THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR 142/23
In the matter between:
ADCOCK INGRAM CRITICAL CARE PROPRIETARY LIMITED Applicant
and
NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL First Respondent
INDUSTRY
LUYANDA OLOTA N.O Second Respondent
GIWUSA obo SIPHIWE MADI Third Respondent
Heard: 30 APRIL 2026
Delivered: 2 SEPTEMBER 2026
JUDGMENT
PEER, AJ
Introduction
[1] This is a review application instituted by applicant , Adcock Ingram Critical
Care Proprietary Limited (“Adcock”) in terms of section 145 (2) of the Labour
Relations Act , 1995 (“LRA”) to review and set aside an arbitration award
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
____________ 2 September 2026
Signature Date
2
issued under the auspices of the National Bargaining Council for the
Chemical Industry (“the Council”) dated 21 November 2022 (“the Award”).
[2] The application is opposed by the third respondent , General Industries
Workers’ Union of South Africa (“Giwusa”), a registered trade union, who
acts on behalf of an erstwhile employee of Adcock, Mr Siphiwe Madi (“Madi”)
Background facts
[3] Adcock is a South African pharmaceutical manufacturer, which
manufactures and distributes various health care products.
[4] Mr Madi was employed by Adcock on 5 April 2015 as an operator. His duties
involved cleaning facilities, and flushing and sanitising machines used for the
manufacture of products by Adcock.
[5] On 7 March 2021, Madi reported for duty and was scheduled to work from
19h30 to 03h30. The production supervisor s in charge w ere Max Shai and
Johnson Mazibuko.
[6] It is common cause that Madi left his shift and Adcock’s premises prior to the
completion of the shift. This was approximately two hours prior to the shift
being scheduled to end. He did not inform the shift supervisor.
[7] Madi’s explanation was that he had to attend to his pregnant spouse who
was experiencing an emergency.
[8] Arising out of this incident, Madi was charged with the following allegations
of misconduct:
“1. Fraud/Forgery: it is alleged that you committed fraud n that on or about 8
March 2021 you misrepresented information to the Company when you
signed the Department’s daily attendance register stating your working hours
from 19h30 to 03h30, whereas these were no the hours that you worked.
2. Desertion of post: It is alleged that on or about 8 March 2021 you left work
before the agreed time without authorisation from your Supervisor on shift”
3
[9] Madi was found guilty of charge 2 with a recommended sanction of
dismissal.
[10] He subsequently appealed his dismissal internally , but his appeal was
unsuccessful.
[11] On 26 March 2021, Madi was dismissed for misconduct.
[12] Following Madi’s dismissal, Giwusa on his behalf referred an unfair dismissal
dispute to the Council.
[13] On 21 November 2022, the Commissioner issued the Award where he found
Madi’s dismissal to be unfair.
[14] In arriving at this conclusion, the Commissioner’s reasoning was as follows:
14.1 The breach of a workplace rule was not in dispute in that Madi
admitted to leaving his post, and pleaded guilty to the allegation. The
rule was a reasonable one.
14.2 While Madi may have panicked when he left his shift with out
authorisation, there was no actual emergency. However, according
to the Commissioner , what came to light in the evidence was that
Madi’s pregnant partner was sick, and his conduct was attributable
to this panic. On this basis Madi presented a justifiable reason for
the breach of the rule.
14.3 In relation to sanction, while the time lost from work was found to be
“slightly long”, the Commissioner accepted the justification of panic
causing Madi to act abruptly. This was consistent with the conduct of
a reasonable person.
14.4 The Commissioner accepted that Adcock’s policy prescribed a
sanction for dismissal for a second offence of leaving one’s post
without permission and that Made had a valid final written warning in
place at the time. However , Adcock could not prove that it suffered
any prejudice by absconsion.
4
14.5 The Commissioner rejected Madi ’s contention that he did not know
about the warning as Madi himself previously conceded to receiving
it, and conceded that it was his signature on it.
14.6 The Commissioner acc epted that Madi was remorseful, he was
willing to accept a sanction short of dismissal, the misconduct was
not serious and it had no impact on the relationship of trust.
14.7 The Commissioner found that dismissal was too harsh a sanction
[15] The Commissioner accordingly ordered that Madi be re- employed, without
back pay.
Review application
[16] Adcock subsequently instituted a review application to review and set aside
the Award.
[17] Adcock relied on the following grounds of review , duly summarised in the
heads of argument submitted on its behalf:
17.1 The Commissioner arrived at a conclusion which no reasonable
decision maker could have reached on the evidence before her resulting
in a gross irregularity in the conduct o f the proceedings that found that
Madi had a justifiable explanation for his absence.
17.2 The Commissioner arrived at a conclusion which no reasonable
decision maker could have reached resulting in a gross irregularity in
the conduct of the proceedings which found that dismissal was too
harsh a sanction.
Submissions by parties
[18] In respect of the first ground of review, Adcock submits that after correctly
finding that there was no sudden emergency, the Commissioner ought to
have concluded that Madi did not have a justifiable and reasonable
explanation for his unauthorised absence. The Commissioner accepted the
justification on the basis of panic by Madi.
5
[19] However, according to Adcock, it was not Madi’s evidence that he had
panicked. Instead, his evidence was that he pushed most of his work and
would explain the absence to his supervisor when he returned.
[20] According to Ad cock, this conclusion was not one a reasonable decision
maker could have reached on the evidence before her.
[21] Further, this had a material effect on the outcome of the arbitration
proceedings, resulting in the unfair dismissal finding . In this regard, Adcock
submits that the Commissioner committed a gross irregularity in the conduct
of the proceedings.
[22] In respect of the second ground of review, Adcock submits that the
Commissioner reasonably concluded that there was a final written warning
issued to Madi, that the rule not to abandon one’s shift without authorisation
was reasonable and that Madi had breached the rule.
[23] However, according to Adcock , the Commissioner made five unreasonable
findings, namely, that Adcock had not suffered any prejudice as a result of
Madi having left early, that Madi displayed remorse, that unauthorised
misconduct is not serious, that Madi had a justifiable reason for his
absenteeism and that the sanction of dismissal was too harsh.
[24] Adcock submits that all of these findings had a material effect on the
outcome. This resulted in an irregularity in the proceedings.
[25] On the other hand , Giwusa submit s that in relation to the first ground of
review, the existence of a medical emergency did not impact on Madi’s
subjective belief that there was concern for his partner and her state of
pregnancy. Madi’s partner testified that she contacted Madi to infor m him
that she was experiencing difficulties similar to a time when she had a
miscarriage. Giwusa further submits that Madi “likely panicked”.
[26] Further, Adcock misinterpreted the Commissioner’s reference to
“justification” for breach of the rule. This did not exonerate Madi of guilt, but
6
merely mitigated the blameworthiness, rendering the dismissal as an
excessive sanction.
[27] Giwusa submit s that the core reason for finding that Madi’s dismissal was
unfair is that Adcock failed to consider mitigatory circumstances under which
the rule was breached. This was a reasonable outcome.
[28] In relat ion to the second ground of review, Giwusa submit s that given the
circumstances, the finding that the sanction was too harsh was reasonable.
The circumstances mitigated the seriousness of the misconduct.
[29] Further Adcock did not identify any actual harm caused by Madi’s
misconduct. Therefore, it could not prove any prejudice suffered. It only
referred to the potential harm where it stated that Madi performed critical
functions and his conduct could have resulted in contamination. However, no
evidence to this effect was led.
[30] The Commissioner did not apply the default remedy of reinstatement nor
awarded back pay, because Madi was guilty of misconduct. The Award also
noted that Madi was out of salary for 18 months which was a sufficient
sanction on its own. These considerations led to a reasonable outcome.
[31] Giwusa states that in relation to Madi’s denial of the final written warning, the
fact that the Commissioner did not make an adverse finding against Madi
does not mean that the Commissioner did not consider all material evidence
before her.
Legal principles
[32] The established and now trite test for review applications is whether the
arbitrator’s conclusion is one that falls within a range of decisions that a
reasonable decision maker could make.1
1 Sidumo and Another v Rustenburg Platinum Mines Ltd and Others [2007] ZACC 22; ( 2007) 28
ILJ 2405 (CC) at para 110.
7
[33] It has been held that the review court must ascertain whether the arbitrator
considered the issue in dispute, evaluated the facts presented at the
hearing, and came to a conclusion that is reasonable.2
[34] In Securitas Specialised Services (Pty) Ltd v Commission for Conciliation
Mediation and Arbitration and Others 3 it was restated that the test for review
is as follows:
‘[19] “Is the decision reached by the arbitrator one that a reasonable
decision maker could not reach?” 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 be unreasonable if it is
entirely disconnected with the evidence, unsupported by any evidence
and involves speculation by the arbitrator.
[20] This court has eschewed a piecemeal approach to a review
application by the Labour Court. The proper approach is for the
Labour Court to consider the totality of the evidenc e in deciding
“whether the decision made by the arbitrator is one that a reasonable
decision-maker could make”.’
[35] This court has said that it is not for the review court to intervene only
because it would have come to a different conclusion on the same evidence.
The additional requirements of unreasonableness of the decision set out
above must be met.4
2 Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and others [2013] ZALAC 28; (2014) 35 ILJ 943 (LAC).
3 [2021] ZALAC 5; [2021] 5 BLLR 475 (LAC) at paras 19 – 20.
4 Tactical Reaction Services v Thompson Colleen Clevis and ot hers (JR 1054/2018) [2023]
4 Tactical Reaction Services v Thompson Colleen Clevis and ot hers (JR 1054/2018) [2023]
ZALCJHB 187 19 June 2023 at para 7.
8
Analysis
[36] In the first instance, I believe that it was material that Madi repeatedly denied
the final written warning at the arbitration, despite admitting receipt of the
warning and that the signature appended to it was his . This was material
dishonesty on the part of Madi, which the Commissioner failed to take into
account. I agree with Mr Van As on behalf of Adcock that this should have all
but confirmed that the relationship of trust between the parties had broken
down. I am further of the view that such dishonest conduct in the course of
arbitration proceedings may be taken into account in considering the viability
of the continued relationship. In this case, such dishonesty had rendered any
continued relationship intolerable.
[37] Secondly, I agree with Adcock that once the Commissioner found that there
was no sudden emergency, the Commissioner ought to have interrogated
the basis on which Madi abandoned his shift with greater scrutiny. I find it
astonishing that the Commissioner could have found that Madi was in a state
of panic , when firstly this was not Madi’s version and second and more
importantly, on the way to attend to his distressed spouse, Madi had all the
time to meet a fellow colleague, offer him a lift home and drop him off, prior
to attending to his spouse. However , he was seemingly t oo panicked to be
able to inform his shift supervisor of his need to leave. The inferred state of
panic is not consistent with the evidence that was before the Commissioner.
Instead, the evidence reflects someone who was fully aware and in control of
the situation with all the time and opportunity to ensure that he was properly
excused from his shift. What is worse is that Madi’s own evidence was that
he had finished all his work and he would explain himself at a later stage to
his supervisor. This appears to be a calculated decision to leave early
without authorisation. Mr Shai, his supervisor, testified that he afforded Mad i
without authorisation. Mr Shai, his supervisor, testified that he afforded Mad i
three days to report his early departure from his shift which Madi failed to do.
There was certainly no panic in the days that followed the shift.
[38] Giwusa’s response falls short, where it contends that Madi’s subjective belief
reflected a state of panic. This is not consistent with the evidence that was
before the Commissioner. Madi’s conduct at the time contradicts any inferred
9
subjective state of panic . This ought to have been taken into account by the
Commissioner which would have materially affected the finding that Madi’s
unauthorised abandonment of his shift was justified.
[39] This error was unreasonable and material.
[40] Thirdly, in respect of the harshness of the sanction, the evidence does not
support the Commissioner’s finding that the sanction was too harsh.
[41] Mr Poriazis for Giwusa could not disagree on the ineffectiveness of
progressive discipline, after Madi had already received a final written
warning for similar misconduct committed previously . The Commissioner
failed to take into account that this warning had failed to elicit a change in
behaviour and that there were little alternatives available. This was more so
when Adcock’s disciplinary policy recommended dismissal for a second
offence of leaving one’s post without authorization.
[42] The Commiss ioner’s finding of remorse was also not consistent with the
evidence. Aside from pleading guilty, t he record did not reflect an ounce of
remorse, and worse, Madi’s dishonesty regarding the existence of the final
written warning is inconsistent with any contended remorse.
[43] In relation to the finding that there was no prejudice suffered and the
misconduct was not serious , the Commissioner and Giwusa are correct that
there was no prejudice ultimately suffered, notwithstanding the potential
harm that could hav e been caused by way of contamination. However, this
does not mean that Madi’s desertion of his shift was not serious. Madi left his
shift without informing a supervisor, for the second time, and worse,
remained silent for three days until he was confronted about it. This denied
Adcock the opportunity to make arrangements in order to ensure that the
sanitisation of the machines were attended to, to avoid the risk of
contamination. In my view this is not trivial. Further Giwusa itself admitted
that the misco nduct was serious, but that there were mitigating
that the misco nduct was serious, but that there were mitigating
circumstances.
10
[44] The Commissioner accordingly erred in finding that dismissal was too harsh
on the basis of the misconduct not being serious. Further, an incorrect
message would be sent to the rest of the workforce that they may abandon
their shift without serious consequences, because such abandonment would
not be regarded as serious misconduct. This was a material and
unreasonable finding by the Commissioner.
[45] On a wholistic consideration, the findings that there was a justification for
Madi’s desertion of his shift, and that dismissal as a sanction was too harsh,
is unreasonable and should be reviewed and set aside.
[46] I replace it with a finding that the dismissal was fair , and that the sanction of
dismissal was appropriate in the circumstances.
Costs
[47] In relation to costs, this is a court of equity and fairness and it is now trite
that the principle of the costs following the result does not necessar ily apply
to matters in this C ourt. In exercising my discret ion, I am of the view that
there should be no order as to costs.
[48] In the premises, the following order is made:
Order
1. The arbitration award issued by the second respondent on 21
November 2022 under case number CHEM271 -20/21 is reviewed and
set aside.
2. The award is substituted by the following:
‘The applicant’s dismissal was fair’.
3. There is no order as to costs.
_____________________
Yusuf Peer
Acting Judge of the Labour Court of South Africa
11
Appearances:
For the Applicant: Mr MJ van As
Instructed by: Werkmans Attorneys
For the Third Respondent:
Trade Union Representative Mr K. Poriazis, GIWUSA