THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR2661/21
In the matter between:
MELANIE SMIT Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER T MNISI N.O Second Respondent
ASHTON INTERNATIONAL
COLLEGE (PTY) LTD Third Respondent
Delivered: 02 March 2026
JUDGMENT
GXOGXA, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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Introduction
[1] This matter concerns an application seeking the review and setting aside of an
arbitration award that was issued by the second respondent on 21 November
2021, under the auspices of the first respondent and case number GAEK3442 -
21. The applicant requests that the award be substituted with an order as follows:
1.1 That the compensation granted for procedural unfairness be significantly
increased, and that the applicant’s dismissal be declared substantively
unfair; alternatively,
1.2 That the matter be remitted to the first respondent for a rehearing before a
commissioner who is not the second respondent.
1.3 That any respondents opposing this application be ordered to pay the
costs of the application jointly and severally, with the effect that payment
by one absolves the other(s).
[2] The applicant, Ms Melanie Smit (Smit), commenced employment with the third
respondent in 2002. At the time she was dismissed, she held the position of
administration and marketing manager, a role in which she undertook a wide
range of responsibilities, including oversight of the third respondent’s finances.
[3] On 14 April 2021, the applicant was suspended from her duties. Subsequently,
she was charged with misconduct pertaining to bribery, fraud, theft or
unauthorised acquisition and use of the company’s intellectual property,
accomplice, colluding, conspiring, assisting, abetting or instigating dishonesty in
that she assisted a dismissed employee that was under legal proceedings with
the company to obtain information without authorization and assist a dismissed
employee to elicit financial settlement from e mployer via her actions, as well as
the distribution of such property to an individual who was not an employee, or to
a third party.
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[4] A disciplinary hearing was convened, at the conclusion of which the applicant
was dismissed.
The Material Background
[5] Following her dismissal, the applicant, feeling aggrieved by the decision, referred
a dispute to the first respondent. T he applicant alleged that her dismissal was
both procedurally and substantively unfair, seeking redress for the manner in
which her employment was terminated. The applicant sought compensation for
her unfair dismissal.
[6] In respect of procedural fairness, the applicant claimed several procedural
shortcomings during the disciplinary hearing. She asserted that she was denied
the opportunity to call Mark Brown as her witness and she was not permitted
legal representation at the hearing. Furthermore, she alleged that the
chairperson presiding over the hearing was biased, whic h compromised the
fairness of the process.
[7] In respect of substantive fairness , the applicant disputed the claim that she had
breached any workplace rule. She maintained that there was no valid justification
for her dismissal based on the alleged misconduct.
[8] Upon conclusion of the arbitration process, it was determined that the applicant’s
dismissal was substantively fair but procedurally unfair. This distinction
recognised that, while the grounds for dismissal were justified, the process by
which she was dismissed did not adhere to procedural requirements.
[9] As a result a ruling ordering the third respondent to compensate the applicant an
amount of R15 793.76 by no later than 17 December 2021 was issued.
[10]
It is this amount that is sought to be reviewed and set aside with the applicant
now seeks to have this compensation amount reviewed and set aside,
challenging the sufficiency of the award in light of the procedural unfairness
determined at arbitration.
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The Summary of the Grounds of Review
[11] The applicant, dissatisfied with the outcome of her dismissal, initiated an unfair
dismissal dispute before the first respondent. Her complaint was based on both
procedural and substantive unfairness, contending that the dismissal was flawed
not only in the manner in which it was conducted but also in the reasons provided
to justify it.
[12] The applicant further asserts that the commissioner committed misconduct or
made a material error of law. Specifically, she argues that the commissioner
failed to consider the absence of reasonable evidence to support the finding that
the dismissal was substantively fair.
[13] In support of her contention, the applicant maintains there was no valid reason
for her dismissal. She points out that no witness was available to testify regarding
the alleged inducement of a financial settlement with Mr Brown.
[14] Furthermore, it is evident that Mr Brown had access to the relevant email before
his departure as both an employee and director of the company. The applicant
also notes that she was unable to fully present her defence due to the absence of
legal representation.
[15] The applicant additionally claims that the third respondent engaged in forum
shopping by pursuing criminal charges, which were subsequently dismissed by
the National Director of Public Prosecutions (NDPP) for lack of evidence. The
applicant asserts that the commissioner disregarded this aspect of the case.
[16] The applicant’s fourth ground for review relates to the alleged failure to
demonstrate remorse. She argues that it is unreasonable to expect an individual
to accept responsibility for actions they did not commit.
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The Evidence appearing from the disciplinary hearing and CCMA record
[17] The respondent led two witnesses, Ms Cloete and Ms Hullet, former being
Business Manager for Ashton Colleges and latter being an Information
Technology manager of the respondent.
[18] Ms Cloete’s evidence was that the applicant forwarded an email containing a
parent’s financial situation to her G mail account and this email ended up in Mr
Brown’s documentary evidence at Mr Brown’s CCMA hearing against the
respondent long after Mr Brown was dismissed from the school.
[19] Evidence of Ms Cloete proceeded to state Mr Brown did not have the specific
email forwarded to applicant’s Gmail account and he could not have it as he was
already dismissed in April 2021 at the time to applicant forwarded the email.
[20] Mr Brown is the applicant’s brother who was dismissed by the third respondent in
November 2020. It was found with the assistance of Ms Hullet , that the applicant
forwarded the email to her private Gmail account on 6 April 2021.
[21] During the cross-examination of Ms Cloete, Ms Cloete agreed that Mr Brown was
a director of the third respondent until 12 April 2021 but she disputed that Mr
Brown could use the company information after he was dismissed thus changing
her version from the earlier one that Mr Brown could not have the email as he
was not one of the recipients.
[22] It became clear during the cross -examination of Ms Cloete that the basis of the
belief that Mr Brown could not have had access to the email was because he
was suspended and his emails were locked the day he was dismissed and it is
now known that Mr Brown ceased to be a director of the company on 12 April
2021.
[23] Ms Hullet confirmed that the applicant forwarded the email she could no longer
recall to her Gmail account. Ms Hullet also found that at the time when the email
was sent, Mr Brown had already returned his laptop to the respondent and the
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email was already locked out by her. The laptop was returned on 25 November
2020.
[24] Upon scrutinising the documents discovered by Mr Brown, the email in question
was clearly coming from a G oogle Mail and Ms Hullet could not explain any
further as she stated she does not work on a Google server.
[25] The applicant presented her evidence, and she was supported by Mr Brown. The
applicant’s testimony was that she was suspended on 14 April 2021 and later
she was subjected to a disciplinary hearing on 21 April 2021.
[26] In preparation for her disciplinary hearing, she through her legal representatives
requested to call Mr Brown as her witness.
[27] Her request was declined without any reason. This was done despite the
respondent’s policy providing for one to call witnesses for a hearing.
[28] The email from about financial situation of parents was sent during Mr Brown’s
tenure as a Director of the third respondent and an EXCO member and Mr Brown
would have been privy to it and he would have been copied on the email.
[29] In response to the allegation of bribery, the applicant denied this allegation on the
basis that the information stated in that charge is a public domain information and
financial liaison, bursar and principals were all privy to it. Mr Brown was also
entitled to that information.
[30] On the charge of collusion, the applicant denied it and stated that there was no
proof presented of her eliciting financial settlement and on industrial espionage,
there was also no evidence there in that she never gave any information to Mr
Brown.
[31] The explanation for forwarding the email to her G mail account on 6 April 2022,
was that she was constantly in hospital as her husband was sick and there was a
likelihood that she would be called for Mr Brown’s hearing to be a witness for the
third respondent so she wanted to prepare for that likelihood.
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[32] The applicant testified in the disciplinary hearing that when she discussed the
issue of an email with Mr Brown, Mr Brown stated that he had set up a
programme as a director to access anyone’s email or anyone’s computer.
[33] Mr Brow n testified that during hard lockdown in 2020 he had directed that he
wanted to know everything about the company in particular when parents were
giving the three months’ notice to withdraw their child from school. He testified
that he was signing off each family leaving the school in order to determine
whether the numbers were increasing or decreasing, and he confirmed it is at
that stage that the email in question would have come into his knowledge.
[34] Even if he did not have the email, because he was still a director of the company
and if it was proven he received it from the applicant, that would have been well
within his right because he was not an outsider, if one has regard to the fact that
he was the director of the third respondent until 12 April 2021.
[35] Mr Brown testified that the settlement at his arbitration was entered into between
him and Mr Buys, prior to the arbitration and no lawyer was involved and as such
that settlement was not induced by any document.
[36] The entire version of Mr Brown in relation to how he obtained the email was not
put to the witnesses for the respondent. Mr Brown’s evidence on how the
settlement of his CCMA matter was reached was also not disputed as the person
who represented the third respondent was not called at all.
Commissioner’s analysis of evidence
[37] This court cannot find fault with the analysis of evidence in as far as it relates to
procedural fairness. The commissioner was correct in finding that the applicant’s
dismissal was procedurally unfair.
[38] In his analysis of evidence relating to substantive fairness, the commissioner
stated that Ms Smit could not justify sending an email entailing financial position
of a parent to her private gmail account.
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[39] The commissioner accepted that this email was exchanged between brother and
sister and it is the very email that was used by Mr Brown during the arbitration at
CCMA and this email led to the settlement of the dispute.
[40] It was also found that the applicant had no reason to send the email to her G mail
account other than to assist Mr Brown and as such she contravened the
respondent’s rules.
The Law
[41] The review court is not empowered to determine a dispute, its power is to correct
the irregularities of the previous process.
[42] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v C ommission for
Conciliation, Mediation and A rbitration1, the test for review was affirmed on
review as follows:
“A review court must ascertain whether the arbitrator considered the principal
issue before him/her, evaluated the facts presented at the hearing and came to a
conclusion which was reasonable to justify the decisions he or she arrived at.”
[43] The court is not required to assess every individual factor in isolation when
determining how the commissioner addressed each aspect.
[44] The reviewing court must evaluate the totality of the evidence presented. The
ultimate question is whether the commissioner’s decision is one that a
reasonable decision-maker could reach.
Analysis of Evidence
[45] Upon reviewing all evidence, including the omission of calling Mr Buy s who
reportedly entered into a settlement with Mr Brown as a witness, and considering
inconsistencies in Ms Cloete’s testimony, the court concurs with the applicant
1 (2014) 35 ILJ 943 (LAC) at para 16.
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that a reasonable commissioner would not find the dismissal in this matter to be
substantively fair.
[46] There was no substantive information provided beyond the assertion that
company email was to be used solely for business communication, which the
applicant acknowledged.
[47] The presumption that the applicant forwarded an email to her Gmail account and
subsequently shared it with her brother, who allegedly used it to persuade the
third respondent to settle the case, is unsupported.
[48] The conclusion that the applicant’s email sent to her Gmail account was used by
Mr Brown to induce the third respondent to settle his CCMA case lacks
evidentiary basis, as no proof regarding the terms or grounds for settling Mr
Brown’s CCMA matter was presented.
[49] The sole evidence regarding the settlement of Mr Brown’s CCMA matter is Mr
Brown’s own testimony, indicating the settlement resulted from negotiations with
Mr Buys at the door of first respondent without a formal hearing. This testimony
remained uncontested by the third respondent and therefore stands.
[50] It is established law that when an employee’s dismissal is undisputed, the burden
rests on the employer to demonstrate the fairness of such dismissal. The third
respondent failed to meet this responsibility.
[51] From the evidence led, t he court finds that the applicant was unfairly affected by
circumstances arising from her familial relationship with Mr Brown. Notably, it is
apparent that the applicant experienced adverse consequences due to being Mr
Brown’s sister. This association led to unjust hardship for the applicant since
2021.
[52] The applicant has informed the second respondent that she was not seek ing
reinstatement to her previous position, but rather requests compensation as an
appropriate remedy for the unfair treatment endured.
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[53] Given the applicant’s history of exemplary conduct and a clean employment
record, the court considers it fair and equitable to award increased compensation
from half a month to ten months.
[54] In the premises, the following order is made:
Order
1. The arbitration award issued by the second respondent in case number
GAEK3442-21 is hereby reviewed and set aside.
2. The arbitration award is substituted with an order that the dismissal of the
applicant was both procedurally and substantively unfair.
3. The third respondent is ordered to pay the applicant compensation
equivalent to 10 months’ salary which is payable on or before 31 March
2026.
4. There is no order as to costs.
__________________________
A. Gxogxa
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Mr Levin of Clifford Levin Incorporated
For the First and Second Respondent : No appearance
For the Third Respondent : Adv S Tilly
Instructed by : Cliffe Dekker Hofmeyr Attorneys