THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 1928/24
In the matter between:
ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION WORKERS UNION (“AMCU”)
OBO BVUMA, VT Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
ROBERT SKOSANA N.O. Second Respondent
MARLEY ROOFING (PTY) LTD Third Respondent
JR 2006/24
In the matter between:
MARLEY ROOFING (PTY) LTD Applicant
and
THE ASSOCIATION OF MINEWORKERS AND
CONSTRUCTION UNION (“AMCU”) OBO
VERNON TLANI BVUMA First Respondent
ROBERT SKOSANA N.O. Second Respondent
COMMISSION FOR CONCILATION,
MEDIATION AND ARBITRATION Third Respondent
(1) Reportable: Yes/NO
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Heard: 22nd January 2026
Delivered: 18th February 2026
JUDGMENT
MUNSAMY, AJ
Introduction
[1] The respective parties have both instituted review applications against the
same arbitration award of the Second Respondent. The applications have
been consolidated to be heard together by order of the above Honourable
Court on the 6
th of June 2025, which stated as follows:
‘1. The abovementioned matters under case number JR 1928/24 and JR
2006/24 are to be set-down simultaneously on a date to be allocated
by the Registrar.’
[2] The parties, for ease of reference, will be referred to as AMCU, Marley and
the employee, Mr Bvuma. AMCU seeks that the arbitration award be reviewed
and set aside insofar as the Second Respondent, after finding in its favour
that the dismissal was substantively unfair, ordered compensation as opposed
to retrospective reinstatement. Marley seeks that the arbitration award, insofar
as the Second Respondent found that the dismissal of AMCU’s member was
substantively unfair, be reviewed and set aside and replaced with a finding
that the dismissal was fair, alternatively, that the matter be remitted to the
First Respondent.
[3] No serious argument was pursued by either party for a remittal of the matter.
The record of proceedings reflects that the matter was fully ventilated before
the Second Respondent, and this Court is well placed to deal with the matter
in its entirety based on the record.
3
[4] Preliminary issues were raised by AMCU regarding Marley’s alleged non-
compliance with the rules of the above Honourable Court with regard to the
filing and prosecution of the review applications. I advised both Counsel that I
did not believe that these issues prevented the matter from being argued or
had to be determined first prior to the matter proceeding and I would take
same into consideration regarding the issue of costs. Both Counsel agreed
that this was appropriate.
[5] The employee referred an unfair dismissal dispute to the First Respondent.
The Second Respondent, under the auspices of the First Respondent, found
that the dismissal was procedurally fair but substantively unfair. The Second
Respondent ordered Marley to pay eight (8) months salary to the employee as
compensation for being unfairly dismissed.
[6] The employee’s unfair dismissal referral stemmed from him being charged
and dismissed for:
‘(i) Marketing services at the company without the approval of
management that in turn was dishonest conduct by the employee.’
[7] The alleged marketing of services was for canvassing and recruiting members
for AMCU without following Marley’s necessary procedures. That appears to
be, if one wishes to market services, that management must approve the said
marketing of services.
A summary of the essential evidence before the Second Respondent in relation to
the issue of substantive fairness
Ms Debbie Steenkamp – “Steenkamp”
[8] Steenkamp stated that she is the human resources manager – Marley
Roofing (Pty) Ltd. She framed the dispute as one of dishonesty not union
membership. She confirmed that the dismissal was not for union membership
but for “marketing services without approval” . She accepted that employees
are entitled to join a union of their choice. Steenkamp stated that procedural
fairness was not in dispute and that a disciplinary hearing had been held.
4
Steenkamp asserted the notion that management’s approval was required
before any “marketing” activity occurred on company premises.
[9] Steenkamps’ evidence did not point to a written policy prohibiting union
recruitment. She accepted that joining a union itself is not misconduct. She
relied heavily on conclusions drawn rather than firsthand knowledge. Her
evidence failed to establish a clear rule breached by the employee beyond a
broad allegation of “marketing” AMCU without following internal procedures.
[10] The contention being that when the employee was questioned about
recruiting for AMCU he denied doing so. She alleged that this amounted to a
“marketing of services” which he was dishonest about when questioned
regarding his involvement.
Ms Ronalda Dominique Pillay – “Pillay”
[11] Pillay stated that she is the human resources director – Marley Roofing (Pty)
Ltd. She testified about meetings with the employee and his alleged
dishonesty. HR became aware of possible AMCU recruitment after receiving
an email from AMCU. She met with the employee and initially accepted his
explanation that he was not recruiting members. She later concluded he had
been dishonest after lists of AMCU members emerged during CCMA
proceedings (the organizational rights referral by AMCU). At those
proceedings the AMCU official advised that he had received the union
membership forms from the employee.
[12] She accepted that HR did not object to employees joining AMCU. She
accepted that deductions and verification of subscriptions were still
unresolved at the time. However, she contended that one cannot say that a
person is just handed a form to sign the employee had to “market” the
services of AMCU.
[13] She could not clearly explain how recruitment differed from employees
voluntarily joining. She accepted that no clear process existed for how unions
should recruit. She relied on what other employees allegedly said (hearsay).
Her evidence significantly watered down the allegation of dishonesty by
5
conceding that Union membership is lawful, no clear instruction or rule was
communicated to the employee.
Mr Mohammad Ridhwaan Singh – “Singh”
[14] Singh testified that he is the plant manager – Olifantsfontein. He personally
questioned the employee about whether he was recruiting employees for
AMCU and the employee denied involvement in recruiting.
[15] Singh stated that the employee should have involved management and
followed procedures. Further, that union activities should not occur during
company time.
[16] He was the line manager to whom the employee reported. He confirmed that
the employee approached him regarding employees wanting to join AMCU.
He accepted that no recruitment arrangements to his knowledge were made
on company premises. He distanced himself from the proceedings by stating
that he was not the person who charged or dismissed the employee. He
described the employee as a good employee who was always at work.
[17] Singh confirmed that employees had already joined AMCU before HR
became involved. He could not identify any specific instruction given to the
employee that was breached. He accepted that union activities were not
clearly regulated by policy.
Mr Vernon Tiani Bvuma – “employee”
[18] The employee stated that he was employed in 2019 as an Artisan Assistant.
He denied recruiting employees for AMCU. He explained that employees
collectively decided to join AMCU. He confirmed he merely assisted by
handing over forms from an organiser. He later testified that he never
threatened anyone and never acted as a shop steward. There was no rule
which required him to inform management of which union employees chose to
join. He denied dishonesty and explained he answered questions honestly
based on his understanding, which was, whether or not he was recruiting for
AMCU during company time.
6
[19] Marley’s representative put it to the employee that he was offered
reinstatement and declined. The employee disputed this and contended that it
was not an offer of reinstatement as he would be employed by Marley but on
different terms and conditions of employment.
Analaysis on the substantive fairness of the dismissal
[20] The Second Respondents decision amounts to that of a reasonable decision
maker in circumstances where:
20.1 Marley’s witnesses could not point to a clear rule breached. The
witnesses relied on assumptions and hindsight. The witnesses, other
than accusing the employee of changing his version regarding handing
over forms versus actively recruiting did not establish much to convince
a presiding officer that the employee was dishonest.
20.2 In fact, Pillay reads terribly on the record and one can understand the
employee’s hesitance to commit to a version when questioned about
joining/recruiting for a new union. He may have been evasive but this
equally begs the question of whether he was required to disclose his
union activities which the employer Marley could not prove affected
their operations in any manner or form. Her evidence demonstrated
uncertainty and retrospective justification.
20.3 For Steenkamp and Pillay to escalate this to the “marketing” of services
is quite astonishing and appears a somewhat desperate attempt to find
fault with the employee.
20.4 Singh’s evidence strongly favoured the employee in that it can be
inferred from his evidence that no instruction was disobeyed, no active
recruitment occurred on company premises that he could testify too
either authorised or prohibited. There was no operational harm proven.
His evidence contradicted the allegation of dishonesty insofar as
“marketing” was concerned.
7
20.5 Employees enjoy a freedom of association and cannot be required,
even if a policy were in place, to answer to an employer regarding
recruitment and membership. T he very nature of the animal is such
that it is done behind closed doors until enough numbers are recruited
to then use the provisions of the LRA to persuade an employer to
recognize a union and get access to assist its members in the
workplace.
20.6 The employee appears consistent throughout his testimony. He
explained clearly the distinction between recruitment by a union and
workers independently choosing union membership. His evidence
established that he did not commit misconduct. He explained that there
was no dishonest intent. He was entitled to his lawful exercise of
freedom of association. He provided a reasonable and probable
version that was accepted by the Second Respondent.
[21] The evidence fully supports the finding of substantive unfairness and
underpins AMCU’s case that dismissal was disproportionate and unjustified.
One cannot fault the findings of the Second Respondent in this regard. He
reached a decision that any reasonable decision maker would have reached.
[22] This Court is not required to sit in the seat of the arbitrator and make a finding.
Marley’s case as pleaded in its founding affidavit essentially required this
exercise of the Court. Whilst framed as a reasonableness review it largely
sought to redetermine whether or not the applicant is guilty of misconduct
rather than whether or not the Second Respondent reached a reasonable
decision. I have considered the decision and principles set out by the
Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines
Limited and Others
1. In particular, the Court held that:
‘[110] … s 145 of the LRA was suffused by the then constitutional standard
that the outcome of an administrative decision should be justifiable in
relation to the reasons given for it. The better approach is that s 145 is
1 [2007] ZACC 22; [2007] 12 BLLR 1097 (CC)
8
now suffused by the constitutional standard of reasonableness. That
standard is the one explained by Bato Star : Is the decision reached by
the commissioner one that a reasonable decision maker could not
reach? Applying it will give effect not only to the constitutional right to
fair labour practices, but also to the right to administrative action which
is lawful, reasonable and procedurally fair.’
[23] Against the aforementioned jurisprudence the review application against the
substantive fairness of the dismissal must fail.
Whether the employee should have been compensated or retrospectively
reinstated?
[24] It is evident from the record of proceedings that the 7.11 referral form sought
reinstatement. The employee consistently prayed for an order of
reinstatement.
2
[25] The above is further supported by the arbitration transcription:
‘Commissioner: What is the Applicant looking for? What sort of relief?
Mr Chijokwe: Reinstatement commissioner. [Reinstatement commissioner, it’s
always been our prayer. 3] But obviously the commissioner will decide. From
the union, the same point. The employee is still not working.
Commissioner: Still not working?
Mr Chijokwe: Yah he is [inaudible]. [He needs his employment back].4
Ms Steenkamp: Mr Commissioner, we did offer the employee a reinstatement
at the last meeting at the CCMA.
Commissioner: Yes, when we last met.
Ms Steenkamp: Yes and he declined it.
[Background comments]
2 Para 11, founding affidavit, page 8 of the indexed pleadings.
3 Line 17, page 124 of transcript in 1928/2024.
4 Line 21, page 124 of transcript in 1928/2024.
9
Commissioner: Sorry Mr …….?
Applicant: Yes I declined it because for me, I did not do anything wrong and I
cannot… (intervenes).
Commissioner: Reinstatement – Return to Work.
Applicant: Oh. They never… it was not reinstatement.
Ms Steenkamp: Yes it was. It was. We offered you reinstatement at the new
line that we started this year. We started a new metal sheet line. We
requested for two people. Renaldo offered it to you. We even gave you the
salary and you said to us… you never came back to us and said that you will
accept it. Renaldo even said the line was to start in August, which the line has
started and we have employed people on the line. We did offer you.
Commissioner: You offered re-employment on another line, which was
separate from what he was doing?
Ms Steenkamp: But that is the only position we had. So we offer him a
reinstatement. It was the same company, just on a different line.
Mr Chijokwe: This is not reinstatement.
Ms Steenkamp: It is reinstatement. You are working for Marley.
Mr Chijokwe: Re-employment on (inaudible) line, which was separate from
what he was doing.
Ms Steenkamp: It is a Marley line.
Mr Chijokwe: That is why he said if I go back I’ll be worse off than I was
before if I were to take that offer. And he would be isolated from… his
condition is (inaudible). [And he will be isolated from his colleagues, his
group]
5
Steenkamp: Has he even gone to look at it? The line is at Marley Roofing in
the same factory.
5 lines 15-16, page 126 of transcript in 1928/2024
10
Chijokwe: Let us not debate much but I think it is not proper to say…
(intervenes).
Commissioner: Okay let’s go off record. We will deal with closing arguments.’6
[26] In terms of its closing argument, AMCU submitted:
‘As against this background Commissioner, we submit that the dismissal of
the Applicant was too harsh a decision in the circumstances and we pray that
the dismissal should be overturned and the Applicant be reinstated. ’7 (Own
emphasis)
[27] Adv. Cook on behalf of AMCU argued that:
27.1 There was no evidence that the employee had abandoned his prayer
for reinstatement. The record does not contain any evidence that the
employee did not seek reinstatement because he had moved on and
started a small business venture for himself. The only evidence before
the commissioner was that the employee was made an ‘offer’ of
reinstatement. It is clear that the commissioner neglected to consider
the evidence before him and relied upon evidence that was not before
him.
27.2 Section 193(2) of the LRA establishes reinstatement as the default and
primary remedy for substantively unfair dismissal s. Compensation is
exceptional and may only be awarded if one of the statutory exceptions
in s 193(2)(a) –(d) is established. Therefore, reinstatement must follow
a finding of substantive unfairness unless one of the limited statutory
exceptions is proven.
27.3 It is trite that the phrase not reasonably practicable means more than
inconvenience or discomfort. It requires proof that reinstatement is
beyond feasibility, not merely undesirable or operationally
inconvenient. The onus rests on the employer to lead compelling
6 line 5, page 89 to line 20, page 90 of the transcript
7 Page 84 of the record.
11
evidence demonstrating impracticability. The mere fact that the
employer has filled the post does not render reinstatement
impracticable. An employer cannot rely on circumstances it created
through its own unfair conduct.
27.4 Accordingly, the Second Respondents’ finding that the employee
should be compensated and not reinstated is a finding that no
reasonable decision maker could have reached.
[28] One cannot fault Adv. Cook’s argument in this regard, it is well supported by a
plethora of authorities surrounding reinstatement and submitted in his heads
of argument.
[29] The Constitutional Court in SACAWU v Woolworths (Pty) Ltd
8:
‘[46] Reinstatement must be ordered when a dismissal is found to be
substantively unfair unless one of the exceptions set out in section
193(2) applies, namely that the affected employees do not wish to
continue working for the employer; the employment relationship has
deteriorated to such a degree that continued employment is rendered
intolerable; it is no longer reasonably practicable for the employees to
return to the position that they previously filled; or the dismissal is
found to be procedurally unfair only.
[47] As affirmed by this Court previously, the fact that a significant period
might have lapsed from the date of dismissal to the date of the
judgment is not a bar to reinstatement. An employee whose dismissal
is substantially unfair should not be disadvantaged by the delays of
litigation where they have not unduly delayed in pursuing the litigation.
[48] At this stage, I deem it appropriate to focus particularly on the
exception provided for in section 193(2)(c), namely instances wherein
reinstatement is not “reasonably practicable”.
8 [2018] ZACC 44; [2019] 4 BLLR 323 (CC).
12
[49] The LRA does not define the term “reasonably practicable”. However,
guidance can be sought from various authoritative court decisions.
The Labour Appeal Court in Xstrata held:
“The object of [section] 193(2)(c) of the LRA is to exceptionally
permit the employer relief when it is not practically feasible to
reinstate; for instance, where the job no longer exists, or the
employer is facing liquidation or relocation or the like. The term
‘not reasonably practicable’ in [section] 193(2)(c) does not
equate with term ‘practical’, as the arbitrator assumed. It refers
to the concept of feasibility. Something is not feasible if it is
beyond possibility . The employer must show that the
possibilities of its situation make reinstatement inappropriate.
Reinstatement must be shown not to be reasonably possible in
the sense that it may be potentially futile.”
It is thus evident that the term “not reasonably practicable” means
more than mere inconvenience and requires evidence of a compelling
operational burden.
[50] An employer must lead evidence as to why reinstatement is not
reasonably practicable and the onus is on that employer to
demonstrate to the court that reinstatement is not reasonably
practicable.’ (Own emphasis)
[30] “Not reasonably practicable” must mean more than inconvenient, troublesome
or uncomfortable. 9 In DHL Supply Chain (Pty) Ltd and Others v National
Bargaining Council for the Road Freight Industry and Others10 this Court held:
‘[21] The Labour Relations Act 61 of 1995 prescribes reinstatement unless
it is proven to be intolerable or impracticable. (Section 193(2)(b) and
(c)) The evaluation of this question is clinically objective, having
regard to the balance of fairness between employer and employees
and a decision is the outcome of the exercise of discretion: (Equity
Aviation Services (Pty) Ltd v CCMA (2008) 29 ILJ 2507 (CC) at [48]).
9 Equity Aviation Services (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and
Others (P428/09) [2010] ZALC 221 (21 September 2010) at para 36.
10 [2014] ZALAC 15; [2014] 9 BLLR 860 (LAC).
13
A decision in terms of this Section is therefore, in part, a value
judgment and, in part, a factual finding made upon the evidence
adduced about the unworkability of a resumption. Core equitable
values demand that a worker who is not proven to be guilty of
dishonesty should not forfeit a valuable and scarce employment
opportunity. This is precisely the reason why reinstatement is the
primary and default remedy, unless it is displaced by factors that serve
to outweigh its underlying rationale. Those factors are intolerability or
impracticability and set high thresholds.’ (Own emphasis)
[31] In Booi v Amathole District Municipality11, the Constitutional Court held that:
‘The language, context and purpose of section 193(2)(b) dictate that the bar
of intolerability is a high one. The term “intolerable” implies a level of
unbearability, and must surely require more than the suggestion that the
relationship is difficult, fraught or [Page LRA 8- 114(9)] even sour. This high
threshold gives effect to the purpose of the reinstatement injunction in section
193(2), which is to protect substantively unfairly dismissed employees by
restoring the employment contract and putting them in the position they would
have been in but for the unfair dismissal.”
Khampepe ADCJ added that “the employer must provide weighty reasons,
accompanied by tangible evidence, to show intolerability … The evidentiary
burden to establish intolerability is heightened where the dismissed employee
has been exonerated of all charges”.
[32] Marley did no more than allege that they offered the employee a position. This
offer was not an offer of reinstatement on the terms and conditions which
applied at the date of his dismissal . The relief sought in his referral being
reinstatement. This was an offer which also did not clarify how Marley
intended to compensate the employee for the time period that he had been
dismissed. Too little information around this ‘offer’ was provided for any
dismissed. Too little information around this ‘offer’ was provided for any
reliance to be placed on it. What reliance can be placed on it, which Advocate
Cook for AMCU pointed out is that the notion that the trust relationship has
11 [2010] ZALC 221; [2022] 1 BLLR 1 (CC) at paras 40, with reference to Equity Aviation Services
(Pty) Ltd v CCMA [2008] 12 BLLR 1129 (CC) at para 36. See also Mthethwa v CCMA [2022] ZALAC
95; [2022] 9 BLLR 814 (LAC).
14
broken down can all but be forgotten against Marley’s offer for the employee
to return to work. Had this employer been, realistically, so affected by the
alleged dishonesty that it destroyed the trust relationship it would not have
made such an offer.
[33] Further, the employee should not be punished for finding means to sustain
himself and his family whilst awaiting the outcome of his dismissal dispute. He
is duty bound to do so and would be irresponsible to await the outcome of an
arbitration, review application and any further proceedings. It could result in
the ultimate ruin of his home and life to do so. It is trite that the employee also
has no duty , in labour law jurisprudence, to mitigate his loss
12. In any event,
his decision to do so cannot be used as grounds to infer that he no longer
seeks reinstatement unless he expressed same.
[34] The Second Respondent's findings in this regard is one that no reasonable
decision maker could have reached on the prevailing jurisprudence
surrounding reinstatement.
[35] The order hereunder will dispense with both the respective review
applications.
AMCU – point in limine – Rule 37
[36] AMCU’s point in limine relates to Marley’s abuse of rule 37 of this Honourable
Court and alleges that it did not comply with the said rule by filing a “verbose
account of Mr Bvuma’s employment” history with Marley. Whilst I accept that
the review application did not comply with Rule 37. It is trite that this Court can
only consider the evidence before the Second Respondent. I have,
accordingly, confined my consideration of this matter to the record as it stood
before the arbitrator and the pleaded grounds of review in the respective
review applications. I will take into account Marley’s non-compliance with Rule
37 in respect of the issue of costs.
Marley’s counter-application
12 Billiton Aluminium SA Ltd t/a Hillside Aluminium v Khanyile and Others (CCT 72/09) [2010] ZACC 3
paras 39 – 44
15
[37] Marley, in filing its answering affidavit to AMCU’s review application, has filed
a counter -application seeking a declarator that the dismissal is procedurally
and substantively fair. This is precisely what their review application required
the Court to determine. The filing of the counter -application therefore being
academic and unnecessary.
Costs
[38] Both parties sought costs, including the costs of Counsel, in the event that
either party was successful. I have considered the provisions of s 162 of the
LRA. AMCU correctly sought to review and set aside the arbitration award by
the Second Respondent insofar as he did not reinstate the employee when
the law requires that he do so. Marley opposed these proceedings and, in
addition thereto, filed a counter application seeking a declarator that the
dismissal was fair. As pointed out above. This was wholly unnecessary. Its
opposition thereto being without merit when there was simply no evidence
before the Second Respondent to have failed to apply the primary remedy in s
193 of the LRA.
[39] Marley’s conduct in respect of its own review application was an abuse of this
Court's processes. Marley’s non- compliance with Rule 37 warrants an
adverse costs order where parties have been specifically directed under the
current rules to comply with same.
[40] Neither party made submissions in regard to whether an ongoing relationship
exists between AMCU and Marley , which could have persuaded this Court
otherwise on the issue of costs.
Order
1. The Second Respondent’s arbitration award under case no. GATW: 14326-23
is reviewed and set aside. The Second Respondent’s award is substituted
with an order as follows:
1.1 The dismissal of Mr. V.T. Bvuma was substantively unfair;
16
1.2 Marley is directed to reinstate Mr. V.T. Bvuma, with full retrospective
effect, on the same terms and conditions that applied prior to his
dismissal;
1.3 Mr. Bvuma must tender his services within three (3) days of receipt of
this order.
2. Marley is ordered to pay AMCU’ s costs of both applications under case
number 1928/2024 and 2006/24, on a party and party scale C, together with
the costs of Counsel.
K.R. Munsamy
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Adv. A. Cook
Instructed by: LDA Attorneys
For the Respondent: Adv. XT Van Neikerk
Instructed by: Waldick Inc. Attorneys