1
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
CASE NO: JR940/2020
In the matter between:
SERITI COAL (PTY) LTD t/a NEW DENMARK COLLIERY Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION First Respondent
AND ARBITRATION
MPIKO SOLOMON NO Second Respondent
RASMENI GODFREY Third Respondent
NATIONAL UNION OF MINEWORKERS Fourth Respondent
Heard: 4 March 2026
Delivered: 18 May 2026
Headnote: Application to review and set aside arbitration award ~ grounds of review
established ~ award unreasonable in relation to totality of the evidence ~ award set
aside and substituted.
(1) Reportable: NO
(2) Of interest to other Judges: NO
Signature Date
2
JUDGMENT
DANIELS J
Introduction
[1] The applicant employed the third respondent until his dismissal on 13 August
2019. The third respondent challenged the fairness of his dismissal by the first
respondent. The second respondent (“the commissioner”) found that the third
respondent committed the misconduct for which he was dismissed, but the
sanction of dismissal was unfair, and he should be reinstated with ten months’
remuneration as back pay. Ironically, the commissioner failed to impose any
sanction on the third respondent for the misconduct. The quantum of back pay
was later revised through a variation ruling. The applicant contends that the
arbitration award was unreasonable and ought to be reviewed and set aside.
Background facts
[2] The third respondent , Mr. Godfrey Rasmeni (“Rasmeni”), was employed by
the applicant as a mine overseer, a managerial position to whom the shift
bosses reported. He was responsible for designated work areas, including the
Shosholoza section.
[3] Mine overseer s are legal appointments required by the Mine Health and
Safety Act 1 (“MHSA”) and are critical for ensuring the control and
management of underground mining operations, particularly health and
safety. The third respondent’s letter of appointment requires that he diligently
and competently observe and enforce discipline of all those under his control
and supervision. He was also required to identify all risks and ensure that
employees are not exposed to health and safety hazards. His duties, as
1 No. 29 of 1996 as amended.
3
mandated by legislation, included the daily inspection and the signature of the
shift boss’s logbook (“logbook”). The logbook is a key instrument for informing
the mine overseer of problems encountered and any work required to ensure
employee safety.
[4] Rasmeni reported to his shaft or section manager, Mr. Lwane. However, i n
respect of health and safety, he reported directly to the general manager.
[5] On 10 April 2019, Rasmeni was summoned to a disciplinary hearing to face
two broad disciplinary offenses, namely, his alleged failure to observe and
enforce compliance in his section and his alleged dereliction of duty and
responsibility. Rasmeni pleaded not guilty to both.
[6] At the disciplinary hearing, evidence was presented that Rasmeni:
6.1 Failed to take timeous steps to investigate or act against the shift bosses
in his section, where they were not adhering to safety standards.
6.2 Failed to inspect and sign the logbook daily.
6.3 Failed to correct the deviations from safety standards in the section he
was responsible for , where the strata control officer had reported
deviations.
[7] On 3 April 2019, the strata control officer, Mr . Lucky Nkosi (“Nkosi”),
conducted a routine audit of the Shosholoza section of the mine. Nkosi found
that:
7.1 The work area known as “split thirty-one” had not been properly
supported.
7.2 Metal equipment known as “ Oslo straps” should have been installed on
the roof in “split thirty-one”.
4
7.3 So-called “telltales”2 should have been i nstalled in the intersection
between splits thirty and thirty-one.
7.4 The roof of split thirty-one required a further six roof bolts.
7.5 The work area of split thirty-one was unsafe but had not been barricaded.
7.6 The “brow” of split thirty-one was unsupported.
7.7 The “support sign off book ,” which is supposed to be kept at the waiting
place in split thirty-one, could not be found there.
[8] The audit report indicated that Rasmeni had committed to taking the remedial
steps required for split thirty-one by 10 April 2019. The deviations indicated in
his report were Class A deviations , material deviations that must be fixed
before employment in that area may resume.
[9] Following the disciplinary hearing, Rasmeni was found guilty of the charges.
In addition, the chairperson indicated that Rasmeni was dishonest for
falsifying a logbook to state that he had conducted an inspection of split thirty-
one on 1 April 2019, when he had conducted it on 10 April 2019.
Arbitration proceedings
[10] Prior to the evidence, the commissioner asked the third respondent if he was
amenable to being granted compensation without reinstatement, to which he
responded positively.3
[11] The applicant, as the employer, called two witnesses. I deal with their
evidence in turn. Mr. Xolani Lwane (“Lwane”) testified first. He testified that:
2 The evidence indicated that, in mining, “telltales” are devices used to monitor roof movement and
give advance warning of roof fall or collapse, allowing for timely support and adjustment of roof
supports.
3 Record Transcript Vol. 1, p12
5
11.1 He was employed as a shaft or section manager, to whom the third
respondent reported.
11.2 The third respondent, as the mine overseer, was required to inspect and
sign the shift boss ’s logbook daily, but he had not done so for more than
one week.
11.3 Planning meetings are held with the mine overseers, during which audits
by the strata control officer ( or “rock engineers”) are scheduled. The
audits are scheduled with all stakeholders to ensure that, when they
occur, the strata control officer reports no deviations.
11.4 Nkosi conducted an audit on 3 April and noted various deviations at split
thirty-one, but the third respondent took no action against his subordinates
- until Lwane himself acted against the third respondent. After the audit,
he instructed the third respondent to fix the deviations. 4 Lwane made no
mention of the third respondent giving him any reasons why the deviations
could not be rectified. The deviations included the failure to barricade
unsafe areas. Another deviation was the so -called “support signoff book” 5
was not in the waiting place.6
11.5 The third respondent could not have conducted an inspection on 1 April ,
as he had suggested, because the profile of the rock face 7 differed from
that indicated by the strata control officer .8 In addition , mining was not
possible in split thirty-three on 1 April, and thereafter in split thirty-one on
3 April. Mining occur s in split thirty-one before split thirty-three. At best,
4 Record Transcript Vol. 1, p38 lines 1 - 2
5 It was unclear whether the shift boss logbook is the same thing as the support sign off book.
6 Record Transcript Vol. 1, p44 lines 1 – 5
7 Record Transcript Vol. 1, p113 lines 9 – 11; p134 (lines 16 – 19) to p135 (lines 1 – 5)
8 Record Transcript Vol. 1, p46 lines 1 - 20
6
two full splits could be cut or advanced within a week.9 It was not possible
that the third respondent could have conducted an inspection on 1 April.
11.6 The third respondent was not notified of disciplinary action within two
days, as contemplated by the disciplinary code, because the applicant
wanted the third respondent to address the deviations first. Furthermore,
the applicant required the audit report to be signed by all relevant parties,
including the General Manager.
11.7 The deviations in the audit report were Class A hazards, meaning they
must be addressed urgently. Although notified of the deviations on 3 April,
the third respondent undertook to rectify them by 10 April. Lwane could
not recall if he informed the third respondent that this was too late. Lwane
testified that mining in the area must be stopped until the telltales required
were installed. Failure to install the telltales could lead to fatalities.10
11.8 Lwane testified that the reason other mine overseers were not dismissed
for similar deviations was that those overseers had acted against their
subordinates and held them to account.11
11.9 In respect of another mine overseer, Ms Kgahliso Mokoena (“Mokoena”) ,
she was found guilty of only one charge – failing to inspect and sign the
shift boss’s logbook . She was found not guilty of poor “housekeeping”.12
Mokoena admitted guilt to the charge of failing to inspect and sign the
logbook. She was given a final written warning. Unlike the third
9 Record Transcript Vol. 1, p48 lines 1 – 12; the terminology used (cut and advanced) was not
explained by the witnesses.
10 Record Transcript Vol. 1, p91 lines 16 – 19
11 Record Transcript Vol. 1, p84 lines 1 – 12; p93 lines 17 – 20
12 Record Transcript Vol. 1, p86, the term “housekeeping” is used in the mining context but is not a
minor issue.
7
respondent, Mokoena was not disciplined as a result of an audit by the
strata control officer.13
11.10 By 10 April, the third respondent had not fixed the deviations.
11.11 He was also disciplined for failing to install telltales . An inspector from the
DMR recommended installing telltales on both sides of a slip. 14 The
recommendation was a guideline.15
[12] Mr. Tshepo Bonani (“Bonani”) testified that:
12.1 He was employed by the applicant as a section manager. He chaired the
third respondent's disciplinary hearing.
12.2 The applicant did not dismiss the third respondent for a separate act of
misconduct, gross dishonesty. 16 Instead, during the hearing, he believed
the third respondent had given dishonest testimony.
12.3 The third respondent altered the date of his own inspection from 10 April
to 1 April so that it would appear that he conducted an inspection before
the audit by the strata control officer on 3 April .17 It was improbable that
the third respondent conducted an inspection on 1 April .18 In addition, the
third respondent was dishonest by stating that he was unable to source
safety tools and equipment to quickly fix the deviations.19
13 Record Transcript Vol. 1, p125 lines 1 – 8
14 Record Transcript Vol. 1, p99 lines 3 – 8
15 Record Transcript Vol. 1, p101 lines 1 – 10
16 Record Transcript Vol. 2, p178 lines 10 – 19
17 Record Transcript Vol. 2, p149 lines 1 – 8
18 Record Transcript Vol. 2, p150 (line 17) to p151 (line 9)
19 Record Transcript Vol. 2, p258 lines 10 – 15
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12.4 When Bonani questioned the third respondent about the alleged absence
of safety tools and equipment, the third respondent said he had only
checked with one of the three crews in the section (whether they had the
necessary tools and equipment ) because the other crews were off . That
explanation was false.20 Furthermore, the third respondent had the
authority to source any tools and equipment he required.21
12.5 It takes about a week to cut a split . It was therefore improbable that the
third respondent conducted his inspection on 1 April.22
12.6 He testified about the importance of installing telltales to monitor
movement in the roof. Failure to observe such standards poses a serious
hazard to employees who work underground in that section. The applicant
conducts m ining at an average depth of 200 meters underg round.
Although telltales had not always been used, the applicant decided to use
them after several accidents to mitigate the risk.23 The applicant classified
the failure to use telltales as a Class A hazard. The third respondent's
failure to immediately fix the deviations suggested that he did not
appreciate the risk.
12.7 Bonani testified about the importance of the mine overseer signing the
shift boss’s logbook daily, even though the manager of the mine overseer
is only required to sign it once a week.24
20 Record Transcript Vol. 1, p151 (line 17) to p152 (line 7); V2 p233 lines 3 – 10
21 Record Transcript Vol. 2, p256 lines 15 – 19
22 Record Transcript Vol. 2, p198 lines 1 – 7
23 Record Transcript Vol. 2, p160 lines 1 – 10
24 Record Transcript Vol. 2, p154 (line 1) to p155 (line 9); p159 lines 1 – 5
9
12.8 Mokoena was disciplined and dismissed for different offenses, though the
same broad categories were used . Unlike the third respondent, Mokoena
was found not guilty of any failure to observe and ensure compliance. 25 In
addition, Mokoena acknowledged her mistake and took responsibility for
her conduct.26
[13] The third respondent testified on his own behalf, as follows:
13.1 He did alter the date on his inspection report by changing 10 April to 1
April. He completed the report on 1 April and, in error, wrote 10 April.27
13.2 He did not possess the tools and equipment (couplings and drill steel ) to
immediately fix the deviations. He realized the equipment was missing at
some point earlier and ordered it from mine stores on 26 February 2019. 28
However, the couplings only arrived on 30 April 2019. 29 Realizing he
would not receive the couplings in time , he drove to the North Shaft to
request the couplings and drill steel.30
13.3 Under cross -examination, he stated that after the audit revealed the
deviations, he immediately contacted his shift bosses, and that is when he
discovered the absence of coupling and drill steel on “some other shift”.31
13.4 After he discovered the deviations, he informed his manager, Lwane, that
the telltales were not available. 32 This version was not put to the
25 Record Transcript Vol. 2, p201 lines 7 – 11; V2 p205 lines (4 – 13)
26 Record Transcript Vol. 2, p211 lines 1 – 16; p214 lines 7 – 19; pp252 (line 10) to 252 (line 3)
27 Record Transcript Vol. 3, p275 (line 14) to p277 (line 11)
28 Record Transcript Vol. 3, p283 lines 1 – 8; p286 lines 1 – 4
29 Record Transcript Vol. 3, p288 line 2
30 Record Transcript Vol. 3, p289 lines 14 – 16
31 Record Transcript Vol. 3, p383 lines 11 – 17
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applicant’s witnesses. He confirmed that the installation of telltales was a
grave issue and required immediate attention.33 He also conceded that he
had the necessary means and authority to carry out his responsibilities.34
13.5 To cut a single split takes approximately two days with full shifts and all
the necessary equipment.35
13.6 He confirmed that the law required him to inspect and sign the shift boss's
logbook daily.36 But there were periods when he did so weekly.37
13.7 Initially, he testified that his previous manager required only that he
inspect and sign the logbook weekly.38 This changed when he testified :
“… but the previous manager said I need my logbooks here and I need
they must be signed every day.”39
13.8 He testified that his new manager (Lwane) did not instruct him to sign the
logbook daily but told him to have the book signed and ready for him on
Fridays.40
13.9 He sees shift bosses four out of every five days41 and receives information
about what is happening underground from them.
32 Record Transcript Vol. 3, p318 lines 7 – 13
33 Record Transcript Vol. 3, p342 line 15 to p343 line 5
34 Record Transcript Vol. 3, p371 lines 1 – 7
35 Record Transcript Vol. 3, p298 lines 15 – 19
36 Record Transcript Vol. 3, p308 lines 15 – 16
37 Record Transcript Vol. 3, p303 lines 9 – 18
38 Record Transcript Vol. 3, p308 lines 1 – 10
39 Record Transcript Vol. 3, p2313 lines 9 – 15
40 Record Transcript Vol. 3, p372 lines 9 – 16
41 Record Transcript Vol. 3, p302 lines 11 – 16; p303
11
13.10 The commissioner noted his evidence that deviations are a regular
occurrence.42 At one point, the third respondent testified that deviations
“go with mining.”43
Legal principles
[14] 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?44 This is known as the “reasonableness test.”
[15] 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.45
[16] It is important to remember that reasonableness embraces a wide range of
outcomes, several of which may be reasonable. 46 The reasonableness of the
42 Record Transcript Vol. 3, p366 lines 4 – 6, p367
43 Record Transcript Vol. 3, p378 line 2
44 Sidumo and another v Rustenburg Platinum Mines Ltd & others (2007) 28 ILJ 2405 (CC) at para
[110]
45 Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and others 2004 (4) SA
490 (CC) at para [45]
46 Goldfields Mining SA (Pty) Ltd v CCMA and others (2014) 35 ILJ 943 (LAC) at para [14]
12
outcome must be evaluated not solely on the reasons given by the
commissioner, but on all the evidence.47
[17] 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
inquiry 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.48
[18] More recently, the Constitutional Court, in Vodacom (Pty) Ltd v Makate and
another49 (“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)
[19] Given that the reasons provided for the award act 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
47 Fidelity Cash Management Service v CCMA & others (2008) 29 ILJ 964 (LAC) at para [102]
48 See Head of the Department of Education v Mofokeng [2015] 1 BLLR 50 (LAC) at para [33]
49 (CCT 51/24) [2025] ZACC 13 (31 July 2025) at para [45]
13
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
[20] The applicant submits that the commissioner erred in material respects by
failing to consider important evidence, thereby resulting in an award that no
reasonable decisionmaker could reach on the evidence before him.
[21] The applicant submits that the commissioner acted irrationally and
unreasonably in finding, on the one hand, that the third respondent was not
responsible for the deviations and, on the other hand, that the third
respondent was obliged to observe and enforce the law, codes of practice,
and procedures . The submission has merit . The evidence showed that the
third respondent was a senior manager with the authority, resources, and
obligation to prevent safety deviations and , if they do occur, to quickly fix
them. If the commissioner applied his mind to the issues and the evidence, it
would have been clear that deviations such as the failure to install adequate
telltales and roof bolts were human failings for which the mine overseer must
accept responsibility if this occurred in his area of responsibility.
[22] The applicant submits that the commissioner failed to have regard to the
importance of the rule that was breached, that breach of the rules constitutes
a criminal offense, and that the MHSA imposes strict liability for non -
compliance. The applicant contends that the commissioner failed to have
regard to the hazards created by the third respondent’s non -compliance with
the rules. The commissioner failed to consider that, in this context, the third
respondent’s excuse that he was given more than one week to f ix deviations
was invalid. This submission has force. It is apparent from the award that the
commissioner did not recognize the relevance of the third respondent’s
obligations under the legislation . If the commissioner applied his mind to the
obligations under the legislation . If the commissioner applied his mind to the
issues and the evidence, it would have been plain that the mine overseer is
not permitted to blame others for his failure to take urgent action.
14
[23] The applicant submits that the commissioner failed to have regard to
Mbonani's testimony that the third respondent failed to raise , with the
applicant, his alleged lack of equipment . In addition, the applicant contends,
the commissioner failed to consider the evidence that the third respondent
could have, but did not, seek the tools or equipment from other sections of the
applicant. It is apparent from the award that the commissioner did not engage
with this evidence. In addition, I note that the third respondent did not , during
the cross-examination of Lwane, suggest that he had informed Lwane that he
lacked the necessary tools and equipment to address the deviations.
[24] The applicant contends that the commissioner demonstrated bias and ought
to have recused himself. The commissioner was unhappy with the applicant’s
representative at arbitration, who had successfully taken a previous arbitration
award that he had issued on review. Before hearing all the evidence, the
commissioner indicated to the applicant that it should not have dismissed the
third respondent. I do not accept the submission. There is nothing on the
record that suggests the commissioner was bitter about the review
application. If the applicant believed that the commissioner was compromised,
it ought to have sought his recusal.
[25] The applicant contends that the commissioner erred by refusing to allow the
applicant to introduce a document into evidence that was relevant and
important, on the basis that it should have been exchanged before the
arbitration commenced. The commissioner failed to consider that the third
respondent would not have been prejudiced by the admission of the
document. I accept that the commissioner erred . While, in general, fairness
dictates that documents to be used by the parties at arbitration should be
exchanged before hand, there is no absolute prohibition on producing a
document during the arbitration itself. Arbitrations before the CCMA are
document during the arbitration itself. Arbitrations before the CCMA are
governed inter alia by section 138 (1) of the Labour Relations Act ,50 (“LRA”),
which states: “The commissioner may conduct the arbitration in a manner that
50 No. 66 of 1995 as amended
15
the commissioner considers appropriate in order to determine the dispute
fairly and quickly, but must deal with the substantial merits of the dispute with
the minimum of legal formalities .” Excessive legal formalities are discouraged
in arbitrations before the CCMA. T he commissioner ought to have considered
why the document was not produced earlier and whether there is any
prejudice to the other party arising from its late production. If prejudice
existed, could this be cured by a procedural ruling – for example, a
postponement, an adjournment, or recalling a witness? In fact, even in our
civil courts, governed by the formal rules of evidence, failure to discover a
document before trial does not automatically result in its exclusion.51
[26] The applicant submits that the commissioner failed to properly apply his mind
to whether it applied discipline inconsistently in that:
26.1 The commissioner found the third respondent guilty of the misconduct for
which he was dismissed.
26.2 The commissioner did not consider that the other two mine overseers,
Mokoena and Lwane, had committed less serious misconduct . Mokoena
was found guilty of failing to sign the shift boss’s logbook daily and
received a final written warning. 52 She was not found guilty of failing to
observe and enforce compliance. Lwane was found guilty of failing to
install a telltale, a recommendation by the mine inspector.
26.3 The commissioner found that Mokoena was guilty of ‘strata deviations’
though no such evidence was tendered.
51 See Rawoot v Marine & Trade Insurance Co Ltd 1980 (1) SA 260 (C)
52 Notably, as a result of the arbitration, the commissioner found that the third respondent had
committed misconduct but received no sanction whatsoever. The commissioner’s failure to impose
any sanction on the third respondent resulted in the inconsistent application of discipline.
16
26.4 The commissioner did not consider the evidence that the other
comparators took steps to fix the deviations without delay.
26.5 The commissioner did not consider that the third respondent failed to
show any remorse or appreciation of his wrongdoing. By contrast with the
comparators, the third respondent did not believe that his failure to sign
the logbook daily was problem atic. Furthermore, the third respondent
suggested that deviations are a natural or inevitable result of mining.
[27] The applicant contends that, if the commissioner had taken all the evidence
into consideration and properly applied his mind, he would not have found that
the applicant applied discipline inconsistently. Before considering the
submission, the legal principles should be restated. It is correct that p arity of
treatment remains a basic tenet of fairness . However, this is not absolute and
inflexible. I n SACCAWU and others v Irvin and Johnson Ltd 53 the appeal
court held:
“Discipline should not be capricious. It is really the perception of bias inherent
in selective discipline that makes it unfair. Where, however one is faced with a
large number of offending employees, the best one can hope for is
reasonable consistency. Some inconsistency is the price to be paid for
flexibility, which requires the exercise of a discretion in each individual case. If
a chairperson conscientiously and honestly, but incorrectly, exercises his or
her discretion in a particular case in a particular way, it would not mean that
there was unfairness to the other employees . It would mean no more than his
or her assessment of the gravity of the disciplinary offence was wrong. It
cannot be fair that other employees profit from that kind of wrong decision. In
a case of a plurality of dismissals, a wrong decision can only be unfair if it is
capricious, or induced by improper motives or, worse, by a discriminating
management policy.”
(own emphasis)
53 (1999) 20 ILJ 2302 (LAC) at para 29
17
[28] Our courts have held that objective differences in the circumstances of each
matter are an important consideration. In Southern Sun Hotel Interests (Pty)
Ltd v CCMA and others54 the court held:
‘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 …’
[29] In Bidserv Industrial Products (Pty) Ltd v CCMA and others 55 the appeal court
noted that while i nconsistency is a factor to be considered in the
determination of the fairness of a dismissal, it is not decisive of the fairness of
the decision to dismiss.
[30] In my view, the commissioner did not consider whether the comparators were
disciplined for the same misconduct or whether the re were material
distinguishing factors. The third respondent was found guilty of serious
misconduct, in addition to failing to inspect and sign the logbook. Unlike the
comparators, the third respondent failed to act urgently. He failed to fix the
deviations. He failed to discipline his subordinates.
[31] The applicant submits that the commissioner erred in treating the inconsistent
application of discipline as decisive of the question of whether the dismissal
was unfair. As was made clear in Bidserv,56 the inconsistent application of
discipline by an employer is not decisive of whether a dismissal was unfair. In
54 (2010) 31 ILJ 452 (LC) at para 10
55 (2017) 38 ILJ 860 (LAC) at para 31
56 Ibid.
18
any event, here, s everal material factors distinguished the third respondent's
misconduct from the comparators'.57
[32] The applicant submits that the commissioner erred by ordering retrospective
reinstatement despite finding that the third respondent had committed serious
misconduct. The commissioner ought to have considered whether
reinstatement was impractical or intolerable and whether compensation was
an appropriate remedy. I agree. The commissioner enquired from the third
respondent at the start of the proceeding whether he would be amenable to
an award of compensation, but this was not considered when reinstatement
was ordered. It is trite that, before awarding reinstatement for a substantively
unfair dismissal , a commissioner must first consider the suitability of the
remedies in s193(2) of the LRA. In Booi v Amathole District Municipality &
others58 the Constitutional C ourt held that the intolerability of a working
relationship must be considered before making any order of reinstatement ,
and this applies even when the misconduct was not proved.
[33] The applicant submits that the commissioner erred by failing to consider that
the delay in taking disciplinary action was no more than seven days (not
significantly longer than the two days contemplated in the disciplinary code )
and by failing to consider that the applicant provided a reasonable explanation
for the delay . In my view, the award does not reflect that the commissioner
engaged with the se issues and applied his mind to the evidence. Before
finding that the procedure was unfair on these grounds , the commissioner
should have explained whether the reasons for the delay were inadequate
and considered whether there was any prejudice to the third respondent . In
fact, the third respondent did not even allege that he suffered any prejudice.
Conclusion
57 See paras 26 and 30 above
58 (2022) 43 ILJ 91 (CC)
19
[34] In the circumstances, for the reasons set out above, the commissioner
ignored material evidence and failed to apply his mind to the issues . He
applied the incorrect legal principles , inter alia, relating to the admission of
documents into evidence, the inconsistent application of discipline, and
remedies for substantive fairness . The award was so unreasonable that no
reasonable decision maker could have arrived at the same outcome on the
totality of the evidence. The award falls to be reviewed and set aside.
[35] Neither party actively pursued costs, and there is no reason in law or fairness
that requires either of them to be mulcted in costs.
[36] The court has the benefit of a full and complete record. It would not aid in the
expeditious resolution of the dispute to refer the matter back to arbitration. In
the circumstances, having reviewed and set aside the award, the court must
determine the dispute itself.
[37] On a balance of probabilities, the third respondent committed the misconduct
for which he was charged. The third respondent confirmed that he had failed
to sign the logbook daily, despite knowledge that the law required him to do
so. This constituted a serious dereliction of his duties because daily inspection
of the logbook is critical to ensuring employees’ safety underground. He never
explained why he failed to act against his subordinates. His evidence that he
could not fix the deviations quickly was weak and contradictory. He was
unclear about the tools and equipment he required , and when he became
aware of the shortfall. Furthermore, on his version, he knew that he lacked the
tools when he committed to fixing the deviations. In addition, the third
respondent had the necessary authority to source tools himself. The evidence
did not demonstrate that the applicant appl ied discipline inconsistently. The
third respondent's misconduct was distinguishable from the comparators . He
third respondent's misconduct was distinguishable from the comparators . He
did not act against his subordinates. He failed to address the deviations
promptly. He did not plead guilty to neglecting to inspect and sign the logbook
daily. It is apparent that the applicant imposed the sanction of dismissal
because there were several serious acts of misconduct , which reflected a
20
pattern of misbehaviour. The continued employment of the third respondent,
particularly given his suggestion that deviations from safety standards were
routine, posed a severe operational risk to the applicant. In De Beers
Consolidated Mines Ltd v Commission for Conciliation, Mediation & Arbitration
& others 59 Conradie JA stated “Dismissal is not an expression of moral
outrage; much less is it an act of vengeance. It is, or should be, a sensible
operational response to risk management in the particular enterprise .” The
view of the third respondent that safety deviations were routine , and the
nonchalant way he approached his duty to inspect and sign the shift boss ’s
logbook, suggests an absence of remorse.
[38] In my view, on the totality of the evidence before the commissioner, the
dismissal of the third respondent was both procedurally and substantively fair.
Order
[39] For the reasons set out above, I make the following order:
39.1 The arbitration award issued by the second respondent is reviewed and
set aside,
39.2 The arbitration award of the second respondent is substituted with a
finding that the third respondent’s dismissal by the applicant was
procedurally and substantively fair.
RN Daniels
Judge of the Labour Court of South Africa
59 (2000) 21 ILJ 1051 (LAC) at para [22]
21
For the applicant
Adv M Van As
Cliffe Dekker Hofmeyr Attorneys
For the third respondent
[ ….. ]