LATE JUDGMENT
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case no: C574/2023
In the matter between:
ROBERT LEBI Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
PATRIC STILWELL N.O. Second Respondent
DSV SOLUTIONS (PTY) LTD Third Respondent
Heard: 27 August 2026
Delivered: 28 August 2026
JUDGMENT
JACOBS AJ
Introduction
[1] This is an opposed review application.
[2] The Applicant seeks an order:
2.1 Reviewing and setting aside the award of the Second Respondent under
case number RFBC 69443, dated 30 September 2023 in terms of section
145 of the Act;
2.2 The court determining the dispute in the manner it considers appropriate
by substituting its decision for the award;
2.3 Costs against any such party that opposes the relief sought by the
Applicant; and
2.4 Granting the Applicant further and/or alternative relief.
Preliminary issues
[3] Certain preliminary objections were raised on behalf of the Third Respondent .
These are that the review application was filed one day late, that the record was
not dealt with within the 60-day limit imposed by the Practice Manual in
operation at the time , and that the Applicant had not adhered to a perceived
requirement that the notice in terms of Rule 7A(8) had to be delivered within 10
days of compliance with Rule 7A(6).
[4] At commencement of proceedings, a condonation application for the late filing
of the review application was handed up by counsel for the Applicant. This
application was not opposed. On behalf of the Third Respondent , it was
submitted that the preliminary issues relating to delays would not be pursued ,
and that the Third Respondent would raise no objection to condon ation being
granted.
[5] Considering factors such as the degree of lateness, the reasons for lateness,
the balance of convenience, possible prejudice to the parties and the interest
of justice, condonation is granted for the late filing of the review application and
the delay between compliance with 7A(6) and the filing of the notice in terms of
Rule 7A(8).
[6] In light of factors such as the initial filing of the wrong record by the CCMA, and
the consensus between the parties that it would be in the parties best interest
and the interest of justice for the matter to be disposed of on the merits,
reinstatement is ordered as far as the matter may have been deemed
withdrawn due to the failure to file the record within the 60-day limit.
Historical context
[7] The Applicant was appointed as operations manager by the Third Respondent
on 1 January 2021.
[8] On 2 December 2022 an incident occurred involving the Applicant and one of
his colleagues, Ms Pearl van der Merwe (“Pearl”). Pearl insisted on working
overtime, but the Applicant as her manager, denied the request.
[9] Pearl would not accept the Applicant’s decision and an argument ensued.
During the heated exchange between the Applicant and Pearl , both of them
resorted to colourful language . The Applicant told Pearl to “stop fucking
interrupting me” and she also used the same expletive rather unsparingly.
During the altercation, Pearl turned around to leave , and the Applicant
approached her and put his hand(s) on her shoulders to turn her around.
[10] Two o ther employees witnessed the incident, and more employees were
present in close proximity.
[11] Both Pearl and the Applicant were called before disciplinary hearings, and both
were dismissed, the Applicant on 19 December 2023.
[12] The charges against the Applicant were for the u se of abusive and offensive
language on the company premises and assault.
[13] The Applicant admitted to swearing although the number of times the offending
words were used, was in dispute. The Applicant also admitted that he had taken
Pearl by the shoulder to physically turn her around . Whether he used one or
two hands was in dispute.
[14] The Applicant believes that the sanction of dismissal was too harsh and he
referred a dispute to the NBCRFLI. The dispute was subsequently transferred
to the CCMA.
[15] The Applicant challenged only the substantive fairness of his dismissal at t he
arbitration hearing on 20 September 2023.
[16] The Second Respondent (the Arbitrator) issued an award on 30 September
2023, in which he ruled that the dismissal of the Applicant was fair.
The arbitration award
[17] In his award, the Arbitrator recorded that the Applicant’s case relied entirely on
the contention that the sanction of dismissal was too harsh.
[18] The Arbitrator found that the sanction of dismissal fell within the range of fair
sanctions because:
18.1 The disciplinary code prohibited swearing and assault;
18.2 Pearl had been dismissed for her role in the incident;
18.3 Case law exists that supports th e notion that th is type of conduct is
dismissible; and
18.4 The Applicant’s conduct also entailed a violation of a person ’s
constitutional rights.
[19] The Arbitrator found that the Applicant’s dismissal was substantively fair.
Test on review
[20] Despite a submission by counsel for the Applicant that the correctness test
could apply in this instance due to the nature of the Arbitrator’s alleged
misconduct, it is clear that the test applicable in this instance can only be the
reasonable-test, as formulated in Sidumo.1
1 Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 28 ILJ 2405 (CC );
Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration
and Others (2008) 29 ILJ 964 (LAC).
[21] The test therefore is whether or not the decision reached by the arbitrator, was
one that a reasonable decision maker could not reach. In other words, whether
or not the award falls outside of the range of reasonableness.2
The review grounds
[22] The Applicant pleaded that the Arbitrator’s award stands to be reviewed and
set aside for the following reasons:
22.1 The Arbitrator failed to consider the comprehensive written
submissions made pursuant the arbitration hearing;
22.2 Arbitrator failed to consider that the employer bears onus to prove
fairness of dismissal and in particular that dismissal was the appropriate
sanction due to the breakdown of the trust relationship;
22.3 The Arbitrator failed to consider arbitration is hearing de novo and
decided the issue of assault on evidence that was relied on by the
employer during the disciplinary hearing;
22.4 The Arbitrator unduly deferred to the employer’s reasoning;
22.5 The Arbitrator failed to consider that the employer led no evidence
regarding the appropriateness of the sanction of dismissal;
22.6 The Arbitrator failed to consider that the employer had presented no
evidence regarding the breakdown of the trust relationship;
22.7 The Arbitrator failed to consider that the employer adduced no evidence
regarding a zero-tolerance policy relevant to the charges, or that such
a zero-tolerance policy was justified; and
22.8 The Arbitrator had failed to consider that the employer presented no
evidence regarding the consistent application of the rule.
2 See eg: Sidumo supra; Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA (2014)
35 ILJ 943 (LAC); Securitas Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others [2021] 5 BLLR 475 (LAC).
[23] The Applicant emphasised provocation as a defence against the allegations
levelled against him. He also emphasised his version of swearing only once
and only laying one hand on Pearl.
Submissions by the parties
[24] For the Applicant, the grounds for review referred to above , were elaborated
on. Emphasis was placed on the following aspects:
24.1 The Arbitrator’s apparent failure to consider the comprehensive written
submissions made by the Applicant pursuant the arbitration hearing. It
was submitted that no reference was made to the Applicant’s extensive
submissions, although the Arbitrator referred to submissions by the Third
Respondent twice in his award.
24.2 It was argued on behalf of the Applicant that the import of the facts and
the Arbitrator’s unreasonable interpretation thereof , is central to the
application.
24.3 The Applicant’s reliance on provocation as a defence was reconfirmed.
24.4 It was submitted that a zero -tolerance approach to misconduct may not
merely be assumed or adopted and that no evidence was placed before
the Arbitrator that such a n approach applied to the misconduct that the
Applicant was charged with.
24.5 The Arbitrator’s unreasonably failed to deal with the question whether the
trust relationship had been broken.
[25] For the Applicant, it was s ubmitted that the Arbitrator had committed
irregularities and errors that no reasonable arbitrator could make , and that the
conclusions he reached and the award he issued, were therefore unreasonable.
[26] For the Third Respondent it was submitted that the ruling made by the Arbitrator
is not shocking and falls well within the required band of reasonableness.
[27] The Third Respondent submitted that the Arbitrator correctly and accurately
summarised the relevant contextual issues.
[28] The Third Respondent submitted that the award was reasonable.
Evaluation
[29] The parties agreed that the arbitration hearing was a hearing de novo and that
the only issue for determination by the Arbitrator, was the question whether
dismissal was the appropriate sanction . This had to be determined in light of
the evidence before the Arbitrator.
[30] The Applicant’s submission that the Arbitrator had failed to consider the
comprehensive written submissions made by the Applicant pursuant the
arbitration hearing cannot be sustained.
[31] The first reference in the award to submissions made by the Third Respondent,
related to authorities dealing with swearing as a form of misconduct . T he
second reference criticised the Third Respondent’s submissions of what actions
may constitute assault.
[32] The averment that the Arbitrator had failed to consider submissions made by
the Applicant is not substantiated by the material before court. In the award, at
par 4.1, the Arbitrator confirms that he had considered all oral and documentary
evidence and arguments placed before him.
[33] The fact that the Arbitrator’s award does not accord with the submissions made
by the Applicant pursuant the arbitration hearing, does not necessarily mean
that the submissions were not considered.
[34] The Applicant’s allegation in the papers that the Arbitrator failed to consider that
the arbitration is a hearing de novo is not supported. The transcript shows that
the Arbitrator had emphasised this fact during arbitration proceedings.
[35] The facts relevant to determining whether assault was proven or not, were
sufficiently canvassed at arbitration. The transcript shows that it was common
cause that the Applicant had put a hand on Pearl to turn her around. Whether
it was one hand or two, it remains common cause that the Applicant had tried
to physically turn Pearl around when she sought to walk away from the heated
altercation with the Applicant. This is assault.
[36] Whether the Applicant had sworn once or three times is of little consequence.
[36] Whether the Applicant had sworn once or three times is of little consequence.
It was unacceptable for the Applicant, as a manager, to resort to such language
in the circumstances. Resorting to the language he had used in the
circumstances, was not acceptable conduct.
[37] The Applicant in his own testimony submitted that they worked in a high -
volume, volatile workplace. Reliance on a defence of provocation when the
workplace standard is challenging, is not convincing.
[38] The matter of provocation has previously been dealt with by this court. The very
fact that a person's actions followed in response to the conduct of another does
not mean that the law will come to their aid.3 In Nampak Products (Pty) Ltd t/a
Megapak v CCMA and Others ,4 the court confirmed that the mere rais ing of
provocation as a defence , does not automatically spare the employee from a
dismissal. The court emphasised that when provocation is raised, the inquiry is
whether the extent of the provocation was such that it would have caused any
reasonable person in the position of the assailant to have responded in that
way.5 The courts in Nampak and Tedco Plastics emphasised that provocation
cannot be accepted as a defence if the a ct under scrutiny was not defensive
but aggressive in nature. 6 The Applicant’s conduct in this matter was not
defensive.
[39] There is no indication that the Arbitrator had merely deferred to the employer’s
reasoning as the Applicant suggested . The evidence before the Arbitrator
supported the conclusions he reached.
[40] The Applicant submitted that Arbitrator failed to consider that the employer
bears the onus to prove the fairness of the dismissal, and in particular that
dismissal was the appropriate sanction due to the breakdown of the trust
relationship.
[41] The Applicant submitted that the Arbitrator failed to consider that the employer
had presented no evidence regarding the breakdown of the trust relationship.
3 Tedco Plastics (Pty) Ltd v National Union of Metalworkers of SA & others (2000) 21 ILJ 2710
(LC).
4 (C512/2018) [2021] ZALCCT.
5 At par [35].
6 Nampak supra at par 36.2; Tedco Plastics supra at par [15].
[42] Dismissal is an operational response to an untenable situation. 7 Whether
misconduct had breached the trust relationship to an extent that rendered the
employment relationship intolerable can be deduced from the facts and does
not always require specific evidence. Where misconduct is such that it can be
accepted that an employer would lose trust in the employee , no evidence is
necessary to show that the trust relationship had been irretrievably destroyed.8
[43] In this instance the Applicant’s conduct toward a female subordinate in the
presence of other employees, cannot be tolerated.
[44] The Applicant argued that the Arbitrator failed to consider that the employer
adduced no evidence regarding a zero-tolerance policy relevant to the charges,
or that such a zero-tolerance policy was justified. There is no requirement that
a zero-tolerance policy must exist before dismissal can be considered. Each
instance is evaluated in its particular context with reference to the facts relevant
to that matter. If the misconduct is serious, the employee is senior and does not
appreciate the inappropriateness of his conduct, a reasonable operational
response will be the dismissal of the employee.
[45] The Applicant submitted that the Arbitrator had failed to consider that the
employer presented no evidence regarding the consistent application of the
rule.
[46] Where an allegation of inconsistency is made, the gravity of misconduct
remains a critical factor in weighing whether the sanction imposed by the
employer is unfair. 9 The arbitrator must consider the simple question whether
the dismissal was fair, based on his own sense of fairness. The question cannot
possibly be answered on the basis of somebody else's notion of fairness. 10
7 See eg: PSA OBO Rae v General Public Services Sectoral Bargaining Council and Others
(JR755/14) [2017] ZALCJHB 410 (6 April 2017); Schwartz v Sasol Polymers and Others
(JA46/2014) [2015] ZALAC 58; (2017) 38 ILJ 915 (LAC) (5 October 2015).
(JA46/2014) [2015] ZALAC 58; (2017) 38 ILJ 915 (LAC) (5 October 2015).
8 See eg: Autozone v Dispute Resolution Centre of Motor Industry and Others (JA52/2015)
[2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (13 February 2019)
9 Monte Casino v Commission for Conciliation Mediation and Arbitration and Others (JR
314/2011) [2012] ZALCJHB 171 (27 December 2012) at [13]
10 Monte Casino supra at [14].
Once a finding is made that an employee is guilty of dismissible misconduct,
the sanction of dismissal is justified.11
Conclusion
[47] An arbitrator's conclusion s must fall within a range of decisions that a
reasonable decision maker could make.12 The court must broadly evaluate the
merits of the dispute and consider whether the resulting award can be justified,
even for reasons other than those relied on by the arbitrator . The court must
consider the totality of the evidence in deciding whether the decision made by
the arbitrator is one that a reasonable decision maker could make.13
[48] The Arbitrators ruling resonates with the evidence placed before him. The
Arbitrator’s reasoning, evaluation of the facts and the conclusions reached by
him, fall well within the band of decisions which a reasonable decision -maker
could make on the available evidence.
[49] In the result, the following order is made:
Order
1. The application is dismissed.
2. There is no order of cost.
_______ _________
W Jacobs
Acting Judge of the Labour Court of South Africa
11 Also see : Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation,
Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17; [2020] 9 BLLR
908 (LAC); (2020) 41 ILJ 2135 (LAC) (18 May 2020); SACCAWU & others v Irvin Johnson
Limited [2008] BLLR 869 (LAC).
12 Sidumo supra
13 Securitas Specialised Services (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others [2021] 5 BLLR 475 (LAC).
Appearances:
For the Applicant: - Adv M Aggenbach
Instructed by: - De Waal Boshoff Inc
For the Third Respondent: - Adv A.J. Nel
Instructed by: - Darran Ledden Inc