THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR240/22
In the matter between:
FOOD AND ALLIED WORKER’S UNION First Applicant
BRYNLEY MASEKO Second Applicant
and
COCA COLA BEVERAGES SOUTH
AFRICA (PTY) LTD First Respondent
LUSANDA MYOLI N.O Second Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third Respondent
Heard: 3 September 2025
Delivered: 29 October 2025
JUDGMENT
DE WITT, AJ
2
Introduction
[1] This is a n application to review and set aside the arbitration award delivered
by the second respondent in her capacity as the Commissioner of the third
respondent under case number GAJB19405-20 dated 15 December 2021 (the
arbitration award) , coupled with an application for condonation for the late
filing of the review application, to the extent necessary.
Background facts
[2] The first respondent ’s business is a beverage manufacturing and selling
company of Coca- Cola products. The second applicant, Mr Maseko, was
employed by the first respondent since 2005, and at the time of his dismissal,
he held the position of a Team Leader Processing in the Process Support
Department.
[3] The facts of the matter are largely common cause. Four charges were levelled
against Mr Maseko, which culminated in a disciplinary hearing being held on
14 August 2020. Mr Maseko was found not guilty in respect of the first two
charges, which require no further elaboration. Charges 3 and 4 were recorded
in the following terms:
3.1. Charge 3: “gross negligence and/or gross dereliction of duty and/or
failure to follow company procedure and/or dishonesty in your actions
of misconduct with relations to an incident where: on 4 May , you did
not sort the lemonade concentrate required per the mixing instructions
before authorising the mixing process to commence. Part 2A “Sprite
Cucumber” was added to the batch of lemonade which resulted in
tainted final syrup. You failed to verify the batch compliance before
signing the release form to authorise the lines to consume the syrup.
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You captured the final syrup data on infinity without referencing the
mixing instruction and incorrectly captured Part 2A “Sprite Cucumber”
as part of the lemonade batch. You did not conduct an end of shift
stock count and failed to discover that Part 2A “Sprite Cucumber” was
missing from the floor.” This was referred to as the 'lemonade incident’ ;
and
3.2. Charge 4: “gross negligence and/or failure to follow company
procedure in your actions of misconduct with relation to an incident
where: on 11 May, you did not sort the Iron Brew concentrate required
per the mixing instruction before authorising the mixing process to
commence. During the mixing process it was discovered that not all the
concentrate components were in Syrup Room and the mixing process
was delayed. This resulted in a work stoppage on Line 04 for a total of
112 minutes which impacted out of stocks (OOS) on Coke no sugar
2250ml, Sprite no sugar 2250ml and Twist Gran 2000ml. ” This was
referred to as the “Iron Brew incident”.
[4] Mr Maseko was found guilty of charges 3 and 4, and the Chairman of the
disciplinary enquiry issued the sanction of a final written warning.
[5] On 4 September 2020, Mr Maseko received a “ notice of appeal by the
company” which was authored by Mr Ntando Khanyile (Production Engineer)
and which provided that the first respondent’s “disciplinary code is a guideline
and not exhaustive of the measures that the company could take. While it is
customary to only hold one disciplinary enquiry , case law provided that in
exceptional circumstances, where fairness dictates, an employer could hold
more than one disciplinary enquiry – particularly where the employer viewed
the sanction that was meted out by the chairperson unsatisfactory and where
4
the employer regarded the process followed in the first enquiry to be flawed or
irregular”. The first respondent “considered the sanction issued by the
Chairman to be wrong and against all forms of acceptable progressive
discipline and the company’s consistent application of discipline in respect of
the same acts of misconduct of which Mr Maseko had been found guilty ”. The
first respondent considered the offences committed by Mr Maseko to be
sufficiently serious as to warrant dismissal , particularly when his disciplinary
record was considered and which showed a propensity to re-engage in the
same or similar acts of misconduct.
[6] Having conducted the appeal, during which Mr Maseko was permitted to state
his case, the first respondent, on 22 September 2020, substituted the
Chairman’s sanction with a “ recommendation of dismissal”, pursuant to which
Mr Maseko was dismissed.
[7] Mr Maseko referred an unfair dismissal dispute to the third respondent in
terms of s191(5)(a)(i) of the Labour Relations Act
1 (the LRA). The referral
form records that the dismissal was procedurally unfair because of the
“employer’s consistent application of the company policy ” and substantively
unfair because the “ employer could not substantiate the dismissal of the
applicant”. Mr Maseko sought retrospective re-instatement.
[8] A pre-arbitration minute was concluded between the parties , which recorded
the common cause facts, the facts in dispute and the legal issue to be
determined. The relevant portions thereof are:
8.1. Paragraph 4.23, where it is recorded as a common cause fact that “ [the
first respondent] and [the first applicant] have entered into a National
Recognition Agreement effective 1 January 2020 which contains the
[first respondent’s] Disciplinary Code and Procedure”; and
8.2. Paragraph 6, where it is recorded that the legal issue to be determined
was “whether [Mr Maseko’s] dismissal was both substantively and
1 Act 66 of 1995, as amended.
5
procedurally fair”.
[9] In what follows , I simply refer to the National Recognition Agreement of 1
January 2020 as the Collective Agreement.
Application for condonation
[10] The test for condonation is no doubt well settled in our law following Melane v
Santam Insurance Company Limited2 decision where the following was said:
‘…the basic principle is that the C ourt has a discretion, to be exercised
judicially upon a consideration of all the facts, in essence it is a matter of
fairness to both sides. Among the facts usually relevant are the degree of
lateness, the explanation therefor , the prospects of success , and the
importance of the case. Ordinarily these facts are interrelated: they are not
individually decisive, for that would be a piecemeal approach, incompatible
with a true discretion, save of course that if there are no prospects of success
there will be no point in granting condonation. What is needed is an objective
conspectus of all the facts. Thus a slight delay and a good explanation may
help to compensate for prospects of success which are not strong. O r the
importance of the issue and strong prospects of success may tend to
compensate for a long delay. The Respondent’s interests in finality must not
be overlooked.’
[11] The applicants have explained that while the arbitration award was delivered
on 15 December 2021, it only came to the first applicant’s attention on 1
February 2022, and the review application w as delivered on 11 February
2022. The application for condonation is not opposed. The review application
was promptly launched upon the first applicant receiving notice of the
arbitration award. Having considered the condonation application, I see no
reason why condonation should not be granted in this matter , and such
2 1962 (4) SA 531 (A).
6
condonation is hereby granted.
The merits
[12] The applicants assert that the second respondent ’s award stands to be
reviewed on the ground that the second respondent committed gross
irregularities in the conduct of the arbitration proceedings by ignoring material
evidence and committing material errors of law . More particularly , it is
contended that the second respondent:
12.1. found that the first respondent was entitled to deviate from the
procedures established in the C ollective Agreement, provided the
process actually followed was fair on the basis of Highveld District
Council v Commission for C onciliation, Mediation & Arbitration &
others3 (Highveld), Grogan (2014) and the CCM A Guidelines on
Misconduct Arbitration whereas it is contended that the Highveld case
was distinguishable because it pertained only to procedural unfairness,
while Mr Maseko challenged the substantive fairness of the dismissal
on the basis of the first respondent appealing the sanction in
contravention of the Collective Agreement;
12.2. failed to apply her mind to material evidence, including that:
12.2.1. The pre- arbitration agreement concluded between the
parties provided that the Disciplinary Code was part of the
Collective Agreement and was applicable to Mr Maseko;
12.2.2. The first respondent’s witnesses admitted that the
Disciplinary Code was part of the Collective Agreement and
3 (2003) 24 ILJ 517 (LAC); [2002] 12 BLLR 1158 (LAC).
7
applied to Mr Maseko;
12.2.3. First applicant’s evidence that , in terms of discipline within
the first respondent, all employees we re covered by the
Collective Agreement;
12.2.4. Contradictory evidence was led by one witness to the effect
that the Disciplinary Code applied to all employees ,
including Mr Maseko, but “only as a guideline” for him
because he did not fall within the bargaining unit;
12.2.5. Mr Mokwena of the first applicant testified that the C ollective
Agreement applied to all employees regardless of whether
they were in the bargaining unit or not;
12.2.6. Mr Mokwena testified that there was no provision in the
Collective Agreement for the first respondent to appeal the
sanction;
12.2.7. Mr Maseko testified that it was three weeks after he returned
to work that he was served with the notice of suspension
and advised of the appeal, and the second respondent failed
to consider that the first respondent ha d perempted its
alleged right of appeal;
12.2.8. Mr Kgalusi testified that he was a party to the C ollective
Agreement and that it applied to all FAWU members , and
there was no justification for the first respondent to appeal or
deviate from the Collective Agreement; and
12.3. failed to attach any weight to the pre- arbitration agreement and
preferred the evidence of the single witness who was not a member of
management and who did not have first -hand knowledge of the
dispute. It is contended that it ought to have been clear that the first
8
respondent’s about turn on the status of the Disciplinary Code and its
application to Mr Maseko was an afterthought, contradicted by the facts
and “the plain reading of the document ” and all other available
evidence before the second respondent.
[13] This led , so the applicants contend, to a decision which no reasonable
decision maker could make on all the evidence that was before the second
respondent. The applicants contend further that had the second respondent
not committed these gross irregularities, she would have found that:
13.1. There was a Collective Agreement in place which prohibited an appeal
by the employer of the Disciplinary Chairperson’s findings;
13.2. The first respondent was not allowed to substitute the findings of the
Disciplinary Chairperson, and such decision was unfair; and
13.3. The conduct of the first respondent led to both the substantive and
procedural unfairness of the dismissal , and therefore re- instatement
was the primary relief to be awarded to Mr Maseko.
[14] The second respondent’s award states that she was called upon to determine
whether:
14.1. Mr Maseko “ committed Gross Negligence and/or Gross Dereliction of
duty and/or Failure to follow the company procedure and/or D ishonesty
with relation to the incidents relating to charge 3 and charge 4”; and
14.2. the first respondent “ contravened the Recognition and Collective
Bargaining Agreement on disciplinary hearing between FAWU and the
[first respondent ] by appealing the final written warning sanction that
was issued by the disciplinary hearing chairperson”.
9
[15] The second respondent appreciated that the first respondent bore the onus of
demonstrating that Mr Maseko’s dismissal was both substantively and
procedurally fair.
[16] The second respondent’s arbitration award provides that while Mr Maseko
had initially challenged the substantive fairness of his dismissal ( on the basis
that his role and responsibilities in the syrup mixing process were in dispute) ,
this was, however, not persisted with in the arbitration. Accordingly , it was
recorded in the arbitration award that o nly the second issue fell to be
determined by the second respondent (i.e. whether the first respondent
contravened the Collective Agreement). It bears emphasis that the legal issue
postulated for the second respondent ’s determination was whether the first
respondent contravened the Collective Agreement.
[17] In the applicants’ heads of argument before this Court, it was also formulated
as such:
17.1. At paragraph 3 thereof, it was submitted that: “in the main, the central
issue pertinent to this matter is the question whether an employer can
legally revoke its earlier decision to impose a lesser sanction. In casu,
the first respondent (Coca Cola) had issued a sanction of a final written
warning and later revoked it to a harsher sanction of dismissal. The
applicants allege that this was a breach of the collective agreement ”;
and
17.2. On the strength of authorities cited i n the preceding paragraphs of the
head of argument, 4 the applicants also contend at paragraph 15
thereof that “had the Commissioner considered the authorities cited
above, applied her mind to whether there was a binding collective
4 County Fair Foods (Pty) Ltd v CCMA and others (CA12/1/2001) [2002] ZALAC31 (11 December
2002) that it is unfair for an employer to interfere with an imposed sanction in the absence of express
provisions in the disciplinary code to do so; S outh Africa Revenue Services v Commission for
provisions in the disciplinary code to do so; S outh Africa Revenue Services v Commission for
Conciliation, Mediation and A rbitration and others (Chatrooghoon) [2014] 1 BLLR 44 (LAC) ; [2013]
ZALAC 26 that an employer who substitutes a sanction without being authorised by the disciplinary
code acts ultra vires and on that basis alone the dismissal becomes unfair and South African Revenue
Service v CCMA and Others (Kruger case) [2015] ZALAC 52; (2016) 37 ILJ 655 (LAC) at para 42
thereof.
10
agreement and whether [the first respondent] was permitted to deviate
from the binding collective agreement, she would have found that [the
first respondent] was not authorised by its negotiated collective
agreement to substitute the sanction imposed by the disciplinary
chairperson. Such a finding would have driven the Commissioner to a
conclusion that the dismissal is invalid and substantively unfair without
the need to consider if the dismissal was for a fair reason or was
appropriate”.
[18] Therefore, the applicants’ case before the second respondent and before this
Court was posited on the supposition that the Collective Agreement was
binding as between the first respondent and Mr Maseko and that the first
respondent had contravened the Collective Agreement. Stated differently, the
legal issue for determination was, and is, posited on the basis of it being an
au fait ac compli that the C ollective Agreement applied to Mr Maseko .
However, that i s not so and the second respondent, correctly, set out to
determine for herself if the C ollective Agreement was indeed applicable to Mr
Maseko.
[19] In doing so, the second respondent correctly found that the C ollective
Agreement (with the Disciplinary Code as an annexure thereto) indisputably
applied to those employees in the bargaining unit , but since it was common
cause that (i) Mr Maseko wa s a non- bargaining member based on his Hey
level (14) as a Team Lea der and (ii) was not a bargaining unit member , the
Collective Agreement did not apply to him. This finding is unassailable.
[20] It matters not that some witnesses were of the view that the C ollective
Agreement applied to Mr Maseko while only one witness was of the view that
it did not. Interpretation remains a matter for the C ourt and not for witnesses
5
and t he starting point is still the terms of the C ollective Agreement itself. A
proper interpretation thereof reveals that:
proper interpretation thereof reveals that:
5 KPMG Chartered Accountants (SA) Securefin Ltd and Another 2009 (4) SA 399; [2009] 2 All SA 523
(SCA); Novartis v Maphil [2015] ZASCA 111; 2016 (1) SA 518 (SCA) ; B Braun Medical v Ambsaam
CC 2015 (3) SA 22 (SCA); [2014] ZASCA 199; University of Johannesburg v Auckland Park
Theological Seminary and Another [2021] ZACC 13; 2021 (6) SA 1 (CC).
11
20.1. “The Agreement” means “this agreement as amended in writing from
time to time, including annexures thereto” (clause 2.1.2);
20.2. “Bargaining Unit ” means “ employees in job grades Peromnes 19 to
Peromnes 10 (Hey Level 13 to 4), subject to the positions in Annexure
F which are excluded from Bargaining Unit . Despite this definition of
Bargaining Unit, the parties agree that the Union will be permitted to
collectively bargain for the following additional role which fall outside of
the Bargaining Unit: Cleaner, Red Surveyor, Merchandis er, General
Worker, School Recycling and Sorter” (clause 2.1.3); and
20.3. “Employee” means “ any person in the bargaining unit permanently
employed by the company” (clause 2.1.9).
[21] On the common cause facts, Mr Maseko did not fall within the Bargaining
Unit, and it was never contended that he fell into any of the other categories
mentioned (and on the basis of which it would result in the Collective
Agreement applying to him ). As such, the Collective Agreement did not apply
to Mr Maseko. While it may have been common cause that the Disciplinary
Code is an annexure to , and forms part of , the Collective Agreement, that
common cause fact becomes entirely irrelevant as soon as it is appreciated
that the Collective Agreement does not apply to Mr Maseko.
[22] The applicants contend that the pre- arbitration agreement, however, provides
that the Disciplinary Code was part of the Collective Agreement and was
applicable to Mr Maseko. This is stated far too strongly and is not borne out
by the pre- arbitration agreement, which provides, at paragraph 4.23 thereof ,
simply that:
‘the [first] respondent and FAWU have entered into a National Recognition
Agreement effective 1 January 2020, which contains the [first] respondent’s
Disciplinary Code and Procedure.’
[23] The above is dispositive of the applicants’ ground of review that, but for the
“alleged gross irregularities ”, the second respondent would have found that
12
“there was a collective agreement in place which prohibited an appeal by the
employer of the Disciplinary Chairperson’s findings”.
[24] The second respondent ’s conclusion that “the [first] respondent did not
contravene the Recognition and Collective Bargaining Agreement on
disciplinary hearing between FAWU and the [first] Respondent by appealing
the final written warning sanction that was issued by the disciplinary hearing
chairperson” is both reasonable and unassailable.
[25] Having correct ly disposed of the supposition that the C ollective Agreement
applied to Mr Maseko, the second respondent , however, went on to consider
the fairness of the first respondent’s appeal of the sanction of a final written
warning.
[26] In this regard, the second respondent appreciated that the Disciplinary Code
applies to all workers. The preamble thereto provides that “the objective of the
Code will be to ensure the fair and consistent disciplining of all workers ”. The
second respondent considered that the Disciplinary Code applie d to Mr
Maseko, not as a contractual term incorporated into the Collective Agreement,
but as a guideline. The second respondent’s finding to this effect is both
reasonable and correct.
[27] The second respondent acknowledged that fairness dictates that a person
cannot be tried twice for the same offence and that when the employer’s
chairperson has taken a decision, the employer generally cannot revisit that
decision. The second respondent referred to BMW (South Africa) (Pty) Ltd v
Van Der Walt
6 and stated that “since in labour law fairness dictates, when the
circumstances call for it” … “where it is fair to do so and in the circumstances
where there is a code it is permissible to have a second enquiry only in
‘exceptional circumstances”.
[28] The second respondent took into account that the first respondent’s “reason
for appeal was that the chairperson failed to consider that Mr Maseko was
6 [1999] ZALAC 28; [2000] 2 BLLR 121 (LAC).
13
found guilty of gross negligence and dishonesty charges and the company
incurred financial loss, risk to company reputational damage and consumers
given products he was responsible for as a team leader in the syrup room, his
pattern of conduct per his disciplinary record with many counts of gross
negligence and unchanging behaviour”.
[29] She also considered that Mr Maseko did not challenge the first respondent’s
testimony at all , which led her to believe “ on a balance of probabilities these
can be viewed as exceptional circumstances warranting the appeal”.
[30] The second respondent added that it was apparent from the process followed
that it was not likely to have been prejudicial to Mr Maseko in terms of
presenting his version before the decision was taken.
[31] Phehane J in South African Commercial Catering and Allied Workers Union
obo Manzini v C ommission for C onciliation, Mediation and Arbitration and
Others
7 held that:
‘[38] Our Courts have dealt with the overturning of disciplinary sanctions by
management in higher positions and have held that fairness is the
ultimate yardstick.8
[39] In National Union of Mineworkers obo Members and Others v
ArcelorMittal South Africa Limited and Others, 9 this Court confirmed
that where there is no collective agreement regulating discipline in
place, an employer may substitute the sanction of a disciplinary
chairperson if it is fair to do so and after engaging the employee,
either in another disciplinary inquiry or by having the employee make
submissions.’
[32] The critical question to be answered in every review application against an
arbitrator’s award is whether the arbitrator has rendered a reasonable award
7 (JR1505/23) [2025] ZALCJHB 288 (9 May 2025).
8 Samson supra. See also: Branford v Metrorail Services (Durban) & others (2003) 24 ILJ 2269 (LAC);
[2004] 3 BLLR 199 (LAC); Member of the Executive Council for Finance, KwaZulu- Natal & another v
Dorkin NO & another (2008) 29 ILJ 1707 (LAC); [2007] ZALAC 41.
Dorkin NO & another (2008) 29 ILJ 1707 (LAC); [2007] ZALAC 41.
9 (JR802/18) [2020] ZALCJHB 167 at para 30.
14
within the meaning of the test in Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others. 10 It follows that the second respondent’s arbitration
award stands to be reviewed and set aside if , and only if , it fails to meet the
threshold established by that judgment.
[33] For the reasons set out above, the second respondent’s findings that (i) the
Collective Agreement did not apply (rendering this matter distinguishable from
cases where there was a binding Collective Agreement ); (ii) the first
respondent therefore did not breach the Collective Agreement ; (iii) on the
facts before her, exceptional circumstances existed which warranted the
appeal; (iv) the sanction of dismissal was accordingly not inappropriate and
(v) the dismissal of Mr Maseko was not substantively unfair, cannot be faulted
and are reasonable on the totality of evidence before her.
[34] In the premises, I make the following order:
Order
1. The application for condonation for the late filing of the review
application is granted;
2. The application to review and set aside the second respondent’s
arbitration award under case number GAJB19405-20 dated 15
December 2021 is dismissed; and
3. There is no order as to costs.
___________________________
C De Witt
Acting Judge of the Labour Court of South Africa
10 2008 (2) SA 24 (CC); [2007] 12 BLLR 1097 (CC).
15
Appearances:
For the Applicant: Prinoleen Naidoo
Instructed by: Cheadle Thompson and Hayson Inc.
For the First Respondent: Pransha Maharaj-Pillay
Instructed by: Bowman Gilfillan Inc.