Ndaa Food Manufacturing CC t/a Ndaa Bakery v Commission for Conciliation, Mediation and Arbitration and Others (JR1986/20) [2022] ZALCJHB 54 (15 March 2022)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR1986/20

In the matter between:

NDAA FOOD MANUFACTURING CC T/A NDAA BAKERY

(REGISTRATION NUMBER: 2004/052122/23)

Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION

First Respondent

COMMISSIONER: SIPHO TALANE

Second Respondent

NALEDZANI EDMOND NEPHAWE

Third Respondent

Heard: 10 February 2022

Delivered: 15 March 2022

Summary: Review application - misconduct – principles considered – conduct of employee actually constituting gross negligence – arbitrator failing to have proper regard to serious nature of misconduct – finding that dismissal not appropriate is unreasonable and reviewable

JUDGMENT

DEANE, AJ

Introduction

[1] This is an unopposed application to review and set aside the arbitration award dated 9 November 2020 handed down by the second respondent (Commissioner) acting under the auspices of the first respondent under case number LP5756-20 and that the first respondent be directed to set the matter down for arbitration de novo to be heard by an arbitrator other than the Commissioner.

Background

[2] The third respondent (Nephawe) was employed by the applicant (Applicant) as a team leader and was remunerated in an amount of R3 900.00 per month.

[3] Nephawe was subjected to a disciplinary enquiry where, inter alia, charges of theft were brought against him. Nephawe pleaded guilty to six different charges in the disciplinary hearing being:

3.1 Charge 1: Gross Misconduct – Theft.

3.2 Charge 2: Gross Misconduct – Misappropriation of company assets.

3.3 Charge 3: Gross Misconduct – Theft.

3.4 Charge 4: Gross Misconduct – Misappropriation of company assets.

3.5 Charge 5: Gross Negligence – Gross dereliction of duties.

3.6 Charge 6: Gross Misconduct – Breaking the bond of trust between employer and employee.

[4] The summary of the alleged misconduct is as follows.

‘It is alleged that:

1. As at 11 July 2020 you had stolen 270 crates over the period from May 2019 to 11 July 2020.

2. As at 11 July 2020 you had misappropriated 270 crates over the period from May 2019 to 11 July 2020.

3. Over the period 1 July 2020 to 11 July 2020 you stole R 1 335.10 of the company’s money.

4. Over the period 1 July 2020 to 11 July 2020 you misappropriated 1 335.10 of the company’s money.

5. Charges 1 to 4 are tantamount to you not doing your job the way that you were supposed to.

6. Your actions as per Charges 1-5 are tantamount to you breaking the bond of trust between employer and employee’.

[5] Based on the guilty pleas, Nephawe was dismissed.

[6] Nephawe subsequently referred the matter to the Commission for Conciliation, Mediation and Arbitration (CCMA), alleging that he had been unfairly dismissed.

[7] The Commissioner concluded that the dismissal of Nephawe was substantively unfair and ordered compensation in the amount of R15 6000.00, being equivalent to four months’ salary.

Grounds for Review

[8] There are various grounds of review in which the Applicant submits that the Commissioner:

8.1 Failed to apply his mind properly to the material facts and evidence that were placed before

him; and/or

8.2 Failed to understand or to appreciate the true nature of the issue and dispute; and/or

8.3 Dealt with the evidence that was placed before him in a selective manner, which unduly favours the Nephawe; and/or

8.4 was biased; and/or

8.5 failed to take into account that Nephawe pleaded guilty to a charge of theft.

Legal Considerations

[9] The test that the Labour Court is required to apply in a review of an arbitrator’s award is, “is the decision reached by the commissioner one that a reasonable decision-maker could not reach?”[1]

[10] In Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[2] (Sidumo) the Constitutional Court very clearly held that the arbitrator’s conclusion must fall within a range of decisions that a reasonable decision-maker could make, and the reasonableness test is still aptly described in the pre-Sidumo case of Computicket v Marcus NO and Others,[3] where it was held that “the question I have to decide is not whether [the arbitrator’s] conclusion was wrong but whether ... it was unjustifiable and unreasonable.”

[11] As the Court rightly pointed out in The National Commissioner of the South African Police Service v Myers and Others[4] (Myers) “…whatever one’s personal view may be, the test as set out in Sidumo ... is whether or not the arbitrator’s decision that dismissal is an appropriate sanction is a decision that a reasonable decision-maker could reach”.

[12] In this regard, the Supreme Court of Appeal has reminded this Court that the test is that of review and not appeal.[5] Our Courts have therefore repeatedly stated that in order to maintain the distinction between a review and an appeal, an award of

an arbitrator will only be set aside if both the reasons and the result are unreasonable. In determining whether the result of an arbitrator’s award is unreasonable, the Labour Court must broadly evaluate the merits of the dispute and consider whether, if the arbitrator’s reasoning is found to be unreasonable, the result is, nevertheless, capable of justification for reasons other than those given by the arbitrator. The result will, however, be unreasonable if it is entirely disconnected with the evidence,

unsupported by any evidence and involves speculation by the arbitrator.[6]

[13] An award will no doubt be considered to be reasonable when there is a material connection between the evidence and the result or, put differently when the result is reasonably supported by some evidence. Unreasonableness is, thus, the threshold for interference with an arbitrator’s award on review.

[14] In Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,[7] (Gold Fields) the Court rejected a piecemeal or fragmented approach to reviews, where each factor that the commissioner failed to consider is analysed individually and independently, for principally two reasons. The first is that it “assumes the form of an appeal” and not a review, and the second is that it is mandatory for the reviewing court to consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make. To evaluate every factor individually and independently, it observed, is to defeat the requirements of section 138 of the Labour Relations Act[8] (LRA), in terms of which the arbitrator is required to deal with the substantial merits of the dispute between the parties with the minimum of legal formalities, albeit expeditiously and fairly.[9]

[15] On this approach, therefore, the failure of a commissioner “to mention a material fact in his or her award”, or “to deal in his/her award in some way with an issue which has some material bearing on the issue in dispute”, or “commits an error in respect of the evaluation or consideration of facts presented at the arbitration”[10] would not, in itself, render the award reviewable. Having considered the evidence at arbitration, the Court held “…I cannot accept that the arbitrator’s decision fell outside of the band of decisions to which reasonable people could come.”[11]

[16] In Fidelity Cash Management Service v CCMA and Others[12] (Fidelity Cash Management Service) Zondo JP, applied the Sidumo test thus:

‘It will often happen that, in assessing the reasonableness or otherwise of an arbitration award or other decision of a CCMA commissioner, the court feels that it would have arrived at a different decision or finding to that reached by the commissioner. When that happens, the court will need to remind itself that the task of determining the fairness or otherwise of such a dismissal is in terms of the Act primarily given to the commissioner and that the system would never work if the court would interfere with every decision or arbitration award of the CCMA simply because it, that is the court, would have dealt with the matter differently.’

And that:

‘The test enunciated by the Constitutional Court in Sidumo for determining whether a decision or arbitration award of a CCMA commissioner is reasonable is a stringent test that will ensure that such awards are not lightly interfered with. It will ensure that, more than before, and in line with the objectives of the Act and particularly the primary objective of the effective resolution of disputes, awards of the CCMA will be final and binding as long as it cannot be said that such a decision or award is one that a reasonable decision-maker could not have made in the circumstances of the case. It will not be often that an arbitration award is found to be one which a reasonable decision-maker could not have made but I also do not think that it will be rare that an arbitration award of the CCMA is found to be one that a reasonable decision-maker could not, in all the circumstances, have reached.’

[17] The test that this Court must apply in deciding whether the arbitrator’s decision is reviewable is whether the conclusion reached by the arbitrator was so unreasonable that no other arbitrator could have come to the same conclusion.

[18] It is on this basis that I proceed with the merits of the application below.

Analysis

[19] On the ground of review that the Commissioner failed to consider Nephawe’s guilty plea. It is trite that arbitration proceedings are de novo proceedings. De novo, in the context of arbitrations, means determining the matter afresh.

[20] Section 138 of the LRA stipulates that a commissioner can use his discretion as to the manner in which he would like to conduct the hearing. Therefore, it is said that arbitration cases are considered as hearings de novo. The commissioner is tasked with determining the fairness or otherwise of the employer’s decision and is not meant to reconvene a disciplinary hearing. This begs the question of whether the record of a disciplinary proceeding is necessary for the fair determination of the dispute at the CCMA, in light of the fact that the arbitration is hearing de novo?

[21] In Sidumo, the Constitutional Court explained how the discretion contained in section 138 of the LRA should be understood, as follows:

‘Equally true is that when an employer determines what is an appropriate sanction in a particular case, the employer may have to choose among possible sanctions ranging from a warning to dismissal. It does not follow that all transgressions of a particular rule must attract the same sanction. The employer must apply his or her mind to the facts and determine the appropriate response. It is in this sense that the employer may be said to have discretion’.

‘But recognising that the employer has such discretion does not mean that in determining whether the sanction imposed by the employer is fair, the commissioner must defer to the employer. Nor does it mean that the commissioner must start with bias in favour of the employer. What this means is that the commissioner … does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner’s starting point is the employer’s decision to dismiss. The commissioner’s task is not to ask what the appropriate sanction is but whether the employer’s decision to dismiss is fair.’[13]

[22] The Commissioner cannot disregard the record of disciplinary proceedings purely because he is hearing the matter for the first time. The record of disciplinary proceedings could also be used to assess whether the dismissal of the employee was effected in accordance with a fair procedure. Most importantly, the commissioner must test the totality of the evidence submitted by the employer against the guidelines on dismissal set out in the LRA Code of Good Practice: Dismissal.[14]

[23] In casu Nephawe plead guilty to all charges at the disciplinary hearing and the Commissioner correctly takes note of this in the arbitration award.[15] The record of the disciplinary proceedings was in front of the Commissioner.[16] The record indicates that Nephawe pleaded guilty to all the charges and that the charges had been explained to him.[17]

[24] The Commissioner also noted that there was a shortage of crates that were brought back by Nephawe. In addition, Nephawe admits that there were crate shortages and that he sometimes did not collect all of the money but that he would collect outstanding monies on other days. However, at some point, the books needed to tally and the employer witness at the arbitrtation, Becker, stated in response to the Commissioner asking “But if he collects the money the following day…”[18] Becker answers “the shortage that was rendered …will cancel each other out…”[19] And he goes on to testify that “and I said to him…..you were never over, the shortage was growing and growing and growing…[20] It is clear from the evidence that the non-collection of money was consistent and despite the various previous warnings[21] that it was causing a loss to the Applicant.

[25] In addition, Nephawe confirms on more than one occasion that there were shortages in both the crates and the money collected. The employer representative at the arbitration, Van der Walt, also confirmed that one of the key

responsibilities of Nephawe’s job as team leader was to collect crates and money.[22]

[26] In the arbitration award, the Commissioner therefore correctly concludes that “the employer breached a valid rule of conduct by failing to bring back all the crates he used to carry bread”.

[27] The Commissioner then goes on to conclude that “the failure to account for the crates and the cash collected does not amount to theft. The evidence adduced does not support the charge of theft but that the employee is guilty of negligence. It is immaterial that negligence was not one of the charges proffered against the employee. The fact that the employee was dismissed for the proven misconduct (i.e. negligence) which is different from the misconduct with which he was charged is immaterial because he understood the nature of the case he was to meet. He was therefore not prejudiced, because he knew exactly what he was arraigned before the disciplinary hearing”.[23]

[28] The Commissioner further concludes that “If he does not collect money for the bread, that will not be theft of such monies. He was negligent in the performance of his duties or guilty of dereliction of duties”.[24] The finding by the Commissioner on this is reasonable taking into account the evidence before him.

[29] However, this finding that Nephawe is indeed guilty of dereliction of duty and the evidence showing that it was a persistent dereliction leading to a final written warning should have alerted the Commissioner to the seriousness of the misconduct. However the Commissioner, regarding sanction to be imposed, goes on to submit “the chairperson of the disciplinary hearing was not alive to the duplication of charges. As a result he found the employee guilty on all the charges. Because of the duplication of convictions the employee was sanctioned more harshly than it would have been the case had there been no splitting of charges. The dismissal of the employee is accordingly substantively unfair.”[25]

[30] Where it comes to the issue of an appropriate sanction, the Commissioner has failed to consider

critical and essential evidence, as well as all the required principles where it comes to deciding whether dismissal was an appropriate sanction, rendering the outcome he arrived at that dismissal was inappropriate in this instance to be entirely unreasonable.

[31] As said in Gold Fields:[26]

‘Where the arbitrator fails to have regard to the material facts it is likely that he or she will fail to arrive at a reasonable decision.’

[32] As to the general principles applicable to deciding whether dismissal is an appropriate sanction,

it must first be said that it is not the function of the second respondent as an arbitrator to decide whether he would have dismissed

Nephawe or not. In deciding whether dismissal as a sanction is fair, an arbitrator does not decide the issue on the basis of a clean slate, so to speak, as if the arbitrator was the employer. The premise upon which the issue of dismissal as a fair sanction must be decided is that of deciding whether what the employer did in dismissing the employee was fair. In short, whilst the arbitrator

must not defer to the employer, the arbitrator must not act as if he or she was the employer.[27]

[33] As was said by Ngcobo J in Sidumo supra:

‘… the commissioner… does not start with a blank page and determine afresh what the appropriate sanction is. The commissioner's

starting-point is the employer's decision to dismiss. The commissioner's task is not to ask what the appropriate sanction is but whether the employer's decision to dismiss is fair.’[28]

[34] In deciding whether the employer acted fairly in deciding to dismiss an employee, a variety of factors must be considered, as a whole.[29] These are, in sum: (1) the importance of the rule that had been breached (seriousness of the misconduct); (2) the reason the employer

imposed the sanction of dismissal; (3) The explanation presented by the employee for the misconduct; (3) the harm caused by the

employee's conduct; (4) whether additional training and instruction may result in the employee not repeating the misconduct; (5) the service record of the employee; (6) the breakdown of the trust/employment relationship between the employer and employee; (7) the existence or not of dishonesty; (8) the possibility of progressive discipline; (9) the existence or not of remorse; (10) the job function of the employee; and (11) the employer’s disciplinary code and procedure.[30] Not all the factors are always relevant to a particular case, so only those that are relevant must be identified, and considered.[31]

[35] In general terms, what requires consideration by an arbitrator was articulated in Vodacom (Pty) Ltd v Byrne NO and others[32] as follows:

‘… the determination of the fairness of a dismissal required a commissioner to form a value judgment, one constrained by the fact that fairness requires the commissioner to have regard to the interests of both the employer and the worker and to achieve a balanced and equitable assessment of the fairness of the sanction …’

[36] The above being the applicable principles, what must be done next is to apply the facts to the

principles that are relevant to this case, and then to consider whether the outcome arrived at by the second respondent that dismissal was not appropriate is reasonable. As a point of departure, and as discussed above, there can be no doubt that the misconduct in

this case is serious. What is called ‘dereliction of duties’ in this case, is in essence nothing else but gross negligence on the part of the Nephawe. It is trite that gross negligence constitutes the kind of misconduct where dismissal would normally be justified.[33] Also, in this case, this is exacerbated by the fact that the misconduct is persistent, that there was no show of remorse and that

there is a clear breakdown of trust between the employer and employee.

[37] True remorse was explained in Absa Bank Ltd v Naidu and Others[34] as follows:

‘… Therefore, the crucial question is whether it could be said that Ms Naidu's utterances empirically and objectively translated into real and genuine remorse. In S v Matyityi, the Supreme Court of Appeal remarked as follows on this issue:

“There is, moreover, a chasm between regret and remorse. Many accused persons might well regret their conduct, but that does not without more translate to genuine remorse. Remorse is a gnawing pain of conscience for the plight of another. Thus genuine contrition can only come from an appreciation and acknowledgement of the extent of one's error. Whether the offender is sincerely remorseful, and not simply feeling sorry for himself or herself at having been caught, is a factual question. It is to the surrounding actions of the accused, rather than what he says in court, that one should rather look. In order for the remorse to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his or her confidence. Until and unless that happens, the genuineness of the contrition alleged to exist cannot be determined. After all, before a court can find that an accused person is genuinely remorseful, it needs to have a proper appreciation of, inter alia: what motivated the accused to commit the deed; what has since provoked his or her change of heart; and whether he or she does indeed have a true appreciation of the consequences of those actions”.’

[38] Without the requisite remorse, it is not possible to restore the relationship of trust that forms the foundation of the employment relationship. In De Beers Consolidated Mines Ltd v Commission for Conciliation, Mediation and Arbitration and Others[35] the Court said:

‘… Acknowledgment of wrong doing is the first step towards rehabilitation. In the absence of a recommitment to the employer's workplace values, an employee cannot hope to re-establish the trust which he himself has broken.’

[39] Nephawe fell far short when it came to this. The Commissioner acted unreasonably in failing to appreciate this.

[40] In addition, what is also interesting is the continued dishonest conduct of Nephawe in the arbitration proceedings. For example, he initially told the Commissioner that he was not allowed to get a union representative and that he was not allowed an interpreter.[36] This was disputed by the employer representative, Van Der Walt who explained that the company did not have a recognised union, and by the third respondent’s own account he was not a member of any union at the time that he was charged.[37] In addition, from the disciplinary record, Nephawe indicated that he can speak for himself.[38] The way in which Nephawe conducts himself shows an element of dishonesty. This behaviour was also called out by Van der Walt at the arbitration when Nephawe was questioned why, despite the evidence on the disciplinary record, did he choose to mislead the Commissioner, but which was merely denied by the third respondent.[39] It would clearly seem that Nephawe has no problem with being dishonest.

[41] In addition, it is the explanation offered by Nephawe for his misconduct that is also not acceptable as the persistent non-collection of monies and the blaming of a number of other employees for the failure to collect crates is unacceptable. It follows that Nephawe’ s misconduct in this instance is serious and there exists no acceptable explanation to try and justify or mitigate this misconduct. There is accordingly nothing that can detract from the consequences of such misconduct. Added to that, the misconduct exposes the Applicant to constant losses.

[42] In sum, and where it comes to the Commissioner’s determination on the issue of dismissal as an unfair sanction, there exists a number of fundamental failures. He failed to have proper regard to the seriousness of the misconduct. He failed to consider the issues of the complete absence of remorse and the destruction of the trust relationship, as important factors justifying dismissal. He failed to consider the potential prejudice suffered by the Applicant and the particular position of trust and duties of Nephawe.

[43] Overall considered, and if the first respondent had proper, reasonable and rational regard to all of these factors, the only reasonable conclusion he could have arrived at is that the dismissal of Nephawe was justified, and fair.

Conclusion

[44] Therefore, I conclude that the Commissioner’s finding that the dismissal of Nephawe was

substantively unfair cannot be sustained and falls to be reviewed and set aside. It is clear that the only reasonable outcome the second respondent could have arrived at, considering the evidence as a whole and the applicable principles of law, was that Nephawe’s

dismissal was a justified and fair sanction in the circumstances.

[45] I now turn to the relief sought and that is that this matter, with the award of the Commissioner having been reviewed and set aside, be remitted back to the CCMA for arbitration de novo. In terms of section 145(4) of the LRA,[40] I have a wide discretion where it comes to the issue of consequential relief to be afforded to a review applicant, once it is decided that the arbitration award be reviewed and set aside.

[46] All considered, the core factual matrix in this matter was mostly undisputed, and all the evidence was properly before me in a record that was in all respects complete. There is simply no need to go through the whole exercise of arbitration again and it would be contrary to the fundamental principle of the expeditious resolution of employment disputes to have this matter start all over again at arbitration.[41]

[47] I, therefore, consider it appropriate and justified to finally determine this matter. I shall

accordingly substitute the arbitration award of the Second Respondent with an award that the dismissal of Nephawe by the Applicant was substantively fair.

[48] In the premise the following order is made:

Order

1. The applicant’s review application is granted.

2. The arbitration award dated 9 November 2020, handed down by the Second

Respondent issued under case number LP5756-20, is reviewed and set aside.

3. The arbitration award is substituted with an award that the dismissal of the Third Respondent by the Applicant, was procedurally and substantively fair.

4. There is no order as to costs.

____________________

T. Deane

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Adv. M. Padayachi

Instructed By: Vermeulen Attorneys

For the Respondent: None

[1] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC) at para 110.

[2] Ibid at paras 118-119.

[3] (1999) 20 ILJ 343 (LC) at 346D.

[4] 2012 JDR 1470 (LAC) (unreported), Labour Appeal Court, Cape Town (2 March 2012) at paras 103-104.

[5] See: National Union of Mineworkers & Another v Samancor Ltd (Tubatse Ferrochrome) & Others 2011 ZASCA 74 (25 May 2011).

[6] Herholdt v Nedbank Ltd (701/2012) 2013 ZASCA 97; 2013 (6) SA 224 (SCA); 2013 (11) BLLR 1074 (SCA); 2013 (34) ILJ 2795 (SCA).

[7] 2014 (1) BLLR 20 (LAC) at para 21.

[8] Act No. 66 of 1995.

[9] Gold Fields at paras 18-21.

[10] Ibid at para 20.

[11] Myers at para 104.

[12] 2008 (3) BLLR 197 (LAC) at paras 98 and100.

[13] Sidumo at paras 177 - 178.

[14] Schedule 8 to the LRA. See Sidumo and Palluci Home Depot (Pty) Ltd v Herskowits 2015 (5) BLLR 484 (LAC).

[15] Arbitration Award at para 28, p. 18.

[16] Transcript, pgs. 8-9.

[17] Transcript, pgs. 11-12, and 16-18.

[18] Transcript at para 10, p. 32.

[19] Transcript ST para 10, p. 32.

[20] Transcript, pg. 32, paras 10-20.

[21] Transcript, pg. 64.

[22] Transcript, pg. 55, 58, 59, 60, 61.

[23] Arbitration Award, pg.19, para 36.

[24] Arbitration Award, pg.20, para 40.

[25] Arbitration Award at para 45, pg. 20.

[26] Goldfields at para 21. See also: Pam Golding Properties (Pty) Ltd v Erasmus and Others (2010) 31 ILJ 1460 (LC) at para 6.

[27] Bidair Services (Pty) Ltd v Sekhabisa NO and Others (JR174317) [2019] ZALCJHB 328 (26 November 2019) at para 49.

[28] Sidumo (supra) at para 178.

[29] Ibid at para 78

[30] National Commissioner of the SA Police Service v Myers and Others (2012) 33 ILJ 1417 (LAC) at para 82. See also: Bridgestone SA (Pty) Ltd v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2277 (LAC) at paras 17 – 18; Woolworths (Pty) Ltd v SA Commercial Catering and Allied Workers Union and Others (2016) 37 ILJ 2831 (LAC) at para 14; Msunduzi Municipality v Hoskins (2017) 38 ILJ 582 (LAC) at para 30; Eskom Holdings Ltd v Fipaza and Others (2013) 34 ILJ 549 (LAC) at para 54; Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal and Engineering Industries Bargaining Council and Others (2011) 32 ILJ 1057 (LAC) at para 34; Mutual Construction Co Tvl (Pty) Ltd v Ntombela NO and Others (2010) 31 ILJ 901 (LAC) at paras 37 – 38 and Fidelity Cash Management Services at para 94.

[31]See for example Duncanmec (Pty) Ltd v Gaylard NO and Others (2018) 39 ILJ 2633 (CC) at para 46.

[32] (2012) 33 ILJ 2705 (LC) at para 9. See also Wasteman Group v SA Municipal Workers Union and Others (2012) 33 ILJ 2054 (LAC) at 2057G-I.

[33] See Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) at para 35.

[34] (2015) 36 ILJ 602 (LAC) at para 46.

[35] (2000) 21 ILJ 1051 (LAC) at para 25.

[36] Transcript, pgs. 2-3.

[37] Transcript, pgs. 7, 14, 15.

[38] Transcript, pg. 9.

[39] Transcript, pg. 66.

[40] Section 145(4)(a) reads: ‘If the award is set aside, the Labour Court may – (a) determine the dispute in the manner it considers appropriate …’

[41] See: Food & Allied Workers Union on behalf of Gaoshubelwe v Pieman ’s Pantry (Pty) Ltd (2018) 39 ILJ 1213 (CC) at para 187. See also Matsha & others v Public Health & Social Development Sectoral Bargaining Council & others (2019) 40 ILJ 2565 (LC) at para 17 and the authorities cited therein.