THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR681/20
In the matter between:
RAMOJOE, JACOB LEHLOMA Applicant
and
THEE, JOSEPH WILSON N.O First Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Second Respondent
SERVICES SECTOR EDUCATION AND TRAINING
AUTHORITY Third Respondent
Heard: 20 March 2026
Delivered: 28 August 2026
JUDGMENT
SCHENSEMA, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ ______________
Signature Date
2
[1] This is an opposed application in which the applicant seeks to review and set
aside the outcome of inquiry conducted by the first respondent (the
Commissioner) in terms of section 188A of the Labour Relations Act 1 (the
LRA) (the outcome). The inquiry was conducted under the auspices of the
second respondent, the Commission for Conciliation, Mediation and
Arbitration (the CCMA), pursuant to an agreement between the parties in
terms of section 188A (11) of the LRA.
[2] In the o utcome, the Commissioner found t hat the third respondent had
proved, on a balance of probabilities, that the applicant had committed the
misconduct set out in the charge sheet. Furthermore, that the third respondent
had followed a fair procedure and accordingly recommended that the
applicant’s services be terminated.
[3] The applicant also seeks condonation for the late filing of the record.
Condonation
Background
[4] This matter has a protracted procedural history. The o utcome was issued on
31 March 2020, following which the applicant launched these review
proceedings. During December 2020, the applicant served and filed a notice
in terms of rule 7A (6) of the then Rules for the Conduct of Proceedings in the
Labour Court 2, relating to the record of the section 188A inquiry conducted
between 27 March 2019 and 25 February 2020. On 13 January 2021, the
applicant delivered a supplementary affidavit. The third respondent thereafter
filed its answering affidavit to both the founding and supplementary affidavits
on 26 February 2021.
[5] On 26 April 2021, the applicant filed two further notices in terms of r ule 7A(6).
The first incorporated the transcript of the EOHCB proceedings, whilst the
second related to the transcription of the evidence of Ms Lerato Mbonani. On
the same date, the applicant also filed his replying affidavit.
1 Act 66 of 1995, as amended.
2 Now Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the
2 Now Repealed and replaced with the Rules Regulating the Conduct of the Proceedings of the
Labour Court. Published 3 May 2024 (GN 50608). Effective 17 July 2024.
3
[6] On 19 May 2021, the third respondent filed an application in terms of r ule 11
objecting to the applicant's replying affidavit and the further notices delivered
in terms of rule 7A(6) on the basis that they had been filed out of time without
the requisite consent or leave of the Court.
[7] The matter was enrolled for hearing on 18 May 2023. Prior to the hearing, the
third respondent delivered a further notice in terms of rule 11(3), objecting to
the applicant's filing of an additional record. At the hearing before Mahosi J,
the applicant abandoned his replying affidavit. The Court further directed the
applicant to provide the third respondent with a copy of the arbitration bundle
and to file an application for condonation for the late filing of the record and
the accompanying transcript. The costs in relation to the hearing on 18 May
2023 were reserved.
[8] Pursuant to that order, the applicant filed an application for condonation on 21
June 2023. The applicant explained that the record was extensive and that,
after receiving the record from the CCMA, he identified those portions which
he considered relevant to the review. During that process, he discovered that
portions of the January 2020 recordings were missing. According to the
applicant, the missing recordings were only made available approximately five
months after the CCMA had delivered the record in terms of rule 7A(3), and,
upon arranging for the recordings to be transcribed, it became apparent that
they remained incomplete.
[9] The applicant further explained that the transcribed record, comprising
approximately 1 519 pages, was filed on 11 December 2020. Thereafter, on
26 April 2021, he filed additional transcriptions which, according to him, were
relevant to the review. He attributes the delay in filing the complete record to
the late receipt of the recordings and the fact that the recordings initially
provided were incomplete.
[10] As regards prospects of success, the applicant contends that he enjoys good
[10] As regards prospects of success, the applicant contends that he enjoys good
prospects in the review. In broad terms, he submits that the charges on which
he was ultimately dismissed did not correspond with the Accounting
Authority's decision to investigate him and that the disciplinary process was
4
unfair, inter alia because some of the allegations related to events dating back
to 2016.
[11] In relation to prejudice, the applicant submits that the delay in filing the
complete record was occasioned by the CCMA’s failure to provide a complete
record in terms of r ule 7A. He contends that, despite those difficulties, he
ultimately succeeded in placing a complete record before the Court and that
he would suffer substantial prejudice were condonation to be refused.
[12] At the hearing before this Court, the third respondent confirmed that it no
longer persisted in its opposition to the condonation application, although it
drew the Court’s attention to the circumstances surrounding the late filing of
the record. In those circumstances, it is unnecessary to traverse the
submissions originally advanced in opposition.
Analysis of the condonation application for the late filing of the record
[13] The applicable principles are well established. An application for condonation
involves the exercise of a judicial discretion upon a consideration of all the
relevant facts. The factors identified in Melane v Santam Insurance Co Ltd
3
remain applicable, namely the extent of the delay, the explanation therefor,
the prospects of success, the importance of the matter, prejudice and the
interests of justice. These factors are not individually decisive but are
interrelated and must be weighed together.
[14] As the Constitutional Court explained in Grootboom v National Prosecuting
Authority4, the overarching enquiry is whether it is in the interests of justice to
grant condonation. In labour matters, this enquiry must be undertaken mindful
of the statutory imperative that disputes be resolved expeditiously, as
emphasised in the matter of Toyota SA Motors (Pty) Ltd v CCMA and Others
5.
Nevertheless, expedition is not an end unto itself. The Court retains a
discretion to grant condonation where good cause has been shown.
3 1962 (4) SA 531 (A).
4 (2014) 35 ILJ 121 (CC).
3 1962 (4) SA 531 (A).
4 (2014) 35 ILJ 121 (CC).
5 (2016) 37 ILJ 313 (CC).
5
[15] In relation to the late filing of the r ule 7A record, the Labour Appeal Court in
Samuels v Old Mutual Bank 6 confirmed that a review which has become
archived or deemed withdrawn may be revived upon a proper showing of
good cause. Whether such relief should be granted depends upon the facts of
each case.
[16] Having considered the degree of the delay, the explanation advanced, the
absence (or limited nature) of prejudice to the respondent, the importance of
determining the review on its merits, and the interests of justice, I am satisfied
that the applicant has established good cause for the late filing of the record.
Condonation should therefore be granted.
The Review Application
Background
[17] During the inquiry, the third respondent’s case was that the applicant, whilst
employed as Senior Manager: Chamber Operations, engaged in a sustained
pattern of misconduct consisting of neglect of duty, failure to perform
managerial responsibilities, bullying and intimidation of subordinate
employees, unprofessional conduct towards external stakeholders, and
breach of the conditions of his precautionary suspension.
[18] In support of these allegations, the third respondent led evidence from seven
witnesses.
[19] Ms Emma Mbele testified that the applicant repeatedly subjected her to
intimidation, humiliation and unfair criticism, threatened disciplinary action
without justification, ignored her communications, excluded her from meetings
and created a hostile working environment. Although she acknowledged that
she had not lodged a formal grievance at the time, she explained that she
feared victimisation and described a marked improvement in the workplace
following the applicant's suspension.
6 (2017) 38 ILJ 1790 (LAC).
6
[20] Ms Lerato Mbonani testified that the applicant consistently undermined and
humiliated her, particularly in the presence of junior staff, dismissed her
concerns, shouted at her, accused her of dishonesty and failed to provide the
managerial support required of him. She also dealt extensively with the
applicant's alleged failure to address the long- standing issue concerning the
registration of assessors and moderators within the Institute for Work at
Height, contending that despite repeated reports and stakeholder concerns,
he failed to intervene appropriately.
[21] Dr Alti Kriel, Chief Executive Officer of the Institute for Work at Height,
together with Mr Rob Urquhart, described the significant delays experienced
in resolving the registration of assessors and moderators. Their evidence was
that the applicant failed to engage constructively with stakeholders, ignored
requests for meetings and updates, and adopted an indifferent or dismissive
attitude, thereby contributing to prolonged delays in resolving an issue which
had important safety implications for the industry.
[22] Ms Nomfezeko Vendle similarly testified that the applicant regularly belittled,
criticised and intimidated her, both privately and in the presence of colleagues
and subordinates. She stated that he threatened employees with dismissal,
discouraged participation during meetings, and created an atmosphere of fear
within the department. She further testified regarding the applicant's conduct
during stakeholder engagements, including an incident in which his behaviour
towards stakeholders resulted in complaints being lodged against him.
[23] Mr Thando Zonke, the Employee Relations Specialist, testified regarding the
investigation, the applicant's precautionary suspension and the subsequent
disciplinary process. His evidence was that the applicant breached the terms
of his suspension by communicating directly with the Chairperson of the
Board, bypassing established reporting lines, attending the workplace and
Board, bypassing established reporting lines, attending the workplace and
undertaking official travel during the suspension period.
[24] Mr Victor Msomi, a Board member representing the Employers Organisation
for Hair Cosmetology and Beauty, testified that the applicant conducted
himself unprofessionally during a stakeholder workshop, interrupted
7
participants, restricted stakeholder participation, made inappropriate remarks
and alienated stakeholders to the extent that formal complaints were
submitted to the Board.
[25] Ms Jacqui Ford testified that, despite repeated requests, the applicant failed
to meet with her in her capacity as Chairperson of the Labour Relations
Chamber, resulting in her being unable to perform her functions effectively.
She also described his conduct towards stakeholders as dismissive,
discourteous and damaging to the respondent's relationship with industry
representatives.
[26] The applicant denied all allegations of misconduct. He maintained that he was
a firm but fair manager and that the complaints arose because he introduced
greater accountability within the department. He disputed that the registration
of assessors and moderators fell within his area of responsibility, contending
that this function belonged to another division of the third respondent. He
asserted that stakeholder dissatisfaction resulted largely from confusion
created by subordinate employees and that he had been excluded from
relevant correspondence concerning the registration process. He further
denied bullying or intimidating employees, describing the witnesses' evidence
as exaggerated, fabricated and motivated by a concerted campaign against
him. Regarding the suspension- related allegations, he disputed that he had
acted improperly and maintained that his conduct was authorised or
misunderstood.
[27] The applicant seeks to review and set aside the o utcome issued in terms of
section 188A of the LRA, on the basis that the Commissioner committed
reviewable irregularities as contemplated in section 145 of the LRA , rendering
the outcome one that a reasonable decision-maker could not have reached.
[28] The applicant submits that the Commissioner erred both in finding him guilty
of four misconduct charges and in recommending dismissal. It is further
contended that, even if the findings on guilt were sustainable, the
contended that, even if the findings on guilt were sustainable, the
Commissioner committed a material irregularity by recommending dismissal
without affording the applicant an opportunity to present evidence or
8
submissions in mitigation. According to the applicant, the Commissioner
considered only aggravating factors and failed to consider relevant mitigating
circumstances, including his length of service, disciplinary record and overall
contribution to the third respondent.
[29] The applicant further submits that the proceedings were procedurally unfair
because the Commissioner incorrectly permitted legal representation. He
argues that proceedings conducted under section 188A are governed by r ule
25 of the Rules for the Conduct of Proceedings before the Commission for
Conciliation, Mediation and Arbitration, and that the statutory requirements
permitting legal representation were not satisfied. It is contended that the
Commissioner misconstrued the applicable legal framework, predetermined
the issue and demonstrated bias in favour of the third respondent.
[30] The applicant also argues that the disciplinary charges were procedurally
defective because they differed materially from the allegations initially
investigated and those upon which he was suspended. He submits that the
charges lacked the necessary specificity, particularly those alleging bullying
and intimidation "on various occasions", thereby depriving him of a fair
opportunity to prepare his defence. He further contends that several
allegations related to events dating back to 2016 and 2017, were excessively
stale, and had either already been addressed internally or constituted
impermissible double jeopardy.
[31] On the merits, the applicant submits that the Commissioner failed to properly
assess the evidence and credibility of the witnesses. He contends that the
Outcome contains numerous factual inaccuracies, incorrect dates,
mischaracterisations of witness testimony and omissions of material evidence.
These errors, it is argued, demonstrate that the Commissioner failed to apply
his mind to the evidence and reached findings unsupported by the record.
his mind to the evidence and reached findings unsupported by the record.
[32] The applicant further contends that the Commissioner failed to apply the
principles governing the assessment of mutually destructive versions as
articulated in Stellenbosch Farmers' Winery Group Ltd and Another v Martell
9
and Cie SA and Others 7. In particular, he submits that the Commissioner
ignored significant internal and external contradictions in the evidence of the
third respondent’s witnesses, failed properly to assess credibility and
probabilities, and accepted their evidence notwithstanding material
inconsistencies.
[33] The applicant disputes the findings on the bullying and intimidation charges,
contending that the conduct relied upon by the third respondent amounted to
legitimate managerial supervision, performance management and the
exercise of disciplinary authority rather than workplace bullying. He argues
that isolated incidents of criticism, correction or disciplinary intervention do not
satisfy the accepted definition of bullying, which requires repeated and
deliberate misuse of power.
[34] The applicant also challenges the findings relating to the remaining
misconduct charges, contending that the evidence did not establish
misconduct on a balance of probabilities and that the Commissioner ignored
contextual evidence explaining his conduct. He submits that the
Commissioner accepted the third respondent 's version without properly
considering his explanations or the documentary evidence.
[35] Finally, the applicant submits that the cumulative effect of the Commissioner's
errors, including permitting legal representation, failing to consider relevant
evidence, relying on incorrect facts, misapplying legal principles, overlooking
contradictions in the third respondent 's evidence and failing to permit
mitigation constitutes misconduct and gross irregularities in the conduct of the
proceedings. Accordingly, the a pplicant contends that the o utcome falls to be
reviewed and set aside.
[36] In response the third respondent submits that the review application should be
dismissed. Its principal submissions may be summarised as follows:
36.1 the applicant has misconceived the nature of review proceedings by
seeking to re-argue the merits of the disciplinary enquiry;
seeking to re-argue the merits of the disciplinary enquiry;
7 2003 (1) SA 11 (SCA).
10
36.2 i t contends that the supplementary affidavit amounts to a factual
appeal, inviting the Court to reconsider the evidence rather than
determine whether the Commissioner's decision falls within the band of
reasonable decisions contemplated in Sidumo and Another v
Rustenburg Platinimum Mines Ltd and Others
8 and subsequent
authorities;
36.3 R elying on authorities including Cox v CCMA and Others9, Gold Fields
Mining (SA) (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Other s
10, Duncanmec (Pty) Ltd v Gaylard NO and
Others11 and Marthinussen v Metal and Engineering Industries
Bargaining Council and Others 12, the third respondent argues that the
Court should not interfere merely because another decision could have
been reached;
36.4 t he third respondent further rejects the applicant's complaints regarding
the drafting of the disciplinary charges. Relying on Labour Appeal
Court authority, it submits that disciplinary charges should not be
approached with undue technicality and that the applicant was fully
aware of the case he had to meet;
36.5 i t emphasises that the section 188A inquiry extended over
approximately one year, during which the applicant had ample
opportunity to hear the evidence, consult his legal representative and
cross-examine witnesses;
36.6 i n respect of the procedural complaints, the third respondent submits
that the applicant's allegations concerning mitigation, legal
representation and other procedural irregularities lack merit;
36.7 i t contends that these allegations are unsupported by the complete
transcript, portions of which the applicant elected not to place before
8 (2007) 28 ILJ 2405 (CC).
9 [2001] 2 BLLR 141 (LC).
10 (2014) 35 ILJ 943 (LAC).
11 (2018) 39 ILJ 2633 (CC).
12 (JR2862/2011) [2015] ZALCJHB 27 (27 January 2015).
11
the Court, and that none of the alleged irregularities render the award
reviewable;
36.8 the third respondent submits in respect of the trust relationship and the
credibility findings, that the Commissioner properly considered the
deterioration of the employment relationship;
36.9 it points to evidence that the applicant accused the third respondent of
conspiracies, challenged the appointment of the CEO, referred
disputes and made allegations against senior management, all of
which the Commissioner was entitled to consider in assessing whether
the trust relationship had broken down;
36.10 the third respondent further argues that credibility findings attract
judicial deference and should not readily be interfered with on review;
36.11 in respect of the bullying allegations, the third respondent contends that
the Commissioner thoroughly considered the applicant's allegations of
bullying. It submits that the applicant omitted those portions of the
transcript dealing with his cross -examination on this issue and that the
concept of bullying cannot be determined simply by reference to a
dictionary or internet definition;
36.12 in respect of the errors in the o utcome, the third respondent argued
that the applicant's reliance on approximately twenty alleged
grammatical or factual errors in the outcome is misplaced. It submits
that even if such errors exist, they amount at most to mistakes which
do not establish a reviewable irregularity;
36.13 relying on Telcordia Technologies Inc v Telkom SA Ltd
13 and Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and Arbitration
and Others14, the third respondent submits that an arbitrator is entitled
to make errors without rendering the award reviewable, provided the
enquiry was properly undertaken and the outcome remains reasonable;
13 [2007] 2 All SA 243 (SCA).
14 (2008) 29 ILJ 2899 (LAC).
12
36.14 the third respondent further submits in respect of the evidence before
the Commissioner, that he was entitled to accept the evidence of
witnesses such as Ms Vendle and Mr Msomi, whose material evidence
remained largely uncontested. It further submits that the Commissioner
correctly observed inconsistencies in the applicant's own version during
cross-examination and was entitled to draw adverse credibility findings;
36.15 the third respondent also notes that the Commissioner acquitted the
applicant on several charges, demonstrating that the evidence was
carefully and objectively evaluated rather than accepted uncritically ;
and
36.16 in conclusion the third respondent submits that on the available record,
the Commissioner's findings fall within the range of decisions that a
reasonable decision- maker could reac h, and the review application
should therefore be dismissed, with costs.
Interlocutory Application
[37] Before considering the grounds of review, it is necessary to deal with the
interlocutory application brought by the applicant after the matter had been
argued and while judgment was pending.
[38] The application seeks an order reopening the review proceedings and
admitting as further evidence public statements allegedly made by the
Administrator of the third respondent on 20 March 2026. The applicant
contends that those statements constitute admissions that he suffered an
occupational detriment as a consequence of having made protected
disclosures and that his dismissal was automatically unfair in terms of section
187(1)(h) of the LRA. He accordingly seeks, inter alia, that the Court admit the
alleged new evidence and substitute the section 188A outcome with an order
declaring his dismissal automatically unfair and reinstating him retrospectively
with full backpay and benefits.
[39] The interlocutory application must be considered within the confines of the
proceedings presently before this Court. The main application is a review in
proceedings presently before this Court. The main application is a review in
terms of section 145 of the LRA of the outcome of an inquiry conducted in
13
terms of section 188A. It is not an appeal against the merits of the
Commissioner's decision, nor is it a hearing de novo of the applicant's
dismissal dispute.
[40] The distinction is fundamental. In a review application, this Court is required to
determine whether the Commissioner committed a reviewable irregularity
contemplated by section 145 of the LRA and, applying the constitutional
standard of reasonableness, whether the decision reached falls within the
range of decisions that a reasonable decision- maker could reach on the
material that served before him. The Court is not called upon to determine
whether the Commissioner reached the correct decision or whether t his Court
would, on a reconsideration of the evidence, have reached a different
conclusion.
[41] The enquiry is therefore directed at the decision under review and the
evidential and procedural material relevant to that decision. The function of
the reviewing Court is supervisory rather than appellate. It is not open to a
review court to assume the powers of the primary decision- maker and
determine the underlying dispute afresh merely because additional evidence
has subsequently become available.
[42] The evidence upon which the applicant now relies did not form part of the
proceedings before the Commissioner. Indeed, on the applicant's own
version, the statements relied upon were made on 20 March 2026,
contemporaneously with or after the hearing of the review application before
this Court. The applicant expressly relies upon their subsequent emergence
as the reason why the evidence could not have been placed before the Court
at the hearing.
[43] The difficulty is that the proposed evidence does not demonstrate that the
Commissioner committed a reviewable irregularity, misconceived the nature
of the enquiry, failed to consider material evidence that was before him, or
reached a decision that a reasonable decision- maker could not have reached
reached a decision that a reasonable decision- maker could not have reached
on the evidence before him. Rather, the applicant seeks to rely upon a
subsequent change in the third respondent's position to establish the
14
substantive merits of his contention that his dismissal was automatically
unfair.
[44] That is not the enquiry which this Court is required to undertake. The
applicant's reliance on the Administrator's subsequent statements effectively
invites this Court to determine the underlying dispute afresh and, on the basis
of evidence that was not before the Commissioner, to substitute its own
determination for that of the decision- maker. Such an approach would
impermissibly convert the review into an appeal or a rehearing on the merits.
[45] The applicant's contention that the statements are “dispositive of the whole
dispute” does not alter the position. Even assuming, without deciding, that the
statements constitute admissions by a person authorised to make them, they
do not retrospectively become part of the evidential record before the
Commissioner, nor do they establish that the Commissioner's decision was
unreasonable when it was made.
[46] Nor does the fact that the statements were made before judgment was
delivered alter the nature of the review enquiry. The fact that judgment had
been reserved does not entitle the applicant to introduce subsequent
evidence which fundamentally changes the evidential basis upon which the
review is to be determined and thereby transform the proceedings into a
determination of the underlying dismissal dispute.
[47] The applicant's further contention that the third respondent has effectively
abandoned its opposition to his case does not lead to a different conclusion.
The applicant himself records that, notwithstanding the Administrator's
statements, the third respondent declined to enter into a settlement
agreement and instead required the applicant to obtain an order from this
Court. The alleged concession therefore does not dispose of the review
before the Court.
[48] It follows that the Court cannot, in these review proceedings, determine the
applicant's entitlement to reinstatement and backpay on the basis of
applicant's entitlement to reinstatement and backpay on the basis of
subsequent evidence which was not before the Commissioner. The Court
must determine the review on the grounds of review properly before it and
15
with reference to the record of the proceedings under review. The
interlocutory application accordingly falls to be dismissed.
[49] I turn now to the grounds advanced in support of the review application.
Analysis
[50] The applicant advances numerous grounds upon which he contends that the
outcome is reviewable. These include complaints concerning the
Commissioner's assessment of the evidence, the credibility findings made, the
formulation of the disciplinary charges, alleged procedural irregularities during
the proceedings, the Commissioner's findings on sanction and the breakdown
of the trust relationship, as well as various alleged factual and grammatical
errors contained in the outcome.
[51] The starting point is the well -established distinction between an appeal and a
review. A review court is not concerned with whether the Commissioner
reached the correct conclusion or whether this Court would have reached a
different conclusion on the evidence. The enquiry is whether the
Commissioner misconceived the nature of the enquiry, committed a
reviewable irregularity, ignored material evidence, or reached an outcome that
falls outside the band of decisions to which a reasonable decision- maker
could come on the material before him or her.
[52] The authorities, including Sidumo, Herholdt v Nedbank Ltd
15, Gold Fields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others and Head of the
Department of Education v Mofokeng and Others 16, make it clear that a
review court must consider the totality of the evidence and determine whether
the outcome is one that a reasonable arbitrator could reach. It is equally well
established that a review is not an appeal disguised as an attack on the
commissioner's reasoning.
[53] Having considered the o utcome, the record placed before the Court and the
extensive submissions advanced by the applicant, I am not persuaded that
the applicant has established any reviewable irregularity. Much of the
15 [2013] 11 BLLR 1074 (SCA).
15 [2013] 11 BLLR 1074 (SCA).
16 [2015] 1 BLLR 50 (LAC).
16
applicant's challenge constitutes a detailed attack on the Commissioner's
factual findings and credibility assessments. The applicant identifies
numerous instances where, in his view, the Commissioner ought to have
preferred his version, drawn different factual inferences or attached greater
weight to particular evidence. These submissions effectively invite this Court
to reconsider the merits of the dispute and substitute its own assessment of
the evidence for that of the Commissioner. That is not the function of a review
court.
[54] The Commissioner analysed the evidence presented by the respective
witnesses, dealt with the probabilities, assessed credibility where necessary
and furnished reasons for accepting certain evidence while rejecting other
evidence. Importantly, the Commissioner did not simply accept the third
respondent's version in its entirety. The o utcome demonstrates that the
Commissioner acquitted the applicant on a number of allegations whilst
finding other charges proved. This is indicative of a careful and independent
assessment of the evidence rather than an uncritical acceptance of the third
respondent's case.
[55] The applicant also places considerable reliance on what are described as
factual inaccuracies, grammatical errors and inconsistencies contained in the
outcome. Even if some of those criticisms are accepted, they do not, without
more, render the o utcome reviewable. An o utcome is not required to be
flawless. The enquiry remains whether any alleged error materially affected
the outcome or demonstrates that the commissioner misconceived the
enquiry. The applicant has failed to establish such a causal connection. The
alleged errors do not detract from the reasonableness of the ultimate
conclusions reached by the Commissioner.
[56] Similarly, the applicant's complaints concerning the formulation of the
disciplinary charges cannot be sustained. Labour law does not require
disciplinary charges to be drafted with the precision expected of criminal
disciplinary charges to be drafted with the precision expected of criminal
indictments. The relevant enquiry is whether the employee understood the
allegations he was required to meet and whether he was afforded a fair
opportunity to answer them. The record demonstrates that the disciplinary
17
enquiry extended over a lengthy period, the applicant was legally represented,
extensive evidence was led, and he enjoyed a full opportunity to cross -
examine witnesses, testify and present his defence. No prejudice arising from
the wording of the charges has been established.
[57] Nor am I persuaded that the procedural complaints relied upon by the
applicant establish reviewable irregularities. Whether considered individually
or cumulatively, they do not demonstrate that the C ommissioner deprived the
applicant of a fair hearing or failed to determine the real dispute between the
parties. At best for the applicant, some of the complaints amount to
disagreements with procedural rulings or with the manner in which the
Commissioner exercised his or her discretion. Such disagreements do not,
without more, establish reviewable misconduct.
[58] The applicant further challenges the C ommissioner's findings concerning the
breakdown of the trust relationship. However, the o utcome reflects that the
Commissioner considered the evidence bearing upon that issue, including the
nature of the misconduct found to have been committed, the applicant's
conduct towards colleagues and management, and the impact of that conduct
on the ongoing employment relationship. The conclusion that the trust
relationship had irretrievably broken down is one that was reasonably open to
the Commissioner on the evidence before him.
[59] The Court is also mindful that credibility findings are generally entitled to
considerable deference on review. The C ommissioner had the benefit of
observing the witnesses testify, assessing their demeanour and evaluating
their evidence within the context of the proceedings as a whole. Nothing
placed before this Court demonstrates that those credibility findings were
irrational, arbitrary or unsupported by the evidence.
[60] Having regard to the evidence in its totality, the reasoning contained in the
outcome and the applicable review principles, I am satisfied that the
outcome and the applicable review principles, I am satisfied that the
Commissioner identified the true dispute, considered the material evidence,
applied the correct legal principles and reached conclusions that fall within the
band of decisions to which a reasonable decision- maker could come. The
18
applicant has failed to establish that the Commissioner misconceived the
nature of the enquiry, ignored material evidence or committed any gross
irregularity that rendered the outcome unreasonable.
[61] The review application accordingly falls to be dismissed.
Costs
[62] In relation to costs, this Court exercises a broad discretion in terms of section
162 of the LRA to make orders according to the requirements of the law and
fairness. As the Constitutional Court explained in Zungu v Premier of
KwaZulu-Natal and others
17, the ordinary rule that costs follow the result does
not apply in labour matters. The Court is required to strike a fair balance
between ensuring that litigants are not unduly discouraged from approaching
the Labour Court and discouraging parties from pursuing litigation that ought
not reasonably to have been brought or persisted with.
[63] It is equally well established that the purpose of an award of costs is to
indemnify the successful litigant for the expense to which it has been put in
defending or pursuing litigation. As was observed in Public Servants
Association of South Africa obo Khan v Tsabadi NO and Others
18, unless
there are sound reasons to depart from that approach, fairness generally
dictates that a successful litigant should not be left out of pocket where it has
been compelled to incur legal costs in defending proceedings.
[64] In the present matter, I am satisfied that considerations of both law and
fairness warrant a costs order against the applicant.
[65] First, for the reasons set out above, the review application was devoid of
merit. The applicant failed to establish any reviewable irregularity on the part
of the Commissioner or that the o utcome was one that no reasonable
decision-maker could have reached. The third respondent was accordingly
compelled to incur the costs of opposing a review application for which there
was no proper legal or factual basis.
17 (2018) 39 ILJ 523 (CC).
18 (2012) 33 IL 2117 (LC).
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[66] Secondly, the applicant elected to prosecute the review on the basis of a
record that was, as correctly submitted by the third respondent,
“dysfunctional”. As the dominus litis , the applicant bore the responsibility of
ensuring that a proper, coherent and usable record was placed before the
Court. The applicant failed to discharge that obligation. The deficiencies in the
record unnecessarily complicated the determination of the review, required
the third respondent to expend additional time, effort and costs in attempting
to identify, reconstruct and respond to the relevant material, and placed an
unwarranted burden on this Court. Instead of being presented with a coherent
record that facilitated the adjudication of the review, this Court was required to
expend considerable time and effort in attempting to navigate, decipher and
reconcile a record that was poorly compiled and difficult to follow. The
administration of justice is not served where review proceedings are
prosecuted on the basis of a record that frustrates the proper and efficient
determination of the issues before the Court.
[67] Having regard to the absence of any merit in the review application, together
with the applicant's failure to place a proper record before this Court, I am
satisfied that this is one of those matters where the requirements of law and
fairness justify a departure from the general approach in labour matters. The
third respondent ought not to bear the costs of successfully opposing a
meritless review that was prosecuted on the basis of a dysfunctional record.
In the exercise of my discretion under section 162 of the LRA, I am
accordingly satisfied that it is fair and equitable that the applicant be ordered
to pay the third respondent's costs, including the costs that were reserved on
18 May 2023.
[68] In the premises, the following order is made:
Order
1. Condonation for the late filing of the record is condoned.
2. The review application is dismissed.
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3. The applicant is to pay the third respondent’s costs on a party and
party scale.
______________________
H. Schensema
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant : KMG & Associates Incorporated
For the Third Respondent : Advocate F Venter
Instructed by : Cheadle Thompson & Haysom Incorporated
Attorneys
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