THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C424/2022
In the matter between:
ERARITE (PTY) LTD T/A
KHAYELITSHA SUPERSPAR Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
C.M BENNETT NO Second Respondent
CLOUDIOUS GOGO Third Respondent
Heard: 16 October 2025
Delivered: 23 March 2026
Summary: A review application to set aside an award which found the dismissal of a
foreign national for a WhatsApp status based on a bible verse to be too harsh. Post
made at a time of tension amongst employees following a Facebook post calling for
protests against an employer for employing foreign nationals.
(1) Reportable: Yes/No
(2) Of interest to other Judges: Yes/No
23 March 2026
Signature Date
JUDGMENT
GANDIDZE, J
Introduction
[1] Mr Gogo, the third respondent, was employed as the Bakery Manager at
Khayelitsha SuperSpar, the applicant, which is part of the Erarite Group. He
was dismissed in July 2022 after it was alleged that, on 24 June 2022, he
posted content on the WhatsApp status for the Management Group that was
provocative and harmful, quoting the Bible verse of Deuteronomy that:
‘Foreigners who live in your land will gain more and more power while you
gradually lose yours. They will have money to lend you, but you will have
none to lend them. In the end, they will be your rulers.’
[2] The above message was also shared on Gogo’s personal WhatsApp status.
Gogo is Zimbabwean.
[3] The events leading up to Gogo’s posts involved the creation of a Facebook
group that accused the applicant of employing foreign nationals for jobs that
could have been offered to local residents. The Facebook post listed the
names of 23 foreigners employed by the applicant and called for protest
action on 16 June 2022 to shut down the applicant.
[4] In response to the Facebook post, the applicant met with the workers' forums
and informed them that the Facebook group was under investigation, and
those involved would be disciplined. There was also a separate meeting with
the foreign nationals, during which they were asked not to exacerbate the
situation. At that time, relations in the store were polarised and tense.
[5] The Facebook post caught the attention of the Departments of Labour and
Home Affairs. Both departments requested documentation from the applicant
for the foreign nationals, which was subsequently supplied. Nothing further
was heard from them. Ahead of the planned protest, the applicant sought the
involvement of the South African Police Service (SAPS).
[6] Approximately six employees involved in the Facebook group were identified
and either dismissed or transferred to other stores.
[7] It was during all the above that Gogo posted the WhatsApp statuses
mentioned. When asked about it, Gogo explained that the Management
WhatsApp group status was a mistake, blaming his phone, which he said
would freeze occasionally. He apologised for the status, which was removed
within 10 to 12 minutes, and afterwards, measures were introduced to ensure
only two people could change the status of the Management WhatsApp
group. Gogo defended his personal WhatsApp status.
[8] At a subsequent disciplinary hearing, Gogo was found guilty and dismissed.
He referred an alleged unfair dismissal dispute to the CCMA.
The arbitration proceedings
[9] Only substantive fairness was in dispute, as Gogo admitted his wrongdoing
but argued that a final written warning would have sufficed.
[10] Three witnesses testified for the applicant, and Gogo provided evidence in his
own defence. Since there were little to no disputes of fact, I do not find it
necessary to detail the witnesses' evidence, except to record the
commissioner’s summary of the parties' versions.
[11] The applicant contended that Gogo’s actions were intended to incite unrest as
retaliation against the Facebook group. The post was seen by Gogo’s Store
Manager and Gogo’s subordinates. Although the post was removed shortly
after publication, management at other stores became aware of it.
[12] Gogo’s version was that he was informed of the posting to the management
WhatsApp group by the store manager. He was unaware that the post had
exceeded its intended audience. At the time, he was experiencing problems
with his mobile phone and did not do this intentionally. He apologised to the
store manager and all the managers in the management WhatsApp group. He
also argued that his post was not comparable to the Facebook post, but he
understood the applicant’s unhappiness with the post. The commissioner
noted that, under cross -examination, Gogo testified that he could post
whatever he wanted on his personal WhatsApp status.
[13] The commissioner found that Gogo had committed misconduct , but could
have been issued a final written warning. Since Gogo did not wish to be
reinstated and only sought compensation, the commissioner granted him
three months' pay. To avoid repetition, the commissioner’s analysis of the
evidence and the parties' arguments will be discussed when the grounds of
review are addressed.
Grounds of review
[14] The review application, in terms of section 145 of the Labour Relations Act 1
(LRA), seeks to set aside the award, which is dated 8 August 2022, issued
under case number WECT9454- 22, and to substitute it with an order that the
dismissal was fair.
[15] In general, it was submitted that the commissioner failed to consider the
material issues fairly; that the commissioner took into account irrelevant
matters or failed to consider relevant ones; that the commissioner made errors
of fact and law; and that the commissioner reached conclusions that no
reasonable decision-maker could have arrived at.
[16] More specifically, the submission was that the commissioner’s assessment of
the facts was unreasonable. This relates to the finding that the xenophobic
comments were not hate speech, despite Gogo admitting that he intended to
post the message on his status to reach all his contacts, most of whom were
fellow employees. The submission was that the aim was to upset these fellow
employees. It was also submitted that the commissioner’s reasoning
demonstrated a lack of understanding of the facts, the social and legal
realities of xenophobia, and the relevant legal principles, making the decision
clearly incorrect, and that the commissioner’s mistake of fact or law distorted
the result , as set out in Head of Department of Education v Mofokeng and
Others
2.
1 Act 66 of 1995.
2 [2015] 1 BLLR 50 (LAC).
[17] It was also submitted that all employees were warned about the sensitivity
and seriousness of the situation involving xenophobic comments, and that
they would face disciplinary action for such conduct. Foreign national
employees were advised not to worsen the volatile situation, and that Gogo
ignored the employer’s guidance on what to do and what not to do. The
submission was also that the need to combat the scourge of xenophobia, a
social issue as serious as racism or gender -based violence, rests equally with
foreigners and South Africans.
[18] Regarding the sanction, and with reference to PSA obo Rae v General Public
Services Sectoral Bargaining Council and Others
3 (PSA obo Rae), it was
submitted that dismissal was an appropriate operational response to the
misconduct at the time.
[19] The commissioner is also said to have failed to consider the widespread
xenophobia at the time, the need for SAPS intervention, the impact on the
applicant’s business, the false reports made to the Department of Labour and
Home Affairs, and Gogo’s responsibilities as a manager. The submission was
that if the commissioner had recognised these factors, he would have
concluded that dismissal was fair. It was also argued that no reasonable
decision-maker could conclude that a manager who was aware of the
sensitivities but still posted xenophobic comments on social media did not
deserve to be dismissed. Furthermore, it was submitted that the conduct
significantly eroded management’s trust or confidence and made continued
employment intolerable.
[20] The further submission was that an arbitrator must decide whether the
sanction imposed by the employer was fair, rather than impos e a new
sanction, and that determining whether an employer acted fairly cannot be
equated with simply deferring to the employer’s decision.
[21] The submission was also that a commissioner must determine the fairness of
the dismissal based on the reasons given at the time of the dismissal.
the dismissal based on the reasons given at the time of the dismissal.
3 (JR755/14) [2017] ZALCJHB 410 (6 April 2017).
[22] Ultimately, it was submitted that because the commissioner did not properly
consider the issues, the decision was unreasonable.
[23] Gogo opposed the review application, arguing that the award was reasonable.
The award
[24] The court must assess whether the applicant’s grounds of review are valid,
taking into account the Commissioner’s analysis of the evidence and findings.
Furthermore, since the award is contested on the basis that it is one no
reasonable decision-maker could have made, the court must consider all the
material and submissions provided to the Commissioner, including those the
Commissioner may not have relied upon, to establish whether the outcome
was one that no reasonable decision-maker could have reached.
4
[25] The commissioner began by assessing whether Gogo’s claim —that his
malfunctioning phone posted the status on the management group—was
likely. He dismissed this version as improbable and untrue, concluding that
Gogo had deliberately shared the biblical verse out of context. He found that
Gogo's intention was to post the message, supported by the fact that he had
the same status on his personal WhatsApp, which he justified by saying he
could do as he pleased with his phone.
[26] Regarding why Gogo behaved as he did, the Commissioner expressed
sympathy. He explained that Gogo was tired of being a whipping boy for
xenophobes and decided to give them the metaphorical middle finger. While
the Commissioner understood Gogo’s actions, he described his response as
ill-considered and a grave error of judgment , in that Gogo effectively told the
xenophobes, ‘yes we are taking your jobs and we are going to dominate you
as well.’ According to the Commissioner, that message was bad but not very
bad, not threatening, and Gogo was simply stirring the pot.
[27] Regarding whether Gogo’s actions were comparable to those of the Facebook
group (the xenophobes), the Commissioner found that this was true, to some
group (the xenophobes), the Commissioner found that this was true, to some
4 Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and
Others (2008) 29 ILJ 964 (LAC).
extent. He stated that the Facebook group moved from mere speech to
inciting violence and physical confrontation with the foreign nationals targeted
at the protest planned for 16 June 2022. He also concluded that the applicant
had reason to be concerned about the protest, which is why they requested
SAP’s intervention.
[28] Turning to Gogo’s conduct, he found that, unlike the Facebook group, he did
not express dislike for locals or threaten locals; the Bible verse was not hate
speech; and he was not attempting to incite a counterforce of foreign nationals
but rather aimed to upset the locals.
[29] Thereafter, the Commissioner proceeded to assess whether dismissal was an
appropriate penalty for what he had already determined to be Gogo's
deliberate conduct. He concluded that a final written warning was justified for
a less serious offence. He also found that Gogo disobeyed the instruction to
maintain a low profile and that his post was not comparable to what was
described as having been posted by the xenophobic grouping.
[30] As Gogo did not wish to be reinstated, the commissioner awarded three
months' salary as compensation, considering Gogo's 23 months of service,
his failure to secure other employment, and his responsibility for his own
misfortune.
Analysis
(a) Gravity of the misconduct
[31] I begin the analysis by quoting the exchange between the commissioner and
Gogo during the arbitration proceedings , which clearly demonstrates that the
Commissioner understood the exact nature of the applicant’s gripe with
Gogo’s conduct:
‘Commissioner: His question is. If I can elaborate? Given the volatile
situation prevailing in the store at that time, why even if only on your private
status did you want to post to that message? It does not matter whether you
intended footage to go anywhere else. He is asking why would want to post
what was going on, why would you want to post that it all? That is what he is
asking you.
….
Commissioner: Anybody can see it. You posted a post from Deuteronomy
specially selected verses 43 and 44 that is telling the Israelites of the
dominance the coming dominance – the coming dominance of foreigners.
Right
Applicant: H’m.
Commissioner: Now, you are in the middle of the situation where there is a
Facebook group that is xenophobic and it is singling out for the nationals
working for Erarite particularly at Khayelitsha where you worked. Why in that
context were you posting that on your status instead of Mickey Mouse or
Hello Kitty or some picture of Brad Pitt or - I do not know, whoever you
want? Why did you pick a potentially volatile status even if it was going on
your private status. Why did you pick that. That is what he i s asking.
Correct?
Mr. Du Toit: Correct commissioner’.
[32] From that brief exchange, the applicant’s complaint that the commissioner
failed to fairly address the material issues must be rejected. Other than
Gogo’s denial that t he status on the management group was inadvertent,
there were no material disputes of fact that the commissioner was required to
resolve. That being the case, it is difficult to see what material evidence the
Commissioner overlooked, what irrelevant facts the commissioner considered,
and what relevant facts he ignored.
[33] The starting point was Gogo's admission of guilt. The commissioner rejected
certain aspects of Gogo’s version, which he found improbable. He also
acknowledged that Gogo intentionally posted the message, conduct which the
commissioner regarded as ill -conceived and a grave error of judgment , as
Gogo was showing the xenophobes the ‘proverbial middle finger’.
[34] Additionally, the commissioner observed that, to some extent, Gogo’s
behaviour could be compared to that of the Facebook group. Therefore, the
commissioner was aware that Gogo had committed misconduct, but he also
distinguished Gogo’s conduct from that of the Facebook group. He found that,
distinguished Gogo’s conduct from that of the Facebook group. He found that,
unlike the Facebook group, Gogo did not show hostility towards locals or
threaten them; the Bible verse was not hate speech; and Gogo was not
attempting to incite a coalition of foreign nationals but was instead trying to
upset the locals.
[35] I see no error of fact or law in the Commissioner’s approach. In reaching that
conclusion, I have also considered that Gogo was not charged with hate
speech. Instead, the charge was that of posting harmful and provocative
material. The case was that Gogo was meant to keep his head down, as
instructed, but instead he sought to stir things up by posting a provocative and
harmful message. This is what the applicant’s representative presented to the
Commissioner.
Ms. Brink: So one of the questions that I had to ask Cl audius and what, you
know that we needed to make the decision on is- firstly how is your store
manager who is also a foreign national, going to be able to support you as a
departmental manager if this is your view of the people, your colleagues that
you are working with in the store.
And secondly. Claudius, how you as a departmental manager of the
bakery department is going to be able to have the respect of your colleagues
who might not be foreign nationals and even foreign nationals knowing that
this is your view - well you perceived view of them? Because that is the only
thing that they can take it from that is that that might be your view.
So that made it- the question come up to say that: Y ou know, how are
you going to manage the department? A nd we felt that in light of what has
happened in the store and in light of what is going, you know the -
everything that has happened that you will not be able to manage the
department. You will not have to trust or the respect of your subordinates or
even of your superiors. And you will probably make it very difficult for your
store manager to run his store also is a foreign national.
So not to say that, you know it is a because you are a foreign national,
it is because you made your job so difficult - or you made the job as a
bakery department manager almost impossible. So that was the considering
bakery department manager almost impossible. So that was the considering
factor because, you know how are you going to continue from here and can
we continue from here. And we thought, you know, that unfortunately there
is no way for us in light of what is happening to continue.
[36] When Gogo explained that he made a mistake, which he apologised for, Ms
Brink stated the following:
Ja, Claudius, I understand what you are saying an de mean, we have gone
through this in the disciplinary inquiry as well. The fact is that even if it was
not your intention to put it on the group, it was your intention to put it on your
status. The fact is, everybody that goes and sends you Whatsapp will be able
to see your status.
We did not do all of this because of xenophobia. We did all of this to
get our store operational again. To alleviate the fears, to follow - to make sure
that everybody is treated fairly and correctly.
So xenophobia is maybe a heading that you want to put over all of this
but what happened to you is not because of xenophobia. What happened to
you is because of the situation that was in our store and we told you not to
aggravate it.
[37] The Store Manager, also a foreign national, being the person who brought the
matter to HR’s attention, testified as follows:
Mr Mborera: So, while I did actually bring this matter to the HR is because I
understood when Mr Gogo said it was a mistake and that was on our
Management Group but still when he said he m eant to put it on his status for
sure, I went and I s aw it was on his status in this message directly to the
locals, it is not a good message.
Mr Du Toit: H’m.
Mr Mborera: So that is when he was asked to go for an inquiry. And the
inquiry has been going on also with the locals who did whatever they did and
whatever they said to the - against the foreign nationals. So, it was going to
be unfair for us not to, you know, bring him to the inquiry.
[38] Therefore, the applicant charged Gogo because those involved in the
Facebook group were also charged.
[39] The submission that Gogo engaged in egregious conduct comparable to
racism and gender-based violence, which is sought to be raised in the review
proceedings, is not a submission made before the Commissioner. Above, I
quoted the exchange between Ms Brink and Gogo. Nowhere in that exchange
quoted the exchange between Ms Brink and Gogo. Nowhere in that exchange
was it ever suggested to Gogo that he had engaged in conduct comparable to
racism and gender -based violence. It is impermissible for parties, after an
award has been issued, to seek review based on a case not presented duri ng
the arbitration proceedings. Reviews are restricted to the material and
evidence submitted to the commissioner.
[40] Regarding the submission that Gogo engaged in xenophobic conduct, the
commissioner addressed it but did not exonerate Gogo. However, the
commissioner also showed sympathy towards Gogo regarding his reasons for
posting the message. After determining that Gogo’s behaviour was somewhat
comparable to the xenophobic conduct of the Facebook group, he went on to
outline the differences between Gogo’s conduct and that of the group. It
cannot be said that the outcome ignores the social and legal realities of
xenophobia. This is an issue on which reasonable people may disagree, but,
on review, this Court must remember the test for interfering with an award in
matters such as the present matter . The question is whether the
commissioner’s decision falls outside the range of what a reasonable
decision-maker could reach. This is a high threshold, and the applicant’s case,
on review, does not meet it.
(b) Sanction
[41] The applicant’s complaint regarding how the commissioner should have
treated the sanction is based on a misunderstanding of what Sidumo and
Another v Rustenburg Platinum Mines Ltd & Others
5 prescribes, which is this:
‘[61] There is nothing in the constitutional and statutory scheme that
suggests that, in determining the fairness of a dismissal, a
commissioner must approach the matter from the perspective of the
employer. All the indications are to the contrary. A plain reading of all
the relevant provisions compels the conclusion that the commissioner
is to determine the dismissal dispute as an impartial adjudicator.’
[42] Later on, in the same judgment, the Court stated this:
‘[74] Neither the Constitution nor the LRA affords any preferential status to
the employer's view on the fairness of a dismissal.
5 (2007) 28 ILJ 2405 (CC).
[75] It is a practical reality that in the first place it is the employer who hires
and fires. The act of dismissal forms the jurisdictional basis for a
commissioner, in the event of an unresolved dismissal dispute, to
conduct an arbitration in terms of the LRA. The commissioner
determines whether the dismissal is fair. There are therefore no
competing 'discretions'. Employer and commissioner each play a
different part. The CCMA correctly submitted that the decision to
dismiss belongs to the employer but the determination of its fairness
does not. Ultimately, the commissioner's sense of fairness is what
must prevail and not the employer's view. An impartial third party
determination on whether or not a dismissal was fair is likely to
promote labour peace.’
[43] Therefore, it is the commissioner’s sense of fairness that prevails, and there is
no room to defer to the decision of the employer to dismiss . This was made
clearer in this paragraph:
‘[177] Equally true is that when an employer determines what is an
appropriate sanction in a particular case, the employer may have to
choose among possible sanctions ranging from a warning to
dismissal. It does not follow that all transgressions of a particular rule
must attract the same sanction. The employer must apply his or her
mind to the facts and determine the appropriate response. It is in this
sense that the employer may be said to have discretion.
[178] But recognizing that the employer has such discretion does not mean
that in determining whether the sanction imposed by the employer is
fair, the commissioner must defer to the employer. Nor does it mean
that the commissioner must start with bias in favour of the employer.
What this means is that the commissioner, as the CCMA submitted,
does not start with a blank page and determine afresh what the
appropriate sanction is. The commissioner's starting-point is the
employer's I decision to dismiss. The commissioner's task is not to ask
employer's I decision to dismiss. The commissioner's task is not to ask
what the appropriate sanction is but whether the employer's decision
to dismiss is fair.
[179] In answering this question, which will not always be easy, the
commissioner must pass a value judgment. However objective the
determination of the fairness of a dismissal might be, it is a
determination based upon a value judgment. Indeed, the exercise of a
value judgment is something about which reasonable people may
readily differ.
[44] The commissioner made a value judgment. He considered both the
applicant’s interests. He accepted that Gogo committed the misconduct but
also expressed sympathy for Gogo, finding that the post was a serious error of
judgment. He also accepted that the applicant’s decision to take action
against Gogo was justified, which is why he found that Gogo’s dismissal was
because Gogo was the author of his own misfortune.
[45] The applicant’s disagreement with the commissioner’s value judgment is not a
ground for reviewing the award. The outcome may well be one on which
reasonable persons may differ, and that is not a justification for interfering with
the award on review. To reiterate, interference on review is only justified if the
conclusion is one that no reasonable decision- maker could reach. The
commissioner’s finding cannot be said to be one that falls outside a range of
reasonable decisions.
[46] Ironically, in the PSA obo Rae judgment relied upon by the applicant, this
Court reviewed and set aside an award that found a dismissal for a once- off
incident to be substantively unfair. The Court reasoned thus:
[45] In my view, a conspectus of the evidence shows that the individual
applicant had a singular lapse of judgment, considering that his conduct
on the day was uncharacteristic. He should have known better than to
continue to revel the night away when he was already approaching
intoxication much earlier in the evening. But there was no evidence or
indication that he was a habitual miscreant where it came to these kind of
situations. This kind of singular error in judgment cries out for progressive
discipline, which would more than likely make the individual applicant a
very cautious employee where it comes to possible excessive alcohol
consumption in the future. That kind of result is what progressive
discipline is all about.
consumption in the future. That kind of result is what progressive
discipline is all about.
[46] A final written warning to the individual applicant for his breach of the
Code in respect of his conduct on 31 August and 1 September 2012
would have impressed upon him the error of his ways, and would have
made it clear that any such future transgression would result in the loss of
his job. In Gcwensha v Commission for Conciliation, Mediation and
Arbitration and Others the Court held:
‘I accept that the purpose of a warning is to impress upon the employee the
seriousness of his actions as well as the possible future consequences
which might ensue if he misbehaves again, namely that a repetition of
misconduct could lead to his dismissal.’
[47] Therefore, PSA obo Rae does not assist the applicant’s case on review , and
the submission that there was a finding that dismissal was an appropriate
operational response must be based on what the award found, which this
Court overturned.
[48] In Fidelity Cash Management Service v Commission for Conciliation,
Mediation and Arbitration and Others,
6 the Court stated this:
[98] It will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner, the court
feels that it would have arrived at a different decision or finding to that
reached by the commissioner. When that happens, the court will need to
remind itself that the task of determining the fairness or otherwise of such a
dismissal is in terms of the Act primarily given to the commissioner and that
the system would never work if the court would interfere with every decision
or arbitration award of the CCMA simply because it, that is the court, would
have dealt with the matter differently. Obviously, this does not in any way
mean that decisions or arbitration awards of the CCMA are shielded from
the legitimate scrutiny of the Labour Court on review.
[99] In my view Sidumo attempts to strike a balance between two extremes,
namely, between, on the one hand, interfering too much or too easily with
decisions or arbitration awards of the CCMA and, on the other, refraining too
much from interfering with CCMA's awards or decisions. That is not a
balance that is easy to strike. Indeed, articulating it may be difficult in itself
but applying it in a particular case may tend to be even more difficult. In
but applying it in a particular case may tend to be even more difficult. In
support of the statement that Sidumo seeks to strike the aforesaid balance,
it may be said that, while on the one hand, Sidumo does not allow that a
CCMA arbitration award or decision be set aside simply because the court
6 (2008) 29 ILJ 964 (LAC).
would have arrived at a different decision to that of the commissioner, it also
does not require that a CCMA commissioner's arbitration award or decision
be grossly unreasonable before it can be interfered with on review - it only
requires it to be unreasonable. This demonstrates the balance that is sought
to be made. The court will need to remind itself that it is dealing with the
matter on review and the test on review is not whether or not the dismissal is
fair or unfair but whether or not the commissioner's decision one way or
another is one that a reasonable decision maker could not reach in all of the
circumstances.
[100] The test enunciated by the Constitutional Court in Sidumo for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure that such
awards are not lightly interfered with. It will ensure that, more than before,
and in line with the objectives of the Act and particularly the primary
objective of the effective resolution of disputes, awards of the CCMA will be
final and binding as long as it cannot be said that such a decision or award
is one that a reasonable decision maker could not have made in the
circumstances of the case. It will not be often that an arbitration award is
found to be one which a reasonable decision maker could not have made
but I also do not think that it will be rare that an arbitration award of the
CCMA is found to be one that a reasonable decision maker could not, in all
the circumstances, have reached.
[49] It is evident from the compensation awarded to Gogo that the commissioner
recognised the gravity of Gogo’s misconduct. He granted only three months'
compensation, underscoring that Gogo must accept responsibility for losing
his job. This is because he ignored the plea for foreigners to keep their heads
down and the fact that, as a manager, he was expected to set an example.
Had Gogo wished to be reinstated, the commissioner would have issued a
Had Gogo wished to be reinstated, the commissioner would have issued a
final written warning. The alleged unfairness to the employer is not at all
apparent.
[50] Not all employees involved in the Facebook group were dismissed. Some
were transferred to other stores. Therefore, not all engagement in xenophobic
conduct was grounds for dismissal. I reproduced the applicant’s submissions
to the commissioner regarding Gogo’s wrongful conduct. Those submissions
do not mention that continued employment was intolerable. They only state
that Gogo needed to be disciplined, like all those involved in the Facebook
group post.
[51] I was unable to understand the submission that the fairness of a dismissal
must be judged based on the reasons for the dismissal. The commissioner did
not present a different reason for Gogo's dismissal. He understood that Gogo
was dismissed because of the status he posted on his personal profile and in
the Management WhatsApp group, which the applicant considered harmful
and provocative. Regarding Gogo’s disciplinary record, it was the applicant’s
case that it was not taken into account when Gogo was dismi ssed. The
commissioner correctly determined that he was not required to consider
previous warnings.
[52] The commissioner’s decision that dismissal was not a fair sanction is not a
decision that no reasonable decision maker could reach. This ground of
review must also fail.
Costs
[53] The applicant sought costs in the event of opposition, and Gogo prayed for
the dismissal of the review application with costs. However, conspicuously
absent from the parties' heads of argument are submissions regarding costs.
This was an acknowledgement that the Court must exercise its discretion on
the issue. An order in accordance with the requirements of law and fairness,
in terms of section 162 of the LRA, is for each party to pay its own costs.
[54] In the result, the following order is made:
Order
1. The review application is dismissed.
2. There is no order as to costs.
_______________________
T. Gandidze
Judge of the Labour Court of South Africa
Appearances:
For the Applicant : W Jacobs
Instructed by :Willem Jacobs & Associates
For the Respondent : Mr K Cato
Instructed by: : Cato Attorneys