THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1747/21
In the matter between:
JD GROUP (PTY) LTD t/a HI-FI CORPORATION Applicant
and
MOLOKO S M N. O First Respondent
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION Second Respondent
MILLER MOGAMAT MILLER Third Respondent
Heard: 13 August 2025
Delivered: 27 November 2025.
Summary: An application to review and set aside an award, which found the
dismissal of a branch manager for gross negligence following a
store robbery to be substantively unfair, and awarded maximum
compensation, as the employee did not wish to be reinstated. The
finding of unfairness is reasonable, but the award of maximum
compensation is reduced.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
GANDIDZE, J
2
Introduction
[1] This is an opposed review application seeking to set aside an arbitration
award dated 19 July 2021, issued by the first respondent commissioner , S.M.
Moloko, under the auspices of the second respondent (the CCMA), in case
number GAJB18206- 20. The award found that the dismissal of the third
respondent, Mr Mogamat Ganief Miller (Miller), was procedurally fair but
substantively unfair. If the award is reviewed and set aside, the applicant, JD
Group Pty Ltd t/a Hi -Fi Corporation (Hi -Fi), seeks an order substituting the
award with one that declares the dismissal to be substantively fair, or,
alternatively, an order reducing the maximum compensation awarded. In the
further alternative, Hi-Fi seeks an order remitting the matter to the CCMA for a
fresh hearing before a different commissioner, other than commissioner S. M.
Moloko.
[2] Miller opposed the application and also sought costs on an attorney -client
scale.
Background facts
[3] Hi-Fi is a retailer of consumer appliances, devices, equipment, and related
accessories, with stores nationwide. Miller was employed as the branch
manager of the Southgate Mall branch (the store), having started working for
Hi-Fi1 in 2005. In that role, he was responsible for all aspects of the store's
operations, including ensuring compliance with all store security procedures
and policies.
[4] On the morning of 10 July 2020, Miller received a call informing him that his
son had tested positive for COVID -19, and he needed to self -isolate in
accordance with COVID -19 procedures. On 12 July 2020, while Miller was in
isolation, a robbery occurred at the store. A total of 231 cell phones and
tablets, valued at over R300 000, were stolen from the high-risk cage.
1 Or its predecessor.
3
[5] Following the robbery, an investigation was carried out, and Miller , the Sales
Manager, Alfred Mugano (Mugano), and the Front and Back Officer
Supervisor, Sibusiso Nkosi (Nkosi), were charged.
[6] Miller was charged with:
‘[1] Gross negligence in that during the period 0 1 May 2020 to 12 July
2020, you failed to ensure that all cellular/tablet stock in HF Southgate
was properly secured in the time delay safe, resulting in this stock
being easily accessed and/or stolen in a robbery that occurred in the
store on 12 July 2020.
[2] Breach of the Display Alarm and Store Security Policy(CR -13-P) in
that during the period 22 February 2020 to 12 July 2020 you failed to
ensure that access/controls to the high risk cage and/or stock in HF
Southgate was properly managed/implemented.’
[7] Following a disciplinary hearing held on 4 September 2020, Miller was found
guilty of both charges, and the chairperson recommended that he be demoted
to a lower position, subject to his agreement. Miller did not agree to the
demotion, and the dismissal sanction was imposed on 10 September 2020.
Pursuant to the dismissal, Miller referred a dispute to the CCMA, seeking
compensation rather than reinstatement.
[8] In the review, Hi-Fi submits that it did not blame Miller for the robbery, but that
the incident highlighted several instances of material non- compliance with the
relevant security and stock control policies and procedures in the store, which,
if followed, would have significantly reduced the losses it experienced during
the robbery.
[9] The first i s the Display Alarm and Store Security Policy (the Policy), which
stipulates that all high- value, high- risk stock, which includes laptops, hard
drives, memory cards, and mobile phones and tablets valued at more than
R1000, except for five units , must be kept locked in a time- delay safe (the
safe) located inside a high- risk cage (the cage) in the High -Risk Storeroom
safe) located inside a high- risk cage (the cage) in the High -Risk Storeroom
(the storeroom). The storeroom stays locked, and only management can open
4
it. The cage is also locked at all times and only opens 10 minutes after
entering a security PIN, known only to management. Similarly, the safe inside
the cage has four separate drawers, each of which can only be opened by
entering a security PIN known only to management, and there is a 10- minute
delay after entering the PIN before a drawer can be accessed. A ccording to
Hi-Fi, the investigation into the robbery found that, for two weeks beforehand,
most high- risk items were stored in the cage rather than in the safe, as
required. According to Hi -Fi, if this requirement had been followed, the high-
risk items probably would not have been stolen.
[10] The second security and control measure was that the movement of all high -
risk and high-value stock had to be recorded in a High Value Control Register
(the register). According to Hi-Fi, the investigation concluded that this was not
done.
[11] The third security and control measure was a daily stock inspection of the
store, which was necessary, but it was not carried out.
[12] I will now turn to the arbitration proceedings.
The arbitration proceedings
[13] Miller challenged both the procedural and substantive fairness of his
dismissal.
[14] Hi-Fi called as its witnesses, Mr Zahir Maal (Maal), the regional manager of
the Southgate store at the time of the robbery, and Mr Claude David (David),
who took over from Maal in August 2020. Miller represented himself and
testified in his own defence.
[15] The commissioner’s summary of the evidence relevant to the review
application is outlined below.
[16] David testified that he initiated the disciplinary proceedings against Miller . He
explained the layout of the storeroom, the cage, and the safe. When the
robbery occurred on 12 July 2021, the storeroom door was open, and the
cage was unlocked. The robbers stayed inside the storeroom for 38 minutes.
5
It was Miller’s responsibility to ensure proper management of the high- value
stock, and Miller ’s gross negligence in failing to do so dated back to May
2020, with the policy breach regarding the register having been ongoing since
February 2020.
[17] Under cross -examination, he stated that he was appointed as the regional
manager after the robbery. Although Miller was not on duty at the time of the
incident, he was grossly negligent and breached policy, resulting in the store
suffering a loss. Mugano, who was in charge of the store during Miller ’s
absence, admitted that he failed to observe the security policy by leaving the
storeroom door open. Mugano and Nkosi were also dismissed.
[18] David could not respond to the proposition that the Store Clerk, Ernest
Boikanyo (Boikanyo), and Mugano received high- risk stock and were
responsible for entering it into the register, and that Miller did not get involved.
[19] On the contention that Miller had scored above average in the operation
audits (audits) for the store between February and June 2020, David stated
that these audits did not include high-value items in the safe.
[20] The second witness was Maal. He testified that when the robbery took place,
Miller reported to him as the regional manager. During the week of the
incident, he visited the store and met with Miller to discuss the issue of high-
risk stock not being secured in the safe, although he could not recall the exact
date.
[21] He investigated the robbery and concluded that the robbers stole items from
the cage because the safe was inaccessible. He found that high -value items
had not been stored in the safe between May and 12 July 2020, as required,
and that registers had not been completed since February 2020. This is why
Miller was charged, according to Maal.
[22] When it was put to him that after disciplining an employee on 9 July 2020,
Miller called a staff meeting on 10 July 2020 to discuss security issues , Maal
Miller called a staff meeting on 10 July 2020 to discuss security issues , Maal
responded that the staff meeting was about sales, not security.
6
[23] He agreed with David’s account that the audits carried out between February
and June 2020 did not include the high- value stock kept in the safe, and that
no audits had been conducted for that stock.
[24] Miller testified in his own defence. On 9 July 2020, he spent most of the day at
the store next door , Incredible Connection, conducting a disciplinary hearing
against an employee for breaching the policy. He issued this employee a final
written warning. He returned to the store late in the afternoon and, as part of
his routine checks, went to the storeroom. He found high-value items stored in
the cage, and he made a note to discuss it with the staff the following day.
[25] The next morning, he held the weekly staff meeting and instructed the
responsible staff to ensure that high-value items are stored in the safe. During
the meeting, it was brought to his attention that stock had not been entered
into the register due to issues with the scanner. He instructed that stock
received must be recorded manually. Additionally, he took the staff through
the policies, and all staff signed to confirm. At least two employees prepared
statements confirming the discussion at the staff meeting.
[26] Before he could follow up on his instructions , he received a phone call about
his son’s COVID- 19 test results , and he left the store to isol ate. In his
absence, Mugano was to assume and perform all his duties . Mugano
attended the meeting on 10 July 2020. Mugano took responsi bility for the
lapse in security on 12 July 2020, when a staff member was left alone in the
storeroom with the door and cage unlocked . Despite not being at work on 12
July 2020, he was subjected to a polygraph test and was told he failed and
would be subjected to a second test, which did not happen.
[27] Boikanyo and Mugano were responsible for receiving, recording in the
register, and storing stock in the safe. He was not required to sign the
register, and storing stock in the safe. He was not required to sign the
register. The register was in the storeroom on 9 July 2020. When he returned
from isolation on 24 July 2020, he was shocked to hear that it had not been
there since February 2020, yet the Store Clerk informed him that, in his
absence, Maal had taken the register as part of his investigation.
7
[28] Commenting on a version by one of the employees that the high- value items
were not secured in the safe for two weeks before the robbery because they
could not be recorded in the register due to computer issues, he responded
that he was only made aware of this at the meeting on 10 July 2020. At that
meeting, he instructed staff to manually register the high- value items and
secure them in the safe.
[29] He also realised that cellphones were not locked in the safe on 9 July 2020,
which is why he raised the issue at the meeting on 10 July 2020.
[30] He denied that Maal visited the store during the week of the robbery or that he
had a discussion with him. If Maal had visited the store as alleged, it would
have been captured on CCTV.
[31] The chairperson of the disciplinary hearing was biased against him and
incorrectly recorded his overall audit score as 53%, when it was higher than
80%. He disagreed that audits did not cover high-risk value items.
[32] He had a clean disciplinary record.
The award
[33] With reference to case authorities,2 the commissioner determined that he was
required to ascertain the real or true dispute between the parties . He
determined that he was required to identify the proximate or dominant cause
of Miller’s dismissal, which was the robbery on 12 July 2020. He also
determined that, even though Miller was not at work on the day, Hi -Fi’s case
was that Miller had been negligent, since February 2020, in failing to ensure
compliance with the Policy, and since May 2020, in failing to ensure that high-
value items were secured in the safe.
[34] The award records that during the presentation of Hi -Fi’s case, the
commissioner found it challenging to understand why Miller was charged with
negligence, let alone gross negligence, as no evidence had been presented. It
2 CUSA v Tao Ying Metal Industries and Others [2009] 1 BLLR 1 (CC) and Health and Other Services
Personnel Trade Union of South Africa obo Tshambi v Department of Health, KwaZulu-Natal [2016] 7
BLLR 649 (LAC).
8
also notes that Hi -Fi was asked to address this issue in its closing
submissions.
[35] The commissioner noted that David could not have helped Hi -Fi’s case, as he
was appointed after the robbery . He did not provide documentary evidence,
such as reports, minutes of meetings with Miller, or Miller’s performance
management records for the period in question.
[36] Regarding Maal’s evidence, the commissioner questioned his credibility.
Firstly, he referred to an alleged meeting with Miller a day before the robbery,
during which security issues were discussed, and noted Maal’s failure to
produce proof of the meeting, which Miller disputed ever took place.
Secondly, he claimed that the store had not used the register since February
2020. However, Miller testified that on 9 July 2020, the register was in the
store. Boikanyo informed Miller that Maal had taken the register while Miller
was in isolation as part of an investigation. The commissioner found that the
employee who alleged that the register had not been used in the days leading
up to the robbery, and that the high- value items had not been placed in the
safe due to computer issues, was not called to testify. According to the
commissioner, even if that version could be accepted, Miller testified that he
only became aware that high- value stock was being stored in the cage on 9
July 2020. He addressed the issue at the staff meeting on 10 July 2020, when
he also learnt that the high- value items had not been recorded in the register.
He then instructed that both issues be rectified and had to leave the store
before he could ensure his instructions were complied with.
[37] As he had found regarding David’s evidence, the commissioner found that
Maal had not provided any evidence of breach of the Policy since February
2020, nor of negligence by Miller since May 2020.
[38] The commissioner also referenced the audits conducted between February
and June 2020, noting that, on average, Miller achieved 80% and 100% in
and June 2020, noting that, on average, Miller achieved 80% and 100% in
Security and Risk Management. Importantly, the commissioner pointed out
that this evidence was uncontested, other than to claim that the audits did not
9
cover high -value items and that Hi -Fi failed to produce the audit reports
concerning these items.
[39] The commissioner also considered that on 9 July 2020, Miller disciplined an
employee and issued him a final written warning for breaching the security
policy, a fact not disputed by Hi-Fi.
[40] The commissioner also referred to the weekly staff meeting on 10 July 2020,
where, among other topics, security was discussed. Staff were instructed to
register and lock high -value items in the safe. Two employees confirmed this
account.
[41] The Hi-Fi version, which suggested that if the cellphones had been stored in
the safe's four drawers , they would not have been accessed because it takes
10 minutes to open each drawer, was rejected. The commissioner found that
the robbers were in the storeroom for 38 minutes, and during that period,
Mugano would have had enough time to open at least three of the four
drawers.
[42] The commissioner concluded that Miller was not grossly negligent regarding
the register and not ensuring that high- value stock was placed in the safe.
Instead, the evidence, according to the commissioner, showed that Miller
performed his duties diligently to ensure compliance with the security policy.
[43] On sanction, the commissioner found that Hi -Fi had not discharged the onus
to prove that Miller was guilty of the misconduct he was charged with, but that,
even if it had, the dismissal would have been substantively unfair.
[44] The commissioner dismissed Miller’s challenge to procedural fairness, finding
that, despite his audit scores being incorrectly recorded, he was still allowed
to present his case.
[45] The commissioner concluded that Miller’s dismissal was substantively unfair
and that section 193 of the Labour Relations Act
3 (LRA) required him to
3 Act 66 of 1995, as amended.
10
reinstate Miller unless Miller chose not to be reinstated. The commissioner
recorded the dismissal date as 4 September 2020 and awarded the maximum
compensation of twelve months, which he considered fair and appropriate.
Review test
[46] This being a review application, not an appeal, the starting point is that
awards should not be lightly interfered with. In Phalaborwa Mining Co Ltd v
Cheetam and O thers
4 (Cheetam), the court held that this court must defer to
the commissioner's decision and should interfere with awards only in limited
circumstances. This Court cannot interfere with an award because it, or
another decision maker , could have reached a different conclusion on the
same facts .5 Even if irregularities can be identified, this Court can only
interfere with an award if the outcome is one that no reasonable decision-
maker could reach.6
[47] In addition, on review, the Court must have regard to all the material before
the commissioner, even if the commissioner does not refer to it in the award,
and decide, on the totality of the evidence, whether the outcome is
reasonable.
7
[48] Hi-Fi’s grounds of review must be measured against the above test.
Grounds of review
[49] Broadly, the submission is that the award is wrong in fact and in law, that it
cannot be justified having regard to the evidence which was before the
commissioner, that there were irregularities and that the award is one that no
reasonable decision maker could have reached. The specific issues raised
will be addressed shortly , but I need to record that the commissioner filed an
explanatory affidavit, which repeats the findings set out in the award and the
reasons for those findings.
4 (2008) 29 ILJ 306 (LAC) at paras 4 -5.
5 Fidelity Cash Management Services v CCMA and Others [2008] 3 BLLR 197 (LAC) (Fidelity) at para
98.
6 Sidumo & another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC).
7 Fidelity supra at para 103.
11
Miller's address to staff on 10 July 2020 was ‘a little too late’
[50] Hi-Fi submitted that the commissioner accepted Miller’s evidence that, on 10
July 2020, he addressed staff about items not being locked in the safe,
despite the stock having been in the cage for approximately two weeks prior.
The submission was further that, if Miller had exercised proper control over
the stock as required, he would have noticed the lapses much earlier than 10
July 2020, and ensured that the high- value items were moved from the cage
into the safe. The submission was also that Miller ought to have moved the
stock into the safe before leaving the store on 10 July 2020.
[51] In my reading of the award, the commissioner addressed this issue. He
appreciated that Miller faced two charges: the first related to high- value stock
stored in the cage since May 2020, and the second concerned the register not
being completed from February 2020 until the robbery. Hi -Fi bore the onus to
prove that the high-value items had indeed been stored in the cage since May
2020, and that the register had not been completed since February 2020.
Only once Hi -Fi’s allegations had been proven could it be said that Miller’s
actions on 10 July 2020, in addressing staff about, inter alia , security
concerns, were somewhat too late.
[52] David and Maal were the only witnesses for Hi-Fi.
[53] David testified that the cell phones were not in the safe from May to July
2020, as observed during visits to the store made during that period.
However, David became the regional manager after the robbery and could not
have been aware of visits to the Southgate store before assuming that role.
This explains why the commissioner commented that no reports, meeting
minutes, or performance reports for that period had been provided.
[54] Hi-Fi’s version about the register not being completed was unclear.
[55] David testified that there were no registers, and when asked for proof of
[55] David testified that there were no registers, and when asked for proof of
whether the high- value items were recorded or not recorded in the register,
David responded, ‘I don’t have that’.
12
[56] In the arbitration, the commissioner pointed out that Hi -Fi had not provided
any evidence to support Miller’s alleged negligence for the period mentioned
in the charge sheet, to which David replied: ‘You can go through the pack and
find that evidence it is submitted there’.
[57] Later on, David said, ‘ Uuh, the evidence, all the statements, all the witnesses
at that time, that uh confirmed that there was no register and that the stock
was not in the correct position.’
[58] Under cross-examination, Miller sought evidence from David that he (Miller)
had been negligent from May to July 2020 regarding stock in the cage, and
David responded that Miller would find out when he is cross-examined. The
commissioner reminded David that earlier on, he had also sought this
evidence, and asked whether there were any reports , minutes or documents
for the period May to July 2020, to which David responded that ‘ Uhh I think it
was a verbal conversation with Mr Zahir Maal’ . David specifically confirmed
that there were no reports for the period from February 2020 to July 2020
regarding the registers, stating that ‘it was never implemented’.
[59] Later in the proceedings, the commissioner advised Hi -Fi that it should
address the question of the lack of evidence, and the following exchange
ensued:
‘Mr C David: The applicant was aware that these items were placed
in the incorrect area for two weeks prior to the incident
occurring.
Commissioner: And there is uh evidence that you have read.
Mr C David: That is based on all the witnesses statements the
testimonies and cross examinations handed in, in the
disciplinary inquiry. Every other witness in that inquiry
confirms that these items were not placed in the cell
partition uh cell vault safe.’
13
[60] The commissioner patiently explained that the arbitration was a de novo
hearing and that he would only consider evidence placed before him. Even
this caution was ignored.
[61] David also testified that Miller would have known about the high-value items in
the cage for two weeks because ‘ as the manager of the store, he would have
entered that high- value room more than once’, and that Miller had been
negligent each time he entered the storeroom. However, Miller’s versions that
he did not check that everything was in order every day and that he worked
with other managers were not disputed.
[62] When Maal testified, he referred to his visits to the store, during which he
found that the register was incorrect, as well as his visit to the store during the
week of the robbery, when he instructed Miller to ensure that high-value items
were stored in the safe. He testified that:
‘I had a meeting with them that same week Chair and l’ve had numerous
meetings with him , in fact I wasn’t part of the hearing but had I been part of
the hearing would have entered into evidence mails that I have sent to Ganief
that says that there been numerous breaches of procedures in your store
have resulted in losses and I am going to start holding you accountable for
these losses.’
[63] He also testified that ‘if I recall I addressed with him the standards in the safe
and I asked in his high value cage and I asked him to fix it.’
[64] Under cross -examination, Miller requested proof that Maal had visited the
store in the week of the robbery and that a discussion had been held, to which
Maal responded that this was not reflected in Maal’s audits , but that Miller
could check his audits to see what was recorded. Miller pressed for evidence
that he had been addressed on shortcomings, to which Maal responded:
‘Mr Chair sorry let me put it to you this way so that y ou can understand also
that Ganief can understand. Like I said we checked a sample of things these
that Ganief can understand. Like I said we checked a sample of things these
two were not on the sample. Is the stationary racks on audit? No. I can
mention 300 things that are not on the audit that could have been right that
could have been wrong.’
14
[65] On when he visited the store, Maal responded that he could not remember the
date, but that ‘if he was there the Thursday he [ Miller] had two days [to fix the
problem]’. He also stated that he set up a follow-up date by which the security
issues needed to be addressed. Under cross -examination, Maal stated that
the visit could have been on a Monday.
[66] Miller denied this version and required proof of the visit, which was not
produced.
[67] The commissioner inquired whether anyone saw Maal during his visit, to
which he responded:
‘There are people that saw me. In fact, if l’m not mistaken, it will be part of
witness testimony and evidence in one or two of the previous hearings where
they saying that Zahir visited the store and then Ganief held a hearing with us
at the meeting with us and then we didn’t fix it so evidence can be obtained
from a number of sources.’
[68] Miller’s version on the high- value stock lying in the cage was that he only
became aware of it in the late afternoon of 9 July 2020. He decided to raise
the issue at the staff meeting on 10 July 2020, which he did, as confirmed by
two statements from employees. He also referred to the minutes of that
meeting, which indicated that security issues were discussed. Maal disputed
that security issues were discussed at the meeting, despite not being present.
[69] When Maal was requested to produce the registers , which were last
completed in February 2020 and were incomplete, Maal responded thus:
‘…everything I had was handed over to the initiator . I don’t have any proof of
anything. Like I said, I wasn’t involved in the hearing. I didn’t initiate anything,
I wasn’t sharing. I have moved on to another role. I handed over everything to
Claude, but I would assume that had you disputed it he would enter into
evidence at the time of the hearing, but this is not in line yesterday
(inaudible).’
[70] Miller’s version was that he was not responsible for receiving stock and
(inaudible).’
[70] Miller’s version was that he was not responsible for receiving stock and
recording it in the register, and that Mugano and Boikanyo were accountable.
15
As the branch manager, he was not required to sign the register. He was only
informed at the staff meeting on 10 July 2020 that the scanner used to record
stock in the register had not been working, and he directed staff to record the
stock received manually. Since he shared managerial duties with Mugano and
Nkosi, in his absence, these managers should have ensured that stock was
captured in the register and stored in the safe, as he instructed at the staff
meeting held before he left the store on 10 July 2020.
[71] On the first charge, the commissioner reasoned that the former employee,
who claimed the high-value stock had been in the cage for two weeks , did not
testify at the arbitration. This evidence was crucial because Miller denied that
the stock had been in the cage for two weeks before the robbery. The
commissioner explicitly cautioned that, unless the former employee testified,
he would regard the version as hearsay. Despite this warning, the employee
in question was not called to give evidence.
[72] David and Maal’s claims about the high- value stock being in the cage since
May 2020 were unsubstantiated.
[73] The same applies to the registers. If they were incomplete as alleged, they
could have been produced.
[74] Hi-Fi also argued that if the high- value stock had been in the safe, the losses
could have been minimised. The commissioner correctly dismissed this
argument, noting that the robbers were in the storeroom for 38 minutes and
had enough time to instruct Mugano to open at least three of the four safe
drawers.
[75] Hi-Fi’s submission that Miller should have moved the high- value items before
leaving the store to isolate ignores the COVID -19 protocols in place at the
time.
[76] Miller’s intervention on 10 July 2020 demonstrated that he acted quickly after
becoming aware of high-value items being stored in the cage on 9 July 2020.
It was not too late, as he was unaware of the high-value stock in the cage
It was not too late, as he was unaware of the high-value stock in the cage
before 9 July 2020, and Hi-Fi failed to provide evidence that Miller was aware.
16
It was also not disputed that on 9 July 2020, he issued an employee with a
final written warning for breaching the security place. The commissioner’s
conclusion that Hi-Fi did not prove any negligence by Miller during the periods
specified in the charges was both reasonable and correct. This ground of
review must fail.
The audits
[77] Hi-Fi challenges the commissioner’s conclusion that Miller's passing of three
audits between February and June 2020 related to security measures in the
store showed he was not negligent. According to Hi-Fi, this conclusion ignores
several essential factors. The first is that the complaint against Miller
concerned only the two weeks before the robbery, and there was no audit
report for that period. Second, is that an audit covers a day, not the days
before and after . Third, that the audits conducted did not check whether the
high-value items were kept in the safe or whether the register was being used
correctly. Therefore, according to Hi-Fi, the audit reports had no relevance to
the question of whether Miller had been negligent during the period in
question.
[78] It appears that Maal conducted the audits. The commissioner raised a
concern about the charges being for cellphones and asked whether there
were audits for them, and Maal responded negatively. Under cross -
examination, David was referred to the May 2020 audit report -spot check 5,
which showed high- risk items from the stock status report scored a hundred
per cent, and he responded that high- risk items were not specific to
cellphones, but included refrigerators too, a version that Miller disputed. He
also testified that the audit does not check the location of the stock or the
register.
[79] The charge against Miller was negligence for the period from February 2020
to July 2020. Therefore, the audits conducted in February, May, and June
2020 were relevant . The charge sheet did not refer to the two weeks before
2020 were relevant . The charge sheet did not refer to the two weeks before
the robbery. When the audit scores were raised, Maal claimed that Miller
17
scored below the acceptable 85%, implying that the audit scores were
relevant but that Miller had not met the required standard.
[80] In the absence of separate audit reports for high- value items for the period in
question, the version that the audits conducted between February and May
2020 excluded high-value items, had to be rejected.
[81] There is no merit in this ground of review.
Miller disciplined an employee for not complying with the Policy
[82] It was also Hi- Fi’s submission that the commissioner committed a gross and
reviewable irregularity by finding that Miller had fulfilled his duty by disciplining
an employee on 9 July 2020 for gross negligence in breach of the Policy. The
submission was that ‘one teacup does not constitute a complete tea set ’, and
disciplining a single staff member on this occasion falls well short of proving
that Miller enforced the policy in all respects, as was expected of him.
[83] Above, I addressed the ground of review that the alleged negligence had
persisted since February 2020 (regarding the registers) and since May 2020
(concerning high- value stock stored in the cage), and that Hi -Fi did not
provide any evidence to support its case. The fact that on 9 July 2020, Miller
disciplined an employee for breaching policy undermines Hi -Fi’s claim that
Miller had been in breach of the policy since February. On 10 July 2020, he
instructed that high- value stock must be kept in the safe and that stock
received must be recorded manually, as the scanners were experiencing
issues. Contrary to the case Hi -Fi sought to make against him, the evidence
proved that Miller took appropriate steps to address policy compliance issues
once he became aware of them.
[84] This ground of review also fails.
The commissioner applied the reasonable doubt test
[85] The submission is that if one has regard to the reasoning of the
commissioner, he decided the matter applying the reasonable doubt test and
commissioner, he decided the matter applying the reasonable doubt test and
conducted no proper assessment of the probabilities, which required him to
18
determine which eventuality, among several possible ones, was most
plausible and made the most sense. 8 Had the commissioner done what was
required, so the argument went, he w ould have found Miller guilty of gross
negligence, as defined in Transnet Ltd t/a Portnet v Owners of the MV Stella
Tingas and Another
9.
[86] The different versions that the commissioner was required to assess but failed
to do so are not set out.
[87] Be that as it may, the ground of review lacks merit. H-Fi bore the burden of
proving the gross negligence it alleged against Miller, and the commissioner
records this in the award. Hi -Fi failed to prove its case because it presented
no acceptable evidence, not because the commissioner applied the wrong
test regarding the burden of proof. Nowhere in the award is it recorded that
the commissioner applied the reasonable doubt test.
[88] This ground of review fails, too.
Sanction
[89] The submission was that the commissioner found dismissal too harsh but did
not find Miller guilty, and that this constitutes a gross irregularity for several
reasons. First, because dismissal is justified in cases of gross negligence.
Second, the parties did not address the sanction to be imposed, but rather
whether Miller was negligent. Third, the commissioner had no regard for the
relevant factors set out in Sidumo when deciding the sanction, and in this
case, dismissal was justified given the nature of the offence, the breakdown in
the trust relationship, the complete lack of remorse, the loss suffered by Hi -Fi,
that employees guilty of similar misconduct were dismissed, and Miller's
rejection of demotion to avoid dismissal.
8 Minister of Safety and Security v Jordaan t/a Andre Jordaan Transport (2000) 21 ILJ 2585 (SCA) ,
and Bates & Lloyd Aviation (Pty) Ltd and Another v Aviation Insurance Co; Bates & Lloyd Aviation
(Pty) Ltd v Aviation Insurance Co 1985 (3) SA 916 (A).
9 2003 (2) SA 473 (SCA) at para 7.
19
[90] The submission has no merit. The commissioner found that Miller had not
been grossly negligent, let alone negligent. That is a not guilty finding, even if
the award does not explicitly record that Miller was not guilty.
[91] The finding that Miller was neither negligent nor grossly negligent should have
concluded the inquiry. The sanction to be imposed and the factors outlined in
Sidumo regarding the sanction, or any other considerations, became
irrelevant. The commissioner’s conclusion that even if Hi -Fi discharged the
onus to prove Miller’s negligence, he would still have found that dismissal was
harsh, was superfluous, but does not amount to an irregularity.
[92] The review ground is misplaced.
Maximum compensation awarded
[93] Finally, Hi- Fi also takes issue with the maximum compensation awarded to
Miller, which it says was not motivated and is unduly punitive.
10 The
submission is further that the commissioner ought to have considered that (a)
Miller did not lead any evidence about his attempts to find alternative
employment and mitigate his loss , (b) Miller was grossly negligent, (c) Hi -Fi
suffered a huge loss, (d) Miller refused the alternative of a demotion, and (e)
the dismissal was procedurally fair. In oral argument, Mr Posthuma for Hi -Fi
submitted that four months' compensation would be fair.
[94] In deciding the relief to grant, the commissioner referred to section 193 of the
LRA, which provides that an arbitrator may order reinstatement, re-
employment or compensation for an unfair dismissal.
[95] Then the commissioner also referred to s ection 194(1) of the LRA which
provides as follows:
‘The compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the reason for dismissal
was a fair reason relating to the employee's conduct or capacity or the
employer's operational requirements or the employer did not follow a fair
10 Rawlins v Kemp t/a Centralmed (2010) 31 ILJ 2325 (SCA).
20
procedure, or both, must be just and equitable in all the circumstances, but
may not be more than the equivalent of 12 months ’ remuneration calculated
at the employee's rate of remuneration on the date of dismissal.'
[96] After pointing out that Miller did not wish to be reinstated, noting the date of
dismissal as 4 September 2020, and Miller’s monthly salary, the
commissioner found that ‘for the reasons provided in my analysis above, I find
twelve months compensation to be just and equitable’. The motivation for the
maximum compensation awarded is as set out in that part of the award
analysing the evidence, as well as sections 193 and 194(1) of the LRA.
[97] In McGregor v Public Health and Social Development Sectoral Bargaining
Council and Others ,
11 the Constitutional Court approved the approach taken
in Kemp t/a Centralmed v Rawlins12 (Kemp). It held that when determining the
amount of compensation under section 194(1) of the LRA, an arbitrator
exercises a true or narrow discretion, and the Court’s power to interfere is
limited. Such interference can only occur on specific grounds that the
arbitrator (i) did not exercise a judicial discretion; (ii) exercised discretion
capriciously; (iii) based the discretion on a wrong principle; (iv) failed to bring
an unbiased judgment to the question; (v) did not act for substantial reasons ;
(vi) misunderstood the facts ; or (vii) reached a decision that a court properly
directing itself to all relevant facts and principles could not reasonably arrive
at. During oral argument, Mr Posthuma agreed that this is the test when
determining whether the Court may interfere with the quantum of the awarded
compensation.
[98] Do any of these factors apply to the commissioner’s decision to grant
maximum compensation?
[99] The commissioner correctly noted the dismissal date as September 2020. The
award was issued in July 2021, which is nine months after the dismissal.
From the transcript, I also observed that Miller requested nine months'
From the transcript, I also observed that Miller requested nine months'
compensation, probably because he was out of work for that period.
11 (2021) 42 ILJ 1643 (CC).
12 (2009) 30 ILJ 2677 (LAC).
21
Nonetheless, the commissioner awarded the maximum compensation of
twelve months.
[100] In Billion Group (Pty) Ltd v Mosheshe and Others13 , the Labour Appeal Court
considered an appeal in which this Court had reduced the quantum of
compensation awarded to an employee for a procedurally unfair dismissal
from four months to two months. The Labour Appeal Court stated this:
‘[16] Turning to the quantum of the compensation ordered, the Labour
Court properly had regard to the fact that while the employee had only
sought that he be paid out until the end of his fixed-term contract, the
commissioner awarded compensation of four months . While it is so
that compensation for procedural unfairness amounts to a solatium for
the unfairness committed, the court cannot be faulted for finding that it
was neither just nor equitable to grant relief both beyond the period
sought by the employee and in excess of the period which remained
on his fixed-term contract.’
[101] Therefore, an employee must be awarded the compensation they requested,
and not more; otherwise, the conclusion that the quantum is punitive becomes
unavoidable.
[102] In Maroveke v Talane NO & Others 14, the Constitutional Court was called
upon to determine an appeal in which this Court , on review, reduced the
quantum of the back pay awarded to an employee whose dismissal was found
to have been substantively unfair, but had had the good fortune of finding
alternative employment two months after the dismissal. The Constitutional
Court found that this Court had been correct in reducing the quantum of back
pay to two months, the period during which the employee was unemployed.
Even though the matter concerned back pay following a reinstatement order ,
as opposed to compensation when an employee does not wish to be
13 (2018) 39 ILJ 368 (LAC)
14 (2021) 42 ILJ 1871 (CC). See also Kukard v GDK Delkor (Pty) Ltd [2015] 1 BLLR 63 (LAC), and Le
Monde Luggage CC t/a Pakwells Petje v Dunn NO & Others (2007) 28 ILJ 2238 (LAC), which both
found that payment of compensation made to an employee who has been unfairly dismissed is to
offset the financial loss which has resulted from the unfair dismissal.
22
reinstated, it is my view that the below-quoted paragraphs from the judgment
guide on the quantum of compensation to be granted:
[27] ….However, the applicant’s claim for appropriate backpay stands on a
different footing and there are reasonable prospects that this court will
materially alter the decision of the Labour Court. The compensation to
the wronged party is intended to ‘offset’ the financial loss suffered as a
result of a wrongful act. What must be determined is the extent of the
loss, while considering the nature of the unfair dismissal. Underlying
this is the intent to restore the applicant to the position he would have
been in but for the wrongful act by the employer. That restoration must
not assume a punitive character. This view is properly enunciated in
Davids as follows:
‘The compensation which must be made to the wronged party is a
payment to offset the financial loss which has resulted from a
wrongful act. The primary enquiry for a court is to determine the
extent of that loss, taking into account the nature of the unfair
dismissal and hence the scope of the wrongful act on the part of the
employer. This court has been careful to ensure that the purpose of
the compensation is to make good the employee’s loss and not to
punish the employer.’
[103] Above, I noted that a t the time the arbitration award was issued, Miller had
been out of work for nine months. Therefore, the extent of his loss was nine
months' compensation, which would have put him in the position he would
have been, but for the dismissal . Had Miller opted to be reinstated, his back
pay would have been limited to nine months . His preference not to be
reinstated should not result in him receiving more than an employee who
opted to be reinstated, who would have had to render services post -award to
receive remuneration beyond the nine months . The dismissal was
procedurally fair. On the facts of this case, the compensation was not meant
procedurally fair. On the facts of this case, the compensation was not meant
to serve purposes broader than mere patrimonial loss. The compensation was
intended to address the loss of nine months' salary.
[104] For the reasons stated above, I find that in awarding the maximum
compensation, the commissioner exercised his discretion capriciously, acted
23
with bias, and adopted the wrong approach. A just and fair award is nine
months' compensation; therefore, the award will be reviewed, but only to this
extent.
Concluding remarks and costs
[105] On the one hand, Mr Posthuma, for Hi -Fi, argued that it was difficult to
understand how Miller was exonerated from liability, which was the core of Hi -
Fi’s case on review. On the other hand, it was argued on behalf of Miller that
the review application was merely a thinly veiled attempt to appeal an award
that Hi-Fi was unhappy with.
[106] There is merit in the submission on behalf of Miller as it relates to the
commissioner’s finding that his dismissal was substantively unfair. Hi- Fi’s
approach on this issue, in my view, was no different to that of the applicant in
Securitas Specialised Services (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others15, where the Court commented thus:
‘[33] The appellant’s grounds of review against the arbitration award of the
arbitrator contradict the very essence of what the Constitutional Court
in Sidumo and this Court in Gold Fields sought to ensure in a review
against an arbitration award. The grounds of review raised by the
appellant in the review application seek, in this respect, to blur the
lines between an appeal and review. Not a single ground of review
raised by the appellant implicates the reasonableness of the
arbitrator’s award. They seek instead, on a piecemeal basis, to
challenge the correctness of the arbitrator’s award. This is
impermissible. Accordingly, the Labour Court’s dismissal of the
appellant’s review application, on the basis that “the decision of the
arbitrator is not a decision that a reasonable decision-maker could not
reach” on the totality of the evidence, was justified.’
[107] However, regarding the amount of compensation awarded, Hi -Fi has
succeeded in having it reduced for the reasons outlined above.
15 (2021) 42 ILJ 1071 (LAC).
24
[108] A costs order, in accordance with the requirements of law and fairness, is for
each party to pay its own costs.
[109] In the premises, the following order is made:
Order
1. The award is reviewed and set aside, but only to the extent that the
compensation payable to Mogamat Ganief Miller is reduced to nine
months.
2. There is no order as to costs.
_______________________
T Gandidze
Judge of the Labour Court of South Africa
25
Appearances
For the Applicant: Mr Arend Posthuma
Instructed by: Snyman Attorneys
For the Respondent: Mr Pandor
Instructed by: Pandor Davids Attorneys Inc.