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[2025] ZALCCT 120
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Smit v Malan Lourens Viljoen Inc and Others (C378/2023) [2025] ZALCCT 120 (17 November 2025)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT CAPE TOWN
Not reportable
CASE
NO: C378/2023
In the matter between:
HELLOISE
SMIT
Applicant
and
MALAN
LOURENS VILJOEN INC
First Respondent
CCMA
Second Respondent
REAGAN
JACOBS
N.O.
Third Respondent
Date
of Hearing:
12 November
2025
Date
of Judgment:
This judgment was handed
down electronically by circulation to the parties’ legal
representatives by email, publication on
the Labour Court website and
release to SAFLII. The date and time for handing down judgment is
deemed to be 10h00 on 17 November
2025 .
Summary:
The employee was dismissed for
misconduct and was on a valid final written warning at time of
dismissal. She pleaded guilty to the
allegations against her. The
arbitrator found dismissal was an appropriate sanction applying the
correct principles. On review,
the applicant was confined to the
limited grounds in her founding affidavit. Review test restated and
applied. The arbitrator’s
decision was not unreasonable and the
application for review was dismissed.
JUDGMENT
BOSCH
AJ
INTRODUCTION
[1]
The applicant seeks to review and set aside
an arbitration award by the third respondent (“the arbitrator”)
under the
auspices of the second respondent (“the CCMA”).
[2]
The applicant commenced employment with the
first respondent (“the employer”) on 1 December 2020 in
the capacity of
legal secretary. On 4 March 2022 she was issued with
a notice to attend a disciplinary hearing. The hearing was chaired by
a Mr
Neethling Joubert and related to allegations that the applicant
had been negligent in putting incorrect information on documents.
After that hearing the applicant was found guilty of the misconduct
alleged against her and was given a final written warning.
[3]
A second disciplinary hearing was held on
30 September 2022, also relating to allegations that the applicant
had been negligent
in relation to information on various documents.
The applicant was found guilty of the misconduct alleged against her
and summarily
dismissed.
[4]
On 7 October 2022, she appealed her
dismissal. The appeal was dismissed and the applicant was advised
that she could refer a dispute
to the CCMA.
[5]
She referred an unfair dismissal dispute to
the CCMA on 13 October 2022, challenging the substantive and
procedural fairness of
her dismissal and arbitration proceedings were
conducted on 17 April and 5 June 2023. The arbitrator found that the
dismissal was
substantively and procedurally fair. The applicant
seeks to review that decision.
THE ARBITRATION AWARD
[6]
It was common cause that the applicant
attended but did not participate in the disciplinary hearing which
led to her dismissal.
She said that was because she was unhappy with
the behaviour of the chairperson in the hearing which led to the
final written warning.
[7]
The arbitrator found that since the
applicant had not referred a dispute relating to the final written
warning to the CCMA it fell
outside of the bounds of what he could
decide. He found, with reference to the decision in
Old
Mutual Life Assurance Co SA Ltd v Gumbi
[2007] 9 BLLR 699
(SCA), that the applicant’s waiver of her
right to participate in the hearing did not constitute procedural
fairness. The
arbitrator pointed out the applicant’s concession
that the chairperson in the second hearing was not rude to her and
had
repeatedly attempted to get her to participate in the hearing.
[8]
As far as substantive fairness was
concerned, the arbitrator recorded that the applicant had pleaded
guilty to the allegations against
her. She was also aware of the rule
or standard, not least of all because of the final written warning
which was still valid at
the time of the second disciplinary hearing.
The applicant led no evidence relating to inconsistency. The
arbitrator found that
dismissal was an appropriate sanction because
the applicant was guilty of repeated acts of misconduct and was on a
valid final
written warning at the time of the dismissal which had
gone unchallenged despite the employer advising the applicant that
she could
challenge it by way of an unfair labour practice dispute.
[9]
In addition, the applicant had put up no
evidence to show that she could not have approached the employer if
she required assistance.
The arbitrator found that the applicant was
not an unsophisticated employee and she played an important role in
the business. She
was also experienced in the industry and had
obtained an LLB degree and other qualifications.
[10]
With reference to the Constitutional
Court’s decision in
Sidumo &
another v Rustenburg Platinum Mines
(2007) 28
ILJ
2405 (CC), the arbitrator reviewed the ‘totality of
circumstances’. Those included the applicant’s role with
the employer, her length of service and her prior disciplinary record
and the evidence before him. On the basis of that he concluded
that
dismissal was an appropriate sanction.
THE GROUNDS OF REVIEW
[11]
In her founding affidavit, the applicant
alleged that the award was not a decision that a reasonable
commissioner could reach. That
was because the sanction of dismissal
was too severe given that she had pleaded guilty and her misconduct
was not that serious.
It did not involve elements of dishonesty or
insubordination and the employer failed to demonstrate that it had
suffered any harm,
loss or embarrassment. As I understood it, the
applicant also alleged that the employer was inconsistent because its
answering
affidavit in response to her application for legal
representation in the CCMA, allegedly drafted by Mr Herbert (a
director of the
employer), contained various errors which were
similar to the errors which led to her dismissal and no action was
taken against
Mr Herbert.
[12]
The applicant did not file a supplementary
affidavit in the review, instead electing to stand by her notice of
motion and its accompanying
founding affidavit. She filed a replying
affidavit in which she dealt at some length with the evidence before
the arbitrator and
other matters.
THE
MERITS OF THE REVIEW
[13]
It
is trite that an applicant in review proceedings must set out the
grounds of review in her founding affidavit, read with her
supplementary affidavit, if there is one. And, except for some
limited grounds which appear from the record (such as jurisdictional
issues) the applicant is confined to what she has pleaded in those
affidavits.
[1]
[14]
It is noteworthy that the applicant does
not challenge the arbitrator’s findings on the procedural
fairness of her dismissal.
On a proper assessment of her pleadings,
the review challenge is limited to an allegation that the arbitrator
reached a decision
that no reasonable arbitrator could reach in
finding that dismissal was an appropriate sanction.
[15]
The
Labour Appeal Court
[2]
has said
the following regarding the standard to be applied in determining the
reasonableness of arbitrators’ decisions:
‘…
The
court asked 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.’
And
further:
‘
To
meet the review test, the result of the award has to be so egregious
that, as the test requires, no reasonable person could reach
such a
result.’
[16]
The
allegation relating to inconsistency is of no assistance to the
applicant. Firstly, she did not articulate why the award was
reviewable because the employer’s answering affidavit in the
application for legal representation contained errors. However,
because she is a layperson which entitles her to some latitude
[3]
,
the court will assume that she meant to convey that the arbitrator
ought to have taken this into account in assessing the fairness
of
her dismissal and that his failure to do so renders the award
unreasonable.
[17]
The arbitrator found that the applicant did
not lead any evidence of inconsistency. That was correct. The
evidence relating to the
answering affidavit arose in the cross
examination of Mr Herbert. The arbitrator committed no irregularity
in not taking it not
account given that it was irrelevant. That is
because Mr Herbert’s conduct was not the same as that for which
the applicant
was dismissed. It also transpired that Mr Herbert had
not drafted the affidavit, albeit that he had signed it.
[18]
Mr Herbert testified in cross examination
that action was taken against other employees who were guilty of
similar misconduct to
the applicant’s, but, as far as he could
recall, none had been dismissed. That evidence was not challenged. In
addition,
there was no evidence regarding the disciplinary records of
those other employees. It was obviously important whether they were
on a valid final written warning at the time of any disciplinary
proceedings against them, but that evidence was lacking.
[19]
Therefore, the arbitrator did not reach an
unreasonable decision because he did not find that there was
inconsistency in the applicant’s
dismissal.
[20]
As to the issue of whether dismissal was an
appropriate sanction, the arbitrator (as was required of him) took
into account various
factors in considering whether dismissal was an
appropriate sanction. It cannot be said that the decision was
unreasonable in the
sense that it was so egregious that no reasonable
person could reach such a result.
[21]
The applicant was on a valid final written
warning at the time of her dismissal, she conceded in cross
examination that she was
capable of doing the work and was aware
after receiving the final written warning that further misconduct of
the same nature could
lead to her dismissal. In addition, the
applicant did not apologise for her misconduct and the fact that the
employer did not demonstrate
actual
harm due to her repeated misconduct does not count in her favour.
That is because the applicant appears to have accepted in cross
examination that her misconduct
could
have
caused harm to the employer if it
was not detected. Fortunately, it was.
[22]
In the circumstances, the applicant has
failed to prove that the arbitrator’s decision was unreasonable
and her application
for review falls to be dismissed.
[23]
As far as costs are concerned, the employer
did not request that I award costs in its favour and I can see no
reason in the circumstances
to deviate from the general rule that
costs are not awarded in matters such as this.
[24]
In the premises, I make the following
order:
1.
The application to review and set aside the
award issued under case number WECT-16141/22 is dismissed.
2.
There is no order as to costs.
Craig Bosch
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
Applicant:
In person
Respondent:
Advocate Manser, instructed by Malan
Lourens Viljoen
[1]
CUSA
v Tao Ying Metal Industries & others
[2009] 1 BLLR 1
(CC) para 67;
Comtech
(Pty) Ltd v Molony N.O and Others
(DA 12/05)
[2007] ZALAC 35
(21 December 2007) at paras 13-14;
Mpe
v Polokwane Local Municipality and Others
(JR101/2023)
[2024] ZALCJHB 426 (7 November 2024) at paragraphs 9 – 15;
Gibela
Rail Transport Consortium Rf Pty (Ltd) v NUMSA obo Dube and Others
(JR1558/2022) [2025] ZALCJHB 301 (28 July 2025) at para 24
[2]
Makuleni
v Standard Bank of South Africa
(2023) 44
ILJ
1005
(LAC) at paras 4 and 13;
AJ
Charnaud and Company v SACTWU obo Members and Others
(2024) 45
ILJ
2257 (LAC) at para 24;
Mashele
v South African Reserve Bank and Others
(JA128/24)
[2025] ZALAC 51
(21 October 2025) at paras 28-29
[3]
Moswane v
South African Police Serves and Others, In re: South African Police
Serves and Another v Moswane and
Others
(JR813/08)
[2010] ZALC 260
(20 October 2010) at para 9