THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 798/2024
In the matter between
WOOLWORTHS (PTY) LTD Applicant
and
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
COMMISSIONER SIBUSISO MKANDAWIRE Third Respondent
SACCAWU Fourth Respondent
JANE MAKHUBELA Fourth Respondent
Heard: 27 August 2025
Delivered: 23 February 2026
JUDGMENT
SIDZUMO, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] This is an opposed application to review an arbitration award under case
number GATW17400-23 dated 24 April 2024 . In terms of the award, the
second respondent found that the dismissal of the fourth respondent was
substantively unfair and ordered for reinstatement and back pay of the fourth
respondent.
Condonation
[2] The applicant at the hearing of this review application, sought condonation for
the late filing of its supplementary affidavit, which was delayed by five days.
The applicant submitted that in terms of the Rules for the Conduct of
Proceedings in the Labour Court (the Rules) , it had ten days within which to
file its supplementary affidavit after the filing of the record. The supplementary
affidavit was, however, filed on 30 July 2024 instead of 23 July 2024, resulting
in a delay of five days.
[3] The applicant explained that the delay was occasioned by an administrative
error on the part of its attorneys. It was submitted that a lthough the affidavit
had already been prepared by 22 July 2024, the attorney laboured under the
mistaken belief that it had been forwarded to the applicant for signature. Upon
realisation by the attorney’s personal assistant that the affidavit had not yet
been provided to the applicant, immediate steps were taken to rectify the
omission and the affidavit was duly filed.
[4] The applicant contended that the delay was minimal, that it enjoy ed strong
prospects of success in the review application, and that no prejudice has been
suffered by the respondent.
[5] The application was not opposed, and it was submitted on behalf of the fourth
respondent that she suffered no prejudice as a result of the delay. However,
the mere fact that the respondent did not oppose condonation did not absolve
this Court from its duty to scrutinise the application. It remains incumbent
upon the applicant to demonstrate good cause for the delay, and the Court
must be satisfied that the requirements for condonation have been met.
3
[6] Condonation is not granted for the mere asking; it is an indulgence that must
be justified. In considering whether to grant condonation, the Court must
assess the degree of the delay, the explanation tendered, the prospects of
success on the merits, and the absence or presence of prejudice to the
respondent
1 and in the interest of justice.2
[7] Turning to the present application, the delay in filing the supplementary
affidavit was limited to five days. The explanation tendered is reasonable, and
the respondent has expressly indicated that she suffers no prejudice, in the
absence of prejudice, this Court is satisfied that sufficient cause has been
shown.
Background facts
[8] The background to the dispute is not only set out in the arbitration award and
may also be briefly summarized from the transcript. The fourth respondent
was employed by the applicant in the capacity of departmental coordinator
with effect from 1 October 2007 until the date of her dismissal on 25 October
2023. At the time of her dismissal, she was earning a monthly salary of R9
077.47.
[9] The fourth respondent had thus rendered approximately sixteen years of
service to the applicant. Her dismissal followed disciplinary proceedings in
which allegations of misconduct were levelled against her. The nature of
those allegations, the findings made, and the subsequent challenge brought
before the second respondent form the subject matter of the present review.
[10] The fourth respondent was charged and dismissed for gross misconduct . The
charge is captured as follows:
‘gross misconduct in that on the 13 th April 2023 you breached company
policies and procedures designed to protect the company from shrinkage, risk
and loss when you were observed behaving in a suspicious manner in a high-
risk area, which actions impacted negatively on workplace relations.’
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C-E
1 Melane v Santam Insurance Co Ltd 1962 (4) SA 531 (A) at 532 C-E
2 Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) at paras 10; 12; 14 and 28.
4
[11] A disciplinary hearing was convened on 4 August 2023, at which the charges
referred to above were preferred against the fourth respondent. Following the
inquiry, the fourth respondent was found guilty as charged and was dismissed
from her employment on 25 October 2023.
[12] Dissatisfied with her dismissal, the fourth respondent referred the dispute to
the Commission for Conciliation, Mediation and Arbitration (CCMA) for
arbitration. The arbitration was conducted on 19 March 2024. At that stage,
both the dismissal and the procedure followed in effecting the dismissal were
common cause. The fourth respondent, however, challenged the substantive
fairness of her dismissal and sought reinstatement as the appropriate relief.
[13] The arbitrator found that the dismissal was substantively unfair.
Consequently, the applicant was ordered to reinstate the fourth respondent to
the same position she held prior to her dismissal, on the same terms and
conditions of employment. The order of reinstatement was made retrospective
to the date of dismissal, namely 25 October 2023.
[14] It was further ordered that the applicant pay the fourth respondent back pay in
the amount of R9 077.47 per month for six months, totalling R54 464.00. The
payment was directed to be made no later than 10 May 2024 into the fourth
respondent’s bank account, the same account previously utilised by the
applicant for the payment of her salary.
[15] It is against this order that the applicant has approached this Court, seeking to
review and set aside the arbitration award. The applicant contends that the
arbitrator erred in finding the dismissal substantively unfair and in ordering
reinstatement together with retrospective back pay.
Grounds for review
[16] The applicant alleges that the:
‘award was not an award of a reasonable and objective decision maker, failed
to apply his mind, misconducted himself, committed a gross irregularity,
exceeded his power by acting unreasonably or unjustifiably in; -
5
i. Finding that the fourth respondent was a reliable witness in the
circumstances where on her own version she had presented three
mutually exclusive versions which meant that she was an unreliable
and dishonest witness.
ii. When questioned at the CCMA on these versions she indicated that
she could not remember anything and that her mind was blocked and
that she was very frustrated which is not acceptable or logical reason
for her dishonest testimony.
iii. The arbitrator clearly should not have found that her evidence was
probable and trustworthy in the light of the three different versions and
in fact at the arbitration she could not explain these;
iv. In the light of these the fourth respondent has been dishonest in
seeking the reinstatement which in terms of the case of Mahepe v
CCMA dismissal could not have been found unfair and neither could
she have been reinstated’
[17] Upon receipt of the record, the applicant supplemented its papers to include
further submissions upon which it sought to rely. Central to these submissions
was video footage which, according to the applicant, depicted the fourth
respondent engaging in conduct that appeared to be concealing an item.
[18] The Court was furnished with a USB device containing the said footage, which
was presented as evidence of the fourth respondent’s alleged “ suspicious
actions.” This footage was duly viewed during the proceedings before this
Court.
[19] The applicant contends that the footage corroborates its position that the fourth
respondent’s conduct was dishonest and acted suspiciously. The respondent,
however, disputes this interpretation, maintaining that the footage does not
establish misconduct on a balance of probabilities and that suspicion alone
cannot justify dismissal.
The charge
6
[20] In this matter, the fourth respondent was charged with gross misconduct in
that on 13 April 2023 she allegedly breached company policies and
procedures designed to protect the company from shrinkage, risk and loss
when she was observed behaving in a suspicious manner in a high- risk area,
which actions are said to have impacted negatively on workplace relations.
At the arbitration proceedings
[21] At the arbitration proceedings, the issues for determination were whether the
dismissal of the fourth respondent was substantively fair and, if not, whether
reinstatement constituted an appropriate remedy.
[22] In order to resolve the dispute, the second respondent had before him various
items of material evidence. This included the CCTV footage
3 relied upon by
the applicant, the testimony of two witnesses called by the applicant, namely
Mr Steenkamp,
4 who chaired the disciplinary hearing, and Mr Ramlagan, 5 the
departmental manager and direct supervisor of the fourth respondent. In
addition, the second respondent considered the documentary record of the
disciplinary proceedings, together with the testimony of the fourth respondent
herself.
[23] Briefly, the testimony of Mr Ramlagan shows the following, the stockroom
where all the backup stock was kept, with an average of about R15 million to
R20 million of stock. The stockroom was high risk area as it stores all the high
value items and everything that’s backed up.
[24] Further, testified that the investigation included the viewing of the CCTV
footage, which depicted the fourth respondent entering the stockroom and
coming into the view of the camera. In that footage, the fourth respondent was
observed engaging in conduct which the applicant characterised as
suspicious.
3 Record at p. 6.
4 Record at pp. 59 to 127.
5 Record at pp. 7 to 58.
7
[25] When called upon to elaborate on what he meant by “suspicious,” Mr
Ramlagan, the departmental manager and supervisor of the fourth
respondent, testified as follows:
"So, when you look at the footage, you’ll see it looks like an act of
concealment. The behaviour in which the applicant is under the camera, you’ll
see where the hand of the applicant is and also the looking back to see that
they were not being watched.’6
[26] It was Mr Ramalgan further testimony that the fourth respondent led different
versions which are captured and summarised as follows7 from the applicant’s
heads of argument:
26.1 When first questioned by the applicant regarding the conduct the
fourth respondent insisted that she has undergone a medical operation
which makes her uncomfortable when wearing a dress.
26.2 Thereafter, the fourth respondent said her tights were rolling up and
she was just adjusting them down.
26.3 Finally and for the first time before the second respondent, the fourth
respondent testified under cross examination that she was attending to
a personal issue relating to her menstrual cycle.
26.4 That the reason the fourth respondent was adjusting her menstrual cup
in the stock room was that she did not have time to go to the bathroom.
[27] However, it is noted from his testimony that Mr Ramlagan conceded that the
incident in question had occurred “long ago.” Notwithstanding this concession,
he maintained that the fourth respondent ought not to have altered her version
on several occasions, but should rather have stated that she did not recall the
events.
6 Record at p. 10.
7 Applicant’s heads of arguments at p. 5.
8
[28] Turning to the evidence of Mr Steenkamp, he testified that , all evidence was
taken into consideration. Regarding the different versions, Mr Steenkamp said
the following:
‘if that was the only version, that would have been transpired across. If there
was a consistent version across the enquiry, it could have been plausible. But
basically, all the different versions that was given, all versions had to be
considered, or had to be factored in. If there was one version from front to
back, but there were so many versions’.
[29] On cross examination, Mr Steenkamp conceded that there's no footage where
the fourth respondent appears to have picked something somewhere, came
into the stockroom and put it on her person.
[30] Upon Mr Steenkamp being asked, why the fourth respondent was dismissed
for concealment whilst there was no item seen being concealed by the fourth
respondent, his response seems not to be clear. The response is captured as
follows:
‘‘Once again, as I stated previously, it's not just for concealment, it's for a
combined (inaudible) of all, but the act that can be seen, taking into
consideration all the different versions from the place. employee leads to
probability that she is, or that there is concealment taking place’’.
[31] Dissatisfied with Mr Steenkamp ’s response, Mr Mathaba, the employee
representative at the hearing asked further as follows:
‘‘MR MATHABA : Maybe let me ask this question because you're not
answering. My question is, why have you dismissed the
Applicant on suspicion of, on suspicion of
concealment? Why have you confirmed here that
there's not any item you have seen the Applicant
concealing?’’
MR STEENKAMP: But it's on the footage, and the act that the employee is
actually doing leads to suspicion that the employee, or
it leads me to believe that the employee is actually
concealing something. The different version that was
9
provided for that by the employee cannot explain,
because it shows a probability that concealment is
taking place.’
[32] The fourth respondent did not call any witnesses in support of her case and
relied solely on her own testimony. She explained that she had recently
returned from a suspension in relation to another matter when she was
summoned to view the video footage in question.
[33] When asked to account for her conduct as depicted in the footage, the fourth
respondent stated that she could not recall the specific incident. She
requested that additional footage be made available and asked for an
opportunity to refresh her memory. Her explanation was that the stress she
had endured during the period in question had affected her ability to recollect
events with clarity.
8
[34] The fourth respondent was confronted on different versions she gave when
asked to explain her actions. The explanation given by the fourth respondent
was that when she was called for the first time she indicated that she was
fixing her tights. She further testified that she was called for the second time
and was requested another statement, she made it clear that she was not
comfortable, her words were ‘ I’m not even comfortable to have this
conversation with you, but here it’s me fixing my tights, he said, it’s fine you
can go, we’ll see you again’.
9
[35] It was further the fourth respondent testi mony that the cameras in the store
are not showing what she took and held in her hands. Her argument seemed
to be that if she had something in her hands surely the cameras could have
shown this.
[36] The fourth respondent further gave an explanation that in her ’ culture she
does not speak with a male person about her menstrual cycle. The fourth
respondent proceed to state that:
8 Record at p 111.
9 page 112 of the transcribed record
10
‘I cannot speak to my uncle, even the Commissioner or whoever that is a
male person about the menstrual cycle. And for me to tell them about my
back pain is that, every woman who goes to, of the clothes on her time of
menstruation, they experience a pain, depending on the kind of (inaudible).’
And for them to kept on saying, "Why were you fixing your tight on camera?
Why were you fixing your pad on camera?" I felt humiliated. And I also
disclosed, about the back pain I also disclosed on my line manager about the
operation that I had, that I gave birth with caesar ean. I have a big operation.
So I don't like even wearing trousers because of this operation’.
10
Findings and Award
[37] The second respondent 's analysis of the evidence concerning whether the
third respondent was, on a balance of probabilities, guilty of the alleged
misconduct is confined to six paragraphs in the award. The second
respondent’s reasoning is captured as follows:
‘[15] Based on her suspicious behaviour and the change of version the
Respondent dismissed her. I find the evidence of the Respondent not
justifiable to dismiss the person based on suspicions. In Mbanjwa v
Shoprite Checkers (Pty) Ltd and Others the court held that the test at
all times remains one of balance of probabilities. Reasonable or strong
suspicion is not adequate to terminate the employment relationship.
[16] The video footage played dated 13/4/2023, shows the Applicant
putting her hands between her thighs and was covered by an apron.
No evidence was adduced of an attempt to remove the stock from
storeroom. There was no record provided before me that there was
stock missing for the day in question or the Respondent suffered
financial losses.
[17] The Respondent cannot rely on suspicion of concealment in
dismissing the Applicant. Nothing in the charge mentions concealment
even if there was concealment the Respondent bears the onus of
proof and the video footage played shows nothing was concealed by
the Applicant.
proof and the video footage played shows nothing was concealed by
the Applicant.
10 page 114 of the transcribed record.
11
[18] The Applicant's defence was that she was on suspension for 4 months
when she came back month end of July 2023, she was called to the
boardroom by Kiran Ramlagan showing her the video of the
13/4/2023. She told him that was aware of the video footage, and she
told him that she felt uncomfortable to be interviewed by a male
person. In her culture she cannot talk about menstruation with a male
person. She fixed herself in the storeroom because she had limited
time, and the pad could have fallen at any time.
[19] The reasons she gave different versions was that she was from
suspension, and she could not remember everything. Her mind was
blocked, and she was very frustrated.
[20] I find the evidence of the Applicant probable and trustworthy. The
Respondent couldn't rebut her evidence with anything beside the
suspicions he has.
[21] Having considered all the facts placed before me and the charge of
the Applicant, I find, on the balance of probabilities, that the
Applicant's version of events is the more credible, the Applicant's
dismissal was substantively unfair.
[22] I find reinstatement as an appropriate remedy. Respondent could not
justify how the Applicant conduct destroyed the trust relationship and
rendered a continued employment relationship intolerable. No
evidence was brought before me why it would not be reasonably
practicable for the employer to reinstate the Applicant.
[23] The Respondent is ordered to reinstate the Applicant retrospectively
therefore back pay of 6 months is justifiable. My calculations are as
follows: R9 077.47 (monthly salary) X 6 Months = R54 464.82
[24] The dismissal of the Applicant is held to have been substantively
unfair.
[25] The Respondent is ordered to reinstate the Applicant in the same
position she occupied before dismissal, on the same terms and
conditions. The reinstatement of the Applicant takes effect from date
of dismissal (25/10/2023).
12
[26] The Applicant should report to work on 6/5/2024. The Respondent is
ordered to back pay the Applicant a total amount of R9 077.47 X 6 =
R54 464.82 by no later than 10 May 2024. The amount should be paid
into the Applicant's bank account, known, and used by the
Respondent in paying her salary.’
Analysis
[38] Where an applicant brings an application in terms of section 145 of the Labour
Relations Act11 (LRA), the Court may only review and set aside an arbitration
award or ruling if it is shown to contain a defect as contemplated by section
145 of the LRA that renders the arbitration award so unreasonable that no
reasonable decision-maker could have reached the same conclusion.
[39] The Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others
12 clearly set out how an arbitrator is required to determine the
fairness of the sanction of dismissal applied by the employer and thus places
a high threshold on applicants seeking to challenge an arbitration outcome or
a ruling.
[40] The Constitutional Court in Sidumo
13 stated that:
‘In approaching the dismissal dispute impartially a commissioner will take into
account the totality of circumstances. He or she will necessarily take into
account the importance of the rule that had been breached. The
commissioner must of course consider the reason the employer imposed the
sanction of dismissal, as he or she must take into account the basis of the
employee’s challenge to the dismissal. There are other factors that will
require consideration. For example, the harm caused by the employee’s
conduct, whether additional training and instruction may result in the
employee not repeating the misconduct, the effect of dismissal on the
employee and his or her long-service record. This is not an exhaustive list’.
11 Act 66 of 1995, as amended.
12 (2007) 28 ILJ 2405 (CC).
13 Ibid at para 78.
13
[41] A dismissal of an employee has serious consequences, thus dismissal is
affected for a fair reason and in accordance with a fair procedure. In this
instance related to an employee’s conduct in accordance with section 188 of
the LRA.
[42] The issue for determination is whether the award of the second respondent,
finding the dismissal to be unfair, was one that a reasonable and objective
decision-maker could reach. In this regard, the Court must consider whether
the second respondent failed to apply his mind to the material before him,
misconducted himself in the conduct of the proceedings, committed a gross
irregularity, or exceeded his powers by acting unreasonably or unjustifiably.
[43] The test is not whether this Court would have reached a different conclusion,
but whether the decision falls within the band of reasonableness required of
an impartial adjudicator.
[44] The employer bears the onus to prove, on a balance of probabilities, that the
misconduct alleged was indeed committed by the employee concerned. The
question that arises on the facts before this Court is whether misconduct has
in fact been established. More particularly, whether conduct described merely
as ‘suspicious’ can properly constitute misconduct of such gravity as to justify
dismissal.
[45] It is common course that the misconduct charges brought against the fourth
respondent were predicated upon images depicting her, as recorded in
footage obtained from a closed- circuit television (CCTV) surveillance system.
It is clear that the camera was installed in the stockroom as to enable the
capturing of movements inside the stockroom which is said to be a high- risk
area storing all high value items. In essence, where misconduct is in fact
committed, it will ordinarily be more apparent to the employer and thus more
readily capable of proof.
14
[46] It is also a matter of common course that an investigation was initiated by the
applicant upon suspicion that the third respondent had attempted to remove
items from the stock room by concealing them upon her person.
14
[47] However, as a point of departure, we have in the bundle of documents before
this Court, t he fourth respondent’s job profile dated November 2017.
According to the job profile, gross negligence or gross non- adherence to, or
gross failure to comply with company policies and procedures, designed to
protect the company from risk, shrinkage and loss is a dismissible offence
even if it is an employee’s first offence. The Disciplinary Procedure and Code
of 1 November 2015 under category C also mentions gross negligence as a
dismissible offence.
[48] The charge was framed in terms that encapsulate both the requirements
contained in the employee’s job profile and the provisions of the Disciplinary
Code. It is, however, recorded in the charge that the fourth respondent was
‘observed behaving in a suspicious manner in a high- risk area’. The term
‘suspicious’, and its meaning, does not appear in both the Disciplinary
Procedure Code of 1 November 2015 and the fourth respondent’s job profile
dated November 2017.
[49] In the absence of such definition or guidance, reliance upon the term
‘suspicious’ is vague and incapable of sustaining disciplinary action without
further substantiation in any of the applicant’s policies or the Disciplinary Code
or job profile.
[50] The applicant’s case rested upon what it described as the “suspicious act” of
the fourth respondent. It is therefore necessary to enquire whether such
conduct, as depicted in the CCTV footage and interpreted by the applicant’s
witnesses, can properly be characterised as misconduct of such gravity as to
justify dismissal.
[51] In determining this issue, one takes into consideration that suspicion, however
strong, cannot substitute proof of misconduct. The employer bears the onus to
strong, cannot substitute proof of misconduct. The employer bears the onus to
14 See: para 10.3 of the affidavit in support of the review application.
15
establish, on a balance of probabilities, that the employee committed a
misconduct. Mere suspicion or inference, unsupported by cogent evidence,
does not meet the threshold required to sustain a charge of gross misconduct.
[52] The enquiry therefore had to consider whether the evidence presented, that is
the CCTV footage, the testimony of Mr Steenkamp and Mr Ramlagan, and the
fourth respondent’s own explanation demonstrated misconduct or whether it
merely raises suspicion insufficient to justify dismissal.
[53] In addressing this issue, the second respondent correctly relied on the
authority of Mban jwa v Shoprite Checkers (Pty) Ltd and others
15 wherein the
Labour Appeal Court held that:
‘[26] It is trite that an employer bears the onus to prove, on a balance of
probabilities, that the misconduct was indeed committed by an
employee concerned. Where the employer is suspicious that the
employee, through the latter’s movements or conduct, may have some
dishonest intentions, the employer cannot justifiably rely on that
suspicion as a ground to dismiss the employee for misconduct
because suspicion, however, strong or reasonable it may appear to
be, remains a suspicion and does not constitute misconduct. There
needs to be tangible and admissible evidence to sustain a conviction
for the misconduct in question.’
[54] In the circumstances, I agree with the second respondent’s findings that, on
the balance of probabilities, the dismissal of the fourth respondent based
solely on suspicion does not constitute misconduct. Suspicion, however
strong, cannot be elevated to proof, and in the absence of cogent evidence of
dishonesty, the dismissal was substantively unfair.
Concealed an item
[55] The fourth respondent was alleged to have concealed an item in the
stockroom. However, the applicant has not indicated with any degree of
certainty what the item was said to be, nor does the video footage reveal any
object being concealed.
15 (DA 4/11) [2013] ZALAC 29 (7 November 2013) at para 26.
16
[56] The Labour Appeal Court in Woolworths (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others ,16 in deciding the appeal
before it, the meaning of concealment was looked into. It was held that:
‘according to the dictionary, the meaning of to “conceal” is “to prevent
someone or something from being seen; keep something secret”; (or) “refrain
from disclosing or divulging. Put, remove, or keep out of sight or notice.”
[57] Although it is submitted on behalf of the applicant, that the applicant maintains
strict rules regarding the unauthorised removal of stock, including attempted
acts of removing property, the video footage upon which reliance is placed
does not establish what, if anything, was being concealed. In contrast, in the
Woolworths matter, supra, the employee was found to have concealed a belt
and a blouse. No such evidentiary basis exists in the present case.
[58] The testimony of the fourth respondent was to the following effect, and it
shows that nothing was concealed:
‘on the day of hearing the investigator told me that the
act is like an act of concealment. I asked him, if I’m
concealing something, what do I have in my hands?
What do you see me having in my hands when I’m
coming? When we enter the stockroom, they search
us. Even when we go out they search us’17
….’ja, yes, there’s something that you took’
…And another concern is that if I really took something
then I put it inside the tight, that day I worked the whole
day and there was no way I would feel comfortable or
be able to work the whole day with something on me.
When we come in, they search you, when you go out
they search you.
Mr MATHABA: So Jane, have you concealed any item?
Ms MAKHUBELA: No’
16 (JA 30/10) [2011] ZALAC 12 (26 July 2011) at para 31.
17 Record at p 113.
17
[59] I am persuaded to accept the second respondent’s analysis of the evidence.
The video footage played on 13 April 2023 depicts the applicant placing her
hands between her thighs, which were covered by an apron. No evidence was
adduced before the second respondent to demonstrate any attempt to remove
stock from the stockroom. Moreover, no record was placed before the second
respondent indicating that stock was missing on the day in question or that
the applicant suffered any financial loss. In these circumstances, there is no
basis upon which to conclude that the fourth respondent breached company
policies or procedures designed to safeguard against shrinkage, risk, and
loss.
[60] I find no basis to conclude that the second respondent’s findings are
unreasonable. The second respondent correctly observed that nothing in the
charge makes reference to concealment. Even if concealment were alleged,
the respondent would bear the onus of proof. The video footage presented
demonstrates that no item was concealed by the applicant. In the
circumstances, nothing was put away, removed, or kept out of sight.
Mutually exclusive versions
[61] The applicant’s submissions appear to centre on the contention that the
versions advanced by the fourth respondent are mutually exclusive and
cannot occur simultaneously. According to the applicant, if the fourth
respondent was adjusting her tights, that explanation is exhaustive and
cannot coexist with the suggestion that she was either attending to a sanitary
pad or recovering from a medical procedure. On this basis, the applicant
contends that the fourth respondent was an unreliable witness, having placed
before the second respondent a dishonest and irreconcilable set of events.
[62] On the other hand, the second respondent’s reasoning for accepting the
differing versions advanced by the fourth respondent was premised on her
suspension, her inability to recall certain events, and her frustration at the
suspension, her inability to recall certain events, and her frustration at the
time. He concluded, on the totality of the facts before him, that her version
was probable on a balance of probabilities.
18
[63] In assessing the reasonableness of the second respondent’s findings, this
Court must weigh the fourth respondent’s version against the inherent
probabilities and the totality of the evidence. Where conflicting versions arise,
the enquiry entails an evaluation of credibility, reliability, and probabilities,
including whether a witness’s testimony is internally consistent and accords
with the broader evidentiary picture.
[64] In applying this test, the Court is guided by whether the version advanced is
plausible in light of common experience and the objective circumstances of
the case. Accordingly, the determination of reasonableness in the second
respondent’s findings cannot be divorced from a holistic evaluation of the
evidence and the inherent probabilities.
[65] It is therefore necessary for this Court to examine the versions advanced by
the fourth respondent, which are said to be inconsistent and mutually
exclusive. It is evident that the re were two interviews conducted by Mr
Ramlagan which occurred at different stages prior to the commencement of
either the disciplinary hearing or the arbitration proceedings. In the first
interview, the fourth respondent indicated that she was unable to recall the
events and required time to do so.
[66] Upon viewing the video footage, she acknowledged that she appeared to be
adjusting her tights. She nevertheless remained steadfast in her second
interview that she was uncomfortable discussing such matters with men.
[67] The applicant further submitted that the fourth respondent offered another
explanation, namely that she had disclosed to her line manager that a medical
operation made her uncomfortable when wearing dresses. The applicant
regarded this as inconsistent with her earlier accounts and a change of
versions. However, the applicant did not elaborate on the circumstances of
this disclosure, which might have clarified whether the respondent’s
explanation was consistent with her claim that she adjusted her tight s in the
explanation was consistent with her claim that she adjusted her tight s in the
stockroom rather than in the toilet.
19
[68] The disclosure to her line manager is a factor that lends some measure of
being in line with her explanation, as it is consistent with her stated discomfort
of wearing trousers and not dresses as submitted by the applicant.
[69] In considering the disclosure made by the fourth respondent to her line
manager concerning her medical operation and the discomfort she
experienced when wearing trousers against the broader evidentiary picture, is
that she testified that she was from suspension and could not remember the
particular incident and her mind was blocked thus she needed time to
recollect. The fourth respondent’s disclosure in this regard is probable.
Therefore, this Court accepts that such disclosure provides s ome context to
her explanation and probability to her explanation.
[70] The fourth respondent at the arbitration during cross examination gave a
further explanation on why she fixed herself at the stockroom rather that at the
toilet. which is as follows:
‘MS MAKHUBELA: The time to go to the bathroom is very limited, given the
situation that I was in. And if you can watch the video
footage, it doesn't even take two minutes or twenty
minutes. It's just a matter of just fixing fast, fast. And for
me to turn back before I was, I was (inaudible) and I
was, when I was coming, I was coming, I was speaking
to my line manager, for me to tum and look I was
checking if my line manager is looking at me or what.
That's why I just turned and looked straight.
MR MOKOENA: Now, you've just mentioned that the situation that you
were in warranted you immediately to attend to yourself
immediately. Now, I just want you to go to a question
that you were asked….
No, no, I will go there now.
COMMISSIONER: So, why could you not go to the toilet and go and fix
yourself at the time? What was the main reason you
couldn't go to the toilet and go and fix yourself,
20
considering you're explaining you were under those
circumstances?
MS MAKHUBELA: My time was limited. My pad could have fell at any
time, and the toilets are upstairs. You must go to the
security to search you and go up. So, my time was
limited and the situation didn't allow.
MR MOKOEΝΑ: Okay. That's all from me.’
[71] The evidence further shows that she chose the stockroom as it was closer
and more convenient for her purpose. Her act of glancing to see who might be
observing her while she was fixing herself was, in the circumstances, an act of
being cautions rather than one of dishonesty.
[72] It has been submitted on behalf of the applicant as a further ground for review
that the fourth respondent was on suspension and she had recently returned
from suspension, was frustrated, and that this affected her ability to recall
events with precision had no bearing on her memory.
[73] The applicant failed to place before the second respondent any evidence
contradicting the fourth respondent’s account or demonstrating that her
conduct upon return from suspension was inconsistent with frustration or a
blocked memory (memory decay).
[74] What was placed before the second respondent was the fourth respondent’s
version that she had been frustrated and that her mind had been blocked,
which account remained uncontradicted and undisputed by the applicant.
Indeed, the minute of the enquiry records that the fourth respondent
requested additional time to recollect, as she did not remember the incident in
question. Her testimony before the second respondent was to the effect:
‘If you can give me a chance, maybe I can go back and recall. The reason
why maybe I don’t remember is that I have been through a lot of stress at that
time.’
[75] Should the applicant have taken issue with this explanation, he could have
disputed it and placed before the second respondent evidence of the fourth
21
respondent’s conduct upon her return from suspension, demonstrating that
she was not in fact frustrated or suffering from a blocked mind. In the absence
of such rebuttal evidence, the second respondent was entitled to accept the
fourth respondent’s explanation as probable.
[76] The alleged different versions of the fourth respondent’s account do not
detract from the undisputed fact that nothing was found concealed on her
person. In light of this, the only explanation that accords with the probabilities
is that she was adjusting her tights and her sanitary pad. The evidence further
shows that she chose the stockroom as it was closer and more convenient for
her purpose. Her act of glancing to see who might be observing her while she
was fixing herself was, in the circumstances, an act of caution rather than one
of dishonesty.
[77] The mere existence of differing versions does not, in itself, render a witness
unreliable; what matters is whether, when tested against credibility, reliability,
and inherent probabilities, the version accepted is more probable than not.
[78] Holistically considering the different versions and explanations given in
different interviews held with her , her undisputed testimony that when she
came from suspension she was unable to recollect the particular incident I
find that they are not far -fetched when viewed against the totality of the
evidence. I am persuaded that the fourth respondent’s testimony accords with
the inherent probabilities and the objective facts. There is no basis for this
Court to conclude that the second respondent misdirected himself on the facts
before him. The versions advanced by the fourth respondent are not mutually
exclusive, nor are they impossible to reconcile. When examined logically,
each explanation relates to the other in a manner that is coherent and
plausible.
[79] The applicant submits that the delivery of multiple versions of fact by the
fourth respondent demonstrates dishonesty. In support of this contention,
fourth respondent demonstrates dishonesty. In support of this contention,
reliance was placed on Maepe v Commission for Conciliation, Mediation and
Arbitration and Another ,
18 where Zondo JP (as he then was) held that the
18 (2008) 29 ILJ 2189 (LAC).
22
giving of false evidence under oath rendered reinstatement incompetent, as
the employee would not be able to perform his duties effectively.
[80] This Court is mindful of the distinction between the Maepe matter and the
present case. In Maepe, the commissioner was confronted with deliberate
falsehoods under oath, which went to the heart of the employee’s integrity and
competence. In the present matter, however, it is not clear what exactly the
applicant considers as false on the versions provided by the fourth
respondent. The applicant cannot rely on falsehood in the absence of a
contradictory version by the applicant.
[81] It is further significant to note that dishonesty was never expressly included as
part of the charge preferred against the fourth respondent. The allegation was
framed in terms of a “suspicious act” of concealment, without any specification
of the item allegedly concealed or any reference to dishonesty as a distinct
ground of misconduct.
[82] In disciplinary proceedings, charges must be clearly formulated so as to
inform the employee of the case to be met. The absence of dishonesty from
the charge is material, as the applicant’s submissions and reliance on the
alleged breakdown of trust were premised upon an inference of dishonesty
which was not part of the charge sheet.
[83] The second respondent was therefore correct to confine his enquiry to the
charge as formulated. In the absence of proof of concealment, and with
dishonesty not forming part of the charge, the dismissal of the fourth
respondent was not justified. The finding of substantive unfairness was
accordingly reasonable and supported by the evidentiary record.
Reinstatement
[84] On the supplemented heads of argument, the applicant, in addressing the
issue of honesty, relies upon the findings of the disciplinary inquiry, wherein it
was concluded that the fourth respondent’s conduct was suspicious and that
the trust relationship had consequently been broken. The applicant further
the trust relationship had consequently been broken. The applicant further
submits that the alleged dishonesty of the fourth respondent created a
23
scenario in which no reasonable decision- maker could have ordered her
reinstatement.
[85] Accordingly, while the applicant asserts that dishonesty rendered
reinstatement incompetent, such submission is not borne out by the evidence.
The versions advanced by the fourth respondent, were not shown to be false
or deliberately misleading. In the absence of proof of dishonesty, the
conclusion reached by the second respondent cannot be said to fall outside
the bounds of reasonableness.
[86] On behalf of the fourth respondent, it was submitted that the applicant failed
to raise the issue of the trust relationship either before the second respondent
or in his papers before this Court. It was further contended that no prejudice
was suffered, nor was any financial loss or shrinkage proven that could have
affected the trust relationship. Lastly, it was argued that the respondent’s
conduct does not, of itself, demonstrate that the trust relationship has been
irreparably broken.
[87] The submission that the applicant failed to raise the issue of the trust
relationship before the second respondent is misplaced. It is evident from the
record that the matter was canvassed during the arbitration proceedings. In
particular, reliance was placed on the testimony of Mr K Ramlagan, who
expressly addressed the issue of trust as follows:
‘MR MOKOENA: Now, looking at the behaviour, and you’ve already
alluded to the fact that it’s a suspicious behaviour in a
high risk area. In the absence of a reason believable
provided by the Applicant as to what is happening on
the footage, will the company be able to trust the
Applicant going forward based on what as been viewed
on this footage, and the versions that the Applicant has
provided? Will the company be able to trust the
Applicant going forward?
MR RAMLAGAN: No. So, in every organisation, trust plays a major part
of the organisation. So, we are, me as her line
manager, must trust that what I'm being told is truthful
24
and I take it to the bank to say that this is honest
information given to me. After going through these
proceedings and different versions of stories that were
told, this is not a trustworthy person. The business
cannot trust this person because they cannot trust what
they're saying is honest and truthful.
MR MOKOENA: And looking at the behaviour itself that you've viewed
on the footage, will the company trust that the Applicant
is not behaving in a suspicious manner and continue
working in employment with the Applicant under the
circumstances that appeared on the footage?
MR RAMLAGAN: No. So, we are custodians of the store and we are
there to protect the business assets, especially in high-
shrinkage areas. So, behaviour in that high-shrinkage
area, and suspicious behaviour in the high-shrinkage
area raises a lot of concern for the business owner.
The business will not be able to trust this individual.’
[88] In this Court submissions were made on behalf of the applicant with reliance
in the case of Maepe,19 where it was held that:
‘In my view the Flex-o-Thene case is distinguishable from the present case. In
that case the alleged misconduct with which Froneman DJP was dealing, if
established, would not have meant that it was incompetent to order
reinstatement whereas in the present case the fact that the appellant gave
false evidence under oath meant that, if he were reinstated, he would not
have been able to do his job effectively and that an order for his reinstatement
was not competent. I have said earlier that that renders it reasonably
impracticable for the first respondent to reinstate him and the order of
reinstatement that the commissioner made in those circumstances was not
competent.’
[89] It was further submitted on behalf of the applicant that the fourth respondent’s
alleged dishonesty under oath during the arbitration proceedings rendered
19 Ibid at para 24.
25
reinstatement inappropriate and therefore very little or no compensation
should be awarded. The applicant emphasised that the respondent occupies
a position of authority within the retail sector, a high- risk environment in which
employees are entrusted with stock valued in millions of Rands, and that such
conduct undermines the trust essential to the employment relationship.
[90] On the other hand, it is submitted on behalf of the fourth respondent that
reinstatement remains practical, as her conduct does not, in itself, signify that
the trust relationship has been irreparably broken or incapable of repair.
[91] Section 193 of the LRA sets out remedies for unfair dismissals. Section
193(1) provides:
“If the Labour Court or an arbitrator appointed in terms of this Act finds that
a dismissal is unfair, the Court or the arbitrator may—
(a) order the employer to reinstate the employee from any date not earlier
than the date of dismissal;
(b) order the employer to re-employ the employee, either in the work in
which the employee was employed before the dismissal or in other
reasonably suitable work on any terms and conditions from any date
not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.”
[92] Although s ection 193 of the L RA provides reinstatement as the primary
remedy for unfair dismissal, unless one of the statutory exceptions as
provided for in section 193(2) applies. According to this section, the:
‘Labour Court or the arbitrator must require the employer to re-instate or re-
employ the employee unless-
‘(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
26
(c) it is not reasonably practicable for the employer to reinstate or re-
employ the employee; or
(d) the dismissal is unfair only because the employer did not follow a fair
procedure.’
[93] The Constitutional Court in Toyota SA Motors (Pty) Ltd v CCMA and Others 20
held that:
‘In seeking to determine what remedy the Labour Court or an arbitrator should
grant in a particular case, it seems to me that the Court or an arbitrator should
first appreciate the meaning of the word “reinstate”. In Equity Aviation this
Court said: ‘ “The ordinary meaning of the word ‘reinstate’ is to put the
employee back into the same job or position he or she occupied before the
dismissal, on the same terms and conditions. Reinstatement is the primary
statutory remedy in unfair dismissal disputes. It is aimed at placing an
employee in the position he or she would have been [in] but for the unfair
dismissal. It safeguards workers’ employment by restoring the employment
contract. Differently put, if employees are reinstated they resume
employment on the same terms and conditions that prevailed at the time of
their dismissal.”
[94] The Constitutional Court in Toyota21 (supra) further said:
‘once the Labour Court or an arbitrator has decided that dismissal is unfair, it
or he should, before deciding on which remedy to grant, ask itself or himself
certain questions. These would include questions such as: in what way, if
any, did the dismissal cause the employee prejudice? Had the dismissal not
occurred, where would the employee be?
[95] Having regard to Toyota, it is clear that reinstatement may be inappropriate
where the evidence demonstrates that the continued employment relationship
would be intolerable. In the present matter, however, no evidence was led by
the fourth respondent to suggest that the employment relationship had
become intolerable.
20 (2016) 37 ILJ 313 (CC) at para 137.
21 Ibid at para 136.
27
[96] On the contrary, the submissions advanced on her behalf do not establish that
her conduct signified a breakdown of trust, nor has the applicant shown that
any prejudice, financial loss, or shrinkage was suffered.
[97] In these circumstances, the conclusion reached by the second respondent that
reinstatement remained a competent remedy cannot be faulted.
[98] Conversely, the applicant has not shown that the dismissal renders continued
employment intolerable or impracticable, as contemplated in Toyota. While
trust is integral to any employment relationship, reliance on statements not
proven to be dishonest cannot justify a finding of irreparable breakdown. The
versions advanced by the applicant were not established as dishonest,
particularly since dishonesty was never part of the charge. Mere suspicion,
unsupported by evidence, cannot sustain a charge of misconduct nor
demonstrate that the employment relationship has collapsed.
[99] Therefore, the second respondent’s finding that reinstatement was an
appropriate remedy cannot be said to be unreasonable. The applicant failed
to demonstrate that the fourth respondent’s conduct destroyed the trust
relationship or rendered continued employment intolerable. No evidence was
led to show that reinstatement was not reasonably practicable for the
employer.
Conclusion
[100] Having read and considered the submissions made, pleadings and the record
filed herein and in the absence of evidence that the first respondent’s
discretion was arbitrary or unreasonable, I see no reason why this Court
should interfere with the award. I am therefore satisfied that the first
respondent’s award was reasonable in light of the evidence that was placed
before her by the parties in the arbitration proceeding.
[101] In the circumstances, the following order is made:
28
Order
1. The late filing of the supplementary affidavit is hereby condoned
2. Accordingly, the review application is dismissed.
3. There is no order as to costs.
______
W. N. Sidzumo
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr MacGregor Erasmus
For the Fourth Respondent: Ms Leatha Marakalala SACCAWU