LABOUR

Facts: The respondent (Mr Dlongolo) was employed by the appellant (the University) as Director: Physical Planning. Following death threats due to his role in implementing the University’s insourcing process, and a period of absence from work, Mr Dlongolo, who was only 57 years of age at the time, requested permission to take early retirement. Various discussions ensued. Given the unusual circumstances, the University indicated that it was prepared to deviate from standard practice. It was willing to compensate Mr Dlongolo for “pension penalties” imposed by the University’s pension fund as a result of the early retirement. An offer and acceptance by email resulted in the ensuing dispute. In effect, Mr Dlongolo elected to withdraw from the fund so that he received his full account balance of R5,1 million, without any penalty deduction being imposed by the fund. The University subsequently refused to make any payment to Mr Dlongolo on the basis that he had opted to withdraw from the fund rather than select voluntary early retirement in terms of the fund rules.

Appeal: The Labour Court determined the dispute on the basis of quasi-mutual assent, also referred to as the reliance theory. The court found that the applicant was misled to believe that he would be compensated by the University, irrespective of which option he exercised on his retirement. The question to be answered in this appeal is whether the parties concluded a contract on the terms suggested by Mr Dlongolo, or based on quasi-mutual assent, in which event he would be entitled to the contractual damages, interest and costs awarded by the Labour Court, based on the university’s repudiation.

Discussion: Mr Dlongolo’s case is based on acceptance of an offer made by Mr Ngcobo, on behalf of the University. The offer in question is contained in an email sent by Mr Ngcobo. See para [9]. The rules were attached to this correspondence. The record reveals that the parties each intended to make a contract, but on different sets of terms. Mr Dlongolo wanted to leave the University’s service early, withdraw from the fund and personally receive the early retirement penalty contribution promised by the University. Despite the purported acceptance of the offer, there remained dissensus in respect of the intended obligations. There was therefore no agreement between the parties and, on the standard theory, Mr Dlongolo failed to prove the contract on which he relied.

Quasi-mutual assent: Mr Ngcobo’s main error was to include in the offer the “full withdrawal” amount from the fund (in the amount of R5,1 million), as received from ABSA, as an option linked to early retirement with penalties. That was contrary to the rules, which were provided to Mr Dlongolo, which made it clear that withdrawal from the fund was treated differently to retirement. Including that option was unintended and amounted to a material mistake on the part of the University. The decisive question is whether the University, whose actual intention did not conform to the common intention expressed in its offer, led Mr Dlongolo, as a reasonable person, to believe that the declared intention represented its actual intention. A reasonable person would have read the offer in its entirety, noting the cross-reference to clause 4.3 of the rules. Considering that clause, the contrast between receipt of an annual benefit as opposed to a lump-sum withdrawal was glaring and a reasonable person would have realised the real possibility of a mistake in the framing of the offer. Mr Dlongolo snatched at a bargain in circumstances where a reasonable person would have acted more carefully by enquiring into the matter, having realised the real possibility of a mistake in the framing of the offer. There was, therefore, no consensus, actual or imputed and, reading Mr Dlongolo’s pleadings generously, the alleged contract is of no effect.

Order: The appeal is upheld and the order of the court below substituted with and order dismissing the applicant’s claim.

GOVINDJEE AJA (SAVAGE ADJP and VAN NIEKERK JA concurring.)

Facts: The charges related to events on 27 and 28 November 2020 when Mr Mostert (applicant) allegedly used his personal cell phone for private purposes whilst working with machines. The applicant was in fact injured whilst working on his machine on 28 November, though the machine was not in motion on that occasion. His injury resulted in him being placed on light duty. On his own version he said he had a personal emergency situation relating to his family and needed to converse with his attorney and the police. His action on video footage further corroborated the company's version. He also admitted listening to music on his phone while operating his machine and video footage showed him listening to earphones attached to his phone.

Application: To review and set aside the arbitration award in which the arbitrator upheld the substantive fairness of the dismissal of the applicant. Mostert seeks to set aside the finding that his dismissal was substantively fair.

Discussion: The arbitrator noted that Mostert was guilty of serious misconduct. Moreover, Mostert had deliberately refused to comply on more than one occasion. It concerned the arbitrator that Mostert was still arguing that talking on the phone or listening to music on it was not unsafe. Mostert admits that on 27 November he was talking on his phone while working, but there was no accident on that occasion. When he had the accident on 28 November he was working while talking on his phone, but his machine was not in motion. The response of the company was that the critical principle is that when a call is taken at work, the employee is expected to switch off the machine and move away from it. Mr Roodman was the manager of the engineering division of the business in Bredasdorp. Roodman’s commentary on the video of the incident on 28 October 2024 was that Mostert was working on the stationary machine with his left hand instead of his right, though it appeared the accident occurred shortly after Mostert put the phone down. Based on his experience of 17 years’ as a fitter and turner, Mostert defended his action of trying to adjust the machine while holding his phone in his hand because he was able to use his discretion to assess the risk of doing so. See paras [17]-[19].

Findings: Although Mostert had no written warning and the oral caution by his superior was not properly corroborated, there are factors which provide support for the arbitrator’s decision that warnings would not address the problem. On 27 October, Mostert repeatedly was on the phone while his machine was running, so it was not as if he had flouted the rule only on one exceptional occasion that day. Regarding the 28 October accident, it was clear Mostert believed that because he was an experienced artisan with considerable experience, he was in a position to judge when it was acceptable to flout safety rules and that he was entitled to exercise his discretion in that regard. He did not acknowledge any wrongdoing or remissness on his part concerning his non-compliance with the normal safety procedures. If one asks the question whether remedial steps were likely to change his attitude about him being best placed to decide when a safety practice could be ignored, and bearing in mind his lengthy experience which ought to have instilled a more cautious approach to safety matters, it cannot confidently be said that no reasonable arbitrator could have concluded that his transgressions, coupled with his recalcitrant attitude towards safety compliance, warranted his dismissal.

Order: The review application is dismissed. No order is made as to costs.

LAGRANGE J

* See also: Wiggil Farming (Pty) Ltd v CCMA [2024] ZALCJHB 324 where the employee was using a cellphone while driving a tractor; and AMCU obo Motswadi v CCMA [2023] JR1695-21 (LC) where the employee was found with a cellphone in a prohibited area in a mine.

Facts: The applicant is a close corporation which carries on business providing physiotherapy services in two major hospitals in the Umhlanga area of KwaZulu-Natal. The applicant cites itself as a well-established physiotherapy practice with further specialisation into rehabilitative physiotherapy. The contract of employment concluded between the parties in and during November 2022 is common cause. The respondent, a senior physiotherapist, was in the employ of the applicant during 2023 and for approximately eight full months prior to her resignation.

Application: The current matter concerns itself with the enforcement of the restraint clause in the employment contract. The court considers the interpretation of the restraint clause and whether or not a protectable interest has been established and is worthy of protection.

Discussion: The applicant bears the onus to prove the contractual terms upon which it bases its relief. It is common that SMME businesses are reluctant to seek advice from attorneys, and less so to employ attorneys to prepare important legal agreements. This pattern, fuelled undoubtedly by the rising cost of legal charges, often results in unforeseen circumstances by the time the matter reaches a litigious stage. Once the matter has reached a litigious stage, it is then too late to cure the challenges which have arisen, and the court cannot then, at that late stage, return to the contractual drawing board. Clause 15 of the employment agreement is so vague and lacking definition that it cannot support the applicant’s relief as claimed. When the judge asked the applicant’s counsel how the provisions of the restraint clause can equate to the relief being sought, the suggestion was that the judge had the power to read into the clause that which was contended for by the applicant. However, the clause itself was so scant for detail that the judge would be required to read in detail to such a degree that the judge may be accused of contracting for the parties.

Findings: There can be no justifiable submission that any particular industry or trade has an inherently protectable interest. A court must analyse each case on its presented facts to determine whether a protectable interest has been established. In argument, it was submitted that the doctors which refer patients to the applicant’s practice are trade connections, which constitute a protectable interest. Trade connections are in many cases found to be protectable interests, but no trade connection is inherently protectable. A case must be made out in the founding affidavit as to why any element of the applicant’s business may constitute a protectable interest. Whether the necessary criteria are satisfied is a question of fact in each case, and in many, one of degree. The court is unable to determine any primary facts set out which would lead it to draw an inference that the respondent had such personal knowledge of and influence over the customers of his employer. The respondent had not even made it halfway through the period required to become acquainted with the applicant’s clientele.

Order: The application is dismissed with costs.

BOND AJ

Facts: Ms Bam was employed as a sergeant in the police service and was serving at the Mowbray police station. One day she went shopping with her mother at Checkers. A security officer at the store, Ms Zinqxondo, was later a witness. She saw Bam and her mother loading items from a store trolley into a black and white bag and a baby bag. At the till they only paid for certain items and did not pay for anything in the bags. The alarm went off when they left the store and Zinqxondo found unpaid for store items in the bags. Bam gave her name as Suzette Karelse, the name of a singer. Bam begged her to let them go and offered to draw R1,000 to pay for the stolen items. The alarm had been activated by unscanned tags on meat packets. Bam was called to a disciplinary hearing and dismissed in 2014 on charges of contravening Regulation 20(q) of the South African Police Disciplinary Regulations of 2006 in that Bam failed to uphold the interest of the employer by unlawfully removing items from the shelves at Checkers Hyper and further that Bam failed to act honestly by giving a false name and address when arrested. She was found guilty and dismissed in 2015.

Application: At the arbitration hearing she only disputed the substantive fairness of her dismissal. This is an application to review and set aside the arbitration award in which the arbitrator upheld the substantive fairness of the dismissal. The arbitrator found her transgressions were serious and warranted her dismissal.

Discussion: In her founding and supplementary affidavits, Bam makes a number of factual allegations which were not part of the evidence before the arbitrator. In one example, she goes into detail about the nature of the medication she was on at the time of the incident to supplement her evidence in the arbitration. This is simply unacceptable in a review application. Bam had subpoenaed Zinqxondo to subject her to further cross-examination to test her credibility, but the arbitrator had refused to allow additional cross-examination. The reason Bam wished to recall the witness was purely to impugn her credibility by dealing with alleged inconsistencies between what the witness allegedly said in the disciplinary enquiry and in the arbitration proceedings. None of the alleged inconsistencies could have altered the evidence of the unpaid goods which were found in the bags of Bam and her mother.

Findings: The respondent could not be subject to the disadvantage of having its witnesses recalled because of alleged oversights of Bam’s representative, which were not excusable ones. To permit such prolongation of proceedings, which are at odds with the practice norms for adducing evidence, would be to invite the prospect of never-ending hearings. The court cannot find the arbitrator at fault for not permitting the witness to be cross-examined twice. It is true the arbitrator characterised Bam’s defence as one of “simple denial”. However, it is clear that the arbitrator nonetheless weighed up both versions in the light of the evidence, so this statement had little bearing on her actual analysis of Bam’s version. Regarding the arbitrator’s failure to prefer Bam and her mother’s version of the shoplifting incident, the arbitrator clearly did find Zinqxondo a credible witness. Faced with the contrived and inherently implausible version provided by Bam and her mother, the arbitrator cannot be said to have made a finding on this that no other reasonable arbitrator could have arrived at.

Order: The application to review the arbitration award is dismissed. No order is made as to costs.

LAGRANGE J

Facts: Simayile was employed in 1999. At the time of his dismissal, he was employed as an L2 tractor driver and machine operator. Power Construction was granted an exemption by the Civil Engineering Bargaining Council in respect of increases and bonuses due for 2020. Power Construction maintained that the union had agreed to the exemption in the course of retrenchment consultations as a way of saving about 30 jobs. This caused dissatisfaction amongst the affected workers and at two sites they demanded explanations why they were being deprived of part of what was due to them. Simayile was later subjected to a disciplinary enquiry and found to have committed misconduct, which led to his dismissal. This included: incitement in that his action caused disruption on the site and resulted in the workforce not commencing work; and negligence in that he sparked employees with misleading facts thus committing gross negligence regarding information shared with him earlier. He was dismissed.

Application: To review and set aside the arbitration award in which the arbitrator found that the applicant’s dismissal by Power Construction was substantively and procedurally fair. The review application was filed outside the six-week time period following the issuing of the award and the applicant has applied for condonation for the late filing as well. The review application was served about 11 weeks late. This is not a “slight time delay” as stated in the founding affidavit. It is excessive.

Discussion: Simayile’s aim was to draw in the support of local labour for the permanent workers’ cause. The local labour force was a substantial part of the workforce and the permanent workers could not work if they were not and vice-versa. Work did not start at 07h30 when it should have. Simayile did not act in the best interests of the company, by not clarifying the situation based on what he already knew from the previous day about the reasons for the lack of bonuses and increases. The arbitrator concluded that Simayile had at least incited local workers to engage in an “attempted tools-down”. Whether there actually was a “tools down” did not matter because his action amounted to incitement of fellow employees to commit misconduct through such intimidating tactics of targeting vulnerable local contract workers. He acted contrary to the employer’s best interests due to his “failure to inform employees about the true state of affairs as one would have expected from a loyal employee.” As to sanction, the arbitrator considered that the potential ramifications of the stoppage made Simayile’s misconduct gross, and the disciplinary code listed dismissal as a sanction for incitement. He was unaccountable and his actions negatively impacted, or could have, on the firm’s relationship with the community. As a long-serving employee he had behaved irresponsibly.

Findings: Simayile argued that it was not a crime to incite someone to participate in an unprotected strike, but that is something of a red herring. It is still misconduct to encourage someone to engage in unprotected strike action and such action is plainly contrary to the employer’s best interests. It seems that whatever limitations some of the arbitrator’s findings had, no basis has been laid by Simayile for believing he has a reasonable prospect of setting aside the finding that he was guilty of incitement, and that his role in trying to promote unprotected industrial action was serious misconduct which warranted his dismissal. Even if prospects of success on review are considered, the court is not persuaded that such would warrant condoning the unjustifiably late launch of the review. There is no additional reason in the interests of justice to condone the late filing of the application.

Order: The application to condone the late application to review the arbitration award is dismissed. The review application is dismissed. No order is made as to costs.

LAGRANGE J

Facts: Muller has been employed by Medtronic since June 2010 until he was retrenched in August 2024, following a short period of “garden leave”. It is common cause that his contract of employment contained a confidentiality and restraint of trade clause, which imposed on him all the obligations described in the relief sought, except that the geographic scope of the restraint in his contract encompasses the entire country and the prohibition of competitive activities is not confined to the cranial spine technologies (CST) portfolio of Medtronic. Medtronic underwent a restructuring process which led to Muller’s retrenchment. A retrenchment agreement was concluded with employee representatives in June 2024.

Application: To enforce a restraint of trade brought on an urgent basis, which is opposed by Mr Muller. Medtronic seeks an interdict restraining him from the date of the order until July 2025 and within the Western Cape Province, from being interested or engaged, whether directly or indirectly, with the second respondent, Creatori Health.

Discussion: Both parties accept that the retrenchment agreement governed Muller’s retrenchment, though their interpretation of two clauses were at odds with each other. Muller contends that clause 9.1 implies that he is not bound by the restraint because he was not offered alternative employment. At the time of his retrenchment, Muller was the territory manager of the Western Cape. In that capacity, he was only responsible for Medtronic’s neuroscience and neurosurgery portfolio, which included the spine portfolio. Despite acknowledging his responsibility for the specialised portfolio described, Muller says he is at a loss to know which products and technology fall within the ambit of such a portfolio.

Urgency: The question that remains is whether the delay between Medtronic discovering Muller’s alleged breach of the restraint and launching the application is acceptable. The parties appear to have been genuinely engaged in trying to settle the matter without litigating, but Medtronic showed no sense of urgency in the conduct of the discussions, which proceeded at a relatively leisurely pace, added to which it took inordinately long to file the application after making its final offer, so that nearly two months had passed since it came to have knowledge of the breach and the launching of the application. The urgency of the application cannot be determined by the time it takes to exhaust settlement discussions. By the time it was enrolled for hearing nearly three months had passed since Medtronic was alerted to the breach.

Order: The application is struck off the roll for lack of urgency, with costs.

Facts: The appellant is a legal practitioner, practising as an advocate. She is a member of the Pan African Bar Association of South Africa. The appellant appeared as counsel for the Department of Justice in proceedings by the Department to stay the execution of an arbitration award. The matter came before Sethene AJ by way of urgent proceedings. The Labour Court determined that the application was “absolutely hopeless”, to the knowledge of the appellant. The court made an adverse order against the appellant and held that the appellant, as an officer of the court, had a fiduciary responsibility to the court. The court ordered that the appellant was not to charge any fee for legal services rendered. If she has already been paid, she was ordered to reimburse Justice Department. The State Attorney was ordered to investigate the conduct of the instructing attorney who acted on behalf of the Justice Department. See University of South Africa v Socikwa [2023] ZALCJHB 172.

Appeal: Against the orders of the Labour Court. The appellant contends that there was no support for the trenchant criticism against her by the Labour Court, including the finding that the appellant prosecuted proceedings for pecuniary reasons as opposed to the best interest of her client. She further contends that the application was not hopeless as the sheriff had removed vehicles belonging to the Department and that the sheriff undertook to remove additional vehicles.

Discussion: The judgement by the Labour Court received wide publicity. The commentary was unfavourable towards the legal practitioners. Statements by a court as regards conduct by a legal practitioner carry enormous weight. Such statements can make or break the reputation of a legal practitioner. This power requires restraint by a court when passing judgment on the conduct of a practitioner. The courts have, at various points, mentioned that a practitioner cannot be saddled with an adverse finding without a hearing. The Labour Court did not meet this injunction. The appellant pointed out that the Department was entitled to approach the court for relief and that she, in turn, performed her duties as counsel when she moved the application on behalf of her client.

“Hopeless” case: Fundamental to the criticism by the Labour Court is that the appellant knowingly prosecuted an application that was “hopeless”. The record does not support such a finding. The Labour Court stated that the application in which the appellant was counsel was triggered by “the alleged attendance of the sheriffs to the respective premises of the applicants”. This remark is a surprise, given that it is not disputed in the papers that the sheriff had removed vehicles belonging to the Department. The application to stay the enforcement of the award was precisely to prevent further removals by the sheriff. There is no support for the suggestion that the appellant was aware, when she accepted the brief and drew the papers, that the application to stay the award was “hopeless”. This is demonstrated by the appellant, following the exchange with the court, conceding that the review had lapsed and conceding costs.

Order: The appeal succeeds with no order as to costs. Paragraph 6 of the order of the Labour Court is set aside.

MOOKI AJA (MOLAHLEHI AJP and MUSI AJA concurring)

Facts: Mr Landman is a member of the Motor Industry Association (MISA) and he worked for a panel beating business, Great South Autobody. In terms of the contract of employment the agreed retirement age for Mr Landman was 60 years of age. He continued working after the retirement age, up until 10 months afterwards, when he received a letter that his services would terminate. Mr Landman was a member of the Motor Industry Provident Fund. The Motor Industry Provident Fund Collective Agreement provided that the retirement age of an employee who was a member of that fund was 65 years. In the second matter, Solidarity brought an application on behalf of six individuals who were its members and were dismissed by the State Information Technology Agency (SITA). The issue turned on their retirement ages, the SITA Conditions of Employment and letters the employees received informing them that their services had come to an end and mentioning their retirement dates.

Appeals: The Labour Court decided that the respondent was entitled to dismiss Mr Landman on the ground of having reached the agreed retirement age when the dismissal took place many months after Mr Landman had reached the agreed retirement age of 60 years. Accordingly, the Labour Court concluded that Mr Landman’s dismissal was fair. The Labour Appeal Court upheld the conclusions of the Labour Court and dismissed the appeal. In the Solidarity matter the Labour Court concluded that the dismissals were not automatically unfair. The reason given was that, once an employee has worked beyond the date on which he or she reached the normal retirement age, the employer is entitled to dismiss him or her at any time thereafter on the basis that the employee has reached the normal retirement age. The Labour Appeal Court dismissed the petition for leave to appeal.

Section 187(2)(b): There are three judgments, however, there is no majority on the interpretation of section 187(2)(b). The provision makes an exception to section 187(1)(f) (automatically unfair dismissals) and provides that a dismissal based on age is fair if the employee has reached the normal or agreed retirement age for persons employed in that capacity. See paras [1]-[4].

Landman: There is unanimity that the case engages the court’s jurisdiction and that leave to appeal should be granted. The first judgment would have upheld the appeal and awarded Mr Landman compensation equal to 24 months’ remuneration together with costs in the Labour Court, the Labour Appeal Court and this court. The second and third judgments conclude, however and albeit for differing reasons, that the appeal should be dismissed with no order as to costs. The latter disposition of the case thus commands a majority.

Solidarity: There is again unanimity that the case engages the court’s jurisdiction and that leave to appeal should be granted. The first judgment concludes – both as a matter of law based on its interpretation of section 187(2)(b) and in any event on the particular facts of the case – that the appeal should succeed, that the six employees in question should be awarded compensation equal to 24 months’ remuneration and that the applicants should be granted costs in the Labour Court, the Labour Appeal Court and this court. The second judgment would have dismissed the appeal with no order as to costs. Based on the particular facts of the case, the third judgment agrees with the disposition proposed in the first judgment, save that the third judgment would not grant the applicants costs in any of the courts concerned. There is thus a majority in favour of upholding the appeal and awarding the employees compensation equal to 24 months’ remuneration, but no majority in favour of awarding the applicants costs in any of the courts concerned.

Order: In the Landman matter, the appeal is dismissed. In the Solidarity matter the appeal is upheld and the decision of the Labour Court is replaced with an order finding that the dismissals of Solidarity’s members were automatically unfair.

ZONDO CJ at paras [7]-[135]

VAN ZYL AJ at paras [136]-[181]

ROGERS J at paras [182]-[221]

Facts and issue: This is an opposed review of an arbitration award in which the arbitrator found the dismissal of Mvaka was substantively unfair. It was common cause that the procedural fairness of the dismissal was not in issue. Mvaka, a grant officer, was dismissed for three different acts of misconduct relating to his use of a vehicle of the employer (NLC). He admitted being guilty of the three charges levelled against him for this misconduct and was dismissed. However, in his internal appeal he claimed that he had pleaded guilty because the representative of the employer at the disciplinary enquiry had suggested that he might obtain a more lenient sanction if he did.

Discussion: Charge 1 was misuse of a company vehicle; charge 2 was reckless and negligent driving of the company vehicle; and charge 3 related to a contravention of NLC Fleet Management Policy. This charge concerned Mvakwa failing to fill out the purpose of his trip when he drove the vehicle on Sunday evening without authority. Failing to follow the policy and procedures attracted progressive sanctions of a written warning, final written warning and dismissal for successive contraventions. The arbitrator decided that none of the offences committed by Mvakwa warranted his dismissal. The arbitrator found no need to consider the previous final written warning issued in October 2019 because it had been issued to Mvakwa as a six-month warning and had never been corrected, even if the policy stated that final written warning lasted for twelve months. The arbitrator impermissibly changed the nature of the first charge from misuse of a vehicle to unauthorized travel, notwithstanding that he had pleaded guilty to the original charge, and when he could not even have deviated from an authorized route on Sunday because he was not supposed to travel at all that day. In making this alteration, the NLC argues that the arbitrator assumed the role of initiator and the employer, rather than doing what she ought to have done, which was simply to decide whether he was guilty of the actual charge.

Findings: The arbitrator’s redefinition of the first charge and her disregard of the final written warning issued in October 2019 were material and significant flaws in her reasoning which no reasonable arbitrator would have made. The combined effect of both findings was to minimize the severity of Mvakwa’s misconduct and enabled the arbitrator to avoid having to consider whether corrective discipline was feasible. The arbitrator uncritically accepted his explanation of taking the car out late on a Sunday night in order to charge it, when he had previously charged it at work by letting the motor run without driving it. She also ignored the evidence that he had been driving the vehicle on alternate days in the preceding week, without the battery running down and blithely accepted his explanation for not phoning the relevant manager to drive the car on Sunday night, simply because he did not think it was appropriate to phone her then. She failed to appreciate that Mvakwa believed he could exercise his own discretion despite his disciplinary history relating to vehicle usage and despite previously having been held up at night when driving an NLC vehicle.

Order: The arbitration award is reviewed and set aside. The dismissal of, Mr Mvakwa by the applicant was substantively fair.

Facts and issue: The applicants are all employed by the Department. During 2006, their posts were upgraded to level 7 as a result of the outcome of a job evaluation process conducted in 2005. They are still employed at salary level 7. A collective agreement, referred to as Resolution 3 of 2009 (Resolution) was concluded between the trade unions within the public service sector and the state as employer. The Resolution provides for a grade progression model. As the applicants were appointed at salary level 7 in 2006, after a job evaluation process, they had completed 15 years of continuous service on salary level 7 and according to them, they met all the requirements to be upgraded in terms of the Resolution. They were however not upgraded and upon inquiry, they were informed that their posts were indeed downgraded to salary level 5 in 2006.

Discussion: The arbitrator found that grade progression in terms of the Resolution may occur, in the case of an employee whose post was graded at level 5, from salary level 5 to 6 when the employee has completed 15 years in the post from the date of job evaluation and obtained a satisfactory performance rating. The Department did not fail to adhere to or properly apply the provisions of the Resolution and the applicants’ claim was dismissed. The applicant’s primary ground for review is that the arbitrator considered the determination by the Minister of Public Service and Administration and the job evaluation process of 2006 in respect of the issue of benchmarking. The applicant’s case is that the arbitrator was wrong in considering the said process in the interpretation of the Resolution. The arbitrator committed an error of law as the determination or the job evaluation results of 2006 did not have a retrospective effect and he failed to consider that the applicants’ positions were not affected by the downgrading, as they still occupied their positions, which are distinguishable from the level 5 positions. There is merit in the applicant’s ground for review. It is evident from the facts that the applicant filed an affidavit in the arbitration proceedings, seeking to introduce evidence and therein they denied that their positions were downgraded and that the positions they hold are on salary level 5.

Findings: The facts placed before the arbitrator by way of a stated case, were insufficient and not adequate to decide the dispute as a stated case. It was evident that there was a serious dispute of fact as well as an objection from the Department about the dispute of fact, which would require the leading of evidence. It was undesirable to deal with the dispute as a stated case and the arbitrator should have refused the request to determine the matter without hearing oral evidence on the disputed facts. The applicant’s denial of the fact that their positions were graded on level 5 was material to the determination of the matter and was clearly disputed. The interpretation and application dispute could not have been decided without hearing oral evidence. The enquiry was undertaken in the wrong manner with the result that the parties were denied their rights to have their case fully and fairly determined.

Order: The arbitration award is reviewed and set aside. The dispute is remitted to the first respondent for a hearing de novo before a commissioner other than the second respondent.

Facts and issue: This appeal and cross-appeal concerns events that took place during a protected strike at Polyoak’s premises in Pinetown, KwaZulu-Natal. The appellants were at the time all members of the National Union of Metalworkers of South Africa (the union). They were among a group of 21 employees dismissed by Polyoak after a lengthy disciplinary hearing into allegations of strike-related misconduct. The charges brought against the employees and for which they were dismissed were non-compliance with an interim interdict granted by the Labour Court and further, interfering with Polyoak’s business, intimidation and harassment of employees, suppliers, customers and deliveries, and interfering with Polyoak’s business. The union appeals against the Labour Court’s order.

Discussion: The arbitrator found that 11 of the 21 employees had committed misconduct with which they had been charged and confirmed the fairness of their dismissals. Of the remaining 10 employees, six were found to have been unfairly dismissed and reinstated with backpay but limited to 48 weeks’ wages. Three employees were identified as having committed various acts of misconduct. Notwithstanding this finding, the arbitrator held that they had been unfairly dismissed because the acts of misconduct had not formed the basis of the charges against them. These employees were not reinstated. They were granted compensation equivalent to 24 weeks’ wages. Polyoak’s witnesses all testified that the employees standing on the verge moved into the road when the delivery truck approached, thus actively participating in the barricade. The video recordings introduced into evidence sustain Polyoak’s version of events. It follows that the arbitrator’s finding that the six employees were simply in the wrong place at the wrong time and did not participate in the misconduct alleged has no basis in the evidence and is simply untenable. The award is thus reviewable. There is no basis to interfere with the Labour Court’s conclusions in respect of the six employees found by the arbitrator not to have committed any acts of misconduct.

Findings: In respect of Ngubane, the arbitrator’s decision failed to meet the threshold for reasonableness; first, because the evidence clearly disclosed the misconduct described in the charge and second, because the fact that Ngubane did not appear in any video footage tendered as evidence is not a justifiable basis, in itself, to find that he did not commit the misconduct alleged. The evidence against Ngubane was not the subject of any video recording but rather the undisputed viva voce evidence of Van Kerken. In these circumstances, the basis of the arbitrator’s conclusion that Ngubane was not engaged in the misconduct that occurred on 23 October 2018 and that his dismissal was thus unfair exhibits both a failure properly to have regard to the evidence and a decision that fails to meet the threshold of reasonableness. The Labour Court erred in making a finding to the contrary, and the cross-appeal thus stands to be upheld.

Order: The appeal is dismissed. The cross-appeal is upheld, and the Labour Court’s order is varied. The dismissals of Sokela and Jezele are substantively unfair. The respondent is ordered to pay the following amounts to the employees. Sokhela: R37,238.40; Jezele: R37,238.40.

Facts: The respondent operates an optical laboratory. The applicant was employed by the respondent as a Stock Controller/General Administration with effect from June 2013. The parties had entered into a further contract of employment in March 2015. It is common cause that her services were terminated in January 2021 following a disciplinary enquiry into acts of misconduct. The applicant alleged that she was sexually harassed in November 2020, by Messrs Mashabela and Masuku, who are both employed by Nancefield as maintenance employees. She alleged that upon reporting the matter to the respondent, no action was taken against them. The respondent has a relationship with Nancefield which was contracted to carry out certain functions on its behalf such as all human resources and maintenance.

Application: In her statement of claim, the applicant alleged that her dismissal by the respondent was automatically unfair within the meaning of section 187(1)(d) and 187(1)(f) of the Labour Relations Act 66 of 1995 (LRA) and further constituted unfair discrimination in terms of section 6(1) of the Employment Equity Act 55 of 1998. At the commencement of the trial proceedings, and further in the heads of argument, the applicant’s reliance on section 187(1)(f) of the LRA appeared to have been abandoned.

Discussion: The respondent’s primary contention was that the allegations of sexual harassment were unsubstantiated, and/or that if it did take place. It contends that the complaint was promptly attended to, and that its obligations under the EEA were met. This was so in that Mashabela and Masuku were suspended in October 2020 after the allegations were investigated, and that they were subsequently subjected to a disciplinary enquiry in November 2020, which had resulted with written final warnings issued to them. The applicant denied that the respondent took any action against Mashabela and Masuku. There can be no dispute that an allegation of sexual harassment is inherently serious. However, there are worrying features of the applicant’s evidence which created doubt as to the credibility, reliability and probabilities of her versions.

Findings: Mashabela and Masuku insisted that the applicant in greeting them referred to them as “moffies”. The most probable version is that, as Mashabela and Masuku testified, the applicant had greeted them by referring them as “moffies” and other disrespectful terms, which by all accounts justified them in being upset and confronting her. At the most, Mashabela had confronted her after she had belittled them in derogatory terms and had blocked the doorway as she attempted to go back to her office. Be that as it may, Mashabela’s conduct albeit unacceptable, cannot in my view be classified as constituting a contravention of sections 6(1) and (3) of the EEA or as sexual harassment, for the purposes of liability under section 60 of the EEA.

Order: The applicant’s claims are dismissed. The applicant’s claim of substantively and procedurally unfair dismissal is stayed and referred to the CCMA for determination. There is no order as to costs.