South African Airways (SOC) Limited v Commission for Conciliation, Mediation and Arbitration and Others (JR2093/16) [2025] ZALCJHB 338 (1 August 2025)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case No: JR2093/16

In the matter between:

SOUTH AFRICAN AIRWAYS (SOC) LIMITED Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION

First Respondent

COMMISSIONER BONGE MASOTE N.O.

Second Respondent

NTM obo REGGY MASHEGO

Third Respondent

Heard: 23 April 2025

Delivered: 1 August 2025

JUDGMENT

SCHENSEMA, AJ

Introduction

[1] This is an opposed application brought by the applicant to review and set aside the arbitration award of the second respondent (the Commissioner) in terms of which it was found that the third respondent’s dismissal by the applicant was procedurally fair but substantially unfair.

[2] The applicant was ordered to reinstate the third respondent from 3 October 2016, in the same position he held prior to his dismissal or in any other position which is equal or above in status to the one the third respondent held before his dismissal. The third respondent was further awarded back pay in the amount of R286 666.00, which amount was to be paid within 30 days of the award.

Background

[3] The third respondent was appointed as a full-time union representative in 2011. On 15 August 2012, the third respondent’s status as full time union representative was terminated, resulting in the third respondent being deployed into the applicant’s Airports operations.

[4] The third respondent was initially required to report to Mr Darrin Peters (Peters) which he refused to do on that basis that Peters was at a lower grade than him. As a result, an agreement was subsequently reached that the third respondent would instead report to Ms Lwazi Mathivha (Mathivha).

[5] Notwithstanding various accommodations being made for the third respondent to transition into the applicant’s Airports operations, (which accommodations included special leave for the month of September 2012) the third respondent absented himself from numerous scheduled duties which ultimately resulted in the third respondent being charged with various counts of serious misconduct relating to unauthorised absence for the period 7, 11, 12, 13, 14, 15, 18, 19 December 2012 and 26, 27 , 28 February 2013, 1 and 4 March 2013, 19 to 20 March 2013 and 29 March 2013.

[6] The third respondent was further charged with disobedience for events that transpired on 7 March and 1 April 2013 respectively in that he had failed to follow the established/known procedures by not obtaining the necessary permission for his absence from the scheduled duties as well as failing to comply with a reasonable instruction from his manager Mathivha. In respect of the misconduct of 1 April 2013 the third respondent was further charged with disobedience for contravening the applicant’s IT policies and procedures.

[7] During the internal disciplinary enquiry, the third respondent was found not guilty in respect of the charges relating to his absence on 19 December 2012 and 19 to 20 March 2013 and the charge relating to the third respondent having promoted the objectives of an unrecognised union.

[8] As a result of the guilty finding in respect of the remaining charges, the third respondent was subsequently dismissed.

Delay between the Referral and Set Down of the Arbitration

[9] The third respondent was dismissed in 2013 however the arbitration in respect of the award under review was only finalised in 2016. The reasons submitted for this delay are set out in the applicant’s timeline contained in the pleadings bundle.

[10] In summary, the delay was caused by an allegation made by the union, NTM, that the third respondent’s dismissal was motivated by his affiliation with the union. In response Commissioner Cellier issued a ruling on the basis that the Commission for Conciliation, Mediation and Arbitration (CCMA) did not have jurisdiction to arbitrate the dispute. The ruling was subsequently taken on review and the late Steenkamp J in November

2015 delivered his judgment resulting in the Ruling being reviewed and set aside and the CCMA being ordered to set the matter down for arbitration.

[11] The arbitration subsequently commenced in March 2016 and was held over a period of eight days between March and August 2016. In response to the award, the applicant lodged a review application in October 2016 and various further delays were experienced inter alia due to an incomplete record, two Rule 11 applications and the applicant being placed under business rescue.

The award

[12] The Commissioner analysed the evidence as follows:

12.1 with reference to the notice to attend the disciplinary hearing, determined that the third respondent had been charged with five counts of gross misconduct. However, two of these counts related to unauthorised absences, differing only in the dates, and the

remaining three related to disobedience, again differing only by date. The Commissioner decided to condense the charges, noting that it was unclear why the applicant had separated them, given that the only distinguishing factor in each charge was the date on which the alleged misconduct occurred;

12.2 the Commissioner further recorded in the award that the third respondent had been charged with being absent from his scheduled workstation on various dates, as well as with disobedience for failing to provide his supervisor with prior notice of his absences. However, with reference to the timesheets presented during the arbitration, it was established that these timesheets had been authorised by Peters, and accordingly, the third respondent had been paid for those days. The Commissioner determined that the purpose of this authorisation indicated the applicant’s acceptance that the third respondent’s absences, as outlined in the charge sheet, were permitted. In this regard, the Commissioner found that Peters had acted on behalf of the applicant when signing the timesheets;

12.3 upon Mathivha’s return from sick leave, she had reversed the days and instructed that the monies equal to the days taken, be deducted from the third respondent’s salary. The Commissioner determined that this approach resulted in the third respondent being ‘punished’ for a wrong that had been committed by Peters and not the third respondent;

12.4 the Commissioner criticises the applicant for not having taken disciplinary action against Peters and Mlangeni by Mathivha or by Mlangeni against Peters. The Commissioner concluded that the third respondent was used as a ‘sacrificial lamb’ for the gross negligence of Peters and Mlangeni who were not disciplined and that the authorisation by Peters was valid and the third respondent’s absence was permitted; and

12.5 in light of the applicant’s concession that the third respondent ought to have only been charged in respect of the dates 5, 6, 7, and 29 March 2013, and further taking into account that the applicant led no evidence in support of these charges, whereas the third respondent provided detailed evidence regarding his whereabouts and stated that he had obtained permission for his absences, the Commissioner found that the dismissal was substantively unfair. This conclusion was further supported by the fact that Mathivha, under cross-examination, was unable to provide any details regarding when the instructions were allegedly given or the nature thereof. Accordingly, on a balance of probabilities, the dismissal of the third respondent was found to be substantively unfair.

Analysis of the award

[13] In effect, the Commissioner found that the third respondent, despite refusing to report to Peters had obtained his permission for his absences from Peters and accordingly his dismissal was substantively unfair.

[14] The Commissioner extensively summarises the witnesses’ evidence in his award, which in summary and in particular with reference to Mathivha’s evidence has been identified as reviewable. Essentially the Commissioner’s failure to properly consider the evidence coupled with his findings in paragraphs 102 to 105 of his award, is the basis for the applicant’s review.

[15] The Commissioner provides no reasons, despite the fact it was common cause that the third respondent had refused to report to Peters and that Peters testified that he was not authorised to sign off the time sheets, as to why he considered the permission granted by Peters under these circumstances to be sufficient to prove on a balance of probabilities that the third respondent’s version was more probable.

[16] The Commissioner further ignored the evidence that the third respondent was clearly well aware of the process required to obtain authorisation and that he had engaged Mathivha in this regard.

[17] The Commissioner further ignored the fact that Peters was not authorised to give the third respondent the permission.

[18] The Commissioner further failed to consider Mathivha’s evidence in relation to the misconduct of March 2013, in respect of which Mathivha had testified that no prior arrangements had been made with her for his absence. As a result, the third respondent clearly did not have the authorisation to be absent from his scheduled duties, which evidence the Commissioner simply ignored and determines at paragraph 104 of the award that the applicant did not lead any evidence. This is clearly incorrect given the transcribed record which sets out Mathivha’s evidence in relation to the March 2013 dates.

[19] In short, the Commissioner by disregarding critical evidence, clearly failed to determine whether the third respondent had committed the misconduct for which he had been dismissed, which ultimately resulted in the Commissioner misconstruing the nature of the enquiry before him.

Grounds of review

[20] The applicant holds the view that the Commissioner’s award stands to be reviewed and set aside for the following reasons:

20.1 The Commissioner committed gross irregularities in the conduct of the arbitration proceedings;

20.2 The Commissioner committed misconduct in relation to his duties as an arbitrator by ignoring and/or misconstruing relevant evidence; and

20.3 As a result, reached a decision that a reasonable decision maker could not reach.

[21] In support of the applicant’s submission that the Commissioner misconstrued the nature of the inquiry, the applicant emphasises that its case was not one which related to the third respondent not being at the workplace, but rather one in which he had failed to report for the duties he was appointed to perform and that such absence from his scheduled duty was without permission.

[22] Notwithstanding the Commissioner’s correct understanding of the charge, he failed to properly assess the misconduct notwithstanding the common cause facts that:

22.1 the third respondent had raised issues in relation to him reporting to Peters given that Peters was at a lower level;

22.2 that the applicant had accommodated the third respondent’s concerns by allowing him to report to Mathivha;

22.3 whilst Mathivha was on sick leave, the third respondent was required to report to Mlangeni; and

22.4 the third respondent had not reported for his scheduled duties on 7,11,12,13,14,15 and 18 December 2012.

[23] In light of these common cause facts, the applicant holds the view that the only remaining issue that remained for the Commissioner to determine was whether on a balance of probabilities, the third respondent had the required permission.

[24] In support of its submission, the applicant makes reference to the evidence in respect of the various dates which can be summarised as follows:

7 December 2012

24.1 the third respondent had attended a group hearing on 7 December 2012 at 09h00 and did not report for his duties which were scheduled to start at 05h00; and

24.2 the third respondent had testified that permission had been given to him by Peters.

[25] In response to the third respondent’s claim that he had Peters’ permission, the applicant submits that, since it is common cause that the third respondent was unwilling to report to Peters, it would have been impossible for Peters to have granted such permission. Therefore, the third respondent clearly lacked the necessary authority, as he was required to obtain permission from Mlangeni.

11 December 2012

[26] The third respondent’s defence was that he had not reported for duty as he was attending Mr Molefe’s hearing. Furthermore, that he had obtained permission from Peters by way of sms, which sms he no longer had in his possession.

[27] The applicant reiterates that the permission could not have been given by Peters in light of the third respondent’s refusal to report to him and was therefore required to obtain the permission from Mlangeni.

12 – 18 December 2012

[28] The third respondent was absent from his duties for the period 12 to 15 December 2012 as he was attending a verification exercise.

[29] On 15 December 2012, the third respondent addressed correspondence to Mlangeni in which he informed her that he was attending the verification exercise. In response Mlangeni raised her concern that the third respondent had not timeously informed her of his absence. In light hereof it was proven that the third respondent did not have the required permission to be absent.

[30] The Commissioner further failed to take into consideration Peters’ evidence in which he had testified that he did not have the authority to sign the third respondent’s timesheets. In conclusion the applicant reiterates that the third respondent could not be permitted to rely on the fact that he had obtained permission from Peters in circumstances where he had refused to report to Peters. This evidence was not considered by the Commissioner and in failing to do so, he misconstrued the nature of the enquiry with reference to who was the correct person to have given the third respondent permission.

[31] Further criticism is raised by the applicant in relation to the Commissioner’s findings of inconsistent discipline. The Commissioner was required to determine the fairness of the third respondent’s dismissal and not to determine whether other employees should have been disciplined.

[32] The applicant further contends that the Commissioner failed to consider crucial evidence presented by Mathivha during her testimony, particularly under cross-examination, where it was established that evidence had been led concerning the March 2013 dates. This omission, the applicant argues, constitutes a reviewable gross irregularity.

[33] The applicant concludes that the Commissioner’s conduct in misconstruing the nature of the inquiry and by misconstruing or disregarding the evidence before him, resulted in there being no fair trial of the issues. Ultimately the Commissioner failed to address the question raised for determination, which was simply whether the third respondent had committed the misconduct that he was dismissed for.

[34] In opposition, the third respondent takes issue with the applicant’s review application and emphasises the following:

34.1 that evidence was led during the arbitration that the third respondent was attending to the verification process, that he had been representing fellow employees at the disciplinary hearings and that he had reported to his supervisors his absence from his workstation on the days that it has been alleged that he had been absent without authorisation.

Test for review

[35] In a range of cases, starting with Sidumo and Another v Rustenburg Platinum Mines Ltd and Others[1] and the jurisprudence that followed[2], the test on review and as set out in the matter of Herholdt v Nedbank Limited[3], the Supreme Court of Appeal has defined with greater clarity the standard of review:

35.1 It must be established, either that the arbitrator has misconceived the nature of the enquiry, or that they arrived at an unreasonable result.

35.2 For an award to be unreasonable, the arbitrator’s conclusion must be one that a reasonable decision-maker could not reach on the material that was before the arbitrator.

35.3 Material errors of fact, including errors concerning the weight and relevance to be attached to certain facts, are only of consequence if their effect is to render the outcome unreasonable.

35.4 If the arbitrator’s reasons provide a reasonable ‘route’ leading towards the conclusions, it must follow that the decision is one that could have been reached (and in fact was) by a reasonable decision-maker. A review application would, in such circumstances, not succeed.

35.5 Even if there are flaws in the arbitrator’s reasons, a review must still consider whether, apart from the arbitrator’s reasons, ‘the result is one a reasonable decision maker could reach in the light of the issues and the evidence’[4].

24.6 A review court is required to examine the merits ‘in the round’ only.

[36] It is thus obvious that reasonableness can only be assessed with regard to the evidence before the decision-maker.

[37] It is uncontroversial that the review test is whether an arbitrator has misconceived the nature of the enquiry or arrived at an unreasonable result.[5] A result will be considered to be unreasonable if it is one that a reasonable arbitrator could not reach on all the material presented to him or her.[6]

[38] In Head of the Department of Education v Mofokeng and Others[7] the Labour Appeal Court made the following findings:

‘[30] 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. However, the Supreme Court of Appeal (“the SCA”) in Herholdt v Nedbank Ltd and this court in Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and others have held that before such an irregularity will result in the setting aside of the award, it must in addition reveal a misconception of the true enquiry or result in an unreasonable outcome.

[31] The determination of whether a decision is unreasonable in its result is an exercise inherently dependant on variable considerations and circumstantial factors. A finding of unreasonableness usually implies that some other ground is present, either latently or comprising manifest unlawfulness. Accordingly, the process of judicial review on grounds of unreasonableness often entails examination of inter-related questions of rationality, lawfulness and proportionality, pertaining to the purpose, basis, reasoning or effect of the decision, corresponding to the scrutiny envisioned in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in section 6 of the Promotion of Administrative Justice Act (“PAJA”);

Such as failing to apply the mind, taking into account irrelevant considerations, ignoring relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. the court must nonetheless still consider whether, apart from the flawed reasons of or any irregularity by the arbitrator, the result could be reasonably reached in light of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind 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 inquiry or undertake the inquiry in a misconceived manner. There must be a fair trial of the issues. (own emphasis)

[32] … 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. (own emphasis)

[33] ... The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’

Application to the facts

[39] The common cause evidence is that the third respondent had refused to report to Peters. As a result of his refusal, an arrangement had been made that the third respondent was to report to Mathivha and in her absence to the acting manager Mlangeni.

[40] In light of the third respondent’s refusal to report to Peters, it would therefore not have been possible for Peters to have authorised his absence from his scheduled duties. Accordingly, there was no basis for the Commissioner to have ignored and/or rejected this evidence.

[41] The Commissioner’s failure to properly assess this evidence in the common cause context that it was provided, resulted in the Commissioner having misconstrued the nature of the enquiry. In so doing the Commissioner failed to properly assess the eight separate instances of misconduct.

[42] The Commissioner also failed to appreciate that these eight acts of misconduct constituted distinct and independent transgressions. No justification was provided as to why these incidents were treated as a consolidated whole. Furthermore, the Commissioner did not appreciate that the third respondent no longer held the position of full-time union representative, and thus could not justify his absences. This notwithstanding the third respondent’s assertion that he was assisting fellow employees.

[43] These errors on the part of the Commissioner resulted in an outcome that is unreasonable and therefore renders the award susceptible to review.

[44] The Commissioner’s finding that the applicant failed to lead any evidence in relation to the events of March 2013 is demonstrably incorrect, particularly in light of the evidence given by Mathivha on this issue. This factual error similarly leads to an unreasonable outcome and reinforces the reviewability of the award. It is evident that the Commissioner failed to apply his mind to the material evidence placed before him.

[45] These substantial errors, coupled with the Commissioner’s mischaracterisation of the central issue, namely, whether the third respondent had obtained proper authorisation for his absences, resulted in the Commissioner entirely failing to consider the impact of the third respondent’s misconduct on the employment relationship.

[46] The Commissioner’s conclusion that the dismissal was unfair merely because Peters and Mlangeni were not also charged, is unsupported by the evidence. The eight instances of misconduct were factually established and not adequately addressed. There was no justification for consolidating these separate acts. Additionally, the third respondent’s credibility was compromised by his contradictory defence: on the one hand, he claimed to have refused to report to Peters, and on the other, relied on Peters' authority to justify his absences.

[47] As a result, the award must be set aside. The Commissioner’s irregularities are such that they result in a misconceived decision which no reasonable decision-maker could reach on the material that was before him.

[48] In exercising my discretion and given that the complete record of the arbitration proceedings is before me, I have decided to substitute the arbitration award rather than remit the matter for a fresh hearing.

Costs

[49] This Court has a wide discretion in awarding costs. I am of the view that this is a matter where the interests of justice will be best served by making no order as to costs.

[50] In the premises, the following order is made:

Order

1. The arbitration award issued by the second respondent under case number GAEK3812/13 20 is reviewed and set aside in its entirety, and is replaced with an award in the following terms:

‘The third respondent’s dismissal is procedurally and substantively fair.’

2. There is no order as to costs.

H. Schensema

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Advocate ZM Navsa

Instructed by:

Edward Nathan Sonnenbergs Inc.

For the Third Respondent:

Advocate NE Ramasehla

Instructed by:

Noko Remaboya Attorneys Inc.

[1] (2007) 28 ILJ 2405 (CC).

[2] CUSA v Tao Ying Metal Industries and others [2008] ZACC 15; 2009 (2) SA 204 (CC); Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC); Herholdt v Nedbank Ltd (COSATU as amicus curiae) 2013 (6) SA 224 (SCA) (Herholdt); Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and Arbitration and others [2014] 1 BLLR 20 (LAC).

[3] 2013 (6) SA 224 (SCA) .

[4] Herholdt ibid at para 12.

[5] SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC) at para 25.

[6] Ibid.

[7] (2015) 36 ILJ 2802 (LAC) at para 30 onwards.