IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR546/2023
Not Reportable
In the matter between:
CASHBUILD SA LTD Applicant
and
KGOANA J MAMOGALE N.O. First Respondent
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
LORRAINE TSIRI Third Respondent
Heard: 4 June 2025
Delivered: This judgment was handed down electronically by circulation to the
parties and / or their legal representatives by email. The date and time
for handing-down is deemed 10h00 on 3 December 2025
JUDGMENT
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ALLEN-YAMAN J
Introduction
[1] On 12 March 2023 the first respondent handed down an award in which she
found the third respondent’s dismissal by the applicant to have been
substantively unfair, with the third respondent then being awarded
reinstatement. It was this award which formed the subject of the present review
application, which was opposed by the third respondent.
Analysis
[2] On 8 August 2022 the third respondent, Ms Tsiri, was found to have committed
an act of gross negligence in that on 8 July 2022 she had authorised payment
of the amount of R2 847.14 out of petty cash instead of the amount of
R2 482.00. Having admitted her error, the chairperson of the disciplinary
enquiry, relying on the fact that Ms Tsiri had previously been given a final
written warning for the same offence, and the applicant’s disciplinary code
imposed the sanction of dismissal.
[3] It was Ms Tsiri’s case that the applicant, in having dismissed her, had not acted
consistently. She alleged that other employees employed by the applicant had
not been disciplined for the infraction in question, but had instead been
permitted to reimburse the applicant the amount s of the relevant losses caused
by their respective errors. The first respondent upheld Ms Tsiri’s contention.
[4] In seeking to challenge the first respondent’s award in these proceedings, the
applicant asserted that the first respondent reached an unreasonable decision
on the issue of inconsistency. It alleged:
- The comparators which had been identified by Ms Tsiri at the outset of the
arbitration had been ‘Betty’ and ‘Sandra’, but changed her case pursuant to
the close of the applicant’s case, then having asserted that it had been
‘Sarah’ and ‘Elizabeth’ who had been treated more favourably than she had;
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- Ms Tsiri presented no evidence in s upport of her case that there had been
differential treatment, in contrast to that of the applicant which had
introduced evidence to demonstrate that other employees had been
disciplined for the same misconduct;
- If differentiation was found to have occurred, the first respondent did not
apply the correct legal test in relation thereto, having failed to appreciate
that Ms Tsiri had presented no evidence that such differentiation in
discipline had been effected for some arbitrary reason; and
- The first respondent ignored the fact that Ms Tsiri had already been given a
final written warning which remained operative at the time of her dismissal.
[5] Ancillary to the applicant’s assertions pertaining to the award itself, the
applicant alleged that the first respondent had misconducted herself by
disallowing it from leading evidence on any issue other than that of consistency.
Ms Tsiri’s singular complaint concerning the fairness of her dismissal had been
that the applicant had been inconsistent in its application of discipline, and this
was accordingly the singular issue which the first respondent was required to
determine. In the absence of amplification or explanation by the applicant, it is
impossible to conceive what other evidence it would have sought to introduce,
and or what effect, if any, the introduction of such other evidence may have had
on the outcome.
[6] As regards the award itself, the first of the applicant’s complaints is
unsustainable on the record before this court. At the outset of proceedings,
pursuant to the first respondent having established Ms Tsiri’s length of service,
position and salary, she requested Ms Tsiri’s representative to identify the
comparators upon which she relied for the purposes of the issue of
consistency. In response, she was informed that the employees in question
were Ms Sarah Mogale and Ms Elizabeth Ramango.
were Ms Sarah Mogale and Ms Elizabeth Ramango.
[7] The applicant’s further assertion that no evidence was presented by Ms Tsiri to
establish inconsistency is also unsupported by the record of the evidence
before the first respondent.
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[8] In presenting its case through its singular witness, Ms Ramango, the applicant
did not initially introduce any evidence in relation to either Ms Ramango or Ms
Mogale. Despite having alleged in the present proceedings that Ms Tsiri’s
comparators had initially been ‘Sandra’ and ‘Betty’, no individual named ‘Betty’
was dealt with by it in the arbitration at all. In attempting to establish that it had
applied the rule relating to shortages consistently, it dealt only with Ms Sandra
Mokondo and Mr Sylvester Johannes. It was only when the first respondent
reminded the applicant’s representative of the need on the part of the applicant
to deal with the named individuals when it then addressed the question of Ms
Mogale, but nonetheless still failed to address the question in so far as it related
to Ms Ramango.
[9] Insofar as Ms Mogale was concerned, Ms Rama ngo testified that she had not
had any shortages since a meeting held on 21 June 2022 at which meeting it
had been explained to staff that they would not be permitted to make good
shortages, which would thereafter always be treated as matters leading to
disciplinary action. Although she did not deal with the issue specific ally in
relation to herself, she testified that since that meeting, no one at the store at
which she and Ms Tsiri were employed had been afforded the opportunity to
repay any shortages.
[10] Ms Rama ngo’s version that Ms Mogale had never had any shortages was
challenged under cross -examination, it having been put to her that Ms Tsiri
would testify that Ms Mogale had been short an amount of R135,00 and that
rather than having disciplined her, Ms Ramango had allowed her to repay in the
shortfall. As far as Ms Rama ngo herself was concerned, it was put to her that
Ms Tsiri would testify that she had been short R102.00 in the last week of June
2022, and that she had paid in the amount herself. In response, Ms Ramango
denied that either she or Ms Mogale had caused any shortages since June
denied that either she or Ms Mogale had caused any shortages since June
2022, and repeatedly invited Ms Tsiri to provide documentary proof that this
had transpired.
[11] In her subsequent evidence, Ms Tsiri explained the circumstances which had
resulted in Ms Mogale and Ms Ramango having experienced shortages, and
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the payment by each which had been permitted to take place, both such issues
having been known to her by virtue of her position as System Supervisor, one
of the functions of which position entailed both cash and banking
responsibilities.
[12] When Ms Tsiri was cross- examined concerning the absence of any
documentary proof of her assertions, she responded,
‘… when these shortages happened we did not record them we were dealing with this,
with this shortages orally … to balance so there, there is no way I can have …
document evidence since this was not recorded but it was said orally.’
As Ms Tsiri had testified under oath, t he applicant’s assertion that Ms Tsiri
presented no evidence in support of her case that it had been inconsistent in
the application of discipline cannot be sustained.
[13] As she had been required to do, the first respondent considered the mutually
incompatible versions before her, being that of Ms Ramango and that of Ms
Tsiri, and concluded that Ms Tsiri’s version was to be preferred, having
explained,
‘I find the Store Manager to be very unreliable witness. It is not surprising that she is in
fact the interested party in the matter. I have no reason to disbelief the applicant in
this regard. Nothing was presented to me which suggested that the applicant would
have ulterior motive to implicate the Store Manager.’
[14] In the event that this court f ound the first respondent’s conclusion that there
had been differentiation in the application of discipline to have been
reasonable, (which it does) the further argument advanced by the applicant was
that Ms Tsiri had nonetheless failed to establish that such differentiation was
arbitrary.
[15] The Labour Appeal Court explained the nature and ambit of the application of
parity in the application of discipline in the workplace in National Union of
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Mineworkers on behalf of Botsane v Anglo Platinum Mine (Rustenburg Section)
(2104) 35 ILJ 2406 (LAC),
‘The notion of inconsistency in discipline
The idea of inconsistency in employee discipline derives from the notion that it is unfair
that like and like are not treated alike. The core of this ‘factor’ in the application of
employee discipline (it would be a misconception to call it a principle) is the rejection of
capricious or arbitrary conduct by an employer.
It has application in two respects. Mainly, it is a recognition of the unfairness of the
condemnation of one person for genuine misconduct when another indistinguishable
case of misconduct by another person is condoned. The second application is the
recognition of the unfairness that results when disparate sanctions are meted out for
indistinguishable misconduct to different persons.’
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[16] In the present matter, Ms Tsiri established that she had been disciplined for a
shortage in circumstances in which Ms Mogale and Ms Ramango had been
afforded opportunities to remedy their mistakes. Had there been an objectively
justifiable reason for such differentiation, it was for the applicant to have
disclosed it. As it failed to do so, the only conclusion which could have been
arrived at was that the taking of disciplinary action against Ms Tsiri had been
unfair.
[17] The final issue raised by the applicant was that the first respondent had
overlooked the fact that a final written warning had been operative against Ms
Tsiri at the time of her dismissal. Whilst it is correct that Ms Tsiri had been
given a final written warning, such an issue was irrelevant in the face of the
conclusion reached by the first respondent that the applicant had acted unfairly
in having disciplined her in circumstances in which it had not disciplined other
employees for the same offence.
1 At paragraphs 25 and 26
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[18] This being the case, the inconsistent application of discipline was reasonably
found not to have been justified, and Ms Tsiri’s dismissal was not unreasonably
found by the first respondent to have been substantively unfair. In
circumstances in which the applicant’s grounds of review are unsustainable, the
application falls to be dismissed.
Costs
[19] Albeit that the applicant asked that any respondent who opposed the
application be ordered to pay costs, it abandoned such request in the course of
argument. Counsel for Ms Tsiri, on the other hand, persisted in a similar
request.
[20] Despite the fact that the relationship between the parties is to be restored, it is
the view of this court that the in terests of justice require that the applicant pay
Ms Tsiri’s costs. The applicant is a juristic entity, and an order for costs ought
not to affect her working relationship with her colleagues. Moreover, the record
demonstrates that whilst in the employ of the applicant she earned no more
than a modest salary, and an order for costs will militate against any hardship
she may have endured in having been obliged to fund the legal costs of the
present litigation, in defending the award.
Order
1. The application is dismissed.
2. The applicant is ordered to pay the third respondent’s costs, Counsel’s fees to
be at Scale B, where applicable.
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________________________
K Allen-Yaman
Judge of the Labour Court of South Africa
Appearances
Applicant:
Mr A Posthuma, Snyman Attorneys
Third Respondent:
Mr D Makhubele, instructed by Mahapa & Montani Attorneys