THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no.: JR1302/23
In the matter between:
MEDIUM VOLTAGE SWITCH GEAR (PTY) LTD Applicant
and
NUMSA OBO SANELE CHONCO First Respondent
MANISHA SINGH NO Second Respondent
METAL AND ENGINEERING BARGAINING COUNCIL Third Respondent
Heard: 21 May 2026
Delivered: 07 September 2026
JUDGMENT
WHITEAR-NEL AJ
Background and grounds of review
[1] This is an application for the review and setting aside of the arbitration award
issued by the second respondent under case number MEGA59684 on 30
June 2023.
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
______________ 07/09/2026
Signature Date
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[2] The grounds of review are that the commissioner’s award was unreasonable
in that it could not have been properly reached on the evidence before her,
and that she did not apply her mind to the material facts, in that:
2.1 The commissioner committed a gross irregularity by misconstruing the
true nature of the matter. In this regard, the offense before the
commissioner was not a time-keeping offense, but a dishonesty-related
offence.
2.2 The commissioner committed a gross irregularity by misconstruing and
disregarding material evidence, in that she failed to take into account
that the third respondent manually claimed for hours he had not
worked, and that this was dishonest conduct which severed the
employment relationship.
2.3 It was unreasonable for the commissioner to interfere with the sanction
of dismissal given the nature of the third respondent’s misconduct.
[3] The applicant is a manufacturer and supplier of medium voltage equipment
and solutions in the Southern Hemisphere.
[4] The first respondent was employed by the applicant from 8 May 2006 until his
dismissal on 5 December 2022. The first respondent was a shop steward from
2013 and also held the position of deputy treasurer in the local union structure
of NUMSA, at the time of the termination of his employment.
[5] The applicant uses clocking machines to monitor employees' clock -in and
clock-out times prior to departure, via facial recognition. The clocking
information is continuously imported into the Jarrison Time and Attendance
Software and thereafter the information is submitted to payroll.
[6] An employee who forgets to clock in or out must complete and submit a
manual time adjustment form, signed by their line manager or supervisor. The
employee will ordinarily also receive a warning for his failure to comply with
the clock -in and clock -out procedure. Should the employee repeat the
offence, 15 minutes will be deducted from the time worked.
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[7] Manual time adjustment forms for missed clocking are due within one day of
the missed clocking and should be submitted to the Human Resources
Department for processing.
[8] The Human Resources department's time and attendance clerk, Ms Snyman,
submits hours worked in arrears for waged employees to payroll on a Monday
morning. All overtime authorisation forms, leave forms, or manual time
adjustment forms must be submitted to the Human Resources department by
no later than Monday morning to be processed timeously for that day’s payroll
submission.
[9] The first respondent was authorised to work overtime on Friday afternoon, 7
October 2022, from 13h00 to 17h50. Notwithstanding the authorized overtime,
the first respondent only worked until 14h49, which is when he clocked out
and left the site in his vehicle.
[10] On Monday , 10 October 2022, the first respondent was told by the Human
Resources department that he had a missed clocking for Friday, 7 October
2022. One explanation for this was that the timesheet was generated and sent
by the system before the first respondent had finished work and clocked out
on Friday 7 October and this was the reason it showed a missed clocking; the
first respondent had not yet clocked out. Another explanation was that there
had been clocking problems due to load shedding. No clarity was achieved on
this point, but what was clear was that the Human Resources Department had
been in error when they told the first respondent that he had a missed
clocking on Friday, as he had clocked out at 14h49 on that day.
[11] Following Human Resources's communication, the first respondent visited the
Human Resources department on 10 October 2022 to resolve his ‘missed
clocking’ for the afternoon of Friday 7 October 2022.
[12] The first respondent was asked to go back to his department to complete the
paperwork. His foreman, Mr Zwakele Ndwandwe, had only worked until 16h20
on 7 October 2022.
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[13] On his way back to his department, the first respondent met his supervisor for
the 7 October 2025, Mr John Mashignana, and told him that H uman
Resources had told him that he had missed clocking which needed to be
rectified. Mashignana told the first respondent that he had already submitted
his manual forms and that he should go to Human Resources. On his way
there, the first respondent met Xulu, who requested that the first respondent
complete manual clocking record on the form, which he added to the missing
clocking information he already had in respect of Mr Mbatha.
[14] There was, in fact, no missing clocking for the first respondent , since the first
respondent had clocked out at 14:49 on Friday 7 October 2022.
[15] When the Human Resources Department contacted the first respondent about
the inconsistency between the time he had actually clocked out on 7 October
2022 and the time he claimed for (being until 17h50) on Monday, 10 October
2022 via the manual adjustment sheet, the first respondent approached the
Human Resources Department to attend to the matter. He wanted to destroy
the manual clocking information that he had entered on the form. He was not
successful.
[16] An investigation was initiated, but the first respondent refused to provide a
statement.
[17] The first respondent was subsequently charged with dishonesty on the basis
that he had supplied incorrect or falsified information on the manual
adjustment form for 7 October 2022. He had put on the form that he clocked
out at 17h50 (which was the same as the time Mr Mbatha had put on the
manual form, immediately above where the first respondent wrote) , whereas
he actually clocked out at 14:49.
[18] At the commencement of the disciplinary enquiry, the first respondent pleaded
guilty to the charge of dishonesty. At the conclusion of submissions on the
mitigating and aggravating factors, the chairperson imposed a sanction of
summary dismissal, which was upheld at the conclusion of the appeal.
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[19] The matter was then referred to the relevant Bargaining Council. At the
Bargaining Council, it was agreed that the facts of the case were not in
dispute, but that the only issue to be decided was whether the sanction of
dismissal was appropriate in the circumstances and whether there was
consistency in the application of discipline ( however, no evidence was
provided in respect of the inconsistency challenge). The parties agreed to
submit a single bundle of documents to the commissioner for her perusal and
to make written submissions on the material (which they had a right to reply to
but did not exercise). Implicit in the agreement on the manner the arbitration
was to be conducted was the agreement that any hearsay evidence would be
admissible in terms of section 3 (1) (a) of the Law of Evidence Amendment
Act
1.
[20] The Bargaining Council found in favour of the first respondent and found his
dismissal to have been substantively unfair. He was reinstated, with the
reinstatement being retrospective to the date of dismissal, but with no back
pay to be paid.
[21] Aggrieved at the decision, the applicant lodged these review proceedings.
Appropriateness of sanction: legal principles
[22] The Code of Good Practice: Dismissal, Schedule 8 of the Labour Relations
Act2 (LRA) provides that it is not appropriate to dismiss an employee for a first
offence, except if misconduct is serious and impacts the continuity of the
employment relationship. The Code further provides that in deciding whether
to impose the penalty of dismissal other factors must be considered including
the employee’s years of service, disciplinary record, personal circumstances,
the nature of the job and the circumstances of the infringement itself. In
addition, the nature and extent of the dishonesty and the context of the
offence are to be considered. The sanction should be proportionate to the
offence committed. Mitigating and aggravating circumstances must also be
considered.
1 Act 45 of 1988
considered.
1 Act 45 of 1988
2 Act 66 of 1995, as amended.
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[23] In Sidumo v Rustenburg Platinum Mines Ltd and Others3 the court held that:
‘In approaching the dismissal dispute impartially, a commissioner will take into
account the totality of circumstances. He or she will necessarily take into
account the importance of the rule that had been breached. The
commissioner must of course, consider the reason the employer imposed the
sanction of dismissal, as he or she must take into account the basis of the
employee’s challenge to the dismissal. There are other factors that will
require consideration. For example, the harm caused by the employee’s
conduct, whether additional training and instruction may result in the
employee not repeating the misconduct, the effect of the dismissal on the
employee, and his or her long service record. This is not an exhaustive list.’
Test for review
[24] The test for review is well established: Is the decision reached by the
commissioner one that a reasonable decision maker could not reach? Section
145 of the LRA is suffused by the constitutional standard of reasonableness.4
[25] The reasonableness of an award is determined with reference to the evidence
that was placed before the arbitrator. It is not enough for the arbitrator to
merely have committed a gross irregularity – it must be one that renders the
award unreasonable.
[26] In Gold Fields Mining South Africa Pty Ltd (Kloof Gold Mine) v CCMA and
Others
5 the court stated that:
“In short: a review court must ascertain whether the arbitrator considered the
principal issue before him/her, evaluated the facts presented at the hearing
and came to a conclusion which was reasonable to justify the decision he or
she arrived at.”
Application of the test
[27] The applicant contends that the commissioner misconstrued the nature of the
enquiry by failing to take into account that the first respondent pleaded guilty
3 (2007) 28 ILJ 2405 (CC) at paras 78 and 79.
4 See: Sidumo (ibid)
5 [2014] 1 BLLR 20 (LAC) at para 16.
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to a charge of dishonesty. However, the commissioner is well aware of that
fact, and clearly it weighed in her deliberations . In the arbitration award she
states:
‘The Applicant pleaded guilty to the charge of dishonesty in that he had
supplied incorrect or falsified information in respect of his clocking out time.’
She says at para 46 of the award: ‘It is the respondent’s evidence that the
applicant was not charged with a time-related offence but rather dishonesty
related thereto…’
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[28] The commissioner then proceeds to correctly examine the law relating to
determining the appropriate sanction. She notes that while dishonesty is
generally categorised as a serious offence justifying dismissal at the first
instance, the Code provides for the totality of relevant factors to be
considered
7.
[29] The commissioner then held that in taking into account the nature of the
dishonest time-related offence, she does not believe that the first respondent
had the necessary intent to deceive or defraud the applicant8. She states:
‘There was no evidence that the applicant wanted to steal or defraud the
applicant, thus it is probable that it was an error on his part.’
[30] The commissioner then considered the impact of the misconduct on the
applicant, and the fact that the first respondent had 17 years’ clean service.
She concludes that “considering these factors alone would point to a less
harsh sanction.”
[31] She further finds that the applicant did not deny the transgression and showed
remorse (as did the disciplinary chair and the chair of the appeal). She points
out that once he learned of the discrepancy, he tried to return to H uman
Resources to correct the error.
[33] The commissioner t ook into account that , as a shop steward, the first
respondent should lead by example. She considered whether the sanction
6 Arbitration award at para 45.
7 Arbitration award at para 49.
8 Arbitration award at para 55.
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was proportional to the offence and concluded it was not. She considered
whether the trust relationship had been severed and concluded that it had not
(hence the order of reinstatement).
Conclusion
[32] In a nutshell, the commissioner took account of all the considerations relevant
to determining whether the first respondent’s dismissal was appropriate and
substantively unfair or not.
[33] While she may not have expressed herself as eloquently as she could have,
there can be no doubt that the commissioner did not misconstrue the nature
of the task before her and that she considered all the relevant evidence.
[34] While she ordered reinstatement, she took into account that the first
respondent did not have clean hands , he had erroneously claimed more
overtime than he should have, thus did not order him to be paid backpay.
[35] It can therefore confidently be said that the commissioner's award is not
assailable as it falls within the band of reasonableness as contemplated in
Sidumo.
[36] In the premise the following order is made:
Order
1. The review application fails.
2. There is no order as to costs.
___________________________
N.J Whitear-Nel
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Norman Hornby Incorporated
For the Respondent : Minnaar Nieuhause Attorneys