THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR83/24
In the matter between:
SOLIDARITY obo DELPORT, C.R. Applicant
and
STUCKY MOTORS GROUP (PTY) LTD First Respondent
DISPUTE RESOLUTION CENTRE OF THE MOTOR Second Respondent
INDUSTRIES BARGAINING COUNCIL
COMMISSIONER BHEKI KHUMALO N.O Third Respondent
Heard: 30 April 2026
Delivered: 14 May 2026 (This judgment was handed down electronically by
emailing a copy to the parties. The 14 May 2026 is deemed to be the date of
delivery of this judgment).
Summary: Review application – misconduct – principles considered – conduct
of employee actually constituting gross negligence – arbitrator failing to have
proper regard to serious nature of misconduct – finding that dismissal not
appropriate is unreasonable and re viewable – appropriate relief –
compensation.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
JUDGMENT
MHAMBI, AJ
Introduction
[1] The employee a pplicant (hereinafter referred to as “the applicant”) is
represented by Solidarity Trade Union (hereinafter referred to as “Solidarity”).
[2] The applicant , Mr Delport, was employed by the first respondent, Stucky
Motors Group (Pty) Ltd before his dismissal. Aggrieved by his dismissal, the
applicant referred the matter to the Dispute Resolution Centre of the Motor
Industry Bargaining Council, which is the second respondent. Subsequent to
the matter remained unresolved after Conciliation, the matter was then
referred to the arbitration before the third respondent who then made a finding
that the dismissal was both procedurally and substantively fair.
[3] Dissatisfied with the findings of the Commissioners, the applicant brought the
present application in terms of section 145 of the Labour Relations Act 1
(LRA). The applicant sought, inter alia, that the arbitration award issued by the
third respondent under case number MIDB22588 dated 14 December 2023,
be reviewed and set aside. Alternatively, the applicant seeks a substitution of
certain paragraphs of the arbitration award his dismissal be declared
substantively unfair and the first respondent be ordered to reinstate the
applicant alternatively pay him compensation.
[4] The main ground of review is that the third respondent committed a
reviewable error when he found that the dismissal of the applicant was
substantively and procedurally fair.
1 Act 66 of 1995, as amended.
3
Common cause of facts
[5] Mr Delport started employment with the first respondent on 15 January 2021.
[6] Mr Delport was employed as a Group IT Supervisor at the time of his
dismissal. At the time of his dismissal, Mr Delport earned a monthly
remuneration of R29 000 (twenty-nine thousand).
[7] It is common cause that Mr Delport received a notice to attend a disciplinary
hearing on 6 March 2023, requiring his presence at the hearing on 9 March
2023.
[8] It is further common cause that Mr Delport was charged with two counts of
misconduct. The first charge being Gross and Blatant Negligence in execution
of his duties as the first respondent’s alleged that he failed to produce an IT
Asset Registry before the due date of 28 February 2023. The second charge
is insubordination pertaining to the IT Asset Register as the first respondent’s
alleged that he failed to produce the IT Asset Registry before the due date
and alleged when his manager requested the IT Asse t Registry from him, he
behaved in an insubordinate manner towards her.
[9] It is common cause that the applicant was found guilty of insubordination
during the disciplinary hearing and found not guilty of the first charge which
relates to negligence and failure to produce the IT Asset Registry before the
due date of 28 February 2023.
[10] Furthermore, it is common cause that the applicant was dismissed through
the notice on 20 March 2023. It is common cause that following his dismissal,
the applicant then declared a dispute with the second respondent on 14 April
2023 for unfair dismissal dispute.
Commissioner’s key findings
[11] In paragraph 27 of the arbitration award, the Commissioner found that the fact
that the applicant submitted the register on the due date is indicative of
insubordination.
4
[12] Secondly, the finding in respect of insubordination relates to the incident of
altercation between the applicant and Ms Wilander on 10 February 2023 and
the meeting which was held on 15 February 2023 where the applicant was
warned by the directors to refrain from repeating insubordination towards
Willander.
[13] Based on these two incidents, the Commissioner found that the first
respondent proved that the dismissal of the applicant for gross
insubordination was appropriate and fair. This is despite the applicant not
being charged for the incidents of 10 February 2023 and 15 February 2023.
[14] As a result, in paragraph 34 the Commissioner found that the sanction of
dismissal was appropriate.
Grounds for review
[15] As already stated in introduction above, this application is premised on the
grounds that the third respondent committed a reviewable error when he
made a finding and award that the third applicant’s dismissal was
substantively and procedurally fair.
[16] When deciding whether or not to set aside the decision of the third
respondent, the Court is in particular guided by the test applicable to review
applications in terms of section 145 of the LRA.
[17] The Constitutional Court (CC) in Sidumo and another v Rusternburg Platinum
Mines Ltd and others (Sidumo) ,2 held that section 145 of the LRA must be
read so as to ensure that administrative action by the Commission for
Conciliation, Mediation and Arbitration (CCMA) or Bargaining Council is
Constitutionally compliant. It was confirmed by the CC that arbitration awards
are subject to the test of rationality derived from the Constitutional right to fair
administration action3.
[18] The question that arises then is how to measure whether an arbitration award
is rational in the constitutional sense. The Labour Court in Sidumo considered
2 [2007] 12 BLLR 1097 (CC) at p.1101.
3 See: section 33 of the Constitution of the Republic of South Africa, 1996.
5
the review of the commissioner’s award as enunciated by the Labour Appeal
Court in Carephone (Pty) Ltd v Marcus No and others 4 (“Carephone”), where
the following was stated:
“It seems to me that one will never be able to formulate a more specific test
other than, in one way or another, asking the question: is there a rational
objective basis justifying the connection made by the administrative
decisionmaker between the material properly available to him and the
conclusion he or she eventually arrived at? In time only judicial precedent will
be able to give more specific content to the broad concept of justifiability in
the context of the review provisions in the LRA.”
[19] The Supreme Court of Appeal in Sidumo referred with approval to Carephone,
where the application of section 145 and section 158(1)(g) of the LRA was
discussed, and held that the Labour Appeal Court in Carephone was not
prepared to hold that section 158(1)(g) of the LRA created a separate and
more expensive basis of review of the CCMA awards.
[20] The Labour Appeal Court described the approach in Carephone as one of
‘substantive rationality’, likening it to administrative law concepts such as
reasonableness, rationality and proportionality.5
[21] However, the Constitutional Court in Sidumo held that the Carephone test,
which was substantive and involved greater scrutiny than the rationality test
set out in Pharmaceutical Manufacturers Association of SA and another: In re:
Ex Parte President of the Republic of SA and others (“Pharmaceutical
Manufactures”),6 was formulated on the basis of the wording of the
administrative justice provisions of the Constitution at the time, more
particularly, that an award must be justifiable in relation to the reasons given
for it.7
[22] In Pharmaceutical Manufacturers Chaskalson P, writing for the full court, held
as follows:
4 1999 (3) SA 304 (LAC) at para 37.
5 Sidumo supra n. 26 at pp. 1111-1112 paras 38-39.
6 2000 (2) SA 674 (CC).
5 Sidumo supra n. 26 at pp. 1111-1112 paras 38-39.
6 2000 (2) SA 674 (CC).
7 Sidumo supra n.28 at p.1129 para 106.
6
“It is a requirement of the rule of law that the exercise of public power by the
Executive and other functionaries should not be arbitrary. Decisions must be
rationally related to the purpose for which the power was given, otherwise
they are in effect arbitrary and inconsistent with this requirement. It follows
that in order to pass constitutional scrutiny the exercise of public power by the
Executive and other functionaries must, at least, comply with this
requirement. If it does not, it falls short of the standards demanded by our
Constitution for such action.”8
[23] Chaskalson P stressed that the threshold of rationality is a low one:
“The setting of this standard does not mean that the Courts can or opinions of
those in whom the power has been vested. As long as the purpose sought to
be achieved by the exercise of public power is within the authority of the
functionary, and as long as the functionary’s decision, viewed objectively, is
rational, a Court cannot interfere with the decision simply because it
disagrees with it or considers that the power was exercised inappropriately. A
decision that is objectively irrational is likely to be made only rarely but, if this
does occur, a Court has the power to intervene and set aside the irrational
decision.”9
[24] Therefore, it is a natural and inescapable denouement that the process
leading to a decision must also be rational in that it must be rationally related
to the achievement of the purpose for which the power is conferred. As stated
in Democratic Alliance v President of the Republic of South Africa10:
“The means for achieving the purpose for which the power was conferred
must include everything that is done to achieve the purpose. Not only the
decision employed to achieve the purpose, but also everything done in the
process of taking that decision, constitutes means towards the attainment of
the purpose for which the power was conferred.”
[25] Additionally, in Zuma v Democratic Alliance ,11 Navsa ADP stated that a
[25] Additionally, in Zuma v Democratic Alliance ,11 Navsa ADP stated that a
rationality review also covers the process by which the decision is made.
8 Pharmaceutical Manufactures supra n.29 at para 85.
9 Ibid at para 90.
10 2013 (1) SA 248 (CC) at para 36.
11 2018 (1) SA 200 (SCA) at para 82.
7
[26] When applying the principle of rationality, the Constitutional Court in Sidumo
held that the Constitution now affords everyone the right to lawful, reasonable
and procedurally fair administrative action. 12 The standard of reasonableness
accordingly applies to section 145 of the LRA.
[27] According to that test, an administrative decision is reviewable if it is one
which a reasonable decisionmaker could not reach. 13 Although the
reasonableness test blurs the distinction between appeal and review, the
Constitutional Court held, the distinction survives. 14 This means that, when
entertaining reviews, the Labour Court inevitably deals with the merits.
[28] The CC further held that t he danger lies not in such intervention itself, but in
judicial overzealousness which results in judges substituting their views for
those of commissioners.15
[29] In endeavoring to apply the above principles to the third respondent’s award it
is obviously required that the third respondent should have applied his mind to
the facts and the law applicable. The third r espondents failed to properly,
rationally or justifiably apply his mind to the facts and/or the law in this matter.
[30] The issue which I find problematic on the award is how the Commissioner
reached the decision that the first respondent has proved that the applicant
committed a gross misconduct. This decision seems to be informed by two
incidents. The first being the altercation which took place on 10 February 2023
and the second incident which took place on 15 February 2023. It is
unfortunate that both incidents were not part of the charges which were
proffered against the applicant during the disciplinary hearin g, neither was he
charged of any misconduct in respect of these two incidents.
12 Section 33(1) of the Constitution states: “Everyone has a right to administrative action that is lawful,
reasonable and procedurally fair.”
reasonable and procedurally fair.”
13 The CC in Sidumo made reference to Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs
and others 2004 (4) SA 490 (CC) at para 44, and held that the reasonableness standard was dealt
with in the context of section 6(2)(h) of the Promotion of Administrative Justice Act, 3 of 2000 where
O'Regan J said: "(A)n administrative decision will be reviewable if, in Lord Cooke's words, it is one
that a reasonable decisionmaker could not reach".
14 See Sidumo supra n. 30 at para 108.
15 Ibid at paras 109-110.
8
[31] The Commissioner disregarded the record of the disciplinary proceedings
including the charges that were put against the applicant during the
disciplinary hearing. This conduct is contrary to the decision of this
Honourable Court in the case of Department of Home Affairs v General Public
Services Sectoral Bargaining Council and Others,16 wherein the court held as
follows:
“The Commissioner cannot disregard the record of disciplinary proceedings
purely because he is hearing the matter for the first time. The record of
disciplinary proceeding could also be used to assess whether the dismissal of
the employee was effected in accordance with a fair procedure. Most
importantly, the commissioner must test the totality of the evidence submitted
by the employer against the guidelines on dismissal set out in the LRA Code
of Good Practice: Dismissal.”17
[32] It is my view that the third respondent failed to apply his mind fairly and
objectively to the evidence that was led during the arbitration.
[33] Therefore, the third respondent misconceived the nature of the dispute by
failing to assess the evidence of the disciplinary hearing in respect of the
charges and his conduct renders the Arbitration Award defective as defined in
section 145(2) of the LRA.
[34] In the premises, the third respondent took into account an irrelevant
consideration in arriving at th e conclusion that the dismissal was both
procedurally and substantively fair.
[35] There could be no justification for this finding as there was no evidence which
was led during the disciplinary hearing which relate to the two incidents of the
10 February and 15 February 2023. The charge that the applicant was found
guilty of during the disciplinary hearing was insubordination which relate to the
submission of the IT registry.
16 (JR 281/2017) [2019] ZALCJHB 386 (14 August 2019).
17 See also Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits [2015] 5 BLLR 484 (LAC).
9
[36] In the premises, the assessment of evidence by the third respondent was
unreasonable and no decision maker would have arrived at such a
conclusion.
Appropriate relief
[37] In view of my finding above that the decision by the Commissioner to dismiss
the applicant’s claim for unfair dis missal is not a decision that a reasonable
Commissioner would have reached.
[38] I now turn to the question of appropriate relief . Section 193(1) of the LRA
gives the arbitrator or Labour Court discretion to order reinstatement, re -
employment or compensation.
[39] The factors to be taken into account in assessing whether a court should
substitute the decision of the decision maker include:
39.1 where the result is a foregone conclusion and it would be a waste of
time to send the decision back; or
39.2 where further delay would cause unjustifiable prejudice; or
39.3 where the decision-maker showed bias or serious incompetence; or
39.4 where the Court considers itself as well qualified as the original
decision-maker to make the decision.18
[40] Having considered the evidence in toto led during the arbitration proceedings
and the fact that the applicant during the arbitration testified that the
relationship between him and the employer is irretrievably broken down,
reinstatement is therefore not an option.
[41] I am therefore left to consider the option of compensation. The applicant
submitted during the hearing that he seeks compensation of a maximum
period of 12 months which I disagree with. On the other hand, the first
respondent’s representative suggested compensation of three months. The
18 Darson Construction (Pty) Ltd v City of Cape Town 2007 (4) SA 488 (C) at page 501I – 502A.
10
applicant was employed for a short period before his dismissal. It would not be
fair to award maximum compensation.
[42] Having found the above that the decision reached by the Commissioner is
unreasonable, the award falls to be set aside. The Commissioner’s
irregularities are that they result in a misconceived decision which no
reasonable decision maker could reach on the material that was before h im.
In exercising my discretion and given that the complete record of the
arbitration proceedings is before me, I have decided to substitute the
arbitration award rather than remitting the matter back to the CCMA for a fresh
hearing and award compensation as ordered below.
The costs
[43] This Court has a wide discretion in awarding costs. I am of the view that this is
matter where the interest of justice would be best served by making no order
as to costs.
[44] In the premises, the following order is made:
Order
1. The arbitration award issued by the second and third respondents
dated 14 December 2023 under the case number MIDB22588 is
reviewed and set aside in its entirety.
2. The applicant’s dismissal is substantively unfair.
3. The first respondent is ordered to compensate the applicant with full
payment of his salary at the time of dismissal, w hich was R29 000.00
for a period equivalent to six (6) months.
4. The amount is to be paid to the applicant by 25 June 2026.
5. There is no order to cost.
11
_______________________
M. H. Mhambi
Acting Judge of the Labour Court of South Africa
12
Appearances:
For the Applicant : N. Ras
Instructed by : Solidarity
For the Respondent : AS Mengel
Instructed by : Stucky Motors Group (Pty) Ltd