THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR661/19
In the matter between:
BUSBAR SERVICES AND DYNAMICS WELD (PTY) LTD Applicant
and
SEKILA ERNEST LEBALA First Respondent
EUGENE MTILENI N.O. Second Respondent
MEIBC Third Respondent
Heard: 16 April 2026
Delivered: 23 April 2026
Summary: Opposed review application – existence of dismissal in dispute –
jurisdiction of the Bargaining Council – termination of employment agreement
concluded by the parties
JUDGMENT
MKWIBISO, AJ
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] In this matter, the applicant (the employer) seeks to have an arbitration award
issued by the second respondent (the Commissioner) under the auspices of
the third respondent (the Bargaining Council) set aside on review . The
employer contends that the Commissioner declared the first respondent (the
employee) to have been dismissed when he was not dismissed.
[2] The issue is whether the employee was dismissed, which is a jurisdictional
issue.
Relevant facts and evidence
[3] The employee was employed by the employer in September 2013 as an
Installer. He communicated in English with the General Manager throughout
his employment with the employer and did not require an interpreter when so
communicating. He experienced hardship travelling to and from work because
he lived in Randburg and the employer was based in Kempton Park, Gauteng.
As a result, he would regularly intimate to his colleagues including the
General Manager that he wanted to resign due to the long distance he had t o
travel to work, and that he wanted to work close to his home.
[4] Though the employee was late for work on a regular basis, the General
Manager did not insist on him complying with the rule regarding punctual time
and attendance and did not charge him for misconduct, as he understood that
the employee had to travel from far.
[5] The employer’s business operations required it to work on its client’s
construction sites, which sometimes required employees to work at heights.
Due to the dangers that are inherent in working at heights, the employer’s
clients required it to ensure that its employees underwent routine medical
tests to ensure that they were fit to work at heights, in order to curtail
unnecessary injuries on duty.
[6] During October 2017, the employer required the employee to undergo routine
medical tests. On 23 October 2017, the employee delivered the results of the
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medical tests to the employer, which results revealed that the employee had
tested positive for cannabis. The employee was declared unfit to work due to
the results of the medical tests, and he was to return to the Occupational
Health Practitioner after 45 days for the tests to be conducted again. In the
meantime, the employee could not work due to being declared unfit, and he
was granted unpaid leave by the employer which meant that he would not be
paid in line with the no-work no-pay principle.
[7] The employee approached the General Manager and inquired as to whether
the employer could not “make a plan” for him, to avoid the hardship that would
befall him as a result of having to sit at home without remuneration for such a
long period of 45 days . The General Manager then approached the
employer’s attorney and a termination of employment agreement was drafted,
which was presented to the employee in the General Manager’s office on 31
October 2017.
[8] The General Manager explained the draft termination of employment
agreement to the employee, and it was only the two of them in the office when
this happened. In terms of the agreement, the employee’s employment with
the employer would be terminated by voluntary agreement and the employee
would be paid certain amounts of money including an ex -gratia amount of R3
823.21. The employee was happy with the agreement and the two of them
signed the agreement. They then walked to the office of the employer’s
Human Resources official for her to sign the agreement as a witness. During
this process, the employee only had two concerns, namely receiving the
payment in terms of the agreement and whether he would receive his UIF
benefits.
[9] The employee then waited for approximately one hour in order to receive the
payment that was to be made in terms of the termination of employment
agreement. The employee received his UIF documents.
[10] A few days later, during November 2017, the employee referred an unfair
[10] A few days later, during November 2017, the employee referred an unfair
dismissal dispute to the Bargaining Council. The matter was allocated to the
Commissioner to arbitrate.
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[11] The arbitration hearing proceeded on 28 June 2018 and 23 January 2019. On
the first day, the employee presented his case and he was a single witness.
On the second day, the employer presented its case through the testimony of
its General Manager, who was also a single witness.
[12] The employee did not dispute that he signed the termination of employment
agreement. Instead, he said he did not understand what he was signing as he
thought he was signing in order for him to get paid while on leave.
[13] On the other hand, the General Manager ’s testimony was in line with the
background I have set out above. When he was cross -examined, the
employee did not dispute his testimony nor put his version to him regarding
material issues. In particular, the employee did not state that he lacked an
understanding of the agreement he signed, in order to give the General
Manager an opportunity to respond to that version. The employee did not say
that he disagreed with the General Manager’s testimony that on several
occasions he had said he wanted to resign, or that he had difficulty travelling
between work and his home due to the long distance. The employee did not
dispute that he had been paid in terms of the agreement and that there was a
discussion about UIF on the day he signed the agreement.
[14] Despite the employee’s failure to put his version to the employer’s witness,
the Commissioner issued the arbitration award that is the subject of the
review application in this matter, finding that the employee had been
dismissed. The Commissioner found that the employee had been induced by
misrepresentation into concluding the agreement and that the employee did
not understand the agreement due to his low level of education. The
Commissioner further found that the employee’s dismissal was unfair both
substantively and procedurally. The Commissioner ordered the employer to
reinstate the employee with back-pay.
[15] Unsatisfied with the arbitration award, the employer has launched an
[15] Unsatisfied with the arbitration award, the employer has launched an
application for an order reviewing and setting aside the arbitration award on
the ground that the Commissioner effectively should have found that the
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employee was not dismissed. The employer alleges that the Commissioner’s
decision was unreasonable.
[16] During argument before me, the employer argued that the termination of
employment agreement has never been set aside and the employee would
have to approach a Court of law if he wanted to set it aside. Further, in
argument before me the employee did not take issue with the adequacy of the
record in circumstances where the entire testimony of the employer’s witness
given on the second day of the arbitration hearing was properly transcribed
but the parties had to reconstruct the evidence of the employee given on the
first day of the arbitration hearing. The reconstruction took place two years
after the arbitration hearing and the parties had to rely on the Commissioner’s
handwritten notes which, when it came to the employer’s cross-examination of
the employee, only recorded the answers that the employee gave and not the
questions that were asked.
Analysis
[17] Despite the fact that the record in this matter is sufficient for me to make a
final determination of the issues, it is concerning to me that this is yet another
matter in which the parties had to reconstruct the record. Clearly the parties
did not have their own recordings of the arbitration proceedings, which would
have significantly improved the quality of the record. In my experience, there
are still some Commissioners who do not allow parties to record arbitration
proceedings despite their knowledge of the difficulties of having to reconstruct
arbitration records in cases where their recordings have been lost. The
recording of arbitration proceedings by litigants who appear before
Commissioners ought to be a matter of entitlement as they are party to those
proceedings, and Commissioners ought to encourage litigants who appear
before them to record and store their recordings in order to ensure that there
are back -up recordings when the official recordings of the Commissioners
are back -up recordings when the official recordings of the Commissioners
become destroyed or lost. Perhaps the rules for the conduct of arbitrations
should be amended to include this right of litigants to record as this may get
rid of the problem of having to remit cases to the CCMA or Bargaining
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Councils due to inadequate records caused by the loss or destruction of
official recordings by Commissioners or the said dispute resolution fora.
[18] The test for review in cases where the existence of dismissal is in dispute is
whether the Commissioner’s decision was correct. In the current matter the
issue is whether the Commissioner was correct when he found that the
employee was dismissed, despite a termination of employment agreement
that was concluded between the parties . This position has recently been
confirmed by the Constitutional Court in Maleka v Boyce NO and Others
1
where the following was stated:
“[53] The Labour Court and Labour Appeal Court have, with great
consistency, held that whether there has been a dismissal speaks
directly to the jurisdiction of the CCMA to entertain the dispute. The
CCMA, as a general rule, cannot determine its own jurisdiction. It can,
however, make a determination for its convenience. This position can
be traced back to the old Labour Appeal Court in respect of the then
Industrial Court. It is only a court of law that can determine whether
the CCMA has jurisdiction in a particular matter, the effect of which is
that a decision by the CCMA which implicates its jurisdiction is subject
to review by the Labour Court on objectively justifiable grounds”.
[19] The Court in this current matter is, thus, empowered to determine afresh the
issue of the existence of dismissal, based on the evidence contained in the
record. It matters not that the employer’s grounds of review refer to the
standard of reasonableness, as in truth the employer challenges the existence
of dismissal which is by nature a jurisdictional issue.
[20] Section 192 of the Labour Relations Act (LRA)
2 provides that “ in any
proceedings concerning any dismissal, the employee must establish the
existence of the dismissal ”. This means that the onus rests on the employee
to prove that he was dismissed.
to prove that he was dismissed.
1 Maleka v Boyce NO and Others (CCT 175/23) [2026] ZACC 7 (24 February 2026) at para 53.
2 Act 66 of 1995.
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[21] As the arbitration proceedings were conducted in the form of a trial in this
matter, factual disputes had to be determined based on the balance of
probabilities.
3
[22] The arbitration award reflects the following reasoning:
“29. The parties had divergent versions in as far the way the dismissal or
termination of employment occurred. It was the applicant’s argument
that he did not understand what he was signing for as Gouws had
misrepresented the facts by informing him that he was signing for his
leave days and he was going to be paid for staying at home, as
initially he had been informed that he would be placed on an unpaid
leave of 45 days. The respondent on the other hand argued that
dismissal never occurred but that the applicant signed a voluntary
settlement agreement. It was explained to him and he was happy to
sign. A question that arises is which of the two versions is more
probable”.
[23] It is not probable that the General Manager informed the employee that the
agreement that was being signed was about the employer changing its mind
and deciding to pay the employee while he would be sitting at home and not
tendering his services due to having tested positive for cannabis at no fault of
the employer. Indeed, it would not have been businesslike for the employer to
conduct its affairs in this manner. There was absolutely no reason for the
General Manager to lie to the employee by informing him that he was signing
for his leave days to be paid for the 45 days’ period while he would not be
rendering his services to the employer , as the General Manager could simply
have allowed him to sit at home without pay for that period at no cost to the
employer. There was no evidence that the General Manager or the employer
wanted the employee out at all cost, by hook or by crook. On the contrary, the
evidence was that the employee’s consistent failure to arrive on time at work
was tolerated and more or less accepted over a long period of time. What
was tolerated and more or less accepted over a long period of time. What
makes this version of the employee even more improbable is that it is
3 See: Workforce Staffing (Pty) Ltd v Mjoli and Another (JA32/23) [2024] ZALAC 9 (11 April 2024) at
paras 23 and 24. See also: SFW Group Ltd and another v Martell et Cie and others 2003 (1) SA 11
(SCA) at para 5.
8
undisputed that there was a discussion about UIF around the time of the
signing of the agreement, which discussion could only relate to the
termination of employment.
[24] It is more probable that the employee was in favour of a termination of his
employment, consistent with his communicated desire to resign. It seems he
knew that he would not receive UIF benefits if he resigned and he was happy
to sign the termination of employment agreement as it would help him receive
his UIF benefits over and above the payment he would receive in terms of the
agreement he signed.
[25] The Commissioner correctly referred to the following passage from the Labour
Court matter of Masilela v Leonard Dingler (Pty) Ltd,
4 where it held that :
“the credibility of the witnesses and the probability and improbability of what
they say should not be regarded as separate enquiries to be considered
piecemeal. They are part of a single investigation into the acceptability or
otherwise of the respondent’s version, an investigation where questions of
demeanour and impressions are measured against the contents of a witness’
evidence, where the importance of any discrepancies or contradictions is
assessed and where a particular story is tested against facts that cannot be
disputed and against the inherent probabilities, so that at the end of the day
one can say with conviction that one version is more probable and should be
accepted, and that therefore the other version is false and may be rejected
with safety”.
[26] However, the Commissioner failed to have regard to the part of that judgment
that relates to the duty of a litigant to put his version to his opponent ’s
witnesses. In this regard, the Court stated the following:
“[28] … It is trite that if a party wishes to lead evidence to contradict an
opposing witness, he should first cross -examine him upon the facts
that he intends to prove in contradiction, to give the witness an
opportunity for explanation. Similarly if the court is to be asked to
opportunity for explanation. Similarly if the court is to be asked to
disbelieve a witness, he should be cross -examined upon the matters
4 Masilela v Leonard Dingler (Pty) Ltd [2004] 4 BLLR 381 (LC); (2004) 25 ILJ 544 (LC). at para 29.
9
that it will be alleged make his evidence unworthy of credit. In Small v
Smith 1954 (3) SA 434 (SWA) Claassen J said at 438:
“… It is grossly unfair and improper to let a witness's evidence go
unchallenged in cross-examination and afterwards argue that he must
be disbelieved”.5
[27] In President of the Republic of South Africa and Others v SARFU and
Others,6 the Constitutional Court held that:
“[61] … If a point in dispute is left unchallenged in cross -examination, the
party calling the witness is entitled to assume that the unchallenged
witness's testimony is accepted as correct. This rule was enunciated
by the House of Lords in Browne v Dunn and has been adopted and
consistently followed by our courts”.
[28] The employee in this current matter failed to put his version to the employer’s
witness. As stated above, the employee did not put to the General Manager
that the latter had informed him that the agreement was about the payment of
leave days during the 45 days’ period when he would be away from work. The
employee did not put to the General Manager that there was no discussion
about UIF around the time the agreement was signed. The employee did not
put to the General Manager that he did not mention any desire to resign due
to the long distance he was travelling between is home and the workplace.
Any version regarding these propositions cannot be accepted as it was not
put to the employer’s witness.
[29] Rejecting the employee’s version due to it not being put to the employer’s
witness and it being improbable means the parties are left with the settlement
agreement that they signed. I agree with the employer’s contention that the
settlement agreement is binding on the parties as it was never set aside.
[30] The agreement could only be set aside by a Court with competent jurisdiction.
The Bargaining Council did not have the power to set the agreement aside,
and the Commissioner acting under the auspices of the Bargaining Council
5 Ibid at para 28.
and the Commissioner acting under the auspices of the Bargaining Council
5 Ibid at para 28.
6 President of the Republic of South Africa and Others v South African Rugby Football Union and
Others 2000 (1) SA 11999 (10) BCLR 1059 (CC), 2000 (1) SA 1 at para 61.
10
did not in fact set aside the agreement. This means that the Commissioner
had to abide by the well -established principle that agreements are binding
until validly set aside on grounds recognised by the law of contract. As the
Constitutional Court held in MEC for Health, Eastern Cape and Another v
Kirland Investments (Pty) Ltd,
7 “[t]he courts alone, and not public officials, are
the arbiters of legality”. Indeed, there are many reported judgments of matters
where litigants have approached the Courts to set aside agreements
concluded in the context of labour relations.
8
[31] In light of the above, the employee and the employer signed a termination of
employment agreement that is binding on them, which means the employee
was not dismissed. The facts that the employer’s Human Resources official
did not initial each page of the agreement and only signed after the General
Manager and the employee had signed in her absence are not relevant
because a contract is not concluded with a witness and the employee did not
dispute that he signed the agreement.
[32] The employer’s review application, thus, stands to be upheld.
Costs
[33] The general rule is that costs do not follow the result in this Court , and there
are no exceptional grounds that justify a deviation from this rule in this matter.
[34] In the premises, the following order is made:
Order
7 MEC for Health, Eastern Cape and Another v Kirland Investments (Pty) Ltd 2014 (3) SA 481 (CC) at
para 103.
8 For example: Gbenga-Oluwatoye v Reckitt Benckiser South Africa (Pty) Ltd and Another (2016) 37
ILJ 2723 (CC).
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1. The arbitration award of the second respondent, issued under the
auspices of the third respondent and bearing case number
GAJB24745-17 is reviewed and set aside.
2. The said arbitration award is replaced by an order that:
“1. The first respondent was not dismissed by the applicant; and
2. The first respondent’s referral of an unfair dismissal dispute
against the applicant is dismissed.”
3. There is no order as to costs.
_______________________
VG Mkwibiso
Acting Judge of the Labour Court of South Africa
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Appearances:
For Applicant : Ms L ynsey Foot of Crawford Attorneys
(Correspondent Attorney)
Instructed by : Lancaster Kungoane Attorneys
For Third Respondent : Mr Rudolf Kuhn
Instructed by : SASLAW Pro Bono Office, Johannesburg