Passenger Rail Agency of South Africa Johannesburg v SATAWU obo Maluleke and Others (JR220/19) [2023] ZALCJHB 356 (25 August 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR220/19

In the matter between:

PASSENGER RAIL AGENCY OF SOUTH AFRICA

Applicant

JOHANNESBURG

and

SATAWU OBO CATHERENE MALULEKE First Respondent

COMMISSIONER MBONGENI MOTSOENENG N.O Second Respondent

COMMISSION FOR CONCILIATION MEDIATION

AND ARBITRATION

Third Respondent

Heard: 28 June 2023

Delivered: 25 August 2023

JUDGMENT

TSHISEVHE AJ

Introduction

[1] This is a review application in terms of section 145 (1) (a) of the Labour Relations Act[1] (LRA).

[2] This is an application to review and set aside the arbitration award made under case number GAJB13040-18 dated 26 October 2018 in terms of which the dismissal of Mrs Maluleke (First Respondent) was found by the arbitrator (Second Respondent ) to have been substantively unfair.

[3] PRASA (Applicant) filed the review application late and as a result, made an application for condonation which I need to deal with first.

[4] Should I decide to grant the condonation I will then deal with the review application and should the condonation fail, that will be the end of the matter.

Background facts

[5] The facts are recorded in the papers and there is no need to burden this judgment with a repetition of the comprehensive factual background.

[6] This case concerns six charges of dishonesty including a charge of gross dishonesty in that, in her capacity as ticket official at Lenz Station and Lawley Station, on 17 August 2017, 14 September 2017 and on 2 October 2017 until 10 October 2017, the First Respondent received money from commuters, used the money and only returned it after she received her own salary. On 17 August 2017, an amount of R405,30 was received while on 14 September 2017, an amount of R1023,50 was received.

[7] The First Respondent also fraudulently completed accounting documentation to cover the fact that she did not pay the cash in full.

[8] The First Respondent was dismissed on account of charges of dishonesty, and aggrieved by the dismissal, the First Respondent referred an unfair dismissal to the Third Respondent with the Second Respondent sitting as the arbitrator.

[9] The Second Respondent found the dismissal to be substantively unfair due to the inconsistent application of the rule and retrospectively

reinstated the First Respondent.

[10] Aggrieved by the reinstatement ruling, the Applicant filed for a review application some ten weeks outside of the prescribed time

period.

[11] The First Respondent filed a rule 11 application, however, her representative informed me that such application has already been

dismissed before the review application was set down.

Condonation application

[12] The facts are recorded in the papers and there is no need to burden this judgment with a repetition of the factual background.

[13] It is sufficient to record that:

12.1. the Commissioner’s award was dated 21 October but issued on 26 October 2018;

12.2. the six-week time period referred to in section 145 of the LRA, elapsed on 2 December 2018 and the degree of lateness is calculated

from 3 December 2018.

12.3. the Applicant’s review application was served on 6 February 2019 and filed on 7 February 2019;

12.4. the First Respondent filed her answering affidavit on 3 November 2020 in which she opposed condonation.

[14] It is trite that the Applicant has to provide an explanation for every period of delay in order to enable this Court to assess the reasonableness of the delay and its explanation.

[15] The length of delay is common cause.

[16] It is important to state that this Court has no dies non.

[17] The length of the delay is therefore ten weeks.

Applicable legal principles

[18] Turning to the substance of the Applicant's condonation application, it is important to first identify the legal principles applicable to condonation applications.

[19] In line with the provisions of section 145(1A) of the LRA, this Court may, on good cause shown, condone the late filing of an application in terms of section 145 (1) of the LRA.

Explanation for the late filing of the review application

[20] The Applicant argued that the review is some ten weeks late, attributing the delay to internal processes followed in procuring the services of a legal practitioner to prosecute the review application and that all legal practitioners who were asked to provide quotations were given a period of 14 days to do so.

[21] The Applicant further stated that, at the time a legal practitioner was appointed, they were already in recess or closed for the festive season until early January 2019 and further that this Honourable Court was in recess at the time the Applicant appointed the said legal practitioner.

[22] I should hasten to refute the averment that this Court has a dies non.

[23] The Applicant further stated that the delay was not wilful or deliberate conduct on their part.

[24] The First Respondent argued that the explanation provided by the Applicant is not proper and as a result, condonation should be

refused.

Degree of lateness

[25] The Applicant argued that the review application is some ten weeks late and given the explanation, I should condone its late filing.

[26] On the other hand, the First Respondent has made no submission in this regard.

Prospects of success

[27] The Applicant argued that they have good prospects of success in that the First Respondent was dismissed on account of several charges of dishonesty, fraud and theft.

[28] Further, that the Second Respondent committed irregularity in that he failed to apply his mind to the facts that the case of the First Respondent and how it differed from that of Hlongwane or Sibiya in that, Messrs Hlongwane and Sibiya were acting in their positions whereas the First Respondent was a permanent staff member who was properly trained for the position.

[29] That Hlongwane’s misconduct was caused by the conduct of the third party and that the incident only happened once, with just a single charge whereas the First Respondent faced five charges of dishonesty.

[30] That Hlongwane pleaded guilty from the onset whereas the First Respondent denied everything and as a result, was not remorseful.

[31] The First Respondent argued, amongst others, that the Applicant does not have any prospect of success as the decision of the Second

Respondent is impeccable.

Analysis of the application

[32] The approach which the Labour Court and the Labour Appeal Court (LAC) have followed in determining whether good cause has been shown is the often referred to passage enunciated by Holmes JA in Melane v Santam Insurance Co. Ltd[2] (Melane):

‘In deciding whether sufficient cause has been shown, the basic principle is that the Court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefor, the prospects of success, and the importance of the case. Ordinarily these facts are interrelated: they are not individually decisive, for that would be a piecemeal approach incompatible with a true discretion...’

[33] In applying the ratio in Melane, the court in Academic & Professional Staff Association v Pretorius NO and Others,[3] summarised the principles for consideration as follows:

‘[17] The factors which the court takes into consideration in assessing whether or not to grant condonation are:

(a) the degree of lateness or non compliance with the prescribed time frame;

(b) the explanation for the lateness or the failure to comply with time frame;

(c) prospects of success or bona fide defence in the main case;

(d) the importance of the case;

(e) the respondent's interest in the finality of the judgment;

(f) the convenience of the court; and

(g) avoidance of unnecessary delay in the administration of justice…

[18] It is trite that these factors are not individually decisive but are inter-related and must be weighed against each other. In weighing

these factors, for instance, a good explanation for the lateness may assist the applicant in compensating for weak prospects of success. Similarly, strong prospects of success may compensate the inadequate explanation and the long delay.’

[34] In this Court, the principles have long been qualified by the rule that where there is an inordinate delay that is not satisfactorily explained, the applicant’s prospects of success are immaterial.

[35] In casu, the Applicant’s explanation for the delay is that they were delayed when following internal procurement processes.

[36] I am mindful of the fact that this is a government institution/parastatal which, if processes are not followed to the letter, officials who fail to follow the policies might face a disciplinary hearing wherein they run a risk of dismissal.

[37] In Foster v Stewart Scott Inc,[4] his Lordship Mr Justice Froneman (as he then was) stated:

‘It is well settled that in considering applications for condonation the court has a discretion, to be exercised judicially upon a consideration of all the facts. Relevant considerations may include the degree of non-compliance with the rules, the explanation therefor, the prospects of success on appeal, the importance of a case, the respondent's interest in the finality of the judgment, the convenience of the court, and the avoidance of unnecessary delay in the administration of justice, but the list is not exhaustive. These factors are not individually decisive, but are interrelated and must be weighed one against the other. A slight delay and good explanation for the delay may help to compensate for prospects of success which are not strong. Conversely, very good prospects of success on appeal may compensate for an otherwise perhaps inadequate explanation and long delay. See, in general, Erasmus Superior Court Practice at 360-366A.’

[38] In Colett v Commission for Conciliation, Mediation and Arbitration and others,[5] the LAC confirmed that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial and without good prospects of success, no matter how good the explanation for the delay, an application for condonation should be

refused. The onus is on the applicant to satisfy the court that condonation should be granted.

[39] In employment disputes there is an additional consideration which applies in determining whether the onus has been discharged, as was held in National Union of Metalworkers of SA on behalf of Thilivhali v Fry’s Metals (A Division of Zimco Group) and others:[6]

‘There is, however, an additional consideration which applies in employment disputes in determining whether an applicant for condonation has discharged this onus. This is the fundamental requirement of expedition. The Constitutional Court has, as a matter of fundamental principle, confirmed that all employment law disputes must be expeditiously dealt with and any determination of the issue of good cause must always be conducted against the back drop of this fundamental principle in employment law.’

[40] Obviously, without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for

condonation should be refused. In this regard, in NUM v Council for Mineral Technology[7] (Mineral Technology), the court held as follows:

‘…The approach is that the court has a discretion, to be exercised judicially upon a consideration of all the facts, and in essence it is a matter of fairness to both sides. Among the facts usually relevant are the degree of lateness, the explanation therefore, the prospects of success and the importance of the case. These facts are interrelated; they are not individually decisive. What is needed is an objective conspectus of all the facts. A slight delay and a good explanation may help to compensate for prospects of success which are not strong. The importance of the issue and strong prospects of success may tend to compensate for a long delay. There is a further principle which is applied and that is that without a reasonable and acceptable explanation for the delay, the prospects of success are immaterial, and without prospects of success, no matter how good the explanation for the delay, an application for condonation should be refused…’

[41] It is my firm view and understanding that, a presiding judge has a discretion to condone or refuse a condonation application, however, same cannot be exercised outside the band of reasonableness and in total disregard of our jurisprudence which dictates that the Applicant need to make out a proper case on the degrees of lateness, its explanation thereof and the prospects of success.

[42] Once again, in order to exercise its discretion whether or not to grant condonation, this court must be appraised of all the facts and circumstances relating to the delay. The applicant for condonation must therefore provide a satisfactory explanation for each period of delay. In NUMSA and another v Hillside Aluminium,[8] Murphy AJ held that an unsatisfactory explanation for any period of delay will normally be fatal to an application, irrespective of the applicant’s prospects of success.

[43] The abovementioned principles have been further adopted in numerous other cases in the Labour Court and in the LAC.

[44] This Court needs to be convinced that the Applicant has provided a satisfactory explanation for each period of the entire 10 week delay.

Is it in the interest of justice to grant condonation?

[45] The Constitutional Court pointed out in Brummer v Gorfil Brothers Investments (Pty) Ltd and others,[9] that an application for condonation should be granted if it is in the interests of justice to do so and refused if it is not. The

Constitutional Court went on to say that the interests of justice must be determined by reference to all relevant factors outlined in Melane, including the nature of the relief sought, the nature and cause of any other defect in respect of which condonation is sought, and the effect of the delay on the administration of justice.

[46] The question that begs an answer in this matter is whether refusing condonation will be in the interest of justice considering the fact that the First Respondent has been retrospectively reinstated by the Second Respondent whereas she was found guilty of five charges of dishonesty.

[47] In Steenkamp and Others v Edcon Limited[10] (Steenkamp), the Constitutional Court reaffirmed that granting condonation must be in the interests of justice and it referred with approval to its decision in Grootboom v National Prosecuting Authority and Another.[11]

Condonation is not there merely for the asking

[48] Significant with a determination of such applications is that condonation cannot be had merely for the asking, and a party is required to make out a case entitling it to the court’s indulgence by showing sufficient cause, and giving a full, detailed and accurate account of the causes of the delay. In the end, the explanation must be reasonable enough to excuse the default.

Speedy resolution of labour disputes

[49] In Steenkamp[12] under the heading “Broader object of the LRA”, the Constitutional Court placed emphasis on the fact that the expeditious resolution of labour disputes is one of the primary

objects of the LRA. This had important consequences,[13] commencing with the proposition that “time periods in the context of labour disputes are generally essential to bring about timely resolution of the disputes”[14]. The further points made by the Court include that labour disputes by their nature require speedy resolution, and that any delay in the resolution of labour disputes undermines the primary object of the LRA. The Court also expressly gave support to Myathaza v Johannesburg Metropolitan Bus Services (SOC) Ltd t/a Metrobus and others,[15] wherein the Constitutional Court held that: “employment disputes by their very nature are urgent matters that require speedy resolution”.[16]

[50] I am of the view that it is in the interest of justice to grant condonation in this matter because the Applicant’s explanation

is reasonable and acceptable let alone the prospects of success.

The test for review

[51] I now turn to the merits of the case. In order for me to make a determination regarding the fairness of the dismissal, I must first

be satisfied that the decision of the arbitrator falls outside the band of reasonableness, if not, the application stands to be

dismissed.

[52] The Constitutional Court settled the issue of test for review of an arbitration award in the case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[17] (Sidumo). The Court held that the test on review is whether the decision reached by the commissioner is one that a reasonable decision-maker

could not reach in relation to the evidence before him or her.[18]

[53] The test to be applied is one that recognises and reinforces the distinction between a review and an appeal. This court is entitled to intervene if and only if the arbitrator’s decision is one that falls outside of a band of decisions to which a reasonable decision-maker could come to on the available material before him. The locus classicus remains Head of the Department of Education v Mofokeng and others[19] (Mofokeng), where the LAC said the following:

‘The failure by an arbitrator to apply his or her mind to issues which are material to the determination of a case will usually be an irregularity.’

[54] However, the Supreme Court of Appeal, in Herholdt v Nedbank (Congress of the South African Trade Unions as amicus curiae)[20] summarised the review test as follows:

‘…[T]he position regarding the review of CCMA awards is this: A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator.’

[55] In a further explication of the review test, the Labour Appeal Court in Goldfields Mining South Africa (Pty) Limited (Kloof Gold Mine v CCMA & Others)[21] held that in assessing whether the result of an award is unreasonable, the reviewing court should not adopt a piecemeal approach, and must further enquire whether:

‘…(i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain cases only become clear after both parties have led their evidence) (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator’s decision one that another decision-maker could reasonably have arrived at based on the evidence?’

[56] In Mofokeng[22], the court held that:

‘[32] …Mere errors of fact or law may not be enough to vitiate the award. Something more is required. To repeat: flaws in the reasoning of the arbitrator, evidenced in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors etc must be assessed with the purpose of establishing whether the arbitrator has undertaken the wrong enquiry, undertaken the enquiry in the wrong manner or arrived at an unreasonable result. Lapses in lawfulness, latent or patent irregularities and instances of dialectical unreasonableness should be of such an order (singularly or cumulatively) as to result in a misconceived inquiry or a decision which no reasonable decision-maker could reach on all the material that was before him or her.

[33] 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 or irregularity 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. A material error of this order would point to at least a prima facie unreasonable result. The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable.’

[57] I wish to reiterate that, irregularities or errors in relation to the facts or issues, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry.

[58] It is therefore apparent from the above judgements that there must be a nexus between the error and the fairness of the trial which should be proven by the Applicant in an application for review, failing which

the review application stands to fail.

Grounds of review

[59] The Applicant has, in challenging the arbitration award, raised several grounds of review which include - failure to consider the

relevant facts, misdirection in applying the facts and the law, gross misconduct or gross irregularity and the that the decision of the arbitrator is not just and reasonable. The other grounds upon which the Applicant relies on in challenging the arbitration award are, amongst others, that the arbitrator disregarded:

‘1. That the Second Respondent failed to take into account the severity of the misconduct, personal circumstances of the First Respondent and other employees.

2. That consistency does not mean that the same sanction must be applied in every instance of the same misconduct.

3. That Mr Hlongwane and Mr Zakhele were both acting in their positions which were senior than their original positions and they were not trained in those positions which factors the Second Respondent failed to take into account.

4. That Mr Zakhele Sibiya had a clean record and only faced one charge where he pleaded guilty and it is a sign a remorse.

5. That in the case of Hlongwane, the misconduct was attributed to a third party, he had a clean record and only one transgression was committed. He pleaded guilty of the charge which is a sign of remorse.

6. That the First Respondent faced multiple charges, pleaded not guilty, was did not have a clean record and she also falsified documents.’

The arbitration award

[60] It is trite that in unfair dismissal disputes the first task of the arbitrator is to determine whether the employee was guilty of

the offence he or she is alleged to have committed. If it is found that indeed the employee was guilty as charged the next task of the arbitrator is to enquire into the fairness of the sanction imposed by the employer.

[61] The onus to show that the employee was guilty of the offence and that the dismissal was fair rests with the employer.

[62] In this case, the Applicant faced charges of dishonesty but only challenged the appropriateness of the sanction, arguing that the

Applicant was inconsistent in its sanctions as other employees such as Mr Hlongwane and Mr Sibiya have committed similar offences but were only issued with serious final written warnings.

[63] In Autozone Dispute Resolution Centre of Motor Industry and Others,[23] Murphy AJA held that:

‘Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee. It will be difficult going forward for any task involving a measure of discretion or reliance to be entrusted to the deceitful employee. The operational requirements of the employer alone, therefore, may very well justify the dismissal. An employer is entitled to have a driver it can rely on to act in good faith to advance and protect its interests. Sikhakhane’s conduct shows that he is not such a driver. It was not necessary for Autozone in such circumstances to have produced evidence to show that the employment relationship had been irreparably destroyed. The nature of the offence and the manner of its commission support a conclusion that the continuation of the relationship had become intolerable. The employer cannot reasonably be expected to retain Sikhakhane in its employ. Hence, the finding to that effect by the arbitrator is one that a reasonable decision-maker could reach…’

Inconsistent application of the rule

[64] The employer has the responsibility of setting the standard of conduct he or she requires employees to comply with and to apply such

standard consistently. Sometimes failure to apply the standard consistently can lead to the conclusion that non-compliance with the standard by the employee cannot be regarded as serious enough to warrant a dismissal.

[65] However, consistent application of the rule does not necessarily mean that factors such as inter alia, the circumstances of the commission of the misconduct, remorsefulness and clean record should be ignored.

[66] It is trite that even if misconduct is serious, each case should be judged in accordance with its own merits, in consideration of issues raised supra.

[67] In South African Commercial Catering and Allied Workers Union v Irvin & Johnson Ltd (Seafoods division fish processing)[24] (Irvin & Johnson), the LAC held that:

‘If a chairperson conscientiously and honestly, but incorrectly, exercises his or her discretion in a particular case in a particular

way, it would not mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of a plurality of dismissals, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy… Even then I dare say that it might not be so unfair as to undo the outcome of other disciplinary enquiries. If, for example, one member of a group of employees who committed a serious offence against the employer is, for improper motives, not dismissed, it would not, in my view, necessarily mean that the other miscreants should escape. Fairness is a value judgment. It might or might not in the circumstances be fair to reinstate the other offenders. The point is that consistency is not a rule unto itself.’

[68] The Applicant argued that the First Respondent cannot be compared to Mr Hlongwane or Mr Sibiya as their circumstances are different in that:

68.1 the First Respondent did not have a clean record whereas the other two employees had clean records.

68.2 the circumstances surrounding the commission of the offence were also different in that Mr Hlongwane’s conduct was attributed to a third party.

68.3 the Applicant also re-introduced the rule on 19 April 2017. The letter also re-emphasised the rule as it stated amongst others that anyone found to be in contravention of the rules would be disciplined and strict application of the policy would apply.

68.4 both Mr Hlongwane and Mr Sibiya pleaded guilty to the charges which weighed heavily in their favour whereas the First Respondent denied everything from the onset.

69.5. the First Respondent was a permanent staff member who received training in her duties whereas the other two staff members were just acting in their positions with no training at all.

[69] The Second Respondent in his award stated that the Applicant ought to have dismissed Mr Hlongwane and issue the First Respondent with a final written warning instead because she returned the funds whereas Mr Hlongwane never returned it.

[70] Item 3 (4) of Schedule 8 (Code of Good Practice: Dismissal) of the LRA provides that it is generally inappropriate to dismiss an

employee for a first offence, except if the misconduct is serious and of such gravity that it makes a continued employment relationship

intolerable.

[71] Sub-item 5 of Schedule 8 supra provides further that when deciding whether or not to impose a penalty of dismissal, the employer should, in addition to the gravity of the misconduct, consider factors such as the employee’s circumstances (including length of service, previous disciplinary record and personal circumstances), the nature of the job and the circumstances of the infringement itself.[25]

[72] The decision of Irvin & Johnson was confirmed by the LAC, in Gcwensha v CCMA and others,[26] where the court observed that:

‘… when comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated…’

[73] In my view, the responsibility to determine the consistent application of the rule lies with the arbitrator, however, same must

be exercised judicially and in consideration of all material facts before him. Such facts should include inter alia, disciplinary record, remorsefulness, and the circumstances surrounding the commission of the offence.

[74] I find it strange, to say the least, that, the Second Respondent says nothing about the First Respondent’s record, which was not clean, the number of charges that she faced which are six, her plea of not guilty in contrast with that of the other two employees as well as that she was a trained staff member as opposed to the two.

[75] In order for me to be persuaded that the two cases are similar, I need to be convinced that all those extenuating factors raised supra are also attributed to all the employees referred, otherwise the test should not succeed.

[76] The Second Respondent’s award is found wanting in many material respects and I am not convinced that his award is one that a reasonable decision-maker would arrive at with the totality of evidence before him.

[77] The decision of the arbitrator falls outside the band of reasonableness in that he failed to consider the number of charges, remorsefulness, employees record and circumstances in which the said misconduct was committed.

[78] The Second Respondent his award stated that “the respondent did not even submit that after the infraction committed by Hlongwane, the respondent reintroduced the rule and emphasised that anyone who would be found in contravention of the rules or anyone who would be found to be dishonest, would be disciplined and strict application of the policy would be adhered to”.

[79] The Applicant at paragraph 34.2 and 34.3 differed with the above finding by the Second Respondent and referred me to annexure “PRASA13”, the said annexure is also found in CCMA documents which were filed in terms of rule 7A 2 (b) on page 52 of

the bundle.

[80] The Applicant emphasised the rule on 19 April 2017. Curiously, this was not challenged by the First Respondent in her answering

affidavit. On this ground alone the review application should succeed.

[81] I wish to state that even after the reintroduction of the rule, it should not be automatic that whoever is found guilty of the

reintroduced rule stands to be dismissed because that would make a mockery of mitigation factors or other extenuating factors that may be adduced by employees.

[82] It has however been consistently held by the courts that the responsibility for determining the appropriateness of dismissal as a penalty is a matter to be left to the discretion of the arbitrator. In this respect, the Constitutional Court in Sidumo[27] said the following:

‘It is a practical reality that, in the first place, it is the employer who hires and fires. The act of dismissal forms the jurisdictional basis for a commissioner, in the event of an unresolved dismissal dispute, to conduct an arbitration in terms of the LRA. The commissioner

determines whether the dismissal is fair. There are, therefore, no competing “discretions”. Employer and commissioner each play a different part. The CCMA correctly submitted that the decision to dismiss belongs to the employer but the determination of its fairness does not. Ultimately, the commissioner’s sense of fairness is what must prevail and not the employer’s view. An impartial third party determination on whether or not a dismissal was fair is likely to promote labour peace.’

[83] The Constitutional Court went further to say 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 dismissal on the employee and his or her long-service record. This is not an exhaustive list.’[28]

[84] It is however important to state that such discretion needs to be exercised judiciously and within the band of reasonableness.

[85] It therefore follows that it is not convincing that the Second Respondent’s finding that the Applicant condoned dishonesty in the workplace is without merit because he failed to understand that each case should be judged on its merits.

[86] I am, therefore, not convinced that the decision of the arbitrator falls within the band of reasonableness based on the totality of evidence before him and as a result, I see no reason why I should not interfere with it.

[87] I see no reason why the application for review should not succeed.

[88] In the premise, I make the following order:

Order

1. Condonation for the late filing of the review application is granted.

2. The review application is upheld.

3. No order is made as to costs.

N Tshisevhe

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Timmy Mahlangu of Msikinya attorneys and associates

For the Respondent: Union Official Nomfundo Nonkelela of IMATU

[1] Act 66 of 1995, as amended.

[2] 1962 (4) SA 532 (A) at 532- E.

[3] [2008] 1 BLLR 1 (LC) at paras 17 - 18.

[4] (1997) 18 ILJ 367 (LAC) at 369C-F.

[5] (2014) 35 ILJ 1948 (LAC).

[6] (2015) 36 ILJ 232 (LC) at para 25.

[7] [1999] 3 BLLR 209 (LAC) at para 10.

[8] [2005] ZALC 25; [2005] 6 BLLR 601 (LC) at para 12.

[9] [2000] ZACC 3; 2000 (2) SA 837 (CC) at para 3.

[10] (2019) 40 ILJ 1731 (CC) at para 36.

[11] 2014 (2) SA 68 (CC) at paras 22 - 23.

[12] Steenkamp at para 38.

[13] The Constitutional Court in Steenkamp described the importance of expeditious resolution of labour disputes in more detail in paras 39 - 41 of the judgment.

[14] Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and others (2016) 37 ILJ 313 (CC) at para 1.

[15] (2017) 38 ILJ 527 (CC).

[16] Ibid at para 33.

[17] 2008 (2) SA 24 (CC) at para 110.

[18] In CUSA v Tao Ying Metal Industries and others [2009] 1 BLLR 1 (CC) at paras 76 and 134, the Constitutional Court held that it is now axiomatic that a commissioner of the CCMA (or an arbitrator of a bargaining council) is required to apply his or her mind to the issues before him or her and that failure to do so may result in the ensuing award being reviewed and set aside. The irregularity must however result in an unreasonable outcome or misconception of the true enquiry resulting in no fair trial of the issues. See also Sidumo.

[19] [2015] 1 BLLR 50 (LAC).

[20] 2013 (6) SA 224 (SCA) at para 25.

[21] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 20.

[22] Mofokeng supra at paras 32 – 33.

[23] [2019] JOL 41073 (LAC) at para 13.

[24] (1999) 20 ILJ 2302 (LAC) at para 29.

[25] In his book entitled ‘Dismissal’ (Juta, 2014) at p 251, Professor John Grogan remarked as follows regarding mitigating factors: ‘Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or aggravating) factors constitutes a separate inquiry. A variety of considerations may be relevant when considering a plea in mitigation. These include a clean disciplinary record, long service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanour and any other factors that might serve to reduce the moral culpability of the employee. An employer is not required to take mitigating factors into account merely because the evoke sympathy. The test is whether, taken individually or cumulatively, they serve to indicate that the employee will not repeat the offence.’

[25] In his book entitled ‘Dismissal’ (Juta, 2014) at p 251, Professor John Grogan remarked as follows regarding mitigating factors:

‘Mitigating factors should be considered after the employee has been found guilty of the offence; whether there are mitigating (or aggravating) factors constitutes a separate inquiry. A variety of considerations may be relevant when considering a plea in mitigation. These include a clean disciplinary record, long service, remorse, the circumstances of the offence, whether the employee confessed to his misdemeanour and any other factors that might serve to reduce the moral culpability of the employee. An employer is not required to take mitigating factors into account merely because the evoke sympathy. The test is whether, taken individually or cumulatively, they serve to indicate that the employee will not repeat the offence.’

[26] [2006] 3 BLLR 234 (LAC) at para 36.

[27] Sidumo supra at para 75.

[28] Ibid at para 78.