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[2026] ZALCCT 67
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Sinxadi v Commission For Conciliation, Mediation and Arbitration and Others (C640/2021) [2026] ZALCCT 67 (13 April 2026)
THE
LABOUR COURT OF SOUTH AFRICA
AT CAPE TOWN
Case
no: C640/2021
(1)
Reportable: NO
(2)
Of interest to other Judges: Yes
13
April 2026
In
the matter between:
PHUMIZILE
MELVIN SINXADI
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
& ARBITRATION
First
Respondent
F
A CRAFFORD
N.O.
Second
Respondent
DE
STRAADT BOERDERY (PTY) LTD
Third
Respondent
Heard
:
29 April 2025
Delivered
:
13 April 2026
Summary:
(Review – Unopposed –
dismissal for misconduct – failure to ensure compliance with
safety rule governing employees
on a tractor – disobeying a
direct and general instruction on visiting a local clinic just for a
check-up during Covid Level
5 lockdown)
JUDGMENT
LAGRANGE, J
Nature
of the application
[1]
This application was previously removed from the roll to permit the
applicant, Mr P Sinxadi (‘Sinxadi’) to
amend the citation
of the employer.
[2]
This is an unopposed review application of an arbitration award in
which the arbitrator found that the applicant’s
dismissal for
misconduct was substantively and procedurally fair. The
application was not opposed because the employer party
believed the
review application had no prospects of success.
[3]
The applicant had been dismissed by the employer (‘De Straadt’)
after it found him guilty of three charges,
namely (a) inciting
fellow employees (b) gross negligence relating to health and safety
and (c) acting in breach of COVID regulations
limiting movement. The
arbitrator dismissed the first charge but upheld the remaining ones.
Brief background
[4]
For the sake of context a brief outline of events which led to
Sinxadi’s dismissal, which emerges from the evidence,
is
necessary.
[5]
Sinxadi was employed as a team leader in the employer’s farming
operation.
[6]
The first charge concerned telling employees they were not earning
enough and encouraging them to approach management
for an increase.
The company wrongly believed this amounted to incitement.
[7]
The second charge concerned an injury suffered by another employee
was sitting on a trailer being towed by a tractor Sinxadi
was
driving. As a result of her injury she had to undergo physiotherapy
and take time off. The employer argued that he did not
take proper
care when setting the tractor in motion that anyone on it was safe
before moving off.
[8]
The third charge concerned him going to a medical clinic some 35 kms
away during Covid level 5 regulations (the so-called
‘hard
lock-down’). To assist staff, De Straadt had arranged for
medication to be delivered to them on the farm. This
was because
clinic visits were being limited except in cases of emergency.
Sinxadi himself had explained the procedure to staff,
but contrary to
the communication he had made had left the farm to go to the clinic,
in circumstances where his scheduled visit
was just a routine follow
up consultation. The human resource manager denied having been
informed about him making a request to
go the clinic, which he made
to a junior manager. The junior manager testified that he told
Sinxadi he could not go. There was
nothing to suggest he was
seriously ill and the farm was very busy as it was harvest time.
[9]
Sinxadi said he had been told to attend the clinic if he did not feel
well and he had phoned the clinic, which had given
him permission to
visit on 1 April 2020, despite the lockdown. At the clinic he was
advised he had a blood pressure issue and told
to return two days
later and see a nursing sister at another farm.
[10]
On the question of the injury suffered by the employee who had been
on the tractor, he said he told staff daily to stay
off the tractor
when it was moving but it was a rule that was widely ignored. He
could not understand how the employee could have
been injured as the
tractor moved slowly.
[11]
He claimed he had not been given enough opportunity at his
disciplinary hearing to ask questions or obtain representation
and
the minute of the hearing, which indicated otherwise was not true.
[12]
A former general worker who testified for Sinxadi said that the
normal practice when a tractor was to move was for the
driver to wait
for everyone to get off or to hoot, but in practice workers often
stayed on the trailer despite the fact they were
not supposed to be
there.
Award
[13]
The arbitrator’s reasoning is set out briefly below.
[14]
He dismissed the incitement charge, though he found, contrary to
Sinxadi’s testimony, that he had indeed spoken
to his fellow
foreman about their salaries. In the absence of any evidence of them
embarking on some form of unprotected industrial
action his conduct
did not amount to incitement. The arbitrator nonetheless found
Sinxadi’s denial he had spoken with them
implausible and that
this reflected badly on his credibility.
[15]
On the question of his visit to the clinic, the arbitrator found that
if his condition was serious he could have asked
for transport to the
clinic and he knew that in exceptional and serious circumstances
employees could go to the clinic but he did
not motivate his need to
go to the clinic in such terms. He also found Sinxadi did not provide
any corroboration for his claim
that he had obtained permission from
the clinic to make the visit. His refusal to comply with his
manager’s instruction not
to go, was an act of defiance.
Moreover, it was not disputed that the clinic visit was a standard
follow up appointment, not an
emergency. It was understandable, in
the circumstances, that the employer was concerned about his conduct
especially as he had
been the person who had conveyed the limitation
on clinic visits to staff. The arbitrator concluded that this was
indicative of
his general attitude to rules and regulations which
also reflected on the way he conducted himself in relation to the
incident
in which an employee was injured.
[16]
On the charge of gross negligence relating to the injury, the
arbitrator found that the employee had been injured when
Sinxadi was
reversing and she was still working on the trailer. He had testified
that the rule workers should disembark from the
trailer was ignored
in practice during the harvesting season. He noted his
testimony that he claimed he told workers daily
how they should
behave on the trailer and get off it when it was going to move. His
own witness made it clear it was the driver’s
responsibility to
ensure everyone was off the trailer before moving it, though he later
said that workers did hang on to crates
when the tractor moved
despite the rule requiring them to alight. Sinxadi’s manager
also confirmed the rule and the driver’s
responsibility to see
that workers complied with it.
[17]
Given that Sinxadi was a Health and Safety officer, the arbitrator
found it was inexplicable that he would tolerate the
practice of
workers remaining on the trailer especially if he warned them daily
not to. As a team leader and driver he should
not have allowed
the practice. Contrary to his claim that he told workers daily to
disembark before the tractor moved, his other
witness testified that
he told them not to get off the trailer while it was moving. As to
his claim there were blind spots at the
back of the tractor, that was
all the more reason for him to have verified nobody was on it. Given
his position he should have
reported the impermissible practice
rather than perpetuating it and was guilty of gross negligence.
[18]
The arbitrator concluded that, in the circumstances, it was not
unreasonable of De Straadt to have dismissed him.
He had a duty
to carry out his obligations in a responsible manner and had failed
to do so. The arbitrator was plainly influenced
in his assessment of
the seriousness of the misconduct by the fact that Sinxadi fulfilled
responsible roles as a driver, team leader
and health and safety
officer and yet did not comply with rules himself. It should be
mentioned that even though it was not
a charge, there was evidence
that in the past his supervision of subordinates had been lax.
[19]
On the claim that his dismissal had been procedurally unfair, the
arbitrator noted that he failed to cross examine the
chairperson
about the alleged irregularities and did not challenge the
chairperson’s testimony that Sinxadi had initially
requested a
representative, but on the day of the enquiry no longer required
one. He also did not dispute the chairperson’s
testimony
that he had a good command of English and Afrikaans and acted as an
interpreter for the company. The arbitrator found
he had been fully
apprised of his rights in the notice of the enquiry. In the
circumstances, he found that Sinxadi had suffered
no prejudice in his
disciplinary enquiry.
Grounds of review
[20]
Sinxadi’s grounds of review were hard to distinguish from
grounds of appeal. Nonetheless, as he is a lay person,
I have assumed
in his favour that his challenges to the reasoning of the arbitrator
are that the flaws he has alleged are ones
that, if justified, are so
serious that the arbitrator’s findings could not be sustained
on any reasonable basis. By taking
account of them this way,
Sinxadi’s criticisms can be brought within a review based on
reasonableness.
[21]
In essence, Sinxadi’s complaints as set out in his affidavit
are threefold:
21.1 The
arbitrator failed to take account of the delay in implementing
disciplinary action between the time that the
other employee was
injured and the time the hearing took place. This undermined the
fairness of the disciplinary process and affected
the reliability of
witnesses and the reliability of the outcome.
21.2 In
relation to the finding of gross negligence, the arbitrator, did not
pay attention to the practice during harvesttime
of workers being
allowed to remain on the tractor when it was moving.
21.3 The
arbitrator failed to appreciate that it was necessary for him to
visit the clinic owing to your blood pressure
condition, and that the
clinic gave him permission for the visit.
[22]
At the hearing, Sinxadi raised other criticisms of the award, but the
court explained to him that he was confined to
the grounds of review
he had pleaded and could not raise fresh ones in court.
[23]
In relation to the first ground Sinxadi could not provide concrete
evidence in the record to explain how he had been
prejudiced by the
delay between the accident at work on 19 February and the date of his
enquiry scheduled for 8 May but only proceeding
on 27 May 2020. The
human resource manager said that the enquiry into this charge was
delayed by the harvest season, which runs
from January to May, and it
could not afford to have a team leader off work during that time.
[24]
It is true that the arbitrator did not specifically deal with the
delay between the accident and the disciplinary action
in his award.
However, none of the witnesses claimed their recollection suffered as
a result of the delay. In any event, the main
issue in dispute was
about Sinxadi’s liability for acting negligently. Apart from
Sinxadi himself, who was obviously present
when the accident
occurred, only one witness actually saw how Sinxadi’s spouse
was injured and that witness was not uncertain
about her testimony.
The Occupational Health & Safety Act report and the eyewitness’s
evidence both claimed that Sinxadi’s
wife was injured when she
was climbing off the tractor while it was in motion, even though the
precise mechanics of how her arm
got injured were somewhat different.
In any event, the key issue concerned Sinxadi’s
responsibilities as a driver of the
tractor towards workers on the
vehicle.The main points in contention were about what were the rules
regarding workers being on
the tractor or trailer, which are issues
not affected by the limitations of an eyewitness’s
recollection. There was
nothing before the arbitrator to show
that Sinxadi’s ability to advance his defence was negatively
affected by the delay,
so even if the arbitrator had considered it,
there is no reason to suppose it would have affected his findings on
this charge.
[25]
In relation to the practice of allowing workers to remain on tractors
or trailers when in motion in harvest time, Sinxadi’s
own
testimony was that the practice was in breach of the rule that they
should not be on the vehicle when in motion. The employer
argued that
as a team leader and more particularly, a Health and Safety officer,
he should not have permitted such a practice.
The eyewitness to the
accident testified that normally there would some kind of noise to
alert workers that the tractor was going
to move and workers were
told they should not get off the tractor while it was in motion, but
that they should hang onto the crates
on the vehicle. Sinxadi’s
other witness testified that the driver of the tractor was supposed
to look behind him to see that
there was no person on the tractor
before moving off. The driver was supposed to wait until everyone was
off and if they were not,
to sound the hooter. He also testified that
workers would cling to the crates and that, in practice, the rule of
getting off the
vehicle was not followed.
[26]
The arbitrator did pay attention to the evidence that the rule about
not remaining on the vehicle was not followed in
practice, He
concluded that Sinxadi should not have set the vehicle in motion
before all the staff had disembarked from it
and that as a Health and
Safety officer he should not have permitted the practice of allowing
anyone to remain on it while in motion.
It is clear from his analysis
that, in any event, whether there was a practice or not, the driver
was supposed to ensure nobody
was on the vehicle. Even the testimony
of one of Sinxadi’s own witnesses was that the driver should
have done this, despite
the practice that workers would hang on to
the crates. The arbitrator’s findings on Sinxadi’s
responsibility for breaching
the safety rule, cannot be faulted on
the evidence, even if in practice the rule was flouted. Moreover,
notwithstanding the prevalence
of the practice was, that could not
have absolved Sinxadi of his responsibility to ascertain that it was
safe to move off, which
necessitated him checking on the status of
anyone who might be on the vehicle at the time. It was never part of
his defence that
he had done so.
[27]
Turning to the third ground, Sinxadi had attended the clinic contrary
to his immediate manager’s direct instruction
that he could
not, and the general instruction to the effect that employees should
not go to the clinic except in emergencies.
The HR manager had
testified that the Primary Health Care manager in Witzenberg, wrote
to it specifically stating that clinic visits
for chronic conditions
should not be made. This was not disputed by Sinxadi.
[28]
Sinxadi claimed the nurse at the clinic had confirmed that he had to
go to the clinic, but no document was produced to
corroborate that he
needed urgent treatment for a serious medical condition. He also did
not call the nurse as a witness to confirm
his hearsay evidence. The
available evidence all tends to support the version that it was a
routine blood pressure check up and
that the employer had arranged to
have the chronic medication of all the employees, including Sinxadi,
delivered at the farm premises.
He never claimed he did not receive
any chronic medication. On the evidence available it was quite
tenable for the arbitrator to
conclude that the clinic visit was only
for a check-up, that he disobeyed a direct instruction from his
manager not to go to the
clinic visit and the general instruction
which Sinxadi had himself conveyed to the other employees on behalf
of the company.
[29]
In passing, it should be mentioned that when the review application
was argued, Sinxadi contended that the arbitrator
had no evidence
that there was a prohibition against visiting the rural clinic during
the hard lock-down period. However, this
was not a pleaded ground of
review, and it had not even been his case that the instruction he had
conveyed to workers not to visit
the clinic except in serious
circumstances was not a valid one. As it was not even raised with the
arbitrator, there was no reason
why the arbitrator had to address it.
[30]
In conclusion, I am satisfied that on the evidence before the
arbitrator, it cannot be said that the material findings
in his award
were ones that no reasonable arbitrator could have reached. The issue
is not whether he was absolutely correct, but
whether his finding
were tenable ones on what was before him.
Order
In
the circumstances, it is ordered that:
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