THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA
Not Reportable
Case No. PR87/20
In the matter between:
SAFICON INDUSTRIAL EQUIPMENT
(PTY) LTD t/a TOYOTA FORKLIFT Applicant
and
SEASANI, N N.O. First Respondent
METAL AND ENGINEERING INDUSTRIES
BARGAINING COUNCIL Second Respondent
NUMSA obo S BOOI & 7 OTHERS Third Respondent
Heard: 29 October 2025
Delivered: 14 November 2025
JUDGMENT
MAKHURA, J
2
[1] Before this Court is an application to review and set aside the arbitration award
issued by the first respondent commissioner. 1 The commissioner found that the
dismissal of the eight third respondent employees was substantively unfair and
ordered the applicant company to reinstate them and pay their backpay from the
date of their dismissal. Although the application was brought against the whole of
the award, the company and five of the eight employees have since concluded a
settlement agreement. These five employees are no longer part of the
application.
[2] The application is opposed by three employees, viz, Mvuyisi Merele (Merele or
Vince), Wandile Mchiza (Wandile or Mchiza) and Siyanda Sali (Sali), represented
by their trade union, the National Union of Metalworkers of South Africa
(NUMSA).
[3] Central to the dispute between the parties and the charges against the
employees is the assault against Thozamile Keli (Keli) on Friday, 22 June 2018 ,
by Christopher Nqonqoza (Chris or Nqonqoza), Brian Mejenge (Majenge) and
Sinetemba Booi (Booi) , which occurred at the North End Lake (lake), after
working hours. The commissioner found that Keli was assaulted but that there
was no nexus between the assault and the company’s operations.
[4] The three employees before this Court did not carry out the assault. Their sin,
according to the company, was their failure to disclose the assault to the
company. The first charge against them was formulated as follows:
‘Dishonesty – Failure to act in good faith and in the best interests of the
company.’
[5] The reason these three employees and two others were charged with dishonesty
was articulated by the company’s General Manager: Employee Relations, Arveen
Ramdhani (Ramdhani) during his examination in chief as follows:
1 Part of the transcript of the proceedings is not fully before this Court . However, the company was
satisfied with the record and elected to proceed with the review application based on the record as it is.
3
‘MR CRAWFORD: In what way has the company alleged they were dishonest?
MR RAMDHANI: Well for the fact, for the mere fact that the other, the other five
employees did not report to the company and they concocted their story together,
they were dishonest in their testimony to the company when interviewed, and not
one was forthcoming with the truth.’
[6] In addition, Merele and Mchiza were charged with failure to follow a valid and/or
reasonable instruction for their alleged fail ure to provide the company with the
code to unlock the company ’s cellphone allocated to them after verbal and
written instructions to do so. The company alleged that the insubordination had
“serious operational implications”.
[7] The crisp question before the commissioner was whether the company had
authority to discipline the employees for the misconduct that occurred at a social
gathering organised and attended by a group of its employees after working
hours and away from the premises of the company. The commissioner found that
the incident that occurred at this gathering had nothing to do with the business of
the company. She found that:
‘Focusing on the charge of dishonesty levelled against the remaining applicants,
the evidence before me showed that Keli was indeed assaulted on the day in
question. Evidence on who saw what and when was lengthy however, the
incident occurred outside their working hours and during the applicant’s time.
Those who witnessed the incident might have failed to disclose same however,
they were under no obligation to report the incident to the respondent.
As stated above, there was no link between the incident and the respondent’s
operations. There was also no evidence led showing a link between the incident
in question and the respondent’s vehicle that was at the lake.’ (Emphasis added)
[8] Having found that there was no nexus between the assault and the company’s
operations, the commissioner proceeded to deal with the second charge against
Mchiza and Merele. She found that:
4
‘Dealing with the last charge against Chris, Wandile and Vince, the evidence
showed that at no stage were the applicants advised as to why the respondent
wanted access to their phones. All three applicants gave reasons on why they
were unable to provide the respondent with pins to the cellphones.
The instruments in question belonged to the respondent and there was no policy
in place prohibiting the applicants to use same for personal use. Which meant
that they were entitled to store personal information on the cellphones.
The applicants argued that the instruction in question was unreasonable, as they
did not know why the respondent wanted access to their cellphones and that
there was personal information on same. The respondent on the other hand
argued that there was no obligation on its part to advise the applicant on why it
wanted pins to their cellphones, as it was conducting investigation on Keli’s
assault.
I do appreciate the respondent’s argument on this issue however, even if the
cellphones were its property, the privacy of the applicant should have been taken
into consideration. Means should have been made to ensure that the applicants’
privacy was protected, e.g allowing them to remove their personal information in
the presence of the respondent’s management.
I cannot help but conclude that the respondent was hasty in formulating this
charge against Chris and Wandile.
Focusing on the instruction to Vince, the evidence showed that at no stage did he
refuse to provide the respondent with a pin to unlock his phone. In fact, he
attempted on a number of occasions in Mr Ramdhani’s presence to unlock his
phone, who subsequently confiscated the phone from him, stating that he was
deliberately entering a wrong pin.
One needs to note that Vince was not charged with deliberately entering an
incorrect password on his phone with the intention to block it but with failure to
observe an instruction to unlock his phone.’ (Emphasis added)
5
[9] The company contends that the commissioner committed an error of law and
reached an unreasonable conclusion by finding that there was no nexus between
the assault on Keli and its business . In addition, the company contends that the
findings that there was no impact on the employment relationship between the
company and the employees on the one hand and between the victim (Keli) and
the alleged perpetrators or intra- employees on the other, that there was no
obligation to disclose the assault notwithstanding that the employees were
questioned about the assault and were dishonest about it, and that reinstatement
was an appropriate remedy were erroneous and unreasonable.
[10] The review test is trite. This Court must determine whether the decision reached
by the commissioner is one that a reasonable decision-maker could not reach
2. It
is a test that is outcome- focused and seeks to ensure that awards are not
interfered with based on minor irregularities and/or errors.
[11] As a general legal principle, employers have no authority to discipline their
employees for misconduct committed outside working hours and away from the
employer’s premises. However, if the conduct contravened the rule regulating the
conduct that is of relevance to the workplace, the employer would have the
authority over the employee. The employer must establish that the conduct is
indeed of relevance to or sufficiently connected to the workplace. The LAC had
dealt with this issue in Horn v Beesnaar NO & others3 as follows:
‘[16] Item 7(a) of schedule 8 to the Labour Relations Act of 1995 (the LRA)
provides a guideline for the treatment of misconduct “in, or of relevance
to, the workplace”. In Hoechst (Pty) Ltd v Chemical Workers Industrial
2 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (Sidumo) [2007] ZACC 22; (2007) 28
ILJ 2405 (CC) at para 110; Fidelity Cash Management Service v Commission for Conciliation, Mediation
and Arbitration and others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC) at para 100; Bestel v Astral
Operations Ltd and others [2010] ZALAC 19; [2011] 2 BLLR 129 (LAC) at para 18; Gold Fields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and
others (2014) 35 ILJ 943 (LAC); [2014] 1 BLLR 20 (LAC) at paras 16 - 21; Herholdt v Nedbank Ltd
(Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA)
at para 25; Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC); [2015] 1
BLLR 50 (LAC) at paras 31 – 33.
3 [2021] ZALAC 56; (2022) 43 ILJ 115 (LAC).
6
Union & another it was made clear that an employer is not necessarily
precluded from disciplining an employee’s misconduct which occurs away
from the workplace, but that the decision to discipline is subject to a
factual enquiry:
“This enquiry would include but would not be limited to the nature of the
misconduct, the nature of the work performed by the employee, the
employer’s size, the nature and size of the employer’s work -force, the
position which the employer occupies in the market place and its profile
therein, the nature of the work or services performed by the employer,
the relationship between the employee and the victim, the impact of the
misconduct on the work -force as a whole, as well as on the relationship
between employer and employee and the capacity of the employee to
perform his job. At the end of the enquiry what would have to be
determined is if the employee’s misconduct “had the effect of destroying,
or of seriously damaging, the relationship of employer and employee
between the parties”.
[17] Such factual enquiry enables an employer to determine the relevance for
a workplace of misconduct which occurred outside of that workplace, as
contemplated in schedule 8. The conduct which is the subject of this
appeal was of a serious nature. It occurred before work on a road outside
the mine and involved employees of the second respondent, including the
appellant who was employed on the management level. As such, it was
clearly of relevance to the second respondent and had a direct impact on
the employment relationship. The second respondent was therefore
entitled to take disciplinary action against the appellant in such
circumstances.’
[12] The principle enunciated above has been applied by the Industrial Court 4 even
before the current LRA. The same principle was adopted by this Court in Edcon
4 See for example National Union of Mineworkers & others v East Rand Gold & Uranium Co Lt d (1986) 7
ILJ 739 (IC), where the IC found that the company can discipline employees who assaulted a fellow
employee on a company bus transporting them from work to their homes. The Court stated that although
the assault had not occurred at their workplace, it occurred within the scope of their employment in the
bus which was owned by the company and that the company owed a duty to all its employees to whom it
provided the said transportation to ensure that they were conveyed to safety, peacefully and without
molestation to their sleeping quarters ; In Van Zyl v Duvha Opencast Services (Edms) Bpk (1988) 9 ILJ
7
Ltd v Cantamessa & others 5 and by the LAC judgment in Campbell Scientific
Africa (Pty) Ltd v Simmers & others6 (Simmers). Ultimately, the enquiry before
the commissioner was whether there was a connection between the two
incidents of assault against Keli and the company’s business. If the connection is
established, the next enquiry is to determine the impact the misconduct had on
the operations of the company. If the impact is such that a continued employment
relationship is impossible and/or that the trust relationship had broken down
irretrievably, the employer would have succeeded in discharging its onus that the
dismissal was substantively fair.
[13] The company sought to establish the nexus between the assault with an incident
that occurred on 21 June 2018 between Mchiza and Keli. On that day, M chiza
and Keli had an argument about the key to the storeroom. Mchiza’s evidence
was that he explained to Keli that he needed the key because he is sometimes
called to rep ort for work when he is on standby, which necessitates that he
should collect his tools fr om the storeroom. For this reason, Mchiza wanted
access to the storeroom. Keli was not willing to give him the key and told Mchiza
to remove his tools from the storeroom. The company intervened. Keli said
Mchiza was angry, and Mchiza disputed that he was angry. It is unclear how the
issue was resolved, but there is no reference to Mchiza shouting or calling Keli
any names during the incident.
[14] Subsequently, Keli informed Chris about the incident , and Chris’ response was
that since he arrived at the company , he had taken other people’s work. Keli’s
testimony was that he did not think that he was assaulted because of this
incident.
905 (IC) , the employee had assaulted his supervisor against whom he bore a grudge at work outside
working hours and away from the employer’s premises . The Court held that the assault was sufficiently
related to the work environment or employment situation to justify the employer taking disciplinary action
against the employee. Further, that the assault made a harmonious working relationship improbable.
5 [2020] ZALCJHB 273; (2020) 41 ILJ 195 (LC).
6 (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1 (LAC).
8
[15] On Friday, 22 June 2018, the employees knocked off at 14h00. Keli was invited
to attend a braai at the lake by Sinethemba Booi (Booi) and Brian Majenge (Brian
or Majenge). The three travelled in Booi’s vehicle. Chris followed them , driving a
company vehicle. They went to a liquor store and bought two bottles of brandy.
Whilst at the teller buying the alcohol, Siyanda Sali (Sali) arrived. They drove to
the lake, where they met a certain individual who gave them two live chickens.
Thereafter, they drove to Nandi’s place to prepare the chickens. Nandi was one
of the third respondent employees.
[16] After they prepared the chickens, they drove back to the lake. Keli travelled with
Chris in the company vehicle back to the lake because Booi was going to pick up
his wife. Sali followed them driving his vehicle. At the lake, they found Merele and
Mchiza waiting for them. They prepared the fire. Merele cooked the chicken.
[17] Two incidents of assault took place. First, Chris slapped Keli . Keli explained the
incident as follows:
‘MR KELI : Then Chris moved around the back of the other work ers and then
came in front of me and slapped me.
MR CRAWFORD: Did he say anything?
MR KELI: He said that I am an impimpi at work.
…
MR CRAWFORD: Did you tell anybody else about this?
MR KELI: I went to Vince and Wandile, Sinazo and Nandi.
MR CRAWFORD: And what did Nandi say?
MR KELI: Nandi said I must leave Chris because he had something to drink.
…
MR CRAWFORD: Did you ask him why he hit you?
9
MR KELI: I did ask but he did not respond.
MR CRAWFORD: Did Sinazo say anything?
MR KELI: She said I must leave him.
MR CRAWFORD: Okay, what happened next?
MR KELI: Okay, the conversation proceeded and nothing happened.’ (Emphasis
added)
[18] From the above, Keli’s evidence is that after he was slapped by Chris, he asked
him why he hit him, and Chris said he was an impimpi. Shortly thereafter, he was
asked the same question and his answer was that Chris did not respond. After he
was hit by Chris, Keli went to inform his other colleagues, including Merele and
Mchiza.
[19] The second and main assault happened in the early evening, or after they had
finished eating. It involved Chris, Majenge and Booi. The evidence, per the
Global Positioning System (GPS) coordinates of the company vehicle that was
driven by Chris, shows that the vehicle left the park at approximately 20h41,
which was shortly after the incident . Keli was allegedly pushed by Chris when he
wanted to get his bag from Chris’ car. Keli testified as follows:
‘Okay, after we had eaten, then there was conversation and then it was like
sunset, the sun was setting.’
[20] He continued:
‘And then I approached Chris and asked him to open his bakkie for me. He then
pushed me in the face and said I must move away from him.’
[21] After he was pushed by Chris, Majenge then held him, he wrestled and freed
himself from Majenge. After freeing himself, Chris told him that the bakkie was
open on the other side. He opened the bakkie and took his jacket and bag. He
put on his jacket and “walked fast” because he was “scared”. As he was walking,
10
he saw Booi and Majenge following him, “coming very fast” and he “then ran” .
Booi and Majenge then caught up with him, tripped him , and he fell. They started
assaulting him. He screamed and asked them why they were assaulting him, to
which they did not respond. He “then got up and sat up … looked around” to see
if there was “anyone who could help me”. He continued:
‘MR CRAWFORD: Did anybody help?
MR KELI: Nobody and at the time when I got up, I just saw everybody running to
their vehicles.
MR CRAWFORD: All right, what happens next?
MR KELI: And as I was still in that position, then I noticed Vince coming to me in
his bakkie.
…
MR KELI : He then opened the door of the bakkie and said I must get inside,
these people are going to kill me.’
[22] Keli was asked why he was assaulted. He was asked whether his version was
that he was assaulted because of the incident that took place on Thursday, 21
June 2018. He answered in the negative. Asked what he thought the reason for
his assault (the second assault) was, he said:
‘As I said they both alleged that I am an impimpi and I came to Toyota to take
over other people’s jobs.’
[23] In addition, he said he was assaulted because he did not join the union and that
the employees were jealous of him because of his hard work and dedication,
which gained him the nickname, Sphithiphithi.
[24] Keli did not dispute that Mchiza and Sinazo were not members of the union.
There is no link between his alleged nickname (Sphithiphithi) and the assault. As
to the incident of 21 June 2018, Keli said that he did not think that was the
11
reason he was assaulted. Keli said Chris called him impimpi. His evidence was,
however, contradictory because he was also asked if he had asked Chris why he
assaulted, to which he said Chris did not respond. On the assault by Booi and
Majenge, Keli’s evidence was that he asked them why they were assaulting him ,
but they did not respond. Again, later on, he said they called him impimpi.
[25] The issue is whether the two incidents of assault against Keli by Chris and later
Majenge and Booi are relevant to and/or sufficiently linked to the business of the
company. There was no reference to or any evidence presented by the company
relating to any workplace where Keli had reported any incident against any of the
employees, except what happened on 21 June 2018, which he testified that he
did not think it was the cause for his assault. Even if Keli’s version of impimpi is
accepted, t he mention or reference to him as impimpi, without more, does not
create a sufficient nexus between the assault and the business of the company.
On this basis, the award cannot be interfered with.
[26] On the second assault, this happened after hours of indulging in alcohol. This
started when Keli wanted his bag from Chris ’ car. Chris allegedly pushed Keli ,
and what followed was Majenge holding Keli , and later Keli running away. Keli’s
evidence was that he did not know why Booi and Majenge assaulted him but
later said that they both said he was an impimpi. This marks the end of the
enquiry into the nexus between the assault and the company’s business.
[27] The assault in this case happened at a gathering organis ed by the employees ,
which was attended voluntarily, after work, away from the premises and not on
their way to or from work, travelling on a company vehicle. The gathering was not
organised to further the company’s business or activities. Some of the employees
went home first before attending this social gathering. The assault was
went home first before attending this social gathering. The assault was
committed by other employees, not the employees before this Court. The
company bore the onus that the assault and the consequent failure to disclose it
were sufficiently linked to its business and led to a disharmonious working
12
relationship between the employees in this case, and Keli on the one hand and
the employees and the company. No evidence of disharmony was presented.
[28] Even if I am wrong and there was a sufficient nexus, particularly on the basis of
Keli’s own contradictory evidence that he was called an impimpi, there was no
evidence that the employees before this Court witnessed the assault. On his own
version during the arbitration proceedings, Keli went to inform the employees, at
least Merele and Mchiza, of the assault after Chris slapped him. Keli’s evidence
was consistent with his evidence at the disciplinary hearing against Chris , which
was summarised as follows:
‘Mr Keli stated no one saw this as he was standing alone. He then went to Vince
and asked him why Chris was slapping him. Vince told him to leave it. Mr Keli
stated that he then went to Wandile.’ (Emphasis added)
[29] As to the second assault, Keli did not give evidence that Mchiza, Merele and Sali
witnessed the assault. Keli’s evidence was that he was not told the reason for the
assault. He would late r testify that he was called an impimpi by Majenge and
Booi. This incident started with Chris pushing Keli after he (Keli) approached him
to get his bag from Chris’ car. Keli said that he ran away and was chased by Booi
and Majenge who then caught up with him, tripped and assaulted him. During
cross-examination, Keli did not seriously dispute that Mchiza remained in his car
most of the time . It was put to Keli that Mchiza was drinking his own alcohol
sitting in his car and that he was not sitting at the table with the other employees.
Keli gave a somewhat confusing response. He said that he was “ not disputing
that, because the liquor was on the table” and they served themselves, that he
“was not watching” but “according to what I know he was at the table” and
“Wandile was in his car but he was there” . Mchiza was not cross -examined on
this aspect.
“Wandile was in his car but he was there” . Mchiza was not cross -examined on
this aspect.
[30] Sali had earlier left the lake with two other employees. They came back after the
other employees had already finished eating. Merele, who was responsible for
cooking, dished for Sali and the other employees upon their return to the lake.
13
After dishing, he went to the car where the other employees were making noise.
He testified that Keli hit his car with a glass , turned around and ran. He saw
Majenge running after him. He did not witness the assault. During his evidence at
the disciplinary hearing against Booi, Keli testified that after he was assaulted, he
stood “up and look for help” and “Vince came with his bakkie and he got into the
vehicle”. The same evidence was led during Merele’s disciplinary hearing. There
is a dispute whether Majenge and Booi brought Keli back to the car or whether
Merele drove to the area where he was assaulted. What is not in dispute is that
Merele was not at the scene of the assault. Further, it is common cause that
Merele drove with Keli and dropped him off at Dan Qeq e stadium. Sali was not
placed at any proximity by Keli to have witnessed the assault. Sali was last seen
getting food from Merele. There was no further evidence against him.
[31] The company’s failure to establish the nexus marks the end of the enquiry , and
the employees cannot be found guilty of the first charge. The second enquiry ,
whether the conduct caused disharmony or impacted on the company’s
operations, is irrelevant if the misconduct is not connected to the operations of
the company. However, even if the nexus was established, the next enquiry is
whether the employees witnessed the assault and failed to disclose it. In this
case, the employees before the Court did not witness the assault . Even if they
witnessed the assault, the next enquiry is whether their misconduct , that is , the
failure to disclose the assault , created disharmony as argued by the company.
The company failed to demonstrate the impact of the assault, and for present
purpose, the employees’ failure to disclose the assault, on its operations.
[32] The company sought to rely on Merele’s successful claim before the Small
Claims Court for payment of damages to his car window against Keli to show the
Claims Court for payment of damages to his car window against Keli to show the
disharmony and breakdown of trust relationship. The company also said that
Merele’s conduct established a nexus between the misconduct and its
operations. It also relied on the interview Ramdhan i had with Sinazo Ntondini
(Sinazo).
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[33] The suggestion that the conduct of Merele to serve the documents on Keli and
demand payment after his successful claim constituted a further nexus between
the misconduct (assault and failure to disclose it) is absurd. This argument has
no merit and falls to be dismissed outright. That conduct occurred after the
assault and after the dismissal of the employees. The company argued that this
conduct created a disharmony which also made reinstatement impossible. The
company led inadmissible hearsay evidence i n relation to Merele’s attendance to
Keli’s mother’s house to serve the Small Claims Court documents . The direct
evidence led by Keli relate to Merele’s attendance at his residence. Merele
attended Keli’s residence, accompanied by members of the South African Police
Service to serve the Small Claims Court papers . In October 2018, Merele’s claim
against Keli was successful . As of 27 February 2019, K eli had not paid Merele
despite knowledge of the order. On 27 February 2019, Merele approached Keli at
the C ommission for C onciliation, Mediation and A rbitration (CCMA) to demand
payment. He had in December 2018 demanded payment and Keli failed to pay .
The company argued that Merele intimidated Keli when he approached him at
the CCMA.
[34] Keli testified that Merele entered the CCMA hearing room “angry and confronted”
him about when he would pay his money , and that Merele called him a “dog”.
Asked how he responded, Keli testified:
‘MR KELI: I then stood up, then saw the Commissioner coming out of the door,
through the door. I then raised my hand.
MR CRAWFORD: Yes?
MR KELI: And I said to the Commissioner that he is coming to disturb me here …
He came to intimidate me.’
[35] The commissioner told Merele to leave the room. Keli said that he felt “shocked”
and “scared” and that he was escorted by the security guard to the vehicle. Keli
paid this debt in March 2019. Insofar as the company suggested that this created
paid this debt in March 2019. Insofar as the company suggested that this created
disharmony between Keli and Merele, and Merele should not be reinstated, the
15
incident was not connected to the company’s operations. Regardless, Keli had
confirmed that he had a good relationship with Merele. He described his
relationship with Merele during cross-examination as “good” – he said they “were
on a good note”. On Keli’s own evidence, I am not persuaded that there was any
form of intimidation or any disharmony between him and Merele. Mchiza’s cross-
examination on his relationship with Keli confirmed a good relationship between
the two:
‘MR CRAWFORD: Would it be fair to say that there was no love loss (sic)
between you and Thoze [Keli]”
MR MCHIZA: Not at all, sir.’
[36] The company also argued that the assault created disharmony in that Sinazo
was scared and tearful during her interview with Ramdhani that she said to
Ramdhani that “you do not know what these people are capable of ” and that the
company decided to send her home to Mthatha as a result. Sinazo however
disputed the claims by the company. She testified that she was not fearful nor
scared. Sinazo was one of the employees who was at the lake, and she was also
charged with dishonesty for failing to disclose the ass ault. The company’s
argument is that the employees’ failure to disclose the assault had an impact on
the workplace as evidenced by one of the charged and dismissed employee
(Sinazo) who felt fearful and scared. Even if the company’s evidence is accepted
that Sinazo uttered those words, there is no evidence who “ these people” are.
Did she refer t o those who carried out the assaults or those who allegedly
witnessed the assault?
[37] For the above reasons, I find that the employees did not witness the assault and
therefore could not disclose what they had not witnessed. Even if the employees
witnessed the assault, the company failed to establish that the assault was
connected to its business operations and that it created disharmony. Accordingly,
the employees are not guilty of the charge of dishonesty. Ultimately, the
the employees are not guilty of the charge of dishonesty. Ultimately, the
commissioner’s finding that the employees are not guilty is a reasonable one.
16
Their dismissal on this charge w as therefore substantively unfair , and the
commissioner’s award of reinstatement should not be interfered with.
[38] Mchiza and Merele faced an additional charge. The company alleged that they
failed to follow verbal and written valid and/or reasonable instructions in that they
failed to provide the company with the code to unlock the company phone
allocated to them . Per the charge sheet, the c onduct allegedly had a “serious
operational implications” . Based on the commissioner’s finding that the assault
was not connected to the business of the company, this investigation was
unwarranted and therefore, the charge should be dismissed because it is based
on an incident that the company had no authority to investigate. However, if I am
wrong, I address the substance of the charge and the commissioner’s decision
below.
[39] The written instruction was issued on 29 June 2018 by Ramdhani. His letter
reads as follows:
‘CELLPHONE ACCESS
As an employee of the company you are obliged to comply with and adhere to all
prevailing company policies, rules and regulations.
In terms of clause 4.2 of the company’s ICT policy, the company reserves the
right to examine any date, including personal date held on EIE systems. The
company issued c ellphone remains the property of the company at all time and
thus the company in its sole discretion may at any time access the date on such
cellphones.
Accordingly, you are hereby instructed to immediately make available your
password to access the company cellphone. Your failure to comply with this
reasonably (sic) instruction may lead to a disciplinary enquiry against you.
You are required to comply with this instruction by no later than Monday, the 2
nd
of July 2018 at 10:00.’
[40] The ICT Acceptable Use Policy provides that:
17
‘4.1 All allocated usernames, passwords and e-mail addresses are for the
exclusive use of the individual to whom they are allocated, the user is personally
responsible and accountable for all activities carried out under their username.
The password associated with a particular username must not be divulged to any
person.
4.2 The Company reserves the right for appropriately authorised staff to examine
any date including personal date held on EIE systems or, when operationally
necessary, for example to give access to an account to a line manager or higher.
Authorisation would need to be obtained from a General Manager or higher for
access to an individual’s account. Certain ICT staff within EIE have been
authorised to exam ine files, e-mails and date within individual accounts, but will
only do so when operationally necessary.’
[41] The Business Conduct and Ethics Policy provides that:
‘3.4 The company respects and values the cultural diversity of its customers and
employees. The company also respects its employees’ personal privacy, but it
does expect them to be law -abiding and to conduct their personal affairs like
good and responsible citizens, especially where any indiscreet or antisocial
behaviour could affect the individual’s performance or reflect badly on the
company.’
[42] Ramdhani testified on this charge. He said that the “instructions were given first
and foremost by their managers at the branch at Port Elizabeth, thereafter
secondly be given by the general manager of the business ” before he issued the
written instruction. He , however, did not know who specifically gave the
instructions to the employees , and the branch managers and general manager
did not give evidence relating to the terms of the instructions . In the absence of
this evidence, the company’s case could only be based on the written instruction
issued by Ramdhani.
[43] Ramdhani was asked why he issued the written instruction. His response was:
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‘Okay, so we were seeking any information, any what is it, photographs,
messages that occurred from 25 June onwards… For the purposes of this
investigation.’
[44] He also said that he was looking for “ any videos , WhatsApp mess ages, video
clips relating to the incident”. It would appear from Ramdhani’s evidence that this
approach was motivated by the fact that during his interview with Sinazo, she
showed him a video clip that was on her phone or tablet, which showed whoever
she was travelling with in the car exiting the lake . There was no reasonable
suspicion that the employees had information in their cellphones that could assist
in the investigation. At least, this was not the company’s evidence. In fact , the
company did not inform the employees why it wanted the code to unlock the
phones. The company’s evidence through the letter and Ramdhani was that the
cellphones were the company ’s assets and therefore they could access them
whenever they want. This, despite Ramdhani stating that the employees were
allowed private use of the cellphones. To support the allegation that Mchiza and
Merele were insubordinate, Ramdhani testified that:
‘… Also on Wandile there was confidential information and with Mr Merele, he
actually tried to unlock the phone because the phone had a pattern… I came
down on 29 June… so I came to Mr Merele, he was trying to unlock the phone by
the pattern and he tried it a couple of times and eventually I felt that you know, he
deliberately was trying to lock his phone, so I physically walked up and I took the
phone from his hand… Then I issued them with official letters.
To date, to date these three company phones are sitting with us, it cannot be
used and ja, we have no access to these phones whatsoever.’
[45] The commissioner found that there was no policy prohibiting private use of the
cellphones. Further, that the instruction was unreasonable as the employees
were not informed of the purpose for accessing the cellphones. Third, that the
were not informed of the purpose for accessing the cellphones. Third, that the
company should have taken into account the employees’ privacy and allowed
them to remove their personal information in the cellphones. Insofar as Merele is
concerned, the commissioner found that he did not refuse the instruction. The
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commissioner found the employees not guilty. These findings have been well
substantiated that any interference in review proceedings is unwarranted.
Further, t he company did not lead to demonstrate how the alleged refusal to
follow the instruction seriously impacted on its operations.
[46] Having considered the award, the evidence and the review grounds and the test
for review, I am satisfied that the commissioner considered the principal issue
and evaluated the evidence presented before her, provided reasons for her
conclusions and that her ultimate decision that the dismissal of Mchiza, Merele
and Sali was substantively unfair , on the totality of the evidence, meets the
reasonableness threshold. Equally, her award of reinstatement passes the
reasonableness threshold. For all the reasons above, the review application
stands to be dismissed.
[47] This being a labour dispute, a party seeking costs must persuade the Court that
the requirements of law and fairness dictate that costs be borne by a losing party.
No case has been made for deviation from this trite legal principle.
7 Accordingly,
there shall be no costs order.
[48] In the premises, the following order is made:
Order
1. The late delivery of the review application is condoned.
2. The review application is dismissed with no order as to costs.
____________________
M. Makhura
Judge of the Labour Court of South Africa
7 See section 162 of the LRA; Member of the Executive Council for Finance, KwaZulu- Natal & another v
Dorkin NO & another [2007] ZALAC 34; (2008) 29 ILJ 1707 (LAC) ; Zungu v Premier of the Province of
KwaZulu-Natal and Others [2018] ZACC 1; (2018) 39 ILJ 523 (CC); National Union of Mineworkers on
behalf of Masha & others v Samancor Ltd (Eastern Chrome Mines) & others (2021) 42 ILJ 1881 (CC).
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Appearances:
For the Applicant: Mr. JD Crawford of Crawford & Associates
For the 3rd Respondent: Mr. I Lambrechts
Instructed by: Purdon & Munsamy Attorneys