THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR 1133/2023
In the matter between:
TRANSNET SOC Ltd Applicant
and
TRANSNET BARGAINING COUNCIL First Respondent
COMMISSIONER JOHN MASHIKA Second Respondent
UNTU Third Respondent
DAVID CHAUKE Fourth Respondent
Heard on: 13 August 2025
Delivered: 27 October 2025
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JUDGEMENT
___________________________________________________________________
MAMANYUHA, AJ
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Introduction
[1] This is an application in terms of section 145(2) of the Labour Relations Act 1
(LRA) to review and set aside an arbitration award made by the second
respondent (Commissioner) dated 8 May 2023, in terms of which he found
that the dismissal of the fourth respondent was substantively unfair.
[2] The Commissioner ordered that the fourth respondent be reinstated with
retrospective effect to the date of dismissal, with backpay.
[3] The applicant challenges the Commissioner’s findings, resulting in this
application, which alleges that the Commissioner:
i. committed misconduct in his conduct;
ii. committed gross irregularity; and
iii. issued an award that a reasonable commissioner could not make.
Background facts
[4] The fourth respondent was employed by the a pplicant on 2 November 2011.
At the time of his dismissal, he was based at the Ermelo depot in
Mpumalanga as a Yard Official. He was, however, since the beginning of
2022, performing an alternative function at the time , temporarily, while
recovering from an injury that prevented him from fulfilling the duties of a Yard
Official for reasons of workplace safety.
[5] He was on compassionate leave for the loss of his partner , which was
converted to sick leave after he was involved in a motor vehicle accident on
15 August 2022.
[6] On 16 August 2022, he was arrested as a suspect in the murder of his life
partner, who was also an employee of the a pplicant at Ermelo, and was kept
in custody by the South African Police Service (SAPS).
1 Act 66 of 1995, as amended.
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[7] On 16 September 2022, the applicant issued a letter to the f ourth respondent,
noting that he had not reported for duty since 26 August 2022, that his failure
to tender services amounted to a material breach of his employment contract,
and calling on him to provide reasons why his contract should not be
terminated as a result.
[8] The fourth respondent responded in writing on 20 September 2022,
confirming that he was in the custody of the SAPS, that he would be applying
for bail on 30 September 2022 and that the applicant should not terminate his
employment contract, pending the outcome of the bail application.
[9] The applicant terminated his employment contract with effect from 21
September 2022, based on the fourth respondent's impossibility to tender his
services and perform his duties.
[10] On 30 September 2022, the f ourth respondent was released on bail under
conditions that prohibited him from entering the Ermelo area except to attend
proceedings related to his arrest, and required him to report to the Alexandra
Police Station in Johannesburg every Tuesday, Thursday, and Saturday.
[11] The fourth respondent referred an unfair dismissal dispute.
[12] The Commissioner ordered his retrospective reinstatement with backpay.
[13] The applicant launched these proceedings, which are being opposed by the
fourth respondent.
The arbitration award
[14] In his award, the Commissioner expressed doubt that delaying the dismissal
until 30 September 2022 would have prejudiced the employer’s operations,
particularly as the employer had already accommodated the fourth
respondent in an alternative position from February 2022. He concluded that
the employer’s claim that the position was critical was therefore unconvincing.
[15] The Commissioner ordered the retrospective reinstatement of the f ourth
respondent into a suitable position equivalent to the one he held prior to
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dismissal, at any of the a pplicant’s operations located in the Gauteng
Province, pending the finalisation of the criminal proceedings.
[16] He further directed that the applicant pays the fourth respondent an amount of
R166,980.94, representing the salary he would have earned for the period
from October 2022 to 30 April 2023.
Grounds for review
[17] The applicant contends that the Commissioner’s award falls to be reviewed
and set aside on the following grounds:
17.1 The Commissioner found the dismissal unfair, stating it was premature
as the employer was aware of an impending bail application. However,
the applicant argues that at the time of dismissal, it was impossible for
the fourth respondent to perform his duties due to incarceration, with
no certainty of bail. The a pplicant finds this conclusion by the
Commissioner to be materially flawed.
17.2 After bail was granted, the Commissioner claimed the impossibility of
performance was removed. The a pplicant contests this, deeming it
irrational, noting that the bail conditions prevented the f ourth
respondent from returning to his original workplace. The Commissioner
further erred by ordering reinstatement to an unspecified role in
Gauteng, without evidence that such a position existed or could
accommodate the respondent’s limitations.
17.3 The Commissioner ignored critical factors , including the seriousness of
the charge, the risk of labour unrest, and the impracticality of
reinstatement under section 193(2) of the LRA. The a pplicant contends
the Commissioner misdirected himself by focusing on future
developments rather than the fairness of the dismissal at the time it
occurred, and ultimately issued an irrational, unenforceable, and legally
flawed reinstatement order.
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Analysis of the matter
[18] Section 145(2) of the LRA sets out the grounds on which an arbitration award
issued by the CCMA or a bargaining council can be reviewed. The Labour
Court will not interfere unless the decision is so unreasonable that no
reasonable arbitrator could have reached it.2
[19] I concur with the Commissioner’s view that the applicant acted prematurely by
dismissing the fourth respondent only nine days before his scheduled bail
hearing and without full knowledge of the outcome or specific bail conditions.
This conduct suggests a possible predetermined intention to dismiss , and
violates the principle of fairness.
[20] The fourth respondent had already advised the applicant of the upcoming bail
hearing and requested that they await its outcome. Had the employer
exercised patience and waited just a few more days, it would have had clarity
on the bail conditions and could then have been in a position to make a well -
informed, reasonable decision regarding the feasibility of alternative
placement.
[21] Notably, t he bail conditions did not pr ohibit employment entirely but only
restricted access to the Ermelo area. Given the applicant’s national presence,
alternative arrangements at other sites could have been explored and
considered once the full facts were known. By proceeding with dismissal
before considering these options, the employer prematurely foreclosed the
possibility of making a reasonable accommodation.
[22] It is trite that the primary remedy for an unfair dismissal is reinstatement or re-
employment; however, there are exceptions to this remedy, which are set out
in s 193(2) of the LRA as follows;
‘(a) the employee does not wish to be reinstated or re-employed;
(b) if the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC)at para 110.
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(c) it is not reasonably practicable for the employer to reinstate or re-
employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair
procedure.’
[23] The Commissioner observed that the only restrictions placed on the fourth
respondent arose from his bail conditions, which primarily prohibited him from
entering the Erm elo area. He further noted that, since his employment with
the applicant began in 2011, the fourth respondent had worked in the
Gauteng, KwaZulu -Natal and Mpumalanga provinces. This, in the
Commissioner's view, supported the fourth respondent ’s own testimony that
he was capable of working in any location. On this basis, the Commissioner
ordered his reinstatement at any of the applicant ’s operations located in the
Gauteng Province, to ensure compliance with his bail condition requiring him
to report to the Alexander Police Station.
[24] The Commissioner’s order of retrospective reinstatement to any of the
applicant’s operations located in the Gauteng Province, based on the fourth
respondent’s past deployments in other provinces, signifies a fundamental
misconstruction of the nature of the enquiry he was required to undertake
under section 193(2)(c).
[25] The Commissioner was obliged to undertake an enquiry into whether
reinstatement was reasonably practicable, not merely whether it was
hypothetically possible or based on the employee’s past employment history.
[26] The Commissioner failed to assess actual operational feasibility in these other
locations, which include current operational capacity, structure, vacancies,
budget, or practical ability to accommodate the employee elsewhere. He
substituted the employer’s prerogative, effectively taking over the employer’s
managerial function by ordering placement ‘at any of applicant’s operations in
the Gauteng Province’, which is not his role. This violates the principle set out
in Sidumo supra, where the Court held:
in Sidumo supra, where the Court held:
‘It is a practical reality that in the first place it is the employer who hires and
fires. The act of dismissal forms the jurisdictional basis for a commissioner, in
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the event of an unresolved dismissal dispute, to conduct an arbitration in
terms of the LRA. The commissioner determines whether the dismissal is fair.
There are therefore no competing “discretions”. Employer and commissioner
each play a different part. …’3
And
‘To sum up. In terms of the LRA, a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given the power to consider
afresh what he or she would do, but simply to decide whether what the
employer did was fair. In arriving at a decision, a commissioner is not required
to defer to the decision of the employer. What is required is that he or she
must consider all relevant circumstances.’4
[27] In Xstrata South Africa (Pty) Ltd (Lydenburg Alloy Works) v N ational Union of
Mineworkers on behalf of Masha and Others5, the Labour Appeal Court (LAC)
held:
‘The object of s 193(2)( c) of the LRA is to exceptionally permit the employer
relief when it is not practically feasible to reinstate… The term “not reasonably
practicable” in s 193(2)( c) does not equate with “practical ” as the arbitrator
assumed. It refers to the concept of feasibility. Something is not feasible if it is
beyond possibility. The employer must show that the possibilities of its
situation make reinstatement inappropriate.’
[28] No evidence was presented regarding the practical feasibility of reinstating the
fourth respondent in the Gauteng Province. What remains undisputed,
however, is that he is unable to tender his services at his former workplace in
Ermelo. The Commissioner, in ordering reinstatement, relied on a speculative
assumption about future feasibility without properly engaging with the
applicant’s current operational realities. This constitutes a misdirection and
warrants the review and setting aside of the reinstatement award.
[29] In Equity Aviation Services (Pty) Ltd v C ommission for Conciliation, Mediation
and Arbitration and Others
6, the Constitutional Court held that:
3 Ibid at para 75.
4 Ibid at para 79.
6, the Constitutional Court held that:
3 Ibid at para 75.
4 Ibid at para 79.
5 (2016) 37 ILJ 2313 (LAC) at para 11.
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‘Section 193 provides for three remedies a court or arbitrator may order after
ruling that a dismissal is unfair. They are reinstatement, re-employment or
compensation. A court must order reinstatement or re-employment unless
one or more specified circumstances exist in which case compensation may
be granted depending on the nature of the dismissal.’
[30] Section 194 (1) provides that:
‘The compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the reason for dismissal
was a fair reason relating to the employee’s conduct or capacity or the
employer’s operational requirements or the employer did not follow a fair
procedure, or both, must be just and equitable in all the circumstances, but
may not be more than the equivalent of 12 months’ remuneration calculated
at the employee’s rate of remuneration on the date of dismissal.’
Conclusion
[31] In light of the foregoing, reinstatement is not reasonably practicable. The
fourth respondent’s inability to return to his previous workplace, coupled with
the absence of evidence supporting alternative placement, renders
reinstatement unfeasible. Accordingly, the reinstatement order falls to be set
aside.
[32] However, given the finding of substantive unfairness in the dismissal, the
fourth respondent is entitled to a remedy. In terms of section 194(1),
compensation equivalent to twelve months’ remuneration is just and equitable
in the circumstances.
[33] Accordingly, the following order is made:
Order
1. The applicant’s review application is granted.
2. The arbitration award ordered by the second respondent is reviewed
and set aside.
6 2009 (1) SA 390 (CC) at para 1.
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3. It is determined that the dismissal of the fourth respondent is
procedurally fair but substantively unfair.
4. The applicant is ordered to pay the fourt h respondent an amount equal
to 12 months’ salary as compensation, calculated at his rate of
remuneration on the date of dismissal, within 30 days of this order.
5. There is no order as to costs.
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T Mamanyuha
Acting Judge of the Labour Court of South Africa
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Appearances
For The Applicant: Mr Tshepo Makamu
Instructed by: Puke Maserumule Attorneys
For The Respondent: Adv MJ van As
Instructed by: Fluxmans Inc