THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE Number: JR 1937 / 23
In the matter between:
LEWIS STORES (PTY) LTD Applicant
and
SKHUMBUZO WALTER MLANGENI First Respondent
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION Second Respondent
ROLIEN VELLOEN N.O. (AS COMMISSIONER) Third Respondent
This j udgment was handed down electronically by circulation to the parties and
legal representatives by email. The date and time for hand- down is deemed to
be 11 March 2026
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
11 March 2026
2
Summary: CCMA arbitration proceedings – review of award of arbitrator – s
145 of LRA 1995 – review test considered – entails determination of conduct of
arbitrator, gross irregularities and reasonable outcome
Dismissal – gross negligence – principles considered – conduct of employee
constituting gross negligence – arbitrator failing to have proper regard to
evidence establishing gross negligence – arbitrator negating and
misconstruing essential facts relating to misconduct – finding of substantive
unfairness reviewable
Dismissal – arbitrator unduly limiting issue of misconduct – arbitrator failing to
decide complete case – finding that no misconduct existed irreconcilable with
evidence – arbitrator failing to conduct proper evaluation of the evidence –
constitutes material failure by arbitrator – conclusion arrived at by arbitrator on
the facts unreasonable / reviewable
Review of award – conclusion of arbitrator unreasonable – arbitration award
reviewed and set aside – substituted with award that dismissal substantively
fair
JUDGMENT
SNYMAN, AJ
Introduction
[1] The applicant has brought an application to review and set aside an arbitration
award of an arbitrator appointed by the Commission for Conciliation, Mediation
and Arbitration (CCMA) to arbitrate an unfair dismissal dispute between the
applicant and the first respondent. In terms of this award, the third respondent,
as the duly appointed CCMA arbitrator, determined that the dismissal of the
first respondent by the applicant was substantively unfair. The application has
been brought by the applicant in terms of section 145 of the Labour Relations
Act (LRA)
1.
1 Act 66 of 1995 (as amended).
3
[2] The arbitration award of the third respondent, dated 30 August 2023, was
received by the applicant on the same date. In terms of section 145(1) of the
LRA, any review application must be brought within six weeks from date the
party seeking to challenge the award on review, having become aware of the
award. The applicant’s review application was brought on 12 October 2023,
which is within this time limit . The review application is therefore properly
before this Court for determination. The application has been opposed by the
first respondent.
[3] I will now proceed to decide the applicant’s review application by first setting
out the relevant background facts in this matter.
The relevant background
[4] The applicant conducts business in the retail industry, selling furniture,
appliances and electronic and related goods out of a large number of retail
stores (branches) spread across the Country. The first respondent at the time
of his dismissal on 17 August 2022 was employed in the position of Divisional
Credit Manager (DCM) for the Eastern Division of the applicant. He occupied
the DCM position for about four years prior to his dismissal . Before that, he
had a total of 15 years' working experience with the applicant.
[5] Because of the nature of its business, and in particular its extent and
geographical spread, the applicant substantially regulates its business by way
of a number of prescribed practices, policies and procedures , of which
employees at all times must be aware of and adhere to. These standards are
communicated to employees on a regular basis through a system and process
referred to as the Administrative Directive Memorandum (ADM).
[6] The applicant has a number of separate divisions. Each of these divisions
would have a Divisional General manager (DGM) and a Divisional Credit
Manager (DCM).
2 In essence, the DCM is assigned to oversee and manage
what can generally be called customer credit in the Division. DCMs are
what can generally be called customer credit in the Division. DCMs are
allocated core duties relating to the management of the D ivisions allocated to
2 There are also other Divisional Managers that are responsible for finance and sales in the division.
4
them. These core duties are reflected in a specific job profile issued to each
DCM, and can be summarized as: (1) ensur ing the effectiveness of credi t /
debtors policies and procedures in each branch; (2) planning and co-
ordination of the activities of the Regional Accounts Manager s that report into
the DCM; (3) train ing the Regional Accounts Manager s and all staff dealing
with the actioning of accounts ; (4) ensur ing that all branches and individual
staff members have daily, weekly and monthly targets and progress to
achieving them; (5) informing the Operational Credit Manager of any situation
which could constitute an unacceptable risk in a branch; and (6) reporting any
unacceptable situations to the Regional Controller and DGM so that corrective
action is implemented. In order to execute these duties , DCMs must regularly
visit and monitor branches under their supervision and control and actively
engage with employees in the branches
.
[7] Because of the large number and geographical spread of the branches, the
applicant’s head office is to a large extent reliant on information provided by
Stock Clerks, Branch Managers, Warehouse Managers, Regional Controllers,
DCMs and DGMs overseeing operations in each of the branches / regions /
dvisions to monitor th e business's financial status / affairs, to manage
operations at a group level, and to ensure compliance with all prescribed
policies and procedures. In this context, the applicant places a great deal of
trust in its employees, specifically those employees in management positions ,
such as the DCMs. As such, any contraventions of the applicant’s policies,
practices and/or procedures are viewed in a serious light and may result in the
dismissal of employees who contravene the same
.
[8] It was undisputed that the first respondent was at all times fully aware of all the
applicant’s policies and procedures, was familiar with the ADM, and knew
what his core duties as DCM required of him. In particular, he was aware of
what his core duties as DCM required of him. In particular, he was aware of
his core duty to immediately report any impropriety he may find to exist in any
of the branches whilst carrying out his oversight and supervisory functions.
The first respondent was also well experienced in his role as DCM
.
[9] The events giving rise to the ultimate dismissal of the first respondent arose
from what is termed an annual ‘write- off’ cycle that is embarked upon by the
applicant in every financial year. The applicant’s financial year is from 1 April
5
of the year to 31 March of the following year. At the conclusion of the financial
year, and in particular in the period beginning January to end March, the
applicant does a comprehensive assessment of all accounts that may
constitute bad debts, so that the status of these accounts can be determined
and resolved before the commencement of the next financial year.
[10] How this actually works is that employees in the Finance Department work
through all the bad debt accounts, which are accounts of customers who have
consistently failed to make payments , and identify accounts that must
potentially be written off as bad debts. But then, and in this period January to
March, employees in each of the branches are t asked to focus on contacting
and / or tracing these potential bad debt customers, with the view to securing
either the settlement of the accounts, or at least a current payment on the
account, which intervention would cause the account not to be regarded as a
bad debt. If the employees are successful in their efforts in this regard, the
potential bad debt account is considered to be ‘ saved’ from having to be
written off as a bad debt , and termed a ‘ saved account’. However, if the
employees are not successful in these efforts, the account must be written off
as a bad debt with all its adverse financial implications to the applicant
.
[11] As a result of the adverse financial implications of having to write off a bulk
quantity of accounts as bad debts, the applicant does require commitment
from all employees in this write off period to save as much accounts as
possible. And importantly in this context, employees are incentivised, only in
this period, for all accounts saved, by way of a financial bonus . The incentives
are lucrative, and because of this, employees are in informed in writing
beforehand of the amounts of the incentives, however, are also at the same
time specifically warned that any dishonesty in this regard will not be tolerated
time specifically warned that any dishonesty in this regard will not be tolerated
and employees contravening policy will face dismissal.
[12] How the incentives work is that
employees are given a target of saved
accounts to achieve. If they achieve that target, they receive a financial
bonus. This bonus would apply across management levels as well, and if
the overall target for the division is achieved, then the first respondent, as
DCM, would also receive a financial bonus.
6
[13] As per the normal business practice, the same modus operandae then applied
for the write -off period from January to March 2022. In this period, and in the
first respondent’s Division, it was reflected that the account saving target had
not only been achieved, but had been exceeded. As a result, all involved
employees, including the first respondent himself, received financial bon uses.
But this favourable outcome however turned out to be based on a complete
manipulation of the applicant’s systems, and truthfully considered, most of the
accounts reflected as being saved were in fact not saved and in reality needed
to have been written off
.
[14] The irregularity came to the fore when the applicant’s head office management
noticed an inordinate amount of stock mark downs and stock shortages , as
well as refunds, within various branches in the Division . This state of affairs
was highly unusual. As a result, the applicant was prompted to conduct an
audit investigation into this anomaly. This audit investigation, carried out by the
applicant’s audit department, revealed that employees in the branches
involved in the account saving process had been fraudulently saving accounts
in order to meet their targets and receive the financial bonuses . This
fraudulent account saving was done in several ways, including stock
manipulation, and using illegitimate funds received from other fraudulent /
unlawful conduct. A specific example was that employees would mark down
stock which had already been bought on account by a customer, causing the
total amount owing as reflected on the applicant’s systems to be reduced, and
that reduction is misrepresented to be a payment by the customer and thus a
saved account. Or, refunds to any customer would be processed, without any
involvement of the customer, and this refund would be allocated to other
potential bad debt accounts, thereby also reflecting such account as saved. In
potential bad debt accounts, thereby also reflecting such account as saved. In
short, it was an elaborate unlawful stratagem, perpetrated on a significant
scale, designed to obtain payment of financial bonuses to the employees
.
[15] The first respondent, as DCM, was required to have proper oversight over this
entire process. But it appears that he did not discover any impropriety and
certainly never reported such. If it was not for the audit investigation carried
out by the applicant’s head office, this may well have never been discovered.
The upshot of this entire unlawful account saving wa s that a total of R13
million in bad debts had to be written off in the new financial year, causing a
7
material financial loss to the applicant. And further, financial bonuses were
paid to non-deserving employees.
[16] After the audit investigation had commenced, the first respondent was asked
to provide his input into what happened. It is only then, for the first time, that
the first respondent came up with a written statement, in which he in essence
admitted that where it came to the previous year write off period (January to
March 2021), he became aware of fraudulent account saving, in the course of
June 2021. In this statement, he alleged that he did report this to management
for the applicant, and he was then asked i f he had proof of this. He responded
that he had no proof and only suspicions, and the matter was left there. The
applicant viewed this statement as acknowledgement (admission) by the first
respondent of wrongdoing and an indication that he failed to discharge his
duties
.
[17] As a result of all of the above events, the first respondent was charged with
two charges of misconduct, in the form of gross negligence. These charges
read as follows
:
‘Charge 1: Gross Negligence in that between 2021 and 2022 you neglected to
ensure that report the wrongdoings in the Eastern Division regarding the
marking down of stock and the write off accounts that were being saved by
staff You further failed to escalate this matter so senior management so that it
can be properly investigated and that company assets be protected from these
activities. Your conduct has led to a serious financial loss to the company
because of these mark downs. The trust relationship has been irreparabl y
broken.
Charge 2: Gross Negligence in that between 2021 and 2022 you neglected to
ensure that you provide a supervisory oversight as the DCM in the Eastern
Division by failing to ensure that you put systems in place for the write off
accounts not to be unethically saved by staff, this is despite the fact that you
were aware of these wrongdoings in the Division. Your conduct is totally
were aware of these wrongdoings in the Division. Your conduct is totally
unacceptable, especially in your seniority as the Divisional Credit Manager as
this has a/so led to yourself and staff unduly qualifying for the write off
incentives. Your actions has seriously dented the employment relationship
which is based on trust
.’ (sic)
8
[18] A disciplinary hearing in respect of these two misconduct charges was held on
11 August 2022. Pursuant to this disciplinary hearing, the first respondent was
found guilty of both charges against him, and he was then dismissed from his
employment on 17 August 2022 . Dissatisfied with being dismissed, the first
respondent referred an unfair dismissal dispute to the CCMA on 30 August
2022. The dispute could not be resolved at conciliation, and the proceeded to
arbitration where it came before the third respondent as arbitrator. The
arbitration was conducted on 7 and 8 June, 17 and 19 July, and 10 – 11
August 2023
.
[19] On 7 June 2023, at the first sitting of the arbitration, the issues in dispute were
narrowed, and the third respondent recorded what had been agreed to by the
parties as to the issues to be decided in the arbitration. Where it came to
procedural fairness, the first respondent placed two procedural aspects in
dispute. The first was a contention that the chairperson was biased. The
second was that he was denied the opportunity to peruse documents prior to
the hearing. As to substantive fairness, the first res pondent disputed that he
committed any misconduct. The first respondent also raised an inconsistency
challenge where he contended two other employees (Regional Credit
Managers) should also have been dismissed but were not dismissed
.
[20] Several witnesses testified for the applicant in the arbitration. These witnesses
were: (1) Harry Rankapole (Rankapole), the chairperson of the disciplinary
hearing; (2) Sally Swanepoel (Swanepoel), the Senior Divisional Credit
Manager to whom the first respondent reported at the time of his dismissal; (3)
Clyne Erasmus (Erasmus), the applicant’s General Manager ; (4) Gerrit
Loggenberg (Loggenberg), the Divisional Human Resources Manager ; (5)
Brendan Le Roux ( Le Roux ), the Internal Auditor who conducted the
investigation; (6) Disebo Maleka (Maleka), a Regional Accounts Manager; and
investigation; (6) Disebo Maleka (Maleka), a Regional Accounts Manager; and
(7) Andre Strydom (Strydom), the General Manager Credit . The first
respondent testified on his own behalf and called one witnesses, being Theo
Dikgale (Dikgale), a former Regional Accounts M anager employed at the
applicant
.
[21] In her arbitration award dated 30 August 2023, the third respondent found in
favour of the first respondent . She f ound that the first respondent’s dismissal
9
was substantively unfair on the basis that he did not commit the misconduct
with which he had been charged. She awarded the first respondent
reinstatement on the same terms and conditions of employment he enjoyed
prior to his dismissal an d ordered the applicant to pay back pay from the date
of dismissal to date of reinstatement in the sum of R375 991.20 . It is these
findings that form the subject matter of the current review application of the
applicant.
[22] What is also apparent from the third respondent’s arbitration award is that she
made no findings on procedural unfairness, nor did she make any finding on
the first respondent’s dismissal being unfair as a result of inconsistency. There
is no cross review raised by the first respondent in this respect. Therefore,
none of these issues need to be dealt with further in this judgment.
The test for review
[23] The test for review is trite. In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others, 3 the Court held that ‘ the reasonableness standard
should now suffuse s 145 of the LRA ’, and that the threshold test for the
reasonableness of an award was: ‘… Is the decision reached by the
commissioner one that a reasonable decision-maker could not reach?...’
4. This
means that the award in question is tested against all the facts before the
arbitrator to ascertain if it meets the requirement of reasonableness. 5 In
conducting this test it is necessary for the Court to enquire into and consider
the merits of the matter and the entire evidence on record in deciding what is
reasonable.
6 In Herholdt v Nedbank Ltd and Another7 the Court said:
‘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
3 (2007) 28 ILJ 2405 (CC).
4 Id at para 110. See also CUSA v Tao Ying Metal Industries and Others (2008) 29 ILJ 2461 (CC) at
para 134; Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC) at para 96.
5 See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.
6 Id at para 41.
7 (2013) 34 ILJ 2795 (SCA) at para 25. See also Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold
Mine) v Commission for Conciliation, Mediation and Arbitration and Others (2014) 35 ILJ 943 (LAC) at
para 14; Monare v SA Tourism and Others (2016) 37 ILJ 394 (LAC) at para 59; Quest Flexible Staffing
Solutions (Pty) Ltd (A Division of Adcorp Fulfilment Services (Pty) Ltd) v Legobate (2015) 36 ILJ 968
(LAC) at paras 15 – 17; National Union of Mineworkers and Another v Commission for Conciliation,
Mediation and Arbitration and Others (2015) 36 ILJ 2038 (LAC) at para 16.
10
fact, as well as the weight and relevance to be attached to the particular facts,
are not in and of themselves sufficient for an award to be set aside, but are
only of consequence if their effect is to render the outcome unreasonable …’
[24] In sum, applying the correct review test has a logical chronology. First, it is
ascertained whether there is a failure or error on the part of the arbitrator.
Second, and only where there is such a failure or error, it must be shown that
the outcome arrived at by the arbitrator was unreasonable, based on all the
evidence and issues before the arbitrator, even if it may be for different
reasons or on different grounds as those referred to by the arbitrator. 8 It would
only be if the consideration of the evidence and issues before the arbitrator
shows that the outcome arrived at by the arbitrator cannot be sustained on any
grounds, and the irregularity, failure or error concerned is the only basis to
sustain the outcome the arbitrator arrived at, that the review application would
succeed.
9
[25] As against the above principles and test, I will now turn to deciding the merits
of the review application by the applicant.
Analysis
[26] In deciding this case, it is appropriate to commence with some factual findings
made by the first respondent herself. She accepted the evidence presented by
the applicant that there was in fact an elaborate ‘scheme’ embarked upon by
the employees in the branches manipulating the accounts saved in the write
off period, so that the employees could benefit from incentives and receive
financial bonuses . This scheme was applied across many of the applicant’s
stores, and ultimately resulted in a loss of some R13 million in accounts
written off . So, it is not in issue that there was large scale wrongdoing that
occurred under the purview of the first respondent’s management duties and
responsibilities in his Division.
[27] According to the first respondent , the question she needed to answer was
[27] According to the first respondent , the question she needed to answer was
whether the first respondent should be held accountable for the operating of
8 Fidelity Cash Management Service (supra) at para 102.
9 See Campbell Scientific Africa (Pty) Ltd v Simmers and Others (2016) 37 ILJ 116 (LAC) at para 32;
Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (2015) 36 ILJ 1453 (LAC)
at para 12.
11
this scheme which took place in the branches under his purview. In this
respect, I am satisfied that she correctly identified the issue for determination.
However, the first respondent did not stop there, and then proceeded to
unduly further narrow the enquiry. She formulated what she needed to decide,
as reflected in her award, as follows: ‘ The evidence in respect of the
Applicant’s alleged negligence however only hammers on one point, that he
conceded that he had knowledge of the saving of accounts, as he stated in his
report that he know s of it since 2021’. This unduly narrow approach adopted
by the first respondent, in my view, unfortunately blinded her to what the issue
in dispute before her actually was, and what the first respondent had been
changed with and dismissed for . In short, the gross negligence for which the
first respondent was dismissed was always far more than him just being aware
of irregularities in 2021 and not reporting it. The consequence of this flawed
approach was that the first respondent negated pertinent evidence, leading to
an unreasonable outcome.
[28] As touched on above, what had happened i n 2022 is that only after the
investigation had already commenced, the first respondent gave a written
statement. This entire statement was quoted verbatim in the third respondent’s
award, and effectively formed the substratum of her award. What does appear
from the statement, as it reads, is that after the previous write off period in
2021, the first respondent had informed Erasmus (the G M) that he was
suspicious of the number of accounts that allegedly been saved. According to
the statement, Erasmus asked him if he had proof and his answer was ‘no’,
and that is where the matter ended. He also stated that he did conduct an
investigation of his own at one of the branches in 2021, and came across
three customers that were unlawfully indicated as saved. There is no
indication in the statement of what he did about it. The statement also dealt
indication in the statement of what he did about it. The statement also dealt
with a number of other unrelated issues where he accused store employees of
being dishonest, however this had little to do with the case at hand, and I will
not devote further attention to the same.
[29] The third respondent , when the considering the statement made by the first
respondent, found that the first respondent was not ‘ unequivocally aware’ of
the unlawful saving of accounts. She also finds that the first respondent was
not aware of the saving of accounts by way of ma rking down stock or refunds,
12
and no such instances ever came to his attention. She accepts that the first
respondent was ‘suspicious’ but had no evidence to back up his suspicions .
For these reasons, the third respondent finds that no misconduct could be
proven, as the first respondent was not aware of the misconduct relating to the
saving of accounts. This conclusion by the third respondent clearly illustrates
the consequences of her failure to properly determine the issue she had to
decide and what the first respondent was actually dismissed for, leading her to
a complete misconstruing of the evidence and the case to be decided.
[30] Before dealing with specific aspects of the evi dence, I am compelled to say
something about the manner in which the third respondent evaluated and then
determined the evidence. Importantly, she never found that any of the several
witnesses that testified for the applicant were not creditworthy or that their
evidence should for any reason be discounted or rejected. The transcript in
this matter, properly considered, also leaves me convinced that the testimony
by the applicant’s witnesses was indeed creditworthy, reliable, consistent in all
material respects, and should be accepted in deciding this matter. The
problem is that the third respondent conducts no credibility and reliability
assessment at all where it comes to all this evidence presented.10 The third
respondent, when making the pertinent findings that she did favouring the first
respondent, simply plumbed for his version without more, despite the clear
evidence presented by the applicant’s witnesses that directly contradicts such
version. And to make matters worse, the third respondent unreservedly
accepts the first respondent‘s version despite several material parts of the first
respondent’s testimony never being put to the applicant’s witnesses under
cross examination, which included the versions relating to the first
respondent’s disciplining of two other employees (dealt with in more detail
respondent’s disciplining of two other employees (dealt with in more detail
below), the version of what he had reported to Erasmus and under what
circumstances, the contention that he actually did his own investigation in
2022 about the saved accounts, and that two Regional Credit Managers were
responsible for a bu lk of the losses. 11 The third respondent’s failures in the
10 As said in SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) at para 5:
‘… To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of
the various factual witnesses; (b) their reliability; and (c) the probabilities …’.
11 In ABSA Brokers (Pty) Ltd v Moshoana NO and Others (2005) 26 ILJ 1652 (LAC) at para 39, the
Court said: ‘… A failure to cross -examine may, in general, imply an acceptance of the witness’
testimony… ’. And in Trio Glass t/a The Glass Group v Molapo NO and Others (2013) 34 ILJ 2662 (LC)
13
aforesaid respects constitutes a material irregularity, considering the following
dictum in Sasol Mining (Pty) Ltd v Ngqeleni NO and others12:
‘One of the commissioner's prime functions was to ascertain the truth as to the
conflicting versions before him. The commissioner was obliged at least to
make some attempt to assess the credibility of each of the witnesses and to
make some observation on their demeanour. He ought also to have
considered the prospects of any partiality, prejudice or self-interest on their
part, and determined the credit to be given to the testimony of each witness by
reason of its inherent probability or improbability. He ought then to have
considered the probability or improbability of each party's version. …’
[31] But what the third respondent further does is to in essence follow a reasonable
doubt approach in finding that despite all this unassai lable testimony, gross
negligence was not proven. This is evident from reasoning like ‘unequivocally’
and ‘knew’, as opposed to ‘likely’ and ‘reasonably should have known’. A
reasonable doubt approach is impermissible in deciding unfair dismissal
disputes in arbitration proceeding sunder the L RA. What is required to be
determined is what is called the ‘inherent probabilities’.13 The determination of
probabilities entails an inference to be drawn from the evidence as a whole, on
the following basis, as explained in SA Post Office v De Lacy and Another14:
‘The process of inferential reasoning calls for an evaluation of all the evidence
and not merely selected parts. The inference that is sought to be drawn must
be 'consistent with all the proved facts. If it is not, then the inference cannot be
drawn' and it must be the 'more natural or plausible, conclusion from among
several conceivable ones' when measured against the probabilities.’
at para 41, the Court held: ‘ … The effect of the failure to put such an important issue to the third
respondent under cross-examination must mean that this evidence must be disregarded…. ’.
12 (2011) 32 ILJ 723 (LC) at para 7. See also Blitz Printers v Commission for Conciliation, Mediation
and Arbitration and Others [2015] JOL 33126 (LC) at para 37; Southern Sun Hotel Interests (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others (2010) 31 ILJ 452 (LC) at para 20.
13 See SFW Group (supra) at para 5; National Union of Mineworkers and Another v Commission for
Conciliation, Mediation and Arbitration and Others (2013) 34 ILJ 945 (LC) at para 34; Mphigalale v
Safety and Security Sectoral Bargaining Council and Others (2012) 33 ILJ 1464 (LC) at para 12; Sasol
Mining (supra) at para 8.
14 2009 (5) SA 255 (SCA) at para 35. See also Govan v Skidmore 1952 (1) SA 732 (N) at 734A -C;
Food and Allied Workers Union and Others v Amalgamated Beverage Industries Ltd (1994) 15 ILJ
1057 (LAC) at 1064C-E; National Union of Mineworkers (supra) at para 37.
14
Deciding a matter on the probabilities thus entails a complete consideration of
all the evidence, as a whole, in order to decide which outcome is the most
logical, natural and plausible out of a number of possible different outcomes.
As said in Bates and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co
15:
‘The process of reasoning by inference frequently includes consideration of
various hypotheses which are open on the evidence and in civil cases the
selection from them, by balancing probabilities, of that hypothesis which
seems to be the most natural and plausible (in the sense of acceptable,
credible or suitable).’
[32] The above being said, I find it difficult to sustain the third respondent’s findings
to the effect that the first respondent was not aware, other than merely having
an unsubstantiated suspicion, of the unlawful saving of accounts in 2021. As
touched on earlier, he conducted his own investigation when he visited the
Hammanskraal branch in 2021 and found, in June 2021, at least three such
unlawfully saved accounts . If that does not constitute even ‘unequivocal’
knowledge, it is hard to understand what would. But it certainly is evidence of
likely knowledge. In any event, and considering the very nature of his duties, if
he had suspicions, he is duty bound to investigate to see if there is evidence of
such. He knew he had to do this, considering his investigation at
Hammanskraal. Further, he testifies as follows in the arbitration: ‘… when I
was giving the statement, I already had the knowledge of the wrongdoing that
was taking place in the branches … ’. And lastly in the context of evaluating the
first respondent’s evidence, despite the fact that he disputed when cross
examining the applicant’s witnesses that he benefitted under the 2022
monetary incentive for saved accounts , it turned out that he did, where he
actually testified: ‘… The incentive for 2022 I also deserved. I did work for it, I
actually testified: ‘… The incentive for 2022 I also deserved. I did work for it, I
didn’t cheat, I worked straight … ’ (sic). This statement is qui te surprising
considering that this incentive payment is entirely founded on unlawful conduct
in the branches, and how the first respondent thus ‘earned it’ is unclear . All
this considered, how the first respondent could have found as she did, in the
face of all this evidence, is perplexing.
15 1985 (3) SA 916 (A) at 939I-J.
15
[33] Erasmus testified that the first respondent, despite what he records in his
statement, never reported to him (Erasmus) that he was suspicious of
fraudulent saving of accounts in 2021, and he said that until the bomb burst in
2022, he was not aware of this. This testimony was confirmed by Strydom.
Swanepoel also confirmed that management was not aware of this. Further ,
Erasmus was critical of the fact that the first respondent only came forward
with a statement only after the investigation had started. Le Roux, who
conducted the investigation, testified that he followed a simple exercise of
taking a list of customers purportedly saved because they paid an instalment
in March 2022, and then checking each one. How hard can this possibly be,
and there is no reason why the first respondent could not have done the same
proactively and of his own accord. In fact, and applying this simple exercise,
Le Roux was, for example, able to easily ascertain that two customers last
paid accounts in 2021, one customer was actually deceased, a nd one
customer had a considerably inflated payment as opposed to what was
actually paid. Le Roux explained that if the first respondent simply conducted
this basic exercise, which was expected of him, he would have discovered this
just as easily. Erasmus specifically testified that the first respondent must have
been aware of the difficulties with the unlawfully saved accounts in the
previous year, when this happened in 2022, compelling him to have exercised
due care and oversight to prevent it from happening again. Loggenberg added
another dimension to this, by explaining that considering one of the first
respondent’s core duties is management and control of bad debts, he must
have been aware of all the bad debts accounts during the course of the 2021
year, and it must therefore have been a huge red flag to find these accounts
active again in the January to March 2022 write off period. The third
active again in the January to March 2022 write off period. The third
respondent however does not refer to a ny of this pertinent testimony at all ,
which must mean that she never even considered it.
16
16 In Maepe v Commission for Conciliation, Mediation and Arbitration and Another (2008) 29 ILJ 2189
(LAC) at para 8 the Court said: ‘ Although a commissioner is required to give brief reasons for his or
her award in a dismissal dispute, he or she can be expected to include in his or her brief reasons
those matters or factors which he or she took into account which are of great significance to or which
are critical to one or other of the issues he or she is called upon to decide. While it is reasonable to
expect a commissioner to leave out of his reasons for the award matters or factors that are of marginal
significance or relevance to the issues at hand, his or her omission in his or her reasons of a matter of
great significance or relevance to one or more of such issues can give rise to an inference that he or
she did not take such matter or factor into account.’
16
[34] It appears to me that in the third respondent seeking to narrow down the
scope of the enquiry into whether the first respondent had committed
misconduct, as described above, she effectively negated the second charge of
gross negligence as well . This charge did not relate to the first respondent
actually reporting the wrongdoing of the employees. It specifically relates to
the first respondent failing to exercise the necessary oversight expected of
him, despite being aware of wrongdoing. The point in this regard is that even
on his own version, the first respondent was aware, in 2021, that there was
impropriety where it came to the 2021 saved accounts exercise. He knew that,
again on his own version, because of what he actually found in conducting his
own investigation during 2021. Now the 2022 write off window and account
saving exercise again comes up. He knows, again on his own version, that
nothing had been done about his concerns he says he raised in 2021. But he
still does absolutely nothing in exercising proper control and implementing
measures and checks to ensure it does not happen again, which is exactly
what is expected of him in respect of one of his core duties as DCM . This
failure must be a significant contributing factor to what ultimately resulted in a
basically a free for all scheme perpetrated by the employees , and a material
loss to the applicant . And to add to this, he also benefitted from this undue
incentive. All the aforesaid is clearly what the second charge of gross
negligence as all about. The third respondent, in my view quite unreasonably
and irregularly, failed to have any regard to it at all.
[35] The above being the case on the second charge, it really becomes a red
herring as to whether the first respondent did or failed to report and escalate
the wrongdoing in 2021, which is all the third respondent was basically
focussed on. Although the first charge of gross negligence refers to this, I do
focussed on. Although the first charge of gross negligence refers to this, I do
not believe it is necessary to even decide this in assessing whether the first
respondent’s dismissal was fair. Rather, it is about what he did in respect of
the 2022 write off window and purported saving of accounts . His failure to
report wrongdoing in respect of the first charge of gross negligence also
related to his failure to report and escalate the wrongdoing in 2022. The
charge does not read, as the third respondent seems to think, that specifically
because the first respondent was actually aware of the misconduct and had
proof of it, he was required to report it. The charge, as defined, and in
particular with regard to the failure to report the wrongdoing in 2022, does not
17
rely on actual prior knowledge at all. In this respect, and once this aspect of
the charge is considered along with the second charge of gross negligence, it
is clear to me that what was expected of the first respondent , taking into
account his own version of events in 2021, was to proactively exercise proper
oversight and immediately report any irregularity to senior management for
investigation / action. He however did nothing of the sort. In fact, if the
investigation was not initiated based on entirely other red flags, this entire
‘scheme’, as the third respondent herself calls it, may never have been
discovered.
[36] This brings me to the next st age in the proper conducting of the enquiry into
the first respondent’s misconduct, as he was charged with. It is significant that
despite an in ordinate number of saved account s in a short period in 2022,
which the first respondent was obviously aware of, he does not conduct his
own proactive investigation, and instead remains supine. It is only when senior
management notices the suspicious stock write offs and refunds, and actually
initiates an investigation first, that the first respondent is asked to make a
statement. The first respondent never initiated an investigation, nor did he
come forward of his own accord. When the first respondent made a statement
as asked, he records that he was aware of this wrongdoing the previous year
and told management about this. This was obviously intended by him to
somehow exonerate him, as he was clearly aware of what was coming.
17 In
essence, he was saying ‘I told you so, but you did nothing’, and thus he cannot
be blamed. This kind of conduct is not a defence. It is instead an indictment,
especially considering the nature of the first respondent’s duties and
responsibilities, described earlier in this judgment.
[37] The third respondent in her finding does decide that the first respondent took
action against employees involved in the wrongdoing, although the offences
action against employees involved in the wrongdoing, although the offences
for which they were disciplined were not specifically for the saving of accounts.
The third respondent reasons that the notion of ‘saving of accounts’ only came
to the fore later, and hence these offences could after the fact be equated to
misconduct relating to the saving of accounts. These findings of the third
respondent are in my view unfounded, and at best, pure speculation. The first
17 It may be added that he was required to undergo a polygraph test at the same time, and it showed
deception where it came to a question relating to his involvement in the saving of accounts.
18
respondent’s disciplining of the employees concerned, especially considering
his own version as to what they had been disciplined for, had nothing to do
with the saving of account s, and were based on entirely different types of
misconduct.18 Swanepoel and Erasmus specifically testified to this effect. In
fact, it would not be possible for the employees to have been disciplined by the
first respondent for saving accounts, as on the undisputed facts the first
respondent never conducted any investigation into or oversight of the write off
period in 2022, and the account s that were purportedly saved in that period.
The misconduct for which the first respondent took action against the
employees long preceded this period, and took place in 2021. The third
respondent appears do go out of her way to exonerate the first respondent,
thereby misconstruing the evidence and coming to a conclusion simply not
supported by the evidence.
[38] The third respondent finds that it is not easy to identify an unlawfully saved
account. This finding is in essence based on a half-truth, and that results in the
third respondent completely missing the point. I accept that the evidence
showed that in the general conducting of operations at the applicant’s stores
throughout the year, it may be difficult to establish whether for example refund
transactions would be part of an unlawful saving of an account. But the fact
that it is difficult should not stand in the way o f the first respondent , had he
simply exercised due car e, still being able to conduct an enquiry into this .
Strydom explained in his evidence that there are specific indicators that may in
and of themselves flag that further investigation is required, such as when the
account was paid an d how much was paid. That is when the customer must
be contacted directly, which contact w ould easily answer the question. 19 But
even this all said, this is not what the current case is about at all. What simply
even this all said, this is not what the current case is about at all. What simply
cannot be ignored is that this case is only about the dedicated write off period
in January to March where employees are only then only incentivised for
18 For example, and in a 17 November 2021 branch visit report penned by the first respondent, he
complained about all kinds of other failures , such as branch cleanliness, the manager and clerk's
credit work file not being in use, a high number of bad debt accounts and employees failing to conduct
personal calls and locate customers who fail to pay their accounts, and a high number of problematic
accounts at the branch which were not being checked by employees and credit proposals not being
carried out in terms of the policies and procedures, thus leading to increasing bad debts within the
branch. None of this can have anything to do with the misconduct of unlawfully saving accounts either
in 2021 or 2022.
19 Even a customer that is impossible to contact may answer the question, especially if that customer
had recently purportedly made a payment.
19
accounts saved. That being the case, more detailed circumspection and
specific focus is required specifically for this activity, as next addressed.
[39] Swanepoel testified that there is a difference between write offs done
throughout the y ear in the formal course, and the dedicated write off project
done between January and March of every year , because of the financial
incentive to employees that only applies for this period. She testified that the
first respondent needed to work through all the names on the accounts lists
prepared by the branches, which he needed to obtain from each branch when
he visited the branches in this January to March period. And what the first
respondent, being directly responsible for credit in the D ivision, should have
done in this instance is aptly illustrated by the evidence of Le Roux.
Considering the implications of what is involved and the risk of maleficence
because there is a direct financial benefit to employees, all the first respondent
must do, when he obtains a list of saved accounts from each and every branch
before it is finally processed, is to take names from the list and conduct the
kind of check done by Le Roux. This would immediately expose an unlawfully
saved account. It is not difficult. Le Roux explained, which is undeniable, that
where it is shown that a customer paid one instalment in a year on the account
and this happens only in the January to March period, there is likely something
untoward and must be investigated. And lastly, added to this, Le Roux testified
that the first respondent had a whole team available to him to assist in
conducting this exercise. This last part of the truth as summarized above, the
third respondent simply did not appreciate, did not consider, and this led to an
unreasonable outcome in favour of the first respondent.
[40] Next, the third respondent decided that the applicant ‘undermined’ the efforts
of the first respondent , whatever these efforts may be, by reinstating Rita
of the first respondent , whatever these efforts may be, by reinstating Rita
Visagie (Visagie) and not properly disciplining Reply Tshungu (Tshungu), both
being Regional Credit Managers in the first respondent’s Division. On this
basis alone, the third respondent finds that the second charge of gross
negligence is negated, as the first respondent did deal with ‘serious issues’
however was undermined. This kind of general finding and reasoning of the
third respondent, without referring to what happened in the case of Visagie
and Tshungu, is entirely unreasonable and irregular. Importantly, the entire
detailed version of the first respondent relating to Visagie and Ts hungu and
20
the specific circumstances relating to the applicant’s alleged undue
intervention in their discipline was never put to the applicant’s witnesses under
cross examination. There is no indication on the facts that the applicant
somehow acted mala fide and with the intent to undermine the first respondent
in the manner that these two employees were dealt with. Lastly, all this
happened in 2021. It simply cannot follow that just because these two
employees were not dismissed, as demanded by the first respondent at that
time, that he is now somehow exonerated in r espect of anything that goes
wrong where it may involve these employees.
[41] But once again, the issues relating to Visagie and Tshungu and what they may
have been disciplined for has nothing to do with what was expected of the first
respondent and how he failed. Accepting for the moment that the applicant
was wrong where it came to the manner in which things case to pass with
regard to Visagie and Tshungu, and this somehow enabled the saving of
accounts scheme, the simple answer must still be that this does not
incapacitate the first respondent, and what he is expected to do in terms of the
core duties assigned to him. Nothing stops the first respondent, even with
these two employees still on the scene, to exercise focussed oversight in the
case of the o nce of f event of the annual write off window which is of short
duration, and do all he reasonably can to limit any im propriety. This is
especially important, considering his own complaints about other employees ’
earlier conduct and the fact that he was aware of earlier wrongdoing in this
regard. Had he done what is said above, it would have been very easy for him
to report wrongdoing perpetrated by any employee, including the two
employees referred to. If management then did not take action, the n obviously
he would have a legitimate defence. But the first respondent did not even
discharge his most basic duties in this respect. Hence, what may have been
discharge his most basic duties in this respect. Hence, what may have been
the case with Visagie and Tshungu earlier cannot assist him.
[42] In giving his evidence, the first respondent testified that Visagie and Tshungu
were instrumental in the account saving scheme, and were responsible for
unlawfully saved account losses of R8 174 000 out of the R13 million.
Crucially however, this entire version was never put to any of the applicant’s
witnesses to answer, meaning this evidence cannot be accepted, especially
considering the first respondent was legally represented in the arbitration . And
21
yet again, if the first respondent was so concerned about these two
employees, he could have simply kept an eye on them, and then immediately
identify and report impropriety on their part i n 2022, which is long after the
complaints of the first respondent relating to events in 2021. In short, and
despite his clear duties, the first respondent did nothing to neutralise errant
employees like Visagie and Tshungu (on his own version). In the end, both
Visagie and Tshungu were actually dismissed in 2022 for their involvement in
the 2022 account saving scheme.
20
[43] One cannot ignore the seniority of the first respondent’s position in his
Division. Simply described, the bu ck stopped with him where it came to all
credit issues in his Division. For such a fundamental failure that took place in
this case to come to pass, he should have fallen on his sword. What happened
in 2022 in casu can only happen as a result of his complete failure to take the
care expected of him in discharging his duties. It must also be added in this
respect that the DGM of the Division, being Lerato Banda ( Banda), was also
dismissed as a result of this fundamental failure, as Banda was overall
responsible for the D ivision. As stated above, Tshungu and Visagie
responsible for credit in the regions resorting under the Division were also
dismissed. Despite all of this, the first respondent , even into the arbitration,
refused to accept any responsibility and even suggested that he was unfairly
treated because Swanepoel and Erasmus should have disciplined, despite the
facts that he raised no inconsistency challenge in the arbitration relating to
these two persons. Lastly in this regard, all the testimony by various witnesses
for the applicant that the trust relationship with the first respondent had been
destroyed as result of the first respondent’s failures, as specifically mentioned
in the charges, was never disputed nor contradicted.
in the charges, was never disputed nor contradicted.
[44] The third respondent needed to consider what misconduct, on all of the facts,
the first respondent had actually perpetrated, as compared to what is
contained in the two charges preferred against him. To unduly limit the enquiry
to only certain facts that support a particular narrative is manifestly irregular.
Considering that the charges related to gross negligence, the facts as a whole
needed to be applied to the relevant legal principles in order to establish
20 Although not an issue in this judgment as dealt with earlier, this obviously puts paid to any possible
inconsistency challenge.
22
whether the misconduct of gross negligence exist ed in casu. In Transnet Ltd
t/a Portnet v Owners of the MV Stella Tingas and Another 21 the Court
described gross negligence as follows:
‘… It follows, I think, that to qualify as gross negligence the conduct in
question, although falling short of dolus eventualis, must involve a departure
from the standard of the reasonable person to such an extent that it may
properly be categorised as extreme; it must demonstrate, where there is found
to be conscious risk -taking, a complete obtuseness of mind or, where there is
no conscious risk-taking, a total failure to take care …’
[45] Appositely, the Court in National Union of Metalworkers of SA and Another v
Commission for Conciliation, Mediation and Arbitration and Others 22 gave the
following exposition of what would be expected from an employee in the
particular position of the first respondent:
‘Negligence, in short, is the failure to comply with the standard of care that
would be exercised in the circumstances by a reasonable person and in the
employment context, the employee’s conduct is compared with the standard of
skill and care that would have been expected of a reasonable employee in the
same circumstances. The reasonable employee with whom the employee is
compared must have experience and skill comparable with that of the
employee charged. In labour law, negligence is not applied ‘in vacuo' or
against the general standard of a ‘reasonable person’, but it is applied in the
context of the particular workplace or industry, considering the performance
standards and procedures set by the employer. Negligence is usually
established with reference to workplace rules or procedures applicable in the
workplace … ’
The Court in National Union of Metalworkers added:23
‘The test to be applied and with whom the employee is compared, is that of a
reasonable employee, having experience and skill comparable with that of the
reasonable employee, having experience and skill comparable with that of the
employee charged, in the context of the particular workplace or industry,
21 2003 (2) SA 473 (SCA) at para 7.
22 (2023) 44 ILJ 1575 (LC) at para 32.
23 Id at para 40. In Sibanye Gold Ltd v Commission for Conciliation, Mediation and Arbitration an d
Others (2024) 45 ILJ 2376 (LC) at para 45, the Court said that: ‘… Gross negligence inter alia means
a total failure to take care …’.
23
considering the performance standards and procedures set by the employer.
… ’
[46] Applying the aforesaid, what does one then have in casu ? Firstly, the first
respondent is responsible and accountable for credit in the Division. What
went wrong directly relates to credit. And what went wrong is so extensive and
material, that it must realistically be said that the first respondent, per se, failed
in his duties. This is especially so considering that the exercising of proper
control over the accounts saving exercise in the write off period between
January and March 2022 was not hard to do, and required proper focus and
oversight, which appears to be completely absent. Truth be told, it can be said
that all management responsible for credit in the Division materially failed,
including the first respondent . That is why they were all dismissed, and in my
view, properly and justifiably so. Yet the first respondent is the only one that
feels hard done by.
[47] If one drills down even deeper into what really happened, the complete failure
to take ca re, on the part of the first respondent, is even more apparent . The
first respondent, as DCM, must surely know that where it com es to incentives
paid to employees against the achieving of a target such the targets set in this
case, there is an unfortunate incentive and opportunity for wrongdoing. It is the
very duty of the first respondent as the DCM to keep a firm hand on this. It is
also not as if this particular exercise happens the whole year long. It is limited
to a specific period. Kowing the opportunities presented to the employees for
possible wrongdoing, even common sense dictates that the fi rst respondent,
during this time, should conduct regular inspections, checks, and even random
investigations. That is the kind of implemented mechanisms that will
substantially inhibit unlawful account saving, which is exactly what the second
charge against him contemplated. What makes this even worse is that on his
charge against him contemplated. What makes this even worse is that on his
own version, and already in 2021, he knew account saving conduct by
employees was a problem. It does not matter if he reported it or not. He clearly
knew the risks, wa s aware of the opportunity for wrongdoing being exploited
by employees , and even knew when this may happen. To in such
circumstances do nothing, which is what the first respondent in essence did, is
in my view a complete failure to take proper care. That is gross negligence, no
24
matter how one may cut it. And the ultimate consequence is a R13 million loss
to the applicant and financial bonuses paid to undeserving employees.
[48] I believe that in casu, there was a material departure from the norm that would
not be expected from a senior, knowledgeable, long serving and experienced
employee such as the first respondent . This departure from the norm is
extreme, considering what actually happened in this case, and what the core
duties of the first respondent entail. And then to put matters beyond doubt, the
first respondent in essence accepts no wrongdoing, blames everyone else for
what happened and even says that he earned his incentive for the 2022
accounts saved, despite all that happened. All considered, there was a
complete failure to take care by the first respondent. What is incomprehensible
is that the third respondent did not appreciate any of these essential facts.
[49] All said, it is my view that the only rational and reasonable conclusion the third
respondent could have come to, considering the undisputed facts and the
relevant principles of law, is that the negligence perpetrated by the first
respondent in this case was very serious , goes to the heart of his duties, and
cannot be justified in any manner. It is the kind of misconduct which
competently attracts dismissal as a being justified and fair , as it can without
much hesitation be described as ‘gross’. For example, in Nampak Corrugated
Wadeville v Khoza
24 the employee party was charged and dismissed for gross
negligence in that he had failed to take proper care of equipment for which he
was responsible. The Industrial Court found that the employee was negligent
but could not find gross negligence to exist which justified dismissal. The
erstwhile LAC disagreed and held:
‘…The probable explanation for his conduct, in these circumstances, is simply
that he deliberately neglected to perform his duties. Consequently, I do not
that he deliberately neglected to perform his duties. Consequently, I do not
share the view of the Industrial Court that the evidence against Khoza was so
circumstantial that it could not be used to explain his conduct. It was Khoza
who had to furnish that explanation. In the absence of any credible
explanation, the inference that he deliberately neglected to perform his duty is
irresistible. This finding by the employer cannot be faulted.’
24 (1999) 20 ILJ 578 (LAC) at para 35.
25
[50] Another example can be found in Standard Bank Insurance Brokers v Dlamini
and Others 25. In that case, the employee concerned failed to attend to the
renewal of client policies, despite this being a core part of her duties and that
the employer’s system in fact altered her that the renewals were due. The
Court held as follows in finding gross negligence to exist:26
‘… This departure from the norm is extreme, considering what actually
happened in this case, and the very nature of the financial services industry.
Surely, how hard can it be to process a renewal especially if one is reminded
of it beforehand? In simple terms, the first respondent would be warned by the
System two months in advance, and all she needs to do is to come into
contact with the client to explain the renewal and then, with the client, process
the renewal. But she did not do any of this, where it came to the clients
referred to in the charge. And then to put matters beyond doubt, she explains
her failure on the basis, effectively, that she does not think it is a problem,
because the System automatically renews, despite the fact that the one-on-
one client renewal is to specifically avoid automatic system renewals which
would violate the Code. All considered, there was a complete failure to take
care by the first respondent. …
’
[51] When the first respondent’s evidence presented in the arbitration i s
considered, it is apparent to me that the manner in which the first respondent
sought to deal with the obvious problem that existed in this case and how he
may at least have some responsibility in this respect, shows a complete lack of
appreciation for the consequences and harm his failures caused the applicant.
He denied doing anything wrong, basically blamed everyone else for what had
happened, and never sought to explain why he could not act proactively even
considering what he knew beforehand on his own version. He never sought to
considering what he knew beforehand on his own version. He never sought to
even acknowledge that he could have done better. He persisted with this
approach even into the arbitration. This lack of appreciation would also be a
relevant factor justifying his dismissal, but the third respondent unfortunately
had no regard to it . In EOH Abantu (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others 27 it was held as follows in deciding that
25 (JR15/24) [2025] ZALCJHB 147 (7 April 2025).
26 Id at para 42.
27 (2019) 40 ILJ 2477 (LAC) at para 21. De Beers Consolidated Mines Ltd v Commission for
Conciliation, Mediation and Arbitration and Others(2000) 21 ILJ 1051 (LAC) at para at para 22. See
26
the dismissal was substantively fair, which in my view can equally be applied
in casu:
‘When it was put to him in the arbitration that he had been negligent, he
denied that he was guilty of negligence. That compounds his folly and
intimates a lack of appreciation of the reputational harm to the appellant his
conduct might have caused … ’
[52] Overall considered, and if the third respondent had proper, reasonable and
rational regard to all of the evidence in this case, as well as the principles
applicable to conduct that constitutes gross negligence, the only reasonable
conclusion she could have arrived at is that the dismissal of the first
respondent on both charges of gross negligence was justified, and fair. It can
hardly be better described than the following dictum in Solari v Nedbank Ltd
and Others28:
‘… it is clear on the totality of the evidence before the commissioner that he
did not properly consider all the evidence and therefore arrived at a conclusion
that a reasonable decision maker could not reach then the award ought to be
set aside. The same will apply when the commissioner makes certain
inferences from the proven facts that are totally out of sync with those facts.
The inference reached without a proper consideration of the proven facts
would be an unreasonable decision or a decision which a reasonable decision
maker could not reach …’
[53] For all the reasons as set out above, it is my view that the determination by the
third respondent in her award to the effect that that the first respondent did not
commit the misconduct of gross negligence is grossly irregular, and resorts
well outside the bands of what may be considered to be a reasonable
outcome.
29 As such, the award of the third respondent falls to be reviewed and
set aside.
Conclusion
also Rustenburg Platinum Mines Ltd (Rustenburg Section) v National Union of Mineworkers and
Others (2001) 22 ILJ 658 (LAC) at paras 21 – 22; National Union of Metalworkers (supra) at para 54;
Vilakazi v Commission for Conciliation, Mediation and Arbitration and Others (2024) 45 ILJ 369 (LC) at
para 70.
28 (2014) 35 ILJ 3349 (LAC) at para 29.
29 Compare Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30.
27
[54] For all the reasons as set out above, I conclude that the third respondent’s
finding that the dismissal of the first respondent was substantively unfair
constitutes an unreasonable outcome based on the facts and case before her,
as a whole. It therefore cannot be sustained and falls to be reviewed and set
aside.
[55] Having reviewed and set aside the arbitration award of the third respondent, I
see no reason to remit this matter back to the second respondent for
determination de novo before another arbitrator. The matter is straight forward,
and the necessary evidence has been fully ventilated and reflected in a
transcript that was in all respects complete. The relevant documentary
evidence also speaks for itself , and was largely uncontested. There is simply
no need to go through the whole exercise of arbitration again. Exercising the
powers I have under section 145(4) of the LRA, 30 I consider it appropriate to
finally determine this matter. I shall accordingly substitute the arbitration award
of the third respondent with an award that the dismissal of the first respondent
by the applicant was substantively fair.
Costs
[56] This then only leaves the issue of costs. In terms of the provisions of section
162(1) of the LRA, I have a wide discretion where it comes to the issue of
costs. Even though the applicant was successful, I do not intend to burden the
first respondent with a costs order, especially considering the opportunity
afforded to me to bring this matter finally to an end. I also do not consider the
first respondent’s opposition to this matter to be mala fide or unreasonable. I
am mindful of the dictum of the Constitutional Court in Zungu v Premier of the
Province of Kwa -Zulu Natal and Others
31 where it comes to costs awards in
employment disputes before this Court, and I do not consider there to be
sufficient reason to depart from what the Court had to say in this regard. I
accordingly exercise my discretion as to costs in this matter by making no
accordingly exercise my discretion as to costs in this matter by making no
order as to costs.
30 Section 145(4)(a) reads: ‘If the award is set aside, the Labour Court may – (a) determine the dispute
in the manner it considers appropriate … ’
31 (2018) 39 ILJ 523 (CC) at para 25.
28
[57] In the premises, I make the following order:
Order
1. The applicant’s review application is granted.
2. The arbitration award of the third respondent, arbitrator Rolien Velloen,
dated 30 August 2023 and issued under case number GAJB 12424 –
22, is reviewed and set aside.
3. The arbitration award is substituted with an award that the dismissal of
the first respondent, Skhumbuzo Walter Mlangeni, by the applicant, was
substantively fair.
4. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Ms Buhle Mcengwa of Edward Nathan
Sonnenbergs Inc Attorneys
For the First Respondent: Advocate Isiah Mureriwa
Instructed by: Machingura Attorneys