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THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: 2025-011324
In the matter between:
DENZIL KENNEDY Applicant
and
THJANDIE C CHIRWA First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER NTJATJA KLAAS
APHANE N.O. Third Respondent
Heard: 31 July 2025
Delivered: 28 October 2025
___________________________________________________________________
JUDGMENT
SASS, AJ
Introduction
[1] This is an application in terms of section 145 of the Labour Relations Act. No.
66 of 1995, as amended (the LRA) , to review and set aside an arbitration
award dated 30 December 2024 (the award) issued by the third respondent
(the arbitrator) under the auspices of the second respondent (the CCMA).
[2] In the award, which related to a dispute in terms of section 73(A) of the Basic
Conditions of Employment Act No. 75 of 1997, as amended (the BCEA), the
arbitrator found that the applicant was indebted to the first respondent in the
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sum of R32 996.48 (thirty-two thousand nine hundred and ninety -six rand and
forty-eight cents) for unpaid salaries and notice pay.
[3] In the event that the award is reviewed and set aside, the applicant seeks: (i)
that the award be substituted, as provided for in terms of section 145(4) of the
LRA, with an order that no amounts are due to the first respondent;
alternatively, (ii) that the dispute between the applicant and the first
respondent be referred back to the second respondent to be arbitrated de
novo by a commissioner other than the third respondent.
[4] The review application was not opposed by any of the respondents.
Factual background
[5] Whilst the award does not always record the evidence presented at the
arbitration proceedings correctly in relation to parties’ evidence, if one
compares the award to the transcript of the arbitration proceedings (the
transcript), the following does appear to be some of the common cause facts.
[6] The first respondent was employed by the applicant since approximately 1
May 2018 as a domestic worker and was dismissed by the applicant on 29
November 2024.
[7] The first respondent’s salary for the period 1 March 2022 to the end of
November 2024 was follows:
a. R3 300.00 for the period 01 March 2022 to the end of February 2023;
b. R3 500.00 for the period 01 March 2023 to the end of February 2024;
and
c. R3 800.00 for the period 01 March 2024 to the end of November 2024.
[8] The applicant does dispute in his founding affidavit as well ( as his heads of
argument) that the above amounts were not common cause. The applicant
contends that the first respondent’s salary for 2022 was R3 500.00 (instead of
R3 300 as stated in the award) and for 2023 was R3 700.00 (instead of
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R3 500.00 as stated in the award). The applicant’s founding affidavit does not,
however, dispute that the first respondent’s salary for 2024 was R3 800.00.
[9] The amounts set out above (and also in paragraph 19 and paragraphs 28 to
30 of the award) by and large accord with the first respondent’s evidence as
reflected in the transcript (page 3, line 78 to page 4, line 12). I could not find
any evidence from the applicant in the transcript that effectively disputed
these amounts. The applicant did confirm during his evidence that the first
respondent’s salary for 2024 was R3 800.00. I also considered the applicant’s
bundle of documents which he provided to the arbitrator (Bundle R). The
bundle of documents was not traversed in evidence by the applicant during
the arbitration proceedings. Even so, I could not identify any document which
would place in dispute the first respondent’s version in relation to her salary
for 2022 (being R3 300.00) and 2023 (being R3 500.00). It is therefore
unclear to me on what basis the applicant disputes these amounts.
[10] The applicable minimum hourly rates of pay in terms of the NMW Act w ere as
follows:
a. R23.10 for the period 01 March 2022 to the end of February 2023;
b. R25.43 for the period 01 March 2023 to the end of February 2024; and
c. R27.58 for the period 01 March 2024 to the end of November 2024.
[11] The applicant did not pay the first respondent any notice pay, although it does
not appear that any evidence was led during the arbitration proceedings by
any of the parties in respect of whether the first respondent had been
dismissed with immediate effect (i.e., summarily) or whether the first
respondent failed and/or refused to work a notice period after being dismissed
(as contended by the applicant in paragraph 16 of his founding affidavit).
The award
[12] The unpaid salaries portion of the sum of R32 996.48 amounted to R28 219.
92 (twenty-eight thousand two hundred and nineteen rand and ninety -two
92 (twenty-eight thousand two hundred and nineteen rand and ninety -two
cents) and related to amounts owing to the first respondent for the period 1
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March 2022 until the end of 31 November 2024 as a consequence of her
being paid an hourly rate which was less than the minimum hourly rate
prescribed for a domestic worker in terms of the National Minimum Wage Act,
2018 (the NMW Act) by the applicant . I shall refer to this as ‘ the short -pay
component’ of the award.
[13] The notice-pay portion of the sum of R32 996.48 amounted to R4 776.56 (four
thousand seven hundred and seventy-six rand and fifty-six cents). I shall refer
to this as ‘the notice-pay component’ of the award.
[14] The short-pay component of the award relates to three periods, all falling with
the ambit of the NMW Act namely: (i) 01 March 2022 to the end of February
2023 [a period of 12 (twelve) months]; (ii) 01 March 2023 to the end of
February 2024 [a period of 12 (twelve) months]; (iii) 01 March 2024 to the end
of November 2024 [a period of approximately 9 (nine) months].
[15] The essence of the award was the following - the arbitrator decided that the
applicant owed the first respondent the sum of R32 996.48 (thirty -two
thousand nine hundred and ninety -six thousand rand and forty -eight cents)
being the outstanding balance of her salary for the years 2022, 2023 and
2024 and notice pay.
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Grounds of review
[16] The applicant contends that the award is reviewable for a variety of reasons.
[17] Having regard to the applicant’s founding affidavit, these reasons include,
inter alia, that:
a. The arbitrator made the following errors of fact -
i. finding that the first respondent’s working hours is from 08h00 to
16h30 and that she was taking a lunch break for less than an
hour, when the evidence presented by the applicant clearly
confirms that the original agreement between the parties was
the first respondent works from 08h00 to 16h00, which is equal
1 Award, paragraphs 32 to 34
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to eight hours per day with a lunch break and a tea break which
is more than an hour 2 [leaving a balance of seven hours paid
hours of work];
ii. finding that the first respondent’s salary during 2022 was
R3 300.00 when in fact it was R3 500.00 and during 2023 the
rate was R3 500.00 when in fact it was R3 700.00
3; and
iii. finding that the first respondent’s employment was terminated
on 29 November 2024 without giving a notice period, when in
fact the first respondent refused and/or failed to work a notice
period and is not entitled to any payment in relation to same
4.
b. The arbitrator committed the following gross irregularities:
i. by failing to consider all the evidence submitted in terms of
Bundle R by the applicant and capturing a false version of
events, which is not a true reflection of the testimony of the
applicant
5; and
ii. by not considering the common cause fact that from 1
September 2024 by mutual agreement between the parties, the
first respondent only worked 3 (three) days per week.
c. The arbitrator committed a reviewable error by failing to consider
Section 14 of the B CEA which confirms that a lunch break is unpaid
and he included in his calculations the lunch hour as being paid
therefore making an erroneous calculation.
d. The arbitrator totally disregarded evidence led by the applicant which
submitted that the first respondent on a regular basis attended work
late and left early and failed to include in his calculation the time that
the first respondent did not attend at work, which should be calculated
as unpaid.
2 Award, para 8
3 Award, para 19
4 Award, para 19
5 Award, para 21
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[18] In relation to the applicant’s contention that it was a common cause fact that
from 1 September 2024 by mutual agreement between the parties, the first
respondent only worked 3 (three) days per week and not 5 ( five) days per
week, I could not find any reference to any oral evidence in this regard in the
transcript. There is, however, a document in B undle R (page 38) which
appears to be a message of some kind purportedly dated 27 September 2024
informing the first respondent that she only needed to work three days per
week and not five days per week. During the arbitration, t he arbitrator asked
the parties if there was any bundle of documents which they wanted to
exchange. The applicant provided the arbitrator with a bundle of documents
(Bundle R) totalling 47 (forty -seven) pages. The transcript does not confirm
whether or not the applicant also provided the first respondent with a copy of
Bundle R.
[19] The transcript contains no references to the bundle of documents during the
applicant’s oral evidence, and particularly not the message referred to above
(purportedly dated 27 September 2024) . The applicant’s case commences at
page 4, line 92 of the transcript when the arbitrator asks him – “Employer, do
you have any question to the Applicant?” The applicant’s case continues until
page 5, line 20 of the transcript when the applicant indicates – “That’s the
evidence I have”. It appears that the applicant did not present any oral
evidence in respect of the message. He did not refer the first respondent to
the message when he cross -examined her. Unlike some of the other
messages contained at pages 39 to 42 of Bundle R (which anecdotally appear
to be W hatsApp messages), page 38 does not contain any features that
would prima facie identity it as a n SMS message, a W hatsApp message, an
email or otherwise. This Court can regrettably not accept that this message
served as persuasive evidentiary material properly before the arbitrator.
The review test
served as persuasive evidentiary material properly before the arbitrator.
The review test
[20] The applicable test on review in applications such as this one is now trite. In
Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 6, the
Constitutional Court held that ‘the reasonableness standard should now
6 (2007) 28 ILJ 2405 (CC).
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suffuse s 145 of the LRA’, and that the threshold test for the reasonableness
of an award was: ‘… Is the decision reached by the commissioner one that a
reasonable decision maker could not reach? …”7
[21] The Constitutional Court reaffirmed this test in Duncanmec (Pty) Ltd v Gaylard
NO and Others (2018) 39 ILJ 2633, where at paragraph 43 of the judgment, it
said the following:
‘The correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement if there are reasons
supporting it. The reasonableness requirement protects parties from arbitrary
decisions which are not justified by the rational reasons.’
[22] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014) 35 ILJ
943 (LAC), the court held that the review court must ascertain whether the
arbitrator considered the principal issue in dispute, evaluated the facts
presented at the hearing and came to a conclusion that is reasonable. In
essence, the test is a two- stage test. To succeed, an applicant must establish
some reviewable irregularity on the part of the arbitrator and given the
existence of any such an irregularity, establish that the outcome of the
proceedings in the form of the arbitrator’s ruling or award, falls outside of a
band of decisions to which a reasonable decision- maker could come on the
available evidence.
[23] In Head of the Department of Education v Mofokeng and Others
8, Murphy
AJA provided the following guidance in respect of precisely how this
determination is to be made, saying the following:
‘[31] The determination of whether a decision is unreasonable in its result is
an exercise inherently dependant on variable considerations and
circumstantial 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
unreasonableness often entails examination of inter-related questions of
rationality, lawfulness and proportionality, pertaining to the purpose, basis,
7 Ibid at paras 106 and 110.
8 [2015] 1 BLLR 50 (LAC) paras 31 and 33
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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. Moreover, judges of the Labour Court should
keep in mind that it is not only the reasonableness of the outcome which is
subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not
misconceive the inquiry or undertake the inquiry in a misconceived manner.
There must be a fair trial of the issues.
[33] 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 inquiry. 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
factors informing the decision; the nature of the competing interests impacted
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 arbitrator
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.’
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[24] In Securitas Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others [2021] 5 BLLR 475 (LAC), the Labour
Appeal Court restated the review test in the following terms:
‘The test for review is this: “Is the decision reached by the arbitrator one that a
reasonable decision maker could not reach?” To maintain the distinction
between review and appeal, an award of an arbitrator will only be set aside if
both the reasons and the result are unreasonable. In determining whether the
result of an arbitrator’s award is unreasonable, the Labour Court must broadly
evaluate the merits of the dispute and consider whether, if the arbitrator’s
reasoning is found to be unreasonable, the result is, nevertheless, capable of
justifications for reasons other than those given by the arbitrator. The result
will be unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the arbitrator.
This court has eschewed a piecemeal approach to a review application by the
Labour Court. The proper approach is for the Labour Court to consider the
totality of the evidence in deciding “whether the decision made by the
arbitrator is one that a reasonable decision maker could make.”’
[25] In casu, where the primary grounds for review relate to the arbitrator’s
assessment of the evidence, this Court must be particularly cautious to hold
the line between a review and an appeal. As the authorities referred to above
disclose, this Court is entitled to intervene if and only if the arbitrator is shown
to commit some reviewable irregularity and the outcome of the proceedings
under review falls outside of a band of decisions to which a reasonable
decision maker could come on the evidence. As the courts have observed
more than once, the threshold for review is set high, and deliberately so.
[26] In Glencore Operations South Africa (Pty) Ltd v Taala and Others
9, the
[26] In Glencore Operations South Africa (Pty) Ltd v Taala and Others
9, the
Labour Appeal Court (LAC) per Van Niekerk JA restated the threshold for
interference with a commissioner’s arbitration award:
9 [2025] 6 BLLR 559 (LAC).
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‘The hurdles that the appellant was required to overcome on review were to
establish some misdirection on the part of the arbitrator in his assessment of
the evidence and, secondly, that the factual conclusions that he drew were
untenable, rendering the award one to which no reasonable decision- maker
could come. Implied in the Labour Court’s finding is that the arbitrator had
regard to relevant evidence, did not take irrelevant evidence into account, and
arrived at a conclusion that fell within the bounds of reasonableness.’
10
[27] In Makuleni v Standard Bank of SA (Pty) Ltd & others 11, the LAC per
Sunderland JA indeed reminded this Court of the crucial distinction between a
review and an appeal. The case highlighted instances where the Labour Court
was ‘misled into treating the case for a review as if it were an appeal’ . The
learned Judge observed:
‘The court as ked to review a decision of commissioner must not yield to the
seductive power of a lucid argument that the result could be different. The
luxury of indulging in that temptation is reserved for the court of appeal. At the
heart of the exercise is a fair reading of the award, in the context of the body
of evidence adduced and an even- handed assessment of whether such
conclusions are untenable. Only if the conclusion is untenable is a review and
setting aside warranted.’12
[28] In short, this Court’s review powers are limited to, inter alia, scrutinising the
rationality and reasonableness of the decision- making process and outcome.
The Court’s review powers do not extend to it re- adjudicating the merits of the
case that was before a commissioner as if it were an appeal. E rrors which do
not materially impact the substantive rationality of the outcome are to be
regarded as superfluous observations and do not, in themselves, constitute a
basis for judicial intervention. It is therefore unhelpful to enumerate a
catalogue of alleged errors without substantively demonstrating how such
catalogue of alleged errors without substantively demonstrating how such
errors materially impacted the ultimate outcome.
13 The true inquiry remains
10 Ibid at para 25.
11 (2023) 44 ILJ 1005 (LAC).
12 Ibid at para 4.
13 See: Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at
paras 30 – 33.
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whether, despite any identified errors, the arbitration award falls within the
band of decisions that a reasonable decision-maker could reach.
[29] I now turn to an analysis of the award in light of the grounds of review , the
evidentiary that served properly before the arbitrator, and the review test
enunciated above. My analysis deal s with the short -pay component and the
notice-pay component separately.
Analysis: short-pay component of the award
[30] If one has regard to the transcript and not necessarily to what the award may
state or imply in this regard, the first respondent’s daily number of working
hours during the relevant periods which the applicant was obliged to
remunerate her for, was not common cause.
[31] According to the award, and in relation to daily working hours, the first
respondent contended that she worked five day per week and that her
working hours were from 08h00 to 16h30 with a lunch break of less than an
hour. The transcript does not reflect any specific evidence to this effect from
the first respondent.
[32] The award does not record the applicant’s evidence i n relation to working
hours. It is only if one has regard to the transcript that it becomes apparent
that the applicant contended that although the first respondent’s working
hours were from 08h00 to 16h30 and that was the hours that she was
supposed to work, she was only at work for roughly 8 (eight) hours per day, of
which she took an hour’s lunch. Further, on the applicant’s version as
reflected in the transcript , he was only required to remunerate the first
respondent for a minimum of 7 (seven) hours per day . The following is stated
from page 4 line 09 to page 5 line 15 of the transcript in this regard – “Okay.
Her hours are from 08h00 until 16h30. That’s the hours she’s supposed to
work. I have entry and exit evidence that indicates that she’s there roughly
eight hours a day of which she takes an hour’s lunch. If you take the seven
eight hours a day of which she takes an hour’s lunch. If you take the seven
hours, multiply it by the correct rate, the R3800 rent is correct. That’s the only
evidence I have to submit. Prior to that, she’s never had an issue with what
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we paid her, because she knows she isn’t working the full nine hours or eight
hours a day, because she’s supposed to be from 8 to 5.”
[33] As for the number of working days in a week, t he applicant contends in his
founding affidavit that the first respondent’s working week was reduced from 5
(five) to 3 (three) days per week from 1 September 2025. The transcript does
not reflect any evidence being presented in this regard by the applicant. The
basis for this contention by the applicant appears to be the message
contained at page 38 of Bundle R. The difficulties surrounding accepting this
document as part of the evidentiary material that served properly before the
arbitrator, has been addressed above. The applicant’s own version as
presented to this Court contains some inherent contradictions – for example,
he contends in his founding affidavit that the three- day working week would
apply from 1 September 2024 onwards (paragraph 18 in the founding
affidavit) yet the message itself in Bundle R (page 38) is dated 27 September
2024.
[34] If one has regard to the arbitrator’s calculations in paragraphs 28, 29 and 30
of the award, and ultimately his decision in relation to how much the applicant
owed the first respondent, it appears that he calculated the relevant amounts
based on roughly – (i) 173.19 working hours per month; (ii) 39.88 working
hours per week; and (ii) 7.97 working hours per day - rounded up to
approximately eight hours per day and forty hours per week.
[35] The first respondent did not dispute the applicant’s version, set out on page 4
line 09 to page 5 line 18 of the transcript, that the first respondent only worked
roughly 7 (seven) hours per day and that he should only be remunerating her
for seven hours per day at the applicable minimum hourly rate in terms of the
NMW Act.
[36] The arbitrator’s decision that the applicant owed the first respondent an
amount of R28 219.92 (being the outstanding balance of her salary for the
amount of R28 219.92 (being the outstanding balance of her salary for the
years 2022, 2023 and 2024), and the decision- making process in respect
thereof, amounts to a gross irregularity in the proceedings in that the arbitrator
made an error of fact as well as a decision and/or outcome that falls outside of
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the band or range of decisions to which a reasonable decision- maker could
come, having regard to the first respondent bearing the onus of proof, the
evidentiary material that served before the arbitrator, and the evidence which
was common cause and in dispute (particularly the applicant’s version of the
disputed facts).
[37] The arbitrator ignored and/or failed to consider material facts relating to the
short-pay component of the award being the approximate number of hours in
each day that the first respondent worked for the applicant and which the
applicant was obliged to remunerate the first respondent for. The only credible
version before the arbitrator was that it was a pproximately a seven-hour
working day instead of an approximately eight-hour working day, yet the
arbitrator’s decision was based on approximately an eight -hour working day.
Had the arbitrator based his decision on a seven- hour working day instead of
on an eight -hour working day, the result would have been different as a
materially lesser amount of short -pay would have been awarded to the first
respondent.
[38] Arbitration awards of course only have to contain brief reasons, and it cannot
automatically be inferred that the arbitrator’s failure to explicitly deal with
whether the first respondent worked and would be paid for seven hours per
day instead of eight hours per day means that the arbitrator did not consider
it.
[39] Notwithstanding that context, however, the only version/s before the arbitrator
in respect of the first respondent’s working hours per day that the applicant
was obliged to remunerate her for, was an approximately seven-hour working
day, and this was clearly of great significance or relevance to the award and
the arbitrator’s decision-making. The arbitrator does not refer to a seven- hour
working day in the award. He also does not factor that into his calculations in
paragraphs 28 to 30 (seven hours instead of eight hours) . Moreover, he does
paragraphs 28 to 30 (seven hours instead of eight hours) . Moreover, he does
not provide any reasoning for preferring an eight -hour working day over a
seven-hour working day. The inference may therefore reasonably be drawn
that the arbitrator did not apply his mind to this (which was uncontested
evidence on the part of the applicant before him ). I t cannot be said in the
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circumstances that the arbitrator considered this fact (a seven- hour working
day) and instead decided to resolve the matter on a different basis (applying
an eight-hour working day).
[40] The decision made by the arbitrator in respect of the short -pay component
could not reasonably have been reached in light of the evidence and the
issues, even if one was to disregard any flawed reasoning on the part of the
arbitrator or any gross irregularity in the proceedings in the form of an error of
fact being made. Besides the unreasonableness of the outcome, the arbitrator
must also have misconceived the inquiry or undertaken the inquiry in a
misconceived manner so as to prevent a fair trial of the issues. Errors of fact
and/or gross irregularities do not automatically produce an unreasonable
outcome or provide a compelling indication that the arbitrator misconceived
the enquiry. Whether an unreasonable outcome has been produced and/or
there is a compelling indication that the arbitrator misconceived the enquiry,
will depend on the materiality of the error or irregularity and its relation to the
result. But for the error or irregularity in relation to calculating any short pay
with reference to eight working hours instead of seven working hours, a
different outcome would have been arrived at – the short pay sum would have
amounted to 10 219.74 instead of R28 219.92. This material error or
irregularity therefore points to an unreasonable result. The arbitrator does not
appear to have asked himself the right question when making his decision
namely - ‘If I have regard to the evidence before me, what was the first
respondent’s working hours per day which the applicant was obliged to pay
her for?’ In light of the general nature of the decision in issue, the range of
relevant factors informing the decision, the nature of the parties’ competing
interests impacted upon by the decision, and the decision ultimately not
interests impacted upon by the decision, and the decision ultimately not
striking a reasonable equilibrium in accordance with the objects of the LRA,
the material error or irregularity produced an unreasonable outcome
and/or constituted a misconception of the nature of the enquiry so as to lead
to no fair trial of the issues.
[41] The decision reached in respect of the amount of short pay that is owing does
not meet the requirement of reasonableness as this decision is not justified by
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any rational reason/ s. The arbitrator’s decision is respect of the short -pay
component/notice-pay component is not rationally connected to the
evidentiary material which served before him. In reaching his finding, the
arbitrator appears to have materially misdirected himself in relation to the
evidentiary material before him. Both the reasons and the result are
unreasonable. The result is not capable of being justified for reasons other
than those provided by the arbitrator.
[42] The decision made in respect of the short -pay component falls outside of the
band or range of decisions to which a reasonable decision maker could come
to in light of the evidentiary material before him. The threshold test for the
reasonableness of this award is whether the decision reached by the
arbitrator was one that a reasonable decision maker could not reach. The
arbitrator misconceived a material aspect of the evidence before him and
drew a factual conclusion which was untenable. This renders the arbitrator’s
decision in respect of the short-pay component one to w hich no reasonable
decision-maker could come.
[43] Ultimately, on a full conspectus of all the relevant issues and having carefully
assessed the totality of the evidence before the arbitrator as well as the
reasoning underpinning his decision in relation to the short -pay component
and the notice- pay component, it is clear that the arbitrator decision that the
applicant owed the first respondent the sum of R28 219.92 (R32 996.48 less
R4 776.56) in respect of the outstanding balance of her salary for the years
2022, 2023 and 2024 (set out in paragraph 34 of t he award) is fundamentally
flawed along with the arbitrator’s reasoning in paragraphs 28 to 31 of the
award which underpins the decision in paragraph 34. Accordingly, I am
persuaded that the arbitrator ’s decision regarding the short -pay component
was not one that a reasonable decision maker could reach thus failing to meet
the reasonableness threshold.
the reasonableness threshold.
Analysis: notice-pay component of the award
[44] According to the first respondent’s LRA for 7.11: (i) the nature of the dispute
which she referred to the CCMA was a dispute in terms of Section 73 BCEA
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dispute (Claims for monies owing in terms of the NMW Act); and (ii) it does
not appear that a dispute in relation to Section 73 BCEA dispute (Other claims
for failure to pay monies owing) was referred to the CCMA.
[45] The dispute as referred appears to be confined to monies owing in terms of
the NMW Act. The arbitrator confirms this in the opening paragraphs of the
award (paragraphs 1, 8, 15, 17 and 20). The arbitrator’s summary of the
parties’ evidence also makes no mention of a dispute relating to notice pay.
[46] On a conspectus of the evidentiary material that served before the arbitrator, it
does not appear that any evidence was presented by either party in relation to
a dispute about notice pay and that either the first respondent’s employment
was terminated on 29 November 2024 without giving a notice period ,
alternatively, that the first respondent refused and/or failed to work a notice
period and is not entitled to any payment in relation to notice pay.
[47] The arbitrator did not have the authority to determine a dispute not before him
and in the circumstances, he exceeded his powers by making a decision on
the notice-pay component of the award. Even if there was a notice pay
dispute before him, the arbitrator’s decision in respect of the notice pay
component was not rationally justifiable in that there was no objective basis
which connected that decision with the available evidentiary material.
[48] The error or irregularity was also material in that it had a distorting effect on
the demarcation of the issues to be determined and the ultimate outcome,
thereby resulting in a misconception of the nature of the enquiry so to prevent
the parties from fully ventilating their case and leading to an unfair trial of the
issues.
[49] The relief granted by the arbitrator in paragraph 34 of the award is reviewed
and set aside.
Relief
[50] Having found that the arbitrator’s decision in respect of the short-pay
Relief
[50] Having found that the arbitrator’s decision in respect of the short-pay
component and notice-pay component of the award falls to be reviewed and
set aside, that then leaves the issue of relief and whether it is appropriate for
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this Court to remit that aspect of the matter back to the CCMA for a hearing
de novo before another arbitrator or to substitute its own decision for that of
the arbitrator.
[51] In Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others14, the court set out the circumstances in
which the Labour Court would rather correct the decision than refer it back to
the CCMA as being:
‘(i) where the end result is a foregone conclusion and it would merely be a
waste of time to order the CCMA to reconsider the matter;
(ii) where a further delay would cause unjustified prejudice to the parties;
(iii) where the CCMA has exhibited such bias or incompetence that it would
be unfair to require the applicant to submit to the same jurisdiction again; or
(iv) where the court is in as good a position as the CCMA to make the
decision itself.’
[52] In Phakoago v SANCA Witbank Alcohol and Drug Help Centre and Others15
the Labour Appeal Court provided guidance on the circumstances in which
the Labour Court should remit a matter for a rehearing or, alternatively,
substitute its own decision for that of a commissioner. The Labour Appeal
Court held as follows:
“[40] In terms of section 145 (4) (a) of the LRA, the Labour Court has the
broadest powers to determine a dispute in whatever manner it considers
appropriate. In exercising this power, the Labour Court may, after reviewing
the proceedings, and if it finds in favour of the applicant by upholding the
review, either substitute its decision for that of the commissioner or remit the
matter to the CCMA.
[41] In National Union of Metalworkers of South Africa v Commission for
Conciliation, Mediation and Arbitration and Others, the Constitutional Court,
after noting the wide discretion the Labour Court has in determining a dispute,
cautioned against the Labour Court readily substituting its decision for that of
the commissioner. The underlying consideration of the caution relates to the
the commissioner. The underlying consideration of the caution relates to the
risk of the hasty use of discretion undermining the doctrine of separation of
powers. The doctrine of separation of powers is critical in this regard because
otherwise, the Labour Court could usurp the powers assigned to
commissioners of the CCMA. It was for this reason that the Constitutional
Court held that the Labour Court should exercise a measure of judicial
deference and only substitute decisions in exceptional circumstances.” It went
14 (2010) 31 ILJ 452 (LC)
15 [2024] 12 BLLR 1271 (LAC) at para 40 onwards.
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further and stated that “judicial deference should not be interpreted to mean
that the Labour Court does not have the power to substitute… arbitration
awards”.
[53] The following is evident from the foregoing and the available evidentiary
material, that: firstly, this Court does have the power to substitute its decision
for that of the arbitrator; secondly, and at a bare minimum, a further delay
would cause unjustified prejudice to the parties and this Court is in as good a
position as the CCMA to make the decision itself, whilst it is arguable that the
end result is a foregone conclusion and it would merely be a waste of time to
order the CCMA to reconsider the matter; and thirdly, this Court should
exercise a measure of judicial deference and substitute its decision for that of
the arbitrator in exceptional circumstances.
[54] In Trencon Construction (Pty) Ltd v Industrial Development Cooperation of
South Africa Ltd and Another16, the Constitutional Court stated the following in
relation to the enquiry into what factors were to be taken into account in
considering whether to exercise the discretion to substitute the decision of an
administrator and how the ‘exceptional circumstances’ enquiry was to be
approached:
‘To my mind, given the doctrine of separation of powers, in conducting this
enquiry there are certain factors that should inevitably hold greater weight.
The first is whether a court is in as good a position as the administrator to
make the decision. The second is whether the decision of an administrator is
a foregone conclusion. These two factors must be considered cumulatively.
Thereafter, a court should still consider other relevant factors. These may
include delay, bias or the incompetence of an administrator. The ultimate
consideration is whether a substitution order is just and equitable. This will
involve a consideration of fairness to all implicated parties. It is prudent to
emphasise that the exceptional circumstances enquiry requires an
emphasise that the exceptional circumstances enquiry requires an
examination of each matter on a case-by-case basis that accounts for all
relevant facts and circumstances.’
[55] The Constitutional Court again emphasised the following factors as holding
greater weight when it comes to the exercise of the discretion to substitute,
namely whether a court is in as good a position as the administrator/arbitrator
to make the decision; whether the decision of an administrator/arbitrator is a
foregone conclusion; other relevant factors which may include delay; and,
what is described as the ‘ultimate consideration’, being whether a substitution
order is just and equitable.
16 [2015] ZACC 22
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[56] In casu, the record before this Court is sufficient to allow for a proper
determination of how much the applicant should pay the first respondent in
respect of any outstanding balance of her salary for the years 2022, 2023 and
2024 in light of the provisions of the NMW Act. In my analysis, this Court is in
as good a position as another commissioner of the CCMA to determine this.
Moreover, a remittal of the matter for a rehearing will prolong its determination
and not be in the interests of expeditious dispute resolution and justice. I am
mindful that the dispute relates to the payment of statutory amounts arising
from roughly a three-year period of time that ended almost a year ago (at the
end of November 2024). Remitting the matter back to the CCMA for an
arbitration de novo would delay redress being obtained and frustrate one of
the primary objectives of the LRA being the expeditious resolution of disputes.
Requiring these parties to go through yet another arbitration would, in my
view, be contrary to both the interests of justice and the objectives of the LRA
and a substitution order is ultimately just and equitable in the circumstances.
[57] The present case falls into the category of one in which this Court may
substitute the decision of an arbitrator, and paragraph 34 of the award stands
to be substituted by an order to the effect that the applicant ought to pay the
first respondent an amount of R10 219.74 in relation to the short-pay
component of the award. I am satisfied that a direct substitution of the
arbitrator’s decision is appropriate, rather than remitting the matter for a de
novo hearing.
Costs
[58] In accordance with the requirements of law and fairness, as set out in section
162 of the LRA, I am of the view that an order of costs should not be made in
this matter. The requirements of the law and fairness are best served by the
applicant bearing his own costs.
Conclusion
applicant bearing his own costs.
Conclusion
[59] For all the reasons set out above, I am of the view that there is merit in the
review application and that a proper case has been made out to justify this
Court’s interference with both the short pay component of the award as well
as the notice-pay component of the award. In my assessment, the decision
reached by the arbitrator that the applicant owed the first respondent the sum
of R32 996.48 consisting of short pay in the sum of R28 219.92 due to a
failure to comply with the NMWA and any notice-pay (whether in the sum of
R4 776.56 or otherwise) falls to be review and set aside for the reasons set
out above. Notwithstanding the threshold for review being set high, it is in the
interests of justice and fairness for this Court, as a court of equity, to intervene
in the award as recorded above.
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[60] As for the relief, I am satisfied that a direct substitution of the arbitrator’s
award is appropriate, rather than remitting the matter for a de novo hearing
and paragraph 34 of the award stands to be substituted by an award to the
effect that: (i) the applicant ought to pay the first respondent an amount of
R10 219.74 (ten thousand two hundred and nineteen rand and seventeen
cents) in relation to the short-pay component of the award; and (ii) no amount
is owing by the applicant to the first respondent in respect of notice pay.
[61] In the circumstances, I make the following order:
Order
1. The Arbitration Award dated 30 December 2024 under CCMA case reference
number GAJB29166-24 is reviewed and set aside in respect of the decision
set out in paragraph 34 thereof.
2. The relief granted by the arbitrator in paragraph 34 of the award is substituted
with the following relief – The Respondent, Denzil Kennedy, is ordered to pay
the Applicant, Thandie C Chirwa, the amount of R10 219.74 (ten thousand
two hundred and nineteen rand and seventy -four cents) being the outstanding
balance of her salary for the years 2022, 2023 and 2024.
3. Payment of the amount of R10 219.74 (ten thousand two hundred and
nineteen rand and seventy-four cents), as referred to in paragraph 2 above, is
to be made by the applicant to the first respondent within 20 (twenty) court
days of the date on which this judgment is handed down.
4. There is no order as to costs.
______________________________
Mendel Sass
Acting Judge of the Labour Court of South Africa
Appearances:
For the applicant: The applicant appeared personally.
For the respondents: No appearances.
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