Reportable: Yes/NO
Of interest to other Judges: Yes/No
THE LABOUR COURT OF SOUTH AFRICA, CAPE TO
In the matter between:
SADHASIVAN NAIR
and
PETROLEUM LIMITED
NATIONAL BARGAINING COUNCIL FOR
THE CHEMCAL INDUSTRY
COMMISSIONER ANDISWA MA
Heard : 30 October 2025
Delivered:
Applicant
First Respondent
Second Respondent
Third Respondent
Summary: Letter ment - Contract of employment, Company Policy and
Procedure and/or Ac eptable Company Practice . Parole evidence rule. Gross
mis . nduct-Gross negligence: failure to secure and/or finalize signed
nE!lli,~vvith dealers - to operationalize - end to end management of
. Failure to collect rebates timeously across mult iple suppliers, 2019-
2022. Fai ure in ensuring trade agreements are signed and or are in place and
updated with suppliers allocated by Line Managers. Exposing the company to
potent ial financial losses - actual financial losses. Employee alleges lacked
authority to unilaterally sign contracts or fully manage rebate collection.

2
JUDGMENT
GURA, AJ
Introduction
[1] This judgment is in relation to an application brought in term of
the Labour Relations Act1 (as amended) read with Rule 7 A
Proceedings in the Labour Court2. The Arbitration Award was grant d against
the Applicant in the matter dated 8 Februa , issued by the Third
Respondent in the matter under the auspices the Se d Respondent, under
case number CHEM229-22/23. The First Re oses the application.
[2] The Applicant was at all material times represented by Mr de Wet from Brundon
Attorneys, and the Respon eAt was represented by Mr Jose Jorge from
Thompson Wilks lncorpora cl. Tti Respondents argued that the Applicant has
r the Documentary Record. Thus,
Respondent's Heads refer the pagination in the Applicant's and
Respondent's bundles as they were used in the CCMA. Argued further that the
transcripts have no line numbers and are not chronologically numbered, thus
eferencing difficult.
Backgrou
[3] Eng~ e,ates in the Petroleum Sector. It has retail operations through which
it services a network of Engen branded service stations, which are franchised
d owned by independent dealers. Many of the service stations offer
nvenience shopping in the form of Engen branded Quick Stores. Engen, on
behalf of the dealers, will secure suppliers for the Quick Shops, negotiate terms
and conclude trade agreements with the suppliers. The First Respondent
further placed on record that Engen secures a significant amount of revenue
1 Act 66 of 1995 (as amended).
2 GN 1665 of 1996: Rules for the Conduct of Proceedings in the Labour Court, repealed with effect
from July 2024.

3
from these agreements as it earns rebates from the suppliers on the supplier
stock that is sold at the Quick Shops, which rebates are usually shared with the
dealers. Ms Dutton testified on behalf of the First Respondent and placed on
record that Applicant managed specific categories, being tobacco,
confectionery, and perishables.
[4] The Applicant was employed by the First Respondent fro
dismissal in 2023. He was employed as a National Cate o
monthly net salary of approximately R76 931.003, a
organization. First Respondent argued that the Appli
Manager) has an oversight role. They did not imple ent e end-to-end
function4. The Category Manager will typically source a supplier, formalize the
relationship in the form of a trade nt and then operationalize the
agreement and roll it out. The trade is critical as it regulates the
relationship and provides certainty an ate f on from liability to Engen and
the dealers it services. Argued further by the First Respondents that the key
issue in these contract are the rebates, the rebates being the reason for the
contracts5. The trade ag . ments are typically for 12 months, running from
January to Decem of a ye .
[5] The First Respondent argued further that the Key Accountabilities for the
Manager require, amongst others, that the Category Manager:
' anage assigned sub-category by building and executing strategic sourcing
egory management plans, supported by in depth analysis of purchasing
demand 'supplier, market, price cost structures, generate the suppliers list and
assessment criteria, drive the negotiation strategy and prepare/operationalize
(First Respondent's emphasis) the contract to ensure delivery of business
objectives6.
3 First Respondent placed on record Applicant earned just short of R 1 000 000.00 a year.
4 Transcript DM 551338-19 October 2023; Dutton cross -pages 3 and 4.
5 Transcript DM551336-26/7/23: Dutton ; page 5 & 13 respectively.
6 Paragraph 12 of First Respondents' Heads and Applicant's CCMA bundle, page 37, Category

6 Paragraph 12 of First Respondents' Heads and Applicant's CCMA bundle, page 37, Category
Management, bullet 1.

4
Manage end to end contract management life cycle and develop mitigation
plans to ensure delivery and performance of suppliers as per agreed SLAs7.
(First Respondent's emphasis)
[6] First Respondent argued that the Category Manager cannot perform
tasks properly without a trade agreement being in place at the commence ent
of the year. Further, Engen has a Buying Commission Procedure8. (Tti
Procedure) which applies to all Category Managers. That Buying Commission
is another term for the rebates that are collected by the 6 tegory Managers
from suppliers. Further, in terms of the procedure:
'Buying Commission is the amount that is negotiated
suppliers as commission for utilizatio o Engen's network. Buying commission
is negotiated at the time of contra , creation and changes annually, depending
on current negotiations. Catego are responsible for negotiating
buying commission9.'
[7] First Respondent argued that rebate negotiations must be concluded when the
contract is created. A Ca egory Manager cannot effectively perform his or her
nt being concluded before the supplier renders
its services. Argued f t the Procedure is to reduce the risk of liabilities
being under or overstated10. It is the Category Manager's responsibility to post
buyi1<1u--'G01 mission transactions in the Engen SAP system. A rebate analyst
wi Category Manager and will check buying commission accounts
en entered into the SAP system) on a monthly basis.
[8] The First Respondent argued that, in terms of clause 2.9 of the Procedure, the
Category Manager and the rebate analyst must follow up on any outstanding
payments 11 . That the Applicant had been warned previously that he had to
submit rebates timeously. That on 9 April 2021, the Applicant's Manager issued
a warning to him for submitting his rebates timeously12, and the Applicant must
have known of the seriousness of not doing so. First Respondent argued that
7 Applicant's CCMA bundle, page 37, Category Management , bullet 5.
8 Applicant's CCMA Bundle.

8 Applicant's CCMA Bundle.
9 Applicant 's CCMA, bundle, page 8 Introduction .
10 Applicant's CCMA bundle, page 8 Purpose.
11 Applicant's CCMA bundle , page 12 (page 5 of policy).
12 Respondent's CCMA bundle, page 43.

5
the Applicant was responsible for negotiating and concluding the trade
agreements with British and American Tobacco (BAT), a supplier of tobacco
products. Argued further that the 2020 trade agreement with BATSA is relevant
in this dispute. The trade agreement for 2020 should have been fin
December 2019. The Applicant failed to do so. This led to a loss
84.56 million13.
[9] The charges meted against the Applicant related to an alle
[1 O]
involving failure to finalize and collect supplier reb ements and
trade agreements, resulting in an alleged significant s to the First
Respondent. The Applicant argues and challenges the ft. • tIon Award that
the same is flawed as it properly failed to consider his evidence and job
description limitations on the following
9.1. That Applicant tried to get th ents signed but lacked the
authority to sign without the manager's approval14. Secondly, that the
Rule that was br ached was vague and did not explicitly require him to
sign agree ehalf of the First Respondent 15. Thirdly, Applicant's
job descrip include responsibility for rebate collection, only
negotiation16. , that the First Respondent's alleged financial
losses were potential, not actual, with some amounts still recoverable 17.
Fifthly, the Employer did not prove gross negligence, as the Applicant
forwarded contracts to his line manager, acting reasonably18.
licant
three charges meted against the Applicant, wherein a notice of a
disciplinary enquiry was issued on 9 December 2022, were as follows:
13 Transcript DM551336 - 26/7/23: Dutton-page 8, Respondent's CCMA bundle, page 1 O.
14 As per Founding Affidavit Page 7-15 of Pleadings Bundle.
15 As per Founding Affidavit Page 7-15 of Pleadings Bundle.
16 As per Founding Affidavit Page 7-15 of Pleadings Bundle.
17 As per Founding Affidavit Page 7 -15 of Pleadings Bundle.
18 As per Founding Affidavit Page 7-15 of Pleadings Bundle.

6
'Charge 1-BATSA 2022 Trade Agreement
Alleged gross misconduct in that you have acted in gross breach of the position
of trust and confidence, which your employment within Engen Petroleum
Limited as Category Manager, is a consequence of the following:
1. That contrary to company policy and procedure and or aeceptable
company practice, you failed to perform your duties .:..:to~s=-==--=;,=.-=
finalize a signed agreement with BATSA (British and American Tobac
South Africa) for the rebate period relating to FINANCIAL Year 2020.
Your failure resulted in loss of income of approxI tely R2 348 847.56
for the company including 50% as
potentially straining company and d ~----"'"'
bringing the company's name into
gross negligence.
al agreement,
relations and
Ms Dutton for the First Respondent testified that on 15 July 2020, Engen
received an email from the suppliers with two documents of sales figures and
the second agreemenr..w·~.aware for a sales agreement. That the Applicant
was aware of the e a·I b to respond or to escalate the emails, was
lose money. Applicant was aware of the
conclusion of the payment$, aware of his accountability and his role in
collecti a d allocating the payments.
that evidence showed a sharing agreement with BA TSA and
._,.....:.:._ ace and being signed during the relevant period. The First
Respondent's witness admitted that there was a sharing agreement in place
with BATSA and the BATSA 2020 trade agreement was in the process of being
igned and eventually signed in 2023 19.
Charge 2 -Collection of Rebates
That contrary to company policy and procedure and /or acceptable company
practices, you failed to perform your duties in collecting rebates timeously
across multiple suppliers over the period in 2019-2022 . Your failure has
resulted in approximately R15 000 000.00 in supplier rebates not being
19 Record DM551336., Page 10 Line 12 and Record DM551389 Page 32-33

7
collected timeously , with monies still not paid up to date. Your conduct amounts
to gross negligence .'
Ms Dutton's evidence was to the effect that it was clear that from 2019 to 2022,
as per the potential loss of rebate income spreadsheet submitted , the amount
in yellow reflected what the rebate would have been. Where there was zero ,
there was no income collected at all. Placed on record that the money collected
from 2019 was R1 million, to 2021 and nothing in 2022, and the Applicant was
aware of the rule because there is a certain amount that is col.,,..I •~ .-..
out in the contract. The Rebate Specialists are there o ass· t with the
accounting function and cannot assist in any way if the rebat
in the system
The Applicant argued that the job descripti
include rebate collection responsibilities , gotiation of the rebate
percentages . Thus, it was never the App Icant's • description to collect
rebates , but only to negotiate the rebate peTcentages. Evidence further
indicated that some rebate monies were collected but not properly allocated ,
and that the loss was pot • I rather than actual.
That contrary to company p icy and procedure and /or acceptable company
u failed to perform your duties in ensuring that Trade Agreements
liers allocated to ourself
b
otential financial losses.'
Ms Dutton's evidence was to the effect that in October 2022, 1 O months into
_" __ . ..,,e year, there were 45% of contracts that were not in place, as many contracts
were not in place not done, as rebates were not done and they were not on the
system , which made it difficult for Engen to collect rebates, without a contract,
Engen had no leg to stand on. Further, the same put Engen 's reputation at risk
and makes it difficult to conclude contracts moving forward because of the way
relationship has been conducted over the years .
The Applicant argued that the charge meted against them accused Applicant
of failing to ensure trade agreements were signed and updated , constituting

of failing to ensure trade agreements were signed and updated , constituting
gross negligence . The Applicant argued further that the testimony revealed that

8
contract signing involved multiple levels, including superiors who had to
authorize or sign agreements and that the Applicant did not have signing
powers.
[11] A synopsis of the Applicant's key arguments was thus that they lacked the
authority to unilaterally sign contracts or fully manage rebate collection, with
superiors and other departments playing significant roles. The diffusion of
responsibility is crucial in contesting the charges of gross negligence. That the
distinction made between potential and actual financial loss t the company
regarding rebates highlights that the alleged misconduct may ot
the First Respondent direct harm, weakening grounds for dismis
[12] The First Respondent's argument in relation to
---which led to the alleged R2 348 84.56 milli
wrote to him on 19 May 2020, requiring urge
Buying (JPB) and asking for updates on the BA
Applicant's Manager
k on the Joint Panel
that the Applicant knew and was aware that he was responsible for ensuring
that payments were made b~ A. That on 19 May 2020, Ms Simone Kearns
wrote to the Applicant to i form i that it was difficult to allocate BATSA 01
and Q2 2018 payments fro bank statement which did not show which
account it belonged to. The App ieant responded by informing Ms Kearns that
the 01 and Qi invoice was still due for payment; thus, this shows that the
Applicant derstoo that he was liaison between Engen and the supplier and
t Administration 's job. Further that it also demonstrated
the Applicant's ro e in the rebate process in that he had to explain what the
payments were for and where they had to be allocated, and to attend to the
same, the Applicant would have to monitor the payments carefully.
The First Respondent argued that the Applicant's role in the rebate process is
rther confirmed by the Applicant's email of 2 July 2020 to Ms Kearns asking
her to allocate the payments as per BATSA's payment schedule. That on 15
July 2020, some seven months after the start of the trading year, Riaan du

July 2020, some seven months after the start of the trading year, Riaan du
Preez, the BAT Senior Account Manager dealing with Engen, sent an email to
the Applicant. The email read as follows :

9
'Hi Cyril
Attached the numbers for Engen from a BATSA perspective. I've concluded
opposition performance as well for your reference. Also, I attach the proposed
agreement for 2020, however time is running out and with no agreement in
place, Engen will lose out on the potential earnings.'
Argued that BA TSA had made it clear that the absence of a si , ne
placed the collection of rebates at risk20. The Applicant
action or escalate the signing of the agreement
21
• No agreeme was
concluded with BATSA.
[14] The First Respondent argued that, as a re
rebates for the 2020 trading year, leading to a
refused to pay any
348 84 7 .56 in unpaid
rebates from Engen. That this further i P.-t1rea11P-rs who demanded their
share of the rebates from Engen. Th not only led to financial loss
for Engen but also seriously damaged
BATSA and other affected dealers.
utation and relationships with
him again on 23
BATSA JBP payment
020, asking him for confirmation of the 2020
c:l tes22. The First Respondent argued that this again
showed that the Applicant should have been aware that he was responsible for
at payments were made by BATSA. Further, an investigation by
ed that the Applicant had been grossly negligent in the
perfor of his duties. That Applicant had failed to collect the rebates
timeously in the period 2019 to 2022. The full extent of the potential losses,
although calculated at R15 754 042.52 based on the information available, was
loser to R20million23. The First Respondent argued that the Applicant knew
what was required of him as he had previously collected rebates and put the
amounts into the SAP system without any issues24. Further, this had to be done
timeously as failure of same compromised Engen's relationship with the
20 Transcript DM551339-19 October 2023 : Dutton cross - page 12.
21 Transcript OM 551336-26/7/23: Dutton - page 10.
22 Transcript DM551336-26/7/23: Dutton - page11, Respondent's CCMA bundle, page 47.

22 Transcript DM551336-26/7/23: Dutton - page11, Respondent's CCMA bundle, page 47.
23 Respondent's CCMA bundle, page 51 ; Transcript DM551337-26/7/23;Dutton -pages 4 to 7.
24 Transcript DM551337-26/7/23: Dutton - page 5.

10
supplier. Either the supplier felt Engen did not care, or when required to pay
late, they would be required to make a much larger payment later which could
place financial strain on the supplier. Furthermore, without a contract there
would be no legal responsibility on the supplier to pay Engen.
[16] The First Respondent argued further that Rebate Specialists we e ther:
assist with the accounting function, a checking function. Argued further that i
is also apparent from the Buying Commission Procedure at the Applicant, in
conjunction with the Rebate Specialist would follow u
payments25. That the Applicant was responsible form aging t:tie relationship
with the supplier and placing the invoices on the SAP systef'.1J:Q ensure that the
Category Assistant did so. The Rebate Specialists cannot check something
which has not been placed in the S
Respondent, the Applicant had to use e Age A lysis report to check amounts
owed by suppliers and contact them to'1'ritlnw~ p on outstanding amounts27,
same which was part of the Applicant's end to end function.
[17] The First Respondent fu er argued that the investigation also revealed that
the Applicant had ·1 d to c elude trade agreements with at least 45% of his
and contracts had to be concluded by at least
December of the preceding year28. Engen had not been aware of more
nd First Respondent argued that same was because the Applicant
invoices onto the system nor collected rebates. Argued further
t ct underpins the entire relationship with the supplier as the same
is how Engen derives income from a supplier. That same was the Applicant's
job to manage this job and did not do so for 4 years.
[18] The first issue to be decided by the Third Respondent is whether the Applicant
has misconstrued the allegations meted against him as per the First
25 Applicant's CCMA bundle - page 11 , paragraph 2.9; Transcript DM551338-19 October 2023: Dutton
cross - page 21 .

cross - page 21 .
26 Transcript DM551337-26/7/23: Dutton - pages 4 and 8; Transcript OM 551338-19 October 2023;
Dutton cross - page 31 and 36 and 37.
27 Applicant's CCMA bundle, page 9; Transcript DM551338-19 October 2023: Dutton cross page 15.
28 Transcript DM551337 - 26/7/23: Dutton - page 10.

11
Respondent. Latter submitting that the essence of Charge 1 is that the
Applicant did not perform his duties in securing or finalizing a signed agreement
with BATSA. The Applicant's stance being that he was found guilty of a breach
of duties which he did not perform, specifically that he did not have the authority
to sign agreements without his manager's approval. The First Respondent
further submitting a key point Applicant seems to not understand is that the
Applicant is responsible for the end-to-end management of th~ ntract.
Further, to develop mitigation plans to ensure that rebates are collected, no t
all to sign the contracts. However, the Applicant was required to ensure that the
contracts were signed and operationalized. The trade agr:
operationalized unless they are signed and placed i to the
Respondent argues to operationalize means to put into
a breach of a rule. A rule inherent in the Applicant's role ana further contained
in the Applicant's job description.
[19] The second issue relates to charge 2, Applicant's stance is that he
was not to collect rebates as Rebate Sp ·a· ts were to attend to the same.
The First Respondent argued that the Applicant had been collecting rebates for
years, it was the Appli fit's job, latter knew about the same and did not collect
rebates timeously :The Bu hg Commission Procedure, which was collected by
the Applicant himse Dutton's evidence, proved that the Applicant
knew that he was responsit:>le for collecting rebates. Thus ,question is whether
the rule is vague as per the Applicant's stance, which the Third Respondent
re·e ed. ll First Respondent argues that the Third Respondent was alive to
ty to collect rebates, apparent from the Buying Commission
flat the Applicant must check amounts owed by the suppliers,
contact them and follow up on collections. The Applicant was further not at all
charged with actual losses, only potential losses, as supplier rebates were not

charged with actual losses, only potential losses, as supplier rebates were not
collected timeously, with monies still not up to date. The Applicant's failure to
conclude contracts and enter invoices on the SAP system created chaos, the
First Respondent arguing that same made it difficult to reconcile the potential
loss. Thus, the Third Respondent's finding is correct that the Applicant's
submission of recovery of some R9 million rand being recovered, there was still
a substantial loss.

12
[20] The Third bone of contention by the Applicant is to the effect that the parole
evidence rule applies. Thus, the Third Respondent could not consider any other
factors beyond the contract of employment , unless the other document relied
upon was incorporated as part of the contract of employment. The First
Respondent argued that this is the Applicant's most bizarre submission , as the
Applicant submitted no contract of employment but a Letter of Emploi ent.
The latter's responsibilities are apparent from the job description for / tegory
Manager and the Buying Commission Procedure.
[21] The Applicant's stance is that gross negligence was no
forwarded the contracts to his Managers. The First Respon t's stance being
that the standard set by Engen for a Category Mana ' job is o ensure that
there are contracts in place where rebate terms have bee
payable by suppliers. Category Managers must also ensure that suppliers
deliver in terms of the contract, and t ~ Y rebates over to Engen. Thus, to
review whether the Third Respon correctly that each charge
individually amount to gross ne ligence. l'St Respondent concedes to the
jurisprudence in relation t gligence, as enumerated in the Applicant 's
Heads of Argument.
The Law
[22] Arbitration reviewable in terms of section 145 of the LRA. In terms
of Section
'(1) Any party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award-
(2) A defect referred to in subsection (1 ), means-
(i) committed misconduct in relation to the duties of the
commissioner as an arbitrator;

13
(ii) committed a gross irregularity in the conduct of the arbitration
proceedings; or
(iii) exceed the commissioner's powers; or
(b) that an award has been improperly obtained.'
[23] The Applicant placed on record that for them to succeed herein, the
to establish one of the defects above. Thus, their bone of cont ntio
Commissioner herein committed misconduct in relation to I\\
arbitrator by not considering all the evidence, did not take all the e idence into
consideration , or the arbitrator made a decision a reasonable decision maker
could not have reached.
[24] The Sidumo Test 29, as per the Applicant. The t ing whether to review
and set aside an arbitration award is well established . It is the reasonableness
test as postulated by the Constitutional Court30:
'The better approac • 145 is now suffused by the constitutional
andard is the one explained in Bato Star.
Is the decision reached by commissioner one that a reasonable decision­
maker could not reach? Applying it will give effect not only to the constitutional
right ur practices, but also to the right to administrative action which
is la ble and procedurally fair.'
[25] The Applicants p oceeded in their Heads of Arguments to unpack Sidumo,
and I quote the Applicant's Heads as follows :
e case lists or summarizes the essential requirements relating to
reviews regarding termination of employment and the requirement of a
fair reason relating to conduct, and these are summarized below:
25.1.1. If an employer alleges a dereliction of any duty it is
necessary to determine if it was the employee's duty in the
first place.
29 At paras 14 to 27 of the Applicant's Heads of Argument.
30 Sidumo & another v Rustenburg Platinum Mines Ltd & others (Sidumo) (2007) 12 BLLR 1097 (CC)
at para 110 of Navsa AJ's judgment.

14
25.1.2.
25.1.3.
Such an enquiry begins with any contract of employment.
Any duty provided for in such a contract must be
reasonable, and that depends on a number of factors.
25.2. In certain circumstances, a written directive, rule or regulation containing
such a duty would have to be shown.
25.3. If reliance is placed on any specific responsibilities contai
description" it must be produced as evidence prior tot
25.3. Reliance can be placed on other documents, such a
manuals, if they form part of the contract of employment.
25.4. An employee's duties must be faun within e four corners of an
employment contract if that contract pro
contract between the parties and that no other contract or promises
apply.
25.5. It is permissible to
employment contrac
rate additional duties by reference in the
25.6. The parole evidence rule is offended when an attempt is made to adduce
em
e\1l(!eftce of other duties not contained within the written contract of
specially when that contract provides that it is the entire
n the parties.
25.7. When reviewing an award, it is necessary to consider what findings were
made with regard to the reasons provided by the employer for the
termination of the employment.
25.8. It is necessary in every matter to determine what issue was before the
commissioner and if any duties of the employee are relied upon by the
employer.
25.9. As already stated, the employee's duties are determined by the terms
and conditions of the contract of employment between such parties.

15
25.1 O. The test for determining whether arbitration awards are reasonable or
unreasonable is whether the commissioner's decision or finding "is one
that a reasonable decision-maker could not reach'131 •
[26] The proper application of the test on review is summarized by the Supreme
Court of Appeal in the Herholdt judgment32. For an award to be reviewable, the
arbitrator must have misconceived the nature of the inquiry or
unreasonable result. Most importantly, a result will only be u reasonable if it is
one that a reasonable arbitrator could not reach on all the
before the arbitrator.
[27] The Labour Appeal Court has further confirm
in the arbitration proceedings is alleged, the
result was unreasonable. If the decision arrived
re a gross irregularity
ends to whether the
...,~,.'i!i'mitrator is one that falls
within a band of decisions to which a reasonable decision-maker could come
on the available material, the award is not reviewable33. In short: A
reviewing court must a in w ether the arbitrator considered the principal
issue before him/he presented at the hearing and came to
he review Court is not required to take into
account every facto • dividua ly, consider how the arbitrator treated and dealt
with each of those factors-ena then determine whether a failure by the arbitrator
ith it is sufficient to set the award aside. This piecemeal approach of
he award is improper, as the reviewing Court must consider the
f th evidence and then decide whether the decision made by the
arbitrato • one that a reasonable decisionmaker could make. Held further that
a reviewing court must ascertain whether the commissioner considered the
principal issue before him/her, evaluated the facts presented at the hearing and
came to a reasonable conclusion".
[28] A CCMA (or bargaining council) arbitrator must conduct an arbitration in a
manner that he or she considers appropriate in order to deal with the dispute
fairly and quickly, but must deal with the substantial merits of the dispute with

fairly and quickly, but must deal with the substantial merits of the dispute with
31 At para 11 0 of the Sidumo case .
32 Herholdt v Ned bank Ltd (Herholdt) (2013] 11 BLLR 107 4 (SCA).
33 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others (Gold Fields)
[2014 ] 1 BLLR 20 (LAC).

16
the minimum of legal formalities34. The Labour Appeal Court has held that a
court must be careful not to parse an award by a commissioner of the CCMA in
the same fashion one would an elegant judgment of the Supreme Court of
Appeal or the Constitutional Court. Awards must be read for what they are,
awards made by arbitrators, who are not judges. "When all the evidence is
taken into account, when there is no irregularity of a material kind and that
evidence was ignored or improperly rejected, or where
opportunity for an examination of all aspects of the case, the there is no gross
irregularity ... '135. It is trite that the test applicable in arb1t tions co ducted under
the auspices of the CCMA is the balances of probabilities . ccording to the
test: where the evidence permits more than one reasonable inference the
selected inference must, by the balan ng of probabilities, be the more natural
and plausible conclusion of the possib
and the probability of what they say s
s. The credibility of witnesses
t be regarded as separate
enquiries to be considered piecemeal. They are part of a single investigation
into the acceptability olCetherwise of the employer version37.
[29] In Beste/ v Astral
scope possessed
td and Others38 the LRA considered the limited
tsour Court to review an arbitration award and
accepted that an arbitrator's finding will be unreasonable if the finding is
is
ed by any evidence, if it is based on speculation by the arbitrator, if it
d from the evidence, if it is supported by evidence that is
asonable to justify the decision or if it was made in ignorance of
In Stocks Civil Engineering (Pty) Ltd v Rip NO and another39, the court held
t at: "The Labour Court has no inherent common law powers of review. Its
powers are to be found within the confines of its enabling act. In the case of
reviews of awards of commissioners of the CCMA, it is section 145 of the LRA,
34 Section 138 ( 1) of the LRA.

34 Section 138 ( 1) of the LRA.
35 Ellerine Holdings Ltd v Commission for Conciliation, Mediation & Arbitration & others (2008) 29 ILJ
2899 (LAC), at 2906 D to F.
36 Potgietersrus Platinum Ltd v Commission for Conciliation, Mediation & Arbitration & others ( 1999)
20 ILJ 2679 (LC).
37 Marapula & others v Consteen (Pty) Ltd (1999) 20 ILJ 1837 (LC) at para 33.
38 [2011] 2 BLLR 129 (LAC) at para 18.
39 [2002] 3 BLLR 189 (LAC) at para 30.

17
in the review of functions , acts and omissions under the LRA section 158 (1 )(g)
of that Act, and in the case of private arbitrations , section 33(1) of the Arbitration
Act" .
[31] The role of the reviewing Court is limited to deciding issues that are raised in
the applicant's founding (and supplementary) affidavit. This was confirmed by
the Constitutional Court in Commercial Workers Union of SA v Tao ¥'ing Metal
Industries & others4° where it was held that:
' ... the role of the reviewing court is limited to deciding issues that are raised in
the review proceedings .It may not on its own
raised by the party who seeks to review an arbitral a
hich were not
said for the submission by the workers that it is not for he,reviewing court to
tell a litigant what it should complain about. In particular , the LRA specifies the
grounds upon which arbitral awar,
review an arbitral award is bou
eviewed .A party who seeks to
ounds contained in the review
application .A litigant may not o se a new ground of review. To
permit a party to do so may very well undermine the objective of the LRA to
have labour disputes resolved as speedily as possible.'
Gross Negligence
[32] Applicant argued in th • Heads of Arguments that in Mukheiber v Raath and
Another41, the Supreme Court of Appeal (SCA) restated the test for negligence
Ito
w, the standard of conduct expected from all members of society is
tha of the bonus paterfamilias , ie the reasonable man or woman in the position
of the defendant. An act which falls short of this standard and which causes
damage unlawfully is described as negligent, ie it is tainted with culpa.'
The Applicant argued further that for the purposes of liability culpa arises if -
(a) a reasonable person in the position of the defendant -
40 (2008) 29 ILJ 2461 (CC).
41 1999 (3) SA 1065 (SCA) at para 31 .

18
(i) would have foreseen harm of the general kind that
actually occurred;
(ii) would have foreseen the general kind of causal
sequence by which that harm occurred ;
(iii) would have taken steps to guard against it, a
(b) the defendant failed to take those steps.
'Negligence in short, is the failure to comply with the sta tlard of care that would
be exercised in the circumstances by a reas nable
employment context, the employee's conduct is co red wit he standard of
skill and care that would have been expected of a reaso aal employee in the
same circumstances. The reasonable employee with whom the employee is
compared must have experience a k1 tcompa rable with that of an employee
charged. In labour law, neglige plied 'in vacuo' or against the
general standard of a 'reasonable p it is applied in the context of the
particular workplace or industry, consi enng the performance standards and
procedures set by the employer. Negligence is usually established with
reference to work e rules or procedures applicable in the workplace.'42
it thus follows that the workplace rules and
the Applicant's job description. The question is
acted in accordance with his Job description or not, and
n1~~'....,""'=~--1'~gory Manager with the same experience as the Applicant
has acted in the same way or not. The Applicants argued further that in relation
[33] The
procedures
thus wheth
egligence, there would have to distinguish negligence from gross
llge e. Thus cited NUMSA obo Selepo v ORAWAB Investments (Pty) Ltd
Bergview Engen One-Stop 5 BALR 481 (MIBC), the Commissioner
distinguished between ordinary and gross negligence as follows:
'The carelessness of mere failure which constitutes ordinary negligence
change into gross negligence due to an indifference to , and blatant violation
42 National Union of Metal Workers of SA & another v Commissioner for Conciliation, Mediation &
Arbitration & others (2023) 44 ILJ 1575 (LC) at para 32.

19
of, workplace duty. Gross negligence can be described as a conscious and
voluntary disregard of the need to use reasonable care.'
[34] The Applicant's stance was thus that, in terms of the job description of the
Category Management, which the Applicant were, they are supposed to:
Manage end-to-end contract management life cycle and develop
plans to ensure delivery and performance of suppliers as per the ag eed
43. Thus, as stated and argued by the Applicant, the above is very vague as ·t
does not state that it is the Applicant's responsibility for the signing of the
contracts. The Applicant did not have the authority to sign the contracts with the
suppliers, only upper management had the authority to sign those contracts.
Conceded that the Applicant negotiated the ut when the contracts
were drawn up, only upper management c Id sign n behalf of the First
Respondent. The Applicant argued further that •
buying commission procedure states that the Category Managers (Buyers) are
responsible for negotiating the..b ing commission44 , nowhere does it state that
the Applicant -Category responsible for the collection of the buying
commission. Further, the on e here the category manager are mentioned
that, use the age analysis report to check
[35] The Applic urther that it thus follows that, if the age analysis report
ory Manager - Applicant can thus not check the amount
owed by the suppliers. Thus, if one step in the chain is not done, the Category
nager could not do his part. The Applicants argued and submitted that it thus
at, before charging the Category Manager, everyone in the chain
s ould have been charged. Applicants argued that, thus, when looking at the
re sonable person in the position of the Applicant, one must look at the
reasonable Category Manager. The question would thus be as to whether the
Category Manager acted any differently than another Category Manager in his
position . To arrive at an answer, the Applicant thus argued that we would have

position . To arrive at an answer, the Applicant thus argued that we would have
to look at his job description and the buying commission procedure.
43 Page 37 of the Applicant's Bundle.
44 Page 8 of the Applicant's Bundle.
45 Page 12 of the Applicant's Bundle.

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[36] The Applicant proceeded to place on record the case of A Mauchie (Pty) Ltd tla
Predcision Tools v NUMSA & Others46, it was mentioned that job descriptions
are not cast in stone and moulded in steel, and that employees cannot hold an
expectation that a job description, once issued, can never be changed. Only
when the job description changes so dramatically that an employee undertakes
an entirely different job than then there is a right to refuse to do the job in the
required manner. The Applicants argued that if the First Respo dent wanted
the Applicant to sign the contracts on its behalf, it should ave iven him
authority to do so. Accordingly as well, if the Applicant was su po ed to-collect
the rebates, which was not the Applicant's responsibility, they hould have
given the Applicant authority also, coupled with the requisite training for the
collection. The Applicant's stance thus being
entirely different job, which he did not receive
do.
would have been an
[37] In concluding, the Applicant thus submitted that the negligence was not at all
on the part of the Applicant irtw on the First Respondent in not training the
latter in respect of collectio l.ilf a sand or secondly, giving the Applicant
the authority to sign contract their behalf. The Retail Rebate Analyst are
the ones who are to maintain the rebate accounts and not the Applicant; thus,
Retail Rebat ts are the ones who are to be held accountable and not
the Applic t. er's prayer thus being that the award by the Third
Respondent ~,..,.,_._. .. ...,.,ordingly be set aside and the Applicant be reinstated in
the position that he held.
Th co mon cause is that Applicant was not at all appointed with a contract of
ployment in place, thus no offer nor acceptance. He was appointed with a
o~-page letter of position details with his key accountabilities , enumerated
thereon. Much has been said in relation to these key responsibilities,
particularly by the First Respondent. Thus, this court need not over burden this

particularly by the First Respondent. Thus, this court need not over burden this
judgment. Another comm o n cause is further that we have to also look into the
Engen Buying Power Procedure. As a point of departure it reads: Buying
commission is negotiated at the time of contract creation and changed annually,
46 (1995) 16 ILJ 1 (LAC).

21
hence a contract has to be in place for Category Managers to negotiate buying
commission. Paragraph B 2.29 reads: ''The Buyer (Category Managert follows
up with the Retail rebate analyst , follows up on outstanding payments.
C 2. reads : Category Managers (Buyers):1.Use the Age Analysis report to
check amounts owed by suppliers
2.Contact suppliers and follow-p on outstanding amounts'. (Own emphasis)
[38] Evidenced from pages 19 to 23 of the Pleading Bundle pa 47,
[39]
the Third Respondent complied with her statutory obligations the
trite test applicable in arbitrations , on a balance of probabilities an
inference that is more natural or plausible of th possible inferences. The
issue/s do not relate to the Applicant not sig t ts as per his defence
that the same was a job description of upp ent. The Applicant's
contention that if one step of the chain is not d Manager could not
check the amount owed. The Applicant further argued that negligence was not
on his part but on the part of he first Respondent in not training the Applicant
in collecting rebates an r gi I him authority to sign contracts on their
behalf. Third Respondent a corded the material evidence of the
witnesses that was led before and applied the balance of probabilities to
~ her, the Third Respondent correctly identifies the test
applicabl g the fairness of a misconduct dismissal , considers the
respect of the rules, the breach of the rules and the
correctly considers the appropriateness of the
dismissal as a sanction, including a consideration of Applicant's years of
service, consequences of Applicant's gross negligence on Engen's operations ,
_ ropensity to commit the kind of misconduct he was charged with, gross
negligence and lack of remorse. Third Respondent's order that the Applicant's
dismissal by Engen was both procedurally and substantively fair is unassailable
and not reviewable.
[40] Having heard and read all the evidence before me, the review application is
thus dismissed .

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[41] The following order is made:
Order
L. Gura

23
Appearances
For the Applicant: Jose De Wet
Instructed by: Brunsdon Attorneys
For the Respondent: Jose Jorge
Instructed by: Thompson Wilks Incorporated