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[2026] ZALCCT 21
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Pioneer Foods Groceries Proprietary Limited v Commission for Conciliation Mediation and Arbitration and Others (C205/2024) [2026] ZALCCT 21 (10 February 2026)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case
No:
C205/2024
In
the matter between:
PIONEER
FOODS GROCERIES PROPRIETARY LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION
MEDIATION
& ARBITRATION
First
Respondent
MICHAEL
MARAWU
N.O
Second Respondent
AGRICULTURAL FOOD AND
ALLIED DEMOCRATIC
WORKERS
UNION
Third
Respondent
PETER
HOOP
Fourth
Respondent
Heard
:
5 February 2026
Delivered
:
10 February 2026
JUDGMENT
JACOBS AJ
Introduction
[1]
This is an opposed review application.
[2]
The Applicant seeks an order:
2.1
Reviewing and setting aside the arbitration award issued by the
Second Respondent under
CCMA case number WECT6641-24 on 7 May 2024;
2.2
That the award be substituted with a finding that the dismissal of
the Fourth Respondent
was substantively fair;
2.3
Alternatively, that the matter be referred back to the First
Respondent for a hearing
de novo
before a commissioner other
than the Second Respondent;
2.4
Costs; and
2.5
Further and/or alternative relief.
Context
[3]
The Fourth Respondent was employed by the Applicant in 2001. He was
dismissed on 22 March 2023. At the time of his dismissal,
the Forth
Respondent was employed as a production supervisor.
[4]
Ms Eloise Bredenkamp is employed by the Applicant as a process
controller and reported directly to the Fourth Respondent.
[5]
On the night of 11 January 2023, the Fourth Respondent called
together the entire shift, which included Ms Bredenkamp
to issue
work-related instructions.
[6]
During the gathering on 11 January 2023 an incident involving the
Fourth Respondent and Ms Bredenkamp occurred which led
to the
incident being anonymously reported on the “Speak Up”
reporting platform.
[7]
A notice of a pending disciplinary enquiry was issued to the Fourth
Respondent on 27 February 2023, and the enquiry took
place on 2 March
2023.
[8]
The allegation against the Fourth Respondent was framed as:
The
following allegation of Sexual Harassment have been brought against
you:
1.
It is alleged that on the 11
th
of January 2023 at about
6:30 AM you sexually harassed a female subordinate Ms E Bredenkamp
when you grabbed her arm, turned her
around and hit her on her
buttocks without her consent.
2.
Your behaviour is unbecoming of PepsiCo’s values.
[9]
The Applicant has an anti-harassment policy, and this Global
Anti-Harassment Policy emphasises a zero-tolerance policy
concerning
sexual harassment.
[10]
The Fourth Respondent attended a training session on the subject of
sexual harassment on 9 December 2022.
[11]
The chairperson of the disciplinary enquiry recommended dismissal as
the appropriate sanction and the Fourth Respondent
was dismissed on
22 March 2023.
[12]
The Fourth Respondent referred an unfair dismissal dispute to the
CCMA, and an arbitration hearing was concluded on 17 April 2024.
The
arbitration award
[13]
The Second Respondent (the Commissioner) issued an award on 7 May
2024 in which he ruled the dismissal of the Fourth
Respondent to have
been procedurally fair but substantively unfair. He ordered the
reinstatement of the Fourth Respondent without
back-pay and
substituted the disciplinary sanction with a final warning valid for
no longer that 12 months from the date of the
award.
[14]
The Commissioner rejected the Fourth Respondent’s unlikely
version of events and found Ms Bredenkamps version more
probable.
[15]
The Commissioner found mitigation in the fact that Ms Bredenkamp did
not report the incident and that she had communicated
with the Fourth
Respondent via WhatsApp. He also finds that Ms Bredenkamp had poked
the Fourth Respondent, which caused him to
react in the spur of the
moment.
[16]
The Commissioner found that the Fourth Respondent as Production
Supervisor should have known better.
[17]
Ultimately, the Commissioner concludes that the Fourth Respondent’s
conduct constituted sexual harassment, as alleged.
[18]
The Commissioner however finds the sanction of dismissal to be too
severe and rules that a final written warning was
more appropriate.
The
grounds for review
[19]
The Applicant listed three grounds for review. These were stated by
the Applicants
as:
19.1
The unreasonable findings on “provocation” and failure to
conduct a credibility assessment;
19.2
Unreasonable findings on sanction; and
19.3
Failure to consider full conspectus of the evidence.
Evaluation
[20]
The Commissioner had found, correctly in the court’s view, that
Ms Bredenkamp’s
version of the incident, was preferred to the
improbable version offered by the Fourth Respondent.
[21]
The Commissioner then finds that the Fourth Respondent had acted
unintentionally
and spontaneously in reaction to being poked by Ms
Bredenkamp.
[22]
Reference was made to “poking” during the disciplinary
enquiry.
The allegation that the Fourth Respondent was provoked by Ms
Bredenkamp poking him was not put to Ms Bredenkamp during
cross-examination.
It was not put to the other eyewitness to the
incident, Ms Paauwmeester either. There was no evidence before the
Commissioner to
reasonably accept that the Fourth Respondent was thus
provoked.
[23]
It seems unlikely that the act of grabbing someone by the hand,
spinning her
around and slapping her on the buttocks, can be
performed unintentionally. The finding that the Fourth Respondent was
provoked
and acted instinctively was unreasonable.
[24]
The Commissioner found that the Fourth Respondent’s actions
toward Ms
Bredenkamp did constitute sexual harassment, as alleged. He
however rules that dismissal was too severe and substitutes the
employer’s
imposed sanction with a final written warning. He
also denies the Fourth Respondent back-pay of approximately 13 months
salary.
[25]
In
Woolworths
(Pty) Ltd v SACCAWU
,
[1]
the LAC ruled that:
‘
The
task of an arbitrator, as expounded in
Sidumo
is to determine
whether the sanction imposed by the employer is fair and not to
impose a sanction afresh’
.
[26]
A valid and fair reason for the sanction is required. Dismissal
will
not be unfair when a valid reason seriously damages management’s
trust or confidence.
[27]
The Commissioner justifies his interference with the sanction imposed
by the
employer because of the Fourth Respondent’s length of
service and his view that Ms Bredenkamp had provoked the Fourth
Respondent
by poking him.
[28]
The Commissioner’s finding does not acknowledge the fact that
the Applicant
has a very strict anti-harassment policy, that there is
a zero-tolerance attitude toward harassment in the workplace, that
the
incident took place in front of a number of co-workers, that the
incident was regarded as shocking to all concerned and that the
Fourth Respondent persists in his stance that he did nothing wrong.
The power disparity between the Fourth Respondent and Ms Bredenkamp
as his subordinate, was also not considered.
[29]
A
perpetrator of sexual harassment who sees no wrong in his conduct and
refuses to accept responsibility places himself in a position
where
dismissal becomes the only suitable sanction.
[2]
[30]
Sanctioning
is not meant to be a punishment. It is meant to be a sensible
operational response to a situation.
[3]
Enterprises have a right to take sensible operational decisions in
the best interests of the business. The dismissal of a
senior
employee who perpetrates sexual harassment in full view of a number
of subordinates and then fails to see the wrong in his
conduct is an
operationally sound decision.
[31]
In
Schwartz
v Sasol Polymers and Others,
[4]
the LAC confirmed that employees, including managers cannot expect to
remain employed, even when they have long service, when they
behave
badly by breaching rules and seriously damaging or destroying the
relationship of trust and confidence.
[32]
For the reasons outlined above, I am of the view that the decision of
the arbitrator is not one that a reasonable decision-maker
could, on
the material on record, arrive at.
[33]
In the result, the following order is made:
Order
1.
The
arbitration award issued
by the Second Respondent under CCMA
case number WECT6641-24 on 7 May 2024 is reviewed and set aside
.
2. The award is
substituted with the following order:
a.
The
dismissal of Peter Hoop was procedurally and substantively fair.
3.
There
is no order as to costs.
W Jacobs
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
- J Jorge of Thomas Wilks Inc
For the Fourth
Respondent: - Mr M Similane of AFADWU
[1]
(JA38/15)
[2016] ZALAC 84
at
[25]
[2]
Department
of Labour v General Public Service Sectoral Bargaining Council and
Others
(PA3/08)
[2010] ZALAC 1
; (2010) 31 ILJ 1313 (LAC)
[3]
See
eg
:
PSA
OBO Rae v General Public Services Sectoral Bargaining Council and
Others
(JR755/14) [2017] ZALCJHB 410
[4]
(JA46/2014) [2015] ZALAC 58; (2017) 38 ILJ 915 (LAC)