THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR288/22
In the matter between:
TRANSNET SOC LTD (TRANSNET ENGINEERING) Applicant
and
NTM OBO JOHN MOLOPE First Respondent
TRANSNET BARGAINING COUNCIL Second Respondent
MAPALO TSATSIMPE NO Third Respondent
TIMOTHY KGORI JEBETLE Fourth Respondent
Heard: 21 July 2025
Delivered: 24 October 2025
JUDGMENT
SCHENSEMA, AJ
2
Introduction
[1] This is an opposed review application brought by the applicant in terms of
section 145 of the Labour Relations Act 1 (LRA) to set aside the arbitration
award made by the third respondent , in respect of which the third respondent
(Commissioner) determined that the first and fourth respondent’s dismissal
was substantively and procedurally unfair.
[2] The arbitration award ordered that the first and fourth respondents be
retrospectively reinstated, effective from 1 February 2022, together with back
pay of 18 months.
Background
[3] The first and fourth respondents (respondents) were employed by the
applicant as a senior technical worker and a stock controller, respectively.
[4] The respondents were dismissed following a disciplinary hearing in which they
were found guilty of numerous allegations of misconduct relating to the
contravention of the applicant’s Acceptable Use and Electronic
Communication Policy, insubordination, insolence, intimidation, threatening
behaviour, defamation of character and misrepresentation of facts.
[5] The disciplinary hearing had proceeded in the respondents’ absence in
respect of which the respondents had submitted medical certificates, as a
basis for their nonattendance.
[6] Dissatisfied with the outcome of the disciplinary hearing, the respondents
referred an unfair dismissal dispute to the Bargaining Council. Extensive
evidence was led through a number of witnesses together with supporting
documents, at the conclusion of which the Commissioner determined the
respondents’ dismissal to be procedurally and substantively unfair and
awarded reinstatement and backpay.
1 Act 66 of 1995, as amended.
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The Award
[7] The Commissioner determined in respect of the procedural fairness challenge
that since the chairperson had himself described the charges as ‘complex’ ,
the respondents’ challenge that the charges were vague was substantiated.
This concern was further compounded by the fact that the respondents had
not received the bundle of documents , which hindered their ability to prepare
for the enquiry.
[8] The Commissioner further determined that the chairperson and the applicant’s
numerous witnesses wrongly stated that the respondents’ union NTM lacked
locus standi on the basis that the applicant did not recognise NTM.
[9] The Commissioner further raised an issue with the fact that the chairperson
had not properly considered the medical certificates submitted in support of
the respondents’ absence. Instead , the chairperson had appeared to simply
focus on the fact that the respondents had launched an urgent application in
the Labour Court to interdict the proceedings , rather than considering the
medical certificates to determine whether a postponement was justified. In this
regard, the Commissioner held that the chairperson should have verified the
respondents’ health status rather than focusing on their application to the
Labour Court.
[10] In respect of the substantive fairness of the first respondent’s dismissal, the
Commissioner determined that the applicant had failed to lead any evidence
that he had utilised the applicant’s email facility or received an instruction
which he had ultimately defied. In light hereof , there was no basis to have
determined that the respondents were ‘ acting in unison’ and that derivative
misconduct does not apply when the actual perpetrator is known. The
Commissioner further determined that the applicant had failed to prove that
there had been a breach of the Acceptable Use and Electronic
Communication Policy or the Recognition Agreement.
[11] In respect of the second charge, the Commissioner determined that the
[11] In respect of the second charge, the Commissioner determined that the
applicant had failed to lead any evidence to demonstrate that the first
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respondent had authored or even co- authored the emails and accordingly the
dismissal was determined to be substantively unfair.
[12] In respect of the substantive fairness of the f ourth respondent’s dismissal, the
Commissioner determined that he had authored emails on behalf of NTM
members in which he raised workplace complaints. The applicant’s instruction
to the fourth respondent to desist from using its email facility for purposes of
conducting union activities was determined to be unfair, unreasonable, invalid,
and this instruction was therefore unlawful.
[13] The Commissioner determined that the fourth respondent’s language as
contained in his emails was inappropriate, but the underlying issues raised
were legitimate employee concerns. Furthermore, there was no basis for the
applicant to refuse to engage with him on the basis that NTM was not
recognised, which the Commissioner considered to be misguided, as the
employees have a legal right to union membership and representation.
Analysis of the award
[14] In effect , the Commissioner found that the respondents’ dismissals were
procedurally unfair due to vague charges, denial of representation, and failure
to consider a postponement.
[15] In respect of substantive fairness, the first respondent’s dismissal was unfair
as no evidence had been led in support of the charges. Similarly , the fourth
respondent’s dismissal was also substantively unfair, despite his conduct not
being appropriate, however , the instruction that he had allegedly defied was
not a lawful one, coupled with the fact that the applicant’s stance in respect of
union recognition was legally flawed.
Grounds of Review
[16] The applicant’s grounds of review can be summarised as follows:
16.1 The Commissioner’s finding that the chairperson had not considered
the medical certificates despite Mrs Matlepeng’s (Matlepeng) evidence
confirming that the medical certificates had been submitted to the
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chairperson is absurd. In this regard, the Commissioner had failed to
take into consideration that the hearing had previously been postponed
on several occasions, that the respondents had stated that they wished
to be dismissed in absentia, together with their intention to launch an
urgent application in the L abour Court. In light of these facts, the
chairperson was justified in proceeding with the hearing in the absence
of the respondents , and the Commissioner’s findings in this regard
demonstrate a reviewable irregularity.
16.2 The applicant further challenges the Commissioner’s findings that
notwithstanding the fact that the respondents had not attended the
hearing and at no stage had raised their concerns in relation to the
charges, it was not possible to have amended the charges or to have
provided further particularity in light of the respondents not being in
attendance to make this request. In this regard, the Commissioner had
failed to consider the applicant’s witnesses’ evidence that the
annexures in support of the charges had been provided to the
respondents and that the Commissioner had incorrectly assumed that
the respondents were not aware of the incidents referred to in the
charge sheet. In light hereof, the applicant considers that these findings
amount to a gross irregularity.
16.3 In respect of substantive fairness, the applicant challenges the award
on the basis that the Commissioner failed to consider the actual
charges, with particular reference to the emails . The Commissioner
had failed to consider the fact that the emails were threatening,
intimidating, undermining and defamatory. The evidence clearly
demonstrated that the respondents had not reported to the seniors to
whom the emails were addressed, and as such had no authority to
address these emails.
16.4 The Commissioner found that the language used in the emails was that
of “an angry person who failed to control his anger - an energy which,
of “an angry person who failed to control his anger - an energy which,
when not controlled, could later be regretted” . It is therefore unclear as
to how the Commissioner had determined that the respondents had
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been influenced by their belief that the employees believed that they
were treated badly. The Commissioner , in this regard, had determined
the charge as one concerning the emotions of the respondents and
thereby misconstrued the nature of this charge and the impact of the
emails on the employment relationship.
16.5 The Commissioner further failed to take into consideration the evidence
of the applicant’s witnesses (which evidence was undisputed) that the
respondents could have utilised the grievance procedure.
16.6 The Commissioner further did not consider the applicant’s ev idence
that the allegations contained in the emails w ere false and/or baseless
and instead focused her findings on the fact that the applicant’s
witnesses had stated that NTM is not a recognised union. By doing so,
the Commissioner misdirected herself in dealing with the actual charge
and the fact that the respondents were in ter alia in breach of the
applicant’s policy.
16.7 The Commissioner further disregarded the evidence of the applicant’s
witnesses and placed more emphasis on the reason as to why the
emails were addressed, and therefore failed in her duties and
obligations to be impartial. The Commissioner had therefore stripped
the applicant of its right to impose discipline in the workplace and
instead rewarded the respondents for their conduct.
16.8 The Commissioner further failed to consider the material evidence
when determining whether the dismissal was an appropriate sanction ,
and had she done so, she would not have come to the conclusions that
she had reached.
16.9 The Commissioner further does not explain and/or question how the
fourth respondent’s email account with its unique password was used
to send emails to the applicant’s managers without his knowledge or
authorisation. In response, the fourth respondent had simply denied the
allegation, and the Commissioner had simply concluded that other
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unions that the applicant recognises are permitted to use the email
facility and have not been reprimanded.
16.10 The Commissioner further seems to rely on the parity principle , namely
that the respondents testified that the other unions that the applicant
recognises are permitted to use its email facility for whatever purpose
and are not reprimanded for doing so. However, it is the applicant’s
submissions that the Commissioner had failed to comprehend whether
consistency was one of the issues for determination, as this had never
been raised as an issue for determination at the commencement of the
proceedings. It was accordingly improper for the Commissioner to have
permitted evidence to be led on inconsistency when it had not been
raised. In light hereof, the Commissioner failed to appreciate the true
nature of the allegations.
16.11 The Commissioner further incorrectly determined that the question that
needed to be answered was whether the instruction to the fourth
respondent was fair, reasonable, valid and lawful. At all material times,
the fourth respondent had been charged with misconduct relating to
gross misconduct pertaining to the contravention of the Acceptable Use
and Electronic Communication Policy, insubordination, insolence,
intimidation, threatening behaviour , defamation of character and
misrepresentation of facts.
16.12 At no stage had the respondents been charged with a failure to accede
to an instruction to refrain from using the applicant’s email facility to
advance NTM’s interests . The applicant’s witnesses had clearly
testified that whilst the emails may have been sent using the fourth
respondent’s email account, they breached the p olicy, were co-
authored by the first and the fourth respondent , the wording of which
amounted to insubordination, insolence, intimidation, threatening
behaviour, defamation of character and a misrepresentation of facts.
16.13 Notwithstanding that the Commissioner correctly found that the emails
16.13 Notwithstanding that the Commissioner correctly found that the emails
referred were sent on behalf of NTM, that the language used was
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inappropriate and that the fourth respondent had been defensive and
had tried be overly technical on the subject, the Commissioner failed to
consider in totality the evidence that had been submitted, which led to
an unreasonable conclusion.
16.14 The Commissioner had determined that in light of the fact that the first
respondent had not been assigned an email account, he could not be
guilty of co- authoring emails , which was inappropriate given that the
evidence clearly demonstrated that the respondents had acted in
unison. In light hereof , the Commissioner had misconstrued the
evidence and the nature of the charges, and the evidence submitted.
[17] In opposition, the first respondent challenges the applicant’s review
application inter alia on the following basis:
17.1 The award is reasonable and justifiable, having regard to the totality of
the witnesses’ testimonies during the proceedings;
17.2 The chairperson had failed to apply his mind to the medical certificates;
17.3 That the chairperson ought to have provided a reason for rejecting the
medical certificates;
17.4 That the Commissioner’s determination that his dismissal was both
procedurally and substantively fair on the basis that the first respondent
had not breached any of the applicable policies;
17.5 That the emails addressed were not malicious but addressed the
employees’ complaints and concerns;
17.6 The aforementioned complaints and concerns were not addressed by
the applicant on the basis that they were NTM members, a union which
was not recognised by the applicant;
17.7 That the instruction to the effect that the employees were not permitted
to raise the complaints and concerns was unlawful; and
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17.8 The applicant’s witnesses had failed to demonstrate what was
threatening, intimidating, undermining and defamatory in the emails.
[18] The fourth respondent challenges the applicant’s review application inter alia
on the following basis:
18.1 The dismissal was procedurally unfair in light of the fact that a medical
certificate had been submitted to substantiate his absence, and the
charge sheet was too vague, therefore not allowing him an opportunity
to properly prepare his defence;
18.2 The dismissal was further substantively unfair in that he had not
transgressed a valid or reasonable rule or standard pertaining to his
workplace; and
18.3 The Commissioner had properly applied her mind to the evidence
before her and came to a reasonable conclusion.
Test for review
[19] In a range of cases, starting with Sidumo and A nother v Rustenburg Platinum
Mines Ltd and Others2 and the jurisprudence that followed,3 the test on review
and as set out in the matter of Herholdt v Nedbank Ltd4, the Supreme Court of
Appeal has defined with greater clarity the standard of review:
19.1 It must be established either that the arbitrator has misconceived the
nature of the enquiry or that they arrived at an unreasonable result.
19.2 For an award to be unreasonable, the arbitrator’s conclusion must be
one that a reasonable decision- maker could not reach on the material
that was before the arbitrator.
2 [2007] ZACC 22; (2007) 28 ILJ 2405 (CC).
3 CUSA v Tao Ying Metal Industries and Others [2008] ZACC 15; 2009 (2) SA 204 (CC); Fidelity Cash
Management Service v C ommission for C onciliation, Mediation and Arbitration and Others (Fidelity
Cash) [2007] ZALAC 12; (2008) 29 ILJ 964 (LAC); Herholdt v Nedbank Ltd (Herholdt) [2013] ZASCA
97; 2013 (6) SA 224 (SCA); Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v
Commission for Conciliation, Mediation and A rbitration and Others (Gold Fields) [2013] ZALAC 28;
[2014] 1 BLLR 20 (LAC).
4 Herholdt supra.
10
19.3 Material errors of fact, including errors concerning the weight and
relevance to be attached to certain facts, are only of consequence if
their effect is to render the outcome unreasonable.
19.4 If the arbitrator’s reasons provide a reasonable ‘ route’ leading towards
the conclusions, it must follow that the decision is one that could have
been reached (and in fact was) made by a reasonable decision- maker.
A review application would, in such circumstances, not succeed.
19.5 Even if there are flaws in the arbitrator’s reasons, a review must still
consider whether, apart from the arbitrator’s reasons, “ the result is one
that a reasonable decision maker could reach in light of the issues and
the evidence”.
19.6 A review court is required to examine the merits “in the round” only.
[20] It is thus obvious that reasonableness can only be assessed with regard to
the evidence before the decision-maker.
[21] It is further uncontroversial that the review test is whether an arbitrator has
misconceived the nature of the enquiry or arrived at an unreasonable result.
5
A result will be considered to be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material presented to him or her.6
[22] The court on review is therefore not required to consider each and every issue
raised during arbitration. Instead the Court must decide whether the
commissioner considered the principal issue before him, evaluated the
material evidence and concluded that the outcome is reasonable.7
[23] In Head of the Department of Education v Mofokeng and others8 (Mofokeng)
Murphy AJA said the following:
‘The determination of whether a decision is unreasonable in its result is an
exercise inherently dependant on variable considerations and circumstantial
5 SA Rugby Union v Watson and Others [2018] ZALAC 57; (2019) 40 ILJ 1052 (LAC) at para 25.
6 Ibid.
7 Gold Fields supra at paras 15 and 16.
8 [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) at paras 31 and 33.
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factors. A finding of unreasonableness usually implies that some other ground
is present, either latently or comprising manifest unlawfulness. Accordingly,
the process of judicial review on grounds of unreasonableness often entails
examination of inter -related questions of rationality, lawfulness and
proportionality, pertaining to the purpose, basis, reasoning or effect of the
decision, corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common law, now codified and mostly
specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an ulterior
purpose, in bad faith arbitrarily or capriciously etc. The court must
nonetheless still consider whether, apart from the flawed reasons of or any
irregularity by the arbitrator, the result could be reasonably reached in light of
the issues and the evidence…’
Further:
‘Irregularities or errors in relation to the facts or issues, therefore, may or may
not produce an unreasonable outcome or provide a compelling indication that
the arbitrator misconceived the i nquiry. In the final analysis, it will depend on
the materiality of the error or irregularity and its relation to the result. Whether
the irregularity or error is material must be assessed and determined with
reference to the distorting effect it may or may not have had upon the
arbitrator’s conception of the inquiry, the delimitation of the issues to be
determined and the ultimate outcome. If but for an error or irregularity a
different outcome would have resulted, it will ex hypothesi be material to the
determination of the dispute. A material error of this order would point to at
least a prima facie unreasonable result. The reviewing judge must then have
regard to the general nature of the decision in issue; the range of relevant
regard to the general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests impacted
upon by the decision; and then ask whether a reasonable equilibrium has
been struck in accordance with the objects of the LRA . Provided the right
question was asked and answered by the arbitrator, a wrong answer will not
necessarily be unreasonable. By the same token, an irregularity or error
material to the determination of the dispute may constitute a misconception of
the nature of the enquiry so as to lead to no fair trial of the issues, with the
result that the award may be set aside on that ground alone. The ar bitrator
12
however must be shown to have diverted from the correct path in the conduct
of the arbitration and as a result failed to address the question raised for
determination.’
[24] As Myburgh and Bosch suggest:
‘This passage makes it clear that errors of fact and law may translate into a
commissioner misconceiving the inquiry, and that this leads to the losing
parties being deprived of its right to a fair trial, which constitutes in itself a
basis for review (without the reasonableness of the outcome having to be
assailed). But in order for it to be held that the Commissioner misconceived
the inquiry, it must be established that the errors of fact or law committed by
him or her cause the commissioner to diverge from the correct and failed to
address the question raised for determination.’
9
[25] The primary task of a commissioner is to take into account the totality of the
circumstances. It is uncontroversial that the review test is whether an
arbitrator has misconceived the nature of the enquiry or arrived at an
unreasonable result. 10 A result will be considered to be unreasonable if it is
one that a reasonable arbitrator could not reach on all the material presented
to him or her.
11
[26] The Labour Appeal Court (LAC) in Gold Fields12 affirmed the test to be
applied in 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.’
Application to the Facts
[27] When applying the review test, the Court follows a logical sequence:
9 A Myburgh, C Bosch, ‘Reviews in the Labour Courts’, LexisNexis at p 77.
10 Watson supra.
11 Ibid.
12 Gold Fields at para 16.
13
27.1 First, it must be determined if there is a failure or error on the part of
the commissioner.
27.2 Second, where there are errors, it must be shown that, but for the
errors, the outcome would have been different.
13 Errors of fact, by
themselves, may not be sufficient to vitiate the award. What matters is
the materiality of such errors.
[28] Importantly, it is only where the award cannot be sustained on any of the
evidence properly before the commissioner that the review should succeed.14
[29] The applicant contends that the award inter alia stands to be reviewed and set
aside on the basis of the Commissioner’s failure to properly and/or adequately
consider the evidence before her.
[30] The evidence presented before the Commissioner was clear : (i) any
aggrieved employee would be able to submit a grievance in terms of the
applicant’s grievance procedure; (ii) the concerns raised by the respondents
related to employees’ complaints and therefore required the matter to be dealt
with by way of a grievance; (iii) the emails were co -authored; (iv) there is no
dispute that the fourth respondent had an email account with his own unique
password; (v) the emails were addressed to senior management to whom the
respondents did not report to; ( vi) the evidence of the applicant’s witnesses
specifically deal with how they felt when they received the emails, and that
they had perceived the emails to be threatening, intimidating, undermining
and defamatory thus resulting inter alia in the charge of intimidation and
threatening behaviour ; (vii) the Commissioner determined that inappropriate
language was used, however was justified on t he basis that the fourth
respondent was acting on behalf of the employees who had complaints ; (viii)
the Commissioner focused on whether the concerns raised in the emails had
been dealt with; (ix) in respect of procedural fairness, the Commissioner inter
alia determined that the chairperson had failed to consider the health status of
alia determined that the chairperson had failed to consider the health status of
13 Fidelity Cash at para 96; Mofokeng at paras 32 and 33.
14 Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC) ; [2016] 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36
ILJ 1453 (LAC); [2014] ZALCJHB 495 at para 12.
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the respondents and instead focused on the urgent application that the
respondents had launched in the Labour Court.
[31] It is clear from the award , coupled with the reading of the transcript , that the
Commissioner failed to properly consider the true nature of the matter before
her, together with the evidence.
[32] Ultimately, the Commissioner focused her attention on why the emails had
been sent and not the contents of the emails and the impact these emails had
on the recipients. Furthermore, the aggrieved employees on behalf of whom
the respondents purported to address their concerns had ample opportunity to
utilise the applicant’s grievance procedure, which the respondents elected not
to do and instead addressed emails that can only be described as highly
inappropriate.
[33] The impact the emails had on the applicant’s witnesses was clearly not
considered, and the Commissioner’s reasoning demonstrates that she
misconstrued the true nature of the dispute before her. In so doing, the
Commissioner failed to properly consider the evi dence before her and elected
to rather interpret the dispute as one that related to the employees’ complaints
and the respondents right to raise these complaints in the form of the emails
and in the manner that they did, thereby justifying the respondents’
misconduct and effectively awarding their misconduct by reinstating the
respondents together with backpay.
[34] With regard to the finding of procedural unfairness, the Commissioner
appears to have assessed what the chairperson ought to have determined,
rather than considering the chairperson’s actual decision. Moreover, the
Commissioner’s conclusion that the respondents’ challenge, that the charges
were vague, was substantiated because the chairperson had deemed the
charges complex, which is itself unsupported. Given that the respondents did
not attend the inquiry and had not previously raised any challenge to the
charges, the Commissioner’s determination in this regard can only be
charges, the Commissioner’s determination in this regard can only be
characterised as one that no reasonable decision-maker could reach.
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[35] In addition, the Commissioner failed to account for the fact that the inquiry had
been postponed on multiple occasions, and that the chairperson had the
discretion to determine whether sufficient evidence existed to justify either
proceeding with or postponing the inquiry. The Commissioner’s failure to
consider all relevant circumstances constitutes an error that materially
affected the outcome.
[36] The award is one that no reasonable decision maker could have reached on
the evidence before the Commissioner. It is evident that the Commissioner
failed to properly consider all relevant evidence and to address all the issues
before her. In this matter, the respondents deliberately chose to raise the
issues in the emails to senior management, individuals to whom they did not
report, and disregarded the obvious remedies available to both themselves
and the aggrieved employees. Their conduct cannot be justified merely
because they purported to act on behalf of the aggrieved employees. This
underscores that the Commissioner did not adequately consider the true
nature of the matter before her, nor the impact of the respondents’ actions on
the employment relationship.
[37] The applicant has submitted the Court with a complete record of the
proceedings, enabling the Court to determine the dispute, which serves the
interests of justice and promotes the expeditious resolution of the matter.
Costs
[38] This Court has a wide discretion in awarding costs. I am of the view that this is
a matter where the interests of justice will be best served by making no order
as to costs.
[39] In the premises, I make the following order:
Order
1. The arbitration award issued by the second respondent under case
number BC.NTM/TE(GR)/150 46 and 15134 are reviewed and set
aside.
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2. The dismissal of the first and fourth respondents by the applicant was
procedurally and substantively fair.
3. There is no order as to costs.
______________________
H Schensema
Acting Judge of the Labour Court of South Africa
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Appearances
For the Applicant: Puke Maserumule Attorneys
For the First Respondent: In person
For the Fourth Respondent: Advocate Bucksteg
Instructed by: Carel J Schoeman Incorporated