THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 958/22
In the matter between:
NATIONAL NUCLEAR REGULATOR Applicant
and
MARGARET MSOMI MKHOSI First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
JAMES NGOAKO MATSHEKGA NO Third Respondent
Heard: 28 October 2025
Delivered: 28 may 2026
JUDGMENT
MAGANO, AJ
Introduction
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
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[1] This is an application for review of the arbitration award of the Third
Respondent at the auspices of the Commission for Conciliation, Mediation
and Arbitration (CCMA) under case number GTW11362- 21. In terms of the
award the dismissal of the first respondent was found to be both substantively
and procedurally unfair. Based on that finding, the Commissioner awarded six
months’ compensation in the amount of R 825 000 (Eight hundred and twenty
five thousand rand). The applicant seeks an order setting aside the arbitration
award.
Background facts
[2] Prior to the termination of the employment of the first respondent, he was
employed by the applicant in the position of Director Centre for Nuclear Safety
and Security on a fixed term contract for the period 1 February 2017 to 31
January 2020, subject to a six months’ probation period, the probation period
being from 1 February 2017 to 31 July 2017 (the first term of employment).
Towards the end of the fixed term of employment contract the applicant
offered the first respondent another fixed term contract, subject to another six
months’ probation period.
[3] The dispute between the parties that culminated in the dismissal of the first
respondent emanates from and/or relates to the probation of the second term
of employment.
Respondent’s case before the CCMA
[4] At the end of the probation period, and in particular on 12 August 2020 the
first respondent met with her line manager, Mrs Louisa Mpete (Louisa), the
executive director, virtually, during the Covid- 19 pandemic lockdown period.
The purpose of the meeting was to discuss the first respondent’s performance
during the probation period. This meeting and its purpose is not in dispute.
[5] Email correspondence between the first respondent and Louisa on the day
confirm a request from Louisa to the first respondent requesting that she sign
the probation form ASAP as she wanted to finalise it that day. The first
respondent delivered the signed probation form by email to Louisa.
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[6] According to the first respondent Louisa was happy with the first respondent’s
performance on the KPI’s, they agreed and the signature she appended on
the document was the basis of that agreement. However, the applicant made
a U -turn and convened a second performance meeting on 16 August 2020
and upon enquiry for the reason for the second assessment Louisa failed to
provide a response. She did not see the reason for the reassessment. The
applicant sought to extend the first respondent’s probation period. During the
second assessment, the first respondent’s performance rating decreased, her
probation period was extended for six months which she disagreed with.
[7] Importantly the first respondent’s version in this regards is confirmed in
material respect in an email sent by Louisa to the first respondent, dated 09
November 2020 explaining to the first respondent that she provided the first
respondent with feedback of the basis for the probation extension, attached in
the probation form which was furnished to the first respondent, but will
escalate the matter to HR before she signs the second probation form
effectively extending her probation period, according to the first respondent’s
request.
[8] According to the first respondent the issue of extension of probation was not
concluded, pending a meeting with HR, which meeting did not materialize,
until November 2020 when the first respondent was suspended and charged
for misconduct that was not related to the probation period, the disciplinary
process was concluded on 25 May 2021 with a finding of not guilty. The first
respondent contends that on return from suspension, she was asked by
Louisa to sign the probation for which she reminded Louisa that they agreed
to meet with HR first. On 01 September Louisa gave her an ultimatum to
submit the signed probation form by Friday, 3 September 2021. The first
respondent advised Louisa that a meeting was scheduled with HR for
respondent advised Louisa that a meeting was scheduled with HR for
Thursday, 02 September 2021 on teams for 10h00. On Thursday before the
meeting, HR cancelled the meeting, due to an urgent session and another
shortlisting schedule. Louisa was advised accordingly. She responded
advising the first respondent to sign the form as Louisa is concerned that the
first respondent currently doesn’t have any legal contract with the applicant.
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[9] On 08 September 2021 the first respondent received a letter from another
executive, Ms A Simons with the subject matter ‘Discharge from employment
due to refusal to sign probation confirmation’, effectively terminating the first
respondent’s employment contract.
Applicant’s case before the CCMA
[10] The applicant does not deal with the event that culminated in the first
respondent’s signature,
1 neither does the applicant deny the content of the
email but proffers a version that begins with the moderation committee that
took place on 01 July 2020 where the first respondent’s score was reduced.
The applicant contends that the first respondent was advised to follow an
appeal process which she elected not to exercise but instead signed the form
on 13 August 2020 on the part that relates to confirmation of probation rather
than signing on extension of probation. The suspension period is common
cause. According to the applicant on 13 August 2021 on resumption of duty
by the first respondent, Louisa offered to confirm the first respondent’s
employment on a permanent basis. The first respondent again refused to sign
the probation confirmation form. The first respondent instead sought the
intervention of HR which meeting did not materialize. On 08 September 2021
after it became clear that the first respondent was disinclined to accept their
confirmation and to sign the probation form, and long after the probation
period had ended, the applicant terminated the first respondent’s employment.
Grounds of review
[11] The applicant states that the Commissioner is correct that the dismissal was
in dispute. The onus rested on the first respondent to discharge, on a balance
of probabilities that there was a dismissal, once dismissal is established, the
onus shifts to the applicant, the employer to establish that the dismissal was
procedurally and substantively fair. The applicant contends that the
Commissioner has erred on the first leg, which is whether the dismissal was
Commissioner has erred on the first leg, which is whether the dismissal was
established by the first respondent. The Commissioner ought to have found
1 See para 4 supra.
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that there was no obligation on the employer to confirm an employee on
probation.
[12] The applicant further contends that on common cause facts, the first
respondent did not complete the probation period, instead some of the
activities required in the first respondent’s probation contract were executed
by someone else. While the applicant was prepared to confirm the first
respondent’s employment, the applicant wanted the first respondent’s
employment, the applicant wanted the first respondent to agree to the
extension of the probation period and thereafter confirmation of the first
respondent’s permanent employment.
[13] The finding of the Commissioner that a dismissal had occurred, is
unreasonable and irrational as it is not supported by the common cause facts
and on that basis alone, the award falls to be reviewed and set aside.
[14] The applicant further contends that the Commissioner also found that there
was no fair or substantive reason for dismissal. This according to the
applicant is not supported by objective facts. The Commissioner committed a
material error of law and fact and rendered an award that is unreasonable and
irrational. The applicant further attacks the finding that the procedure was
unfair as unreasonable and irrational and not supported by facts.
[15] The applicant also contends that the Commissioner’s award of six months
compensation, when on the undisputed facts the first respondent had
obtained another job from 01 November 2021, is unreasonable. The first
respondent was only out of employment for one month and 22 days.
Paragraphs 88 and 89 of the Award ignored this fact, while compensation is a
solatium, the Commissioner is obliged to take all relevant facts into account,
therefore, two months compensation in the circumstances would have been
fair, reasonable, just and equitable if a proper discretion was exercised.
Contending that the Commissioner did not correctly apply the principle
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enunciated in South African Revenue Services vs CCMA and Others 2, and in
particular paragraph 50 thereof, thus committing gross irregularity
First Respondent’s version on grounds of review
[16] The first respondent denies the dispute centered on whether the first
respondent’s permanent employment status required to be confirmed,
contending that the first respondent’s employment was permanent and could
only be terminated in accordance with the contract of employment. They aver
that the Commissioner correctly identified what was in dispute. The
terminology used in the letter of dismissal is lucid and amounts to a
termination of employment. Clearly an internal disciplinary hearing is
envisaged at termination. The compensation award is just and equitable
relying on Alpha Plant and Services (Pty) Ltd v Simmonds
3, the discretion
should have to factor such issues such as the employer’s conduct, and the
employee’s length of service.
Analysis
[17] In the applicant’s own version, they were pleased with the first respondent’s
performance, and they intended to confirm her permanent employment. It is
not disputed that an assessment was held on 12 August 2020 between the
applicant’s Louisa and the first respondent for the purpose of assessing her
performance. It is also not disputed that the first respondent thereafter
furnished the applicant with a signed probation confirmation form. It is
common cause that the first respondent was not satisfied with the reduction of
her performance scores, and it was agreed that she would be granted an
opportunity to meet with HR for clarity, which never materialized. It is further
common cause that the process was delayed due to the first respondent’s
suspension, on an unrelated matter, and resumed when she returned about a
year later, and that on her return the procedure agreed upon was no longer
respected. Instead, the first respondent was compelled to sign a probation
2 [2017] 1 BLLR 8 (CC) at para 50.
3 [2001] 2 BLLR 261 (LAC)
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form and was advised, despite HR’s unavailability to meet her despite her
endeavours (on her own without assistance from line manager) to arrange
same. She was advised that she didn’t have a legal contract with the
applicant.
Commissioner’s findings
[18] Based on testimony before the Commissioner, he found that the first
respondent could not have been dismissed for poor work performance
because her overall performance was satisfactory as at 12 August 2020
following the moderation committee meeting of 1 July 2020 and Louisa herself
wanted the first respondent’s probation to be confirmed. The first respondent
had further not committed misconduct, neither were there any operational
requirement, which inevitably compelled the Commissioner to conclude that
the dismissal of the first respondent was substantively unfair.
[19] The Commissioner further found that there was nothing in the exchanges
between the parties, having differing views about the probation matter. The
first respondent was justified in having been shocked by the dismissal when
the meeting that was meant to resolve the issue was aborted, not by the first
respondent but by HR, which supports a contention of HR’s intervention
having been sought, he could therefore not find that the dismissal was
procedurally fair.
[20] Item 8 of the Code of Good Conduct: Dismissal which entitles employers to
require an employee to serve a probationary period before the appointment of
the employee is confirmed. Item 8(1)(e) provides that the probationary period
must be used to assess the employee’s performance and that the employer
should give the employee reasonable evaluation, instruction, training,
guidance or counselling in order to allow the employee to render satisfactory
service. Items 8 (1)(f) – (h) provide that an employer is entitled to extend the
probationary period in order to complete any performance appraisal. This
creates an obligation on the applicant that, while safeguarding its own
creates an obligation on the applicant that, while safeguarding its own
interests, to also treat the first respondent with fairness. The applicant had a
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duty to finalise the agreed process and not act arbitrarily without affording the
first respondent an opportunity for clarity, as agreed.
[21] This court agrees with the commissioner that there was a dismissal and
further agrees that the dismissal was both substantively and procedurally
unfair.
[22] The next issue in contention is the compensation amount awarded. It is trite,
once the first respondent did not wish to be reinstated, the Commissioner
must award compensation. The applicant contends however that while the
Commissioner has discretion, he erred in not considering the fact that the first
respondent had only been without employment for a period of over one
month, that the Commissioner failed to consider facts which were before him
for consideration in arriving at a just and equitable compensation. They further
contend that while they acknowledge that compensation is a solatium , a
number of factors must be considered
4. Further that the function of sections
197 and 194 of the Labour Relations Act 5 (LRA) is not to yield a quantum
based on the concept of positive interest but rather is premised on the
broader consideration of fairness, having weighed the circumstances
holistically
6. The applicant further contends that there was no evidence of the
Respondent suffering financially except for the period she was unemployed.
The factors the Commissioner says he considered are not judiciously based
considering that the first respondent was only out of salary for a mere one
month.
[17] This court, agrees discretion must be exercised judiciously.
[18] Section 193 of the LRA states:
‘(1) If the Labour Court or an arbitrator appointed in terms of this Act finds
that a dismissal is unfair, the Court or the arbitrator may-
4 See: Ekurhuleni Metropolitan Municipality v Matonsela and Others [2021] 10 BLLR 994 (LAC) at
para 28.
5 Act 66 of 1995, as amended.
6 See: Bester (Scott) in re: Small Enterprises Finance Agency SOC Ltd vs Commission for
6 See: Bester (Scott) in re: Small Enterprises Finance Agency SOC Ltd vs Commission for
Conciliation, Mediation and Arbitration and Others (2020) 3 BLLR 244 (LAC) at para 13.
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(a) order the employer to reinstate the employee from any date
not earlier than the date of dismissal;
(b) order the employer to re-employ the employee, either in the
work in which the employee was employed before the
dismissal or in other reasonably suitable work on any terms
and from any date not earlier than the date of dismissal; or
(c) order the employer to pay compensation to the employee.
(2) The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a) the employee does not wish to be reinstated or re-employed;
(b) the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c) it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d) the dismissal is unfair only because the employer did not follow
a fair procedure.
(3) If a dismissal is automatically unfair or, if a dismissal based on the
employer's operational requirements is found to be unfair, the Labour
Court in addition may make any other order that it considers
appropriate in the circumstances.
(4) An arbitrator appointed in terms of this Act may determine any unfair
labour practice dispute referred to the arbitrator, on terms that the
arbitrator deems reasonable, which may include ordering
reinstatement, re-employment or compensation.’
[19] Section 194(1) of the LRA reads:
‘The compensation awarded to an employee whose dismissal is found to be
unfair either because the employer did not prove that the reason for dismissal
was a fair reason relating to the employee's conduct or capacity or the
employer's operational requirements or the employer did not follow a fair
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procedure, or both, must be just and equitable in all circumstances, but may
not be more than the equivalent of 12 months' remuneration calculated at the
employee's rate of remuneration on the date of dismissal.’
[20] The Commissioner considered a number of facts in arriving at a just and
equitable compensation, all of which revolve around the first respondent.
While the court agrees that the manner in which the applicant handled the
matter deserves frowning upon, the Commissioner ought to have also
considered the applicant’s position and not merely award compensation as a
punishment for an offender. Section 193 assists in balancing out the
respective interests once dismissal is found to be unfair on both or either
substance and/or procedure. In this matter there can be no re- instatement or
re-employment not because the employment relationship was rendered
intolerable, but because the first respondent is gainfully employed and does
not wish to be re- instated. Ordinarily because there is no evidence of a
breakdown in the relationship the first respondent would have been re-
instated under the circumstances, and the first respondent would have
derived value as well from the services of the first respondent.
[21] Furthermore, the first respondent sought eight months, while the applicant
contended for the financial damage only. The Commissioner did not explain
why he rejected the submission of the applicant which were based on facts
which the Commissioner ought to have considered. The Commissioner further
had a duty to provide reasons for rejecting that submission.
[22] It is common cause, the first respondent was unemployed for one month, she
rejected re- instatement as she has secured alternative employment. This
ought to have been considered in arriving at a just and fair compensation.
The test for review
[23] The test for review is set out in Sidumo and Another v Rustenburg Platinum
Mines Ltd and others
7. The enquiry is the reasonable decision- maker test
Mines Ltd and others
7. The enquiry is the reasonable decision- maker test
which is to determine whether the decision reached by the commissioner is
7 (2007) 28 ILJ 2405 (CC).
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one which a reasonable decision maker could not reach. In assessing the
reasonableness of the award, the Court takes into account the material
evidence which was before him or her during the arbitration proceedings. In
Fidelity Cash Management Services v Commission for Conciliation, Mediation
and Arbitration and others ,
8 the Court emphasized that the reasonable
decision maker’s test:
“… is a stringent test that will ensure that such awards are not lightly
interfered with. It will ensure that, more than before, and in line with the
objective of the Act and particular the primary objective of the effective
resolution of disputes, awards of the CCMA will be final and binding as long
as it cannot be said that such a decision or award is one that a reasonable
decision-maker could not have made in the circumstances of the case. It will
not be often that the decision of the arbitration award of the CCMA is found to
be one that a reasonable decision-maker could not, in all circumstances, have
reached.”
[24] This court is persuaded that the decision of the Commissioner of six months’
salary under the circumstances and facts of this case, is one which a
reasonable decision maker could not have made. This court therefore deems,
that in the interests of justice, there is room for interference with the
compensation for the following reasons:
24.1 the first respondent was unemployed for a period of about one
month;
24.2 the first respondent elected not to be re -instatement because she
secured alternative employment;
[25] This Court frowns upon the conduct of the applicants in handling this situation,
particularly because the applicant is well capacitated to handle issues of
employment with prudence and further has a legal duty to safeguard the
welfare of its employees, and by extension the first respondent.
8 (2008) 29 ILJ 964 (LAC) at para 100.
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[26] Therefore, in light of these facts this Court finds that a compensation of four
months is just and equitable under the circumstances of this case.
Costs
[27] While the applicant has been successful on the part of compensation, the
applicant took issue with the substantive and procedural issues which came at
a cost to the first respondent, the applicant has capacity and was adequately
represented, it ought to have been apparent that there were no reasonable
prospects as far as their case was concerned. The resource allocation to the
aspect of compensation was only a fraction of the bigger plight on the
dismissal itself. To this end this court finds that it was unnecessary for the
applicant to have challenged the Commissioner’s decision on dismissal, they
ought to have only challenged compensation in this matter. As a result, this
court finds that the first respondent is entitled to her costs.
[28] In the premises, the following order is made:
Order
1. It is confirmed that the dismissal of the first respondent was both
substantively and procedurally unfair, to this extent the review
application is dismissed;
2. The order of six (6) months compensation is reviewed, set aside and
substituted with an order of four (4) months compensation, calculated
at a rate of R137 500 X 4 = R 550 000;
3. The applicant is ordered to pay the first respondents taxed party and
party costs of this application.
F. Magano
Acting Judge of the Labour Court of South Africa
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Appearances:
For the applicant: W R MOKHARI SC
Instructed by: MOJA SIBIYA ATTORNEYS
For the respondent: J M THOMPSON
Instructed by: THOMPSON ATTORNEYS