IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR2374/2022
In the matter between:
EXXARO COAL (PTY) LTD (GROOTGELUK) Applicant
and
THE COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
MATHEKGA N.O. Second Respondent
SOLIDARITY TRADE UNION Third Respondent
SCHEEPERS, GIDEON Fourth Respondent
Heard: 23 October 2024
Delivered: 11 June 2025
JUDGMENT
VUKEYA, AJ
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[1] The applicant, Exxaro Coal (Pty) Ltd, 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 and dated 27
September 2022. In its Notice of Moti on, the applicant prays for an order as
follows:
1.1. Reviewing and setting aside the arbitration award in the dispute
between Exxaro Coal (Pty) Ltd and Solidarity Union obo G Scheepers,
issued by the second respondent under case number LP3737-22 on 27
September 2022 and served on the applicant by the first respondent on
27 September 2022;
1.2. Substituting the award, issued by the second respondent, with an order
that the fourth 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 contends that the second respondent committed gross
irregularities in the assessment of the evidence and misconstrued t he nature
of the enquiry. According to the applicant, the gross irregularities had a
distorting effect on the commissioner’s conclusions and outcome that the
fourth respondent was n ot guilty of dishonesty and on his finding that the
fourth respondent’s dismissal was substantively unfair.
[3] The factual matrix of this matter are common cause between the parties and
can be summarised as follows: The fourth respondent was booked of f sick on
the 4
th of August 2021 for a knee operation. Dr Olivier booked him off sick
from 4 August 2021 until 31 August 2021 to also allow for recuperation. The
1 Act 66 of 1995, as amended.
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fourth respondent’s sick leave was authorised by the applicant in terms of the
applicant’s leave policy.
[4] T he fourth respondent had applied for annual leave prior to the sick leave for
his knee operation, which was disapproved by his line Manager. A few
months after his annual leave application was rejected, the fourth respondent
had to have a knee operation. He applied for sick leave to have the knee
operation, and it was approved. Indeed, the fourth respondent had the
operation. While on the road to recovery, his wife organised a trip to Cape
Town, and the fourth respondent went on this trip with his wife while,
according to the applicant, he was supposed to be recuperating at home. The
two went on a three- day trip on the Blue Train from Cape Town to Pretoria,
which departed on 26 August 2021 and arrived in Pretoria on 28 August 2021.
The couple flew to Cape Town on 25 August 2021.
[5] The applicant discovered through the fourth respondent’s wife’s Facebook
page that the fourth respondent was on vacation in Cape Town when he was
supposed to be recovering from the operation. The fourth respondent was
charged with dishonesty by the applicant, categorised as misuse of sick leave
other than for purposes of recuperation and medical treatment. According to
the applicant, the offence is contained in the applicant’s Disciplinary Code and
it reads thus:
‘Any dishonesty or attempted dishonesty including conspiracy, theft,
unauthorised possession of property, misuse of sick leave for purposes other
than recuperation or for medical treatment, bribery, fraud, corruption, forgery
or giving false or misleading statements to anybody.’
[6] In terms of the applicant’s Disciplinary Code, the recommended sanction for
the offence of dishonesty is dismissal , even if one is a first offender . The
fourth respondent was found guilty of dishonesty during a disciplinary hearing
and was dismissed from work on 22 March 2022. He then approached the
and was dismissed from work on 22 March 2022. He then approached the
first respondent and lodged a dispute in terms of the Labour Relations Act and
the matter proceeded to arbitration on 1 August 2022 and 19 September
2022.
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[7] A t the arbitration hearing, it was apparent that the fourth respondent would
challenge the substantive fairness of his dismissal based on the following: that
there was no contravention of a rule as the employer did not have a rule
regarding where an employee must recuperate during sick leave.
Alternatively, if it is found that there is such a rule, the fourth respondent did
not contravene the rule, and therefore, not guilty of the misconduct with which
he was charged. Further, alternatively, if it is found that a rule was
transgressed, the sanction of a dismissal was too harsh.
[8] In essence, t he fourth respondent did not deny the factual basis of the
allegations and his defence was that the vacation was planned by his wife
while he was on sick leave without his involvement or even his knowledge. He
provided proof of bookings done by his wife and these documents showed
that his wife started the booking process on 13 August 2021. The reservation
for the train indicated a medical condition and that a wheelchair assistance
was needed for the Blue T rain and the flights due to the fourth respondent’s
knee injury. The purpose of the vacation was to celebrate the birthday of the
fourth respondent’s wife. The fourth respondent however denied that his
conduct amounted to dishonesty and that the applicant had a rule that
employees were to be confined to their homes while recovering from medical
conditions.
[9] After hearing evidence at the arbitration hearing, the second respondent
found that the applicant had failed to make out a proper case of dishonesty
and concluded that the fourth respondent’s dismissal was substantively unfair.
He then ordered the applicant to pay compensation to the fourth respondent
in the amount of R226 520.70, equivalent to his month’s salary.
[10] The second respondent determined the issues to be decided to be 1) w hether
the fourth respondent was guilty of dishonesty; 2) Alternatively, whether the
the fourth respondent was guilty of dishonesty; 2) Alternatively, whether the
fourth respondent had sought and was granted leave for other purpose than
recuperation; and 3) Whether the fourth respondent was precluded from
travelling while on sick leave by a workplace rule or custom. In the event he
found that the dismissal was unfair for one or other reason, determine a
reasonable sanction.
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[11] He remarked when making the award that he was not persuaded that the
fourth respondent has acted dishonestly and applied for sick leave for
purposes of going on holiday. He was satisfied that the fourth respondent was
indeed ill, that he had undergone an operation and that he had been booked
off sick to recuperate away from work. Although the second respondent was
of the view that the fourth respondent had concealed his knowledge of the
vacation, he was charged with being dishonest with regard to the purpose for
which he sought leave and was granted leave but not his knowledge of the
planned trip, he remarked.
[12] According to the second respondent, the applicant has no such rule that
required the fourth respondent to confine himself to his home for purposes of
recuperating. He therefore agreed with the finding of the disciplinary inquiry
that the fourth respondent was not guilty of dishonesty. The second
respondent relied on the evidence of Ms Maluleke that she was not aware of
any rule barring the fourth respondent from travelling while on sick leave and
one that relates to where an employee must recuperate during a sick leave.
[13] The second respondent rejected the evidence of Mr Baloyi that the applicant
has a practice regulating where employees should be confined during sick
leave for purposes of recuperating. According to Mr Baloyi, these practices
bar travelling during this period. Baloyi seems to have conceded in his
evidence that there was no evidence before him of any previous cases
dealing with a similar matter where an employee was charged for
contravening the rule or practice. For reasons such as lack of credibility,
untruthfulness and fabrication, the second respondent rejected Baloyi’s
evidence. It is for the above brief reasons that the second respondent
concluded that the fourth respondent’s dismissal was substantively unfair.
[14] The second respondent declined to award maximum compensation and thus
[14] The second respondent declined to award maximum compensation and thus
awarded compensation equivalent to six (6) months’ remuneration to the
fourth respondent. Although he remarked that the fourth respondent’s defence
that he did not know about the vacation until the date of travelling was flimsy
and absurd, he granted compensation stating that the onus was on the
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applicant to prove the case it set out in the charges and not on the fourth
respondent.
[15] Clearly, the applicant was aggrieved by the findings and the award made by
the second respondent, hence this application. The applicant raises the
following grounds to have the award reviewed and set aside by this Court:
15.1 The second respondent committed the gross irregularities in the
assessment of the evidence and misconstrued the nature of the
enquiry;
15.2. The second respondent did not apply his mind to the common cause
facts, otherwise, he would have arrived at a different conclusion;
15.3. The second respondent failed to address the issues raised for
determination, resulting in a total misconception of the inquiry;
15.4. T he second respondent concerned himself with determining
misconduct that the fourth respondent was not charged with, instead of
determining that which he was found guilty of.
[16] The applicant , therefore, contends that the award made by the second
respondent is not a decision a reasonable decision maker would have arrived
at on a full conspectus of the facts before him.
[17] In its heads of argument , the applicant submits that the second respondent
misconstrued the facts and confused the issues he had to determine by
describing the misconduct as that the fourth respondent applied for and was
granted sick leave for purposes of travelling to Cape Town on holiday rather
than remaining at home to recuperate. It is the applicant’s submission that it
was never its case that the fourth respondent was dishonest when applying
for sick leave, but that he travelled on holiday whilst on authorised paid sick
leave.
[18] According to the applicant, the question for determination should have been
whether the fourth respondent, who was on authorised sick leave, with a valid
medical certificate, was able to go on holiday when he should have been at
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home recovering. It was argued on behalf of the applicant that the second
respondent should have considered that if the fourth respondent could go on
vacation during this period, he could have performed his desk duties as a
clerk. The second respondent should have dealt with the question of whether
the employee misused his sick leave to such an extent that he was dishonest.
[19] It was further submitted on behalf of the applicant that even though there is no
express written rule setting out that employees cannot take a holiday during
sick leave, the rule must be implied in the general employment relationship,
given the fourth respondent’s obligation to render service on being paid for
such service. The applicant submitted that the fourth respondent’s silence
regarding the holiday and the explanation given on record indicate that he
was dishonest regarding his time in Cape Town and how the holiday came
about. The explanation provided by the fourth respondent relating to the fact
that he suffered depression while on sick leave was, according to the
applicant, not supported by medical evidence and therefore carries no weight
in favour of the fourth respondent.
[20] The second respondent should have taken into consideration that he had
accepted that sick leave was to recuperate and that the fourth respondent had
conceded that one recuperates at home. The responses elicited during cross-
examination and the concessions made show that the second respondent
committed gross irregularity in finding that the applicant did not have an
established practice of employees recuperating at home whilst on paid sick
leave, the applicant argued.
[21] It was submitted on behalf of the third and fourth respondents that the
applicant has failed to prove that the fourth respondent’s conduct amounted to
dishonesty. These opposing respondents submit that the applicant relied on
speculation and unsupported evidence to suggest that the fourth respondent
speculation and unsupported evidence to suggest that the fourth respondent
should have returned to work, as he was able to tender service if he had been
able to go to Cape Town. They argue that the fourth respondent was declared
unfit to work by a medical practitioner.
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[22] According to the opposing respondents, the second respondent understood
the nature of the dispute before him and considered all relevant facts in
arriving at the conclusion, which is reasonable. The applicant had no express
rule informing the employees where they should be confined to for purposes
of recuperating. It is the opposing respondents’ submission that the facts do
not meet the threshold required to prove that the fourth respondent acted with
dishonest intentions and that he was not recuperating while on the trip.
[23] The opposing respondents further submit that it remains unfair to dismiss the
fourth respondent in circumstances where there is no express policy or rule of
the applicant which requires an employee to recuperate from home during a
sick leave. Therefore, a dismissal was not an appropriate outcome even if it
was found that it is normal practice for employees to recuperate from home,
argued the opposing respondents. The respondents , therefore, submit that
any decision maker would have come to the same conclusion had they
considered the evidence in this matter.
[24] It is the respondent’s further submission that the applicant’s grounds for
review have no merit and fall to be dismissed as no reasonable decision
maker would have concluded that the dismissal of the fourth respondent was
fair. The fourth respondent pray s to this Court to find that there was no
misconception of the true inquiry that led to an unreasonable finding.
[25] In this review application, this Court has to determine whether the second
respondent misconstrued the facts that it resulted in him reaching a wrong
conclusion.
[26] In seeking the aforementioned order, the applicant relied on the provisions of
section 145 and contended that the Commissioner committed a 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
‘(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-
…
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(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.’
[27] The applicable test when deciding whether the arbitrator's decision is
reviewable has been emphasized numerous times in a number of decisions,
and more clearly in Sidumo & a nother v Rustenburg Platinum Mines Ltd &
others
2 (Sidumo). In Sidumo, the Constitutional Court held that the test is
whether the decision reached by the Commissioner is one that a reasonable
decision maker could not reach and that the arbitrator's conclusion must fall
within a range of decisions that a reasonable decision maker could make.
[28] In Herholdt v Nedbank Ltd (Congress of South Africa Trade Unions as amicus
curiae)
3 the Supreme Court of Appeal made the following remarks at
paragraph 25:
‘[25] In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible if the defect in the
2 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC) at para 110.
3 [2013] 11 BLLR 1074 (SCA); (2013) 34 ILJ 2795 (SCA).
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proceedings falls within one of the grounds in section 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount to a
gross irregularity as contemplated by section 145(2)(a)(ii), the
arbitrator must have misconceived the nature of the inquiry or arrived
at an unreasonable result. A result will only be unreasonable if it is
one that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. 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.’
[29] Returning to the case in consideration, as already indicated above, the issue
for determination is whether the second respondent misconstrued the facts
that resulted in him reaching a wrong conclusion. It is common cause that the
second respondent applied for and was granted sick leave to undergo an
operation and to recuperate from such an operation while on sick leave. The
sick leave was approved with effect from 4 August 2021 until 31 August 2021.
It is also common cause that the second respondent indeed had a knee
operation during this period and that he travelled with his wife on holiday to
Cape Town during this sick leave period.
[30] The charges faced by the fourth respondent at the disciplinary hearing were
that he had committed a transgression of dishonesty, or attempted dishonesty
by misusing sick leave for other purposes than recuperation or medical
treatment. The second respondent determined the issues to be decided
during the arbitration hearing as follows: “Whether the applicant is guilty of
dishonesty in that he misused sick leave, alternatively, he sought and was
granted sick leave for other purposes other [than] recuperation, and whether
the applicant is precluded from travelling while on sick leave by a workplace
rule or custom…”.
rule or custom…”.
[31] The main ground of review in this application is that the second respondent
misconstrued the nature of the inquiry , resulting in the distortion of the
conclusions and outcome of the hearing. Firstly, the second respondent
repeatedly mentioned the issues that were for determination before him,
which were whether the fourth respondent was guilty of dishonesty, and
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whether he contravened a rule or practice for travelling to Cape Town for a
holiday while on sick leave instead of being confined to his home for purposes
of recovery . Secondly, the second respondent correctly determined that for
the charge of dishonesty, the respondent’s case was that the applicant sought
and was granted sick leave but used it for purposes of travelling to Cape
Town on a holiday rather than remaining at home for the purposes of
recuperating.
[32] The above may sound like the second respondent had missed the point in the
sense that it may mean that the fourth respondent applied for sick leave while
he was not sick, and used it to go on holiday, but this is not what the second
respondent was saying. The second respondent continued to state a fact
which was common cause, and that is, that the fourth respondent was booked
off sick and underwent a knee surgery and had been booked off sick during
the course of his travel to Cape Town.
[33] The second respondent further asserted the correct position and stated firstly,
that the fourth respondent was on authorised sick leave, secondly that, his
medical condition was not in question and thirdly, that for the fourth
respondent to have acted dishonestly, he must have sought leave under false
pretences by alleging that he was sick while he was not. Through the
evidence of Ms Maluleke, it is clear that the applicant’s silent allegation was
that he had applied for leave under false pretences. I mention this because
Ms Maluleke alleged in her testimony that the fourth respondent first applied
for leave prior to August 2021, which application was refused.
[34] This the applicant could not take further because when he applied for sick
leave in August 2021, it was to undergo an operation and he indeed
underwent a knee operation. I cannot find any reason to agree with the
applicant that the second respondent misconstrued the nature of the inquiry ,
applicant that the second respondent misconstrued the nature of the inquiry ,
resulting in the distortion of the conclusions and outcome of the hearing. It is
clear from the record that there was no allegation made clearly that the fourth
respondent applied for leave while he was not sick, and there is no
determination of such a nature made by the second respondent.
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[35] In other words, the purpose for which the sick leave was applied for was to
undergo an operation and seeing as no dispute arose around the fact that the
fourth applicant may not have been sick, it can be accepted that the sick leave
application was for surgery and not to travel. Therefore, I agree with the
second respondent that no dishonesty can be attributed to the fourth
respondent on this particular aspect.
[36] The next inquiry was whether the fourth respondent acted dishonestly by
travelling to Cape Town with his wife while he was on sick leave and while he
was expected to recuperate at home? This is what the applicant found the
fourth respondent guilty of : that is, dishonesty or attempted dishonesty by
misusing sick leave for purposes other than recuperating or for medical
treatment. The second respondent found that indeed the fourth respondent
was sick and was on authorised sick leave when he went on holiday to Cape
Town. He remarked that the fourth respondent may have concealed his
knowledge of the planned trip, but that was not the basis for the charge he
faced. The second respondent , therefore, concluded that he could find no
reason to agree that the second respondent was guilty of dishonesty.
[37] The question asked by the second respondent was whether the fourth
respondent had misused his sick leave? The fourth respondent underwent a
knee operation while on sick leave, so it cannot be said that he misused his
sick leave. Did he seek and was he granted sick leave for purposes other than
recuperating? The fourth respondent sought leave and was granted sick leave
to undergo an operation, and he did. The only thing he did was that, while on
sick leave, the fourth respondent embarked on a trip to Cape Town on holiday
for three (3) days. His sick leave was from 4 August 2021 until 31 August
2021, while his trip to Cape Town was for three days from 25 August 2021 to
28 August 2021.
2021, while his trip to Cape Town was for three days from 25 August 2021 to
28 August 2021.
[38] The applicant averred that the fourth respondent could have reported for light
duties if he could travel to Cape Town while recovering. In dealing with the
issue of dishonesty, it is important to determine if the fourth respondent’s
actions were deliberate or whether they were ignorant. That is where the
issue concerning whether the applicant had a policy in place, known by the
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employees, regulating what is expected from an employee who is on sick
leave and where that employee is expected to be when recuperating.
[39] It was conceded, and therefore common cause, that there is no such policy in
place and the applicant relies on a general practice to bar its employees from
travelling for other purposes than to recuperate, while on sick leave. In casu,
the question is, was the fourth respondent aware, or was he reasonably
expected to be aware of the general practice and whether the applicant in
similar circumstances has consistently applied this general practice.
[40] Policies such as the abuse of sick leave at the place of employment are not to
be assumed by employees. Employees are to be made aware of the
company’s sick leave policies and have to be kept updated on any changes
whenever necessary. The evidence of Baloyi was that he had never had to
deal with an incident of this nature before, which suggests that it could never
have been expected of the fourth respondent to know the general practice
relating to the sick leave rule. From this , it is clear that the fourth respondent
did not act with the intent to be dishonest to his employer. He was simply
ignorant of the unspoken rule or general practice.
[41] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & o thers
4, the Labour Appeal Court
affirmed the test to be applied in review proceedings and held as follows:
[16] 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.
[17] The fact that an arbitrator committed a process-related irregularity is
not in itself a sufficient ground for interference by the reviewing court.
The fact that an arbitrator commits a process related irregularity does
not mean that the decision reached is necessarily one that a
not mean that the decision reached is necessarily one that a
reasonable commissioner in the place of the arbitrator could not
reach.
4 (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC).
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[42] The applicant has the duty to satisfy the test set out in Sidumo and another v
Rustenberg Platinum Mines Limited and others (supra). The question to be
answered from all the contentions is the following: “Is the decision reached by
the Commissioner one that a reasonable d ecision-maker could not reach?” .
My respectful view is that the second respondent did not misconstrue the
issues such that it resulted in him arriving at a misconceived conclusion. He
considered the principal issue before him and evaluated the facts presented
at the hearing and came to a reasonable conclusion that the fourth
respondent’s dismissal was unfair. I cannot fault him, because:
42.1 T he fourth respondent genuinely applied for and was granted sick
leave without any acts of or any attempt to be dishonest;
42.2 He underwent a knee surgery during his sick leave;
42.3 He remained at home and recuperated there for the most part of his
sick leave;
42.4 He utilised only three days of this sick leave, away from home to
celebrate with his wife in Cape Town, while still recuperating;
42.5 He was wheelchair-bound during the flight and while in Cape Town;
42.6 There was no policy in place dealing with whether employees of the
applicant can recuperate far from their homes when on sick leave.
[43] I agree with the second respondent that the applicant failed to satisfy the court
that the fourth respondent misuse d his sick leave for purposes other than
recuperation or for medical treatment, thereby acting dishonestly. The second
respondent’s finding that the fourth respondent’s dismissal was substantivel y
unfair was the only decision a reasonable decision maker could have arrived
at, and therefore the review application falls to be dismissed.
[44] In the premises, the following order is made:
Order
1. The review application is dismissed.
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2. No order as to costs.
_______________________
L. Vukeya
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant:
Instructed by:
For the Respondent:
Instructed by: