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[2026] ZALCCT 48
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Mqulwana v Commission for Conciliation, Mediation and Arbitration and Others (C347/2023) [2026] ZALCCT 48 (20 March 2026)
T
HE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case
No:
C347/2023
(1)
Reportable: NO
(2)
Of interest to other Judges: NO
20
March 2026
In
the matter between:
ZINGISA
MQULWANA
Applicant
And
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
N
E
SAMUAL
Second Respondent
WEBHELP
SA OUTSOURCING (PTY) LTD
Third Respondent
Heard
:
19 March 2026
Delivered
:
20 March 2026
JUDGMENT
LAGRANGE, J
Introduction
[1]
This is an opposed application to review and set aside an arbitration
award in which the arbitrator found that the dismissal
of the
applicant by the third respondent was procedurally and substantively
unfair. I am not going to repeat what is in the arbitration
award,
which concerns a relatively straightforward dismissal for misconduct.
Outline
of evidence
[2]
Below is a summary of what appears from the record of the arbitration
hearing.
[3]
The applicant was dismissed for not advising his direct line manager
that he would be absent from work on 21 April 2021.
On 19 April, the
applicant had suffered a nosebleed at work and was referred to a
nurse at the company. He subsequently consulted
a doctor.
[4]
The following day, 20 April, he came to work and advised the
operations manager that he had been booked off by a doctor.
He did
not advise the operations manager how many days he was booked off for
even though he had been booked off until 22 April.
He also did not
give the manager a copy of the medical certificate he received. He
returned to work on 22 April.
[5]
He did not contact his line manager, but the line manager was advised
by the operations manager that he had been booked
off. On 21 April
his line manager attempted to contact him by messaging him and
phoning him without success. The line manager did
not know he was
also ‘booked off’ for that day. The applicant did
not have a cellphone because of it being stolen,
so he could not have
received the communications from his line manager.
[6]
Even though he had no phone the applicant resided with family who did
have cell phones. The applicant testified that he
did not feel it was
necessary to ask family to help him contact work because he had
already notified the operations manager and
he was still off sick. He
also claims he did not have the number of his line manager but did
not dispute that his line manager
had told him to record the cell
phone number which appeared in his electronic signature on his
emails.
Key
findings of the arbitrator
[7]
The arbitrator found that the applicant should have provided a copy
of his certificate to management on 20 April so they
would know how
long he was booked off for. He also failed to contact anyone on 21
April to notify them he would be absent, quite
apart from not
contacting his line manager. Accordingly, he was guilty of breaching
the rule requiring him to contact his manager
when he was absent from
work. There was no dispute the applicant was not aware of this rule.
[8]
The arbitrator found that his dismissal was substantively fair
considering that he had been issued with three previous
warnings of
increasing seriousness for failing to communicate with his line
manager when he was absent from work. The fact that
he was ill did
not relieve him of that obligation. Procedural fairness was not in
issue in the matter.
The
review application
[9]
The applicant drafted his review application himself. His application
essentially repeats arguments he had advanced to
the arbitrator,
which he now raised in the form of an appeal. At the hearing of
the review application, he was asked to provide
more clarity why he
believed the award was so unreasonable it should be set aside.
[10]
What the applicant emphasised was that he believed he had been
dismissed and disciplined previously just because he had
fallen ill
and the employer knew he was ill. However, as the respondent pointed
out, the purpose of the employer’s rule about
contacting his
line manager when he is absent, is to let the manager know he is
going to be absent on the day in question and that
getting a medical
certificate on a later date does not solve the problem of knowing
whether he is coming to work or not at the
time. Elaborating on his
attack on the award, the applicant suggested that in fact he had been
unfairly discriminated against on
grounds of illness.
[11]
The first point that needs to be made, is that there is no evidence
the applicant had expressly claimed at the arbitration
that he was
unfairly discriminated against on grounds of illness. It was rather
in more general terms he had suggested it was not
fair to discipline
him for failing to notify his line manager when the reason for his
absence from work was illness. Effectively,
his defence at the
arbitration hearing was that as long as he could produce a medical
certificate when he returned to work, it
should not have mattered if
he had not contacted his line manager to advise him he would not be
at work.
[12]
Even on the most generous interpretation of the applicant’s
grounds of review, he did not establish why the arbitrator’s
analysis of the evidence was so flawed that no reasonable arbitrator
could have reached the same conclusion as the arbitrator.
[13]
Apart from
the fact that the applicant himself has not raised any proper ground
of review, on the face of the evidence before the
arbitrator and on
considering the arbitrator’s reasoning it cannot be said that
the factual findings and the arbitrator’s
decision on the
appropriateness of the sanction of dismissal are ones that no
reasonable arbitrator could have reached on what
was before him
[1]
.
[14]
Accordingly, the review application must fail.
Order
1.
The review application is dismissed.
2.
No order is made as to costs.
R
Lagrange
Judge
of the Labour Court of South Africa
Appearances:
For the
Applicant:
--- In Person
For the
Respondent: ---
Bosman CJ
Instructed
by:
--- Abrahams and Gross Inc.
[1]
This
is the standard laid down by the Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28
ILJ
2405 (CC) at paragraph 110,
for
reviewing an arbitration award based on alleged flaws in an
arbitrator’s reasoning:
“…
(S)ection
145 is now suffused by the constitutional standard of
reasonableness. That standard is the one explained in Bato
Star:
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach
?”
(emphasis
added).