THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
CASE NO: C679-2022
In the matter between:
JOHN THOMAS ROBERTSON Applicant
and
THE COMMISSION FOR
CONCILIATION, MEDIATION AND
ARBITRATION
First Respondent
LAMEESAH JOOMA (N.O.) Second Respondent
PEP CLOTHING (A DIVISION OF
PEPKOR TRADING (PTY) LTD)
Third Respondent
Heard: 21 May 2025
Delivered: 03 August 2026
JUDGMENT
LAGRANGE, J
(1) Reportable: No
(2) Of interest to other Judges: Yes
03/08/2026
Signature Date
2
Introduction
[1] This is an application brought in terms of Section 145 of the Labour Relations
Act, No. 66 of 1995 ("the LRA"). The applicant seeks to review, set aside, and
correct an arbitration award issued by the second respondent ("the Arbitrator")
under the auspices of the first respondent , dated 15 November 2022. In her
award, the arbitrator determined that the dismissal of the applicant by the third
respondent (‘Pepkor’) was substantively fair, declaring that the applicant ’s
appetite for refusing to submit to managerial authority was met with an
appropriate operational remedy. The applicant prays for full retrospective
reinstatement to his position as a mechanic, whereas Pepkor opposes the
application and requests, in the alternative, that the matter be remitted back to
the CCMA for a trial de novo.
Summary of the Material Facts
[2] The applicant, Mr. J T Robertson (‘Robertson’), was a highly experienced
employee who served Pepkor as a mechanic for a continuous period of 31
years. The employment relationship was historically rooted in a signed
employment contract dating back to 16 March 1999. In December 2018,
Robertson signed an updated contract of employment.
[3] In January 2022, Pepkor conducted an internal file audit which revealed that
the personnel file of Robertson lacked a signed employment contract on
record. Pepkor explained that this administrative shortfall arose when payroll
functions shifted between internal company divisions.
[4] On 14 January 2022, Pepkor presented a draft employment contract to
Robertson for his signature. Robertson refused to sign. He raised a material
variance, demonstrating that the draft document recorded a reduced monthly
salary of R12,053.45 instead of his actual contract benefit of R13,083.80.
Pepkor candidly admitted that its Human Resources personnel made a
clerical calculation error on the initial draft. Robertson requested to take the
document home, which was permitted, and he sought legal counsel. On 24
3
January 2022, Robertson returned and filed a formal grievance regarding the
forced signature of a contract depicting a salary reduction.
[5] A sharp factual and legal dispute emerges regarding subsequent events.
Pepkor maintains that on 15 February 2022, its Human Resources officers
called Robertson to a meeting, presented an administratively corrected
contract reflecting his full true benefits, and explicitly instructed him to sign it,
but Robertson continuously refused to. Robertson disputes the character of
this interaction, maintaining that the managers merely requested a signature,
which left him with a choice. Furthermore, Robertson stated that he did not
trust management because of the initial salary discrepancy. Pepkor counter-
argued that during these interactions, managers realised that Robertson had
five previous signed contracts in his possession at home. W hen requested to
bring a copy to update his personnel file, Robertson flatly refused.
[6] On 16 February 2022, Robertson lodged a second internal grievance, alleging
that Human Resources was placing undue pressure on him to enter into a
new contract. On 17 February 2022, Pepkor served Robertson with a
disciplinary notice, which was amended on 21 February 2022, to face two
distinct allegations of misconduct, namely:
6.1 Charge 1 (Gross Insubordination): In that you refused to follow a
reasonable and lawful instruction from People Support to sign a copy of
your employment contract.
6.2 Charge 2 (Behaving in an Intolerable Manner): In that you are making this
employment relationship intolerable because when given instructions that
do not suit you, you retaliate by lodging frivolous grievances, directly
decreasing floor productivity and rendering yourself unmanageable.
[7] The disciplinary notice recorded the date of the alleged offenses as 15
February 2022. Following an internal inquiry, Robertson was found guilty and
dismissed.
4
The Arbitrator's Reasoning
[8] In her analysis, the arbitrator preferred the version of Pepkor on a balance of
probabilities, for the reasons set out below.
[9] Regarding Charge 1, the arbitrator found that the instruction to sign the
contract was presented in a respectful manner. She determined that
Robertson misinterpreted standard managerial politeness to mean that
Human Resources was asking rather than issuing a binding instruction. The
arbitrator rejected Robertson's defen ce, finding that he clearly and blatantly
contravened a valid rule of conduct.
[10] Secondly, the arbitrator evaluated the lawfulness and reasonableness of the
rule by heavily relying on testimony concerning an upcoming Walt Disney
World compliance audit. The arbitrator concluded that Pepkor was under a
strict contractual obligation to comply with external audits, and that failing to
produce signed employment contracts would invalidate its licensing rights to
manufacture Disney products, causing massive commercial and financial loss.
Consequently, she found that Robertson was obliged to comply.
[11] Thirdly, in relation to Charge 2, the arbitrator evaluated Robertson’s historical
record, noting that he had received prior disciplinary sessions, including a first
written warning for unauthorized breaks and a final written warning for unruly,
defiant behavior in early 2021. The arbitrator reasoned that these historical
warnings established an unmanageable pattern of non-compliant conduct.
[12] Lastly, the arbitrator confirmed the penalty of dismissal, stating that the
employment relationship is inherently one of subordination. She concluded
that Robertson laboured under a misguided notion that his 31 years of long
service exempted him from the authority of management.
The Review
Robertson’s grounds of review
[13] Robertson challenges the reasonableness and procedural integrity of the
award on four principal fronts.
5
[14] Robertson argues that the entire commercial justification regarding the Disney
World audit was a pure afterthought. It was never raised at his disciplinary
inquiry and was only brought to light by the employer's witnesses during re -
examination at the arbitration. The arbitrator committed a gross irregularity by
denying him an opportunity to cross -examine or lead evidence refuting this
novel commercial claim , which effectively provided a new rationale for his
dismissal.
[15] Further, Robertson argues that while the charge sheet bound the employer to
proof of an act of insubordination on 15 February 2022, the employer’s
evidence and the internal chairperson's finding focused entirely on a refusal
on 31 January 2022 , which was not mentioned in the charge sheet. Neither
the chairperson of the enquiry nor the arbitrator should have entertained this
effective reformulation of the charge. The arbitrator did not deal with this at all.
[16] The written charge sheet explicitly limited the scope of intolerability to the act
of lodging grievances . Because the employer’s main witness admitted on
cross-examination that Robertson was not dismissed for utilizing the
grievance policy, the arbitrator committed a fatal misdirection by straying
outside the charge sheet to construct a finding of guilt based on 21 historical,
settled administrative events.
[17] Robertson notes that the arbitrator entered the arena, repeatedly shielded
evasive employer witnesses, and actively shut down the cross -examination of
the unrepresented applicant, going as far as to state that she did not care
about his explanation. These interventions demonstrated palpable bias on the
part of the arbitrator.
Pepkor’s response
[18] Pepkor argued that the grounds of review were akin to grounds of appeal and
amount to an invitation to the court to conduct a piece meal approach which
blurs the lines between a review and an appeal and is at odds with the
6
jurisprudence, such as Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold
Mine) v Commission for Conciliation, Mediation and Arbitration and Others 1.
[19] Accordingly, Pepkor argues that pr ocess-related errors or intermediate
mistakes made by an arbitrator did not automatically invalidate a result,
provided the final conclusion survives the constitutional standard of
reasonableness.
[20] Pepkor contends that it never forced a new contract or an operational
novation. The instruction was a simple, lawful administrative mandate to
update an internal file. Robertson displayed flagrant bad faith by withholding
his home copy of the 2018 contract, which would have instantly resolved the
crisis.
[21] Pepkor argued that Charge 2 did not punish the clean use of internal
grievance structures, but rather exposed a malicious pattern of behavior.
Robertson utilized repetitive, frivolous grievances as a weapon of retaliation to
ground workplace productivity whenever management exercised its lawful
authority.
Evaluation
[22] The standard of review under Section 145 of the LRA is well -established. This
Court must determine whether the decision reached by the arbitrator is one
that a reasonable decision- maker could not reach based on the evidentiary
material placed before them. A process -related irregularity will only warrant
judicial interference if it directly prevents a fair trial of the issues and causes
an unreasonable outcome.
[23] An analysis of the award reveals that the arbitrator’s award is fundamentally
disconnected from the evidence and entailed important misdirections that led
her to conclusions that were untenable.
1 [2014] 1 BLLR 20 (LAC) at paragraphs 14-21
7
[24] Firstly, the arbitrator committed a severe, reviewable irregularity by basing her
entire evaluation of the gravity of Charge 1 on the Walt Disney World
compliance audit. The record conclusively shows that the Disney audit was
never canvassed at Robertson’s internal disciplinary inquiry. It was introduced
for the first time at the arbitration during re- examination, materially altering the
gravity of the charge.
[25] It is trite law that re -examination is strictly confined to clearing up ambiguities
arising from cross -examination. It cannot be used as an ambush mechanism
to introduce completely new and damaging evidence. The arbitrator permitted
the employer to introduce the evidence of the Disney audit and, crucially,
denied Robertson any meaningful opportunity to recross -examine or lead
evidence in response.
[26] Furthermore, the arbitrator then tendentiously concluded that Disney would
cancel its manufacturing licenses, despite the employer failing to discover or
place the underlying Disney contract into evidence. Her findings based on
admitting the new material on the Disney contract and then speculating about
its content materially skewed her judgment in favour of the employer.
[27] The arbitrator’s findings on Charge 2 was also the result of a serious
reframing of the charge. As a result she considered misconduct which
Robertson had not been charged with. The text of Charge 2 explicitly bound
the inquiry to an allegation that the relationship was made intolerable because
Robertson retaliated by lodging grievances.
[28] During the CCMA proceedings, Mr A Railoun, the head mechanic, initiator of
the enquiry and Robertson’s direct supervisor, answered a clear and decisive
"NO" to the question of whether Mr. Robertson was dismissed for lodging
grievances. Despite this absolute material admission, the arbitrator ignored
the employer's concession and actively strayed outside the parameters of the
the employer's concession and actively strayed outside the parameters of the
charge sheet. She resurrected a list of 21 historical, dormant administrative
events dating back to 2018— the vast majority of which had been fully
resolved internally or represented expired warnings —to construct a
generalized finding of non-compliant behaviour.
8
[29] Following the binding Labour Appeal Court authority in Palluci Home Depot
(Pty) Ltd v Herskowitz 2, an arbitrator commits a gross irregularity when they
find an employee guilty of misconduct that played no part in the original
decision to dismiss, or which departs fundamentally from what was formally
charged. The arbitrator effectively permitted the employer to utilize stale
workplace friction as an afterthought to remove a vocal employee.
[30] Robertson’s claim of process -related bias is justifiable on the record. In
multiple instances, when he attempted to cross -examine Human Resources
witnesses regarding the core changes in the contract drafts, the arbitrator
improperly stepped into the arena. The arbitrator actively cut off Robertson,
answered the questions on behalf of the employer's witnesses, and directed
hostile remarks towards him, such as telling Robertson that she did not care
about his explanations.
[31] While Section 138 of the LRA grants commissioners a wide discretion to
conduct arbitrations with a minimum of legal formalities, it demands absolute
neutrality. A commissioner who actively takes over the defense of a witness or
displays open hostility toward a lay litigant fundamentally undermines the audi
alteram partem principle. Robertson did not get a fair hearing in consequence.
2 (2015) 36 ILJ 1511 (LAC), viz: ‘[46] This finding by the chairperson was, in any event, made in the
context of the poor work performance/incapacity charge (charge (b)), and I not the failure to carry out
reasonable instructions (charge (c)). This notwithstanding, the commissioner in his award went
beyond the findings of the chairperson in his recommendation, and dealt with all the subcharges
under charge (c) and arrived at a finding that the first respondent had failed to carry out instructions
as described in that charge. In Fidelity Cash Management Service v CCMA & others, 24 this court
held that:
held that:
'It is an elementary principle of not only our labour law in this country, but also of labour law in many
other countries that the fairness or otherwise of the dismissal of an employee must be determined on
the basis of the reasons for the dismissal which the employer gave at the time of the dismissal. The
exception to this general rule is where, at the time of the dismissal, the employer gave a particular
reason as the reason for the dismissal in order to hide the true reason such as union membership. In
such a case, the court or tribunal dealing with the matter can decide the fairness or validity of the
dismissal not on the basis of the reason that an employer gave for the dismissal but on the basis of
the true reason for the dismissal.'
Accordingly, the commissioner undertook the enquiry in a misconceived manner by determining the
fairness of the first respondent's dismissal on the basis of reasons for the dismissal which the
appellant did not rely upon at the time of dismissing the first respondent. But for this error, I believe
that the commissioner would have arrived at a different result in the award. ’
9
Relief
[32] Pepkor argues that even if the dismissal was substantively unfair,
reinstatement is operationally unfeasible under Section 193(2)(b) of the LRA
because Robertson stated under oath that he no longer trusts management.
[33] The bar for proving that an employment relationship has been rendered truly
"intolerable" is exceptionally high, requiring substantial evidence. During oral
argument, the court raised the point that it appeared that the entire friction
between Robertson and Pepkor was a bureaucratic scrap with the employer’s
human resource administration, emanating from their desire to file a physical
update. It had absolutely no bearing on his capability, conduct, or execution of
his daily duties as a mechanic fixing sewing machinery on the floor. In my
view, Robertson’s misplaced distrust of Human Resources d oes not amount
to a fundamental breach of trust rendering a continued employment
relationship intolerable. In consequence, r einstatement is the appropriate
remedy.
Order
1. The arbitration award issued by the Second Respondent under case number
WECT4881-22, dated 15 November 2022, is reviewed and set aside.
2. The award is replaced with an order that the dismissal of Robertson , Mr. John
Thomas Robertson, was substantively unfair.
3. Pepkor is ordered to reinstate the Applicant retrospectively to his date of
dismissal in his position as a mechanic, on the same terms and conditions of
employment that governed his relationship under the 2018 contract.
4. Pepkor must pay the Applicant all back-pay due to the Applicant from the date
of his dismissal to the date of this judgment, payable within fourteen (14) days
hereof.
5. The Applicant must report for duty within fourteen (14) days of the date of this
judgment.
10
_______________________
R Lagrange
Judge of the Labour Court of South Africa
Appearances:
For the Applicant: C A Casner
Instructed by: Elroy Adams & Associates
For the Respondent: J van der Walt of Cliffe Dekker Hofmeyer Inc.