Kit Kat Group (Pty) Ltd v CCMA and Others (JR1206/18) [2022] ZALCJHB 113 (4 May 2022)

Kit Kat Group (Pty) Ltd v CCMA and Others (JR1206/18) [2022] ZALCJHB 113 (4 May 2022)

The court found that the commissioner failed to apply the principles governing circumstantial evidence and incorrectly required direct proof of misconduct. The circumstantial evidence overwhelmingly demonstrated that the dismissed employees were involved in the fraudulent scheme, as the amounts lost matched the transactions they executed and it was improbable that the customer slips could have been used without their knowledge. The court held that a reasonable decision maker would have found the dismissal substantively fair, as the misconduct involved dishonesty and justified termination of employment. The arbitration award was thus reviewed and set aside, and replaced with a finding of...

Citation
[2022] ZALCJHB 113
Parties
Applicant: Kit Kat Group (Pty) Ltd; Respondent: CCMA; Respondent: Commissioner Elsabe Harmse; Respondent: NUHRCCHAW obo Khomola and Mashabane
Court
Labour Court Johannesburg
Jurisdiction
South Africa
Judgment Date
4 May 2022
Case Number
JR1206/18
Procedural Posture
Review Application / Opposed Review of Arbitration Award
Outcome
Arbitration award reviewed and set aside; dismissal found substantively fair; no order as to costs.
Judges
G N Moshoana
Legal Topics
Unfair Dismissal, Circumstantial Evidence, Substantive Fairness, Arbitration Review
Labour Law Unfair Dismissal Circumstantial Evidence Substantive Fairness Arbitration Review

Case Brief

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Parties

Kit Kat Group (Pty) Ltd

Applicant

CCMA

Respondent

Commissioner Elsabe Harmse

Respondent

NUHRCCHAW obo Khomola and Mashabane

Respondent

Procedural Posture

Review Application / Opposed Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award finding the dismissal substantively unfair was reasonable.
  2. 2 Whether circumstantial evidence sufficed to prove misconduct and dishonesty by the dismissed employees.
  3. 3 Whether the sanction of dismissal was appropriate given the nature of the misconduct.

Ratio Decidendi

The court found that the commissioner failed to apply the principles governing circumstantial evidence and incorrectly required direct proof of misconduct. The circumstantial evidence overwhelmingly demonstrated that the dismissed employees were involved in the fraudulent scheme, as the amounts lost matched the transactions they executed and it was improbable that the customer slips could have been used without their knowledge. The court held that a reasonable decision maker would have found the dismissal substantively fair, as the misconduct involved dishonesty and justified termination of employment. The arbitration award was thus reviewed and set aside, and replaced with a finding of...

Court Disposition

Arbitration award reviewed and set aside; dismissal found substantively fair; no order as to costs.

Orders

  • The arbitration award issued by Senior Commissioner Elsabe Harmse under case number GATW 15299-17 dated 17 May 2017 is reviewed and set aside.
  • It is replaced with an order that the dismissal of Ms Lucy Mashabane and Ms Mirriam Khomola is substantively fair.