summary: The Applicant seeks to review and set aside an arbitration award
dated 9 July 2022.
2
JUDGMENT
PRETORIUS, AJ
Introduction
[1] This is an application to review and set aside an arbitration award dated 9
July 2022, which was received by the Applicant on 16 August 2022, under
case number CHEM 409-14/15 (Award). In the Award, the Third Respondent
found that the dismissal of the Second to Further Applicants (the individual
applicants) was substantively fair.
[2] Dissatisfied with the award, the Applicants launched this review application on
27 September 2022 . This application has been brought in terms of Section
145, read with section 158(1)(g) of the Labour Relations Act1 (LRA).
[3] The First Respondent opposed this review application.
[4] This review application relates to whether the decision of the Third
Respondent was one that a reasonable decision maker could reach in finding
that the dismissal of the individual Applicants was substantively fair.
Background
[5] The Applicants were employed by the First Respondent in different positions
and were stationed at 216 Industry Road, New Era, Springs.
[6] The Applicants were subjected to a disciplinary enquiry wherein they were
found guilty of misconduct and subsequently dismissed.
[7] The Applicants referred their dispute of unfair dismissal to the National
Bargaining Council for the Chemical Industry (the Council) on 19 May 2015,
accompanied by a condonation application which was refused by the Council.
1 Act 66 of 1995, as amended.
3
[8] An application was filed at the Labour Court to set aside the refusal by the
Council. The Labour Court set aside the condonation ruling by the Council
and remitted the matter to the Council for arbitration.
[9] The dispute was arbitrated before the Third Respondent , and an arbitration
award was issued on 9 July 2022, and received by the Applicants on 16
August 2022.
[10] The Applicants approached this Court for the review and setting aside of the
arbitration award on 27 September 2022 in respect of substantive fairness
only.
[11] On 10 and 13 April 2015, the First Respondent preferred two charges of
incitement and gross insubordination against the individual Applicants.
[12] Charges 1 and 2 read as follows:
“Incitement in that on 19 March 2015, on or about 05h50, they refused to join
the meeting that was schedules, causing other employees to feel intimidated
to carry on with the meeting and also influence them towards negative
behaviour”.
“Gross insubordination serious disrespect, impudence, or insolence by
refusing instruction to join a meeting that was scheduled on the 19
th of March
2015 and used racially offensive language towards the team leader.”
[13] At the conclusion of the disciplinary hearing, the individual Applicants were
found guilty of the two charges by the Chairperson and dismissed.
[14] On 1 November 2019, the matter came before the Third Respondent wherein
the Applicants alleged that the sanction issued by the Chairperson of the
disciplinary hearing was too harsh.
[15] On 9 July 2022, the Third Respondent issued his award which award is now
the subject of these review proceedings.
The issues before the third respondent
[16] Only substance was in dispute.
4
[17] The individual Applicants conceded that they refused to attend the meeting on
the day in question. They gave reasons and raised concerns whilst giving
evidence as to why they refused to join the scheduled meeting.
[18] The arbitration hearing took some nine days to complete.
[19] The First Respondent called four witnesses and produced a bundle of
documents upon which it relied. The Applicants called four witnesses and did
not file a separate bundle.
[20] Ultimately the Third Respondent issued an extensive award running into some
20 pages. In the Award, the relevant evidence of all the witnesses is
succinctly summed up. I do not intend to repeat such exercise herein.
The alleged reviewable irregularities
[21] The individual Applicants raised primarily the following alleged reviewable
irregularities:
The arbitrator failed to enquire whether there was incitement on the part of the
individual Applicants
[22] Firstly, the individual Applicants raised that the arbitrator failed to apply his
mind at all to the reasons advanced by the individual Applicants for refusing to
attend the meeting. Such reasons do not fall within the definition of
“Incitement” which entails “the act of encouraging somebody to do something
violent, illegal, or unpleasant”
2.
[23] The individual Applicants further argued that the evidence did not prove at all
that there was any incitement or intimidation of any employees who attended
the meeting.
[24] The First Respondent countered these submissions by conceding that the two
charges were so closely linked that it could constitute an impermissible
splitting of charges.
[25] However, the First Respondent contended that the arbitrator was satisfied that
2 Oxford Advanced Learner’s Dictionary 7th edition p 754.
5
the employees were guilty of the second charge they faced (“ gross
insubordination, serious disrespect, impudence or insolence) and that
dismissal was justified under the circumstances. As such, it contended that
his award was reasonable.
Arbitrator’s failure to apply his mind to the applicable legal principles.
[26] In relation to whether the individual Applicants were guilty of intimidation , it
was contended that the facts must be considered with reference to the
pronouncements made in Matemane v Driscoll NO and Others3.
[27] It was submitted that the arbitrator did not apply the principles / approach in
the Matemane matter in determining whether the individual Applicants were
indeed guilty of intimidation. It was contented that the arbitrator deferred to the
position of the First Respondent by agreeing that the dismissals were fair
without even scrutinizing the facts within the parameters of the legal issues.
[28] The individual Applicants contended that the commissioner having referred to
the relevant case law regarding gross insubordination, failed to apply his mind
to the principles provided in the said case law.
[29] As a matter of law, the Constitutional Court 4 has described insubordination in
the workplace as “the disregard of an employer’s authority or lawful and
reasonable instructions”.
[30] The individual Applicants contended that the Third Respondent failed to apply
his mind to the legal principles which would have required him to consider
whether:
30.1 the instruction conveyed by the employer to convene at the meeting
venue in the height of safety concerns raised by the individual
Applicants was reasonable.
30.2 there was a “ defiant challenge of the employer’s authority in the
presence of other employees.”
3 (JR1690/13) [2016] ZALCJHB 199 (25 May 2016).
4 NUPSAW obo Mani and Others v National Lotteries Board [2014] 7 BLLR 621 (CC) AT PARA 57.
6
[31] The individual Applicants contended that had the Third Respondent applied
the legal principles to the evidence before him, he would have found that:
31.1 Firstly, the individual Applicants feared getting injured as there were
moving forklifts transporting broken glass to be re- processed.
Furthermore, there was a cold storage for vinyl used in the making
glass process as well as a noisy extraction fan for SP3 plant. As such
the venue was not conducive for a meeting. This alone, the individual
Applicants submitted, rendered the instruction unreasonable.
31.2 Secondly, the canteen was customarily used as a venue for meetings
as there were chairs and a white board which could be used to write
and share handover information. As a result, there existed no reasons
against the heightened safety concerns to have changed the venue to a
place which was not conducive at all for a meeting.
31.3 Thirdly, the employer provided no evidence demonstrating the
reasonableness of its instruction. This despite it having a duty to prove
the fairness of the dismissal.
[32] The individual Applicants contended that the arbitrator ought to have found
that the safety concern that the individual Applicants had was warranted. This
was so because there had been a safety incident whereby a large piece of
glass had fallen.
[33] The individual Applicants further contended that the arbitrator in paragraphs
111 and 112 of his Award simply recorded the evidence of the individual
Applicants’ refusal to heed the instruction but fail ed to enquire as to whether
such refusal amounted to a defiant challenge to the employer’s authority in
the presence of other employees
5. They further contended that such defiance
must be to other employees adopting a different stance to that of the
individual Applicants.
[34] Furthermore, according to the individual Applicants, the Third Respondent
5 As alluded to in SAMWU and Another v Rand Water and Others (JR 173/13) [2015] ZALCJHB 138
(29 April 2015)
7
failed to apply his mind to the issue of whether the perceived insubordinate
behaviour by the individual Applicants was persistent6.
[35] Lastly, the individual Applicants contended that the Third Respondent did not
pronounce on the reasonableness of the instruction or make a finding that the
defiance by the individual Applicants were gross.
[36] With reference to this heading, the First Respondent countered that:
36.1 a perusal of the award makes it clear that the Third Respondent had
regard to a number of judgments , that d ealt directly with the issue of
gross insubordination.
36.2 the Third Respondent also had regard to the Code of Good Practice:
Dismissal
7.
36.3 whatever criticisms levelled at the Third Respondent regarding the
applicable legal position, is of no assistance to the Applicants because
they have not demonstrated that such failures resulted in incorrect
reasoning or an unreasonable award for any other reason.
36.4 with reference to the individual Applicants’ safety concerns, the F irst
Respondent contended that the Third Respondent in fact applied his
mind in reaching the conclusion that “ no evidence was also presented
to establish that the new meeting venue was not safe".
36.5 regarding whether or not the individual Applicants ’ conduct amounted
to a defiant challenge of the First Respondent’s authority in the
presence of other employees, i t was common cause that there were
other employees present when the various instructions were given and
defied. Also, the Third Respondent was satisfied that the instructions
were given to the individual Applicants by more than one senior person,
that the instruction was work -related, and that the individual Applicants
had persistently relied on their own reasons for not attending the
6 As alluded to in National Union of Mineworkers obo Selemela v Northam Platinum Ltd [2014] 9
BLLR 870 (LAC).
7 Schedule 8 to the LRA.
8
meeting. As such (so it was contended), the Third Respondent had
regard to the fact that they were defiant and that the misconduct was
committed in the presence of other employees.
36.6 lastly, the Third Respondent found that the individual Applicants
“persistently relied on their own reasons for not attending the meeting”.
The commissioner failed to apply his mind and committed a gross irregularity when
finding that Tyuluba was not a credible witness
[37] The individual Applicants contended that on this topic, the Third Respondent
failed to employ the technique required to make the credibility finding
prescribed by this Court in Harmony Gold Mining Company Ltd v Commission
for Conciliation, Mediation and Arbitration and Others
8.
[38] It is contended further, that it is not clear why the commissioner f ound that
Tyuluba was not a credible witness.
[39] The First Respondent countered this contention by stating that the Third
Respondent set out brief reasons for finding him not to be a credible witness ,
and that was sufficient.
The Arbitrator’s failure to find that the employer failed to apply discipline consistently
[40] The individual Applicants contended that the failure of Mr Stanley Duze to
testify should not overshadow the undisputed evidence led by all the
Applicants’ witnesses that Mr Duze and Mr Tyuluba were indeed not
disciplined despite them being part of the group who remained in the canteen
in the face of the instructions to attend the meeting.
[41] Furthermore, it was also contended that the Third Respondent failed to apply
his mind to the fact that the First Respondent failed to prove that it
consistently applied its discipline because Mr Tyuluba was never dismissed
whilst the individual Applicants were dismissed.
[42] The First Respondent contended that the Third Respondent correctly rejected
8 (2018) 39 ILJ 1059 (LC).
9
the evidence that formed the basis for the alleged inconsistency challenge.
Further, the Third Respondent correctly found that no evidence was led that
the First Respondent was made aware of the inconsistency issue before the
pre-arbitration meeting which occurred more than six years after the dismissal
of the individual Applicants.
The arbitrator’s failure to embark on the enquiry as to whether dismissal is an
appropriate sanction in the circumstances
[43] The individual Applicants submitted that a positive approach to discipline is
required rather than a punitive one.
[44] It was further contended that the Third Respondent failed to consider that in
terms of the First Respondent’s disciplinary code the appropriate penalty for
refusal to obey reasonable instructions related to work for a first offence is a
first written warning. As such the Third Respondent should have enquired
whether the employer’s departure from the standard set by the disciplinary
code was fair. If he did, he should have found that such departure was not
warranted.
[45] The approach taken by the arbitrator wa s reviewable in that it amount ed to a
dereliction of the duties placed upon him by the Constitutional Court.
[46] According to the First Respondent the following were relevant findings
justifying the sanction of dismissal:
46.1 on their way to the plant, t he individual Applicants walked past the
venue where the other employees, who had heeded the instruction,
was attending the meeting.
46.2 those who attended the meeting felt intimidated and uncomfortable by
those who refused to attend, when they walked past the meeting
venue.
46.3 the individual applicants blatantly refused an instruction from their direct
superiors to attend the meeting at the alternative venue.
10
46.4 the reasons for their refusal were refuted by the First Respondent’s
witnesses.
46.5 the individual Applicants showed no remorse.
[47] The First Respondent also pointed out that the individual A pplicants were not
dismissed for failure to obey a reasonable instruction. They were dismissed
for “gross insubordination, serious disrespect, impudence or insolence”. The
First Respondent’s disciplinary c ode prescribed dismissal even for a first
offence.
[48] As such, the First Respondent contended that the award of the Third
Respondent was one that a reasonable decisionmaker could reach.
Test on Review
[49] I have to deal with the grounds for review within the context of the test that
this Court must apply in deciding whether the Arbitrator’s decision is
reviewable. The test has been set out in Sidumo and another v Rustenburg
Platinum Mines Ltd and others (Sidumo).
9 The Constitutional Court held that
the Arbitrator’s conclusion must fall within a range of decisions that a
reasonable decision maker could make. The test is therefore whether the
decision reached by the Commissioner is one that a reasonable decision
maker could reach, having regard to the evidence before him/her.
[50] The Labour Appeal Court (LAC) in Gold Fields Mining SA (Pty) Ltd (Kloof
Gold Mine) v Commission for Conciliation, Mediation and Arbitration and
others
10 affirmed the test to be applied to review proceedings and held that:
“In short: A reviewing 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 that is reasonable.”
[51] The LAC authoritatively considered the Sidumo review test in Fidelity Cash
Management Service v Commission for Conciliation, Mediation and Arbitration
9 (2007) 28 ILJ 2405 (CC) at para 110.
10 (2014) 35 ILJ 943 (LAC) (Goldfields) at para 16.
11
and others11 (Fidelity Cash) and stated the following:
“The Constitutional Court has decided in Sidumo that the grounds of review
set out in s 145 of the Act are suffused by reasonableness because a CCMA
arbitration award, as an administrative action, is required by the Constitution
to be lawful, reasonable and procedurally fair. The court further held that such
an award must be reasonable and if it is not reasonable, it can be reviewed
and set aside.”
[52] As to what would be considered to be unreasonable, the LAC in Fidelity Cash
held as follows12:
“The Constitutional Court further held that to determine whether a CCMA
commissioner's arbitration award is reasonable or unreasonable, the question
that must be asked is whether or not the decision or finding reached by the
commissioner 'is one that a reasonable decision maker could not reach' (para
110 of the Sidumo case). If it is an award or decision that a reasonable
decision maker could not reach, then the decision or award of the CCMA is
unreasonable, and, therefore, reviewable and could be set aside. If it is a
decision that a reasonable decision maker could reach, the decision or award
is reasonable and must stand. It is important to bear in mind that the question
is not whether the arbitration award or decision of the commissioner is one
that a reasonable decision maker would not reach but one that a reasonable
decision maker could not reach…”
[53] The LAC in Fidelity Cash formulated the " outcome based review test " which,
the LAC held, is what the Sidumo review test envisaged. The LAC held13:
“It seems to me that… there can be no doubt now under Sidumo that the
reasonableness or otherwise of a commissioner's decision does not depend -
at least not solely - upon the reasons that the commissioner gives for the
decision. In many cases the reasons which the commissioner gives for his
decision, finding or award will play a role in the subsequent assessment of
decision, finding or award will play a role in the subsequent assessment of
whether or not such decision or finding is one that a reasonable decision
maker could or could not reach. However, other reasons upon which the
11 (2008) 29 ILJ 964 (LAC) at para 96.
12 Ibid at para 97.
13 Ibid at para 102.
12
commissioner did not rely to support his or her decision or finding but which
can render the decision reasonable or unreasonable can be taken into
account. This would clearly be the case where the commissioner gives
reasons A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately before him or her, one finds that there
were reasons D, E and F upon which he did not rely but could have relied
which are enough to sustain the decision.”
[54] The LAC in Fidelity Cash concluded14 -
“…. Whether or not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with due regard
to all the evidence that was before the commissioner and what the issues
were before him or her. There is no reason why an arbitration award or a
finding or decision that, viewed objectively, is reasonable should be held to be
unreasonable and set aside simply because the commissioner failed to
identify good reasons that existed which could demonstrate the
reasonableness of the decision or finding or arbitration award.”
[55] Our courts have repeatedly stated that in order to maintain the distinction
between review and appeal, an award of the Arbitrator will only be set aside if
both the reasons and the result are unreasonable in determining whether the
result of an Arbitrator’s award is unreasonable. This Court must broadly
evaluate the merits of the dispute and consider whether, if the Arbitrator’s
reason is found to be unreasonable, the result is, nevertheless, capable of
justification for reasons other than those given by the Arbitrator. The result
will, however, be unreasonable if it is entirely disconnected from the evidence,
unsupported by any evidence and involves speculation by the Arbitrator.
[56] Unreasonableness is thus the threshold for interference with an Arbitrator’s
award on the review.
Analysis of the Arbitrator’s Findings
[57] The following aspects or findings in the Third Respondent’s Award is
[57] The following aspects or findings in the Third Respondent’s Award is
important in making an assessment whether his award can be set aside on
14 Ibid at para 103.
13
the basis of unreasonableness:
57.1 In my view, the case law referred to by the Third Respondent
sufficiently set out the prevailing legal position regarding gross
insubordination and serious disrespect.
57.2 I am in agreement with the discomfort of the Third Respondent about
the almost seven- year time lapse from dismissal to actual arbitration.
The reference to SACCAWU v Irvin and Johnson Ltd
15 is equally
apposite. The Courts have begun to set a high threshold for
inconsistency challenges and have warned that the parity principle
must not be applied willy -nilly16. In the ABSA Bank Ltd v Naid u and
others17 the Labour Appeal Court indicated that consistency is only one
factor to be considered when assessing the fairness of the dismissal. It
is not in itself decisive. The parity principle was never intended to
create chaos in the workplace. Moreover, the fact that the
inconsistency challenge wa s only raised for the first time at the pre -
arbitration stage which occurred more than six years after the dismissal
of the individual Applicants , is problematic as an inconsistency
challenge should be raised at the outset. I agree with the Third
Respondent that this inconsistency challenge was in all probability an
after-thought.
18
57.3 It must also be pointed out that only one of the persons who allegedly
also refused to attend the meeting was called to testify by the individual
Applicants, namely Gracious Tyuluba. The Third Respondent found him
to be not credible by comparing his evidence with that of the other
witnesses who testified on behalf of the individual Applicants and
because his version was highly improbable.
57.4 The Third Respondent was alive to the following common cause facts:
15 (2000) 21 ILJ 1583 (CC).
16 See: Singh v eThekwini Municipality (Treasury Department) and others (2015) 36 ILJ 769 (LC) and
ABSA Bank Ltd v Naidu and others (2015) 36 ILJ 602 (LAC) at para 35-42.
17 (2015) 36 ILJ 602 (LAC) at para 35-42.
17 (2015) 36 ILJ 602 (LAC) at para 35-42.
18 See: National Union of Mineworkers obo Botsane v Anglo Platinum Mine (Rustenburg Section)
(2014) 35 ILJ 2406 (LAC) para 39.
14
57.4.1 The instruction to attend the meeting was given to the
individual Applicants by more than one senior per son at the
Third Respondent. Those persons who issued the instruction
to the individual Applicants had the authority to give such
instructions.
57.4.2 The instruction was work -related and was defied on more than
one instance in the presence of other fellow employees.
57.4.3 Those who refused to attend the meeting, walked past the
venue where those who heeded the instruction attended the
meeting, and they were visible to those attending the meeting.
57.5 The evidence of the witnesses of the First Respondent was not
challenged on any material grounds and the Third Respondent
accepted the evidence of the First Respondent’s witnesses over that
tendered on behalf of the Applicants. Such a credibility finding is not
easily overturned on review
19.
57.6 Two of the First Respondents witnesses testified that when the
individual Applicants walked past the meeting venue at the entrance of
the plant, it intimidated those who attended the meeting and created a
sense of discomfort with those in the meeting.
57.7 The individual Applicants never lodged a grievance or formal complaint
regarding the change of venue. In my view the bases put up for
refusing to attend the meeting cannot be sustained especially as the
correct approach would have been to attend the meeting and thereafter
raise an objection or a grievance as to the venue.
57.8 The individual Applicants showed no remors e for their refusal to attend
a work -related meeting. As such and given their persistent and
collective refusal to heed a legitimate instruction, the First Respondent
cannot be expected to put up with such conduct.
19 Standerton Mills (Pty) Ltd v CCMA and others [2012] 1 BLLR 84 (LC) at para 18; See: NUM and
another v CCMA and others (2013) 34 ILJ 945 (LC) at para 30.
15
[58] For the above reasons, the Third Respondent concluded that the dismissal of
the individual Applicants was substantively fair. This was clearly a conclusion
that a reasonable decisionmaker could reach.
[59] With reference to the main grounds of review, I conclude as follows:
59.1 Having regard to his award, it is clear that the Third Respondent dealt
with the matter as one regarding gross insubordination and not
incitement. I cannot fault this approach.
59.2 Secondly, the Third Respondent was satisfied that:
59.2.1 the instructions were given to the individual Applicants by more
than one senior person;
59.2.2 the instruction was work-related, and
59.2.3 the individual Applicants had persistently relied on their own
unwarranted reasons for not attending the meeting.
As such, the Third Respondent had regard to the fact that they were
defiant and that the misconduct was persistently committed in the
presence of other employees. As such, I am satisfied that the individual
Applicants’ conduct constituted gross insubordination.
59.3 I have already expressed my views above in regard to the credibility
finding made by the Third Respondent against Mr Tyuluba. I reiterate
that such finding is very difficult to overturn on review.
59.4 Similarly, I also agree that the belated raising of an inconsistency
challenge by the individual Applicants was in all probability an after -
thought.
59.5 Lastly, the Third Respondent did embark on an assessment if dismissal
was warranted. His positive conclusion, based on the facts before him,
was reasonable.
16
Conclusion
[60] Having regard to the facts and circumstances of this case, I am not convinced
that the result is one that reasonable decision maker could not reach in light of
the issues and the evidence placed before him. As such, the review
application must fail.
Costs
[61] Even though costs were not argued before me, it was sought in the review
papers.
[62] This Court has a discretion in terms of section 162 of the LRA to order costs
in accordance with the requirements of the law and fairness. Furthermore, in
the Union for Police Security and Corrections Organisation v South African
Custodial Management (Pty) Limited and others
20, the Constitutional Court
has made it clear that costs should only be awarded by this Court in
exceptional circumstances. In the present instance, there are no exceptional
circumstances, and I am of the view that this is a matter that, in the interests
of fairness and equity, does not warrant a cost order being made.
[63] In the premises, the following order is made:
Order
1. The Applicant’s review application is dismissed.
2. There is no order as to costs.
_______________________
D. O. Pretorius
Acting Judge of the Labour Court of South Africa
20 2021 (11) BCLR 1249 (CC) at para 40.
17
Appearances:
For the applicant : Mr X. Ngako of Ngako Attorneys
For the respondent : Mr C. Kirchmann of Kirchmanns Inc.