THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C560/2023
In the matter between:
FATIMA GALANT Applicant
and
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION (“CCMA”) First Respondent
COMMISSIONER ANDRE SIEBERT N.O. Second Respondent
DARTPAC (PTY) LTD Third Respondent
(Registration No: 1994/010332/07)
Heard: 18 September 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 2 2
May 2026.
______________________________________________________________________
JUDGMENT
2
VAN WYK, AJ
Introduction
[1] This is an application for the reviewing and setting aside of the arbitration award
dated 21 September 2023 and issued under case number WECT 11161- 23
under the auspices of the first respondent, wherein the second respondent
(arbitrator) found that the applicant’s dismissal was fair.
[2] The third respondent opposed the application for the reviewing and setting aside
of the award by the arbitrator.
Background
[3] The applicant was employed as a Stock Controller by the third respondent and
has been in the employ of third respondent for seventeen years prior to her
dismissal. Some of her key duties as Stock Controller were to count stock,
reconcile stock variances and submit final figures to the accountant for capturing
purposes.
[4] Third respondent discovered during March 2023 that there had been excessive
spending on their cheque account and on investigation found that the excessive
spending was on the acquisition of pallets known as CHEP pallets. This
excessive spending on pallet s was found to have taken place over a number of
months.
[5] It was as a result of this finding that the applicant was charged in a disciplinary
hearing with poor work quality, neglect of duty and breach of her duty of good
faith to her employer in relation to the excessive spending on pallets. These
charges were based upon applicant making a misrepresentation to third
respondent about the number of pallets counted by her on a monthly basis. In
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this regard she would conceal in her report the fact that pallets were missing. The
applicant was found guilty and dismissed.
[6] The applicant referred an unfair dismissal dispute to the first respondent (CCMA)
challenging both procedural and substantive fairness of her dispute.
[7] At the commencement of the arbitration proceedings, applicant represented by
an attorney made an application to be represented by her attorney during the
arbitration proceedings, which was dismissed by the arbitrator after looking at the
parties’ comparative abilities and complexity of the matter.
[8] It was not disputed during the arbitration that incorrect figures relating to the
pallets were captured by the applicant on the system, leading to an increase in
spending on pallets. The dispute however, revolved around whether the applicant
had personal knowledge of the information that she fed into the system or
whether she received the information for a certain Peter and a certain Mario.
[9] The arbitrator on an analysis of the evidence found it improbable that the
applicant could have received the information from either Peter or Mario and
found that she had supplied the false information for capturing thereof and that it
had led to the breakdown in the employment relationship which justified her
dismissal. I now turn to deal with the grounds for review.
Test on review
[10] The grounds of review raised by the applicant must be considered within the
context of the applicable test. The test that has been laid down in Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
1 (Sidumo) is whether the
decision reached by the commissioner is one that a reasonable decision maker
could not reach. It was held furthermore in Sidumo that the arbitrator’s conclusion
must fall within a range of decisions that a reasonable decision maker could
make.
1 [2007] ZACC 22; (2007) 28 ILJ 2405 (CC) at para 110.
4
[11] This test was further clarified by the Labour Appeal Court in Gold Fields Mining
SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and others2 as follows:
‘In short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is reasonable.’
[12] It is not required of the Court on review to take into account every factor
individually and consider how the arbitrator dealt with each of these factors. The
totality of the evidence must be considered when determining whether the
decision made by the arbitrator is one that a reasonable decision maker could
make.
3
[13] The Supreme Court of Appeal in Herholdt v Nedbank Limited (Congress of South
African Trade Unions as amicus curiae) 4 also clarified the test in the following
terms:
‘… the test “is a stringent [one] that will ensure that … awards are being
lightly interfered with” …. The Sidumo test will however, justify setting
aside an award on review if the decision “is entirely disconnected with the
evidence” or is “unsupported by any evidence” and involves speculation
by the commissioner.’
[14] The test is therefore a stringent and conservative test of reasonableness, and the
applicant must convince the Court that the arbitrator had in his conclusion on all
the evidence arrived at an unreasonable result.
Grounds of review
2 [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) at para 16
3 Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and
Arbitration and Others [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC) at paras 18-19.
4 2013 (6) SA 224 (SCA); [2013] 11 BLLR 104 (SCA) (2013) ILJ 2795 (SCA) at para 13
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[15] The applicant’s challenge to the arbitration award is based on contentions that
the arbitrator failed to apply his mind to the evidence that was presented to him,
ignored relevant material evidence, took into account irrelevant evidence and
misconstrued material evidence in delivering his award and came to a decision
that was unreasonable and one that another arbitrator would not have come to
on the available material . The grounds cited by the applicant in support of these
contentions are that the arbitrator failed to appreciate that:
a. She was unrepresented and that her version was reasonable and that the
probabilities supported her version;
b. The third respondent was inconsistent in its application of disciplinary
measures, as no disciplinary steps were taken against Mr Peter who
actually counted the stock in the warehouse;
c. Dismissal was not an option of last resort as possible alternatives to
dismissal such as a final warning or internal counselling was not
considered by the third respondent;
d. She was not guilty of the charges that were levelled against her;
Review Test
[16] The grounds of review proffered by the applicant will have to be dealt with in the
context of the applicable test, that will determine whether the arbitrator’s decision
is reviewable. The test for review as laid down in Sidumo and Another v
Rustenburg Platinum Mines Ltd & Others 5 (Sidumo) is whether the decision
reached by the commissioner is one that a reasonable decision maker could not
reach. The conclusion reached by the arbitrator must therefore fall within a range
of decisions that a reasonable decision maker could make.
5 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC) at para 110
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[17] The Labour Appeal Court i n clarifying the test laid down in Sidumo said the
following in Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others6 (Gold Fields Mining):
“In short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is reasonable.”
[18] The Court on review must take into account the totality of the evidence presented
during the arbitration proceedings when deciding whether the decision made by
the arbitrator is one that a reasonable decision maker could make.7
[19] In further clarification of the test to applied on review, the LAC remarked as
follows in Quest Flexible Staffing Solutions v Legobate
8:
“[12] The test that the Labour Court is required to apply in a review of an
arbitrator’s award is this: “Is the decision reached by the
commissioner one that a reasonable decision- maker could not
reach?” Our courts have repeatedly stated that in order to maintain
the distinction between review and appeal, an award of an
arbitrator will only be set aside if both the reasons and the result
are unreasonable. In determining whether the result of an
arbitrator’s award is unreasonable, the Labour Court must broadly
evaluate the merits of the dispute and consider whether, if the
arbitrator’s reasoning is found to be unreasonable, the result is
nevertheless, capable of justification for reasons other than those
given by the arbitrator. The result will, however, be unreasonable if
it is entirely disconnected with the evidence, unsupported by any
evidence and involves speculation by the arbitrator.”
6 (2014) 35 ILJ 943 (LAC) at para 16
7 Gold Fields Mining (supra) at paras 18-19
8 (2015) 36 ILJ 968 (LAC) at paras 12-13
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[13] An award will no doubt be considered to be reasonable when there
is a material connection between the evidence and the result, or,
put differently, when the result is reasonably supported by some
evidence. Unreasonableness is, thus, the threshold for interference
with an arbitrator’s award on review.”
[20] The applicant in accordance with the applicable review test must show that the
arbitrator ultimately arrived at an unreasonable result.
[21] This application for review therefore falls to be decided within the context of the
stated test.
The arbitrator’s findings and the grounds for review
[22] The overarching ground for review upon which the application is based is that the
arbitrator failed to apply his mind to the relevant and material evidence placed
before him and by failing to apply hi s mind, he reached a decision that no
reasonable decision maker could have reached, based on the totality of the
evidence.
[23] The first ground under this overarching ground, as cited by the applicant is that
the arbitrator arrived at an unreasonable result by failing to appreciate that she
was unrepresented and that her version was reasonable and supported by the
probabilities. The applicant unfortunately did not develop the point raised about
the failure of the arbitrator to appreciate that she was unrepresented in her
founding papers and in argument before this Court. However, looking at the
record of proceedings of the arbitration it is apparent that there was equality of
arms between the a pplicant and the employer representative as both w ere
similarly situated as far as experience in labour matters are concerned. In
addition to this, the issues involved were not complex in nature. It is also
apparent from the record of proceedings that it did not affect a fair trial of the
dispute which if it did may have led to a failure of justice. As far as the assertion
that the applicant’s version was reasonable and supported by the probabilities is
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concerned, the evidence paints an entirely different picture. The uncontradicted
evidence is that incorrect data had been captured on the system of the third
respondent for some time and that it did not reflect that there was a variance
between stock on hand and system figures. It was the duty of a pplicant to ensure
that correct figures were captured. The inescapable conclusion is that the
applicant had supplied the false information for capture for some time
intentionally. This disposes also of the fourth ground raised by the applicant, as
the finding of her guilt on the charges proffered against her by the third
respondent is supported by the evidence.
[24] The second ground raised by the a pplicant relates to inconsistent application of
discipline by the t hird respondent. This is based on her assertion that a certain
Peter who was working with her, should also have been charged for the same
misconduct as she received the information that she gave to the accountant from
him and a certain Mario. The evidence and the probabilities do not however,
support this assertion of the applicant. As indicated above, the inescapable
conclusion drawn from the evidence is that the applicant was responsible for the
false information that was provided.
[25] The third ground raised by the applicant was that dismissal was not an option of
last resort, as other possible alternatives to dismissal existed. Besides the fact
that no alternatives to dismissal was presented to the arbitrator by the applicant,
what is a stark reality is that the conduct for which the a pplicant was charged
involved an element of dishonesty that led to substantial financial loss to the third
respondent. In addition to this, the conduct of the a pplicant has led to the
breakdown in the relationship of trust between the t hird respondent and the
applicant, which is crucial to a continued employment relationship. In the
absence of trust, the third respondent cannot be expected to continue with the
absence of trust, the third respondent cannot be expected to continue with the
employment relationship with applicant.
CONCLUSION
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[26] I am satisfied therefor that the arbitrator dealt with the matter with the minimum of
legal formalities, applied a process that gave the parties a full opportunity to have
their say in respect of the dispute, properly identified and understood the nature
of the dispute between the parties and dealt with the substantial merits of the
dispute. I a m furthermore satisfied that the arbitrator’s decision is one that
another decision-maker could reasonably have arrived at based on the evidence
that was before him.
[27] In the premises, the following order is made:
Order
1. The application for the arbitration award to be reviewed is dismissed.
2. There is no order as to costs.
_____________________________
P Van Wyk
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: A Isaacs
Instructed by: Parker Attorneys
For the Third Respondent: T Du Preez
Instructed b: Hannes Pretorius Bock Bryant