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[2026] ZALCCT 34
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Marques v Department Of Correctional Services General Public Service Sector (C220/2021) [2026] ZALCCT 34 (26 February 2026)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
Reportable
CASE
NO: C220/2021
In
the matter between:
JS
MARQUES
Applicant
and
DEPARTMENT
OF CORRECTIONAL SERVICES
GENERAL
PUBLIC SERVICE SECTOR
First Respondent
BARGAINING
COUNCIL
Second Respondent
SHIRAZ
MOHAMED OSMAN
Third Respondent
Heard:
23 October 2025
Delivered:
This judgment was handed down electronically by circulation to the
Applicant’s and the First Respondent’s
Legal
Representatives by email, publication on the Labour Court website and
release to SAFLII. The date and time for handing -
down is deemed to
be 11H00 on 26 February 2026.
JUDGMENT
LALLIE
J
[1] The applicant
launched this application seeking an order reviewing and setting
aside an arbitration award of the third
respondent who will be
referred to as the arbitrator in this judgment. The application is
opposed by the first respondent hereinafter
referred to as the
department.
[2] The applicant
was employed by the department as a correctional officer in 1994. He
was dismissed on 22 January 2020 for
absence from work for 8 days
without valid reason between January and May 2018. He challenged the
fairness of the dismissal by
referring an unfair dismissal dispute to
the second respondent. In an attempt to resolve the dispute the
second respondent appointed
the arbitrator to arbitrate it. Having
discharged the mandate the arbitrator issued an arbitration award in
which he found the
applicant’s dismissal substantively fair. It
is that decision the applicant seeks this court to review and set
aside.
[3] The applicant’s
main grounds for review are that the arbitrator committed gross
irregularities in the conduct of
the arbitration which resulted in
him reaching an unreasonable decision. The irregularities include his
failure to apply his mind
to material facts and errors of law.
[4]
The test for review based on the grounds the applicant sought to rely
on is stated as follows in
Herholdt
v Nedbank Ltd
[1]
:
“
[25]
In summary, the position regarding the review of CCMA awards is this:
A review of a CCMA award is permissible
if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. For a defect in the conduct of the proceedings to amount
to a gross irregularity as contemplated by s 145(2)
(a)
(ii),
the arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material
errors of fact, as
well as the weight and relevance to be attached to particular facts,
are not in and of themselves sufficient
for an award to be set aside,
but are only of any consequence if their effect is to render the
outcome unreasonable.”
[5] An arbitrator
misconceives the nature of the enquiry when he or she conducts an
incorrect enquiry or the correct one incorrectly.
It is common cause
that the arbitrator conducted the correct enquiry in that he enquired
into the fairness of the applicant’s
dismissal for being absent
from work for no valid reason. The totality of the evidence tendered
at arbitration reveals that he
conducted the enquiry correctly. The
arbitrator considered the evidence before him in detail. His
conclusion that at the time of
the dismissal the applicant had not
given the department the reason for this absence for the 8 days’
absence is based on
undisputed evidence. The absence of the reasons
on dismissal justifies the arbitrator’s decision that the
department’s
decision to dismiss the applicant was
substantively fair.
[6] Other factors
supporting the department’s version that the applicant did not
establish valid grounds for review
are that in addition to finding
that the applicant had made himself guilty of the misconduct he was
dismissed for are that the
arbitrator considered whether corrective
measures were taken. The applicant did not refute that his absence
was discussed with
him in counselling sessions. He only attacked the
quality of the counselling and denied its validity based on the
absence of witnesses.
The arbitrator considered the applicant’s
version and reasonably concluded that the presence of witnesses at
the counselling
was not necessary.
[7]
The applicant bases his attack on the reasonableness of the award
also on the arbitrator’s view on his disclosing
for the first
time at arbitration the reasons for his absence. I accept the
applicant’s submission that arbitrations are
hearings
de
novo
and that nothing precluded him from disclosing the reasons for his
absence at arbitration. I further accept the applicant’s
version that the arbitrator erred in finding that he failed to give
the reasons for his absence in his evidence in chief but disclosed
them under cross-examination. Not every error the arbitrator makes
renders an award susceptible to review. It is the distorting
effect
of the error on the arbitrator’s decision that justifies the
review court’s intervention
[2]
.
[8] The arbitrator
considered the applicant’s evidence that his absence was
occasioned by his need to take his mother
and his child to hospital.
He also had to be in court. He, however, rejected his evidence
because the applicant tendered no proof
in support of the reasons. He
added his belief that had the applicant had the proof of the reasons
for his absence he would have
completed leave form on his return to
work. The arbitrator’s comment that even if the applicant had
provided at arbitration
proof of the reasons for his absence he would
have accepted it and probably returned him to work shows that he
applied his mind
to the evidence of his explanation for the absence
but rejected it. I could find no fault in the finding because
hospitals, clinics
and courts provide proof of attendance on request
and the applicant provided no reason for not tendering the proof at
arbitration.
It is the applicant’s omission to provide proof
for his absence when he could that led the arbitrator to reject his
evidence
that he had valid reasons for his absence from work.
[9]
The applicant submitted that the arbitrator erred in taking into
account his expired final written warning which had been
issued in
2015. He relied on clause 5.4.4 of Regulation 1 of 2006 which
provides that a final written warning shall be valid for
a period of
6 months whereafter it shall be removed from the employee’s
personal file and destroyed. He submitted that the
error of law had a
material effect on the arbitrator’s final decision. The
applicant expressed the view that the arbitrator
should have treated
him as an employee with a clean disciplinary record. The arbitrator
considered various factors in addition
to the applicant’s
expired final written warning in reaching the conclusion that the
sanction of dismissal was appropriate.
The facts include interruption
of proper planning, informal sessions the supervisor held with him
and the serious consequences
of absenteeism. The consequences
incorporate breach of security, burnout which results from compelling
other employees to work
extra hours to cover for the absent employee.
Offenders in prison take advantage of insufficient staff. The
arbitrator further
considered that the applicant refused to attend
the Employee Assistance Programme (EAP) the department offered him
and opted for
his own which, in the arbitrator’s view did not
yield the desired results. He expressed the applicant’s
dishonestly
and lack of remorse. He took into account the guidelines
in
Sidumo
& Another v Rustenburg Platinum Mines Ltd and Others
[3]
and concluded that no further training or instruction would change
the applicant’s attitude towards his work.
[10] I accept the
applicant’s submission that in terms of clause 5.4.4 of
Regulation 1 of 2006 the applicant’s
final written warning
should have been removed form his file and destroyed when it expired.
I, however, am not convinced that its
removal meant that he had a
clean disciplinary record as he alleged. When an employee’s
disciplinary record has been tarnished
by a warning it cannot be
clean in the same way as that of an employee who has not committed an
act of misconduct. An expired warning
forms part of an employee’s
disciplinary record. It reveals the way an employee responds to
disciplinary action. Its materiality
depends on the way in which it
is used as it may benefit or prejudice an employee. The totality of
the factors the arbitrator took
into account in reaching the decision
on the appropriateness of the sanction of dismissal does not support
the applicant’s
contention that the error of considering the
expired final written warning had a distorting effect on the
arbitrator’s decision.
The argument that the arbitrator placed
significant weight on the expired final written warning is
inconsistent with the award.
In the absence of proof that the error
directed the arbitrator to reach the decision that dismissal was the
appropriate sanction,
the error does not vitiate the award.
[11] I have
considered the gratuitous comments the arbitrator made about the
applicant which he alleged rendered the award
reviewable. The
decision to review an award is based on the totality of the evidence
that was tendered at arbitration. It is the
effect of the
arbitrator’s conduct on his or her decision that matters in the
determination of a review application. In the
absence of evidence
that the gratuitous comments resulted in the arbitrator reaching an
unreasonable decision they do not constitute
valid grounds for
review.
[12]
The applicant did not demonstrate that the arbitration award under
review has a defect as envisaged in section 145(1)
of the Labour
Relation Act
[4]
(the LRA). His
application cannot succeed.
[13] The department
provided no reason in fairness for a costs order against the
applicant.
[14] In the
premises, the following order is made:
1. The application
for review is dismissed.
2. There is no
order as to costs
MZN
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the
Applicant:
Advocate T du Preez
Instructed
by
Kramer Weihmann Inc
For the First
Respondent: Ms P Zilwa of The State Attorney
[1]
(2013)
34 ILJ 2795 (SCA) at para 25.
[2]
Head
of the Department of Education v Mofokeng.
[3]
(2007)
28 ILJ (2405) (CC).
[4]
Act
66 of 1995, as amended.