Standard Bank of South Africa v South African Society of Bank Officials (SASBO) and Others (JR252/22) [2024] ZALCJHB 328 (16 August 2024)

FLYNOTES: LABOUR – Dismissal – Covid-19 protocols – Bank branch hosted a party in breach of COVID-19 regulations which employee attended – Uploaded videos and pictures of party on social media – Conduct breaches duty of trust and confidence which employee owed bank – Failed to follow COVID-19 protocols – Commissioner misdirected himself in his finding on application of parity principle – Failed to assess crucial evidence – Award fell outside bounds of reasonableness – Reviewed and set aside.

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR252/22

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA Applicant and SOUTH AFRICAN SOCIETY OF BANK OFFICIALS (SASBO) First Respondent MMAKGOSI MORUDU Second Respondent THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION Third Respondent COMMISSSIONER LEN DEKKER N.O Fourth Respondent

Heard: 26 June 2024

Delivered: 16 August 2024

JUDGMENT

MAFA-CHALI, AJ

Introduction:

[1] This is an application brought by the Applicant, the Standard Bank of South Africa (the Bank) in terms of section 145 of the LRA[1] to review and set aside an arbitration award issued by the Fourth Respondent (the Commissioner) under the auspices of the Third

Respondent in case no GATW11198/21 issued on 01 February 2022. In terms of the award, the Commissioner found that the dismissal of the Second Respondent (Morudu) was substantively unfair but procedurally fair and that Morudu should be reinstated into her position with final written warning and three months backpay in the equivalent of R160 687,50.

[2] The review application brought by the Applicant, the Standard Bank of South Africa (the Bank) is opposed by the First and Second Respondents.

Background:

[3] Morudu was employed by the Applicant (the Bank) as a Branch Manager at Gezina Branch, in Tshwane since 01 March 2005 until 23 August 2021 when she was dismissed by the Bank for gross misconduct. Morudu reported to Ms Tears Molokomme (Molokomme), the Head: Distribution for Tshwane Central. Morudu was responsible for ensuring that her subordinates complied with the Bank’s policies as well as various other guidelines, regulations and directives of government of South Africa including

the Disaster Management Act 51 of 2002 which has guidelines aimed at curtailing and managing the spread of COVID-19 global pandemic.

[4] It was common cause that the Bank issued a COVID-19 policy on 01 May 2020 in order to address the minimum requirements to be followed by its employees to minimise the risks of COVID-19 infections at work, as well as to put processes and tools in place to manage and monitor the risks associated with the pandemic. The risk management was delegated by the Bank to senior management and risk management specialists.

[5] It was also common cause that the Bank has a Social Media Policy which states amongst others that all employees must be aware that they are ambassadors of the Standard Bank Group and that in all situations and always, including in social media, their employment relationship should be reflected in a positive way; and employees must ensure that they always act in the best interests of the Group. The Policy further states that failure to adhere to the policy may lead to disciplinary action including summary dismissal.

[6] The Bank also has a Group Code of Ethics called Living our Values. Clause 5.3.4 of the Code provides that employees should be seen to live all Bank values and positively position the Bank and everything for which it stands for in dealing with internal and external parties when representing the Bank; and employees should adhere to occupational health and safety laws in relevant jurisdictions as well as the Bank’s occupational health and Safety standards.

[7] Clause 5.3 of the COVID-19 policy is of importance in that it states that line managers and area managers must ensure that staff understand the protocols laid down and always adhere to them. Furthermore, they should take progressive disciplinary actions if there is non-compliance with those protocols and the policy as failure to do so would constitute gross misconduct that may lead to dismissal. The line managers and area managers are to identify vulnerable groups of employees amongst the subordinates, and instruct them to work from home. Such employees would sign indemnity forms to acknowledge that they are considered vulnerable persons with a high risk of developing serious complications if they contracted COVID-19 as envisaged in the Disaster Management Act and regulations.

[8] Morudu was identified as having a huge risk of developing serious illness from COVID-19 because of her comorbidities. She also signed the indemnity form and worked from home. She would only work at Gezina Branch if permission was granted to her.

[9] On 11 May 2021, the Bank issued a communication to all staff advising them that face-to-face work-related social events of employees were not permitted. Despite that, on 18 June 2021, Morudu requested Molokomme for permission to take Branch staff to a restaurant to celebrate the R5 000.00 awarded to each branch employee for their performance during the difficult period. Molokomme advised Morudu that face-to-face work-related social events for employees were still not permitted.

[10] On 25 June 2021 at 22:56 the Bank received an anonymous email addressed to some members of senior management, alleging that the Branch hosted a party in breach of COVID-19 regulations and that Morudu, the Branch Manager was also in attendance. The email further alleged that COVID-19 protocols were not followed in that those who attended the party acted irresponsibly and they put videos and pictures of the party on social media status.

[11] The bank conducted an investigation and obtained the relevant video footage of the party posted by Morudu on her WhatsApp status on 25 June 2021. Morudu was requested to submit a letter of explanation, which she did on 27 June 2021, confirming that the Branch staff had a party to appreciate the employees for the hard work and resilience, and that the party was hosted at the Branch because they were not allowed to go outside to celebrate. She however stated that protocols were followed and the employees took off the masks when they had to drink. She further stated that music was playing and employees were dancing and drinking.

[12] The Bank suspended Morudu and later subjected her to a disciplinary hearing on two allegations of gross misconduct as follows:

“Allegation 1: Alleged gross misconduct in that on 25 June 2021, you brought the Bank’s name into disrepute when you hosted a party at Gezina Branch where COVID-19 regulations /protocols were not followed, you posted a video of the party on WhatsApp which was then circulated. Your conduct resulted in an anonymous complaint and/or escalation and was also in contravention of the banks Social Media Policy.

Allegation 2: Alleged gross misconduct in that on 25 June 2021, you failed to follow COVID-19 protocols and /regulation thus exposing yourself and other staff members to possible COVID-19 infections when you did the following;

2.1 As a vulnerable employee you should not be at the Branch but she went to the Branch without notification/authorisation and /or approval from your Consumer Head;

2.2 During the party you and the Branch members did not adhere to the COVID-19 protocols required by the Bank and the law by not wearing masks, no social distancing and clapping each other’s hands/touching each other and distancing close to each other.”

[13] After the disciplinary hearing Morudu was found guilty of both charges and dismissed on 24 March 2021. She then referred the alleged unfair dismissal dispute to the CCMA, which was eventually arbitrated and the Commissioner finding that Morudu’s dismissal was procedurally fair and substantively unfair.

Arbitration proceedings and award:

[14] In respect of the first charge, the Commissioner found and concluded that this charge was only possible if it is established that the Branch function was made known to outside world and was not kept within the Branch, as the circumstances of the anonymous email that was sent indicated that the complaint emanated from inside the Bank rather than outside the Bank. The Commissioner consequently found that the Bank failed to prove that Morudu brought the Bank’s name into disrepute as contended in the charge.

[15] The Commissioner further reasoned that even if the complaint emanated from outside and the Bank’s name was brought into disrepute, the Sanction Guide prescribed a final written warning for this type of misconduct; and this Sanction Guide had been applied to other employees at the Branch who attended the party that led to Morudu’s dismissal. The Commissioner concluded that in terms of COVID-19 Policy, dismissal was only contemplated where non-compliance constituted gross misconduct, and thus a final written warning valid for 6 months was an appropriate sanction for this COVID-19 related infraction in Morudu’s case taking into account her sixteen years’ clean disciplinary record. The Commissioner consequently reinstated Morudu with three months’ remuneration backpay.

Grounds of review:

[16] The Applicant’s first ground of review is essentially a reasonableness challenge to the award in that the Commissioner came to a conclusion and finding to which no reasonable decision maker could have come to having regard to the material properly placed before him at the arbitration proceedings. The Applicant argued that the Commissioner committed an irregularity in ignoring and /or failing to assess the gravity of Morudu’s misconduct in respect of the second charge and whether her conduct in this regard constituted gross misconduct which was destructive of the employment relationship. It was contended that the Commissioner

approached the matter on the basis that Morudu’s conduct was a mere breach of COVID-19 Policy, which the Sanction Guide prescribed a final written warning as the appropriate sanction, and furthermore equated Morudu’s conduct to that of her subordinates.

[17] It was argued that the Commissioner’s approach in this regard was irrational, unreasonable and unsustainable for the following reasons:

(a) Morudu occupied a position of trust and responsibility as a Branch Manager and she was expected to discipline employees that breached its policies that it put in place to save lives.

(b) Morudu was a custodian of the Bank’s policies within the Branch and was expected in her position to ensure that at all times the Branch is in full compliance with the Bank’s policies, but Morudu despite that she was also vulnerable due to her comorbidities, her position as Branch Manager and the fact that Molokomme informed her on 18 June 2021 that face-to-face social events were still not permitted, she organised and instigated the party without permission granted to her. Furthermore, there were no signed Indemnity forms by employees to be at the Branch or permission to host a party at the Branch on 25 June 2021.

(c) Morudu was seen on the video not observing COVID-19 protocols and acting irresponsibly by not wearing a mask and dragging a junior to the makeshift dance floor.

(c) There was a COVID-19 case in the Branch a few days before the party and the Brach had to be closed for fumigation. At that time the province was experiencing unprecedented levels of COVID-19 infections due to delta variant, and thus social gatherings were not permitted by government regulations at that time.

(d) party and its attendees were in contravention of the regulations. Their conduct would be an inconvenience to the customers of the bank and an operational risk in a case of any COVID-19 case as the Branch has to be closed for fumigation purposes.

(e) Morudu’s conduct was extremely irresponsible as the pandemic has claimed many lives.

[18] The Commissioner’s failure to assess the gravity of Morudu’s misconduct led the Commissioner to unreasonably conclude that Morudu’s misconduct was similar and/or equal to the misconduct committed by her subordinates who were all issued with final written warnings for attending the party.

[19] The Commissioner overlooked Morudu’s lack of remorse which is a weighty factor in considering the question of appropriate sanction, but instead elevated Morudu’s length of service above all relevant considerations when determining the appropriate sanction. The Bank submitted that this is a case where Morudu’s length of service, seniority and all the other factors mentioned above called for Morudu to face a harsher sanction than one imposed to her subordinates. The conclusion by the Commissioner to shift the onus of proof to the Bank when dealing with the alleged instances of inconsistent application of discipline and finding that the Bank failed to prove that it had previously dismissed employees found guilty of gross misconduct for breaching COVID-19 regulations was also erroneous. It was submitted that Morudu had the onus to adduce evidence that other Branch Managers acted in a similar manner and were not subjected to a disciplinary hearing, but she failed to do so. The Commissioner misconstrued the parity principle in making a finding that because other employees were given a final written warning, Morudu ought to have also been issued with final written warning.

[20] Another ground is that the Commissioner committed a reviewable irregularity in concluding that Morudu’s conduct in uploading the video of the party on her WhatsApp status did not bring the Bank’s name into disrepute. It was submitted that the Commissioner’s reasoning appears to be that the anonymous email emanated from an internal source and that the charge associated to this conduct could only be proved if the party at the Branch was made known to the outside world. It was argued that the fact that the party was held in the Bank premises and shared on social media was sufficient to bring its name into disrepute. Furthermore, Morudu shared the video footage of the party on her WhatsApp status and the bank’s logo was clearly visible on the said video, thus attributing or linking the employees ‘conduct to the Bank. The Commissioner unreasonably and unfairly downplayed Morudu’s conduct associated with the risk and disrepute and ought to have holistically assessed Morudu’s conduct in both charges.

[21] The Commissioner committed a reviewable irregularity when he incorrectly conflated the enquiry and came to an unreasonable conclusion in which he determined the appropriate sanction that Morudu ought to have received. The Commissioner found that final written waring was sufficient for the first charge, but then when dealing with the second charge and considering the sanction to be imposed, the Commissioner grouped both charges together and concluded that final written warning was appropriate for Morudu’s cumulative misconduct because of what was contained in the Sanction Guide. The Commissioner ought to have considered what sanction is appropriate for the first charge and for the second charge separately and not considering both charges cumulatively. He should thereafter have determined whether considering the cumulative conduct, her dismissal was fair. Had the Commissioner undertaken such an enquiry he would have found that Morudu’s dismissal was fair in the circumstances.

[22] The Commissioner committed a reviewable irregularity in the manner in which he showed an undue, inappropriate and legally unsustainable deference to the Sanction Guide. It is trite that employers’ sanctions guidelines and codes are merely guidelines when it comes to sanctions and the Commissioner was enjoined to make an assessment of the nature of the misconduct in question, combined with other factors and evidence led to determine if the misconduct was gross warranting a dismissal, irrespective of the Sanction Guide. Had the Commissioner done so, he would have found that Morudu’s conduct was gross and warranted her dismissal, but instead the Commissioner misconstrued the evidence and found that the Sanction Guide was binding, ignoring the provisions of the

COVID-19 Policy, the Social Media Policy, the Bank Disciplinary Code, the Code of Ethics and all the other relevant factors, the Bank submitted. It was argued that as a result of the Commissioner’s failure to apply his mind to all the material evidence before him, he reached an unreasonable outcome on the question of appropriate sanction.

Evaluation:

[23] The test for review is fairly settled. The principal enquiry is whether the arbitration award sought to be reviewed, can be said to fall within a range of reasonableness[2]. The Applicant attacked the Commissioner’s award on various grounds, that he failed to properly apply his mind to the evidence placed before him, and made findings that are not those of a reasonable decision maker.

[24] In this regard, the Labour Appeal Court (LAC) in Fidelity Cash Management Services v CCMA & Others[3] (Fidelity Cash) held that:

‘It seems to me that there can be no doubt now that under Sidumo that the reasonableness or otherwise of a commissioners’ decision does not depend at least solely upon the reasons that the commissioner gives for his decision. In many cases the reasons which the commissioner gives for his decision, finding or award will play a role in the subsequent assessment of whether or not such decision or finding is one that a reasonable decision-maker could or could not reach. However, other reasons upon which the commissioner did not rely to support his or her decision or finding but which can render the decision reasonable or unreasonable can be taken into account. This would clearly be the case where he commissioner gives reasons A, B and C in his award but, when one looks at the evidence and other material that was legitimately before him or her, one finds that there were reasons D, E. and F upon which he did not reply but could have relied which are enough to sustain that decision.’

[25] The LAC in Fidelity Cash concluded that:

‘Whether or not the arbitrator award or decision or finding of a CCMA commissioner is reasonable must be determined objectively with due regard to all the evidence that was before the commissioner and what the issues were that were before him or her. There is no reason way an arbitration award or finding or decision that, viewed objectively, is reasonable should he held to be unreasonable and set aside simply because the commissioner failed to identify good reasons that existed which could demonstrate the reasonableness of that decision or finding or arbitration award.’

[26] The Supreme Court of Appeal (SCA) in Herholdt v Nedbank Ltd & Another[4] (Herholdt) concluded as follows:

‘In summary, the 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 material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to the particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of consequence if their effect is to render the outcome unreasonable.’

[27] I will deal with the first charge of allegations that Morudu brought the bank’s name into disrepute when she hosted the party at the Branch and COVID 19 regulations and protocols were not followed, and furthermore posted a video of the party on WhatsApp resulting in an anonymous complaint of the contravention of the Banks Social Media Policy. The commissioner concluded that this charge was not possible as the party was not made known to the outside world and only within the bank. To this extent there is a concession that the Morudu hosted the party with staff at the Gezina Branch, that she took a video footage which was put on her WhatsApp status that triggered the complaint. The Commissioner assessed the evidence and found that it was an internal complaint since it was sent to selected officials within the bank.

[28] The Commissioner focused on the source of the complaint and that it was not from outside the bank and deviated from the facts and the allegations that the anonymous complaint brought to the bank, resulted in the investigations by the Bank which found that Morudu posted videos of the party activities which were not in compliance with the COVID-19 Policy and also in contravention of the Social Media Policy of the Bank. A scrutiny of what the charge entails must be made. There is undisputed evidence that Morudu posted video footage of the party on her WhatsApp status. Although she argued that it was only restricted to selected certain staff members within the bank, there was no restriction to those employees circulating the video to outsiders and such WhatsApp circulation was in the social media domain immediately upon its circulation. The fact that she removed the status after 45 minutes, as argued by Morudu was irrelevant as the video footage was already circulated in the social media domain with the resultant consequence that the contraventions of the government regulations on COVID-19 were not adhered to by the Bank’s employees and thereby potentially ruining or damaging the Bank’s good name and reputation. This conduct clearly breaches the duty of trust and confidence which Morudu owed the Bank.

[29] Another important consideration in this case relating to Morudu’s allegations of misconduct is that she failed to follow COVID-19 protocols or regulations thereby exposing herself and other staff members to possible COVID -19 infections when she knew that she was a vulnerable employee working from home and not allowed to visit the Branch without permission or authorisation. Furthermore, during the party failed to adhere to the Bank’s COVID-19 protocols by not wearing masks, not social distancing and clapping each other’s hands with no social distancing. At least to this extent Morudu conceded in her testimony that she arranged for the party at the Branch for the staff. It is further clear that Molokomme did not give her permission to host the party as she did not respond to her invitation. She proceeded with the party despite her knowledge of the communication sent out on 11 May 2021 that face-to-face work related events for employees were not permitted. Morudu’s concession is also that Molokomme told her that staff was not allowed to go out attend social events. It is noteworthy to observe that Molokomme did not distinguish whether the social event is held in the branch or outside the Branch. There was no dispute that Morudu was aware of the Bank’s COVID-19 Policy and regulations, Social Media Policy; as well as the specific Clause in the policy that provides that disciplinary action may be taken against employees who do not comply with this policy and that where such non-compliance constitutes gross misconduct, they may be dismissed. The Commissioner in paragraph 50 of the award stated that Morudu did not deny that she was guilty of misconduct, but put a defence based on alleged inconsistency, which I will deal with below. The Commissioner did not further deal with the facts upon which Morudu’s defence of inconsistency was based and the facts in respect of the Bank’s defence to the allegations of such inconsistency. He failed to make a proper assessment of the parity principle in order to arrive at a finding of whether the Bank was inconsistent or not but merely made a sweeping finding of inconsistency.

[30] As a result, the Commissioner misdirected himself in his finding on the application of the parity principle in this matter. It is trite that the parity principle dictates that two or more employees guilty of the similar misconduct should be penalised in similar ways. This means that employers should be consistent in applying discipline on employees for the same or similar misconduct. However, this cannot just be a blanket rule and must take into account some other special factors involved in each circumstances in the spirit of fairness and equality, like personal circumstances of employees, employee’s degree of culpability, pattern of misconduct and others. It is therefore necessarily that when employees have been involved in the same misconduct, and there was a valid basis to distinguish one case from another, this would not amount to unfair conduct by the employer.

[31] The learned judge in Nyathikazi v Public Health and Social Development Sectoral Bargaining Council & Others[5], held that the parity principle should not just be applied wilily-nilly without a measure of caution, but that an employer should, at all times, apply his mind in deciding the appropriate sanction. Morudu testified that 7 out of 12 attendees had received final written warnings for breaching COVID-19 protocols and that other parties were also held at other branches but the employees involved were not disciplined.

[32] Morudu did not provide sufficient information to build a prima facie case on inconsistency in disciplining employees alleged to have hosted parties in other branches of the Bank.

[33] Molokomme gave testimony that those staff members who were issued with final written warnings did not face the charge of hosting the party at the branch or bringing the name of the bank into disrepute but faced only one charge, which according to the record of the evidence presented was not disputed by Morudu. Molokomme further testified that she was not responsible for the other employees in other branches and Soshanguve which was specifically stated and she was not aware of anyone in these branches who hosted the event without authorisation or whether the individuals also had comorbidities or not. The commissioner failed to make an assessment of this crucial evidence, but instead concluded that no dismissal was proven by the Bank. If the commissioner applied this parity principle correctly, he should have found that based on the material evidence before him, Morudu’s conduct was significantly different to that of her subordinates, taking into account that Morudu was the organiser of the party as the Branch Manager in contravention of the COVID-19 Policy and she was the one that posted the video footage on her WhatsApp status in contravention of the Social Media Policy.

[34] The Commissioner should have decisively concluded that Morudu’s conduct was ‘extremely irresponsible’ in the context of the pandemic, and that she committed gross misconduct. That conclusion on its own given the facts of this case ought to have been the end of the matter, and the dismissal ought to have been confirmed.

[35] In these proceedings, Morudu having opposed the application, had made submissions, argued and prayed for the Commissioner’s findings in the award to be confirmed. Morudu’s submissions and arguments cannot be upheld as the Commissioner’s award of reinstatement, with a sanction of final written warning and without back-pay was unreasonable and irrational.

[36] Morudu argued that the Applicant’s testimony did not present any evidence to either demonstrate that the disciplinary policy must be read in conjunction with the COVID-19 guidelines or whether it trumps the provisions of the COVID-19 guidelines. Despite having stated that he had regard to all the provisions he had cited including, the Bank ‘s Disciplinary Code, the Sanction Guide, paragraph 93 of the CCMA Guidelines on Misconduct Arbitration in particular, specifically the heading Was dismissal appropriate? It had clearly escaped the Commissioner’s reasoning that a disciplinary code and procedure, is not prescriptive and that it is merely a guideline which may be considered, in so far as issues of sanctions are concerned. Therefore, the Commissioner’s reliance on the Bank’s Sanction Guide only in determining the appropriate sanction under the circumstances was unreasonable and irrational.

[37] Ultimately, irrespective of what the disciplinary code and procedure stipulates, in determining the appropriateness of a sanction of dismissal, the Commissioner is obliged to make a fair and proper assessment of the nature of the misconduct in question, determine whether, combined with other factors and the evidence led, the misconduct in question can be said to be of gross nature. Once that assessment is made, and the invariable conclusion to be reached is that the misconduct in question is of such gross nature as to negatively impact on a sustainable employment relationship, then the sanction of dismissal will be appropriate.

[38] In the end, it is apparent that the Commissioner failed to take into account the totality of circumstances as stated in Sidumo[6], when impartially considering the appropriateness of the sanction of dismissal in this case but merely referred to the Sanction Guide referring to the final written warning for contravention of COVID 19 related offences. To this end, the sanction of dismissal in this case was appropriate given the considerations below:

(a) Morudu was a Branch Manager and occupied a position of trust and responsibility. She recklessly endangered not only her life but of her colleagues, and customers at the workplace. She had ignored all health and safety protocols, policies and procedures put in place at the workplace relating to COVID-19. Her 16 years long service, personal circumstances and clean disciplinary record cannot out-weigh all the other relevant factors to be considered.

(b) Morudu’s conduct came about in circumstances where on the objective facts, and by virtue of being a Branch Manager, she ought to have known that she could not host the party at the Branch as it was not permitted. She nonetheless continued to host the party, despite being told that face-to-face social events were still not allowed and posed a huge operational risk for the Bank.

(c) Morudu failed to show genuine remorse. In her testimony she said that she was remorseful but did not see how the trust relationship would have been broken. She at the same time gave a defence that nobody tested positive amongst those who attended the party. In my view this shows that she did not appreciate that her conduct was wrong and thus she cannot be said to be genuinely remorseful.

(d) The gross nature of Morudu’s conduct is such that trust and a good working relationship between her and the Bank, cannot by all accounts be sustainable. It follows that a dismissal was indeed an appropriate sanction.

[39] I fully agree with the contentions made on behalf of the Applicant, and further add that the findings and conclusions of the Commissioner on the issue of the appropriateness of the sanction and the relief granted, are entirely disconnected with the evidence that was placed before him, thus making the award reviewable.

[40] In the end however, in the light of the evidence led at the arbitration proceedings, the egregious nature of Morudu’s

conduct, and its impact on both the Bank and its employees, the arbitration award of the Commissioner completely fell outside the

bounds of reasonableness. It is in the light of all of these considerations that an order must be made to set aside the award, and substituting it with an order that the dismissal of Morudu was substantively fair.

[41] It cannot be said that either party was frivolously before this Court. In terms of section 162 of the LRA, I consider it fair and just not to make a costs order in this case.

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

Order:

1. The arbitration award of the Fourth Respondent under CCMA Case number GATW11198-21 dated 01 February 2022 is reviewed and set aside.

2. The dismissal of the Second Respondent was substantively fair.

3. There is no order as to costs.

Grace Mafa-Chali

Acting Judge of the Labour Court of South Africa

Representation:

For the Applicant: Advocate Redding SC instructed by Tabacks Attorneys Inc

For the Second Respondent: Advocate Ferdie Venter instructed by B J Erasmus Pieterse Attorneys

[1] No.66 of 1995, as amended

[2] See South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality (JA 64/2019) [2020] ZALAC 53 (2 December 2020) at para 27, where it was held; “The test that the Labour Court is required to apply in a review of an arbitrator’s award is this: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?” To maintain the distinction between review and 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.” (

[2] See South African Municipal Workers Union obo Mosomo v Greater Tubatse Local Municipality (JA 64/2019) [2020] ZALAC 53 (2 December 2020) at para 27, where it was held;

“The test that the Labour Court is required to apply in a review of an arbitrator’s award is this: “Is the decision reached by the commissioner one that a reasonable decision-maker could not reach?” To maintain the distinction between review and 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.” (

[3] [2007] ZALAC 12

[4] [2013] ZASCA 97

[5] [2021] 8 BLLR 778 (LAC)

[6] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)[2007] ZACC 22; ; 2008 (2) BCLR 158 (CC), where it was held; “78. 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.”

[6] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (CCT 85/06) [2007] ZACC 22; [2007] 12 BLLR 1097 (CC); 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC)[2007] ZACC 22; ; 2008 (2) BCLR 158 (CC), where it was held;

“78. 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.”