THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JR 1908/23
In the matter between:
BRIDE AND CO EURO SUIT (PTY) LTD Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER PAUL PHUNDU NO Second Respondent
MABOTE DOROTHY LUCIA AS REPRESENTED BY
SOUTHERN AFRICAN CLOTHING
AND TEXTILE WORKERS UNION Third Respondent
Heard: 20 May 2026
Delivered: 07 September 2026
JUDGMENT
WHITEAR-NEL, AJ
Introduction
(1) Reportable Yes/No
(2) Of interest to other Judges: Yes/No
(3) Revised
__________ 07/09/2026
Signature Date
2
[1] This is an application for the review of an arbitration award issued under case
GAJB 16508- 23, where the third respondent’s dismissal was found to have
been unfair. She was reinstated and awarded three months’ remuneration as
back pay.
[2] The applicant avers that the second respondent, the commissioner ,
committed misconduct in the performance of his duties as arbitrator and also
committed a gross irregularity in the conduct of the arbitration proceedings.
Procedural irregularities at the arbitration held at the commission for conciliation,
mediation and arbitration (CCMA)
Closing of the applicant’s case
[3] The applicant suggested that the commissioner, either by error or
intentionally, attempted to close its case prematurely. The commissioner
stated, after the first witness had testified: “I believe now it is the time for the
Applicant [in the arbitration] to take the stand.” In fact, the applicant still had
another witness to call before closing their case. This was brought to the
attention of the commissioner , and the second witness for the applicant was
called and testified. The applicant closed its case after the second witness
had completed his testimony.
[4] There is nothing sinister about what happened and it is inaccurate to elevate it
to the submission that the commissioner tried to close the applicant’s case
prematurely. The applicant (in the arbitration) had not indicated how many
witnesses it would call. As soon as the commissioner was informed that
another witness was available, the applicant was allowed to call their next
witness, with no delay or hesitation. There was no prejudice caused to
anyone, and the brief exchange of remarks referred to above would not have
given a reasonable person, in possession of all the facts, any reasonable
apprehension of bias. Nor is there any evidence of actual bias.
Closing argument
[5] At the end of the arbitration, the commissioner said the following:
Closing argument
[5] At the end of the arbitration, the commissioner said the following:
‘Look, this is the stance that I normally adopt. If you want to present closing
argument it is your process. You are more than welcome to do that. But what
I need to confirm for you on record is that I have got enough evidence that
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would actually enable me to proceed and write the award. So I need to
(inaudible) closing arguments if I may put it in that way.’
[6] The third respondent gave oral closing arguments, and the applicant (in the
arbitration) elected to submit written closing arguments.
[7] The award was dispatched by the CCMA some twenty-two minutes or so after
the applicant’s closing argument was received. The applicant’s heads of
argument are some nine pages long. It contains common cause facts, being
facts which the commissioner w as already aware of. It also contained a
section headed ‘Facts that are in dispute and issues to be decided.’ The
commissioner was also aware of the issues he had to decide. That is
apparent from his award. Next in the closing argument is a section called
‘Breaking of a rule.’ Here, trite case law is cited
1, which sets out the test for
substantive fairness in Schedule 8, a test the commissioner would have been
well aware of from his training and experience. The closing argument also
traverses the evidence, particularly that of Nkabind e, which evidence was
already before the commissioner. Then the closing argument addresses
whether the employee had knowledge of the rule or could reasonably be
expected to have it. Here, the applicant was speaking about the dishonesty
rule in the disciplinary code, the knowledge of which was not in dispute.
Lastly, the closing argument addresses the issue of consistency and traverses
evidence already before the commissioner, as well as consistency -related
case law, from which brief extracts were quoted.
[8] It is not unusual for commissioners to write draft awards while the evidence is
still fresh in their minds. The probabilities are that this is what the
commissioner did. The award wasn’t dispatched before receipt of the closing
argument. It seems that the commissioner did read and consider the closing
argument, albeit in a short period of time (the brevity explained by the
argument, albeit in a short period of time (the brevity explained by the
circumstances set out above), but apparently found no need to amend or
rewrite his award in light of its contents. Nothing in the closing argument was
new or unexpected. It did not change the evidence before the commissioner,
on which he based his award. It apparently did not persuade the
commissioner to amend or rewrite his draft award.
Review
1 See: Woolworths v SACCAWU [2017] ZALAC 54
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Grounds of review
[9] The applicant contended that the grounds of review were that the
commissioner committed misconduct and/or a gross irregularity in the
proceedings.
[10] The applicant did not specifically plead that as a result of the misconduct
and/or irregularity, the award was unreasonable.
[11] In Gold Fields Mining SA Pty Ltd (Kloof Gold Mine) v CCMA and Others
2 the
Labour Appeal Court ( LAC), referring to S idumo and another v Rustenburg
Platinum Mines Ltd and others 3, explained that the constitutional standard of
reasonableness is suffused into the section 145 review test:
‘This implies that an application for review sought on the grounds of
misconduct, gross irregularity … will not lead automatically to a setting aside
of the award i f any of the above grounds are found to be present. In other
words …where a gross irregularity in the process is alleged, the enquiry is not
confined to whether the arbitrator misconstrued the nature of the proceedings,
but extends to whether the result was unreasonable….’
[12] A reviewing court must ascertain whether the arbitrator considered the correct
principal issue before him/her; evaluated the facts presented at the hearing
and reached a conclusion that was reasonable. That is the enquiry this court
embarks on.
Background and facts
[13] The third respondent, Mabote, commenced duties with the applicant on 1 May
2004 as a sales assistant. She was responsible for assisting clients and
securing sales. She was not the only assistant on the shop floor assisting
customers. She earned R5800.00 per month plus the commission she made
on her sales.
[14] The third respondent was dismissed on 26 June 2023 after having been found
guilty of the following charges at a disciplinary enquiry:
‘1. That you failed to apply the necessary fiduciary duty owed to the
employer in performing your duties at the end of May 2023 in that due
to your actions you are guilty of dishonesty in that you caused other
to your actions you are guilty of dishonesty in that you caused other
employees to assist you to reach your sales target by diverting their
2 (2014) 35 ILJ 943 (LAC) at para 14.
3 (2007) 28 ILJ 2405 (CC).
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sales credits to your benefit in order for you to reach your target and
earn unwarranted commission.
2. That you failed to apply the necessary fiduciary duty owed to your
employer in performing your duties at the end of May 2023 in that due
to your actions you caused or potentially caused your employer
financial loss in that you caused others to assist you to reach your
sales target by diverting their sales credits to you in order for you to
reach your target and earn unwarranted commission.’
[15] The third respondent argued that there was no rule prohibiting shop floor
assistants from working as a team, and sharing sales credits when they
believed it appropriate to do so. The applicant concedes that there is no rule
prohibiting the sharing of sales credits (although such a rule was introduced
after the applicant’s dismissal – I will revert to the significance of this) – but
argued that the rule in the disciplinary code prohibiting dishonesty was
applicable in these circumstances. That was what the applicant was found
guilty of and dismissed for – dishonesty. The rule in the disciplinary code
reads as follows:
‘theft, bribery, fraud, dishonesty, forgery or any falsification of any nature or
assisting and/or concealing any of the above [is a transgression].’
[16] Throughout the proceedings, it was only ‘dishonesty’ that was referred to.
Analysis
[17] It is definitely not self -evident that shop assistants working as a team on the
sales floor, and helping each other (including by allocating their credits to the
one who is struggling to reach the target that month) falls within the
disciplinary code’s dishonesty rule. Prima facie there is no dishonesty taking
place: the sales are being rung up, the applicant is getting their money and is
not paying extra commission and there is a satisfied workforce. The sales
assistants, including the applicant, were not covering up their tracks, or hiding
anything.
assistants, including the applicant, were not covering up their tracks, or hiding
anything.
[18] What the employer is rather, actually , relying on is a rule like the one
introduced after the dismissal (and referred to in para 15 above) to prohibit the
reallocation of sales credits between sales assistants. If one turns to the letter
introducing the new rule, the wording used makes it clear that it is changing
the status quo and introducing a new rule. The letter contains the following:
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‘It has come to our attention that there is a culture that has been created for
staff to assist one another to make targets…’
[19] This corroborates the oral evidence of witnesses who testified that it was a
norm to help each other in this way , with no adverse consequences being
attracted to the practice. It also contains the following words:
‘This behavior is not going to be tolerated any longer. Anyone found to be
engaged in such behavior … could lead to dismissal.’
[20] The plain wording of the above words is that the described behavior had been
tolerated but that there was now going to be a change in policy and it would
no longer be tolerated.
[21] The case of Dikobe v Mouton NO and others 4 shows that the onus on an
employer to show the existence of an oral rule is much higher than showing
the existence and knowledge of a written rule. It is this hurdle which the
commissioner found that the applicant had not cleared. In the Dikobe case the
court held:
‘An employer who seeks to discipline an employee for breach of an oral rule
must expect to encounter obvious difficulties. That insight, self-evidently, is
why rules have to be written down. Of course, there is no need to write down
‘thou shalt not steal’ and similar injunctions, but when a need for a rule that is
workplace specific is required, the prudence of so doing is manifest.’5
[22] The rule prohibiting a sales team, who help each other serving customers,
from sharing sales credits is not a rule akin to ‘ thou shalt not steal ’. It is not a
self-evident rule that does not need to be expressly communicated. Especially
where this, according to the applicant’s case, and the respondent’s letter
introducing the new rule, was the practice and culture on the sales floor.
[23] The third respondent argued that the commissioner did not take the
dishonesty offence into account in his award. However, at para 17 of the
award the commissioner refers to Mr Nkabinde indicating that the third
award the commissioner refers to Mr Nkabinde indicating that the third
respondent was dishonest. Further, at para 26 he says:
‘Although I have considered all the evidence, I will only refer in this award to
those aspects relevant to determine the dispute, as I am required in terms of
section 138(7) of the LRA to provide an award with brief reasons.’
[24] At para 33 he says: ‘I reject and disagree with Mr Nkabinde’s testimony that
the applicant’s actions showed that she was dishonest…’
4 (2016) 37 ILJ 2285 (LAC)
5 Ibid at para 16.
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[25] [21] The third respondent also argued that there was no financial (or any
other) prejudice to the applicant, because the correct sales had been rung up,
and the applicant paid no more commission than he would have been obliged
to if the sale in question (for R40 000) had been rung up to only one sales
assistant.
[26] [22] All the sales assistants who were involved in this incident were disciplined
but it was only the third respondent who was dismissed. The applicant
contended that this showed an inconsistent application of discipline.
[27] The applicant distinguished the case of the third respondent from the other
sales assistants by saying that t he applicant had instigated the transaction
and that she stood to benefit from it (in that the allocated credits would allow
her to reach her target, and so avoid dismissal). Also, the applicant testified
that one employee, Inguan, was not dismissed because he was nearing
retirement. The applicant herself had some 20 years’ service with the
applicant. And, one employee was not dismissed because he had not signed
the Disciplinary Code of Conduct. The branch manager (holding a more
senior position to the third respondent) was also not dismissed. The other
sales assistants were fully aware of the reallocation of sales credits amongst
the staff, and participated in the conduct complained of by the applicant.
Conclusion
[28] In balance then, I am satisfied that the second respondent’s award is
unassailable. There was no justifiable differentiation in the way the applicant
was disciplined compared to the others involved. There was no rule
prohibiting the applicant’s behavior. The specific rule was only introduced
after the third respondent’s dismissal, and the dishonesty rule in the
disciplinary code did not cover the factual conduct by the applicant and her
colleagues.
[29] Accordingly, the third respondent’s dismissal was unfair, as the second
respondent found in his award, and there is no basis to interfere with the
award.
Order
respondent found in his award, and there is no basis to interfere with the
award.
Order
1. The review application is dismissed.
2. There is no costs order.
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_______________________
N. Whitear-Nel
Acting Judge of the Labour Court of South Africa
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Appearances:
For the Applicant : Cheadle Thompson & Haysom Inc.
For the Respondent : Cranko Karp Attorneys