THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JR 1906/22
In the matter between:
AUSA OBO BEN BRUNSDON Applicant
and
BONGE MASOTE N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
SAA TECHNICAL (SOC) LTD Third Respondent
Heard: 21 May 2026
Delivered: 07 September 2026
JUDGEMENT
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 a review application brought by the applicant to review and set aside
an arbitration award issued by the first respondent under the auspices of the
second respondent, the Commission for Conciliation, Mediation and
Arbitration (CCMA) under case number GAEK 10759- 21, where the first
respondent dismissed the applicant’s claim for severance pay. The review
application is opposed by the third respondent , who contends that the first
respondent’s award is unassailable and reasonable.
[2] While the applicant, in the founding affidavit, refers to a review in terms of
section 158 of the Labour Relations Act
1 (LRA), it is clear from the substance
of the review papers that in fact this is a review in terms of section 145 of the
LRA. Reviews of arbitration awards are brought under section 145, and
reviews of rulings and the like are brought under section 158 of the LRA.
2
Grounds of review
[3] The grounds of the review are as follows:
3.1 That the commissioner had failed to determine the issue in dispute,
and reached a conclusion not supported by the evidence.
3.2 That the commissioner considered the incorrect dispute thus making
an error of law.
3.3 That the commissioner applied the incorrect legal test in relation to the
application of section 41 (4) of the Basic Conditions of Employment
Act
3 (BCEA).
3.4 That the commissioner approached the matter in a biased manner,
favouring the third respondent.
1 Act 66 of 1995, as amended.
2 Carephone (Pty) Ltd v Marcus NO and others (1998) 19 ILJ 1425 (LAC) at para 26; C Botma and A
Van Der Walt, “The role of reasonableness in the review of Labour arbitration awards ” (Part 1) 2009
Obiter 328 at 342)
3 Act 75 of 1997.
3
3.5 That the commissioner ignored material evidence, which impacted on
the commissioner’s conclusions and distorted the ultimate outcome of
the matter.
3.6 That the commissioner’s award is unreasonable.
The factual background
[4] The applicant was employed by the third respondent as a Senior Aviation
Technician, and was earning R42 704,69 per month.
[5] The aviation industry as a whole was severely damaged by the COVID-19
pandemic starting in 2020.
[6] As a result, the third respondent was unable to pay employees, including the
applicant, their full salaries. It was common cause that there was instability
and uncertainty in salary payments , with only 25% of a normal salary paid in
some months and varying amounts in others. The respondent testified
however that by the time of the applicant's retrenchment he had been paid all
the monies due to him.
[7] The financial strain COVID -19 and subsequent developments placed on the
applicant was extreme. He was severely indebted due to unpaid salary for an
extended period. He had to sell assets, like a caravan, he was at his credit
maximum at the bank and had had to borrow money to survive.
[8] The third respondent undertook a retrenchment process in 2021, under which
employees were required to apply for three positions they were interested in
being placed in under the Neptune system . A directive from the third
respondent notified them that if they did not avail themselves for alternative
positions, they forfeited their right to severance pay. The respondent was
keen to retain employees with key operational skills.
[9] The applicant did not apply for his own position. The three positions he
applied for were promotional positions, which did not indicate that they were
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‘ex patriate’ (ex pat) positions, ie: positions which would require the successful
incumbent to relocate outside of the Republic of South Africa. He would not
have applied for an ex pat position as he was not willing or able to relocate
outside South Africa, nor to maintain two households.
[10] The evidence was that the advertisments on the Neptune system were vague
and did not contain all the terms and conditions of employment on it.
[11] The applicant testified that he applied for the promotional positions because
he anticipated a salary drop if he were to be appointed to his old position. The
applicant contended that nowhere in the Neptune system did it state that
applicants had to apply for their own positions. All three of the third
respondent’s witnesses did testify that that was so.
[12] There was substantial testimony in the arbitration about whether the
employees, specifically the applicant, had been taught how Neptune worked.
The evidence was contradictory: the applicant saying he didn’t understand it,
the respondent saying they had gone to great lengths to explain it to all staff.
What was clear was that the applicant knew enough about the Neptune
system to apply for three positions on it, and to testify that the positions did
not indicate that they were ex pat positions, nor what the salary and benefits
would be.
[13] The applicant qualified for, but was not successful in, some positions, and
was offered at least one of the positions for which he had applied. The
position turned out to be an ex pat position, requiring that he relocate to
Maputo, Mozambique. The applicant indicated he was not prepared to
relocate and that he had indicated that and he therefore declined the
employment offer.
[14] The third respondent took the position that he had unreasonably refused a
reasonable offer of alternative employment, and he was retrenched without
severance pay in terms of section 41(4) of the BCEA.
5
[15] Aggrieved, the applicant referred the matter to the CCMA. The arbitrator
dismissed the applicant’s claim for severance pay on the basis that he had
unreasonably refused an offer of alternative employment.
[16] The arbitrator also took the view that the applicant had not wanted to be
retained by the third respondent, even knowing that he had an essential skill
set that they wanted to retain, and that he had therefore attempted to
manipulate the process so that he would not be offered an alternative position
and could therefore collect the severance pay on his retrenchment. For
example, the respondent pointed out that he did not apply for his own
position, only for promotional positions.
[17] The applicant then referred the matter to the Labour Court for review, on the
basis that he was entitled to severance pay because the offer of alternative
employment in Maputo was unreasonable and that he was therefore within his
rights to turn it down without forfeiting his right to severance pay.
Test for review
[18] The test for review was established in Sidumo and Another v Rustenburg
Platinum Mines Ltd and Others4. It is whether the commissioner's decision is
one which no other reasonable commissioner would have reached.
[19] In Herholdt v Nedbank5, the Supreme Court of Appeal held that:
‘…that test involves the reviewing court examining the merits of the case “in
the round” by determining whether, in the light of the issue raised by the
dispute under arbitration, the outcome reached by the arbitrator was not one
that could reasonably be reached on the evidence and other material properly
before the arbitrator.’
[20] In Goldfields Mining South Africa v Moreki 6, the Labour Appeal Court (LAC)
held that:
4 (2007) 28 ILJ 2405 (CC).
5 [2013] 11 BLLR 1074 (SCA) at para 12.
6 (2014) 35 ILJ 943 (LAC) at p 944 G.
6
‘…A reviewing court must ascertain whether the commissioner considered the
principal issue before him or her, evaluated the facts presented at the
hearing, and came to a conclusion that was reasonable.’
[21] And
‘… Did the commissioner identify the dispute he or she was required to
arbitrate? … Did the commissioner understand the nature of the dispute he or
she was required to arbitrate? … Did the commissioner deal with the
substantial merits of the dispute? … Is the commissioner’s decision one that
another decision maker could reasonably have arrived at based on the
evidence?’7
[22] In Head of Department of Education v Mofokeng and others8, the court held:
‘…that it is not only the reasonableness of the outcome which is subject to
scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the
enquiry or undertake the enquiry in a misconceived manner. There must be a
fair trial on the issues…. Irregularities or errors in relation to the facts or
issues, therefore, may or may not produce an unreasonable outcome or
provide a compelling indication that the arbitrator misconceived the inquiry. In
the final analysis, it will depend on the materiality of the error and its relation
to the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not have
had upon the arbitrator’s conception of the inquiry, the delimitation of the
issues to be determined, and the ultimate outcome. If but for an error or
irregularity a different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute….provided the right question was
asked and answered by the arbitrator, a wrong answer will not necessarily be
unreasonable…’
Review application: the law
[23] The dispute referred to the CCMA was regarding section 41 of the BCEA,
particularly section 41(4). Section 41 provides that an employee who has
7 Ibid at p 944 I to p 945 A.
7 Ibid at p 944 I to p 945 A.
8 (2015) 36 ILJ 2802 (LAC) at para 31.
7
been retrenched is entitled to severance pay equivalent to one week’s pay per
completed year of service with the employer. Section 41 (4) reads as follows:
‘(4) An employee who unreasonably refuses to accept the employer’s offer
of alternative employment with that employer or any other employer, is
not entitled to severance pay in terms of subsection (2).’
[24] It goes without saying that the reasonableness of the offer and the
reasonableness of the refusal of the offer are intertwined. However, the
language of section 41 (4) speaks of an unreasonable offer of alternative
employment. The reasonableness of the refusal will depend on the
reasonableness or unreasonable of the offer of alternative employment. In
SAA v Bogopa and others
9, the LAC held that section 41(4) has two
conditions: an offer of alternative employment and an unreasonable refusal to
accept it.
[25] It is established that the offer of alternative employment must come from the
retrenching employer to trigger section 41 (4) of the BCEA. Alternative
employment found by the retrenched employee does not trigger section 41 (4)
of the BCEA
10.
[26] In Astrapak Manufacturing Holdings (Pty) Ltd t/a East Rand Plastics v
CEPPAWU11, the court held that if a retrenchee were offered an alternative
position that entailed a salary reduction, it would not be unreasonable to
refuse it. The court also held that the court a quo erred in finding that
severance pay should be paid in circumstances where some would have
enjoyed increases in their wages had they accepted the offer of employment
made by the appellant
12.
9 [2007] 11 BLLR 1065 (LAC)
10 See in this regard: Purefresh Foods (Pty) Ltd v Dayal and another [1999] 5 BLLR 518 (LC);
Bagshaw and Marriot Corporate Service (2004) 25 ILJ 145 (CCMA), Fidelity Supercare Cleaning (Pty)
Ltd v Busakwe NO and others [2010] 3 BLLR 260 (LC), Servest Landscaping Turf Maintenance (Pty)
Ltd v SACCAWU and others (2023) 44 ILJ 380 (LC).)
11 (2014) 35 ILJ 140 (LAC)
Ltd v SACCAWU and others (2023) 44 ILJ 380 (LC).)
11 (2014) 35 ILJ 140 (LAC)
12 See also: Pretorius v Rustenburg Local Municipality (2008) 29 ILJ 1113 (LAC).
8
[27] In Masuku and others v Assign Property Care Services (Pty) Ltd and others 13,
it was held that:
‘Without being told the terms and conditions of the offer of alternative
employment, an employee will not be able to exercise his/her choice of
acceptance or refusal…the terms and conditions of employment are
intertwined with the lives of workers in terms of where they live in relation to
their workplaces …terms and conditions of employment cannot be reduced to
remuneration alone.’14
[28] In Pama and others v CCMA and others15 the court observed that:
‘… the first part of the enquiry into reasonableness is about objective factors
such as remuneration, status and job security. In the second leg of the
enquiry the employee’s circumstances play a greater role.’
[29] In Gray Security Services (Western Cape) (Pty) Ltd v Cloete NO and
another16, MacRobert AJ expressed the view obiter that if employees turned
down an offer of alternative employment on the grounds of family dislocation,
family responsibility, travel, benefits etc … such refusal would not be
unreasonable within the meaning of s 196 (3) LRA.
[30] In Irvin & Johnson Ltd v CCMA and others
17, the court held that section 41 (4)
envisages 3 situations: 1) The employee unreasonably refuses alternative
employment and forfeits the right to severance pay. 2) The employee
reasonably refuses alternative employment and is entitled to payment of
severance pay. 3) The employee accepts alternative employment and forfeits
the right to severance pay.
Review application: arbitrator’s award
[31] The arbitrator correctly identified the dispute as being whether the applicant
was entitled to severance pay in terms of section 41 (2) of the BCEA, or not in
terms of section 41 (4) of the BCEA. He noted that he was required to
13 (2020) 41 ILJ 1237 (CCMA) at paras 63 and 64.
14 See also: Moremi and Coldline Food Brokers cc (2007) 28 ILJ 2871 (CCMA).
15 [2001] 9 BLLR 1079 (LC).
16 [2000] 4 BLLR 418 (LC).
17 (2006) 27 ILJ 935 (LAC)
9
determine whether the respondent’s alternative offer of employment was
reasonable or not , and, interlinked, whether the applicant’s refusal to accept
the offer was reasonable, in view of the reasonableness or unreasonableness
of the offer.
[32] The arbitrator noted that the applicant testified that he had never been
relocated outside of the borders of South Africa. He had performed relief
duties outside of the Republic, but the relief duties were only temporary. The
arbitrator noted that the applicant’s personal circumstances were as follows
32.1 he has been married for 23 years
32.2 He has two children, an 18- year-old doing matric at the time of the
arbitration and an 11-year-old in Grade 9.
32.3 His children were studying in Afrikaans and would not be able to
relocate, especially the child doing matric.
32.4 His wife works at Stellenbosch University, and there are benefits for the
family in terms of tuition fees.
32.5 He could not afford the expenses of relocating to Maputo, nor of
maintaining two households.
[33] The respondent’s case was that the applicant would have been
accommodated in respect of expenses, living conditions, allowances, school
fees for the children (75%), cover for family relocation, free air travel and
accommodative work-off periods. Air travel from Maputo to Cape Town is less
than 4 hours , depending on connecting flights from Johannesburg to Cape
Town. The arbitrator took note of this.
[34] The applicant was offered the Senior License Technician position but was
also offered employment as a Station Engineer in Maputo, as he was qualified
for the position and would require no further training. This was a promotional
position and would have entitled the employee to a 13.21% salary increase.
This was the position around which the dispute revolved. There was vague
mention of an OR Tambo (SLT?) position that the applicant was offered, but
10
no details were provided. The arbitration, and this review centred around
whether the offer of the Maputo position was unreasonable.
[35] On the applicant’s version, t he offer of the position in Maputo position was
wrong because:
35.1 The advertisement did not state that it was an expatriate position. Had
the applicant known that, he would not have applied for it. There was
however undisputed evidence noted by the arbitrator indicating that the
applicant did know the location of the position.
35.2 The advertisement did not specify details of his remuneration , and
other terms and conditions of employment.
35.3 The applicant had stated that he was not available for relocation
outside of South Africa, although he could do relief work.
[36] AUSA however raised no objection to the Maputo position. The applicant
declined the position.
[37] The applicant was thus retrenched. The final notification of retrenchment was
on or about 18 November, but was backdated to 18 October 2021, which was
also his final date of employment. He received the letter of appointment to the
position of Station Engineer in Maputo on 18 October 2021. The respondent
asserted that the applicant was in fact retrenched on 10 December 2021
[38] The applicant was offered employment by SAFAIR on 15 November 2021,
and started to work on 26 November 2021. The arbitrator notes that there was
a difference of about 20 days between the last day at the respondent and
starting at SAFAIR. The respondent contended that the applicant was only
retrenched, after he commenced employment with SAFAIR , on 10 December
2021, and that the letter of retrenchment was backdated.
[39] The arbitrator concluded that it was evident that the reason why the applicant
did not accept the alternative offer of employment from the respondent was
because he had already found another job with SAFAIR, and this was before
he was retrenched by the respondent.
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[40] He also found that the applicant had wanted to be retrenched so that he could
collect the severance pay, that this was why he had not applied for his own
position on the Neptune system and that this was the true reason he had
refused the Maputo position.
Conclusion
[41] The arbitrator correctly identified the issue before him, and the dispute he was
required to determine.
[42] The correct test was used to determine whether section 41 (4) of the BCEA
applied to the scenario before the arbitrator or not. The reasonableness or
unreasonableness of the refusal to accept the offer is intertwined with the
reasonableness or unreasonableness of the offer of alternative employment.
[43] The arbitrator notes at the commencement of his award that he had
considered all the evidence and submissions but only deals with the material
evidence in his award. The arbitrator traverses the important, material
evidence in his award. He considers and applies his mind to it. There is
nothing to suggest that ‘massive amounts of material evidence’ was ignored.
There is also no evidence of bias on the part of the arbitrator. The arbitrator’s
award is one that falls within the band of reasonableness and is therefore
unassailable.
[44] In the premise the following order is made:
Order
1. The review is dismissed.
2. There is no order as to costs.
______________________
NJ Whitear-Nel
Acting Judge of the Labour Court of South Africa
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Appearances:
For the applicant : Ms A Davies of Pretorius Davies Inc.
For the respondent : Mr Zwane of Zwane Inc Attorneys.