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[2025] ZALCCT 130
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Cape Thai Restaurant (Pty) Ltd t/a Simply Asia Durbanville v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (C06/2025) [2025] ZALCCT 130 (9 December 2025)
FLYNOTES:
LABOUR – Dismissal –
Gross
misconduct
–
Distinction
between poor performance and misconduct – Repeated lateness
– Gross negligence in managing store and
staff –
Resulted in numerous customer complaints – Disrespect charge
– Cumulative effect of charges justified
dismissal –
Arbitrator misapplied legal principles and misconstrued evidence –
Impermissibly substituted own
view of what constituted
disrespectful behaviour – Reviewed and set aside –
Dismissal substantively fair.
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
Case
no:
C06/2025
In the matter between:
CAPE THAI RESTAURANT
(PTY) LTD T/A
SIMPLY ASIA
DURBANVILLE
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
&
ARBITRATION
(CCMA)
First Respondent
GERALD
JACOBS
Second Respondent
TAPIWA
MUTSEEKWA
Third Respondent
Heard
:
4 November 2025
Delivered
:
09 December 2025
Summary:
(Review application - Commissioner should consider the principal
issue before him; evaluate the facts presented at the
hearing and
come to a conclusion which is reasonable to justify the decision he
arrived at - arbitrator impermissibly entered the
fray when he
determined for the employer what disrespectful conduct should or
should not be – award set aside)
JUDGMENT
MAY,
AJ
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award in which the second respondent (the arbitrator)
determined that
the third respondent’s dismissal was substantively unfair and
ordered the Applicant to pay the third respondent
the sum of R41
200.00 (the equivalent of 4 months’ wages).
Background
[2]
The third respondent commenced employment with the Applicant on 21
June 2021 as a Junior Manager. He was dismissed on
20 November 2023.
[3]
The third respondent was called to a disciplinary hearing where he
was charged with:
3.1
Charge 1 – Gross misconduct in that you have arrived at work
late on numerous occasions, most recently being on 16 October 2021,
19 October 2023 and 20 October 2023.
3.2
Charge 2 – Gross negligence in the performance of your duties
and proper management of the store and staff, which has resulted in
an excessive number of complaints from customers, most recently
totalling sixteen complaints over the period August 2023 to October
2023.
3.3
Charge 3 – Gross disrespect in that you went on a call with
Eduard Uys regarding an incident which occurred on Wednesday, 18
October 2023, with regards to long wait times for sushi orders,
and
hung up on Eduard.
[4]
The hearing was held on 9 November, the third respondent pleaded
guilty to charge 1 and not guilty to the rest. The chairperson
recommended on 20 November 2023 that the third respondent be found
guilty of the remainder of the charges. The Chairperson recommended
that the third respondent’s service be summarily terminated.
Aggrieved by this decision, the third respondent referred the
matter
to the first respondent, who in turn, appointed the second
respondent, who arbitrated the matter.
The
award
[5]
The arbitrator assessed that the Applicant’s biometric
attendance records were not reliable, despite the third respondent
admitting being late on at least one of the three dates, and accepted
the version preferred by the third respondent that the biometric
system could be modified and thus could be manipulated. He also
focused on what he alleges to be a significant contradiction in
the
evidence of the Applicant’s witness, Mr Telles. He assessed
that there could be record manipulation and thus that the
version
preferred by the third respondent meant that his arriving late did
not amount to misconduct.
[6]
The arbitrator assessed
that there is a difference between negligence as a form of misconduct
and poor performance, referencing
the
dicta
in
ZA
One (Pty) Ltd t/a Naartjie Clothing v Goldman No & others (ZA
One)
[1]
.
He then finds that there was no evidence of wilful misconduct or
deliberate disregard of duties, and thus, like in
Midas
Group Komatipoort v NUMSA and Others (Midas Komatipoort)
[2]
,
in his view, the third respondent should have been taken through a
poor performance process instead of being charged for misconduct.
[3]
[7]
In relation to the gross
disrespect, the arbitrator held that he did not find that the third
respondent’s decision to end
the call was disrespectful and
that he hung up out of frustration and not disrespect.
[4]
Grounds
of review and evaluation
[8]
Applicant contends that the award is one that no other reasonable
decision-maker could reach, and further that the arbitrator
committed
various irregularities.
[9]
In the present
application, this court is called upon to ascertain whether the
Commissioner considered the principal issue before
him, evaluated the
facts presented at the hearing and came to a conclusion which is
reasonable to justify the decision he arrived
at. This approach was
stated in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others (supra).
[5]
In the latter
decision, the Labour Appeal Court also stated thus:
‘
The questions to
ask are these: (i) In terms of his or her duty to deal with the
matter with the minimum of legal formalities, did
the process that
the arbitrator employ give the parties a full opportunity to have
their say in respect of the dispute? (ii) Did
the arbitrator identify
the dispute he or she was required to arbitrate (This may in certain
cases only become clear after both
parties have led their evidence.)
(iii) Did the arbitrator understand the nature of the dispute he or
she was required to arbitrate?
(iv) Did he or she deal with the
substantial merits of the dispute? (v) Is the arbitrator’s
decision one that another decision
maker could reasonably have
arrived at based on the evidence?’
[6]
[10]
The test that the Labour
Court is required to apply in a review of an arbitrator’s award
is this: “
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach?”
[7]
[11]
Our courts have
repeatedly stated that in order to maintain the distinction between
review and appeal, an award of an arbitrator
will only be set aside
if both the reasons and the result are unreasonable. In determining
whether the result of an arbitrator’s
award is unreasonable,
the Labour Court must broadly evaluate the merits of the dispute and
consider whether, if the arbitrator’s
reasoning is found to be
unreasonable, the result is, nevertheless, capable of justification
for reasons other than those given
by the arbitrator. The result
will, however, be unreasonable if it is entirely disconnected with
the evidence, unsupported by any
evidence and involves speculation by
the arbitrator.
[8]
An award will no doubt be
considered to be reasonable when there is a material connection
between the evidence and the result or,
put differently, when the
result is reasonably supported by some evidence.
[12]
The arbitrator’s
task was to “
take
into account the totality of circumstances. He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider the reason
the employer imposed the sanction of dismissal, as he or she
must
take into account the basis of the employee’s challenge to the
dismissal. There are other factors that will require
consideration.
For example, the harm caused by the employee’s conduct, whether
additional training and instruction may result
in the employee not
repeating the misconduct, the effect of dismissal on the employee and
his or her long-service record. This
is not an exhaustive list”
.
[9]
[13]
The following conclusions reached by him were irregular:
13.1
In relation to charge 1, his finding of a contradiction is not borne
out by the evidence.
During evidence in chief, the witness, Mr
Telles, is asked whether the document referred to could be
manipulated by him, he said
no. The follow-up question was whether he
could add times or take times away, to which he responded yes, but
once they have clocked
in, the report will show what time they
clocked in. in cross–examination, the third respondent asks the
same question and
receives the exact same answer. There was therefore
no contradiction. Importantly, however, the third respondent never
asserts
that the witness in fact tampered with or changed the times.
This was also never his version. His version was that he was late on
the 16
th
of October, and if he was late on the other two
days, it may have been that his senior, Andrea, could have sent him
to go fetch
stock or was sent to the bank to make change. His
concession on being late was sufficient to justify the finding of
guilt on charge
1.
13.2
The arbitrator had a clear misapprehension of the
ZA One
and
Midas Komatispoort
judgments and failed to have regard to the
fact that
in
ZA One
,
the Court added the following:
‘
In
my view, the distinction between poor performance and misconduct
(negligence) can be established by the asking of two simple
questions
when it has been established that an employee indeed failed.
The
first question is “Did the employee try but could not?”
and the second question is “Could the employee do
it, but did
not?” If the first question is answered in the affirmative,
then it has to be poor performance, because an employee
who honestly
(for the want of a better word) seeks to achieve what is expected of
him or her but is unable to do so is incapacitated
and would not
behave wilfully or indifferently or fail to apply the necessary care.
If the second question is answered in the affirmative,
then it has to
be misconduct, as this would be a situation where the employee is
fully able to do what is required not to fail,
and such failure could
therefore only be because of indifference or wilfulness or a failure
to take care.
…’
(Own emphasis) In
casu
this
was a clear instance of the third respondent being able to but did
not. The finding by the arbitrator to the contrary is therefore
unreasonable.
13.3
In respect of charge 3, I agree with the submission by Mr De Kock,
who appeared for the
Applicant, that the arbitrator impermissibly
entered the fray when he determined for the employer what
disrespectful conduct should
or should not be. That is beyond his
remit. His remit was to assess the evidence and determine whether the
conduct complained of
constituted misconduct and whether the sanction
was appropriate. It is true that there were two mutually destructive
versions as
to what was said, but that’s neither here nor there
in circumstances where it was common cause that the call was abruptly
ended. Whether the polygraph test assisted or not was, in this
Court’s view, not relevant to whether the conduct complained
of, being the abrupt ending of the telephone call, constituted
misconduct or not. Ultimately, the third respondent admitted cutting
the call abruptly because he didn’t like what his superior was
saying to him that is the definition of disrespect.
13.4
The cumulative effect of a finding of guilt on all of the charges
makes a sanction of dismissal
reasonable in the circumstances.
[14]
The second respondent failed to take into account the gravity of the
charges and the circumstance that the third respondent
was a junior
manager. He also failed to take into account that the third
respondent showed no remorse for failing to adhere to
the rule or
policy of the applicant, with huge financial implications for the
applicant. Had he done so, he would have found that
dismissal was
appropriate in the circumstances. The arbitrator’s outcome,
therefore, is one a reasonable decision-maker could
not reach. The
findings by the arbitrator are divorced from the material before him,
and he misconceived what was required of him.
[15]
Substitution is appropriate where the full record is available to the
court and where a judge is in the same position
as a commissioner
would be to make an appropriate award. The Court has the benefit of a
full record and is in as much of a position
to assess the version of
the third respondent as against the Applicant’s. The version of
the Applicant, in the Court’s
view, is imminently more probable
than the third respondent’s.
Order
1.
The finding of the second respondent in the arbitration award
WECT19379-23, issued on 8 December 2024, that the third respondent’s
dismissal was substantively unfair, and the consequential relief
awarded is reviewed and set aside.
2.
The finding of the second respondent that the third respondent’s
dismissal was substantively unfair is replaced with
a finding that
the third respondent’s dismissal was substantively fair.
3.
There is no order as to costs.
C
May
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant
Adv. C De Kock
Instructed
by:
Carelse Khan Attorneys, Cape Town
For
the third respondent
In person
[1]
(2013) 34 ILJ 2347 (LC)
at para
78.
[2]
[2018] ZALCJHB 83;
[2019] JOL 43411 (LC).
[3]
Page 22 of the pleadings
record.
[4]
Page 21 of the pleadings
record.
[5]
(2014)
35
ILJ
943
(LAC).
[6]
Ibid at para 20.
[7]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others (Sidumo)
2007 (28)
ILJ
2405
(CC);
[2007] 12 BLLR 1097
(CC) at para 110.
[8]
Herholdt v Nedbank
Ltd (Congress of South African Trade Unions as amicus curiae)
[2012] 11 BLLR 1074
(SCA); (2013) 34
ILJ
2795 (LAC) at paras 12
and 13.
[9]
Sidumo
at
para 78.