IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURGE JUDGMENT
Not Reportable
Case no: JR 1121/2022
In the matter between:
QUALITY COUNCIL FOR TRADES AND OCCUPATION Applicant
and
COMMISSION FOR CONCILIATION MEDIATION
AND ARBITRATION First Respondent
COMMISSIONER PAUL BOTHA N.O. Second Respondent
NEHAWU O.B.O LYNETTE NKOMO Third Respondent
Heard: 13 January 2026
Delivered: 04 March 2026
JUDGMENT
H A VAN DER MERWE AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
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[1] This is an application for the review of an arbitration award rendered by the
second respondent (the commissioner) in an unfair dismissal dispute.
[2] The third respondent (the employee) was employed by the applicant (the
employer) in a position called deputy director: assessments and assurance.
She was dismissed on 5 November 2021 and thereafter referred an unfair
dismissal dispute to the first respondent (the CCMA). In his award, the
commissioner found that the employee’s dismissal was procedurally and
substantively unfair.
[3] The employer challenges the award on broadly two grounds. First, it is
contended that the commissioner’s refusal to permit the employer the benefit
of legal representation is reviewable. Second, the employer contends that the
award falls to be reviewed when measured against the Sidumo test, that is
that the award is one that a reasonable decision-maker could not reach.
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[4] The essential facts were largely common cause in the proceedings before the
commissioner.
[5] The employee was employed on a probationary basis at the end of which she
was made a permanent employee with effect from 1 July 2019, although she
was only advised of her permanent employment on 28 July 2020.
[6] The employer is a public entity, which is responsible for accreditation of skills
development providers, amongst other functions. This function requires the
vetting of such providers, to ensure that they possess, for instance, the right
equipment to be used in the training of individuals. This vetting is a
requirement for the accreditation of skills development providers. O ne of the
tasks assigned to the employee was to visit and inspect the facilities of Gijima
Holdings (Pty) Ltd (Gijima). The inspection was required for Gijima’s
accreditation. The employee was meant to perform the inspection on
27 May 2019 and thereafter submit a verification report . She did not attend at
the premises but submitted a verification report nonetheless that indicated
that she did.
the premises but submitted a verification report nonetheless that indicated
that she did.
1 Sidumo and another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) para 110;
Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) para 33
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[7] Matters unravelled for the employee when on 4 or 5 June 2019
representatives of Gijima attended at the employer’s office and insisted on an
audience with a manager to discuss the fact that Gijima has not been issued
with an accreditation letter. Ms Diane Kemp obliged. (Ms Kemp was employed
as the director of the employer’s assessment unit, a position senior to the
employee’s position.) The representatives of Gijima informed Ms Kemp that
no visit to its premises took place. This came as a surprise to Ms Kemp, as a
verification report had been submitted by the employee. Ms Kemp then sent
an email to the employee, asking for the pictures she was supposed to take of
Gijima’s facilities during her visit. That is when the employee admitted that
she did in fact not attend at Gijma’s premises, citing getting lost as her
excuse.
[8] On 20 June 2019 a meeting was held between the employee, Ms Kemp and
someone else employed in the employer’s human resources department. In
this meeting the employee was told that she should submit a report on the
matter. The person employed in the human resources department advised the
employee that one of the consequences of her misconduct might be a final
written warning, but nothing was confirmed. It was made clear to the
employee that the consequences of her misconduct fell to be determined in
disciplinary proceedings to come. The importance of this is that the employee
must have realised that her fate lay not in any decision that Ms Kemp may
make, but in the outcome of disciplinary proceedings.
[9] Three weeks later the employee submitted a report dated 3 July 2019. In her
report of 3 July 2019 the employee explained that she did not perform the
inspection, because she could not find Gijima’s premises. She gave up the
effort to find its premises, with the intention of returning later on, but could not
when she experienced back pain. Importantly, in her report she says nothing
when she experienced back pain. Importantly, in her report she says nothing
about the verification report that she submitted that indicated that she did
attend at Gijima’s premises. The verification report, misleading as it is
regarding the employee’s inspection of Gijima’s facilities, lies at the heart of
this matter.
[10] On 24 June 2019 the employee was appointed to act in the position of
another superior of hers, Mr Shannon Davids.
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[11] The employee was served with the allegations of misconduct proffered
against her on 20 March 2020. The well -known lockdown that followed the
outbreak of the COVID -19 pandemic delayed the commencement of the
disciplinary enquiry, so that it did not commence until 6 May 2021, when it
was postponed due to the employee’s illness.
[12] On 26 May 2021 the employee was appointed to act in Ms Kemp’s position
during the latter’s absence.
[13] The hearing reconvened on 7 June 2021.
[14] On 2 July 2021 the employee was again appointed to act in Ms Kemp’s
position.
[15] The disciplinary hearing was concluded on 26 October 2021 and as recorded
above, the employee was dismissed on 5 November 2021.
[16] At the hearing of this application, Mr Finck who appeared for the employee
conceded that, all other things being equal, the false verification report
submitted by the employee is a sufficient cause for a substantially fair
dismissal. Mr Finck’s concession is consistent with a long line of judgements
by this court and higher courts, to the effect that, generally, dishonesty by an
employee justifies summary dismissal.
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[17] All other things are not necessarily equal however. The delay on the part of
the employer to initiate disciplinary proceedings is relevant. Potentially so too
the fact that the employee was placed in acting positions, after her
misconduct was discovered by Ms Kemp on 4 or 5 June 2019 (that is on
24 June 2019, 26 May 2021 and 2 July 2021). The fact that the employee was
advised that she was made a permanent employee on 28 July 2020 also
should be considered. All of these matters may potentially indicate that the
employer forgave the employee’s misconduct and therefore tends to
compromise the employer’s right to dismiss the employee. The real question
2 Sappi Novaboard v Bolleurs (1998) 19 ILJ 784 (LAC); Central News Agency v CCAWUSA (1991) 12 ILJ 340
(LAC); Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC); Lahee Park Club v Garratt [1997] 9
BLLR 1137 (LAC); Woolworths (Pty) Ltd v Mabija (2016) 37 ILJ 1380 (LAC); Standard Bank of SA v
CCMA (1998) 19 ILJ 903 (LC)at 630–1; Kalik v Truworths (Gateway) (2007) 28 ILJ 2769 (LC); Hulett
Aluminium v Bargaining Council for the Metal Industry (2008) 29 ILJ 1180 (LC)
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is therefore whether the delay, the permanent employment and the
appointment of the employee in acting positions is such as to justify the
conclusion that the employer forgave her misconduct.
[18] When considered in the context of the pertinent facts, it cannot fairly be said
that the employer forgave the employee’s misconduct. A delay in initiating
disciplinary proceedings is a matter of the circumstances of each individual
case. Here the delay was significant (a period of nine months or so between 3
or 5 June 2019 and when the employee was served with the notice that
signalled the commencement of the disciplinary proceedings on
20 March 2020). What is important however for the question as to the
substantive fairness of the employee’s dismissal is whether the delay could be
interpreted as an indicator of the pardoning her conduct . It could not be,
inasmuch as the employee was told that the consequences of her misconduct
fell within the province of the human resources department and the
disciplinary proceedings to come. This is in any event exactly what one would
expect in an organisation such as the employer. That there was a delay by the
human resources department to get the disciplinary process going, from the
employee’s point of view, is better explained by bureaucratic inefficiency
rather than a decision by that department that the employees’ misconduct was
forgiven. This is so as it was made known to the employee that her
misconduct was viewed in a serious light and that it would be the subject
matter of disciplinary proceedings.
[19] The same goes for the appointment of the employee in acting positions. It was
Ms Kemp’s decision to place the employee in an acting position to temporarily
fill her own position. While she did so with knowledge of the employee’s
misconduct, in her view , the employee was innocent until proven guilty and
the pending disciplinary proceedings against her were to be kept confidential.
the pending disciplinary proceedings against her were to be kept confidential.
Ms Kemp held a favourable view of the abilities of the employee, so long as it
did not involve vetting service providers. On this basis Ms Kemp’s decision to
appoint the employee in an acting position made sense. It also seems that it
was Mr Davids’ decision to place the employee in an acting position when his
own position had to be filled. However, it must have been obvious to the
employee that it was not for either Ms Kemp or Mr Davids to decide whether
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the employee’s misconduct should be forgiven or not. That decision was
always going to be taken by the chairperson of a disciplinary enquiry.
[20] It could have been a different matter if the human resources department
conducted itself in a way that fairly suggested to the employee that her
misconduct would not be acted upon. But, as the relevant conduct is that of
two people who the employee must have known did not have the power to
forgive her misconduct, their conduct is irrelevant.
[21] The same goes for the permanent appointment of the employee. So long as
the disciplinary proceedings remained pending, the employee could not fairly
have assumed that her employer as such, resolved to turn a blind eye to her
misconduct.
[22] Relevant to all these potential indicators of forgiveness is the fact that the
employee’s misconduct involved her dishonesty, so that she must have
realised that her employer would treat it as a serious matter that would not
merely be swept under the rug.
[23] It should therefore follow that the employee’s dismissal was substantively fair.
[24] As for procedural fairness, as Ms Naidoo submitted on behalf of the employer,
there is no suggestion that the delay in the commencement of the employee’s
disciplinary proceedings created any prejudice for the employee in the
conduct of her defence in the disciplinary enquiry. The employee herself did
not regard the extraordinary long duration of the disciplinary enquiry itself,
once it commenced, as prejudicial, in that she recognised the disruptive effect
of the lock -down following the outbreak of the pandemic. The delay is
returned to below in the context of the commissioner’s assessment of this
topic.
[25] The employee’s dismissal was therefore also procedurally fair.
[26] In his award, the commissioner came to the opposite conclusion. The
commissioner referred to the principle that a delay between an employee’s
misconduct and the institution of a disciplinary hearing, could give rise to an
misconduct and the institution of a disciplinary hearing, could give rise to an
impression with the employee that the employer condoned their conduct, such
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as would engage the principles of estoppel or waiver. However, the
commissioner failed to consider whether in fact the employee formed that
impression and if she did, whether her impression was reasonable.
[27] A long delay may indicate that the trust relationship between employer and
employee has not broken down, but it depends on the facts of each case.
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[28] A long delay may have consequences for the procedural fairness of a
dismissal. However a long delay does not per se lead to procedural
unfairness. Among the factors to consider is the reasonableness or otherwise
of the delay, the explanation for the delay, whether the employee took steps
to assert the right to prompt disciplinary proceedings, whether material
prejudice was caused to the employee, the seriousness of the misconduct
and whether it justifies an investigation that takes time to complete. The
factors are to be considered holistically.
4 The commissioner found that the
employer offered no acceptable explanation for the delay. Ms Seema’s
evidence was the effect that the employer has elaborate bureaucratic
processes to follow to get a disciplinary enquiry together. The employer’s is
certainly not a paragon of an efficient organisation, but that factor alone does
not go far enough to label the proceedings as procedurally unfair, especially
as it appears that the commissioner did not consider that the employee took
no steps to speed up the process and did not raise prejudice as a result of the
delay. The effect of the lock-down should also be considered.
[29] The fact that the employee was advised that she was made a permanent
employee (on 28 July 2020) in the midst of the pertinent events as set out
above. In her evidence, the employee testified that when she was advised
that her employment was made permanent, she thought that her misconduct
was forgiven. This belief of hers could not have been reasonable however, as
the disciplinary proceedings against her was still pending at the time, it having
the disciplinary proceedings against her was still pending at the time, it having
been instituted on 20 March 2020. The hearing itself only commenced on
6 May 2021, but that was due to the lock-down.
3 Stokwe v Member of the Executive Council, Department of Education, Eastern Cape & others (2019) 40
ILJ 773 (CC) para 167
4 Stokwe v Member of the Executive Council, Department of Education, Eastern Cape & others (2019) 40
ILJ 773 (CC) para 72
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[30] The commissioner also placed significance on the fact that the employee was
not suspended pending the disciplinary proceedings against her. That
however misses the proper purpose of a suspension. An employee is
suspended at a time when the misconduct of the employee has not yet been
established. Its proper function is to ensure the integrity of an investigation or
where the employee’s presence may ‘endanger the well-being or safety of any
person or property’.
5 None of these considerations were present.
[31] The commissioner found that the employer’s disciplinary code prescribes a
final written warning for the type of misconduct committed by the employee.
The disciplinary code is not a model of clarity. For ‘[d]eliberately giving false
statements or evidence in the execution of duties’ the indicated sanction is
indeed, oddly, a final written warning. However, for ‘dishonesty or attempted
dishonesty… or giving false or misleading statements to any stakeholders,
internal or external’ the indicated sanction is, as one would expect, dismissal.
[32] The commissioner found that the employee performed her duties in an
acceptable fashion. To this extent the award is consistent with the evidence.
Ms Kemp, for instance, described the employee as a ‘star’ employee.
However, dishonesty and competence are two very different attributes of an
employee and one has very little, if anything, to do with the other.
[33] The commissioner’s finding that the employee apologised for her misconduct
is not consistent with the evidence. She did concede in her report of
3 July 2019 that she did not attend at Gijima’s premises and acknowledged
her ‘mistake’, but offered no apology for it. Moreover, the stand-out feature of
her misconduct is the false verification report she submitted. The false report
is not even mentioned in her report of 3 July 2019.
[34] Finally, the commissioner awarded the employee reinstatement, despite her
unequivocal evidence that she did not seek reinstatement.
unequivocal evidence that she did not seek reinstatement.
[35] The pertinent question then is whether the award is so wrong as to be one
that a reasonable decision- maker could not reach. On every pertinent issue
the commissioner came to the wrong conclusion: he awarded reinstatement
5 Edumbe Municipality v Putini (2020) 41 ILJ 891 (LAC) paras 38 and 45
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when it was impermissible to do so in terms of section 193(2) of the Labour
Relations Act 6; he placed great emphasis on the employee’s acting
appointments without considering that those appointments were not made by
persons who were responsible for judging the employee’s conduct or the
sanction it should attract; he found that she apologised for her misconduct
when she did not and then overlooked the more pertinent element of her
misconduct; he failed to consider all the factors relevant to the implications of
the employer’s delay; while he recognised that the employer’s disciplinary
code may be deviated from, he focussed on only one part of it; he failed to
consider that the employee was given a permanent position while the
disciplinary proceedings were still pending against her. When an award is
wrong on all its essential findings like the one in this case, the award is indeed
reviewable on the Sidumo-test.
[36] The award should therefore be set aside and replaced with a finding that the
dismissal of the employee was substantively and procedurally fair.
[37] It is there fore not necessary to consider the ground of review related to the
commissioner’s refusal to allow the employer legal representation in the
arbitration proceedings.
[38] This application was brought late, however, the parties agreed to forego
reliance on preliminary points so that the matter can be decided on its merits.
Condonation should be granted on that basis.
[39] In the result the following order is made:
Order
1. Condonation is granted for the late filing of the review application;
2. The arbitration award issued by the first respondent under case
number GATW 13991-21 dated 24 July 2022 is reviewed and set aside
and substituted with the following: “The employee party’s referral is
dismissed”;
6 66 of 1995
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3. There is no order as to costs.
_______________________
H A van der Merwe
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant: Ms P Naidoo, Cheadle Thompson & Haysom Inc