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[2026] ZALCJHB 156
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Mqaka v Howitz N.O. and Others (JR1124/23) [2026] ZALCJHB 156 (8 May 2026)
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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE
NO
:
JR1124/23
(1)
Reportable: NO
(2)
Of interest to other Judges: NO
In the matter between:
NONKULULEKO
MQAKA
Applicant
and
MICHAEL
HOWITZ
NO
F
irst Respondent
COMMISSION FOR
CONCILATION,
MEDIATION
AND ARBITRATION
Second Respondent
MOTOR
INDUSTRY BARGAINING COUNCIL
Third Respondent
Heard: 5 March 2026
Delivered: 8 May 2026
Headnote: Review of
arbitration award ~ commissioner committing several material errors
including irregularly admitting hearsay
evidence ~ award unreasonable
~ award reviewed, set aside, and substituted with finding that the
dismissal was substantively unfair
~ applicant reinstated.
JUDGMENT
DANIELS
J
Introduction
[1]
Until her dismissal on 23 March 2022, the
applicant was employed by the third respondent, the Motor Industry
Bargaining Council
(hereafter “the MIBCO” or “the
employer”) as its General Manager: Finance. The applicant
challenged the
fairness of her dismissal on both procedure and
substance. The first respondent (hereafter “the commissioner”)
issued
an arbitration award (hereafter “the award”)
finding that her dismissal was fair in all respects. The applicant
seeks
to review and set aside the award.
Material facts
[2]
The
applicant was a very senior manager within the finance department of
MIBCO.
[1]
The MIBCO notified her
of disciplinary charges against her on or about 28 June 2021. The
notice identified five separate charges,
which contained sub-charges.
[3]
At
her disciplinary hearing, MIBCO withdrew the first charge and
abandoned part of charge 3(d). The chairperson dismissed charges
2(a), 2(b), 3(c) and 4(c).
[2]
The following charges were relevant to her dismissal: 2(c), 3(a),
3(b), part of 3(d), 4(a) and 4(b). The chairperson found that
charge
5 (destruction of the trust relationship) could not be considered a
charge, given that it did not relate to misconduct but
was the
consequence of misconduct.
[3]
The chairperson found the applicant guilty of the following charges:
·
Charge 2(c): She interfered with the
Covid19 regulatory process when one of your employees, Maggie, was
confirmed positive for Covid19.
Instead of conducting proper
investigations in her department she intimidated a member of the task
team (Ithabeleng) and demanded
to know why she mentioned the
confirmed laboratory case in her departmental communication.
·
Charge 3(a): She failed to require Tshepo
to declare his business as per policies.
·
Charge 3(b): She failed to discipline
Tshepo and his team leader for non-adherence to the workplace plan
and the health and safety
laws for entering an isolation room and
sitting with a clinical case which exposed other employees to risk.
It further contravened
the Disaster Management Act and the workplace
plan.
·
Charge 3(d): She left journals for 2018 –
2019 and 2019 – 2020 open. This poses a huge risk in the MIBCO
financials
and audit as they are open to fraud and/or dishonest
conduct taking place.
·
Charge 4(a): She disrespected colleagues by
interfering in their work during the Avis tender investigation,
intimidated them, and
barred them from retrieving files necessary to
conclude the investigation, abusing her powers.
·
Charge 4(b): She mistreated employees which
stirred up hostility between employees and management.
The
arbitration
[4]
The following evidence was presented to the
commissioner:
4.1
Mr
Jaco Lessing
[4]
(hereafter
“Jaco”) an official of the employer organisation which
represented the third respondent in the disciplinary
hearing. Jaco
testified that the disciplinary hearing took seventeen days over
eighteen months, during which time the applicant
was suspended on
full pay. Jaco denied that any of the charges were vague and asserted
that the applicant never requested clarification
of the charges,
despite being legally represented at the disciplinary hearing.
4.2
Ms Lilian Ntoagae (“Lillian”)
the MIBCO human resources manager testified as follows.
4.2.1
She had a difficult relationship with the
applicant and at one point a senior executive was called in to
mediate between the two
of them.
4.2.2
According
to Lillian, the applicant was obliged to investigate whether her
subordinate, Mr Tshepo Molefe (“Tshepo”),
had declared
his private business to the MIBCO. If Tshepo had not declared his
business in terms of the policy, the ‘Code
of Business Ethics,’
the applicant was obliged to discipline him. During cross examination
(“cross”) it was put
to Lillian that the applicant was
not aware that Tshepo had not declared his business interests, to
which Lillian replied that
she should have checked. It was put to
Lillian that the policy required that Tshepo make the declaration.
[5]
Lillian testified that the applicant, as a manager, was required to
support human resources and provide it with information. Notably
Lillian did not suggest that human resources was unaware that Tshepo
had not made a declaration of interests. It was put to Lillian
that
other managers were also aware that Tshepo was running his own
business, which she could not deny.
4.2.3
Lillian testified that the applicant
hindered the investigation of the Avis tender by delaying the
disclosure of tender documentation
to external auditors.
4.2.4
Lillian testified that the applicant was
controlling and demanding and, in short, the applicant was a bully.
4.2.5
Lillian
testified that Ms Ithabaleng Mphole (“Ithabaleng”)
complained to her that she was unjustly accused, by the applicant,
of
revealing to staff that Ms Maggie Pooe (“Maggie”) had
tested positive for the coronavirus. The applicant asked Lillian
to
investigate if Ithabaleng committed misconduct by revealing Maggie’s
identity. It was put to Lillian that Maggie complained
to the
applicant
[6]
and this prompted
her to request that Lillian investigate.
4.2.6
Lillian
conceded that, during the pandemic, management decided to ask
employees for their written consent to reveal their names.
Notably,
Lillian did not suggest that Maggie had signed a consent form.
[7]
4.2.7
Lillian testified that, after applicant’s
request for an investigation, she spoke sternly to Ithabaleng and
asked for a report.
Ithabaleng reported that she had not informed
staff that Maggie tested positive. They were already aware of this.
4.2.8
It
was put to Lillian that the applicant had not met with Ithabaleng and
could not have intimidated her. Lillian testified that
the email,
[8]
from the applicant to her, asking her to investigate Ithabaleng’s
conduct, constituted the intimidation.
[9]
Lillian testified that she forwarded the applicant’s email to
Ithabaleng.
[10]
4.2.9
Lillian
testified that another employee (referred to only as “Kgomotso”)
[11]
reported that Tshepo had entered the isolation room when Ms Mary
Malete (“Mary”) was in the room with Ms Maggie Pooe
(“Maggie”), who was feeling sick.
4.2.10
Lillian
testified that Tshepo was not permitted to enter the isolation room
when Mary was already there with Maggie. Lillian conceded
that there
was no written rule
[12]
indicating the maximum number of people who could enter the isolation
room at the same time, but it was obvious from the term “isolation.”
It was put to Lillian that Tshepo was masked when he entered the
room, which she could not deny.
[13]
It was put to Lillian that the room was big enough to permit social
distancing for all three of the individuals.
4.2.11
Most senior managers, including the
applicant and Lillian, were not present when the isolation room
incident occurred.
4.2.12
Lilian testified that she received a call
from the applicant, asking for guidance as to what should happen
because Maggie arrived
at the office, appeared sick, and was taken to
the isolation room.
4.2.13
Lillian
conceded that the applicant had a discretion as to whether to
discipline staff in her department.
[14]
However, in her view, the applicant should have taken action against
Tshepo, even if this was only a reprimand.
[15]
Notably, even though Lillian was also aware there were three
individuals in the isolation room at the same time, she did not say
that she suggested to the applicant that she ought to take action.
Nor did Lillian explain why she did not take any action herself.
The
commissioner commented that, as head of human resources, Lillian
could have acted.
[16]
Lillian
did not respond to the comment.
4.2.14
Lillian
conceded that charge 4 related to an alleged failure to disclose
dishonest conduct (even though the substance of the charge
was
unrelated). Lillian conceded that, to her knowledge, the applicant
was honest.
[17]
4.2.15
Under
cross, Lillian conceded that the applicant had a clean record at the
time of her dismissal.
[18]
She
also conceded that the applicant had not lodged any grievances
against her subordinates.
4.3
Mr
Marwaan Davids (“Marwaan”) the industry compliance and
training manager, testified next. Marwaan was also manager
for health
and safety. Marwaan testified that initially he worked well with the
applicant, but then things soured and eventually
he laid a grievance
against her. Marwaan testified that the applicant had laid a
grievance against one of her own subordinates
and this was her method
intimidating them. Under cross, it was put to Marwaan that Tshepo and
Mary were sanitised and wearing PPE
when they entered the isolation
room, which he could not deny. Although Tshepo contracted the
coronavirus after her entered the
isolation room, this was more than
two weeks after the incident and probably unrelated to his entering
the isolation room with
Maggie.
[19]
Marwaan testified that the isolation room could accommodate three
people at most, but it would be difficult for them to maintain
a
distance of 1.5 metres.
[20]
It
was put to him that the isolation room was 5.5m x 5.5m which he could
not deny.
[21]
It was put to
him that the manager on duty, Tshepo, went into the room to see if
Maggie could be assisted with transport to take
her home. Marwaan
conceded that the manager on duty should assist with getting the sick
employee home.
[22]
4.4
Ms Tlalane Kocha (“Tlalane”),
the internal audit manager, testified as follows:
4.4.1
She assisted with an external audit into
the MIBCO’s contract to procure vehicles from Avis. Though the
applicant sat on the
Audit and Risk Committee with her, the applicant
played no role in appointing the external auditors.
4.4.2
Tlalane explained that the audit was
intended to start and complete within one month. She did not explain
the need to complete the
audit within a month. Under cross, it was
put to Tlalane that the applicant was unaware of the period allocated
for the audit,
which she could not dispute. It was put to Tlalane
that the audit commenced about one year after the Board decided to
conduct an
audit, something she could not dispute.
4.4.3
Tlalane
requested certain documentation from the applicant, who promised to
assist her.
[23]
The applicant,
believing the documents were with the Board, referred Tlalane to the
secretary to the Board, Ms Khensani Mohapi
(“Khensani”)
who in turn referred her to Ms Lucia Buda (“Buda”). Buda,
who worked in the finance department,
told Tlalane that the documents
were in a box underneath her desk. Tlalane walked to the finance
department and removed the box.
Despite the presence of other
employees in the department, Tlalane did not speak to any of them
before removing the box. She received
an email from Mary, who
requested that she identify the documents in the box. The applicant
telephoned her, demanding to know who
gave her the authority to
remove the box. In chief, Tlalane testified that the applicant
instructed her to return the files. Under
cross, her evidence on this
aspect was unclear.
[24]
The
applicant called for an investigation as to why the documents were
taken from the finance department without her authority.
4.4.4
Although the documents were supplied to the
auditor, the applicant had delayed the audit by about two weeks.
Tlalane did not testify
when the audit was finalised, nor did she
testify that the employer was prejudiced.
4.4.5
Tlalane
testified that, besides the applicant, Khensani also shouted at her
and behaved unprofessionally.
[25]
Tlalane recorded this in two emails.
[26]
4.4.6
In
another email, addressed to Khensani, Tlalane noted that when
documents are removed from the finance department someone must
see
what has been removed.
[27]
4.4.7
Under cross, it was put to Tlalane that the
applicant did not know what documents had been removed from the
department and missing
documents could result in qualified audits,
which she could not dispute.
4.5
Ms Ithabaleng Mphole (“Ithabaleng”),
a senior practitioner in the human resources department, testified
next. Ithabaleng
testified that:
4.5.1
After being informed Maggie tested positive
for the coronavirus, she met with various departments, including
‘client services’
and ‘returns.’ In returns,
staff asked her about Maggie, they were already aware that she tested
positive. She did
not reveal Maggie’s identity.
4.5.2
Lillian
contacted Ithabaleng and told her that the applicant requested an
investigation of her conduct. She was intimidated because
of the
applicant’s seniority. She did not see the applicant’s
email at the time and only saw it during the arbitration.
[28]
Ithabaleng did not testify that the applicant made any threat to harm
her person or her property.
4.5.3
The applicant accused Ithabaleng of
informing staff that, if they had been in contact with Maggie, they
should be tested. The applicant
was upset that Maggie’s
identity had been disclosed. However, it was necessary to disclose
her identity because the coronavirus
was spread through social
interaction.
4.5.4
It
was put to Ithabaleng, during cross, Marwaan sent an email
[29]
to management stating that the identity of infected employees should
not be disclosed in open communications. Ithabaleng said that
she had
not seen that email.
4.5.5
The applicant should have disciplined
Tshepo for entering the isolation room. Mary, a team leader, and the
health and safety representative,
was permitted in the room, but she
should not have allowed Tshepo to enter. She too did not explain why
human resources did not
take any action against Tshepo.
4.5.6
Ithabaleng testified that the applicant
threatened to lay grievances against her subordinates, which was a
means to intimidate them.
4.5.7
Ithabaleng testified that employees had
resigned because of the applicant. She testified that the applicant
would sometimes walk
past them without greeting them.
4.5.8
Under
cross, Ithabaleng conceded that the applicant was a good performer,
and that her duties were substantial.
[30]
4.6
Prior
to calling its next witness, Jaco advised the commissioner that “…
we
say that posting a journal, is you finalise a journal. It has been
finalised, but it has not been protected yet
.”
[31]
The parties, together with the commissioner, debated the need to
produce the journals to the commission. The matter was debated
although a subpoena had been issued, by the applicant, to produce the
journals. The employer’s representative refused to
produce the
journals and, initially, argued that it was impractical to do so.
Later, Jaco indicated that the journals (to be more
accurate this
should refer to journal periods) had all been closed and there was no
point in producing the journals.
[32]
4.7
Mr
Werner Taute (“Taute”) was not introduced by the third
respondent as an expert witness, in terms of the Rules of
the CCMA,
though he was referred to as an expert during the arbitration.
[33]
Taute had knowledge and experience of IT systems, particularly the
Sage X3 accounting system. He did not testify that he possessed
financial expertise but stated that he was aware of the “financial
accounting rules.”
[34]
Despite his absence of accounting expertise, Taute testified that
journals entries may be amended after posting, and this could
lead to
fraudulent activities. Journal periods should be closed at least
thirty days
[35]
after the end
of accounting periods (monthly) so that journal entries cannot be
changed. Taute, a consultant, testified that, during
2021, he was
brought in by MIBCO to close off various journal entries. He found
that there were hundreds of journal periods that
had not been closed.
Taute testified that, on Sage X3, there was a finalised button that
the applicant, or her team, were supposed
to push to ensure that the
journal period was finalised or closed. If the button was not pushed
the account was in an active or
temporary status. Taute testified
that the responsible person to close off journal periods is the
financial manager or the chief
financial officer.
[36]
Under cross, it was put to him that at the MIBCO closing off the
journal periods was the responsibility of the IT department.
[37]
Taute had no knowledge of the MIBCO procedures before 2021 (the
applicant was suspended in 2020) when he was brought in. Taute
testified that there is a report known as the Cloper report
[38]
that should be used at the end of every month to determine whether
there are any transactions that remain open and need to be closed.
He
testified that the applicant did not use the Cloper report. In
chief,
[39]
Taute testified
that the auditors were unhappy because the journal periods were not
closed off.
[40]
However, under
cross, Taute refused to disclose why the auditors were unhappy.
4.8
The applicant, Ms Nonkululeko Mqaqa
(“Mqaqa”) testified as follows:
4.8.1
She
was not personally responsible for closing off the journal
periods.
[41]
Two employees
worked directly under her namely a clerk, and a team leader. She
testified that she was not qualified accountant,
but she held
technical qualifications that were the equivalent of Bachelor of
Commerce degree.
4.8.2
She
treated journal periods as being closed after posting because the act
of posting alters the trial balance (whereas the closing
the journal
periods does not). Furthermore, changes cannot be made to posted
journal entries in the absence of a further journal
entry.
[42]
In the MIBCO the practice was that journal periods were kept open
until the AGM had adopted the financial statements. She had done
this
for many years and there had never been any complaints from the
auditors.
[43]
She therefore
did not need to push the button marked “finalized” to
prevent changes being made.
4.8.3
She did not use the Cloper reports but used
other methods to validate and safeguard the journal entries.
4.8.4
Under
her guidance, MIBCO received clean audits whereas there were many
problems before her.
[44]
There
were no complaints of fraudulent or dishonest conduct while she was
financial manager.
4.8.5
She never directly confronted Ithabaleng
(about revealing Maggie’s identity) and her email (which was
alleged to be intimidating)
was sent to Lillian, not Ithabaleng. She
denied intimidating Ithabaleng.
4.8.6
Marwaan sent an email to management that
personal information should not be shared to avoid stigma and protect
privacy. Maggie did
not consent to her identity being disclosed and
complained to her about Ithabaleng’s conduct. She was obliged
to assist Maggie
after the complaint.
4.8.7
She
exercised her discretion against taking disciplinary action against
Tshepo because, as a manager, he entered the isolation room
to find
out if Maggie required transport home.
[45]
Tshepo was simply trying to help. She telephoned Lillian for
guidance, but Lillian had offered nothing concrete. In addition,
there was no rule against Tshepo entering the isolation room when
others were there already. Furthermore, Tshepo and Mary were both
masked and the isolation room was large enough to accommodate them
all safely. Their conduct was not risky.
4.8.8
The MIBCO policies required that staff
declare their own business interests to human resources. She did not
know that Tshepo had
not done so when he was employed. The applicant
testified that she was under no duty to investigate whether Tshepo
had disclosed
his business interests. Several other managers were
also aware that Tshepo had private business interests.
4.8.9
Tshepo
asked her for permission to start at 10h00 because he had to travel
from Tembisa and experienced difficulties with traffic.
She agreed
that he could work flexitime.
[46]
4.8.10
She did not obstruct the Avis audit. She
needed to remain detached, and neutral, because she may have to chair
hearings arising
from the audit. She believed the documents required
for the audit were with Khensani and offered to assist Tlalane to get
them.
She objected to the unilateral removal of (unidentified)
financial documents from her department because this could have led
to
qualified audits. She was entitled to reprimand Tlalane, who was
her subordinate at the time.
Legal principles
[5]
The
arbitration and the arbitration award both constitute administrative
action. Section 33(1) of the Constitution requires that
the arbitral
process, and the outcome, must be lawful, reasonable, and
procedurally fair. It is in this context that the review
test
applicable to awards of the CCMA and Bargaining Councils, was
formulated by the Constitutional Court as follows:
is
the
arbitration award one which no reasonable commissioner could reach on
the material before him or her
?
[47]
This is known as the “reasonableness test.”
[6]
As
to what is reasonable, this must be determined by the circumstances
of each case. The court must consider factors such as the
nature of
the decision, the identity and expertise of the decision-maker, the
range of factors relevant to the decision, the reasons
given for the
decision, the nature of the competing interests
involved
and the impact of the decision on the lives and well-being of those
affected.
[48]
[7]
It
is important to remember that reasonableness embraces a wide range of
outcomes several of which may be reasonable.
[49]
The reasonableness of the outcome must be evaluated not solely on the
reasons given by the commissioner, but on all the evidence.
[50]
[8]
Where
a commissioner fails to apply his mind to the material issues, this
will usually indicate that the outcome is unreasonable
or that the
nature of the enquiry was misconceived. However, when a mistake of
fact or law does occur, what matters is its materiality
– and
whether it had a distorting effect on the outcome.
[51]
[9]
More
recently, the Constitutional Court, in
Vodacom
(Pty) Ltd v Makate and another
[52]
(“
Vodacom
”)
held:
“
The
duty of proper consideration is an
integral component of the fair hearing right
.
The founding constitutional value of the rule of law and section 34
of the Bill of Rights require, in my view, that a
court
should have regard to all material evidence and all material
submissions bearing on the issues it must decide. And the court
must
bring its reasoning to bear on those material issues and reach a
conclusion on them
. The evaluation of
the evidence and reasoning may – as I say – be erroneous,
but there cannot be a fair hearing in
compliance with the rule of law
and section 34 if proper consideration of the matter before the court
has not occurred
.”
(own emphasis)
[10]
Given that the reasons provided for the
award acts as the first indication of whether the evidence and the
submissions received
proper consideration by the commissioner,
Vodacom
held that:
“
the
reasons should deal with the substantial points which have been
raised; include findings on material questions of fact; refer
to the
evidence or other material upon which those findings are based; and
provide an intelligible explanation of the process of
reasoning that
has led the judge from the evidence to the findings and from the
findings to the ultimate conclusion
.”
Grounds of review and
analysis
[11]
The applicant alleges that the commissioner
committed numerous material errors, which led to an unreasonable
outcome.
[12]
The
applicant submits that the commissioner erred by finding that the
applicant intimidated Ithabaleng. First, she argues, her request
for
an investigation can never be intimidation because the alleged
intimidation is based solely on a subjective emotional state.
Second,
she argues, the conduct fell outside of the definition of
intimidation in the disciplinary code.
[53]
Third, she argues, the commissioner failed to take into consideration
that her email (demanding an investigation) was not seen
by
Ithabaleng before the arbitration.
[13]
In
my view, the submission has merit. The commissioner failed to engage
with the definition of intimidation. In general, intimidation
requires an unlawful threat of harm to either person or property,
with the intention of causing fear.
[54]
In addition, the test of whether the conduct was intimidating is
objective. On the employer’s own version, the applicant
made no
threat to cause harm to the person or property of Ithabaleng.
Instead, the commissioner relied solely on whether the applicant’s
email instilled fear in Ithabaleng. The commissioner did not consider
the evidence that the alleged victim only had sight of the
email
(which allegedly constituted intimidation) at arbitration. The
commissioner did not grapple with the definition of intimidation
in
the employer’s disciplinary code. In the result, the
commissioner’s analysis of the issue was superficial and, in
my
view, unreasonable. The evidence did not establish any threat,
coercion, abuse of authority or conduct capable of inducing fear.
[14]
The applicant submits that the commissioner
erred by failing to consider whether the applicant was obliged to
investigate whether
Tshepo had disclosed his business interests to
human resources. The commissioner should have considered that Tshepo
was employed
when the Code of Business Ethics was in effect - which
required him to submit a declaration of interests to human resources
when
he was employed. Secondly, line managers have no such duty
because it is the duty of human resources to request a declaration of
interests.
[15]
This submission also has merit. The
commissioner avoided proper engagement with the issue by stating: “
A
manager has the duty to continuously check-up on subordinates, to
ensure that they are not breaking the rules of the institution
.”
The policy, the Code of Business Ethics, places the duty to declare
business interests squarely on the employees themselves.
The evidence
revealed that Tshepo was obliged to submit a declaration of interests
to the human resources department upon his employment.
A reasonable
decisionmaker would have applied his mind to the Code and concluded
that the primary responsibility of ensuring compliance
lies with
human resources. However, the commissioner ignored the evidence and,
in consequence, his findings regarding the issue
were unreasonable.
[16]
The applicant submits that the commissioner
erred by not engaging with whether a rule existed which prevented
more than two individuals
from entering the isolation room, and
whether the applicant was aware of such a rule. The applicant submits
that the commissioner
erred by neglecting her testimony that Mary and
Tshepo were wearing masks when they entered the isolation room. In
addition, submits
the applicant, the commissioner erred by ignoring
evidence that Maggie had not tested positive for the coronavirus at
that time.
In my view, these submissions also have merit.
[17]
Once again, it is apparent that the
commissioner did not engage with the material evidence and
submissions. The commissioner states
that the rule (prohibiting entry
into the isolation room by more than two people) was apparent from
the term “isolation.”
This overlooked the testimony of
the health and safety manager that three people could enter the
isolation room though it might
be difficult to maintain a safe
distance. The commissioner did not consider whether Tshepo was
sitting in the isolation room, which
was denied. Importantly, given
the undisputed evidence that the isolation room was 5.5m x 5.5m, the
commissioner ought to have
considered whether it was possible for the
three individuals to maintain a safe distance from each other.
[18]
The applicant submits the commissioner
erred in admitting hearsay evidence that she caused two individuals
to resign. Furthermore,
such evidence related to charge 2(a) which
was withdrawn. In that charge, the employer alleged that the
applicant went to great
lengths to get rid of employees “
which
created an unharmonious working relationship which led to some of
these employees resigning
.”
Neither of the employees, who allegedly resigned because of the
applicant, testified. Given that the evidence was hearsay,
it should
not have been admitted absent an application in terms of section
3(1)(c) of the Law of Evidence Amendment Act No. 45
of 1988 (“LEAA”).
Despite this, this evidence was taken into consideration, as is
apparent from paragraph 119 of the
award.
[19]
In
Exxaro
Coal (Pty)
Ltd
v Chipana and others
[55]
and
Goldplat
Recovery (Pty) Ltd v AMCU obo Maluleke and others
[56]
the
Labour Appeal Court warned that hearsay evidence is not admissible
unless admitted in the interest of justice following an application
of LEAA. The appeal court warned that the CCMA is not at liberty to
ignore the rules of evidence simply because it is a tribunal
with a
mandate to expeditiously dispose of disputes. The appeal court held
that commissioners must be alert to the introduction
of hearsay
evidence and may not remain passive. In the circumstances, the
admission of the hearsay evidence by the commissioner
constituted an
irregularity.
[20]
The
applicant submits the commissioner, without any proper consideration,
accepted the evidence of Taute (over that of the applicant)
that
posting of journal entries, and closing of journal periods, are
significantly different. The commissioner faced two irreconcilable
versions as to whether the act of posting was effectively final. The
applicant testified that a new journal entry was necessary
to amend
an earlier entry that had been posted. It was common cause that Taute
was not an accountant, or a financial expert, though
he had
significant knowledge of the Sage X3 accounting software. By
contrast, the evidence was that the applicant held qualifications
which could be equated with a Bachelor of Commerce degree, and more
than twenty years of experience in finance. Despite this stark
contrast in the knowledge of accounting processes, the commissioner
resolved the factual dispute by simply stating that Taute’s
version just “made sense”.
[57]
The commissioner conducted no analysis of the probabilities
[58]
as illustrated by his failure to consider the applicant’s
undisputed testimony that she had used the same method for many
years, that the MIBCO had clean audits under her watch, and her
method was accepted by the auditors. This failure to consider the
material evidence had a significant distorting effect on the outcome.
[21]
The applicant submits that the commissioner
ignored her undisputed testimony that the practice in the MIBCO was
that the accounting
periods would only be closed after the annual
financial statements were approved at the Annual General Meeting. All
Taute could
say in response was that this was not ‘best
practice.’ However, Taute could not testify about the practice
before he
became involved in the MIBCO - after the suspension of the
applicant. Furthermore, Taute’s evidence about ‘best
practice’
related to accounting practices, an area in which he
held no expertise.
[22]
The
applicant gave testimony, which was not disputed, that she was not
directly involved with the processing of journals and that
her
subordinates, who were personally responsible for such tasks, were
not disciplined. The commissioner failed to consider this
testimony
when assessing whether the employer applied discipline consistently.
The Labour Relations Act No. 66 of 1995
[59]
(“LRA”) requires commissioners to consider whether the
rule, which the dismissed employee allegedly broke, was consistently
applied. Section 203(3) requires any person interpreting or applying
the LRA to consider any relevant code of good practice. In
the
circumstances, it is apparent that the commissioner failed in his
duty to consider whether the employer had applied discipline
consistently.
[23]
The applicant submits that the commissioner
erred by failing to grapple with the evidence that Tlalane had
removed unidentified
files from the finance department, in the
applicant’s absence, and without her authorisation. The
commissioner ignored the
evidence that no files were missing, all the
files were handed over, the audit was completed, and the employer
suffered no prejudice.
In addition, the commissioner did not consider
the potentially serious consequences of unidentified files being
removed from the
finance department without a handover, he failed to
consider that the applicant had undertaken to get the files to
Tlalane, he
failed to consider that the audit was delayed for no more
than two weeks, and he failed to consider that the applicant was
unaware
of the time period allocated to the audit. I accept the
submission. These failures indicate, collectively, that the
commissioner
failed in his duty to consider all the material evidence
and submissions with bearing on the issue. Had the commissioner
applied
his mind to the material evidence, he could not have
concluded that the applicant had “interfered” with the
audit and
barred the disclosure of documents to the auditor. In the
result, the commissioner’s conduct and findings were
unreasonable.
[24]
The applicant submits that the commissioner
erred by finding that the applicant stirred up hostility between
management and employees,
and mistreated or bullied employees, when
there was inadequate evidence to justify such finding.
[25]
Bullying
is a species of harassment, and in certain circumstances may
intersect with discriminatory conduct. It relates to conduct
that has
the effect
of
undermining an employee’s right to dignity and equality. The
Code of Good Practice on the Prevention and Elimination of
Harassment
in the Workplace
[60]
underscores the need for employers to create a safe, healthy, and
respectful work environment. Bullying can negatively impact the
victim’s mental wellbeing, as well as his or her performance at
work. That said, it is important to bear in mind that branding
an
employee a bully could jeopardize his or her livelihood. It is in
this context that we ought to consider the evidence that the
employer
relied on, for its submission that the applicant mistreated employees
and engaged in bullying:
25.1
In
relation to the audit, Tlalane testified that she was shouted at, in
an unprofessional manner, by both the applicant and Khensani.
Despite
this, Tlalane laid no grievance against the applicant. Tlalane
testified that she hardly ever interacts with the applicant.
Her
manager, Lillian, testified that she had no knowledge of Ithabaleng
being intimidated by the applicant.
[61]
25.2
Ithabaleng testified that she was often
intimidated by the applicant but did not testify about any incidents
of intimidation apart
from the applicant’s request that her
conduct be investigated. Ithabaleng has never laid a grievance
against the applicant.
She had not seen the email (which allegedly
constituted intimidation) until the arbitration.
25.3
Marwaan, as previously mentioned, is a
senior manager. Indeed the evidence suggested that he was the
applicant’s senior. Marwaan
testified that he had a good
relationship with the applicant until he felt that he was not
receiving adequate support from her.
Marwaan laid a grievance against
the applicant, but he did not elaborate on the precise nature of the
grievance. Marwaan did not
allege that the applicant bullied him.
25.4
Lillian
is also a senior manager. She did not suggest that she was junior to
the applicant. Lillian testified that she had difficulties
with the
applicant, and they requested an executive of the MIBCO to
mediate.
[62]
Lillian did not
testify that the applicant had bullied her.
25.5
The evidence of employees resigning from
the MIBCO constituted hearsay evidence and was not admissible absent
an application under
LEAA.
25.6
The applicant testified that she is stern
and does not seek to make friends at work. The applicant testified
that, as a senior manager,
who must enforce rules and policies, it
was natural that she was not popular.
[26]
In my view, the totality of the evidence
was insufficient to justify a finding that she mistreated employees,
bullied employees,
or stirred up hostility between employees and
management. Before making his finding, the commissioner did not
engage with the evidence.
Accordingly, the commissioner’s
finding that the applicant was guilty of charge 4(b) was
unreasonable.
Conclusion
[27]
For the reasons set out above, the review
application must succeed, and the award must be set aside. The award
is not reasonable
in relation to the totality of the evidence
presented to the commissioner. There being a complete record before
me, there is no
reason to refer the dispute back to the second
respondent for rehearing. In the interest of the efficient resolution
of employment
disputes, it is appropriate to substitute the award
with the court’s own finding based on the evidence.
[28]
Without unnecessarily repeating the
evidence canvassed above, I find as follows:
28.1
The third respondent failed to prove that
the applicant was guilty of the misconduct alleged in charge 2(c). As
a manager, the applicant
was entitled to, and required to, take up
the privacy complaint from Maggie. This did not constitute
“interference”
in the Covid19 regulatory processes. As
earlier explained, the evidence did not establish that the applicant
intimidated Ithabaleng.
The conduct fell well short of the
established meaning of intimidation.
28.2
The third respondent did not prove that the
applicant was guilty of the misconduct alleged in charge 3(a). The
applicant was under
no duty to investigate whether Tshepo had
declared his business interests. She was unaware that he had not done
so when he was
employed. The declaration of interests was a human
resources function, and the duty fell on it to ensure compliance.
Human resources
must have been aware that Tshepo was not compliant.
28.3
The third respondent failed to prove that
the applicant was guilty of the misconduct alleged in charge 3(b).
The evidence did not
establish any rule, written or otherwise, which
prohibited three employees from entering the isolation room at the
same time. The
evidence did not establish that Tshepo was sitting in
the isolation room, nor did it establish the period he was present.
The evidence
did not establish that Tshepo or the team leader failed
to use masks. The evidence did not establish that the individuals in
the
isolation room failed to maintain a safe distance from each
other.
28.4
The third respondent failed to prove that
the applicant was guilty of the misconduct alleged in charge 3(d).
The evidence failed
to show that there was a rule governing the time
that journal periods must be closed off. The evidence failed to show
that the
practice of posting journal entries, and treating them as
closed, was unsafe or risky. Even if the third respondent was
entitled
to insist on a more conservative accounting methodology, the
evidence failed to establish that the applicant breached a known
rule.
The evidence failed to show that the finance department, and
not the IT department, was responsible for closing off the journal
periods. In addition, the third respondent failed to prove that it
applied discipline fairly and consistently as between the applicant
and those directly responsible for processing the journal periods,
taking into consideration their respective levels of authority.
28.5
The third respondent did not prove that the
applicant was guilty of the misconduct alleged in charge 4(a). The
evidence failed to
establish that the applicant disrespected
colleagues, intimidated them, or barred them from retrieving files
necessary to conclude
an audit. The applicant was entitled to, and
indeed required to, safeguard and protect the files in the finance
department. The
applicant’s insistence on proper handover
procedures did not amount to barring colleagues from accessing
information necessary
for the audit.
28.6
The third respondent did not prove that the
applicant was guilty of the misconduct in charge 4(b). This is
canvassed in full in
paragraphs 25 and 26 above.
[29]
As explained above, on the totality of the
evidence before the commissioner, the third respondent failed to
establish any misconduct
on the part of the applicant. In the
circumstances, the dismissal of the applicant was substantively
unfair.
[30]
The
applicant’s challenge to the procedural fairness of her
dismissal related primarily to the lack of particularity in the
charge sheet. Despite this, the applicant adequately defended
herself, over approximately eighteen months, using an attorney. She
could easily have requested further clarity both before, and during,
the disciplinary process. In my view, the procedure adopted
was
fair.
[63]
[31]
Although
reinstatement is the primary remedy for a substantively unfair
dismissal, before awarding reinstatement the commissioner
or court
must first consider the suitability of the remedies in section 193(2)
of the LRA.
[64]
In
Booi
v Amathole District Municipality & others
[65]
the Constitutional Court held that the intolerability of a working
relationship must be considered before making any order of
reinstatement. This applies even when the misconduct could not be
proven. The apex court held that the threshold of intolerability
is
high and requires more than the mere suggestion that the relationship
is difficult, fraught, or sour. Intolerability must not
be confused
with ‘incompatibility’ which triggers a different enquiry
with different remedies. The evidentiary burden
to establish
intolerability is weightier where the dismissed employee has been
absolved of any misconduct, as is the case here.
[32]
The third respondent’s witnesses
testified that the employment relationship had broken down
irretrievably. The applicant disputed
this. This amounted to no more
than broad contradictory statements. To establish intolerability, the
employer must present weighty
reasons, with tangible evidence. The
third respondent presented no such reasons or evidence. Accordingly,
it is fair and appropriate
to award the primary remedy of
reinstatement.
[33]
When
determining the retrospectivity of reinstatement, the Constitutional
Court in
Equity
Aviation Services (Pty) Ltd v CCMA & others
[66]
held
that the arbitrator or court may consider the period between the
dismissal and the judgment, whether the dismissed employee
was
without income, and whether an employer will be unjustly financially
burdened if retrospective reinstatement is ordered.
[34]
In the exercise of my discretion, I must
consider all the relevant facts and circumstances. The third
respondent dismissed the applicant
on 23 March 2022, at which time
she earned R112 591, 00 per month. The arbitration award was
issued on 23 May 2023 and all
the necessary papers in the review were
filed by 30 October 2023. However, the review was only enrolled for
argument more than
two years later, on 5 March 2026. Given the
lengthy systemic delays, the substantial financial burden involved,
and the absence
of full evidence regarding mitigation, partial
retrospectivity is just and equitable. In the circumstances, it is
appropriate and
fair to order reinstatement with effect from 30
October 2023, when the review was ripe for hearing.
[35]
In this court, costs do not follow the
result. I see no reason in law and fairness to award costs. In the
circumstances, each party
must bear their own costs.
Order
[36]
In the result, I make an order as follows:
36.1
The arbitration award issued by the first
respondent under CCMA reference GAJB5618-22 is reviewed and set
aside,
36.2
The finding of the first respondent is
substituted with a ruling that: (i) the dismissal of the applicant by
the third respondent
is substantively unfair but procedurally fair,
and (ii) the applicant is reinstated into the employ of the third
respondent with
effect from 30 October 2023 from which date she is
entitled to remuneration and benefits.
36.3
The applicant is directed to tender her
services to the third respondent within ten (10) days.
RN
Daniels
Judge of the Labour
Court of South Africa
For the Applicant:
Adv Zito, Makhanya
Attorneys
For the Third
Respondent
M Chavoos, ENS Attorneys
[1]
At
arbitration, the respondent assumed that the applicant was the most
senior employee within the finance department, however
the applicant
testified that she reported to another manager.
[2]
Pleadings
bundle p33, disciplinary chairperson’s findings at para 21
[3]
Pleadings
bundle p85, disciplinary chairperson’s findings at para 47
[4]
T
he
witnesses are referred to by their first names, solely for the sake
of convenience, to ensure consistency with the arbitration
record.
[5]
Code of Business Ethics, clause 6.1, Record V3 p260. Clause 13
states that all employees are required to complete the declaration
of interests prior to commencing employment and are required to
ensure that the declaration stays up to date for the duration
of
their employment.
[6]
Record
V12
lines 1 – 19
[7]
The document is titled ‘letter of consent’ (Record V4
p383). The applicant testified that Maggie had not consented.
[8]
See Record V4 p377 and Record V11 p1077 (lines 9 – 21). The
email alleged to constitute intimidation, addressed by the
applicant
to Lillian, states:
“
Dear
Lillian,
It
has been reported to me that there were meetings held by Ithabaleng
during the week where Maggie’s name was made public
to
everyone as a person who tested positive for covid-19 and as a
reason MIBCO was closed this week. I am really aggrieved by
how
Maggie’s case has been treated by HR and I have urged the
committee to investigate. I am now not urging but asking
you to
investigate Maggie’s case even the way the email was written
by Ithabaleng addressed to all MIBCO staff was really
not
acceptable. I have asked for another investigation to be done by HR
on an unrelated matter it has been 3 weeks I have heard
nothing from
HR about the investigation, I hope this one will be given priority
and the seriousness it deserves or else I will
be left with no
choice but to report this to AAC and ask them for an investigation
.”
[9]
Initially,
Lillian testified that the applicant had intimidated Ithabaleng
during a meeting (Record V11 p1099).
[10]
Record V12, p1139 lines 7 – 13; this was contradicted by
Ithabaleng who testified that she did not see the email before
the
arbitration.
[11]
This individual, referred to only as Kgomotso, did not testify.
[12]
Record
V11,
p1065 lines 9 – 18
[13]
Record
V11
p1041 lines 12 – 21
[14]
Record
V11
p1070 lines 24 – 25
[15]
Record V10, p970 lines 7 – 20
[16]
Record
V11,
p1056 lines 13 - 17
[17]
Record V10, p992
[18]
Record V10, p988 lines 9 – 12
[19]
In an email addressed to the applicant, dated 6 July 2020, Marwaan
states that it is unlikely that Tshepo was infected by Maggie
in the
isolation room. See Record V4 p374
[20]
Record
V15,
p1484 lines 4 – 6
[21]
Record
V16
p1575 lines 14 – 19; Note that the applicant requested an in
loco inspection of the isolation room which the employer
rejected as
irrelevant. See Record Vol. 11 p1087, V11 p1091
[22]
Record
V16
p1579 lines 12 – 16
[23]
Record
V17
p1606 lines 20 – 25
[24]
The
applicant disputed that she directed Tlalane to return the
documents. When the witness was challenged on this evidence under
cross, she explained that it was a confusing time for her. See
Record
V18
p1720 lines 5 – 20
[25]
Record
V17
lines 4 – 9
[26]
Record
V3
pp284 – 286
[27]
Record
V3,
p288
[28]
Record
V19
p1838 lines 1 – 10, V20 lines 1 – 25; Note that
Lillian’s evidence that she forwarded the applicant’s
email to Ithabaleng was inconsistent with this version.
[29]
Record
V4 p375
[30]
Record V21 p2079 lines 17 – 22
[31]
Record
V21
p2081 lines 19 – 21
[32]
Record
V22
p2197 lines 1 – 10
[33]
Record
V20
p1983 (lines 10 – 21), p1985 (lines 1 – 3)
[34]
Record
V22
pp2169 - 2170
[35]
Record
V22
p2182 lines 3 – 7
[36]
Record
V22
pp2185 lines 11 – 21
[37]
Record
V23
p2233 lines 1 – 19
[38]
This
is derived from the words “Close Period.”
[39]
Record
V22
p2192
[40]
This was clearly hearsay evidence, as defined by the
Law of Evidence
Amendment Act No. 45 of 1988
.
[41]
Record
V23
p2284 line 18
[42]
Record
V23
p2287 lines 10 – 22
[43]
Record
V24
p2303 lines 9 – 20
[44]
Record
V24
p2312
[45]
Record
V24
p2397 (line 20) to p2398 (line 5)
[46]
Record V24 p2381
[47]
Sidumo
and another v Rustenburg Platinum Mines Ltd & others
(2007) 28 ILJ 2405 (CC) at para [110]
[48]
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Tourism and others
[2004] ZACC 15
;
2004
(4) SA 490
(CC) at para
[45]
[49]
Goldfields
Mining SA (Pty) Ltd v CCMA and others
(2014)
35 ILJ 943 (LAC) at para [14]
[50]
Fidelity
Cash Management Service v CCMA & others
(2008)
29 ILJ 964 (LAC) at para [102]
[51]
See
Head
of the Department of Education v Mofokeng
[2015]
1 BLLR 50
(LAC) at para [33]
[52]
(CCT
51/24)
[2025] ZACC 13
(31 July 2025) at para [45]
[53]
See
Record V11 p1100 (lines 19 – 25). The disciplinary code
defines intimidation as “
Any
threat to kill, assault or cause damage to any employee,
client/customer or visitor of the Council with the intention to
compel or induce such employee, client/ customer or visitor to
….”
[54]
See
Solidarity
on behalf of Kruger v Transnet SOC Ltd t/a Transnet National Ports
Authority & Others
(2021)
42 ILJ 852 (LAC); See also
Moyo
and another v Minister of Police and others
2020 (1) SACR 373
(CC) where the Constitutional Court grappled with
the definition of intimidation in the Intimidation Act No. 72 of
1982.
[55]
(2019)
40 ILJ 2485 (LAC) at para [24]
[56]
(JA02/25;
JA09/25)
[2026] ZALAC 18
(29 April 2026)
at
para [35]
[57]
A
rbitration
award at paras [131] and [134]
[58]
When faced with disputes of fact, the court, or in this case, the
commissioner, must have regard to the probabilities. However,
where
the probabilities fail to indicate where the truth lies, recourse
must be to an estimate of relative credibility apart
from the
probabilities. See
Workforce Staffing
(Pty) Ltd v Mjoli & another
(2024)
45 ILJ 1627 (LAC) at para [24]
[59]
See
Item
7(b)(iii) of Schedule 8 Code of Good Practice: Dismissal. The Code
of Good Practice was in effect at the time of the arbitration.
It
has since been replaced by Code of Practice: Dismissal published on
4 September 2025 in
GG
53294
GN
3470.
[60]
Published under the Employment Equity Act,
GG
46056
R1890 dated 18 March 2022
[61]
Record
V11 p1100 lines 3 – 10
[62]
The applicant testified that they resolved their differences through
this process.
[63]
In
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & others
(
2006)
27 ILJ 1644 (LC) the court signalled that, absent a collective
agreement indicating otherwise, a fair procedure generally
requires
the conducting of an investigation, notification to the employee of
any misconduct allegations flowing from that investigation,
and an
opportunity, within a reasonable time, to respond to the allegations
with the assistance of a trade union representative
or fellow
employee.
[64]
Section 193(2)(c) does not arise because the employer presented no
evidence that it was not reasonably practicable to reinstate
or
re-employ. Section 193(2)(a) does not arise because the applicant
seeks reinstatement. Section 193(2)(d) does not arise because
the
dismissal of the applicant was substantively unfair, not
procedurally unfair.
[65]
(2022) 43 ILJ 91 (CC)
[66]
(2008)
29
ILJ
2507
(CC)
at para [43]