IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 2328/22
In the matter between:
LACTALIS SOUTH AFRICA (PTY) LTD Applicant
and
STEPHEN MANABE First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
COMMISSIONER PAUL BOTHA Third Respondent
Heard: 25 June 2025
Supplementary Heads of Argument: 13 October 2025
Delivered: This judgment was handed down electronically by circulation to
the parties' legal representatives by email; and publication on
the Labour Court website and released to SAFLII . The date for
hand-down is deemed to be on 31 March 2026.
Summary: Review application in terms of s 145 of the Labour Relations Act
66 of 1995 - Disciplinary proceedings - Double jeopardy -
Application of the double jeopardy rule to a disciplinary
process conducted by a deemed employer in terms of s 198A of
the LRA following a prior disciplinary hearing conducted by the
(1) Reportable Yes
(2) Of interest to other Judges: Yes
(3) Revised
____________ ______________
Signature Date
2
temporary employment service on the same charges - Held: the
disciplinary action by the TES was a nullity - Double jeopardy
not applicable - Relief declaring dismissal substantively fair
incompetent where substantive fairness was never vent ilated
before the Commissioner - Court lacks power to remit that
which was never before the Commissioner - Dismissal by
deemed employer fair insofar as the challenge was based on
double jeopardy - Arbitration award reviewed and set aside - No
order as to costs.
JUDGMENT
MOTSHEKGA, AJ
Introduction
[1] The applicant, Lactalis South Africa (Pty) Ltd (the applicant) seeks to review
and set aside an arbitration award (the award) rendered by the third
respondent as the duly appointed Commissioner (the C ommissioner) on 25
September 2022, under the auspices of the second respondent, the
Commission for Conciliation, Mediation and Arbitration (the CCMA).
[2] The applicant further seeks an order that the dismissal of the first respondent,
Stephen Manabe (the employee) was substantively fair.
[3] The review application is brought in terms of section 145 of the Labour
Relations Act1 (the LRA).
[4] In his award, the C ommissioner ordered reinstatement, having found that the
dismissal of the employee was unfair on the basis that it constituted double
jeopardy.
1 Act 66 of 1995, as amended.
3
[5] The review application is opposed by the employee.
Relevant Facts
[6] The employee was initially employed by Kempston Hire (Kempston), a
temporary employment service provider which supplied the applicant with
flexible work employees. In terms of a rostering system, the employee was
deployed at the applicant’s Centurion distribution centre a s a driver from
August 2019 until 9 February 2022.
[7] It is common cause that during the period of deployment by Kempston, the
employee became a deemed employee of the applicant in terms of the
operation of section 198A
2 of the LRA.
[8] On 29 September 2021, and following a disciplinary hearing, the employee’s
contract was terminated by Kempston. Thereafter, the applicant precluded the
employee from reporting for duty and ceased to schedule him. Subsequently,
the employee referred an unfair dismissal dispute to the CCMA, citing the
applicant as the employer.
[9] In his referral document, the employee summarized the facts as follows: ( a)
He was dismissed by the “deemed employer” on 4 October 2021 for “no
reason”; (b) he was telephonically contacted by an official of the applicant who
informed him that Kempston had instructed the applicant not to allocate work
to him.
[10] On 26 January 2022, the parties concluded a settlement agreement at the
CCMA in terms of which the employee was to be reinstated with an amount of
R16 077.24 payable to him. The settlement agreement recorded that the
employee was “ to be called according to schedule, same place, Lactali s,
Gauteng Distribution Centre”.
2 Section 198A stipulates inter alia that, an employee of a temporary employment service who
provides services for a client for a period exceeding three months is “ deemed to be the employee of
that client and the client is deemed to be the employer ” for purposes of the LRA. ( the deeming
provision).
4
[11] The applicant effected payment in terms of the settlem ent agreement. The
employee was however, not “called according to schedule”. Instead, he was
informed that the applicant was investigating the allegations which Kempton
had relied upon in terminating him.
[12] On 31 January 2022, the employee was notified by the applicant to attend a
disciplinary hearing at which he was charged with dishonesty and failure to
comply with company regulations.
[13] The charges are common cause and do not arise for determination in this
review application; accordingly, they will not be restated. It suffices to mention
that the charges were identical to those upon which Kempston relied in
terminating the employee’s contract of employment.
[14] On 3 February 2022 a disciplinary hearing was held and the empl oyee was
found guilty of allegations of dishonesty and subsequently dismissed on 9
February 2022 by the applicant. The employee thereafter referred an unfair
dismissal dispute against the applicant to the CCMA.
[15] At the CCMA, the employee successfully applied for legal representation in
terms of rule 25 of the CCMA Rules. Subsequent thereto, the Commissioner
determined that the matter be dealt with by way of a statement of case by the
employee in terms of rule 19 of the CCMA Rules , with the applicant to file a
reply. The parties filed their papers accordingly.
[16] The matter was scheduled for arbitration on 12 September 2022.
[17] In sum, the employee contended that the sole issue for determination was
whether the “second dismissal” on 9 February 2022 was unfair, having regard
to the settlement agreement concluded between the parties on 26 January
2022. Thus, the employee argued that the principles of double jeopardy found
application in his dismissal by the applicant.
5
[18] For reasons that will appear more fully in this judgment, the applicant disputed
having dismissed the employee prior to February 2022 and contended that
there was a single dismissal , namely that which took place on 9 February
2022, thereby refuting the applicability of the rule against double jeopardy.
[19] The record reveals that, the substantive fairness of the misconduct allegations
was not placed at issue. The parties’ submissions were therefore limited to
the alleged unfairness of the “second dismissal” following the conclusion of
the settlement agreement.
The Arbitration award
[20] The commissioner having considered the parties’ submissions found that the
employee was unfairly dismissed by the applicant and ordered reinstatement.
In sum, the commissioner held that the employee was unjustifiably subjected
to double jeopardy by the applicant. The following paragraphs from the award
capture the commissioner’s reasoning in that regard:
‘…
11.1 Since the parties clearly accept the effect of the Assign Services
judgment, the applicant is the employee of the respondent for
purposes of determining the fairness of the dismissal. All the
respondent needed to do when realizing that the TES had acted
without the respondent’s knowledge (if this is indeed what happened),
was to instruct the TES to roster him for duties, and inform him that
TES’ actions were not binding and that he may report for duty as he is
not dismissed. It did not do this. It specifically identified itself as the
employer, and agreed in writing to reinstate the employee as a
remedy to deal with alleged unfair dismissal. An employee cannot be
reinstated if his services were not terminated in the first place.
11.2 It therefore follows that there were two dismissals. The respondent is
responsible for the actions of a TES in respect of its employees, and
cannot seek to escape that responsibility now. I find the respondent’s
conduct in respect of “going through the motions” with the
conduct in respect of “going through the motions” with the
reinstatement agreement, only to conduct a second hearing, to be
6
reprehensible. Why not simply defend the fairness of the dismissal at
arbitration after appraising the merits of the case?
11.3 There were no different or exceptional circumstances that would justify
a second dismissal. I further find that “genuine” double jeopardy exists
in this case, which is distinguishable from the concept of double
jeopardy considered by the Court in the BMW v Van der Walt case
cited supra. In that case, second hearing whilst the applicant was still
employed, under unusual circumstances, was at issue. In the case
before me, an employee is: dismissed, reinstated and dismissed again
for precisely the same al legations of misconduct. This is akin to
conviction, release and conviction of a person on the same charges in
a criminal case. I certainly think that double jeopardy as a legal
principle applies quite obviously in this case.
11.4 The respondent cannot seek to rely on not knowing what its TES was
doing, the respondent is the employer . It cannot be regarded as a fair
dismissal, when faced with a claim of unfair dismissal, the respondent
puts up its hand and identifies itself as the employer, reinstates the
applicant again on the same allegations . It is not a convincing
argument to say the involvement of the TES somehow displaces the
responsibilities of the respondent. Any unfair conduct in the
workplace, in respect of actions that are of an employer -employee
nature and which affect the employment relationship, which are
directed at employees by TES where the deeming provision is not
disputed, will be the responsibility of the respondent who is a deemed
employer.’ (Own emphasis)
Grounds for the review
[21] The applicant’s first ground for review is that the Commissioner committed a
gross irregularity and failed to reach the standards of a reasonable decision
maker by: holding that the dismissal of the employee was unfair on the
principle of double jeopardy, when there was no basis in law or fact to support
that finding.
principle of double jeopardy, when there was no basis in law or fact to support
that finding.
[22] Secondly, the applicant submits that the C ommissioner failed to properly
apply his mind to the matter when he concluded that , there was an initial
7
dismissal by the applicant when in fact there was not as the dism issal by
Kempston was a nullity.
[23] Lastly, that the Commissioner misconducted himself by attending to two
personal telephone calls during the arbitration proceedings which were
disruptive to the proceedings and ultimately impacted on the outcome of the
award.
[24] In sum, the applicant’s review of the award is premised on the
Commissioner’s finding of double jeopardy and the misconduct r elating to
answering personal phone calls during the arbitration proceedings.
Submissions on Double Jeopardy
[25] The discontent with the Commissioner’s double jeopardy finding is premised
on the following as submitted by the applicant : (a) the upshot of the deeming
provision is that, Kempston’s disciplinary process was a nullity; thus, there
could be no reference to a second hearing either in fact or in law; (b) the
settlement agreement concluded by the parties resolved the dispute as
referred by the employee regarding the alleged dismissal by the applicant on
4 October 2021 for reasons unknown; (c) the CCMA had no jurisdiction to
settle a dispute that was not before it, namely , the dismissal based on
misconduct by Kempston; and (d) the settlement agreement did not preclude
the applicant from investigating the misconduct allegations, discip line the
employee in accordance therewith, and ultimately dismiss him for dishonesty
following a disciplinary hearing held on 3 February 2022.
[26] The employee disputes the contention that Kempston’s disciplinary process
was a nullity. He argues that the applicant cannot rely on nullity when it act ed
incongruently with that position in refusing to allow him to tender his services,
following his dismissal by Kempston . The employee further submitted that
such refusal was premised on the dismissal by Kempston.
[27] The employee maintained that on both occasions he was charged and
dismissed based on the same facts following a disciplinary.
8
[28] Mr Mohlala, appearing for the employee, further argued that the applicant
approved Kempston’s dismissal of the employee by failing to roster him and
that the two were in agreement regarding the dismissal.
[29] The employee furthermore submitted that he is a lay person, and that the
applicant’s reliance on its referral form was misplaced. Furthermore, that
despite having been assisted by Casual Workers Advice Office ( CWAO),
which is a labour centre, its personnel are not legally qualified. To amplify, it
was argued for the employee that both his referral forms to the CCMA
following the September 2021 and February 2022 dismissals; he cited that the
reason for his dismissal was “unknown”.
[30] Finally, the employee contended that the settlement agreement resolved the
dismissal relating to the misconduct allegations , maintaining that it related to
the charges which led to his dismissal in September 2021.
Submissions on the Commissioner’s Conduct
[31] Briefly, the applicant further submitted, as one of the review grounds, that the
Commissioner misconducted himself by proceeding to take two personal
phone calls during the arbitration proceedings.
[32] Mr. CasselLs for the applicant argued that the conduct of the Commissioner in
taking personal pho ne calls during the proceedings adversely affected the
outcome of the award.
[33] It was further submitted that, the outcome of the award confirms that the
Commissioner was not properly engaged in the matter.
[34] Moreover, the applicant submitted that the Commissioner conducted himself
unprofessionally when he expressed to the parties during the arbitration that
he held a particular view on the matter and that argument on the relevant
legal principles may be futile.
[35] The employee disputes that the taking of personal calls during the arbitration
constitutes misconduct , submitting that it could at best be regarded as
unprofessional conduct.
9
[36] The employee submitted that the Commissioner apologized for the telephone
calls and that this complaint could have been raised with the Commissioner or
the Senior Commissioner.
[37] To conclude on this ground of review, the employee contended that a
Commissioner’s or a J udge’s expression of a view on a matter constitutes
normal practice and does not amount to unprofessionalism.
Test for review
[38] As stated elsewhere above, the applicant’s review application is premised on
the Commissioner’s misapplication of the law on double jeopardy and his
conduct during the proceedings.
[39] The standard for review is as formulated by the Constitutional Court in
Sidumo and Another v Rustenburg Platinum Mines and others
3, and stipulates
that the Commissioner’s decision must be one that a reasonable
decision‑maker could reach.
[40] The Labour Appeal Court in Head of Department of Education v Mofokeng
and Others 4 expounded that not every error or irregularity will justify
interference; only those that are material, in the sense that they distort the
arbitrator’s enquiry or affect the outcome, render the result unreasonable.
[41] The practical approach in determining reasonableness of the outcome of the
award, as advanced by Myburg
5 is to first identify the error, then determine
whether it was outcome‑determinative, and if so, assess whether the incorrect
result is nevertheless capable of reasonable justification.
3 (2007) 28 ILJ 2405 (CC) at para 110.
4 (2015) 36 ILJ 2802 (LAC) at para 33.
5 See A Myburgh SC ‘Reasonableness Review - The Quest for Consistency' (2024) 45 ILJ 1377 at
1390. This formulation was cited with approval by the Labour Appeal Court in National Bargaining
Council for the Road Freight and Logistics Industry v Deysel NO and others (2025) 46 ILJ 1679 (LAC)
at para 34.
10
[42] Accordingly, a reviewing court is not concerned with the correctness of the
award, but with the reasonableness of the outcome. Even where an error is
identified, the decisive question remains whether the said error rendered the
outcome unreasonable.
Evaluation
[43] The central issue before the court is whether the C ommissioner committed a
reviewable irregularity in concluding that the employee was subjected to
double jeopardy and in his conduct during the proceedings, such that it
renders the outcome of the award unreasonable.
[44] At the outset, the crux of the applicant’s review ground on the double jeopardy
finding lies in the legal status of the disciplinary process by Kempston on 29
September 2021.
[45] It is common cause that the deeming provision applied, consistent with the
findings of the Constitutional Court in Assign Services v NUMSA (Casual
Workers Advice Office as Amicus Curiae6.
[46] The determinative question is therefore whether Kempston was cloaked with
the requisite authority to discipline the employee. Axiomatically, if the answer
is in the negative, then prior to February 2022 there could have been no valid
dismissal capable of attracting the rule against double jeopardy ; there being a
single dismissal, namely, that effected on 9 February 2022.
[47] Ancillary to evaluating the legal status of Kempston’s disciplinary process is
whether: (a) the applicant can be held responsible for the actions of Kempston
as found by the Commissioner;
7 (b) the refusal to accept the employee’s
services constituted an approval of the dismissal; and (c) the settlement
agreement concluded between the parties in January 2022 precluded the
applicant from instituting disciplinary proceedings against the employee based
on the same charges proffered by Kempston in September 2021.
6 (2018) 39 ILJ 1911 (CC).
7 Pleadings, arbitration award, page 19 at para 11.2.
11
[48] The rule against double jeopardy is trite. It is anchored in the principles of
fairness and natural justice. In the employment law context, the rule serves to
protect employees from being disciplined twice for the same misconduct.
Grogan captures the principle and its origin as follows
8:
‘It is a general principle of fairness that a person should not be tried twice
for the same offence. This principle is applied strictly by criminal courts,
where it is expressed in the principle autrefois acquit. In civil law, it is
expressed in the principle that a litigant may not sue in respect of a matter
that has already been decided by a competent court; the issue is the said
to be res judicata…’
[49] The Labour Appeal Court in SAMWU obo Malatsi v South African Local
Government Bargaining Council and Others 9 held that the application of
double jeopardy in the workplace should be approached with caution as it is
derived from the principles of criminal law.10 The Court in Malatsi nevertheless
emphasized that11 ‘in labour disputes, the ultimate yardstick is fairness’.
[50] Parenthetically, and albeit not applicable to the present matter, a second
disciplinary enquiry may be permissible in exceptional circumstances, which
may include the emergence of new evidence, where the initial process was
materially flawed, ill- informed, incorrect, misconceived, or ultra vires the
employer's disciplinary code, was a nullity, or where the second enquiry would
be fair.
12
[51] The Court notes that in arriving at their respective positions, b oth the
Commissioner and the employee conflated the authority of the deemed
employer to discipline with joint liability for the consequences of dismissal.
[52] This is evidenced by , first , the employee’s contention that the applicant
approved of the dismissal by Kempston when it refused to accept the
8 J Grogan et al Dismissal 4th ed (2022) pp 277.
9 (2026) 47 ILJ 321 (LAC) (Malatsi).
10 Ibid at para 15.
11 Ibid at para 15 fn 9.
9 (2026) 47 ILJ 321 (LAC) (Malatsi).
10 Ibid at para 15.
11 Ibid at para 15 fn 9.
12 BMW (South Africa) (Pty) Ltd v Van Der Walt (200) 21 ILJ 113 (LAC) at para 12; BrandFord v
Metrorail (2003) 24 ILJ 2269 (LAC).
12
employee’s tender of its services. This argument is untenable. Authority to act
requires no subsequent approval and the suggestion that the applicant’s
conduct constituted an ‘approval’ cannot stand. If anything, the submission
fortifies the applicant’s contention that Kempston lacked the requisite authority
to discipline on the basis of the deeming provision.
[53] Mr Mohlala submitted during argument that the applicant’s approval of
Kempston’s actions should be deduced from the applicant’s conduct .
However, the employee neither pleaded nor advanced any argument based
on lawful authority or the doctrine of estoppel or acquiescence. C onsequently,
there is no legal basis upon which the approval can be deduced from the
applicant’s conduct. Therefore, applicant cannot be held responsible for the
unauthorized disciplinary action by Kempston
[54] Second and more significantly , the Commissioner unequivocally based his
finding of double jeopardy on the premise that the applicant is responsible for
the actions of TES with regard to “actions that are of an employer -employee
nature”13. Th at approach is legally flawed. Absent a finding of estoppel ,
acquiescence or lawful authority, the applicant cannot be held responsible for
the unauthorized disciplinary action by Kempston.
[55] Without more, neither the applicant’s refusal to accept the employee’s
services, nor the responsibility attributed to it by the Commissioner for
Kempston’s unauthorized actions , can retrospectively validate the latter’s
disciplinary process.
[56] The disciplinary process by Kempston and the dismissal emanating therefrom
were therefore a nullity and incapable of attracting the jeopardy principle.
[57] Having conc luded that Kempston’s disciplinary process and the dismissal
stemming therefrom were unauthorized and therefore a nullity, the Court now
turns to consider the settlement agreement concluded in January 2022.
13Pleadings, arbitration award, page 20 at para 11.4.
13
[58] The settlement agreement, considered simpliciter, resolved the practical
consequences arising from Kempston’s actions, including the non- scheduling
of the employee. It could not, however, alter the legal status of those actions,
Kempston's disciplinary process having been found to be a nullity
[59] The Court has considered the employee's submission that reinstatement as
contained in the settlement agreement presupposes a dismissal. This
argument is without merit in circumstances where there was an unauthoriz ed
dismissal. It must be emphasized that, the settlement agr eement cannot, in
and of itself, have the legal effect of validating an unauthorized dismissal.
Rather, the settlement agreement reflects the operation of the deeming
provision under which the employee is treated as an employee of the client for
purposes of liability under the LRA.
[60] From the foregoing, it is clear that the employee was not subjected to double
jeopardy. Consequently, the Commissioner’s finding to the contrary rendered
the outcome of the award unreasonable on that basis.
[61] For completeness, the Court has considered the remaining review ground
pertaining to the Commissioner’s conduct. Concerning the taking of personal
calls, without condoning conduct that is completely unacceptable and
unprofessional, there is nothing on the record suggesting that the outcome of
the award was impacted by such conduct. The same conclusion applies to the
conduct of the Commissioner in expressing that he had a particular view on
the matter. Although undesirable and to be avoided, as it might give rise to
suspicions of bias , t he Court is unpersuaded that this constitutes a valid
review ground.
Appropriate Relief
[62] Arising from the review application is the issue of appropriate relief.
[63] The employee raised a point in limine that the relief sought by the applicant,
that is, an order declaring that the dismissal was substantively fair, is
incompetent in the circumstances.
14
[64] The basis for this contention is that the arbitration was primarily decided on a
narrow legal aspect of double jeopardy, and that there were no facts
presented at arbitration which would enable the Court to make a
determination on the fairness of the dismissal.
[65] Accordingly, it was argued for the employee that the applicant should have
prayed for a remittal to the CC MA in the event that the Court found in its
favour.
[66] The parties were directed to file supplementary heads of argument on the
issue. In particular, parties were required to address the Court on (a) whether
the statement of case constituted a “stated case or special case” consonant
with the meaning of a statement of case as per the decisions in Social
Security Agency v NEHAWU obo Punzi and Others
14 and Fetakgomo Greater
Tubatse Local Municipality v SALGBC and Others 15?; (b) Whether the
arbitration proceedings were complete in light of the applicant not having
discharged the onus of proving the facts pertaining to the alleged misconduct
in terms of section 188 of the LRA ?; and (c) in the event that the court found
in the negative in relation to (a) and (b) above, on what basis the matter
should not be remitted to the CCMA to be heard de novo before another
Commissioner?
[67] At the time of this judgment, only the applicant has filed its supplementary
heads of argument. The employee has not filed its supplementary heads of
argument notwithstanding the Court’s directive.
[68] The applicant in its heads argument submitted that the employee did not
place in issue the allegations of misconduct ; rather, he squarely placed
reliance on double jeopardy as the basis for the unfairness of the dismissal.
[69] The applicant contended that the factual plinth contained in the statement of
case, in relation to the narrow issue of double jeopardy, was common cause
and sufficient to constitute substantial compliance with the requirements of a
14 (2015) 36 ILJ 2345 (LC) at paras 7 and 8.
14 (2015) 36 ILJ 2345 (LC) at paras 7 and 8.
15 (JR 1832/19) [2022] ZALCMPP 1
15
stated case. On that basis, the applicant submitted that the arbitration
proceedings constituted proper proceedings.
[70] The applicant submitted that there were no material disputes of fact on the
narrow issue of double jeopardy. To this end, the applicant cited the appellate
decision of Motor Industry Sta ff Association and Another v Mc Carthy Ltd and
Others
16 wherein the Court emphasized that where the record contains the
necessary factual background and the facts are common cause, arbitration
may proceed without oral evidence.
[71] Finally, the applicant contended that even if the Court found that the
employee's statement of case is not a proper stated case, the Court would still
be entitled to substitute the Commissioner's finding without the need to remit
the matter, as the matter was decided solely on that narrow basis.
Conclusion
[72] The Court has considered the parties’ submissions and is satisfied t hat its
powers are confined to the matters placed before the Commissioner.
[73] The employee’s challenge was limited to double jeopardy and no factual
record or submissions were placed on the substantive fairness of the
dismissal.
[74] The Court’s determination that no double jeopardy arose is dispositive of the
matter with respect to the issues considered by the Commissioner.
[75] In the circumstances, the Court i s not empowered to determine the
substantive fairness of the dismissal, as the issue was not ventilated before
the Commissioner.
[76] The point in limine raised by the employee is accordingly upheld. The relief
sought by the applicant, that is, an order declaring the dismissal substantively
fair, is incompetent in circumstances where the substantive fairness of the
dismissal was never ventilated before the Commissioner. By the same token,
16 (2021) 42 ILJ 117 (LAC).
16
the Court cannot remit to the CCMA that which was never before the
Commissioner. It follows that the applicant's contention that the Court is
entitled to substitute the Commissioner's finding for a finding on substantive
fairness is rejected.
[77] Accordingly, the following order is made:
Order
1. The award issued by the C ommissioner on 20 June 2022, under
CCMA case number GATW2960-22, is hereby reviewed and set aside.
2. The Commissioner’s award is substituted with the following order: “The
dismissal of Stephen Manabe by Lactalis SA (Pty) Ltd is fair insofar as
the dismissal was challenged on the basis of double jeopardy”.
3. There is no order as to costs.
_____________________
M. J. Motshekga
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Mr G Cassells of Maserumule Attorneys
For the First Respondent: Advocate Mohlala
Instructed by: AM Ncube Attorneys