THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE Number: JR 2282 / 22
In the matter between:
G4S CASH SOLUTIONS (PTY) LTD Applicant
and
NUMSA obo MOSINYANE AND 8 OTHERS First Respondent
NATASHA MONI N.O. (AS COMMISSIONER) Second Respondent
NATIONAL BARGAINING COUNCIL FOR THE
ROAD FREIGHT AND LOGISTICS INDUSTRY 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 15 April 2026
Summary: Bargaining council arbitration proceedings – review of
proceedings, decisions and award of arbitrator – s 145 / 158(1)(g) of LRA 1995 –
review test considered – entails determination of conduct of arbitrator, gross
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/NO
(3) REVISED: YES/NO
15 April 2026
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irregularities and un reasonable outcome – award by arbitrator constituting
unreasonable outcome in terms of review test
Dismissal – reason for dismissal of employees considered – arbitrator must
decide fairness of dismissal based on reason for dismissed provided by
employer at time of dismissal – employer may not prove different case at
arbitration – arbitrator’s decision that applicant sought to prove different
reason for dismissal at arbitration materially in error and unsubstantiated by
evidence – real reason for dismissal to be determined remained same
throughout
Arbitration – constitutes hearing de novo – principles considered – employer
entitled to present evidence in arbitration not presented in disciplinary hearing
– proviso is that reason for dismissal remains same – further evidence by
applicant in arbitration relates to same reason for dismissal – approach by
arbitrator seeking to exclude such evidence misconceived and unreasonable
Dismissal – formulation of charges – principles applicable to formulation of
charges internally by employer considered – does not require precision – only
required for employees to understand charges and those charges being dealt
with in disciplinary hearing – arbitrator failing to appreciate this principle
thereby misconstruing charges
Dismissal – gross negligence – principles considered – conduct of employees
constituting gross negligence – arbitrator failing to have proper regard to
serious nature of misconduct – arbitrator negating and misconstruing essential
facts relating to misconduct – finding of substantive unfairness reviewable
Dismissal – inconsistency – principles and evidence considered – arbitrator
misconstruing principles relating to inconsistency – arbitrator failing to apply
proper evidence relating to inconsistency – no proper factual basis for like for
like comparison being established by employees – inconsistency finding
constitutes material failure by arbitrator – award on inconsistency
constitutes material failure by arbitrator – award on inconsistency
unreasonable and reviewable
Dismissal – procedural unfairness – principles and evidence considered – no
evidence to substantiate case of procedural unfairness – no prejudice on the
part of employees proven – employees fully participating in disciplinary
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process without objection – finding of arbitrator relating to procedural
unfairness unreasonable and reviewable
Review of award – conclusion of arbitrator un reasonable and irregular –
arbitration award reviewed and set aside
JUDGMENT
SNYMAN, AJ
Introduction
[1] As a point of departure, I am compelled to say that this matter has been overly
complicated by the parties. It is a matter spanning thousands of pages,
contained in some 30 lever arch files, most of which were simply not
necessary to decide the substances of this matter. Parties have a duty to
provide the Court with only that which is needed to decide the review
application. It is entirely undesirable for this Court to trawl through thousands
of pages when this, had the parties just applied some focus and effort in
putting together a proper review record, could have been avoided . In the end,
and as I will deal with in this judgment below, this matter is relatively straight
forward despite the subs tantial extent of the record. It is my experience that
one often finds that the review application with the biggest bulk involves the
simplest matter.
[2] The above being said, this matter concerns a review application brought by
the applicant to review and set aside an arbitration award of an arbitrator
appointed by the National Bargaining Council for the Road Freight and
Logistics Industry (NBCRFLI) to arbitrate an unfair dismissal dispute between
the applicant and all of the individual first respondents . In terms of this
arbitration award, the second respondent, as the duly appointed NBCRFLI
arbitrator, determined that the dismissal of all of the individual first
respondents by the applicant was both substantively and procedurally unfair.
4
The application has been brought by the applicant in terms of section 145 as
read with section 158(1)(g) of the Labour Relations Act (LRA)1.
[3] The arbitration award of the second respondent is not dated. It however
appears that it was served on the applicant by e- mail by the NBCRFLI on 19
July 2022, and I will refer to this as the date of the award. The award was
subsequently varied by the second respondent in two further variation rulings
dated 26 July and 18 August 2022 respectively, served on the applicant by e-
mail on 30 July 2022 and 31 August 2022 by the NBCRFLI . These variation
awards related t o the quantum of back pay awarded to the individual first
respondents. 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. In this context, it must
be considered that a final award was only given by the second respondent on
31 August 2022, when the second variation ruling was served on the
applicant. The applicant’s review application was brought on 13 October 2022,
which is then within this time limit. The review application is therefore properly
before this Court for determination. The application has been opposed by the
first respondent.
[4] I will now proceed to decide the applicant’s review application by first setting
out the relevant background facts in this matter. For ease of reference in
respect of the parties in this case, the applicant will be referred to as ‘G4S’ and
where reference is made to all the individual first respondents jointly, they will
be referred to as ‘the employees’. When reference is made to any individual
first respondent in particular, this will be done by reference to the name of
such individual . The first respondent trade union will be referred to as
‘NUMSA’.
The relevant background
[5] G4S conducts business in what is known as the Cash- in-Transit (CIT)
[5] G4S conducts business in what is known as the Cash- in-Transit (CIT)
industry. It is a global CIT business. Because of the nature of the product (for
the want of a better description) being handled and transported by G4S, it is
1 Act 66 of 1995 (as amended).
5
subject to extremely strict control and secur ity regulatory measures. This is
because the product is cash. G4S, on the common cause facts, conducts
operations in a paramilitary style. The cash handled by G4S does not belong
to it, but to its various customers, such as for example banking institutions .
The core business of G4S specifically at stake in this case is the transporting
of cash to and from various ATMs across the country , including replenishing
ATMs with cash, on behalf of G4S’s banking institution customers. The
particular customers to which t he mat ter in casu relates are Capitec Bank
(Capitec) and ATM Solutions. Importantly, and despite the cash not being its
property, G4S is liable to its customers where cash losses / shortages arise for
periods whist the cash is in its custody, for any such losses / shortages.
[6] The employees were all employed by G4S in the capacity of what is called
‘custodians’. Custodians are those employees that serve on G4S’s specialised
armoured vehicles and to whom the cash e ntrusted, as the final link in the
chain of custody (as discussed further below) with the end goal to replenish
ATMs. The custodians are the only persons that remove the cash out of the
vehicle and then attend to replenish an ATM with such cash.
[7] As touched on above, G4S’s entire operating system where it comes to the
custody of the cash, dealing with the cash, and taking responsibility for it, is
subject to extremely strict and prescribed regulation. There is at all times a
zero tolerance prescript in place where it comes to compliance with these
prescribed processes. In fact, and in paragraph 2.9 of the pre-arbitration
minute concluded by the parties as part of the arbitration proceedings, the
following was agreed to as common cause:
‘Various policies, procedure and safety protocols are in place to protect both
employees, the public, clients and their assets. The procedures of the
employees, the public, clients and their assets. The procedures of the
respondent are of utmost importance and should be followed strictly to
ensure that the business operations of the respondent continues as safely
and efficiently as possible.’
[8] Dealing then specifically with the cash that comes from Capitec to G4S to be
dealt with, there is a specifically circumscribed and dedicated chain of custody,
to ensure that at no stage the cash would not be under the specific control and
6
responsibility of dedicated persons , so as to prevent any losses . This cash
journey, as an apposite description of what happens, is set out below.
[9] Capitec sends an order for cash to G4S and sends an EFT for the amount to
G4S’s Nedbank account. G4S then in turn orders the cash from its Nedbank
account, with the cash amounts being held at SBV cash centres. G4S collects
the cash from the SBV cash centres , which is packed in sealed bulk bags .
These sealed bags are handed over by a bank marshal to a G4S employee.
Upon receipt by G4S of the bags , an electronic device known as an 'HHT
Clear' scans and confirms the cash . The sealed bags are then loaded onto a
G4S vehicle, which contains a vault for holding the cash. The vault in the
vehicle is opened using a code obtained from the G4S central control room .
The control room monitors the vehicle, together with a tag for the sealed bulk
bag, that must also be scanned. As an added security measure, there is a
mechanism which prevents the vault door in the vehicle from being opened
simultaneously with the crew door on the vehicle. Once the cash is loaded and
secured as aforesaid, it is then transported to the applicable G4S branch.
[10] Upon arrival at the G4S branch, the cash transported in the vehicle is first
verified to ensure that the amount contained therein is correct and
corresponds with the amount ordered. This is done by the cash being taken to
what is called a secure ‘ box-room’ where it is sealed in see- through tamper-
evident bags. All this activity in the box -room is under constant and complete
camera surveillance. Once the cash has been so received and packed, it is
then transferred to the vault area through a chute which is m onitored by a
camera system to ensure that the correct number of bags are loaded into the
chute.
[11] Once in the vault, the cash is handed over to the Cash Processing Centre
(CPC). The CPC is strictly access controlled, and only dedicated sorting tellers
(CPC). The CPC is strictly access controlled, and only dedicated sorting tellers
are present in the same. The sorting tellers then verify the funds contained in
the bulk bags, as well as the seals. This is done by way of a physical count
using note counters to ensure that the count is done properly . Whilst
conducting this count and verification, the sorting tellers are at all times under
detailed camera surveillance. An individual sorting teller, when completing a
count, records the result on a white board and holds it up to the cameras. Only
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once the cash has, pursuant to this verification process, been certified to be
correct, the cash is sealed in individual Regional Operational Cash Controls
(ROCC) transparent bags, with a tamper evident seal and a seal number ,
which is recorded on G4S’s systems.2 It is then transferred back to the box
room in these sealed and recorded bags, where it is kept in a specific
dedicated vault for Capitec.
[12] The entire process as set out above ensures is that there is a multi -stage
verification system, which is at all times strictly monitored and controlled, in
terms of which it is ensured that the correct amount in ordered cash is
collected from the bank, is transported to G4S, is then secured once certified
to be correct, and finally stored in a de dicated vault until called upon by
Capitec to be used in attending to replenish its ATMs. In casu, there was no
actual evidence of any failure or irregularity of this particular system relating to
the instances of cash shortages which led to the employees being disciplined.
[13] What happens next is that Capitec sends a cash replenishment voucher
(CRV) to G4S, which contains Capitec's specific instructions to G4S regarding
which ATMs must be replenished the next day. Based on the CRV, the sorting
teller first orders the required cash from the dedicated Capitec vault in the box
room, and pursuant to this order, a sealed ROCC bag is removed from the
vault and transferred to the sorting teller. This would be the same bag that has
already been verified and sealed, in terms of the system as described above.
Once again, the sorting teller then verifies the amount of the cash , and hands
the cash over to two other sorting tellers who physically pack the cash in
sealed bags to be used for the replenishment of ATMs the following day. And
yet again, this entire exercise is done in the strictly access controlled and
secure CPC whist under detailed and constant camera surveillance . To put
secure CPC whist under detailed and constant camera surveillance . To put
things in the proper perspective, the full cash amount is placed by the two
sorting tellers on an open counting table under full camera view, at which table
they are standing. The sorting tellers, when packing the amount in the
individual bags, record on a white board the date, time, site name and total
amount being packed. This is done on the table for the camera to verify the
amount that is placed in the sealed bags. In essence, this is tantamount to a
2 Referred to as being the E Viper and the COBS systems.
8
further verification process, in addition to all that has been done befor e in this
regard. It must also be emphasized that in casu, there was no actual evidence
of any failure or irregularity relating to this process of ordering, sorting and
packing of the cash carried out by the tellers.
[14] Once packed in the sealed bags, a consignment is then created in the E Viper
system reflecting how many bags are being ultimately handed over the
custodians and to which 'run' (delivery) they pertain to. The sealed bags are
then transferred to the box room via the same chute between the CPC and the
box room, which is camera monitored, as set out earlier, to ensure the correct
number of bags are so transferred. In the box room, the individual sealed bags
are then placed in the main vault for safekeeping until the vehicles are loaded
the next morning. There is no suggestion nor evidence that there have been
any irregularity or failure in this part of the chain of custody where it comes to
the cash shortages in casu.
[15] The custodians report for work the next morning to discharge their duties.
They are first subjected to a debriefing session with the CIT manager relating
to any issues that may have arisen during the previous day's shift , so that this
can be attended to. The custodians are then issued with a smart lock key .
Next, the custodians proceed to the loading b ay to receive their cash
consignment for the day , being the individual bags of cash to be delivered to
the ATMs, as well as a blue canvass bag containing their run sheet and the
CRV. The custodians are also given a HTT scanner which reflect s the number
of bags the custodians are to receive for the consignment that day. The
custodians then scan each and every bag presented to them, as verification
that all the bags have been received, and a printout is then generated which
the custodians sign in confirmation that they have received all bags that they
the custodians sign in confirmation that they have received all bags that they
were supposed to receive. The custodians do not count the cash in the sealed
bags. On the evidence, this process was applied in each of the instances
where there were cash shortages in this case, and it was undisputed that the
employees signed for their consignments accordingly.
[16] Each custodian then loads his vehicle with the bags of cash , by placing it in a
vault inside the rear of the vehicle. Once the cash is loaded into the vehicle, i t
is only the custodian is allowed to handle the cash , and he is then held fully
9
accountable for it. The vehicle is manned by a driver and the custodian, 3 with
the custodian remaining in the rear of the vehicle. The vehicle then departs on
the allocated route on the CRV, proceeding to the first designated ATM, and
the driver of the vehicle parks his vehicle in an appropriate location in the
vicinity of the ATM . The custodian, who as said remains in the crew
compartment in the rear of the vehicle, requests the driver (via an intercom) to
open the vault door in order to retrieve the cash. The driver then contacts the
control room to obtain codes for the vault door and the drop bin. The codes
are then computer -generated in the control room. Using the codes provided,
the driver then enters the codes on a pin pad, which opens the drop bin,
allowing the custodian to remove the bags, which the custodian then places in
a secure cross-pavement device. The cross -pavement device can hold up to
R1.2 million. If the ATM to be replenished by the custodians require more than
R1.2 million, the custodian must do multiple trips
.
[17] Turning next to replenishing the ATMs themselves, the custodian, in arriving at
the ATM, uses the smart lock key provided to him to open the ATM cubicle
door, then enters the ATM cubicle, and close s and locks the cubicle door
behind him again using the smart lock key. If the cubicle door is not locked,
the ATM safe cannot be opened, as both doors cannot be opened at the same
time, in order to prevent a possible robbery. There are no cameras in the
cubicle. Once in the cubicle, the custodian uses his smart lock key to open the
ATM safe door. The custodian removes the individual bags of money from the
cross-pavement device, places the bags in front of him and scans the
barcodes on each of the bags using the HHT scanner which records which
and what number of bags are being loaded into the ATM. In addition, and at
each ATM, the custodian completes a run sheet, reflecting the time of his
each ATM, the custodian completes a run sheet, reflecting the time of his
arrival, the time of his departure, the terminal ID, the ATM name and the
amount replenished in the device. He also uses the run sheet to inter alia
record if there was excess cash to what was required to replenish the ATM ,
and the amount of bags he is sending back to the branch, not used to
replenish the ATM. Further, the custodian must complete the run sheet inside
the ATM cubicle, and he must use the CRV to ascertain the number of notes
3 There is sometimes a third man, but he does not handle the cash. On the evidence, he secures the
area for the custodian to carry out his duties.
10
to replenish the ATM with, as the CRV will inform him of how many bundles of
notes, of different denominations , he must load. Each bundle con tains of 200
notes each, consisting of different note denominations, such as for example
R100 and R200 notes. The custodian counts the number of notes being
replenished in the ATM from the bundles, but does not count the cash amount.
The custodian then loads the notes into the canisters in the ATM, and loads
details on the ATM regarding the number of notes put in, as the ATM is not
able to itself count or ascertain how many notes are loaded. It is clear that in
the course of this exercise, complete and absolute trust is placed in the
custodian to load the number of notes in the ATM which he records as having
been loaded, and then to return cash not used to replenish the ATM . The
custodian must also remove the existing notes in the ATM before putting the
new notes in (called a swap), and the ATM prints a slip reflecting how many
notes were swapped. All notes returned are then placed in tamper evident
bags and sealed.
[18] Once the custodian has completed all these tasks and completed the run
sheet inside the ATM cubicle, the custodian first locks the ATM safe using the
smart lock key, exists the cubicle, and again locks the cubicle using the smart
lock key. The custodian returns to the vehicle and drops the swopped / excess
cash sealed in the individual tamper evident bags and / or any unused bags in
the drop bin (safe) in the vehicle.
[19] Once the vehicle then returns to the G4S branch at the completion of the
route, the bags of money returned to the drop bin are removed and taken to
the box room vault. Once again, these bags are transferred to the CPC by way
of the same process as set out above, and counted by the sorting tellers using
note counting machines utilizing the same process as set out above. Once
again, the white boards are used, and all this is done under detailed camera
again, the white boards are used, and all this is done under detailed camera
surveillance. If, in the course of this count, a difference is found to exist
between the amount that should have been returned and the amount that is
actually there, the supervisor is called, and an investigation ensues. It is in fact
at this juncture that the shortages in the cash which gave rise to the charges
against the employees was discovered.
11
[20] There is a specific job description for custodians. In addition to the duties
described above, they also have the responsibility to report any differences in
cash and to properly count money entrusted to them, in particular at the ATMs.
This count involves that the custodian must bundle check cash and ensure
that the correct amount has been received. Any variation must be specifically
reported. And importantly , any anomaly must be specifically recorded on the
run sheet which is completed on site at every ATM before leaving the site. The
run sheet is then signed by the custodian to confirm it is correct . This clearly
constitutes a duty to account for the cash handled.
[21] Turning specifically to the facts of this particular matter, it relates to deliveries
carried out by all the employees as custodians , in respect of Capitec, in the
period January to June 2019. In this period, there was a shortage in cash in
respect of the ATMs to be replenished, as attended to by the employees , that
could not be accounted for, in the total amount of R1 377 690.00. These
shortages led to a number of individual claims made by Capitec for cash
shortages, which G4S was then held liable for. A detailed investigation
followed relating to the entire cash handling process, described above, and
specifically related to any employee handling cash, such as the custodians,
sorting tellers and the cash clearing employees in the box room and vaults . In
short, the entire chain of custody is investigated.
[22] In terms of the a pplicant's internal processes and as permitted by the
employees’ contracts of employment , all employees involved on the Capitec
contract were polygraphed. Employees who indicated deception in their
polygraphs were removed from cash handling duties and were then further
investigated. This included the employees in this case, who showed
deception. The investigation referred to took place between June and
December 2019.
deception. The investigation referred to took place between June and
December 2019.
[23] This investigation was wide ranging and detailed. During July 2019, meetings
were held with the employees in which it was explained what the investigation
would entail. In terms of the investigation, any shortages on ATM machines
would be investigated per device, these investigations w ould be done from
swap date, to swap date, and footage will be retrieved on packing of money at
the CPC. Capitec would also be required to confirm in writing that that every
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cash shortage claimed was a true shortage. Further, the prescribed paperwork
the employees were required to complete in the ATM cubicle , for each ATM
where there was a shortage, would be scrutinised. This paperwork included
ATM slips, CRV's, Auditors reports, and custodian run sheets. G4S would also
track any differences with variances reported by the CPC to management.
[24] The outcome of the i nvestigation revealed, according to G4S , that the cash
shortages occurred at the specific ATMs attended to by the employees, whilst
the cash was in the custody and under the responsibility of the employees as
custodians. Also, the employees were the custodians signing last and taking
responsibility for the cash on those ATM schedules . The specific facts relating
to individual shortages in respect of each of the individual employees, and any
possible explanations tendered for the same, will be dealt with later in this
judgment.
[25] In the pre- arbitration minute, the employees raised a number of disputes
relating to the cash shortages . It was disputed whether the shortages were
true shortages or false shortages. 4 It was contended that it was unfair to
demand that custodians had to accounts for cash shortages, and there was no
duty on them to do so. It was also contended that Capitec changed (updated)
its software in March / April 2019, and it as this software update that resulted
in cash shortages being reflected at its various A TMs. The employees
specifically pleaded that the ‘problems’ experienced by them only arose after
Capitec conducted this software update.
[26] In the light of the specific duties bestowed on the custodians and as a result of
the aforesaid significant cash shortages, all of the employees were
subsequently individually charged with misconduct relating to gross
negligence, and were presented charge sheets on different dates as from July
2019. The delay experienced in charging and disciplining the employees were
2019. The delay experienced in charging and disciplining the employees were
due to the extensive and technical investigations that had to be undertaken by
G4S, which, as said, involved obtaining information from Capitec and viewing
hours of video footage. The gross negligence charge for each of the
employees w as in essence the same, save for reflecting differences in the
4 As will be evident from what is set out later in this judgment , it was ultimately conceded that the
shortages were actual shortages.
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routes, time periods and losses involved, as it would pertain to each individual
employee. Importantly, all the charges against all the employees recorded that
the employees were unable to account for shortages they were responsible
and accountable for. For example, the charge against Samuel Mosimanyana
(Mosimanyana) read:
‘Gross negligence-
In that you were the allocated custodian working on the Capitec route during
the period of March 2019 to 14 May 2019.
The company investigated 18 claims submitted by Capitec, and the company
is liable for these claims.
As the dedicated custodian of this route during this period, you cannot account
for these shor tages, and you were ultimately responsible and accountable for
these.’
[27] In terms of G4S’s disciplinary code, the misconduct of negligence is defined by
way of reference to individual offences , including ‘Negligence, gross
negligence with regard to performance of duties ’: The said code further
provides that: ‘Negligence in regard to these offences refers to any failure by
the employee to exercise proper care to his manner of working, to the extent
that tasks are not correctly completed or have to be repeated, or persons or
property of the company or client are at risk of being injured or damaged’.
[28] On the undisputed facts, and in the period July 2019 to December 2019, when
the employees were no longer on the ATM routes, the total cash shortages
were calculated at R134 270.00, amounting to a drop of approximately 90% in
shortages after the employees were removed from the routes.
[29] Individual disciplinary hearings were held in respect of the employees. The
disciplinary hearings were presided over by Lourens Klapper ( Klapper) and
Ishmael Banjwa (Banjwa). Klapper presided over the disciplinary hearing of
Mosimanyana whilst he disciplinary hearing of all the remaining employees
were presided over by Banjwa.
[30] Pursuant to the aforesaid disciplinary hearings, t he employees were then all
[30] Pursuant to the aforesaid disciplinary hearings, t he employees were then all
dismissed based on the gross negligence charge. Mosimanyana was
dismissed on 5 August 2019, Lesedi Shai (Shai) on 3 October 2019,
Motlogelwa (Motlogelwa), Sihle Mnyanda (Mnyanda), Mbuso Ngema (Ngema)
14
and Kevin Ngenelwa (Ngenelwa) on 29 October 2019, Siphiwe Tshabalala
(Tshabalala) on 30 October 2019, Makhosathini Mathonsi (Mathonsi) on 4
January 2020 and finally Howard Sindie (Sindie) on 9 January 2020.
[31] The employees were all members of NUMSA, who then pursued an unfair
dismissal dispute on their behalf to the NBCRFLI. This dispute could not be
resolved at conciliation, and came before the second respondent as appointed
arbitrator for arbitration which took place over several days in the course of
2020, 2021 and 2022. Both parties submitted written closing argument.
[32] Importantly, and in the arbitration, it was ultimately not in dispute that there
was in fact shortages in the ATMs attended to by the employees in the period
concerned.5 What was however in dispute was whether the employees were
actually accountable for these shortages , or were in any manner negligent
where it came to these cash shortages. The issues placed in dispute by the
employees in the arbitration was articulated by the employees’ attorney as
follows, at the outset of the matter:
‘MR DANIELS: Madam Arbitrator, the applicants in an effort to try and shorten
the proceedings, wish to place a concession on record.
ARBITRATOR: What is the concession?
MR DANIELS: So the applicants concede that there were shortages on the
ATMs on which they worked for the periods reflected in their charge sheets
subject to the following... (intervenes)
ARBITRATOR: Hold on. Yes?
MR DANIELS: The first point is, the applicants deny that they have any
obligation to account for the shortages.
ARBITRATOR: Yes.
MR DANIELS: Two, the applicants contend that they were not responsible
and/or accountable for the shortages.
ARBITRATOR: Yes.
MR DANIELS: Any acts of negligence for which they were dismissed, did not
leave with the shortages.
ARBITRATOR: Yes.
5 In paragraph 14 of her award, the second respondent recorded that the existence of the shortages
was agreed upon between the parties.
15
MR DANIELS: Four, the surpluses are adequately explained by the
respondent through evidence subject to cross-examination.
ARBITRATOR: Ja, and that is it?
MR DANIELS: That is it.’
[33] It follows that the core issues for determination were whether the employees
had a duty or responsibility to account to G4S for what was admitted cash
shortages, and whether they could be held accountable for the same. There
was effectively no explanation pleaded by the employees for what may have
given rise to the cash shortages. This is obviously because the case is that the
employees need not explain what they are not accountable for. In particular,
the pleaded alleged change to the Capitec software systems as a cause for
the shortages was no longer pursued.
[34] G4S called seven witnesses to testify in the arbitration, being the branch
manager Perrin Hartslief (Hartslief), the teller supervisor Lebogang Sibeko
(Sibeko), a regional ATM trainer Malose Molefe (Molefe), one of the
investigators Riette Olivier (Olivier), the reconciliation manager Elize Van Den
Heever (Van Den Heever) , an administration clerk Deborah Bishop (Bishop)
and Lyndsey Foot (Foot) . Only two of the employees testified, being
Motlogelwa and Sindie, despite this not being a case of collective or group
misconduct, but being individual separate instances of misconduct. Extensive
documentary evidence was presented in the arbitration.
[35] At the conclusion of the arbitration and in an arbitration award dated 19 July
2022, the second respondent found that the dismissal of the employees by
G4S was both substantively and procedurally unfair . The second respondent
then afforded the employees consequential relief in the form of retrospective
reinstatement, with back pay to the dates of their dismissal. G4S was not
satisfied with this outcome, leading to the review application before me, which
I will now turn to deciding by first setting out the applicable test for review.
The test for review
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[36] The test for review is trite. In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others, 6 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?...’7. 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. 8 It is
necessary for the Court to enquire into and consider the merits of the matter
and all the evidence on record in deciding what is reasonable.
9 In Herholdt v
Nedbank Ltd and Another10 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
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 …’
[37] In sum, it is my view that 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.
11 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
6 (2007) 28 ILJ 2405 (CC).
7 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.
8 See Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at paras 43.
9 Id at para 41.
10 (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.
11 Fidelity Cash Management Service (supra) at para 102.
17
concerned is the only basis to sustain the outcome the arbitrator arrived at,
that the review application would succeed.12
[38] As against the above principles and test, I will now turn to deciding the merits
of the review application by G4S.
Analysis: Substantive Fairness
[39] Because there are no pleadings to speak of in CCMA or Bargaining Council
arbitration proceedings, the opening addresses by the parties basically serve
the very same purpose as the limiting of issues in a pre- trial minute.
13 In
Fidelity Cash Management Service v Commission for Conciliation, Mediation
and Arbitration and Others
14 the Court dealt with the limitation of issues for
determination in an arbitration, by way of the opening addresses made by the
parties. The Court referred to what each party in the arbitration had said in
their opening addresses,
15 and then concluded:16
‘… in an arbitration such as the one that happened in this matter, the parties
do not exchange, and, in this case, did not exchange, pleadings that would
enable each party to know what the other party's case is. In cases in which
opening statements are made, they serve to inform both the arbitrator and the
other side what one's case is. …’
[40] In addition to opening addresses, the parties in casu fortunately also
concluded a pre-arbitration minute on 13 November 2020, which identified the
issues in dispute, at they existed at that point in time. Some of these issues
were however later agreed to as being common cause or undisputed, and
some were not pursued. For example, it was ultimately undisputed that for the
period January to June 2019, the total cash shortages on the delivery routes of
the employees amounted to R1 377 690.00, and that for the period from July
12 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.
at para 12.
13 In ZA One (Pty) Ltd t/a Naartjie Clothing v Goldman NO and Others (2013) 34 ILJ 2347 (LC) at para
62, the Court held: ‘… The effect of the events at the commencement of the arbitration, as specifically
set out above, is similar to a pretrial agreement and has the same consequences. As there are no
pleadings in CCMA arbitrations, the court has specifically dealt with the significance of opening
addresses … ’. See also Tiger Brands Field Services (Pty) Ltd v Commission for Conciliation Mediation
and Arbitration and Others [2013] ZALCJHB 216 (13 August 2013) at para 71.
14 (2008) 29 ILJ 964 (LAC).
15 See paras 20 – 22 of the judgment.
16 Id at para 23.
18
2019 to December 2019 this dropped to R134 270.00. The issue of the
change of the Capitec software was not pursued. The core issues raised in the
pre-arbitration minute were that the employees disputed that they committed
any misconduct in the form of gross negligence, and that they did not have
responsibility to account for shortages as contended in the charges against
them. These are the issues identified in the address by the employees’
attorney, referred to earlier. An inconsistency challenge was also raised, which
will be dealt with later, to the effect that other employees also responsible to
account for the cash shortages were not disciplined. And finally, there was a
limited procedural fairness challenge, to be dealt with under separate heading
later in this judgment as well.
[41] From the outset of deciding this matter, I believe the manner in which the
second respondent proceeded to decide this case deserves attention. It is trite
that arbitration proceedings in order to determine whether the dismissal of an
employee by an employer is fair, is a hearing de novo. This means, as the
term suggests, a complete rehearing of the reason for dismissal, with the
arbitration proceedings not being limited to only what has been placed before
an internal disciplinary hearing chairperson. If the arbitrator is limited to only
considering evidence that was placed before the disciplinary hearing
chairperson, it would basically be tantamount to a review of the finding of the
disciplinary chairperson, and this is not what is meant by a de novo hearing.
Therefore, an employer remains entitled to lead any evidence it wants to
establish that the reason why it dismissed the employee in the first place was
fair, irrespective of whether that evidence had been presented before. The
arbitrator must then decide for himself or herself whether this reason for
dismissal was fair, based on all this evidence presented in the arbitration. As
dismissal was fair, based on all this evidence presented in the arbitration. As
held in County Fair Foods (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
17:
‘… It remains part of our law that it lies in the first place within the province of
the employer to set the standard of conduct to be observed by its employees
and determine the sanction with which non-compliance with the standard will
17 (1999) 20 ILJ 1701 (LAC) at 1707G-I. See also Wasteman Group v SA Municipal Workers Union
and Others, 2012) 33 ILJ 2054 (LAC) at 2057I where it was said; ‘… The commissioner is required to
come to an independent decision as to whether the employer's decision was fair in the circumstances,
these circumstances being established by the factual matrix confronting the commissioner …’.
19
be visited, interference therewith is only justified in the case
of unreasonableness and unfairness. However, the decision of the arbitrator
as to the fairness or unfairness of the employer's decision is not reached with
reference to the evidential material that was before the employer at the time of
its decision but on the basis of all the evidential material before the arbitrator.
To that extent the proceedings are a hearing de novo.’
[42] The issue of leading further evidence for the first time in the arbitration was
specifically considered in Samancor Chrome Ltd (Eastern Chrome Mines) v
Commission for Conciliation, Mediation and Arbitration and Others,18 and the
Court decided as follows:
‘… The arbitration hearing is one de novo with there being no bar on relevant
additional evidence being adduced at arbitration. This is so since the
determination of the fairness of a dismissal at arbitration “is not reached with
reference to the evidential material that was before the employer at the time of
its decision but on the basis of all the evidential material before the arbitrator ’.
(emphasis added)
[43] The above approach has been consis tently applied in this Court. In Rambar
Construction (Pty) Ltd t/a Rixi Taxi v Commission for Conciliation, Mediation
and Arbitration and Others19 it was said that: ‘… It is trite that regardless of
what transpired at the disciplinary enquiry an arbitration hearing is a
hearing de novo …’. And in Western Cape Nature Conservation t/a Cape
Nature v Commission for Conciliation, Mediation and Arbitration and Others20
the Court held as follows: ‘… It is trite that an arbitration hearing is a de
novo proceeding and parties are not limited to evidence they led at the time of
the hearing. The task of the arbitrator is to determine whether the employer
acted fairly in dismissing the employee, in this case for misconduct …’ Lastly,
in
SA Breweries Ltd v Commission for Conciliation, Mediation and Arbitration
in
SA Breweries Ltd v Commission for Conciliation, Mediation and Arbitration
and O thers21, the Court decided: ‘… The employer decides to dismiss. The
commissioner conducts an arbitration de novo. In the light of the totality of
18 (2020) 41 ILJ 2129 (LAC) at para 10. See also Independent Municipal and Allied Trade Union on
Behalf of Strydom v Witzenberg Municipality and Others (2012) 33 ILJ 1081 (LAC) at para 25, where
the Court held: ‘… If an arbitration hearing is a hearing de novo, then there is no valid reason why
the additional evidence that was presented at the arbitration hearing was not considered …’.
19 (2012) 33 ILJ 1911 (LC) at para 48.
20 (2022) 43 ILJ 1394 (LC) at para 28. See also Magoda v Director-General of Rural Development and
Land Reform and Another (2017) 38 ILJ 2795 (LC) at para 18(b).
21 (2012) 33 ILJ 2945 (LC) at para 26.
20
circumstances, established by the evidence at arbitration the commissioner
must then decide whether the decision to dismiss was fair …’.
[44] The above being the general principle applicable to the concept of a hearing
de novo before an arbitrator in an unfair dismissal dispute, there is however
one important rider. This rider is based on the fact that the arbitrator does not
decide de novo, as if the arbitrator is a disciplinary hearing chairperson,
whether the employee is guilty of any kind of misconduct the employer may
wish to raise in the arbitration. The arbitrator only decides whether the reason
why the employer dismissed the employee in the first instance was fair. It must
follow that only evidence relating and applicable to the reason why the
employer dismissed the employee in the first place, in the internal disciplinary
hearing, can be presented in the arbitration despite not being presented in the
disciplinary hearing. Or differently said, the employer is not permitted to
introduce new evidence in the arbitration to prove that the employee
committed misconduct other than the misconduct for which the employee was
actually dismissed in the first instance. This was made clear in Fidelity Cash
Management supra
22 as follows:
‘It is an elementary principle of not only our labour law in this country but also
of labour law in many other countries that the fairness or otherwise of the
dismissal of an employee must be determined on the basis of the reasons for
dismissal which the employer gave at the time of the dismissal.’
[45] The position where it comes to the enquiry being limited to the reasons why
the employee was dismissed by the employer in the first place, even if it is a
hearing de novo, was succinctly described in Samancor supra as being:23
‘… It is however not open to an employer to alter or amend the reason for
dismissal or to rely on an entirely different reason for such dismissal at
arbitration; and there is no merit in the appellant’s submission that the
arbitration; and there is no merit in the appellant’s submission that the
employee’s misconduct “must be viewed through the prism of the
contextualised version during the course of the domestic hearing and
subsequent arbitration proceedings”. To the extent that this suggests that it is
22 Id at para 32. This dictum was referred to with approval in Palluci Home Depot (Pty) Ltd v
Herskowitz and Others (2015) 36 ILJ 1511 (LAC) at para 46; Murray and Roberts Cementation (Pty)
Ltd v Association of Mineworkers and Construction Union on Behalf of Dube and Others (2024) 45 ILJ
276 (LAC) at para 20.
23 Id at para 10.
21
permissible for the reason for dismissal to morph from that advanced by the
employer at the time of dismissal to a different reason advanced at arbitration,
this is simply not the case. …’
And in Pioneer Foods (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others24 the Court held as follows:
‘The legal principle enunciated above is unambiguous. Employers are not
allowed, during the arbitration proceedings, to seek to justify the dismissal
based on reasons outside those given during the internal hearing. The fact
that arbitration proceedings are de novo hearings is not a licence for
employers to bring new facts and reasons that are disconnected from, and
different to, the reason given for the employee’s dismissal. …
’
[46] Therefore, what needs to be done by any arbitrator when confronted with an
employer seeking to lead additional evidence in the arbitration that has not
been advanced or presented in the internal disciplinary hearing, is to
determine exactly what the employee was dismissed for in the first instance.
This would involve considering the content of the char ge presented to the
employee, and what the real nat ure of the misconduct as ventilated in the
disciplinary hearing was all about. It is not about what evidence was presented
in the disciplinary hearing to substantiate the misconduct. It is about what
misconduct was alleged to have been perpetrated by the employee, as dealt
with in the disciplinary hearing. The findings of the disciplinary hearing
chairperson would also be useful in deciding the real reason why the
employee was dismissed. In short, the arbitrator must decide the real or true
reason why the employee was dismissed in the first instance. The employer is
then bound to present only evidence to prove the dismissal was fair for that
reason. Specifically, in t his context, the Court in Mokoena v Merafong
Municipality and Others
25 said: ‘… In the event of a dismissal, the employer is
bound by the election it has made …’.
bound by the election it has made …’.
[47] It is however important for any arbitrator to have due and proper regard, when
conducting the aforesaid enquiry, to the fact that employers are often lay
24 (2023) 44 ILJ 2281 (LC) at para 56. See also South African Municipal Workers Union v South
African Local Government Bargaining Council 2013 JDR 0102 (LC) at para 26; Surgical Innovations
(Pty) Limited v Commission for Conciliation, Mediation and Arbitration and Others [2014] JOL 32510
(LC) at para 55.
25 (2020) 41 ILJ 234 (LC) at para 25.
22
persons and may not be able to define and present a charge with the kind of
particularity and clarity one would find in criminal or related legal proceedings.
An arbitrator should thus not be unduly influenced by the mere wording of a
charge, and confine the determination to only that, without considering
context.
26 The following dictum by the LAC in EOH Abantu (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others 27 is
apposite:
‘Employers embarking on disciplinary proceedings, not being skilled legal
practitioners, sometimes define or restrict the alleged misconduct too narrowly
or incorrectly. For example, it is not uncommon for an employee to be charged
with theft and for the evidence at the disciplinary enquiry or arbitration to
establish the offence of unauthorised possession or use of company property.
The principle in such cases is that provided a workplace standard has been
contravened, which the employee knew (or reasonably should have known)
could form the basis for discipline, and no significant prejudice flowed from the
incorrect characterisation, an appropriate disciplinary sanction may be
imposed. It will be enough if the employee is informed that the disciplinary
enquiry arose out of the fact that on a certain date, time and place he is
alleged to have acted wrongfully or in breach of applicable rules or standards.
’
[48] The LAC has consistently applied the aforesaid dictum in EOH Abantu supra
since. In Cape Gate (Pty) Ltd v Mokgara and Others28 it was said:
‘I accept that the charges were not elegantly drawn. It must be borne in mind
that Cape Gate is not a court of law. A disciplinary tribunal is not a court of law
and the drawing of charges needs not form a model of criminal charges. It is
sufficient if the employee is informed of the allegations against him to prepare
for the hearing. What is necessary is that sufficient particulars of the charges
preferred against an employee, which must be covered in the rules of conduct
preferred against an employee, which must be covered in the rules of conduct
of the company concerned, must be alleged. …’
And in Gauteng Department of Education v General Public Service Sectoral
Bargaining Council and Others29 the same Court held:
26 In Murray and Roberts (supra) at para 21, it was indeed held: ‘It was not open to the chairperson of
the disciplinary hearing or the arbitrator to interpret the charge -sheet in a manner not supported by an
ordinary, grammatical and contextual reading …’ (emphasis added).
27 (2019) 40 ILJ 2477 (LAC) at para 16. See also SA Police Service v Magwaxaza and Others (2020)
41 ILJ 408 (LAC) at paras 42 – 43.
28 (2022) 43 ILJ 1277 (LAC) at para 21.
23
‘… This Court has made it clear that disciplinary proceedings are not criminal
trials, nor are they intended or required to resemble highly technical civil trials.
Employers in disciplinary proceedings may not be lawyers and may at times
define the nature of the alleged misconduct raised against an employee
imprecisely, too narrowly or even erroneously record the legal basis for such
misconduct, for example as fraud when the legal requirements of theft may in
fact be met. As has repeatedly been emphasised by this Court, it is not
necessary that the employee be given notice of the precise legal basis for a
complaint of misconduct in a highly technical charge sheet. Rather the
employee must be informed in the appropriate manner of the allegation of
misconduct raised in sufficient detail to enable the employee to understand
such complaint and answer to it.’
[49] In summary therefore, the second respondent in casu needed to determine the
true reason why the employees had been dismissed by G4S. In doing so, she
should not limit herself to consider only the charge as it was worded in the
charge sheet. She needed to also consider the context and circumstances in
which the charge was brought. It was common cause between the parties that
the reason why the employees were charged was because G4S considered
them, in the context o f their specific duties and obligations , to be overall
responsible for the cash shortages in respect of the cash that has been
specifically entrusted to them to deal with as part of their specific duties . Once
that is so, the failure to account for the cash, as mentioned in the charge, was
not that they failed to count the cash and / or report cash shortages. It was that
they failed to discharge their duties with the due care expected of them where
it came to the cash funds entrusted to them , and being unable to account for
the cash shortages by way of a reasonable and acceptable explanation,
the cash shortages by way of a reasonable and acceptable explanation,
resulting in substantial losses to G4S . The second respondent was then
compelled to consider all evidence placed before her by G4S to establish
whether the dismissal of the employees for this reason was fair. But the
second respondent, as will be next discussed, instead sought to substantially
limit the charge.
[50] The difficulty caused by the second respondent’s limitation of the charge was
that she failed to properly consider and then determine pertinent evidence and
29 [2025] 5 BLLR 435 (LAC) at para 13.
24
probabilities. The second respondent reasoned: ‘ … the applicants may be
accountable for the money when it is in their possession, but they cannot
account for the same …’, effectively deciding that ‘account’ meant they had a
duty to count and report , which was never the real case. The second
respondent effectively discarded the bulk of the evidence of G4S about the
misconduct the employees had perpetrated, principally based on the fact that
she did not consider it contemplated by the charges , that the evidence now
sought to be relied by G4S did not feature in the disciplinary hearing, and that
G4S was now seeking to expand on the charges for the first time in the
arbitration. On the basis of what has been discussed earlier, this approach
would certainly constitute a gross and reviewable irregularity, and deprive G4S
of a fair determination of its case, considering what the real and true nature of
the charges actually were.
[51] The irregularity perpetrated by the second respondent in casu can perhaps be
best illustrated by way of examples as found in the case law. The facts in
Cape Gate supra serves as a first apposite example in casu. In that case,
there were also several employees charged with dishonest conduct, by way of
two charges. The first charge was that the employees unlawfully and without
permission of the company placed the company logo on an unauthorised
document, and then proceeded to use such document under false pretences
with the view to have retirement funds transferred to a new service provider .
The second charge was worded to be f raudulent and dishonest behaviour in
that the employees falsely presented themselves in discussions and/or
negotiations with the new service provider that the company authorised the
employees to participate in such discussions or negotiations, that the company
authorised the employees act on its behalf , and that the company had
approved the transfer of retirement funds . The Labour Court considered the
approved the transfer of retirement funds . The Labour Court considered the
charges and held that the first charge was inseparable from the second, and
that in order to be guilty of misconduct, it had to be proven that ‘false pretence’
existed, which the employer was unable to do. The LAC considered all the
background which give rise to the charges, and concluded as follows in finding
that the charge had been proven, despite how it was worded:
30
30 Id at para 23.
25
‘As I see it, the essence of the charges is that the first respondent employees
negotiated a transfer of AMCU members’ fund to Sanlam in circumstances
where they were aware that they were not authorised to do so. They further
gave the impression to Sanlam that Cape Gate was aware of their conduct.
They then by false pretences misled their members into believing that their
conduct had been approved by Cape Gate since there was even a logo for
Cape Gate and a cut-off date by which the transfer should take place. … ’
[52] Another example of the application of the above considerations can be found
in a judgment of the LAC in Murray and Roberts Cementation (Pty) Ltd v
Association of Mineworkers and Construction Union on Behalf of Dube and
Others31. In that case, the employee had been dismissed for the following
charge: ‘‘Poor work attendance: Allegedly: were absent without permission
from 29/10/2019 and 4/11/2019’ . The issue was whether this meant the
employee had absented himself from work for five or longer continuous days
without permission. The difficulty arose when the employer was not able to
prove such five continuous days of absence, but proved other days of
absence. The employer sought to contend that generally, the reason for
dismissal is absenteeism without leave regardless of the number of days,
especially in view of two previous warnings. The employee submitted that the
reason for seeking a dismissal is not for absenteeism per se but absenteeism
over a period of five or more continuous days . The Court considered context
and then decided that the charge contemplated the reason for dismissal as
being absent for five consecutive days and more, and therefore the extra days
falling outside the charge sheet had to be excluded resulting in the true reason
for dismissal not having been proven by the employer.
32
[53] The LAC in Dladla and others v Motor Industries Bargaining Council and
Others33 again dealt with the issue of the formulation of a particular charge,
Others33 again dealt with the issue of the formulation of a particular charge,
and what the misconduct was that the employees had been charged for. In
that case, the charge against the employees included a failure to comply with
an instruction and insubordination because they refused to return to their
workstations. The employees contended that the Labour Court and the
arbitrator impermissibly widened the charge to include their failure to vacate
31 (2024) 45 ILJ 276 (LAC).
32 Id at para 21.
33 [2026] JOL 71739 (LAC).
26
the canteen or leave the premises, which were separate and distinct acts not
alleged in the charge sheet. The LAC said that: ‘… the legal principles in EOH
Abantu are directly applicable and dispositive …’, and concluded: 34
‘The workplace standard contravened by the appellants was the duty to obey
lawful and reasonable instructions. The appellants knew that congregating in
the canteen during work hours, refusing to report for training, and defying
management's direct instructions constituted serious misconduct. They
suffered no prejudice, as the essence of the charge was fully ventilated during
the proceedings.’
[54] In the context of what was termed a ‘competent verdict’, the LAC in SA Police
Service v Magwaxaza and Others35 dealt with a case where an employee had
been dismissed based on a charge of having committed murder by shooting
another person. However, and according to the arbitrator, the intention to
murder the deceased had not been proven, even though the employee had
failed to act as would be expected of a reasonable person, and thus
committed culpable homicide. As a result, the arbitrator found that the actual
charge was not proven and no sanction could be imposed. The LAC dealt with
this as follows:36
‘It seems implicit in the arbitrator’s reasoning that the fact that the charges did
not (at least expressly) mention the crime of culpable homicide, but murder,
meant that the charge(s) against the employee had not been proved and,
therefore, no sanction was justified. This was not only unreasonable, but
unjustified in the light of the following. On the assumption that there was a
charge of murder, in disciplinary proceedings there is no requirement for
competent verdicts to be mentioned in the charge-sheet, and in the absence
of prejudice an employee may be found guilty of the offence that is a
competent verdict.
’
[55] The judgment in Gauteng Department of Education v General Public Service
Sectoral Bargaining Council and others 37 has apposite comparisons to the
Sectoral Bargaining Council and others 37 has apposite comparisons to the
34 Id at paras 32 – 33.
35 (2020) 41 ILJ 408 (LAC).
36 Id at para 42. See also Hollywood Sportsbrook Gauteng v Commission for Conciliation, Mediation
and Arbitration and Others [2024] JOL 64175 (LC) at paras 34 and 40, which held that being an
accomplice to the misconduct is a competent verdict.
37 [2025] 5 BLLR 435 (LAC).
27
case in casu. In th at case, the passwords of the employees on the Persal
system were used to appoint and then pay ghost employees. The charge was
that the employees had been involved in the appointment, payment and salary
adjustment of such ghost employees. It was a prescribed policy that user IDs
and passwords on the Persal system remain private, were not allowed to be
shared, and that employees as users would be held responsible for all activity
performed with their personal User IDs. There was no dispute at the arbitration
that the employees’ Persal credentials, being their usernames and passwords,
were used over a period of two years to defraud the employer of
approximately R2 million through the appointment and payment of ghost
employees. The defence offered by the employees was that one Kenneth
Mothlang, who was employed as principal personnel officer, committed the
fraud, for which he was criminally charged and convicted, and that they were
not aware how he had obtained and used their passwords. They in essence
said they were not responsible for their Persal credentials being used. The
arbitrator found against the employer, concluding that the employees were not
charged ‘… in relation to the condition of their persal credentials …’ but with
‘actual theft’, which was not proved. The comparisons to the case in casu are
quite apparent. The LAC decided as follows in this respect:38
‘The respondents were charged by the appellant with having been involved in
the appointment and payment of ghost employees over a period of almost two
years. The undisputed evidence before the arbitrator was that Mr Mothlang
had obtained the respondents’ persal credentials, including their passwords,
which he used to effect the fraudulent transactions. Importantly, what the
evidence showed was that Mr Mothlang had repeatedly obtained the
respondents’ passwords, which the respondents updated monthly, over an
extended period of time. The evidence of the third respondent that the
extended period of time. The evidence of the third respondent that the
employees changed their passwords on the persal system on a monthly basis
was not disputed by any of the other respondents. Yet, none of the
respondents were able to explain how Mr Mothlang could repeatedly have
obtained their updated passwords. In addition, the undisputed evidence was
that the third respondent had appended her signature to the form appointing a
ghost employee which had been brought to her for processing by Mr
Mothlang.
38 Id at paras 14 – 15.
28
The arbitrator took an unduly narrow and technical approach to the charge
sheet, finding that the respondents “were never charged in relation to the
condition of their persal credentials but were charged for actual theft”. This in
circumstances in which it was apparent that the disciplinary complaint against
the respondents was that they had been involved in the fraudulent
appointment and payment of ghost employees. The issue for determination by
the arbitrator was whether it had been proved that the respondents had been
involved in the commission of such misconduct and whether their dismissals
were fair.’
[56] The Court in Gauteng Department of Education supra further dealt with
another important issue in this context , which would equally find application in
casu. This relates to the duty of the employees to provide an acceptable or
reasonable explanation for circumstances such as these. In Gauteng
Department of Education, the Court held that it is not sufficient for employees
to say that they did not know how their passwords were obtained and then call
upon the employer to prove that that they acted wrongfully, especially where
they had an obligation to safeguard their passwords. This is equally what the
current case is all about. The employees as custodians are compelled to at all
times take reasonable care of the cash entrusted to them to deliver. Once they
leave the premises of G4S to conduct their deliveries , they are in complete
control and have a particular duty of trust. If there is a shortage of cash under
their tenure, then they must account for it, in the sense that they must provide
a reasonable and acceptable explanation for the shortage. The Court in
Gauteng Department of Education appositely reasoned:
39
‘In this matter, the arbitrator failed to have regard to all of the evidence before
him, including that which was not disputed, and carefully weigh it up in the
required manner. It was a relevant consideration which required the careful
required manner. It was a relevant consideration which required the careful
attention of the arbitrator that the respondents failed to tender any explanation
as to how Mr Mothlang could have repeatedly obtained their updated
passwords over a period of almost two years. Their failure to proffer any such
explanation was glaring, more so given the undisputed evidence that they had
repeatedly and regularly reset their own passwords. The appellant’s 2013
policy expressly required that passwords should not be shared, with the user
employee responsible for all activity performed using their persal credentials. It
39 Id at para 19.
29
was reasonable to assume that, given the positions in which they were
employed, the respondents were aware of, or ought reasonably to have been
aware, of the rule set out in this policy; and that they would have known, or
ought reasonably to have known, that the purpose of a password is to protect
important information and to safeguard their own user and password
credentials. Without any proper explanation provided by the respondents, an
assessment of the probabilities supported a conclusion that Mr Mothlang
would not, without the involvement of the respondents, have obtained their
updated passwords repeatedly every month over a period of two years in
order to then commit the fraud.’
[57] A last example to mention is National Union of Metalworkers of South Africa
obo Gxesi and others v Faurecia Emission Control Technologies (Pty) Ltd and
Others40 where the charges were that of ‘Collective Gross Insubordination’ in
the form of a ‘concerted and collective cessation of work’ in ‘defiance of
requests and instructions of management by abandoning a scheduled stock
take’, and the employees were dismissed on such charges. It was contended
that this charge as formulated only contemplated collective action of a group
and not individual misconduct. The Court, relying on EOH Abantu supra, and
after considering the context in which the charge came about, however held
that:41
‘The arbitrator can accordingly not be faulted for the approach which he
adopted in deciding whether the dismissals were substantively unfair on the
basis that they needed to be seen as acts of alleged misconduct by some 15
employees as opposed to collective action in support of a demand or
grievance’.
[58] In summary, what all the above means in casu is simply this. The charges
against the employees, as formulated and presented in their disciplinary
hearings, were brought in a particular context and under particular
circumstances, all of which featured before the two disciplinary hearing
circumstances, all of which featured before the two disciplinary hearing
chairpersons. At its core, the charges contemplated that the employees as
custodians were specifically entrusted to take proper care of the cash amounts
entrusted to them to deliver. Taking proper care included to at all times follow
40 [2025] JOL 69523 (LC).
41 Id at para 26.
30
and apply the specific and prescribed processes of G4S in delivering, loading
and retrieving cash from the ATMs, and then reporting on the same by way of
the prescribed audit documents. It also included that they were compelled to
account for cash shortages, in the form of providing a reasonable and
acceptable explanation for it. It had nothing to do with an obligation to count
the cash and then report shortages found. They failed to discharge these
duties, resulting in a material loss to G4S. This is the misconduct for which
they were charged and then dismissed, and it is the fairness of their dismissal
on this basis that the second respondent had to determine. As discussed
above, she failed to do so, and unreasonably so.
[59] The unreasonableness of the outcome arrived at by the second respondent is
amplified by what appears to be her complete failure to have regard to
particular inherent probabilities. In her award, the second respondent appears
to follow that can be said to be a reasonable doubt approach. Such an
approach is impermissible in deciding unfair dismissal disputes in arbitration
proceedings under the LRA , because wh at is required to be determined is
what is called the ‘inherent probabilities’.42 The determination of probabilities
entails an inference to be drawn from the evidence as a whole, on the
following basis explained in SA Post Office v De Lacy and Another43:
‘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.’
[60] 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
all the evidence, as a whole, in order to decide which outcome is the most
42 See SFW Group Ltd and Another v Martell et Cie and Others 2003 (1) SA 11 (SCA) 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 (Pty) Ltd v Ngqeleni NO and
others Sasol Mining (2011) 32 ILJ 723 (LC) at para 8.
43 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.
31
logical, natural and plausible out of a number of possible different outcomes.
As said in Bates and Lloyd Aviation (Pty) Ltd v Aviation Insurance Co44:
‘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).’
[61] In its written submissions , G4S referred to Cooper and Another NNO v
Merchant Trade Finance Ltd45 where it was said:
‘It is not incumbent upon the party who bears the onus of proving an absence
of an intention to prefer to eliminate by evidence all possible reasons for the
making of the disposition other than an intention to prefer. This is so because
the Court, in drawing inferences from the proved facts, acts on a
preponderance of probability. The inference of an intention to prefer is one
which is, on a balance of probabilities, the most probable, although not
necessarily the only inference to be drawn. In a criminal case, one of the 'two
cardinal rules of logic' referred to by Watermeyer JA in R v Blom is that the
proved facts should be such that they exclude every reasonable inference
from them save the one to be drawn. If they do not exclude other reasonable
inferences then there must be a doubt whether the inference sought to be
drawn is correct. This rule is not applicable in a civil case. If the facts permit of
more than one inference, the Court must select the most 'plausible' or
probable inference. If this favours the litigant on whom the onus rests he is
entitled to judgment. If, on the other hand, an inference in favour of both
parties is equally possible, the litigant will not have discharged the onus of
proof.
’
[62] The aforesaid di ctum in Cooper sup ra was applied by the LAC in National
Union of Mineworkers and Another v Mogale Gold, A Division of Mintails (SA)
Union of Mineworkers and Another v Mogale Gold, A Division of Mintails (SA)
(Pty) Ltd46 where the Court held the following:
44 1985 (3) SA 916 (A) at 939I-J.
45 2000 (3) SA 1009 (SCA) at para 7. This dictum is found in a majority judgment by Zulman JA in this
case, and was specifically referred to with approval in Goliath v MEC for Health, Eastern Cape 2015
(2) SA 97 (SCA) at para 19.
46 (2015) 36 ILJ 2815 (LAC) at paras 22 and 24. Also compare Compare Woolworths (Pty) Ltd v
Commission for Conciliation, Mediation and Arbitration and Others (2011) 32 ILJ 2455 (LAC) at paras
37 – 38.
32
‘At the time that the dismissal was considered by the arbitrator, the issue had
been narrowed to collusion although the arbitrator considered all the charges.
There is no direct evidence of collusion. The respondent presented
circumstantial evidence to the arbitrator. The arbitrator appreciated that this
was the case. The approach to be adopted when an inference is sought to be
drawn from other facts was summarised in Cooper & another NNO v Merchant
Trade Finance Ltd. …
The facts from which inferences are to be drawn must be true and proven.
Although all the facts must be considered holistically, it is necessary to
examine the facts to establish that they are true and proven. Secondly, as the
inference of collusion also involves drawing an inference from other facts that
are themselves inferences from the primary facts, these initial inferences must
be interrogated. Only when the proper facts including the inferences made
from those facts have been satisfactorily established, may the final inference
of collusion be attempted.’
[63] What are then the inherent probabilities found i n the actual proven facts, as a
whole, that exist ed in casu? I believe the answer to quite straight forward.
First, G4S has a specific system of checks and processes to prevent any cash
shortages along a chain of custody , starting with the point of collection from
SBV and ending when cash is finally returned to the premises of G4S once the
Capitec ATMs have been replenished. Throughout this chain of custody
different persons each have their own accountability where it comes to the
cash and specific and dedicated monitoring and chec king processes are
applied on each occasion. It was undisputed that there was a total cash
shortage in excess of R1.3 million in respect of the ATMs replenished by the
employees on their specific and dedicated routes. There was absolutely no
actual evidence that the cash shortages occurred in the course of the chain of
actual evidence that the cash shortages occurred in the course of the chain of
custody prior to the employees taking possession of the cash and signing
acceptance for it. In fact, and up to the point when the cash is finally entrusted
to the employees as custodians to conduct their deliveries (replenishment of
the ATMs) , G4S has a system of internal double checks along the internal
chain of custody over which it has complete control. This is evident from the
completely secure cash office (CPC) where cash is counted and verified, box
rooms where cash is stored, the monitoring and control of tellers, and the
verification of cash amounts before it is sealed in bags, which bags reflect any
33
possible tampering. And lastly, all cash amounts are recorded on G4S’s
systems, against which it is always verified.
[64] What is important to appreciate is that when the custodians leave the
premises of G4S with the cash, they are in essence on their own, with their
hands directly on the cash. Or differently put, they are away from the direct
and on- site supervision of G4S personnel and camera systems . G4S does
apply a system of checks and process es throughout the ATM replenishment
process to safeguard the cash as far as possible, which the custodians must
follow. But this does not change the undeniable fact that it is where the
custodian takes the cash from the vehicle to replenish the ATM, and where the
custodian retrieves cash from the ATM, that the custodian is in complete
control. On the probabilities in this case, it most likely that it is this juncture
where the cash shortages occurred.
[65] In short, and in this this case, there was no evidence nor any kind of actual
indication that any of the cash shortages occurred up to the point when it was
handed over to the employees as custodians to conduct the ATM
replenishments. The systems and checks of G4S are in any event designed to
prevent such eventuality and there is no suggestion nor indication that these
systems and checks were not functioning properly and were not being strictly
applied at all times. The evidence showed that the correct amounts of cash, as
reflected in the records of G4S, were at all times handed over to the
employees to conduct their deliveries , and they signed acceptance that the
cash amounts were correct . And in the course of the replenishments, the
employees were the only persons that had access to the cash. It must follow
that on the probabilities, the only time when the cash shortages would most
likely have occurred is in the course of it being entrusted to the employees
whilst replenishing the ATMs . Evidence was also presented that all the ATM
whilst replenishing the ATMs . Evidence was also presented that all the ATM
records for the periods concerned was checked, and there no technical faults
with the ATMs. Therefore, and should the employees be unable to account for
the cash shortages, by way of providing an acceptable and reasonable
explanation for the shortages, they committed the misconduct with which they
had been charged. In this instance, t he employees could not and did provide
such an explanation. The situation is exacerbated by the employees failing to
34
at all times follow the prescribed processes in dealing with the cash at the
ATMs, which will be dealt with later.
[66] Contrary to what the second respondent recorded in her award, the evidence
showed that employees must be alone in the cubicles of the ATMs when they
attend to an ATM to replenish it. The door of the cubicle must in fact be locked
behind the employee, otherwise the ATM safe cannot be opened. Properly
considered, I believe that the evidence shows that it is at this point where
particular trust in the employees is manifest. This is because here are no
cameras in the cubicles , and the counting of the cash with which the ATM is
replenished is entirely in the hands of the employees, as the ATM does not
count this. It is the employee that creates a receipt to show what is loaded in
the ATM and records the amount loaded. The employee is solely entrusted to
return everything that is not loaded, and it is possible, at this point, that cash is
not returned to the bag. It is this part of the process, I believe, that open to
exploitation by employees , and it is for this reason that they occupy a
particular position of trust and duty to account.
[67] Despite all the aforesaid, the second respondent , as said, followed a
reasonable doubt approach. This is evident from her reasoning in her award.
The second respondent, and I do paraphrase, reasons as follows. The
evidence showed that tellers have in the past been dismissed for cash
shortages, so it is possible that the cash shortages can occur there. The
evidence showed that box -room personnel have in the past been dismissed
for cash shortages, so the shortages could have occurred there. That means
the benefit of the doubt must be given to the employees as custodians. This
kind of reasoning undoubtedly applies a reasonable doubt approach, and thus
unreasonably negates pertinent probabilities. But worse still, it negates the
proven facts that in this case, the c ash when handed over the employees and
proven facts that in this case, the c ash when handed over the employees and
when they signed for it as being correct, was correct and there was no failure
in the prior verification processes.
[68] There is another important probability that the second respondent, in my view,
sought to negate in a manner that is hard to understand. On the evidence, the
cash shortages occasioned by G4S on the dedicated ATM replenishment
routes of the employees dropped from R1 377 690.00 for a six months’ period
to R134 270.00 for the next six months’ period, with the only difference being
35
that the employees were removed from the routes and suspended. This is
significant, and further enhances the probability that the employees were
responsible for the cash shortages and needed to account for (explain) the
same. The second respondent however recorded in her award that G 4S said
that the shortages stopped after the employees were removed from the route,
and because there were still shortages after such removal, the version by G4S
was questionable. This conclusion is unsustainable for two reasons. First, G4S
never said there were no shortages. It said there was a substantial reduction
in shortages in excess of 90% . Second, the second respondent completely
misses the point. The point is that the singular fact of just removing the
employees off the routes resulted in a reduction of the losses suffered in
excess of 90%. This surely is an important fact that speaks for itself. The issue
of how the loss of R1 34 270.00 in the second six months’ period came about
was also not explored in evidence, so it may have been as a result of another
cause or causes. What happened where it comes to drastic reduction in the
cash shortages after the employees were removed from the routes cannot be
negated, which is what the second respondent irrationally and unreasonably
did.
[69] In the light of the evidence presented by G4S as a whole, it had established a
prima facie case that the employees had committed the misconduct with which
they had been charged. So where does all this leave the employees? The
answer is that the duty then shifted onto the employees to prove a reasonable
and acceptable explanation to the contrary, so as to avoid a final conclusion
that they committed the misconduct. This is what was specifically explained by
the LAC in Gauteng Department of Education supra.
In Federal Cold Storage
Co Ltd v Angehrn and Piel 47 the Court held that: ‘… Once the appellants had
proved a prima facie case of misconduct on the part of the respondents in
proved a prima facie case of misconduct on the part of the respondents in
taking, in violation of their duty, a secret profit of the kind described, the
dismissal stood prima facie justified, the burden of proof was shifted, and it lay
upon the respondents … to prove the righteousness of the transaction. If they
failed to discharge that burden satisfactorily, then the prima facie case against
them must prevail and their guilt, justifying dismissal, must be taken to be
established. … ’. And as succinctly said in National Union of Mineworkers and
47 1910 TS 1347 at 1352.
36
Another v Commission for Conciliation, Mediation and Arbitration and
Others48:
‘… the third respondent had at least made out a prima facie case. That meant
that there was a duty on the second applicant to advance and provide a
reasonable alternative explanation. His failure to do so in my view counts
heavily against him. … ‘
[70] The case in Aluminium City (Pty) Ltd v Metal and Engineering Industries
Bargaining Council and Others49 is also quite comparable. In that case, 18
pallets were loaded on a truck to be delivered, and one went missing in the
course of the delivery. This is not much different to the case in casu . The
employees were entrusted with specific and certified sums of cash to deliver ,
and some of it went missing. Based on a version by the employee in
Aluminium City that he did not know how the pallet went missing, the arbitrator
decided to give the employee the benefit of the doubt. The Court disagreed,
and concluded:50
‘It is clear that the commissioner did not appreciate this shifting of onus and
gave Khumalo the benefit of the doubt as a result of what he termed the
'necessary link' not being established. … In a case where the employer has
established on clear evidence that 18 pallets left the premises on a truck in
which the fourth respondent was an assistant and one is found to be missing,
there is a clear case of wrongdoing. The employer is entitled to the
explanation from the employee. The failure to explain or an untruthful
explanation will not discharge the burden resting on the employee.
’
[71] The above being the position, it is now appropriate to turn to what exactly the
employees offered in explanation for the missing cash, and what they
managed to prove in this regard in the arbitration. And the answer must
unfortunately be nothing. This is firstly evident from the approach the
employees adopted in the arbitration where it came to challenging the
substantive fairness of their dismissals. Their case was that they were not
substantive fairness of their dismissals. Their case was that they were not
48 (2013) 34 ILJ 945 (LC) at para 41. See also See also Woolworths (supra) at para 34; SA Municipal
Workers Union on behalf of Damens v Breede Valley Municipality and Others (2014) 35 ILJ 2018 (LC)
at para 13; SATAWU obo Mpoko and Another v National Bargaining Council for the Road and Freight
and Logistics Industry and Others (JR2039/16) [2019] ZALCJHB 192 (15 August 2019) at paras 36 –
39.
49 (2006) 27 ILJ 2567 (LC).
50 Id at para 21.
37
accountable for the cash shortages, and it was unfair to hold them
accountable. That must surely mean that they were not required to provide an
explanation. That is then what happened, as will be discussed below.
[72] Next, it must be rem embered that each of the employees were custodians
dedicated to a specific route, in the course of which o nly they had access to
the cash and the ATMs. The insurmountable problem in this case is that most
of the employees did not testify. Only Mo tlogelwa and Sindle testified. As
correctly pointed out by G4S, this is not a case of collective misconduct which
led to a collective dismissal. It is a case of individual misconduct perpetrated by
each of the employees, with each case having its own facts and merits. As such
Motlogelwa and Sindle cannot testify and provide an explanation on behalf of
all the other employees for each case pertaining to their own cash shortages.
The result of this failure to testify must mean that the employees that did not
testify did not provide or establish any plausible or reasonable explanation for
the cash shortages that occurred under their watch and on their specific routes,
and thus failed to discharge the duty that rested on them in this regard.
[73] Where it comes to the individual employees that did not testify, G4S had already
presented evidence of specific instances of cash shortages applicable to each
of these employees, which occurred in the period March to June 2019 on their
dedicated routes, and where only these employees had access to the cash in
the course of the route. Evidence was also presented of several instances
where these employees failed to follow prescribed procedures relating to the
access to and replenishment of ATMs and failed to submit or properly complete
the prescribed audit documents. It is not necessary, for the purposes of this
judgment, to set out all of the details of this evidence, because this evidence
was simply not contradicted, and no evidence was presented to counter it.
was simply not contradicted, and no evidence was presented to counter it.
These employees are Mosimanyana,
Mnyanda, Ngema, Ngenelwa, Mathonsi,
Shai and Tshabalala.
[74] In the case of Sindi, who did testify, the undisputed evidence was that there
were 15 individual loss incidents during the period concerned. Although the
individual loss incidents were not substantial, they cumulatively come to
R6 150. This means that in the period concerned, there was more than one
loss incident every month, which is highly unusual , and certainly required
proper explanation. Sindi also failed to properly carry out swop procedures. He
38
further failed to sign CRVs, which is a debrief form, and was at the time of the
misconduct subject to a written warning for failing to close the loading bay of a
truck, which placed funds at risk. The explanation offered by Sindi was simply
that he was not responsible for the cash shortages as there were ‘ technical
problems’. Insofar as this could be seen to be an explanation, it was
unsubstantiated, and overall considered, unlikely.
[75] Turning then to Motlogelwa, who also testified, the evidence by G4S was
that there were total cash shortages in the period concerned of R42 980.00.
In his evidence, Motlogelwa admitted there were cash short ages, but
contended the quantum thereof was R18 150.00, without any real
substantiation for this contention, and despite that it had been agreed that the
issue of the existence of the shortages as contended by G4S to exist was not
in issue . But even with regard to the R18 150.00 he admitted, he could not
satisfactorily explain that shortage, and adopted the approach that he was not
responsible for it . Some of the explanations he did provide was that the safe
door on an ATM was left open, but this could only serve as an indictment on
him, as he is not supposed to leave the safe door open. Motlogelwa also failed
to sign run sheets and an auditor's checklist, and instead of taking
responsibility for this, he sought to blame the auditor. All considered, and even
on Motlogelwa’s own version, he did not reasonabl y account for the cash
entrusted to him.
[76] The sum total of all the above is that the employees failed to provide an
acceptable or even a reasonable explanation for the cash shortages that took
place under their direct auspices and responsibility. Their approach was simply
that they are not responsible to account for the shortages, and considering that
they were not accused of stealing the cash, they were not guilty of misconduct.
But his approach was misconceived, considering the duty that rested on them ,
But his approach was misconceived, considering the duty that rested on them ,
and further consider ing the evidence that t he instances where the cash
shortages would most likely have occurred in this particular case is after it has
been entrusted to them to deliver on routes dedicated to them where they were
the only ones who had access to the cash. The point is that just like in
Aluminium City supra, the employees were handed goods (in the form of cash)
to deliver and in the course of this delivery, some if it went missing, which
imposed a duty on them to offer a reasonable explanation for what happened to
39
it. Without such an explanation, the inherent probabilities establish that they
failed to discharge their duties to account for the cash, as contemplated by the
charges proffered against them. This certainly constitutes a failure to take
reasonable care, being the very notion of what is meant by negligence. The
second respondent committed a reviewable irregularity in failing to so conclude,
as this would negate a critical part of the case, and would lead to an
unreasonable outcome. As pertinently said in Gauteng Department of
Education supra:
51
‘In his approach to the arbitration it is apparent that the arbitrator committed a
material misdirection in preferring certain aspects of the evidence over others,
without having regard to whether such evidence was plausible or tenable and
in the absence of a proper assessment of the probabilities. This had a clear
distorting effect on the outcome at arbitration. It prevented a fair a proper
determination of the issues from taking place and it caused the arbitrator to
reach a conclusion which was one that a reasonable arbitrator on the material
before them could not reach. It followed for these reasons that the award of
the arbitrator fell to be set aside on review.’
[77] Whether the negligence of the employees is ‘normal’ (for the want of a better
description) or ‘gross’ as contemplated by the charges in casu, is a question of
fact and degree,52 which cannot be decided by deferring to a label. As held in
Cape Gate supra 53: ‘… It is not about proving all the elements of an offence.
All that is required is to prove the essential allegations which form the basis of
the misconduct concerned. …’ In my view, the issues of fact and degree point
to the existence of negligence that can only be considered to be gross. This is
because the conduct of the employees shows unexplained remissness and a
complete indifference to the proper and responsible discharge of their duties
complete indifference to the proper and responsible discharge of their duties
and to account for the cash entrusted to them to deliver. In Transnet Ltd t/a
51 Id at para 21.
52 In National Union of Metalworkers of SA and Another v Commission for Conciliation, Mediation and
Arbitration and Others (2023) 44 ILJ 1575 (LC) at para 35, the Court held: ‘ The test for negligence
remains the same — whether negligence, once established, is gross, is a matter of degree, to be
determined considering a number of relevant factors. Those factors are inter alia whether the
employee is persistently negligent; the seriousness of the act or omission; whether the act or omission
is inexcusable; the employee’s awareness of the performance standard required or the procedure to
be complied with; the seriousness of the consequences of the act or omission; damages caused and
the skills and experience of the employee or the position held by the employee …’
53 Id at para 22.
40
Portnet v Owners of the MV Stella Tingas and Another54 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 …’
[78] Appositely, the Court in National Union of Metalworkers of SA and Another v
Commission for Conciliation, Mediation and Arbitration and Others 55 gave the
following exposition of what would be expected from the employees occupying
the particular positions and nature of the duties of the employees in casu, and
the particular nature of the product (for the want of a better description) that
they are required to handle:
‘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:56
‘The test to be applied and with whom the employee is compared, is that of a
‘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
employee charged, in the context of the particular workplace or industry,
54 2003 (2) SA 473 (SCA) at para 7.
55 (2023) 44 ILJ 1575 (LC) at para 32.
56 Id at para 40.
41
considering the performance standards and procedures set by the employer.
… ’
[79] In Vodacom (Pty) Ltd v Jivan and Others 57 it was said that: ‘… Gross
negligence involves a departure from the standard of the reasonable person to
such an extent that it may properly be categorized as extreme, and is
demonstrated by a total failure to take care …’. And in Gora v Kingswood
College and Others
58 the Court considered examples of gross negligence to
be: ‘… 'the extreme nature of the negligence required to constitute gross
negligence', namely 'no consideration whatever to the consequences of his
action'; 'a total disregard of his duty'; 'negligence of a very serious nature'; 'a
particularly high degree of negligence'; 'ordinary negligence of an aggravated
form which falls short of wilfulness'; 'an entire failure to give consideration to
the consequences of one's actions '. And lastly, the Court in Siyandisa Trading
(Pty) Ltd v Commissioner for the South African Revenue Services
59 held: ‘It is
trite that to classify conduct as grossly negligent is to classify it on a scale of
blameworthiness. …’.
[80] All said, it is my view that the only rational and reasonable conclusion the
second respondent could have come to, considering the undisputed facts , the
complete absence of an explanation for the misconduct, and the relevant
principles of law, is that the negligence perpetrated by the employees in this
case was very serious , and the failure to provide an explanation for the cash
shortages adds to the magnitude of this. The particular position of trust of the
employees occupy certainly makes the kind of failures that occurred in this
case to be extreme. The employees are skilled and trained, and have all the
tools available to them to ensure cash shortages do not happen. If shortages
do happen, it necessitates an acceptable and reasonable explanation from
them for this . It is an untenable proposition to say that ‘ I cannot be held
them for this . It is an untenable proposition to say that ‘ I cannot be held
responsible or accountable for cash shortages unless my employer alleges
and then proves that I stole it ’, which is in essence what the employees are
doing in this case, as they were not accused of stealing the cash that was
57 (JR 2149/19) [2023] ZALCJHB 211 (20 July 2023) at para 30 . See also Sibanye Gold Ltd v
Commission for Conciliation, Mediation and Arbitration and Others (2024) 45 ILJ 2376 (LC) at para 45.
58 2019 (4) SA 162 (ECG) [42]
59 2023 JDR 0554 (GP) at para 48.
42
found to be short.60 This kind of approach shows an obtuseness of mind and a
complete departure from the norm that would be expected of a reasonable
employee in the position of the employees in casu. This is the kind of
negligence that can competently attract dismissal as a fair sanction.
[81] Even though a determination of negligence and the scope and extent of it is
always a fact specific exercise directly linked to the particular duties and
responsibilities of an employee, the consideration of some comparable
examples in the case law is useful. 61 In Nampak Corrugated Wadeville v
Khoza62 the employee 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
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.’
[82] Next, in Universal Product Network (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others63 the employer had a specific procedure
in place for the payment of wages outside the normal payroll cycle as a control
mechanism designed to prevent theft. The employee concerned failed to
follow this procedures, and failed to submit supporting documents associated
with the procedure. The Court accepted that the failure to follow this procedure
would constitute gross negligence, as the whole purpose of the procedure was
would constitute gross negligence, as the whole purpose of the procedure was
defeated in attending to wage payments not in compliance therewith.
60 The following exchange with Motlogelwa when he testifies illustrates this approach: ‘MR
CRAFFORD: But you will agree that if you lose money or you take money while the bags are in
your possession then it is your responsibility. MR MOTLOGELWA: If I take the money, yes.’.
61 Compare, as examples, the findings with regard to gross negligence made in Metrorail (PRASA) v
SATAWU obo Tshabalala and Others (JR483/13) [2015] ZALCJHB 422 (5 October 2015) at para 66;
Assmang (Pty) Ltd t/a Black Rock Mine v Moyo and Others (JR1233/21) [2025] ZALCJHB 359 (13
August 2025) at para 28.
62 (1999) 20 ILJ 578 (LAC) at para 35.
63 (2004) 25 ILJ 1496 (LC) at paras 35 and 38.
43
[83] The Court in Standard Bank Insurance Brokers v Dlamini and Others 64 dealt
with a situation where the employee failed to comply with a prescribed
procedure in order to ensure that insurance policy renewals were timeously
effected. The employee could offer no plausible explanation for this failure.
The Court dealt with this as follows:
65
‘… It was one of the first respondent’s core duties to ensure compliance with
these prescripts, which she failed to do. This failure took place without proper
cause, reason or explanation, and despite the first respondent knowing what
she was expected to do. And further, this happened despite the prior two
months prior alert given to the first respondent by the System. The
consequences of non-compliance can be severe and is highly prejudicial to
the applicant. So, is the above misconduct, on the facts and as a matter of
degree, gross negligence? In my view, certainly so, in that it shows
unexplained remissness and a complete indifference to the proper and
responsible discharge of the first respondent’s duties.
’
The Court concluded:66
‘… I believe that in casu, there was a material departure from the norm that
would not be expected from a 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 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. …
’
[84] In National Education Health and Allied Workers Union obo Mogorosi v
Commission for Conciliation, Mediation and Arbitration and Others 67 the Court
Commission for Conciliation, Mediation and Arbitration and Others 67 the Court
dealt with a charge of gross negligence against an employee for failing to
comply with a prescribed process in declaring a surplus, and held:
64 (JR15/24) [2025] ZALCJHB 147 (7 April 2025).
65 Id at para 40.
66 Id at para 42.
67 (JR1436/15) [2018] ZALCJHB 149 (18 April 2018) at para 74.
44
‘… in my evaluation, there was cause to believe that Mogorosi’s omissions
involved a departure from the standard of a reasonable person to such an
extent that it may properly be categorised as gross. The importance of a
public entity complying with applicable prescripts cannot be emphasised, and
the fact that section 38 of the PFMA spells out the consequences of non-
compliance with its prescripts is instructive. Mogorosi knew that there was a
need to declare the surplus and the mere fact that he had instructed
Moolman to kick -start a process of reporting the surplus, and yet failed
ultimately to see that process through by finalising the draft letter and
forwarding it to the CEO is indicative of his conscious risk -taking, and total
failure to take care. A conscious decision not to comply with applicable legal
prescripts pertaining to finances within a public entity should in my view be
considered as a serious form of misconduct, and the Commissioner’s
conclusions that such conduct was appropriately met with a sanction of
dismissal cannot be faulted
.’
[85] Finally, in this respect, it must be considered that the employees never came
out in the arbitration and least acknowledged some kind of responsibility
where it came the cash short ages which undoubtedly occurred under their
stewardship. They effectively said it was not their problem, so they did nothing
wrong. They refused to in any manner acknowledge that at least some of their
conduct, which was proven, was negligent. This being so, the following dictum
in EOH Abantu supra68 is in my view apposite:
‘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 … ’
[86] So, and in sum, there are a number of factors that establish that the
misconduct perpetrated by the employees in this case is tantamount to gross
misconduct perpetrated by the employees in this case is tantamount to gross
negligence, which is the very misconduct with which they had been charged.
The first is the nature of their position, and the fact that they are entrusted to
attend to and deliver large amounts of cash. Second, it was undisputed that
they were properly trained and skilled, and knew exactly what was expected of
them. Third, it was always made clear to them that they were accountable for
68 Id at para 21.
45
the cash entrusted to them to deliver. Fourth, they were at all times required to
comply with prescribed processes, and complete prescribed documents , all
designed to mitigate against the occurrence of cash shortages. And finally, the
chain of custody, so to speak, where it comes the cash used to replenish the
ATMs is such that when the cash is placed in the hands of the employees in
this case , what wa s placed in their hands wa s accurate and correct. There
was never any evidence presented that the shortages could have occurred in
the course of the chain of custody prior to the cash reaching the employees.
When all this is tied together with the complete failure to provide an acceptable
or even reasonable explanation for the shortages, it must be concluded that
this shows a material departure from the norm and of what can be expected of
a reasonable employee in the position of the employees carrying out such
duties. Gross negligence on the part of the employees has thus been shown to
exist in casu, and the second respondent acted unreasonably in failing to so
conclude.
[87] Next, it is true that in the pre-arbitration minute, the issue of inconsistency was
raised by the employees as an issue the second respondent was required to
decide. I must confess that I consider the inconsistency issue in this case with
a sense of irony. Inconsistency should in reality only be a live issue where an
employee owns up to the misconduct, and then offers the defence that
another employee committed the same misconduct but was not dismissed. In
my view, it is rather opportunistic for an employee to deny misconduct, and
then in the alternative, so to speak, rely on inconsistency. In this case, the
employees were always of the firm view that they committed no misconduct at
all because they were not responsible for any of the cash shortages nor were
they responsible to account for the same. The second respondent accepted
they responsible to account for the same. The second respondent accepted
this defence. As such, there should have been no need for her to determine
any issue of inconsistency.
69
[88] The above being said, it is my view that any finding of inconsistency in this
case is nonetheless entirely unsustainable, both in fact and in law. Dealing first
with the applicable legal principles relating to inconsistency, the Court in
69 See Eskom Holdings SOC Ltd v Commission for Conciliation, Mediation and Arbitration and
others [2019] JOL 42300 (LC) at paras 41 – 42; Sibanye Gold (supra) at para 48.
46
National Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)70 made the following clear:
‘The idea of inconsistency in employee discipline derives from the notion that it
is unfair that like and like are not treated alike. The core of this 'factor' in the
application of employee discipline (it would be a misconception to call it a
principle) is the rejection of capricious or arbitrary conduct by an employer.
It has application in two respects. Mainly, it is a recognition of the unfairness of
the condemnation of one person for genuine misconduct when another
indistinguishable case of misconduct by another person is condoned. The
second application is the recognition of the unfairness that results when
disparate sanctions are meted out for indistinguishable misconduct to different
persons.
’
And in Bidserv Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others 71 the Court specifically dispensed a
warning where it came to considering issues of inconsistency, saying that:
‘This court sounded a warning on approaching the question of inconsistency in
the application of discipline willy -nilly without any measure of caution.
Inconsistency is a factor to be taken into account in the determination of the
fairness of the dismissal but by no means decisive of the outcome on the
determination of reasonableness and fairness of the decision to dismiss. … ’
[89] The Code of Good Practice in the LRA also provides for consistency as a
consideration in deciding the issue of the fairness of the sanction of
dismissal.72 This consideration applies where the employee was charged with
misconduct, and was properly found guilty of the same, but in deciding
whether dismissal for this would be appropriate the issue would be that
dismissing the employee for such misconduct would be inconsistent with the
70 (2014) 35 ILJ 2406 (LAC) at paras 25 – 26. See also Mtshwene v Glencore Operations SA (Pty) Ltd
(Lion Ferrochrome) (2019) 40 ILJ 507 (LAC) at para 24.
71 (2017) 38 ILJ 860 (LAC) at para 31. See also Absa Bank Ltd v Naidu and Others (2015) 36 ILJ 602
(LAC) at para 36.
72 See Schedule 8 Item 3(6) which reads: ‘ The employer should apply the penalty of dismissal
consistently with the way in which it has been applied to the same and other employees in the past,
and consistently as between two or more employees who participate in the misconduct under
consideration.’
47
sanction imposed by the employer for similar and related misconduct, in the
past, in respect of other employees.73 This ties in with what I said earlier about
inconsistency in reality only being relevant where an employee owns up to the
misconduct.
[90] The well -known judgment of SA Commercial Catering and Allied Workers
Union and Others v Irvin and Johnson Ltd, 74 aptly determined the principles
applicable to deciding inconsistency, as being: (1) E mployees must be
measured against the same standards (like for like comparison); (2) Did the
chairperson of the disciplinary enquiry conscientiously and honestly determine
the misconduct; (3) The decision by the employer not to dismiss other
employees involved in the same misconduct must not be capricious, or
induced by improper motives or by a discriminating management policy (in
other words this conduct must be bona fide); and (4) A value judgment must
always be exercised
75.
[91] In general, inconsistency as a consideration is intended to protect employees
against arbitrary conduct by the employer. Objective difference in
circumstances is thus a critical consideration. In Southern Sun Hotel Interests
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others
76 it was said:
‘… An inconsistency challenge will fail where the employer is able to
differentiate between employees who have committed similar transgressions
on the basis of inter alia differences in personal circumstances, the severity of
the misconduct or on the basis of other material factors … ’
[92] Finally, inconsistency must be properly raised and dealt with in the arbitration
proceedings, in such a manner so as to identify the other employee(s) who
may have been treated differently, as well as the basis for the contention that
73 See Southern Sun Hotel Interests (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration
and Others (2010) 31 ILJ 452 (LC) at para 10.
74 (1999) 20 ILJ 2302 (LAC) at para 29.
and Others (2010) 31 ILJ 452 (LC) at para 10.
74 (1999) 20 ILJ 2302 (LAC) at para 29.
75 See SRV Mill Services (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and
Others (2004) 25 ILJ 135 (LC) at para 23.
76 (2010) 31 ILJ 452 (LC) at para 10.
48
the dismissed employee should not have been treated differently. As
described by the Court in Bidserv supra77:
‘… A generalised allegation of inconsistency is not sufficient. A concrete
allegation identifying who the persons are who were treated differently and the
basis upon which they ought not to have been treated differently or that no
distinction should have been made must be set out clearly. …
A concrete allegation identifying who the persons are who were treated
differently and the basis upon which they ought not to have been treated
differently must be set out clearly. Introducing such an issue in an ambush-like
fashion, or as an afterthought, does not serve to produce a fair adjudication
process …
’
[93] The employee party has the evidentiary burden to establish inconsistency . In
Comed Health CC v National Bargaining Council for the Chemical Industry
and Others78 the Court held:
‘It is trite that the employee who seeks to rely on the parity principle as an
aspect of challenging the fairness of his or her dismissal has the duty to put
sufficient information before the employer to afford it (the employer) the
opportunity to respond effectively to the allegation that it applied discipline in
an inconsistent manner. …’
[94] I now turn to applying the aforesaid legal principles to the facts of this case.
First, what was actually the instances of inconsistency identified by the
employees for determination, as would be required of them to do ? In the pre-
arbitration minute, a number of employees in respect of which alleged
inconsistencies were said to exist, were referred to. But even in this minute,
the basis on which those employees should not have been treated differently
was never identified nor set out. What was raised was firstly t hat one Bheki
Nkosi (Nkosi), who was also a custodian, was unable to account for shortages
but was not disciplined. Next, the employees contended that a number of other
but was not disciplined. Next, the employees contended that a number of other
77 Id at para s 31 and 39. See also Grindrod Logistics (Pty) Ltd v SA Transport and Allied Workers
Union on behalf of Kgwele and Others (2018) 39 ILJ 144 (LAC) at para 47; Botsane (supra) at para
39.
78 (2012) 33 ILJ 623 (LC) at para 10. See also Botsane (supra) at para 39; Banda v General Public
Service Sectoral Bargaining Council and Others [2014] JOL 31486 (LC) at para 49; SA Municipal
Workers Union on behalf of Abrahams and Others v City of Cape Town and Others (2011) 32 ILJ 3018
(LC) para 50.
49
employees also alleged to be accountable for the cash shortages in respect of
the very case in casu were not disciplined. This was the clearing technicians
(Messrs Dladla, Bhesia a nd Mudau) , the TSOs ( Messrs Thabete, Mbatha,
Nokonyane and Dlamini) , and the auditors (Messrs Mashaba, Matjokotja and
Mothe). And lastly, it was alleged in the minute that it was inconsistent not to
discipline all the individuals in the counting house and the crewman and third
men, also where it came to the shortages in this case . Therefore, other than
Nkosi, the basic pleaded case of the employees in the pre- arbitration minute
where it came to the inconsistency challenge was that each and every
employee of G4S that may have had acces s to or had been associated with
the cash in all the instances of shortages giving rise to the charges against the
employees, had to also be disciplined and dismissed , and the failure to do so
established inconsistency.
[95] In the cross examination of Hartslief, a further number of names of employees
were presented to him as purported cases of inconsistency, none of which
was raised in the pre- arbitration minute. This manner of raising inconsistency
is the kind of trial by ambush the Court in Bidserv supra was critical about, and
should not be allowed. Nonetheless, Hartslief gave further evidence on this ,
along with Bishop who was also called to testify on this. In respect of all the
names thrown at G4S to try and establish a case of inconsistency, what was
lacking was any kind of sufficient particularity as to how these employees
could serve as a legitimate comparator. It must be remembered that the
employees had the evidentiary burden to establish this. But even when
considering these names, it became apparent from the evidence of Hartslief
and Bishop that a number of the employees mentioned were in fact dismissed
and that the misconduct with regard to these other dismissed employees
and that the misconduct with regard to these other dismissed employees
actually took place after the employees in casu were dismissed, so there can
be no inconsistency. Bishop testified that some of the names of employees
mentioned were never even investigated for misconduct (three names ), one
person was dismissed for abscontion and another resigned to take up another
job. There were also several other employee names put to Har tslief which
Bishop, when she testified, stated that G4S was not able to identify without
proper particulars being provided, considering it has 3500 employees . In any
event, the employees led no testimony on this alleged inconsistency, to
substantiate what was simply being put to Hartslief.
50
[96] When dealing with inconsistency, the second respondent finds as follows in
her award: ‘Deborah Bishop and Perrin Hartslief testified on the incidences of
purported inconsistencies raised by the applicants. The respondent believes
that there are no inconsistencies when it comes to discipline of staff. The
witnesses were able to provide evidence to dispute the applicants' allegations
regarding inconsistency in terms of discipline. This was after the applicants
placed sufficient detail before the respondent to answer the allegations of
inconsistency’. Even though the second respondent is not correct in saying
that sufficient detail had been provided on the issue of inconsistency relating
to each particular employee mentioned, t his finding nonetheless clearly puts
paid to all the names of employees thrown at G4S for the first time in the
arbitration seeking to establish a case of inconsistency , and no inconsistency
can be said to exist in this respect. In any event, and because none of this was
specifically raised in the pre-arbitration minute, as should have been done, the
second respondent should not even have considered it. On the one
comparator that was actually pertinently raised in the pre-arbitration minute,
being Nkosi, the second respondent did not make any finding.
[97] So where does the inconsistency then lie? The answer is that the second
respondent, when deciding inconsistency, ascribed to the narrative
propagated by the employees that everyone who may have had their hands on
the cash when the shortages in casu occurred should be held accountable,
because it had been shown that it was possible for shortages to occur
anywhere along the chain of custody. Because of this, according to the
reasoning of the second respondent, the failure to discipline everyone possibly
involved is an inconsistency. This reasoning is unsustainable and bordering on
nonsensical. This would mean that unless G4S is able to prove that a
nonsensical. This would mean that unless G4S is able to prove that a
custodian actually stole the cash shortage, it is powerless to act, unless it also
disciplines all its employees along its entire chain of custody, because each of
them may have a duty to account in each stage of the chain and could
possibly be involved. This is surely an untenable proposition. T o illustrate, and
taking the case of
Motlogelwa who was a witness for the employees, it was
his own version that on one of his delivery routes there was a cash shortage
of R18 150.00. Applying t he reasoning of the second respondent means
that the teller must be disciplined for this, the box room personnel who
51
handled the cash bags must be disciplined, the auditors who checked it
must be disciplined, the supervisors must be disciplined, and the driver and
any crew on the vehicle must be disciplined, and all then dismissed,
because it was notionally possible for the cash shortage to occur at any one
of the junctures these employees were responsible for. This approach would
completely negate the very purpose of the chain of custody. On the facts ,
this is a clear application of a reasonable doubt approach by the second
respondent, which she applies even to establish inconsistency, and which is
simply manifestly wrong. And further, this ignores that in this case, there
was no actual evidence presented to show that any of the other employees
in the chain of custody failed to discharge their duty to account, as the
evidence was that the cash amounts were all correct when it was handed to
and signed for by the employees as custodians. That in itself takes all the
other employees in the chain of custody out of the equation where it comes
to inconsistency.
The approach adopted by the second respondent is entirely
unsustainable.
[98] I wish to further illustrate by way of another reference to certain facts in casu.
As established in this case, the tellers in the CPC have access to the cash that
ultimately ends up with the custodians. It is true that tellers have in the past
been disciplined and dismissed for cash shortages. To then conclude that
because the cash could go missing if it was taken by a teller and therefore all
tellers involved in a particular delivery conducted by the employees where a
cash shortage occurred must also be disciplined and dismissed is irrational
and simply a nonsense. This is even more true when there was no actual
evidence presented in this case that the cash shortages that occurred could
have happened at the tellers. To simply suggest, as the employees did, that it
possibly could, and therefore it is inconsistent to discipline them and not also
possibly could, and therefore it is inconsistent to discipline them and not also
the tellers, falls a country mile short of establishing a proper case of
inconsistency.
[99] There is another consideration that the second respondent appear s blind to.
Even it can arguably be said that the other employees had a duty to account
and there may be inconsistency for not disciplining them as well, the second
respondent still needed to consider whether this differentiation was arbitrary,
capricious, male fide or based on some or other discriminatory management
52
policy. None of this was shown to exist, nor explored. In fact, and considering
the facts of this case, the reason why G4S chose to only discipline the
employees as custodians made sense, and was objectively sustainable. There
was nothing wrongful or arbitrary about it. As the case law makes clear, it was
necessary to establish that G4S as an employer acted arbitrarily, which was
never shown to be the case.
[100] Further, the second respondent needed to conduct a like for like comparison.
Using again the enable of a teller as opposed to a custodian, t he truth is that
duties of a teller is not the same as the duties of a custodian. Their duties to
account apply in a different context, and under different circumstances. A
custodian is far more left to his own devices in the course of discharging his
duties on the delivery route, than would be the case of a teller counting cash in
the CPC under direct camera supervision and subject to other security checks.
The particular circumstances under which a teller may cause a cash shortage
as compared to the circumstances when a custodian caused a cash shortage
must be considered for the purposes of comparison, and a mere generalised
assertion, as is the case in casu, is far short of sufficient. It cannot be said
that one instance of a shortage is the same as all instances of shortages. The
like for like comparison must be considered on the basis of a proper factual
foundation to be established by the employees in the first place. The second
respondent, in failing to conduct a proper like for like comparison, materially
failed.
[101] The second respondent specifically finds a basis for inconsistency by referring
to the crewmen on the vehicle. She finds that in terms of G4S’s procedures,
the crewman (third man) is also accountable for the cash and the signing of
the requisite forms, however crewmen were not held to account. This is again
a complete failure to conduct a proper like for like comparison. The crewman
a complete failure to conduct a proper like for like comparison. The crewman
does not handle the cash. The crewman does not take the cash to the ATM to
replenish it. The crewman is also not in the ATM cubicle with the custodian.
The crewman does not remove the cash fr om the bags . And lastly, t he job of
the crewman is to secure the site. The point is simply this. When assessing
‘accountable’, it must always involve assessing what is ‘accountable’ relating
to the particular position and duties of the employee concerned. In short, the
accountability of the crewman is not the same as the accountability of the
53
custodian. It cannot be expected of the crewman to explain the cash short age.
But it can be expected of the crewman to explain why he did not secure the
site, if the custodian is for example robbed in the course of executing his
duties. The second respondent has simply got it patently wrong.
[102] The second respondent also refers to an example of a custodian, Yasseen
Betchor (Betchor), that had a cash short age, and who was not dismissed but
demoted. According to her, this is another instance of inconsistency. However,
the employees presented no evidence of the circumstances of the case of
Betchor. The case of Betchor was not raised in the pre-arbitration minute as a
basis for alleging inconsistency, and should therefore not even have been
considered as it is trial by ambush. Further, what the second respondent
misses is the pertinent point that Betchor was accountable for the cash
shortage and a sanction implemented in form of demotion, even on the
employees’ own version. In casu, the employees dispute the very notion of
their accountability and were adamant they did nothing wrong and no sanction
is appropriate. This in itself surely distinguishes them f rom Betchor. Lastly, the
evidence by G4S (Har tslief) was that it was found in the investigation into the
incident with Betchor that the third man (crewman) stole the cash and ran
away, but Betchor was still accountable because he allowed access to cash by
the third man, w hich Betchor accepted and asked to be demoted instead of
being dismissed. Yet again, there is no substantiated like for like comparison
in this respect , which the second respondent unreasonably failed to
appreciate.
[103] Even when dealing with the issue of inconsistency , the second respondent
continued to harp on the fact of what she considered to be false evidence by
G4S that after the removal of the employees fr om their routes, cash shortages
stopped, when the actual evidence showed this was not the case and
stopped, when the actual evidence showed this was not the case and
shortages continued. But the second respondent simply gets the evidence
completely wrong. G4S never said all cash shortages stopped. G4S said there
was a substantial reduction in cash shortages , which reduced from R1 377
690.00 to R134 270.00, just by removing the employees from their routes. This
certainly brings into play the issue of a value judgment to be exercised when
deciding whether dismissal is a fair sanction, in the context of inconsistency. I
54
am convinced that a proper value judgment in this case must mean that the
employees simply cannot be exonerated, even if it can be said that G4S
should have taken action against other employees as well. As held in Irvin and
Johnson supra:
79
‘… If, for example, one member of a group of employees who committed a
serious offence against the employer is, for improper motives, not dismissed, it
would not, in my view, necessarily mean that the other miscreants should
escape. Fairness is a value judgment. It might or might not in the
circumstances be fair to reinstate the other offenders. The point is that
consistency is not a rule unto itself.’
[104] All said, the second respondent’s inconsistency finding against G4S is
unsustainable, both in fact and in law. The second respondent simply ascribed
to a broad contention of inconsistency across the entire chain of custody of
G4S without conducting any individual like for like comparisons of the specific
facts and the specific duties and obligations of the respective employees as
applicable to the cash shortages specifically in this case, which is
fundamentally in error. In particular, the second respondent simply did not
appreciate that there was an objective difference between the duties and
responsibilities, and the circumstances in which they carried out their duties,
as between the employees as custodians and the other employees in the
chain of custody. The second respondent further failed to appreciate that the
duty was squarely on the employees to provide a proper factual foundation to
support their case of inconsistency, which they simply failed to do. On the
facts, the reason why G4S singled out the employees for discipline is
objectively justified, makes sense, and is certainly not arbitrary or mala fide.
And lastly, the second respondent conducted no value judgment, which value
judgment favoured G4S in casu.
[105] In conclusion, it is for all the reasons as set out above, that I adopt the view
[105] In conclusion, it is for all the reasons as set out above, that I adopt the view
that the determination by the second respondent in her award to the effect that
that the dismissal of the employees was substantively unfair is grossly
irregular, and resorts well outside the bands of what may be considered to be
a reasonable outcome. As such, the award of the second respondent on the
79 Id at para 29.
55
issue of the substantive unfairness of the dismissal of the employees by G4S
falls to be reviewed and set aside.
Analysis: Procedural fairness
[106] In the pre- arbitration minute, it was contended that the dismissal of the
employees was procedurally unfair because they dd not receive all the
documents and other information they requested and required prior to the
disciplinary hearings. It was pleaded that they therefore did not have a proper
opportunity to defend themselves in the disciplinary hearing, due to not being
able to properly prepare.
[107] The second respondent accepted that the dismissal of the employees was
procedurally unfair. The second respondent held, with reference to the
information allegedly requested by the employees : ‘The respondents did not
provide sufficient particularity to allow the applicants to properly defend
themselves. And the respondents are wrong on the fact that the applicants had
sole access and were the only common denominator in their purported
misconduct. We know that an employee should be given the opportunity to
state a case in response to the allegations’. In addition, because of the second
respondent’s earlier finding that G4S sought to present a different case at
arbitration to the one the employees had been charged with in the disciplinary
hearing, she further decided that: ‘… I believe that the respondent only
investigated this matter thoroughly after the applicants were dismissed. In
this regard the applicants only received the requisite documentation at the
arbitration. This meant that the audi alterem partem rule did not 'surface' in the
applicants' disciplinary enquiries…’.
[108] As discussed earlier in this judgment, the second respondent’s finding that
G4S sought to substantiate a reason for dismissal at arbitration other than the
one the employees had been dismissed for was misconceived, and
unsubstantiated in fact. The reason why the employees had been dis missed
unsubstantiated in fact. The reason why the employees had been dis missed
was always the same, and thus G4S would be entitled to present further
evidence in a de novo arbitration. Nonetheless, it is difficult to understand how
this issue can impact on the procedural fairness of the earlier disciplinary
hearings. Even accepting the second respondent’s reasoning that G4S only
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presented the evidence at arbitration because it investigated the case after the
dismissal of the employees, then how could it be said that there was evidence
not provided prior to the disciplinary hearing which the employees needed in
order to prepare themselves for it. Simply put, G4S, applying the second
respondent’s own reasoning, can hardly be justifiably criticised for not
providing information in the internal disciplinary hearing it only obtained after
the fact. This issue clearly has nothing to do with the procedural fairness of the
disciplinary hearing.
[109] In addition, the employees failed to present any evidence in the arbitration on
procedural unfairness. There was no evidence concerning what documents
they asked for, and what documents were not provided. In fact, the evidence
showed that the employees fully participated in the disciplinary hearings
without reservation, defending themselves on the merits of the charges. There
is no indication of the employees suffering any prejudice as a result of not
being presented with documents beforehand. And finally, if the employees
were only presented with documents and information in the disciplinary
hearing, they were always at liberty to ask that the proceedings be postponed
so they could consider it. This never happened.
[110] Although the second respondent refers to the well -known judgment in Avril
Elizabeth Home for the Mentally Handicapped v Commission for Conciliation,
Mediation and Arbitration and Others
80, she appears not to appreciate what he
Court had really decided in that case, where the Court said: ‘… The balance
struck by the LRA thus recognizes not only that managers are not experienced
judicial officers, but also that workplace efficiencies should not be unduly
impeded by onerous procedural requirements. It also recognizes that to
require onerous workplace disciplinary procedures is inconsistent with a right
to expeditious arbitration on merits. … ’, and that the core requirements for
to expeditious arbitration on merits. … ’, and that the core requirements for
procedural fairness under the LRA were:
81 ‘… the conception of procedural
fairness incorporated into the LRA is one that requires an investigation into
any alleged misconduct by the employer, an opportunity by any employee
against whom any allegation of misconduct is made, to respond after a
reasonable period with the assistance of a representative, a decision by the
80 (2006) 27 ILJ 1644 (LC) at 1652A-B.
81 Id at 1651-2. See also Kelly Group Ltd v Khanyile and Others (2013) 34 ILJ 2035 (LC) at para 22.
57
employer, and notice of that decision’. There is no indication in this case that
these basic objectives were not achieved, where it came to the disciplinary
hearings of the employees.
[111] In addition, it is also always about whether the employee has suffered
prejudice as a result of a procedural failure, even if it can be s aid that the
employee did not have all the information asked for prior to the hearing. I n this
regard, the employee must allege such prejudice, and ultimately it has to be
found that such prejudice exists, in order for disciplinary proceedings to be
held to be procedurally unfair. Instructive, in my view, is the following dictum in
Delport and others v S82:
‘The question in regard to irregularities is always whether they have resulted in
a failure of justice. Bearing in mind that irregularities do not in and of
themselves lead to a failure of justice, there is little likelihood of this Court, or
any other, holding that they did in these circumstances.’
[112] Ironically, and in the heads of argument submitted to the second respondent at
the conclusion of the arbitration, the employees’ attorney first contended that
the dismissal of the employees was procedurally unfair because of an alleged
unreasonable delay in instituting the disciplinary proceedings, which caused
the employees prejudice. The second contention by the employees’ attorney
was that the charges as formulated and presented to the employees were
vague, to the extent that the employees were unable to appreciate and then
answer the real charges (case) against them. It is clear that these grounds for
procedural unfairness have nothing t o do with the basis the second
respondent ultimately found the dismissals to be procedurally unfair.
[113] I believe that these grounds of procedural unfairness raised in the employees ’
closing heads of argument were raised because there was no evidence led by
the employees in the arbitration on the issue of requested documents and
the employees in the arbitration on the issue of requested documents and
information not being provided beforehand resulting in employees being
unable to prepare for the hearings and being prejudiced as a result . But these
grounds of procedural unfairness were never pleaded in the pre-arbitration
minute, and thus it would not have been competent for the second respondent
82 [2015] 1 All SA 286 (SCA) at para 35.
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to decide this issue on that basis. The second respondent then proceeded to
decide procedural unfairness on the basis of the case as pleaded, but there
was no evidence to support this case, and she was not even asked to decide
this case in the closing arguments. All said, it thus appears that the second
respondent made a finding of procedural unfairness on the basis of grounds
not even relied on by the employees at the conclusion of the arbitration and
which were certainly not proven. This conduct constitutes a gross irregularity.
[114] In conclusion, the second respondent’s findings of procedural unfairness is
unsustainable on review. It is based on an unsound premise, and seeks to
apply her findings on the substantive merits in the arbitration to the disciplinary
hearings themselves, despite it having nothing to do with procedural fairness
in internal disciplinary hearings. Further, the finding of procedural unfairness
has no foundation in fact. And lastly, the second respondent decided this issue
on the basis the employees themselves did not even pursue in their closing
argument or evidence. In my view, the entire finding of procedural unfairness
is founded on the second respondent’s misdirected and misconceived
approach to this matter, which she then sought to apply to all instances of
required fairness across the board. The finding of procedural unfairness thus
falls to be reviewed and set aside.
Conclusion
[115] For all the reasons as set out above, I conclude that the second respondent’s
finding that the dismissal of the employees was substantively and procedurally
unfair constitutes an unreasonable outcome. It thus cannot be sustained on
review, and falls to be reviewed and set aside.
[116] Having reviewed and set aside the arbitration award of the second
respondent, I see no reason to remit this matter back to the NBCRFLI (third
respondent) for determination de novo before another arbitrator. Despite its
respondent) for determination de novo before another arbitrator. Despite its
vast bulk, I believe 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 is voluminous, speaks for itself,
and there is no need to traverse all of this all over again, especially
considering that this matter dates back to 2019. All said, I believe there is no
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need to go through the whole exercise of arbitration again. Exercising the
powers I have under section 145(4) of the LRA, 83 I consider it appropriate to
finally determine this matter. I shall accordingly substitute the arbitration award
of the second respondent with an award that the dismissal of the employees
by G4S was substantively and procedurally fair.
Costs
[117] 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 G4S was successful, I do not intend to burden NUMSA
or the employees 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
opposition by NUMSA and the employees 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
84 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 order as to costs.
[118] In the premises, I make the following order:
Order
1. The applicant’s review application is granted.
2. The arbitration award of the second respondent, arbitrator N Moni,
issued under case number GAJB 17879 – 19, dated 19 July 2022, and
varied on 26 July and 18 August 2022 respectively, is reviewed and set
aside.
83 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 … ’
84 (2018) 39 ILJ 523 (CC) at para 25.
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3. The arbitration award is substituted with an award that the dismissal of
the individual first respondents by the applicant, was both substantively
and procedurally fair.
4. There is no order as to costs.
_____________________
S. Snyman
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: Advocate R Itzkin
Instructed by: Edward Nathan Sonnenbergs Inc Attorneys
For the First Respondent: Mr K Letsholo of Letsholo Manashoe Attorneys
Date of hearing: 30 October 2025