THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case No: JR 1054/2021
FISCHER TUBE TECHNIK (PTY) LTD Applicant
and
DISPUTE RESOLUTION CENTER First Respondent
JACKSON MTHUKWANE N.O. Second Respondent
NUMSA obo B NTIMANE & 3 OTHERS Third
Respondent
Heard: 24 June 2026
Delivered: 7 September 2026
JUDGMENT
MAHOMED, AJ
Introduction
[1] The workplace is, in the main, a place of trust. An employer cannot station a
supervisor at the shoulder of every operator for every hour of every shift; it
must, of necessity, repose confidence in its employees to remain at their
2
posts and to do the work for which they are paid. This dispute is, at the
bottom, about what happens when an employer comes to suspect that such
trust has been abused, first by the alleged smoking of a prohibited
substance in a concealed area of the factory, and second by employees
allegedly deserting their workstations to do so for such purpose repeatedly,
and about whether the Second Respondent ( the Commissioner ) who was
called upon to test th ose allegations applied his mind to the enquiry that
was before him.
[2] This is an application brought in terms of section 145 of the Labour
Relations Act
1 (the LRA ) to review and set aside the arbitration award
issued by the Commissioner under the auspices of the First Respondent on
20 April 2021.
[3] In that award, the Commissioner found that the dismissal of the four
employees represented by the Third Respondent ( the Dismissed
Employees) was substantively unfair and ordered their reinstatement with
retrospective effect together with full backpay.
2 The primary relief granted to
the Dismissed Employees is a hard won right under the LRA where a
Commissioner finds that the dismissal is substantively unfair. On the other
hand, such relief does not sting, but strikes deep for an employer which
holds that the dismissal was substantively fair. It is precisely this very issue
which is contentious and brings litigants to the Labour Court on review.
[4] The Applicant ( the Company ) contends that the Commissioner committed
material irregularities and reached a conclusion that no reasonable
decision-maker could reach on the evidence before him. The Company
seeks that the award be reviewed and set aside and substitute d with a
finding that the dismissals were fair. The Third Respondent supports the
award in its entirety and asks that the review be dismissed with costs.
[5] The Dismissed Employees only challenged the substantive fairness of their
dismissals.
1 Act 66 of 1995, as amended
2 Arbitration award paras 43-45 .
3
Background facts
[6] The four employees , Messrs Bafana Ntimane, Hunnington Mpika, Temba
Skhosana and Emmanuel Tema were employed by the Company as
operators on its production floor, engaged in the manufacture of stainless -
steel motor-vehicle exhausts to order.
[7] On or about 13 April 2018, Mr Kendall Hibbert, the Company’s Production
Manager, conducted a walkabout of the premises and, in a secluded area
not covered by the fixed cameras, discovered the butt -ends of hand- rolled
cigarettes together with a small plastic packet containing a leafy compound,
all of which he suspected from their smell and appearance, and from his
own prior familiarity with the substance to be cannabis. Commonly known in
South Africa as dagga.
[8] Mr Hibbert thereupon installed a concealed camera which focused on the
secluded area. After approximately two months he reviewed the footage,
which depicted the employees and others repeatedly attending the area
during the night shift and smoking there. The footage was extensive: Mr
Ntimane was captured on 25 clips (5 April to 3 May 2018); Mr Tema on 22
clips (29 March to 24 April 2018); Mr Mpika on 31 clips (15 March to 25
April 2018); and Mr Skhosana on 48 clips (28 March to 25 April 2018).
[9] On 24 May 2018 the employees were charged and following a disciplinary
enquiry they were dismissed on 11 June 2018 on two complaints:
“(1) Unauthorised possession and/or use of dagga on the company
premises between the months of March and May … you were seen
on camera, in possession and smoking dagga on company
premises during night shift on more than one occasion.
(2) Deliberate failure to perform your duties and/or deserting your
workstation without permission. On several occasions you were
away from your workstation without permission and therefore not
performing your duties.” (My emphasis)
4
[10] The Company relied on two witnesses: Mr Hibbert, and Mr Petrus Jacobus
(Jaco) Jordaan, its Health and Safety Officer. Mr Hibbert identified the
substance smoked as dagga by reference to the manner in which the items
were rolled, handled and passed between the employees, that they burnt
brightly on the camera image, and that the employees spat frequently
because the joints were unfiltered. Mr Jordaan confirmed that he was
present when Mr Hibbert collected the remnants and identified the bag of
dagga and the unsmoked portions of the cigarette butts. The Company also
relied on its zero- tolerance policy on substance abuse, communicated by
memorandum on 5 August 2016.
[11] Mr Hibbert explained in his evidence how he identified the recovered
material and that he established that it was dagga from his own experience.
Under cross -examination, however, Mr Hibbert accepted that this
identification rested on opinion rather than any objective test . The record
shows that he attempted to justify his conclusions by relying on the
combination of:
11.1 the camera footage placing the applicants in the area; and
11.2 the material he believed was dagga that he found in the area.
[12] Only one witness, Mr Mpika, testified for the Dismissed E mployees. His
evidence was that the employees smoked ordinary “BB Best Blend”
tobacco, never dagga; that they chose the secluded area because it was
warmer at night ; that they attended the area only when a machine was
down; and that their night -shift supervisors, whom he identified as “Deen”
and “Ty”, were aware that they were doing so and that they did not hide
their conduct.
[13] Under cross-examination, however, Mr Mpika accepted that the employees
had no tea break (only a lunch break); that they left their workstations to
smoke regularly whenever there was a stoppage; and after some resistance
he accepted that they were not entitled to the breaks they were taking.
5
[14] Mr Mpika, testified that the breaks were taken regularly and with the
supervisors’ knowledge. Mr Kendal Hibbert testified that employees visited
the area at least daily. During the employees' case, Mr Mpika described the
practice as occurring repeatedly and routinely. The Company’s
representative asked how Mr Mpika knew the supervisors were aware of
the breaks and to this it was said that it was known to Deen and Tye.
[15] He nonetheless accepted that the employees were not entitled to those
breaks. It was expressly put to Mr Mpika that employees were not entitled
to the break; and Mr Mpika did not dispute the proposition, responding that
they were “not entitled to that particular break” and explaining the practice
by reference to waiting for work.
3
The arbitration award
[16] In relation to the first c omplaint, the Commissioner accepted that the
Company’s case was founded upon circumstantial evidence. This was also
accepted before this court.
[17] The Commissioner held that Mr Hibbert’s identification of the substance as
dagga did not constitute objectively proven fact from which a reasonable
inference could be drawn, being the opinion of a witness who was not an
expert in the identification of dagga smoked and based essentially on video
footage.
4
[18] The Commissioner further held that, because the Company had not
established when the remnants were collected, the proximity in time
between their collection and the employees’ presence could not be fixed,
with the result that the remnants could have been left by anyone, including
persons Mr Hibbert could not identify. He accordingly found that the
Company had failed to prove the first c omplaint on a balance of
probabilities.
3 Transcript Pages 215-216
4 Arbitration award para 35-36.
6
[19] In relation to the second c omplaint, the Commissioner found the complaint
to be vague in that it did not specify when the absences occurred. 5 He
accepted Mr Mpika’s evidence that the employees left their stations to
smoke only during breakdowns and that their supervisors were aware of
this. He reasoned that Mr Hibbert was the Production Manager and not the
employees’ night-shift supervisor and held that “ no direct or indirect
evidence was placed before me to suggest that the supervisor … did not
give them permission as alleged on the second charge”. He accordingly
found the second c omplaint, too, not proven. The Commissioner added, in
the alternative, that even had the employees been guilty of the second
complaint, dismissal would not have been an appropriate sanction.
[20] He then proceeded to f ind the dismissals substantively unfair and ordered
retrospective reinstatement with full backpay.
6
The test on review
[21] The principles governing a review under section 145 are settled and require
no elaborate restatement. In Sidumo and Another v Rustenburg Platinum
Mines Ltd and Others 7 the Constitutional Court held that the question is
whether the decision reached by the arbitrator is one that a reasonable
decision-maker could not reach on the material before him. That is a
stringent test, and it is not for this Court to ask whether it would itself have
arrived at a different conclusion.
[22] The reasonableness enquiry does not, however, license a supine deference
that overlooks how the arbitrator arrived at his result. In Herholdt v
Nedbank
8, the Supreme Court of Appeal explained that a gross irregularity
in the conduct of the arbitration including a misconception of the nature of
the enquiry, or a failure to have regard to material evidence will vitiate the
award where it is of such a nature that it has distorted the outcome and
rendered the result unreasonable. In Gold Fields Mining South Africa (Pty)
5 Arbitration award para 38.
6 Arbitration award para 43-45.
5 Arbitration award para 38.
6 Arbitration award para 43-45.
7 (2007) 28 ILJ 2405 (CC).
8 (2013) 34 ILJ 2795 (SCA).
7
Ltd (Kloof Gold Mine) v CCMA and Others 9 the Labour Appeal Court
confirmed that the arbitrator’s conduct of the process must be evaluated
holistically and against the totality of the evidence, and that a piecemeal or
selective treatment of the evidence may render the award reviewable if, on
the evidence as a whole, the result is one a reasonable decision -maker
could not reach. And in Head of Department of Education v Mofokeng and
Others
10, that Court cautioned that not every error is reviewable; an error
becomes reviewable only where it is material, in the sense that it has an
effect on the outcome of the dispute.
[23] These authorities may be reconciled in a single proposition. This Court
does not sit as a court of appeal against the factual findings of an arbitrator.
However, where the arbitrator has misconceived the very enquiry before
him or has failed to engage with evidence so material that its consideration
would reasonably have produced a different result, the award cannot stand,
because in such a case the reasonableness of the outcome cannot be
tested against a process that never grappled with the true issue.
[24] I now turn to deal in broad terms with the issues raised on review:
The circumstantial evidence on the first complaint
[25] It is common cause that the Company’s case on the first c omplaint was
circumstantial. The applicable principle, correctly identified by the
Commissioner himself with reference to POPCRU obo Ndokweni v Maritz
NO and Others 11 and NUM and Another v Kia Motors 12, is that the
inference sought to be drawn must be consistent with all the proved facts,
and that in a civil matter the onus is discharged where the inference
contended for is the most readily apparent and acceptable inference from
among several possible inferences , not, as in a criminal matter, the only
reasonable inference.
9 (2014) 35 ILJ 943 (LAC).
10 (2015) 36 ILJ 2802 (LAC).
11 (JR 2777/09) [2012] ZALCJHB 38 (3 May 2012)
12 (2007) 28 ILJ 2283 (LC)
8
[26] The Company submits that, having correctly stated that principle, the
Commissioner then failed to apply it, and instead required it to exclude
every possible alternative explanation before it could succeed. There is
some textual support for that complaint in the award, which reasons that the
remnants “could have been left there by anyone” . Standing alone, that
formulation edges towards the criminal standard. But an award must be
read as a whole and in the context of the evidence. I am not persuaded that
the Commissioner’s ultimate conclusion on the first c omplaint falls outside
the band of reasonableness. Three features of the record sustain his
finding. First, the identification of the substance as dagga rested entirely on
the lay opinion of Mr Hibbert, drawn from the brightness of the flame, the
sharing of the joint and the employees’ spitting; he was not an expert in the
identification of cannabis and no forensic analysis of the recovered material
was ever undertaken and there was also no proper logging of evidence
which was presented to the Commissioner . Second, the video footage did
not itself reveal the nature of the substance; even the Company’s own
papers describe it as “resembling cannabis” rather than as proven dagga.
This is not good enough to sustain the finding of guilt which the Company
was obligated to do at arbitration. Third, and tellingly, Mr Jordaan, accepted
that he could not exclude the possibility that the remnants had been
discarded by employees from an adjacent factory or by those responsible
for the upkeep of the garden in the secluded area.
13
[27] On that evidence, a reasonable decision- maker could conclude that the
most probable inference that the Dismissed E mployees were smoking
dagga had not been established to the requisite degree, notwithstanding
the suspicious location and conduct.
[28] An investigation is an important component of the workplace disciplinary
process because its outcome determines the fate of the implicated
process because its outcome determines the fate of the implicated
employee(s). Whilst I would describe the Company’s investigation as
genuine, substantial and not superficial , it was at the end of the day
13 The Commissioner recorded this concession in his award at para 21 , noting that Mr Jordaan
“could not exclude the possibility that the dagga butts were thrown at the secluded area by
employees from the adjacent factory or employees who were responsible for the up keep of the
garden in the secluded area”.
9
incomplete and insufficiently rigorous in certain critical respects. Mr Hibbert
conducted a walkabout, discovered suspected dagga remnants in a
secluded area, installed a concealed camera to monitor the area, reviewed
footage over an extended period, identified employees repeatedly attending
the area, and then, together with Mr Jordaan, inspected and collected
material found there. The investigation therefore involved physical
inspection, surveillance, witness observations and disciplinary proceedings.
The transcript demonstrates that the employer devoted significant time a nd
effort to establishing what was occurring in the secluded area rather than
acting on mere suspicion. However, the transcript also reveals important
limitations in the investigation. In relation to c omplaint one, no forensic
testing was conducted on the material recovered from the area; there was
no clear chain of custody which appears from the record ; the Company
relied largely on the observations and opinions of Mr Hibbert and Mr
Jordaan regarding the nature of the substance. There was also uncertainty
regarding the precise link between the recovered remnants and the
Dismissed E mployees, particularly given the evidence that other persons
had access to the area. These shortcomings ultimately led the
Commissioner to conclude that the Company had not proved that the
Dismissed Employees were smoking dagga.
[29] The finding of the Commissioner on the first c omplaint is , in the Court’s
view, one that a reasonable commissioner could reach, and the review
does not succeed on this ground.
Concessions, contradictions and probabilities
[30] The employer's case on complaint two was that the Dismissed Employees
repeatedly left their workstations during working hours and attended a
secluded area of the factory without permission, thereby failing to perform
their duties.
[31] Mr Hibbert testified that the Dismissed Employees regularly visited the area
[31] Mr Hibbert testified that the Dismissed Employees regularly visited the area
during night shifts and that their absences affected production. He
explained that the Company’s manufacturing process depended on
10
continuous operation and that employees leaving their stations had an
adverse impact on production levels. The Company's case was therefore
that the Dismissed Employees were absent from their workstations without
permission and were not performing their duties whilst in the secluded area.
[32] The Dismissed Employees' case was presented through Mr Mpika. He did
not dispute that the employees regularly left their workstations and went to
the secluded area. His evidence was that they did so when machinery had
broken down or when they were waiting for work. He maintained that their
supervisors, identified as Deen and Tye, knew about the practice and knew
where the employees were when they left their stations. To that extent, the
Commissioner correctly recorded in the award that Mr Mpika's version was
that the departures occurred during machine stoppages and with the
supervisors' knowledge. However, the Commissioner’s further statement
that this version was “not specifically disputed” is more difficult to reconcile
with the transcript because Mr Mpika was challenged extensively in cross -
examination about the legitimacy of these breaks and the basis upon which
the employees claimed they were entitled to leave their workstations.
[33] During cross -examination, Mr Mpika made a number of significant
concessions. He accepted that the employees had no tea break and
ultimately conceded that they were “not entitled to that particular break ”. He
also acknowledged that the employees routinely left their workstations to
smoke and that this was a longstanding practice. While he repeatedly
asserted that supervisors knew about the practice, the transcript does not
establish that any supervisor expressly granted permission or authorisation
for employees to leave their workstations. The evidence therefore
establishes, at its highest, supervisor knowledge rather than supervisor
authorisation. In this respect, the award moves from evidence of
authorisation. In this respect, the award moves from evidence of
“knowledge” to a conclusion of “permission” without identifying direct
evidence of authorisation in the transcript. I do not understand this to have
been the case of the Dismissed Employees when challenging the evidence
of the Company at arbitration. The Commissioner fails to engage with this
evidence.
11
[34] The finding that the complaint was “vague” is difficult to sustain in the face
of the dated and time-stamped video clips particularised.
[35] The Commissioner’s observation on sanction , namely that dismissal would
in any event have been inappropriate gives some insight into his thought
process. Whilst this observation may find some support in the transcript that
the practice was longstanding and allegedly known within the workplace,
the award does not meaningfully engage with evidence pointing in the
opposite direction, particularly Mr Mpika’s concession that the employees
were not entitled to the breaks they were taking, nor does it grapple in any
detail with the evidence concerning repeated departures from workstations
and the Company ’s evidence regarding operational impact. There is also
the issue of consistency which I turn to below.
[36] The Company led evidence, which on the record was not seriously
disputed, that the repeated desertion of workstations by groups of three or
more operators, and the switching off of machinery to enable it, disrupted
the production line, generated compensatory overtime and consequent
cost, and given that the employees were operators carried health and
safety risks. The Company subscribed to a zero- tolerance policy on the
misuse of company time and substances, communicated to staff in 2016.
[37] The Commissioner’s task was not merely to record the competing versions
but to weigh them, and in particular to grapple with the concessions
extracted by both parties.
[38] These were not peripheral matters. They went directly to the credibility of
the witness called and to the probabilities on the central factual dispute
under the second c omplaint. Yet the award contains no meaningful
engagement with them.
[39] A holistic evaluation of the evidence, as Gold Fields requires, demanded
that the Commissioner confront the concession for instance that the breaks
were unauthorised and the shifting nature of the exculpatory account, and
12
explain why, in the face of them, he nonetheless preferred the employees’
version. His failure to do so is a failure to apply his mind to material
evidence, and I am satisfied that it bore directly on his conclusion on the
second complaint.
[40] There are, on the record, genuine and unresolved considerations pulling in
both directions on sanction in respect of the second complain t. On the one
hand, the conduct, according to the Company was repeated, deliberate,
undertaken in a group over a period of months, and attended by operational
prejudice. On the other, there is evidence that the practice of smoking
during working hours was longstanding and tolerated; that supervisors and
even a member of management engaged in it , and, most pertinently on the
question of consistency, that one Mr Johan Smith was issued only with a
final written warning for smoking during working hours, and that a member
of management received a final written warning for the same conduct.
Consistency of sanction is a recognised component of substantive fairness,
and this evidence squarely engages it.
[41] The true vice of this award lies in the treatment of the second c omplaint,
and there the errors are neither isolated nor immaterial. The Commissioner
failed to weigh material concessions and contradictions; may even have
tampered with the onus of proof, misconceived the enquiry and, in
consequence, also left the seriousness and operational impact of the
misconduct complained about wholly unexamined, which in turn deprived
his observation (as “obiter” as it was) on sanction of any proper foundation.
Assessed holistically, as Gold Fields and Herholdt require, these are not the
ordinary imperfections that attend even a careful award; they are
interlocking failures that distorted the conduct of the enquiry and produced
a result on the second complaint that a reasonable decision- maker,
properly applying his mind to the totality of the evidence, could not reach.
properly applying his mind to the totality of the evidence, could not reach.
The cumulative effect of the errors accordingly renders the award in this
respect reviewable in terms of section 145 of the LRA.
Conclusion
13
[42] I accordingly find that the Company does not succeed in a review of the
award as it concerns the first complaint. Th ese findings by the
Commissioner stand. They are not upset on review. To be clear that portion
of the award remains intact.
[43] I however find that the award is reviewable in respect of the second
complaint.14 I decline to substitute on the second complaint as sought by
the Company, as substitution, is appropriate only where the record admits
of but one reasonable conclusion. That is not so in this case. Whether the
employees can establish the tacit authorisation they assert may depend on
the evidence of the night -shift supervisors, whom neither party called and
whose absence the Commissioner himself remarked upon. Also, the
question of an appropriate sanction in respect of such complaint (assuming
the Company is able to prove the misconduct at arbitration) would then turn
on several factors including the contested issues of consistency . These are
quintessentially for an arbitrator to resolve on a proper hearing especially
against the backdrop of the reinstatement award which the Dismissed
Employees seek.
[44] A court of review does not sit on appeal, and it should be slow to arrogate
to itself findings of inter alia credibility and the exercise of a sanction
discretion that the LRA entrusts to the arbitrator.
[45] I am also alive to the lapse of time since the dismissals were effected and
cater for same in the order.
[46]
In the circumstances, the following order is made:
Order
1. The arbitration award issued by the Second Respondent under case
number MIPT27557 dated 20 April 2021 is reviewed and set aside
but only in the following terms:
14 The notice of motion provides for further and/or alternative relief which provides a basis for the order granted. In Tsosane
and Others v Minister of Prisons and Others 1982 (2) SA 55 (C) the court held “Relief may be granted under this prayer
[“Further and/or alternative relief”] where what is sought is not inconsistent with the substantive relief claimed and where
further the basis for such relief has been laid in the supporting papers and dealt with in the answer of the respondent ”. See
also Mgoqi v City of Cape Town & another 2006 (4) SA 355 (C) para 11– 13 and MEC for the Department of Education,
Eastern Cape Province v Gqebe, [2009] 9 BLLR 896 (LAC) at para 29.
14
1.1 The finding by the Second Respondent that the dismissal of
the individual employees cited as the Third Respondents (“the
Dismissed Employees ”) was fair in relation to disciplinary
charge two which reads: “(2) Deliberate failure to perform your
duties and/or deserting your workstation without permission.
On several occasions you were away from your workstation
without permission and therefore not performing your duties.”
1.2 The relief awarded to the Dismissed Employees at paragraph
44 and 45 of the award.
2. The dispute is remitted to the First Respondent for an arbitration de
novo before a Commissioner other than the Second Respondent, but
only in respect of the dispute raised by the Dismissed Employees
challenging the fairness of their dismissal for disciplinary c harge two
as set out above. ( It having being determined in the award of the
Second Respondent under case number MIPT27557 dated 20 April
2021 that there was no misconduct by the Dismissed Employees in
respect of disciplinary c harge one: “(1) Unauthorised possession
and/or use of dagga on the company premises between the months
of March and May … you were seen on camera, in possession and
smoking dagga on company premises during night shift on more
than one occasion” which portion of the award is not reviewed and
set aside).
3. The Second Respondent is to enrol the matter for arbitration within
90 days of this order, or a date earlier thereto, should its case roll so
permit.
4. There is no order as to costs.
______________________
I. I. Mahomed
15
Acting Judge of the Labour Court of South Africa