Selected CCMA Arbitration Awards Summaries: January – June 2008
CCMA Research Unit: Operations & Information Department (Head Office)
SELECTED CCMA ARBITRATION
AWARDS
JANUARY – JUNE 2008
INDEX
Absenteeism………………………………………………………………………………………………..….
2
Bribery……………………………………………………………………………………………………..…..
3
Collective dismissal…………………………………………………………………………………………..
4
Constructive dismissal…………………………………………………………………………….……..…..
5
Contract of employment…………………………………………………………………………….….…….
6
Definition of employee………………………………………………………………………………….…….
7
Desertion………………………………………………………………………………………….……...……
8
Disability………………………………………………………………………………………………………..
8
Dishonesty……………………………………………………………………………………………………..
9
Drunkenness on duty………………………………………………………………………………………….
10
Fixed term contract…………………………………………………………………………………………….
11
Fraud……………………………………………………………………………………………………….…..
11
Incapacity…………………………………………………………………………………………….………..
12
Independent contractor or employee……………………………………………………………………….
14
Insubordination……………………………………………………………………………………….……….
15
Late coming………………………………………………………………………………………….………..
17
Misconduct…………………………………………………………………………………………………
17
Negligence……………………………………………………………………………………………….……
23
Public holiday………………………………………………………………………………………….………
23
Resignation or dismissal………………………………………………………………………………….….
24
Severance payment…………………………………………………………………………………….…….
26
Suspension……………………………………………………………………………………………….……
26
Theft…………………………………………………………………………………………………………….
27
Unfair dismissal…………………………………………………………………………………………….…
31
Unfair labour practice…………………………………………………………………………………………
33
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Selected CCMA Arbitration Awards Summaries: January – June 2008
CCMA Research Unit: Operations & Information Department (Head Office)
ABSENTEEISM
KNDB2230 - 08 Naicker v Woolworths (Pty) Ltd - Commissioner: McCann
Absenteeism - Employee absent from work for three days without permission – Dismissal fair.
The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and
procedurally fair. The applicant’s disciplinary hearing was held in her absentia, she was found guilty of absenteeism
and was dismissed.
The respondent testified that it had informed the applicant about her disciplinary enquiry. It had asked the applicant if
she had any personal problem that was affecting her work. The respondent stated that it had an employee assistance
programme. It also testified that it had spoken to the applicant on numerous occasions and that it had explained the
consequences of her unauthorised absence. The respondent claimed that its company policies and procedures set out
clearly that unauthorised from work was a form of misconduct. It further claimed that the company rule stated that the
applicant must inform the employer as soon as possible on the first day of absence. Although the applicant claimed
that she had submitted a sick note, the respondent argued that it was not in the applicant’s file.
The applicant mentioned that after she had been dismissed, she had requested a copy of her absenteeism track
record. She contended that other employees who had committed a similar offence were not dismissed.
Noted: That the applicant had confirmed that she knew about the company policies and procedures regarding
absenteeism. She knew that the respondent had an occupational health sister, but thought that her condition did not
require such a service.
Also noted: That the respondent had produced a spreadsheet showing the applicant’s and other employees’
absenteeism track records. It was also noted that the applicant did not inform her line manager about her health
condition.
Further noted: That the applicant had been granted counselling as well as a final written warning regarding her
continuous absenteeism.
Held: That there was no evidence that the applicant was singled out and victimised. The applicant had previously
violated the company policies and procedures which she was aware of. It was held that dismissal was an appropriate
sanction. The applicant’s dismissal was, therefore, both substantively and procedurally fair. The application was
dismissed.
NW5513 - 07 NUM obo Solo v Uranium Ore Africa Limited – Commissioner: Dube
Absenteeism – Applicant requested to work whilst on leave – Paid for one day whilst he worked four days – Applicant
acted angrily for not being paid overtime worked – Dismissal held to be harsh – Reemployment.
The applicant challenged the dismissal sanction and the substantive fairness of his dismissal. The respondent’s first
witness, being the applicant’s supervisor, testified that the applicant was supposed to be on five days leave, but had
requested him to report for duty for two days. The supervisor confirmed that the applicant had indeed reported for duty
as per attendance register submitted. The respondent’s second witness also testified that the applicant had absented
himself for three days. He claimed to have enquired about the applicant’s whereabouts, and that that was when he
discovered that the applicant had worked for four days but had been paid for one day.
The respondent’s first witness claimed that the applicant was charged for being absent without permission. He also
claimed that the applicant had a written warning for being absent from work. Under cross-examination, he stated that
the applicant was not declared a deserter as he had returned after four days.
The applicant claimed that the written warning was issued after he was involved in a bus accident. He also claimed that
he took five days leave after he had informed his shift supervisor that he had not been paid for the days he had
worked. The applicant further alleged that his residential address was known but there was no person sent to inquire
about his whereabouts. He claimed that upon his return, a meeting was held and he was, subsequently, dismissed.
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Under cross-examination he stated that he had told the shift boss that he would not work for free after he was only paid
for one day instead of four days.
Noted: That the applicant had been absent from work without permission. Both witnesses of the respondent had
testified that the applicant had been absent from work for four consecutive days without permission. The applicant had
not applied for leave as required by the respondent. The commissioner noted that the applicant had argued that he had
informed his supervisor that he was entitled to take four days leave as the respondent had only paid him for one day.
Also noted: That the applicant had argued that the dismissal sanction was harsh. The commissioner also noted that
the penalty must fit the offence. It was also noted that the LRA encourages, through its Code of Good Practice,
progressive discipline. The respondent had acted punitively and harsh in dismissing the applicant.
Held: That the applicant had acted angrily at the time for having not being paid for overtime he had worked. The
commissioner held that the applicant’s actions had to be considered under those circumstances in imposing a
sanction. It was, therefore, held that the sanction imposed was harsh under the circumstances. The respondent was
ordered to reemploy the applicant on the same terms and conditions of his initial employment.
FS2262 - 08 Setebe v Harmony Free State Operations - Commissioner: McCann
Absent without permission - Employee absent for eight days without permission – Dismissal unfair.
The commissioner was called upon to determine whether the dismissal of the applicant was fair or unfair. The applicant
was dismissed for alleged unauthorised absence from work for eight days.
The respondent testified that it had company rules stipulating that an employee would be dismissed if he or she was
absent without permission for six days or more. Employees who were sick were required to report that and submit a
sick note. The applicant had submitted a sick note which was rejected by the appeal committee after it was found to be
invalid.
The applicant testified that he was suffering from chicken pox and that he had consulted a traditional healer as his
condition was not improving. The applicant contended that he had requested a co-worker to submit the original medical
certificate issued by the traditional healer on his behalf. He also testified that he had been attending a chicken pox
treatment at the mine hospital and had been booked off for a few days.
Noted: That the applicant had admitted that he was aware of the company rules concerning sick leave. He also did not
deny that he was absent for the days question.
Also noted: That the applicant did not submit a proper medical certificate as required.
Held: That the dismissal of the applicant was substantively unfair but procedurally fair. The commissioner ordered the
respondent to reinstate the applicant without payment of lost salary.
BRIBERY
ECPE1814 - 06 Slabbert v Ikhwezi Truck Tech (Pty) Ltd - Commissioner: Brand
Dismissal - Employee dismissed for soliciting bribe – Dismissal fair.
The applicant was dismissed after soliciting a bribe from the respondent’s service provider to buy a motorbike at a
discounted price. The applicant challenged his dismissal as being procedurally unfair.
The applicant denied doing anything wrong. He contended that he was denied legal representation by the presiding
officer. He also claimed that his request for postponement was also denied.
The respondent contended that the misconduct committed by the applicant had made continued employment
intolerable. It testified that it had reported on a number of occasions, to its board and other interested persons about
the applicant’ attempt to solicit a bribe from service provider.
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Noted: That the applicant had arranged with the head of the service provider to purchase the motorbike at a
discounted price.
Also noted: That the applicant was not happy about the dividends paid to the respondent’s non-executive members.
Held: That the nature of the misconduct committed by the applicant had justified a dismissal. It was held that the
dismissal of the applicant was both substantively and procedurally fair. The application was dismissed.
Case references
BTR Industries South Africa (Pty) Ltd & Others v Metal & Allied Workers Union 1992 (3) SA 673 (A)
President of the Republic of South Africa & Others v South African Rugby Football Union 1999 (4) SA 147 (CC)
S v Roberts1999 (4) SA 915 (A)
COLLECTIVE DISMISSAL
GAJB24102 - 05 FEDCRAW obo Mthimunye & Others v Rewmoor Investments 543 (Pty) Ltd - Commissioner:
Mohlala
Dismissal - Employees dismissed after stock losses reached impermissible level - Prevention of stock losses formed
part of conditions of employment - Employer failed to prove that employees were negligent - Dismissal unfair.
The applicants, constituting the entire staff of one of the respondent’s retail stores, were dismissed for failing to comply
with company policies. After stock taking, there was stock loss which exceeded 1.5%. According to the company
policy, if stock loss exceeded 1.5%, employees would be dismissed. They challenged the substantive fairness of their
dismissal and sought reinstatement with back pay as a relief.
Noted: That the applicants did not dispute that there was stock taking and that there were shortages. However, the
applicants had denied being involved in a collective misconduct. It was noted that the applicants’ contracts of
employment had stipulated that “due to stock losses being detrimental to the employers business, the employee
accepts, as part of his/her conditions of employment, responsibility and personal accountability, to ensure that stock
losses are kept within the maximum limit of 1.5% of turnover. Should stock losses exceed the prescribed limit and the
employee cannot account satisfactorily for the stock, it will be regarded as a serious breach of this contract of
employment, which will be dealt with in terms of the provisions of the company’s disciplinary code and procedure”.
Also noted: That the parties had decided to base evidence and arguments mainly on the procedure relating to stock
taking and ignored the main principle of establishing the appropriateness of collective responsibility dismissals.
Further noted: That the respondent did not take any measures to prevent stock losses. It was noted that the
respondent had been involved in similar cases before.
Held: That the applicants’ dismissals were substantively unfair. The respondent was ordered to reinstate the applicants
and pay them arrear salaries.
Case reference
Chauke & Others v Lee Service Centre CC t//a Leeson Motors (1998) JOL 3076 (LAC)
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CONSTRUCTIVE DISMISSAL
GAJB21775 - 07 Donaldson v Kees Beyers Imports & Distributors CC - Commissioner: Myhill
Dismissal - Employee abandoning work after employer varied conditions of employment - Constructive dismissal not
proved.
The commissioner had to determine whether the applicant was constructively dismissed. The applicant was employed
as a sales representative on a fixed term contract and his package was basic salary plus commission. Thereafter, she
was employed on a permanent basis, on the same salary structure. Later on, there was a change in the management
structure of the respondent’s company.
The applicant contended that her remuneration structure was changed from a basic salary plus commission to a fixed
monthly salary and his petrol allowance was reduced. She was required to buy a new car. She indicated that when she
questioned the remuneration structure, she was threatened with a disciplinary action. The applicant contacted her
attorney, who advised her to stay away from work. She then claimed constructive dismissal and sought compensation
as a relief.
The respondent testified that the applicant had a trend of not attending sales meetings. It claimed that the applicant did
not like to be controlled by her manager.
Noted: That management had made efforts to address the applicant’s concerns by drawing a new contract, but she did
not read it as she did not return to work. It was noted that the applicant did not lodge any formal grievance to show that
she was unhappy.
Also noted: That the respondent had attempted to rectify the situation, but had added further conditions by doubling
her sales target and giving her three months to acquire a new motor car at her own expense and threatening her with a
disciplinary action.
Further noted: That the respondent had applied for postponement because its representative was unavailable and it
was refused.
Held: That the applicant had failed to prove that she was constructively dismissed. The application was dismissed, and
the respondent was ordered to pay costs for postponement of arbitration.
Case references
Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC)
Woods v WM Car Services (Peterborough) (1981) IRLR 347
GAPT6982 - 06 Mogorosi v South African Reserve Bank- Commissioner: van Kerken
Dismissal - Employee resigned – Employee claiming employer rendered employment relationship intolerable by stifling
career prospects – No proof of constructive dismissal.
About two years after having unsuccessfully declared a dispute concerning an alleged unfair labour practice relating to
promotion, the applicant resigned and claimed that he had been constructively dismissed.
The applicant contended that he had no option but to resign because the respondent had stifled his career prospects
and had breached the trust relationship. He alleged that the human resources policies were applied inconsistently
concerning promotions. He also alleged that he was underpaid. The applicant argued that when he approached
management to discuss his career prospects, he was insulted by one of the managers. He claimed that the same
manager had accused him of poor work performance. The applicant further alleged that he was not promoted to a
suitable position that he had applied for. He contended that he was sent to courses which were of no interest to him.
The respondent argued that the applicant had identified his training needs in the performance plans for 2002/2003 and
2003/2004. When his needs were discussed, the applicant said that there was no need for him to attend any course as
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he had completed his Masters of Business Administration. The respondent’s witness had testified that the applicant
had made threats against one of his co-workers.
Noted: That the respondent had allowed the applicant to borrow money from his pension fund. It was noted that when
the applicant fell behind in paying his housing bond. The respondent sent him to a personal finance course so that he
could be able to handle his personal financial matters. The applicant was also sent for counselling after he had
threatened a fellow employee.
Held: That there was no basis that the respondent had unfairly overlooked the applicant for positions for which he was
suitable. There was also no basis to show that continued employment relationship had become unbearable. It was held
that the applicant’s evidence did not show that the respondent had failed to support him regarding training, and the
opportunity to grow and develop.
Also held: That the respondent did not make continued employment intolerable. The applicant did not exhaust internal
grievance procedures before resigning. It was, therefore, held, that there was no proof of constructive dismissal.
Case references
Coetzer v Citizen Newspaper (2003) 24 ILJ 662 (CCMA)
Goliath v Medscheme (Pty) Ltd (1996) 5 BLLR 603 (IC)
Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC)
Kruger v CCMA & Another (2002) 11 BLLR 1031(LC)
Loots, Solid Doors, Smithkline Beecham (Pty) Ltd v CCMA & Others (2000) 3 BLLR 344 (LC)
Lubbe v ABSA Bank Bpk (1998) 12 BLLR 1224 (LAC)
Mafomane v Rustenburg Platinum Mines Ltd (2003) 10 BLLR 999 (LC)
Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC)
GAJB12835 - 08 Mthombeni v Nkwazi Industrial Reticulation (Pty) Ltd - Commissioner: Makhubela
Dismissal - Employee dismissed for stealing scrap metal – Employee alleged that he was forced to resign Constructive dismissal not proved.
The commissioner was called upon to determine whether the applicant was constructively dismissed. The applicant, a
director, had claimed that he was forced to resign. He challenged his dismissal as being unfair and sought
compensation as a relief.
The applicant testified that when he arrived at work, on the day in question, he was called by the co-director to his
office. When he arrived, he was told that there were rumours that he had stolen scrap metal. He had agreed that he
had taken the scrap but denied that he had committed theft. He claimed that the co-director also used to take scrap
metal. He indicated that the co-director had drafted a resignation letter and had forced him to sign it. He testified that
as he was frightened, he signed the letter.
The respondent argued that the applicant had resigned on his own accord. It argued that as the applicant was a
director, it was not necessary for him to sign the resignation letter.
Held: That the applicant had voluntarily signed the resignation letter and was, therefore, not forced to resign. It was
held that the applicant was not constructively dismissed. The application was dismissed.
CONTRACT OF EMPLOYEMNT
GAJB40833 - 07 Khula v Crous Distributors – Commissioner: Tshazibana
Applicant offered employment – Signed employment contract – Repudiated it and alleged dismissal – CCMA has no
jurisdiction.
The applicant was offered employment by the respondent 03 December 2007, and was given training over four days
as a sales representative.
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The applicant alleged that upon being offered employment, his uncle asked the respondent to clarify clause 3 of the
employment contract. He claimed that on the same day, he was informed that he was no longer required and had to
leave. The applicant stated that he had expected that the respondent would take him into confidence after the
conversation with his uncle.
The respondent disputed the version of the applicant and submitted that he had never been dismissed. It claimed that
the applicant was employed on the strength of his pedigree, including possession of a motor vehicle – a tool of trade.
The respondent stated that the applicant was instructed to resume duties once he had agreed to terms of the contract.
Noted: That the applicant had conceded to signing the contract of employment out of his own free will. The
commissioner noted that it was improbable that the respondent would dismiss the applicant when no misconduct had
been committed.
Also noted: That walking out of the respondent’s premises without clarifying whether or not the applicant had been
fired does not constitute a dismissal within the meaning of s 186(1) of the LRA.
Further noted: That when the applicant’s uncle exerted undue pressure on him to repudiate his contract, there was no
duty on the respondent to attempt to make the applicant change his mind.
Held: That the applicant had accepted and signed the contract of employment. The commissioner, therefore, held that
the CCMA has no jurisdiction to consider the matter. The applicant’s application was, therefore, dismissed.
DEFINTION OF EMPLOYEE
ECPE4228 - 05 Fox v Burchell t/a Frontier Safaris - Commissioner: Midgley
Unfair dismissal – Working relationship - Employee or partner – Employer failed to prove existence of partnership.
The commissioner was called upon to determine whether the applicant was unfairly dismissed. The parties were
involved in the hunting industry. The business included hunting, taxidermy, “dip and pack” and photographic safaris.
The applicant was employed as a freelance hunter, whilst he was still working as a policeman with the South African
Police Services (SAPS). Later on, he resigned from the SAPS and was employed on a full time capacity by the
respondent. It is alleged that the parties had discussed the possibility of creating a partnership in respect of the hunting
division, with the applicant having a 15% stake. Under the new arrangement, the applicant would be entitled to a
monthly salary plus a commission. The respondent had requested his attorney to draw up a partnership agreement.
The parties had discussed the income and expenditure of the business, but they did not reach an agreement. The
applicant continued to work for the respondent for a few months. Thereafter, the respondent terminated the services of
the applicant after he had learnt that the applicant had sent one of its clients a price list on a letterhead styled “Andri
Fox Safaris”.
The respondent argued that the applicant was a partner in the business, but not an employee. The applicant denied
that partnership existed, as he was paid a salary plus commission, there was no distribution of profits and he had never
signed any financial records as a partner.
Noted: That the chartered accountant that had inspected the books of the respondent’s associated companies did not
obtain indication of a partnership relationship. The remuneration of the applicant had reflected as a salary and
Unemployment Insurance Fund was deducted. It was noted that no oral partnership agreement had been concluded by
the parties.
Also noted: That the applicant was not afforded an opportunity to attend a disciplinary hearing.
Held: That the evidence presented by the respondent was not credible. The applicant was not a partner but an
employee.
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Also held: That the dismissal of the applicant was both substantively and procedurally unfair. The respondent was
ordered to compensate the applicant an amount equivalent to three month’s salary.
Case references
Atlas Organic Fertilizers (Pty) Ltd v Pikkewyn Ghwano (Pty) Ltd & Others 1981 (2) SA 173 (T)
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC)
DESERTION
WE1977 - 08 Mazeke v Shoprite Checkers – Commissioner: Wilson
Desertion – Employee did not return to work – Dismissal fair.
The applicant was employed as a cashier at the time of her dismissal. She challenged her dismissal as being both
procedurally and substantively unfair.
The respondent’s witness testified that it had employed 200 employees during November and December as the shop
was too busy. As a supervisor, he was expected to make sure that there were enough cashiers on duty at any given
time.
The applicant testified that she was sick and had gone to hospital. She argued that she gave a medical certificate to a
colleague so that she can send it to her supervisor. The applicant also claimed that she had phoned the company, but
there was no response. She further claimed that she had visited the clinic to see a specialist as she was suffering from
eyes and stress, but she forgot to take a medical certificate
Noted: That if an employee does not come to work or advise the company of his or her whereabouts, the first telegram
is sent to them after three days. If that employee fails to respond to the telegram, the respondent had the authority to
terminate the employee’s services. It claimed that all employees were aware of that company rules. Absence due to
illness was required to be supported by a medical certificate. The respondent’s witness had argued that the applicant
did not inform about her absence, and did not submit a medical certificate.
Also noted: That a telegram was sent to the applicant’s last known address, but there was no response. He also
testified that the applicant had been employed for a period of 18 months, had a poor time keeping and work attendance
record.
Held: That the respondent had taken responsible steps to get the applicant to return to work before her dismissal. The
applicant did not appeal against her dismissal.
Also held: That the applicant had breached the employment contract by not coming to work and by her failure to
inform about her absence. The dismissal of the applicant was found to be both substantively and procedurally fair. The
application was dismissed with costs.
DISABILITY
GAJB35599 - 07 Mbatha v ABI - Amalgamated Beverage Industries – Commissioner: Tshayana
Disability – Agreement of reemployment if fully recovered – No proof of agreement – Applicant offered lump sum.
The applicant challenged both the substance and procedure of his dismissal and sought reinstatement as a remedy.
The respondent denied that the applicant had been dismissed.
The applicant testified that he was declared permanently disabled in 2003 and was issued with a lump sum. He
claimed that he had entered into an agreement with the respondent’s human resources department and the operations
manager that if he recovers, he would be reemployed. The applicant also claimed to have left the agreement with the
respondent. The applicant further alleged that on 27 September 2007, he had approached the respondent for
reemployment as per agreement, but was turned down.
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The respondent alleged that the applicant became ill and was put on temporary disability. It claimed that after two
years, the applicant had not recovered, and was put on permanent disability, and was given a lump sum in 2003. The
respondent also alleged that the applicant had accepted the lump sum and disputed the existence of an agreement to
reemploy him.
Noted: That the applicant had been put on permanent disability in 2003 and was given a lump sum.
Also noted: That the applicant had failed to produce the agreement.
Held: That the applicant had failed to discharge the onus of proving that he had been unfairly dismissed by the
respondent. The application was, therefore, dismissed.
DISHONESTY
GAPT10469 - 07 Mohlala v Distell Limited - Commissioner: van Wyk
Dismissal – Employee dismissed for providing false information on vehicle trip sheet - Dismissal unfair.
The applicant, a driver, was dismissed after being found guilty of fraud and dishonesty. It was alleged that he had
supplied false information on his vehicle’s trip sheet. He challenged his dismissal as being substantively unfair.
The applicant claimed that on the day in question he felt hungry and decided to go and buy food where he thought food
was cheap. The applicant argued that he did not stick to the correct time of his lunch because he did not have a watch
and that his cellular phone was defective. He contended that dismissal, as a sanction, was severe as he had been in
the company for many years and had a clean disciplinary record. In mitigation, the applicant had testified that he was
always punctual and treated his fellow employees and superiors with courtesy.
The respondent testified that the applicant had a tendency of not completing invoices and trip sheets. It testified that
the applicant had deviated from his designated trip route. The applicant was aware of the company rule which
stipulated that he was prohibited from deviating from his designated trip routes. He was previously warned to refrain
from such unacceptable conduct.
Noted: That the applicant had an existing warning for a similar offence.
Held: That the applicant’s argument that he did not have a watch was rejected.
Also held: That the sanction of dismissal had been harsh. The dismissal of the applicant was found to be substantively
unfair. The respondent was, therefore, ordered to reinstate the applicant with one month’s salary.
Case references
Hammond & Others v Suzman Distributors (Pty) Ltd (1999) 20 ILJ 3010 (CCMA)
JD Group Ltd v De Beer (1996) 17 1103 (LAC)
NUM & Another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 8 BLLR 869 (LAC)
ECEL2374 - 07 Vundisa v Cashbuild (Mthatha East) - Commissioner: Sizani
Dismissal – Breach of company procedures - Employee made false statements to company - Dismissal unfair.
The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and
substantively fair. The applicant was dismissed after a disciplinary hearing for alleged breach of company rules and for
making false statements.
The applicant claimed that he was approached by a customer who wanted to borrow a grinder. He mentioned that he
had referred the customer to the security guard. However, the following day it was discovered that the grinder was
missing. The security had indicated that the reason for not recording the grinder in the book was that he thought the
applicant knew the customer. There was nothing in the book which the security guard normally records non-stock items
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that had gone out of the store. The applicant testified that he wanted to pay the respondent for the missing grinder, but
his request was rejected by the store manager.
When the caretaker manager came back from the leave, he said that he did not know about the whereabouts of the
grinder, he denied that it was reported to him. The respondent contended that the conduct of the applicant had
amounted to dishonesty. The trust relationship had broken down. It also contended that the applicant knew the
company rules.
Noted: That when the applicant was asked about the grinder he had said that the grinder got lost and that the matter
was reported to the caretaker manager.
Also noted: That the sanction for the said rule was not dismissal, but three warnings.
Held: That the respondent did not follow a fair procedure when dismissing the applicant. The dismissal of the applicant
was procedurally and substantively unfair. The respondent was ordered to reinstate the applicant with six months’
compensation.
DRUNKENESS ON DUTY
KNRB1591 - 07 CEPPWAWU obo Mbatha v CTC – Commissioner: Oakes
Dismissal – Employee found drunk on duty - Dismissal fair.
The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was
employed as a locomotive driver at a timber plantation. He was charged with being under the influence of alcohol, and
was dismissed after a disciplinary hearing.
The applicant testified that he was aware of the rules and policies of the respondent. He claimed that he had
consumed alcohol the previous day. When he reported for work the following day, the employer’s computer system
selected him to be randomly tested for alcohol. The test results reflected that the applicant was under the influence of
alcohol as the alcohol content was 0.142, which was excessive. The applicant was requested to sign the printout. The
applicant signed the printout and had signed a printout without any objections in front of his shopsteward and
supervisor.
Noted: That the applicant had acknowledged that he had an alcohol dependency problem. It was noted that he was
previously caught twice while under the influence of alcohol.
Also noted: That the applicant, as a locomotive driver, had a great responsibility towards fellow workers’ safety.
Held: That the applicant had committed a serious offence. The application was dismissed.
NC2630 - 07 NUM obo Sebolao v HC van Wyk Diamonds Ltd - Commissioner: Kayster
Dismissal – Employee arriving at work smelling alcohol with bloodshot eyes – Employee refused to undergo
breathalyser test - Dismissal fair.
The applicant, a workshop assistant, was dismissed after he had arrived at work smelling of alcohol and with bloodshot
eyes. He challenged his dismissal as being substantively unfair.
The respondent’s witness testified that he was instructed by the mechanic to go to the workshop and on his arrival, he
had discovered that the applicant was smelling of alcohol and his eyes were bloodshot. He testified that the applicant
was then requested to leave the workplace. The manager instructed him to follow the applicant to the hostel and
administer a breathalyser test, which the applicant had refused to perform. The company had a policy that stated that if
an employee refuses a breathalyser test, it is presumed that he or she is guilty.
The applicant denied that he was under the influence of alcohol. He argued that he would not have been able to drive
his car from the hostel to the workplace. He also argued that his eyes were red because he drank two beers the
previous night and woke up early that morning.
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Noted: That an employee may be considered to be under the influence of alcohol while on duty if he or she cannot be
able to perform his or her duties properly. The inability to perform may be proved by blood tests or observation. It was
noted that the applicant did not deny the evidence of his supervisors who had observed him on the day in question.
Also noted: That the applicant had refused a breathalyser test to be administered on him. It was also noted that the
respondent had a zero tolerance policy that employees were prohibited from reporting to work while under the
influence of alcohol.
Held: That the applicant had contravened the policy which he had known. His dismissal was, therefore, held to be
substantively fair.
FIXED TERM CONTRACT
GAJB41951 - 07 Ngobese v BBC Labour Brokers (Pty) Ltd – Commissioner: Nsibanyoni
Fixed term contract – Employee alleged that he was unfairly dismissed - No dismissal.
The applicant was employed on a fixed term contract basis. He alleged that he was unfairly dismissed as there was no
disciplinary hearing conducted. The commissioner was called upon to determine whether the applicant was dismissed.
The applicant testified that one of his colleagues was caught stealing at work. After the colleague was interrogated, he
stated that the applicant had taught him to steal. When the applicant returned to work, he was approached by the
respondent and his services were terminated. The applicant did not deny that he had signed a fixed term contract, but
claimed that he was forced by the respondent.
The respondent testified that the company rules were clear that when an employee was suspected of any form of
misconduct, that employee would be put under a disciplinary hearing. It also testified that it would be impossible for the
applicant to be dismissed without a hearing. The respondent testified that the applicant’s contract had expired and his
services were terminated.
Noted: That the applicant had admitted that he had signed the fixed term contract which had an expiry date.
Held: That if the applicant believed that he was forced to sign the contract, he could apply to the Labour Court to have
it set aside. It was held that CCMA lacked jurisdiction to set aside that contract. The application was dismissed.
FRAUD
NW5506 - 06 NUM obo Mafotsa v Anglo Platinum Ltd (Rustenburg section) – Commissioner: Loyson
Dismissal –Employee made inappropriate shift adjustment for colleague - Employee dismissed for fraud, dishonesty
and gross negligence - Dismissal fair.
The applicant, a labour control assistant, was dismissed for fraud, dishonesty and gross negligence. He challenged his
dismissal as being both substantively and procedurally unfair.
The respondent testified that he had received information that an employee was engaged with the respondent while
employed by another mining company. Upon conducting an investigation, it was discovered that the employee in
question was employed by the respondent. It was also discovered that there were inappropriate shift adjustments
effected to that employee. The shift adjustments were effected by the applicant and had been processed for payment.
The respondent testified that by the time the adjustments were made, the employee in question was working for
another mining company. It also testified that the applicant had claimed that he was instructed by the head of the
department to adjust shifts of that employee. However, it argued that at the time of the adjustments, the head of the
department was on suspension. It contended that the applicant had effected the shift adjustment so that the employee
could receive remuneration which he did not deserve.
The applicant testified that the shift adjustment form of the employee in question was signed and stamped by the
human resources co-ordinator. He argued that it was not necessary for the shift adjustment forms to be authorised and
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approved by the head of the department. He also argued that there was no need for him to attach any supporting
document to the shift adjustments of the employee in question.
Noted: That the applicant had acknowledged that he had effected the shift adjustments in question.
Held: That the documents had been fraudulently compiled. The dismissal of the applicant was fair. The application was
therefore, dismissed.
INCAPACITY
NC753 - 08 Snyman v Ngalo - Commissioner: van Wyk
Dismissal – Employee dismissed for poor work performance - Employer not satisfied with performance of employee Dismissal fair.
The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and
substantively unfair. The applicant, a domestic worker, was dismissed for alleged poor work performance.
The applicant testified that she was confronted by the respondent who had complained that she was dissatisfied with
the manner in which she ironed garments of her son. The respondent instructed her to repeat the garments and she
refused. When she refused, the respondent had lost temper and shouted at her. The applicant then walked out of the
respondent’s house.
Noted: That the applicant had agreed that the respondent had treated her well and had on numerous occasions
provided her with food and clothing above her remuneration.
Also noted: That there was no evidence to prove that the altercation between the parties had constituted a dismissal.
It was also noted that there was no written notice of termination of employment.
Held: That the application was dismissed.
Case reference
Visser v Amalgamated Roofing Technologies t/a Barloworld (2006) 27 ILJ 1567 (CCMA)
GAJB40747 - 07 Petshwa v SAA (Pty) Ltd - Commissioner: Nsibanyoni
Dismissal - Employee grounded – Employee’s flying licence cancelled due to poor health - Dismissal fair.
The applicant was employed as a flight attendant. She was dismissed after a disciplinary hearing which was held in her
absence. The applicant challenged her dismissal as being procedurally unfair.
The respondent testified that the applicant had become ill while on duty on flight to Atlanta. The applicant was returned
to South Africa and was immediately hospitalised. She was diagnosed with bi-polar disorder and was put on
medication. The medicine she was using was not compliant with flying and she was grounded. The applicant’s licence
was cancelled by the Civil Aviation Authority, a statutory body that issues licences to cabin crew. She was referred to
the respondent‘s doctor, who was a registered Aviation Medicine Practitioner. The respondent claimed that the
applicant refused to take her medication, thus making her condition worse. It argued that it had become difficult for the
applicant to be evaluated properly as she was not taking her medication. The respondent further testified that when
she was grounded, she was offered an opportunity to seek alternative employment
The applicant contended that she could not return to work after sick leave nor attend the disciplinary hearing because
her access card was blocked.
Noted: That all grounded employees were given preference when applying for alternative positions within the
company.
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Also noted: That the applicant had consulted a doctor at the respondent’s expense and was booked off sick for 414
days with full pay. It was also noted that the applicant had failed to take medication.
Further noted: That a disciplinary hearing was postponed twice on the applicant’s request.
Held: That the respondent had done all he could do to assist the applicant, but she was unco-operative. The
application was dismissed.
GAPT4136 - 08 Hlako v Koekemoer - Commissioner: Ferreira
Dismissal – Employee dismissed for poor work performance - Employee on probation period - Dismissal unfair.
The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and
procedurally unfair. The applicant, a domestic worker, was dismissed for poor work performance while on probation.
The applicant testified that the respondent told her that it could not employ someone who was continuously ill. She
contended that she was not summoned to a disciplinary hearing but was informed verbally that her services were
terminated.
The respondent testified that the applicant was dismissed because she was not performing up to the required
standard. It argued that on numerous occasions, the applicant had failed to complete certain tasks that she was
supposed to perform. It also argued that the applicant had a problem of time keeping and was absent on a regular
basis. Several discussions were held with the applicant around her performance, but the applicant had failed to show
any improvement.
Noted: That the applicant was dismissed during probation period. The purpose of the probation period is to give the
employer the opportunity to evaluate the performance of the employee.
Also noted: That the applicant was not called to a hearing, informed that her performance was not up to the required
standard, and was immediately dismissed.
Held: That the respondent did not follow the correct procedures in terminating the applicant’s services.
Also held: That the applicant was not performing to the required standard. It was also held that the dismissal of the
applicant was for a valid reason, therefore, it substantively fair but procedurally unfair. The respondent was ordered to
pay the applicant an amount equivalent to one month’s salary.
Case references
Black Allied Workers Union & Others v One Rander Steak House (1988) 9 ILJ 326 (IC)
Crawford v Grace Hotel (2002) 21 ILJ 2315 (CCMA)
NUMSA v Tek Corporation Ltd & Others (1992) 12 ILJ 577 (LAC)
Schuster v Capab Orchestra (1994) 15 ILJ109 (LAC)
Whitfield v Inyati Game Lodge (1995) 1 BLLR 118 (IC)
ECPE1240 - 08 Crail v Bouwer - Commissioner: Lupondwana
Dismissal – Employee dismissed for poor performance - Employee did not meet set sales targets - Dismissal unfair.
The commissioner was called upon to determine whether the dismissal of the applicant was unfair. The applicant, an
outdoor salesman, was dismissed for alleged poor work performance. He challenged his dismissal as being
procedurally unfair and sought compensation as a relief.
The respondent testified that the applicant was unable to meet his monthly sales target. It claimed that the applicant
had been sent for counselling but did not show any improvement. The respondent also claimed that it had given him
two months to improve his sales target instead they have dropped dramatically. That had resulted in the applicant’s
services been terminated.
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The applicant claimed that there was no hearing before his dismissal. He also claimed that the respondent had served
a notice to attend a disciplinary hearing after it had dismissed him.
Noted: That the applicant was requested to work two weeks’ notice, but had refused to do so.
Also noted: That the applicant was aware that his performance was not satisfactory.
Held: That no formal hearing was held before the applicant‘s services were terminated. It was held that the applicant’s
dismissal was substantively fair but procedurally unfair. The respondent was ordered to pay the applicant an amount
equivalent to one month’s salary and pro rata leave pay due to him.
INDEPENDENT CONTRATOR OR EMPLOYEE
GAPT7071 - 06 Vilane v SITA (Pty) Ltd & Another- Commissioner: Christiansen
Dismissal - Working relationship - Employee of labour broker claiming to have been dismissed by broker’s client –
Employee failing to prove that he was client’s employee - Dismissal not proved.
The applicant had worked for the first respondent for several years before his contract was terminated. He claimed that
he was unfairly dismissed.
The first respondent claimed that the applicant was employed by the second respondent which was a labour broker. It
testified that it renders information technology services to government departments. In rendering these services it had
utilised temporary employment services to deploy service providers for a limited duration. The applicant was procured
from a labour broker to work on a specific project. The parties agreed to the contract and the description of the work to
be done. On the contract of employment, the period of the work was confirmed as well as the cost and method of
payments. The applicant’s fees were negotiated with the labour broker not with the management. In order for the
labour broker to be paid, the applicant was required to submit weekly time sheets that were verified by the first
respondent management and then submitted to the labour broker. The labour broker registered the applicant with UIF
and deducted contributions monthly.
The applicant claimed that the first respondent was his employer. He testified that he had submitted his curriculum
vitae to a labour broker who had placed him on assignment basis.
Noted: That the applicant had confirmed that no employee of the first respondent had made him any promises of
permanent employment. The applicant had responded to job specifications which were provided by the labour broker
without knowledge of who was the client. It was noted that when he provided his curriculum vitae, he had just been
retrenched from a company that the labour broker had successfully placed him on a permanent basis.
Also noted: That the contract had clearly spelt out that the relationship between the parties had been one of labour
brokerage. It was also noted that the applicant was not paid directly by the first respondent.
Held: That the applicant was an employee of the second respondent. It was held that the CCMA lacked jurisdiction to
determine the applicant’s claim of unfair dismissal.
Case references
CMS Supportive Services (Pty) Ltd v Briggs (1998) 19 ILJ 271 (LAC)
Denel (Pty) Ltd v Gerber (2005) 26 ILJ 1256 (LAC)
LAD Brokers (Pty) Ltd v Mandla (2001) 22 ILJ 812 (LAC)
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INSUBORDINATION
FS2375 - 7 Mangali v Huis Westerson (Senekal) - Commissioner: van Aarde
Dismissal - Employee refuse to obey instructions – Employee breach company policy – Employee failed to report to
work - Dismissal fair.
The applicant was employed as a general worker in the laundry section of the elderly care centre. He had failed to
inform the respondent that he would arrive late for work due to illness. The applicant’s supervisor questioned her about
the matter, but she refused to answer. She was then called to a hearing for misconduct and insubordination, found
guilty in his absence and was dismissed. She contended that her dismissal was both substantively and procedurally
unfair. The applicant argued that with regards to procedural fairness, she was not afforded an opportunity to be heard.
The respondent argued that according to the company policy, an employee must report absence or lateness before
10h00, in order to try to arrange for an alternative employee. The applicant was in charge of the laundry and its key.
The respondent testified that the applicant had been called to various counselling sessions and had received written
warnings but she did not change her behaviour.
Noted: That the applicant was properly notified about the disciplinary hearing. The disciplinary notice was also clear
regarding the applicant’ rights to be represented by a third party.
Also noted: The applicant had a history of insolent behaviour.
Further noted: That the applicant had requested the respondent for postponement at the eleventh hour.
Held: That by being absent from a disciplinary hearing, the applicant had waived her right to be present and to cross
examine the witnesses.
Also held: That wilful absence from work constitutes a breach of contract and justifies termination. It was also held that
insubordination is viewed as a serious offence. The applicant’s dismissal was, therefore, held to be both procedurally
and substantively fair.
Case references
County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC)
Gemini Indent Agencies CC t/a S & A Marketing v CCMA (1999) 20 ILJ 2872 (LC)
Hoch v Mustek Electronics (Pty) Ltd (2000) 21 ILJ 365 (LC)
Mambalu v AECI Explosives Ltd (Zomerveld) (1995) 16 ILJ 960 (IC)
Mhlango v Latern Financial Services (Pty) Ltd (1999) 4 LLLD 669 (CCMA)
POPCRU v Minister of Correctional Services (1999) 20 ILJ 2416 (LC)
GAJB18838 - 07 Ndou v Marbella Body Corporate - Commissioner: Honnorat
Dismissal - Employee refuses to obey instructions – Gross insubordination - Dismissal fair.
The applicant, who had been employed as a gardener, was dismissed after a disciplinary hearing for gross
insubordination.
The respondent testified that it had instructed the applicant to do some general work, such as cleaning the pool and
pavement, cutting grass and wiping the “stoep”, but had refused to do so. The applicant’s job description mentioned
that he would be required to perform maintenance work.
The applicant testified that his supervisor had a difficult personality. However, the applicant did not complain to the
trustees.
Noted: That the applicant had an attitude towards his supervisor. His attitude showed that he did not like to be
instructed by his supervisor. It was noted that the applicant did not deny the charges against him at the disciplinary
hearing.
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Held: That it was probable that the applicant had refused to obey instructions from his supervisor. The sanction
imposed by the respondent was fair and justifiable. The application was dismissed.
GAJB12244 -08 SATAWU obo Khumalo v Knightwatch Security - Commissioner: Mantshule
Dismissal - Employee refuse to obey instructions – Dismissal fair.
The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and
procedurally unfair. The applicant was dismissed after refusing to be posted to a work station.
The respondent’s witness testified that he gave the applicant instructions to report for duty at a different site, but he
had refused. The applicant still refused to go to that site even after arrangement of transportation had been made.
The applicant mentioned that he was given an instruction to go to the site by his area manager. He testified that he did
not agree to go to the site as he felt that the site was too far and was going to be expensive for him. He contended that
he felt it was better if he was not removed from the site where he was working. He also contended that he did not
attend a disciplinary hearing as he was looking after his ailing mother.
Noted: That the applicant was charged with insubordination.
Also noted: That it was common cause that the instruction was given to the applicant and the applicant had refused to
obey it. It was also noted that the instruction given to the applicant was related to his work and was reasonable.
Further noted: That the applicant had been posted to various sites in the past as he did not have a permanent site. It
was further noted that the applicant had admitted that he was posted to a site nearer to the one that he had refused to
go.
Held: That the applicant had failed to attend a disciplinary hearing to defend himself. The application was, therefore,
dismissed.
GAJB8686 - 08 Mabala v Gremick Division of Servest Security - Commissioner: Mbhele
Dismissal –- Employee refuse to obey instructions – Dismissal fair.
The commissioner had to determine whether the dismissal of the applicant was both substantively and procedurally
unfair. The applicant was charged with refusing to work, failure to wear uniform and to shave beards and disrespect for
his supervisor.
The respondent testified that the applicant had refused to sign a notice to appear at the disciplinary hearing. A witness
was then called to sign the disciplinary notice on his behalf. The respondent claimed that the applicant had been
counselled and issued with a written warning for his behaviour, but had refused to sign it.
The applicant testified that he was employed by the respondent as the area manager at the time of his dismissal. He
argued that he was forced to work as a security guard, while he was employed as an area manager.
Noted: That in terms of the employment contract, the applicant was expected to perform other duties than those
mentioned in the list of primary tasks and as per instructions of the respondent.
Also noted: That the applicant did not provide valid reasons for refusing to sign the notice.
Held: That the applicant had breached his employment contract by refusing to sign the notice as requested by the
respondent. It was held that the dismissal of the applicant was both substantively and procedurally fair. The application
was dismissed.
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LATE COMING
WE5249 - 08 DUSWO obo Ntyida v Calicom Trading 146 (Pty) Ltd t/a Joe Soap Car Wash – Commissioner:
Ruggiero
Dismissal - Employee dismissed for late coming - Dismissal fair.
The commissioner was called upon to determine whether the dismissal of the applicant was substantively unfair. The
applicant, a car washer, was dismissed for late coming. She challenged her dismissal as being unfair.
The applicant testified that she was, on several occasions, late for work due to public transport. She argued that she
was not the only employee who arrived late and that their reasons for late coming was due to public transport.
Whenever she arrived late, she reported to the respondent. The applicant argued that she was unfairly treated
because she was the only person who was issued warnings, and subsequently dismissed. The applicant’s witness also
testified that the respondent was inconsistent in dismissing the applicant, as there were other employees who had
received warning for late coming, but were not dismissed.
The respondent testified that the applicant was continuously late and had received numerous warnings for that. The
operation required the business to work 45 hours a week. The respondent argued that employees and their trade union
never objected to management when they were told that they would be required to start to work at 8h45 to ensure that
they would be ready for duty at 9h00.
Noted: That the applicant was aware of the rule and that she must report for work at 8h45.
Also noted: That the respondent had applied progressive steps of discipline towards the applicant, but she did not
change her conduct.
Held: That the dismissal of the applicant was substantively fair. The application was dismissed.
MISCONDUCT
GAPT8954 - 07 Mahlangu v Hulamin Extrusions - Commissioner: Shandu
Dismissal for misconduct - Employee manhandling and threatening fellow employee - Dismissal unfair.
The applicant was dismissed after he had allegedly pushed and manhandled a fellow employee. He challenged his
dismissal as being unfair.
The applicant testified that on the day in question, he was the first person to arrive at the canteen to buy food. He
claimed that he had held the plate of food and cold drink with both hands when the fellow employee refused to make
way for him. He also claimed that the fellow employee forced her way and the food he was carrying almost fell down.
The applicant also testified that the fellow employee had grabbed him by his clothes and in turn he also grabbed her.
He claimed that the fellow employee had said something which he did not understand as she was laughing at him with
friends. He argued that he did not manhandle the fellow employee but had only removed her hands from him. He also
contended that he was not afforded an opportunity to cross examine the fellow employee during the disciplinary
hearing.
Noted: That the respondent’s witness had testified that the fellow employee did not provoke the applicant.
Also noted: That the applicant had a clean disciplinary record. It was also noted that the respondent had only
disciplined the applicant and not the other employee.
Held: That the applicant had acted inconsistently by taking action against the applicant alone. The dismissal of the
applicant was found to be both procedurally and substantively unfair. The respondent was ordered to pay the applicant
an amount equal to five months’ salary.
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KNDB15968 - 06 BEMAWU obo Pather & Others v SABC - Commissioner: Pillemer
Dismissal - Employees breaching rules - Limiting tenders for employer used vehicles to one vehicle per employee Misconduct having element of dishonesty - Dismissal harsh - Employees manipulated by colleague - Dismissal unfair.
The commissioner was called upon to determine whether the dismissals of the applicants were both substantively and
procedurally fair. The respondent, a public broadcaster, had invited tenders for used motor vehicles from its staff. Each
employee was required to tender for one vehicle. The applicants had tendered on behalf of the transport manager.
After a disciplinary hearing, the applicants were found guilty of misconduct and were dismissed.
They argued that the respondent was inconsistent in its application of discipline because two other employees who had
committed the same offence were not dismissed. They contended that the members of the disciplinary panel were
biased. The applicants also argued that there was no rule prohibiting employees from tendering for motor vehicles on
behalf of another employee. They also contended that there was nothing in the advertisement that alerted them that
they were prohibited from doing so. The applicants claimed that the invitation to tender was not clear, and it had not
complied with the South African Broadcasting Corporation (SABC) sales of fixed assets policy.
The respondent testified that the four applicants had successfully tendered for three motor vehicles. It was discovered
that the applicants had tendered for vehicles on behalf of their transport manager who had paid each applicant an
amount of R1000.00.
Noted: That the advertisement inviting tenders for the purchase of the motor vehicles had made no reference to the
fronting rule but had indicated that employees would be allowed to buy one vehicle per person. The rule against
fronting was not in accordance with the SABC fixed assets policy.
Also noted: That applicants were not the main perpetrators. As the transport manager was a senior employee, he was
able to manipulate the applicants to tender on his behalf. The applicants had a long service with the company and had
clean disciplinary and performance records. It was also noted that members of the disciplinary panel had agreed that
the applicants were manipulated by the transport manager.
Held: That the dismissals of the applicants were harsh. The dismissals of the applicants were, therefore, substantively
unfair. The respondent was ordered to reinstate the applicants.
KNDB371 - 08 NASUWU obo Mthembu v Maxi Phumelela Security (Pty) t/a Maxi Security - Commissioner:
Glober
Dismissal - Employee left his work station unattended - Employee not allowed witnesses to testify during hearing Dismissal unfair.
The applicant was employed as a security guard at the respondent’s client. The client had mentioned that the applicant
had left his work station unattended without notice. It had informed the respondent and the applicant was called for a
disciplinary hearing, found guilty and dismissed. The applicant contended that his dismissal was procedurally and
substantively unfair.
The applicant was advised to return to the respondent’s office as the client no longer required him on site. The
applicant only reported to the office in the afternoon. The respondent testified that it had imposed the sanction of
dismissal because of the seriousness of the offence and the applicant’s aggressive behaviour.
The applicant argued that he did not desert his post nor did he fail to obey the instruction to report to the respondent’s
office. He contended that no witnesses were called to the disciplinary enquiry, and that he had been denied the right to
cross examine those who had submitted statements. He also argued that the presiding officer was biased because he
had done the initial investigation as well as chaired the enquiry.
Noted: That the applicant was dismissed because he was not at the gate. The gate was left open exposing the
respondent’s client to potential losses. It was noted that the client had previously suffered losses.
Held: That the chairperson could not be impartial after having been told what had occurred and chaired the enquiry. It
was held that he had relied on hearsay evidence.
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Also held: That dismissal of the applicant was substantively fair, but procedurally unfair. The respondent was ordered
to pay the applicant one month’s salary as compensation.
GAJB8149 - 08 Madida v ADT Security (Pty) Ltd - Commissioner: Mthethwa
Dismissal - Employee absent from work without notifying employer – Disciplinary hearing held in absentia - Dismissal
fair.
The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and
procedurally fair. The applicant was working as a security guard and was absent from work for three days without
notifying the employer. A telegram was sent to him notifying him to attend a disciplinary hearing, but he did not
respond. A disciplinary hearing was held in absentia, he was found guilty and dismissed.
The respondent’s witness had testified that the applicant did submit a sick note for those three days when he was
absent from work.
The applicant testified that he was absent from work because he was sick. He argued that the respondent had ignored
the fact that he had a sick note as proof that he was sick. He also contended that the respondent had failed to notify
him about the disciplinary hearing as an old address was used to send the disciplinary notice. He further argued that
the respondent should have issued him with a written warning before dismissing him. He claimed that he only received
a letter that advised him to return the respondent’s uniform.
Noted: That the applicant‘s disciplinary record indicated that he had been warned that should he be absent without
notifying his superior again, he would be disciplined and face a dismissal. It was noted that the applicant had a
tendency of unreported absenteeism.
Held: That the applicant had failed to prove that there was any defect in the disciplinary procedures. The respondent
had followed the correct procedure by sending a disciplinary note to the applicant’s last known address. It was held
that the applicant had also failed to prove that he did not receive notice of the disciplinary hearing. The application was
dismissed.
KNDB14809 - 07 Mbambo v Staff Management Services (SMS) - Commissioner: Mathe
Dismissal - Employee left work early without authorisation – Employee threatened by co-worker – Dismissal unfair.
The applicant had left work early without authorisation. He was called for a disciplinary hearing, found guilty and was
dismissed. He challenged his dismissal as being both substantively and procedurally unfair.
The respondent’s witness had testified that the applicant had thought that everyone at work was against him. That it
started when a co-worker, who was under the influence of alcohol, tried to assault him but was able to wrest the plank
off that intoxicated employee.
The applicant had approached his supervisor so that he could be assisted, but the supervisor mentioned that
everything was under control and he must continue working. He left the workplace and he returned the next day. The
applicant testified that the co-worker had told him that his brother would be waiting for him at the station and was going
to kill him. He contended that he left the workplace because he felt that his life was under threat.
Noted: That the applicant’s life was under threat. There was no disciplinary action taken against the employee who
had attempted to hit the applicant. It was noted that the applicant had raised the issue with the supervisor, but nothing
was done.
Also noted: That the co-worker was intoxicated and had provoked the applicant.
Held: That the dismissal of the applicant was substantively unfair. The respondent was ordered to pay the applicant an
amount equivalent to three months’ salary.
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KNPM3352 - 07 Gray v Blackwood Fruit Farm - Commissioner: Ramjathan
Dismissal - Employee dismissed for misconduct - Employee allegedly worked for and promoted products of competitor
during leave - Dismissal unfair.
The commissioner was called upon to determine whether the dismissal of the applicant was unfair. The applicant was
employed for mornings only as a nursery manager. She was dismissed after a disciplinary hearing for misconduct. The
charges laid against the applicant were:


Dishonesty and unethical conduct in that during her leave she had worked for and promoted the products of a
competitor, and
Breach of trust.
The respondent contended that the applicant had applied for leave but had failed to disclose the reasons thereof. It
argued that the dismissal of the applicant was fair because she had breached the obligation of not acting contrary to
her master’s interest. Her contract of employment stated that she was not allowed to participate and assist with open
day activities by selling and advising customers for a third party. The applicant’s conduct in terms of the disciplinary
code was unacceptable.
The applicant testified that she had applied for two days leave. She claimed that she had informed her supervisor
about her involvement in the open day activities. The applicant indicated that there was no payment for her in open day
activities. She testified that the organisers of the open day activities had decided to give her a monetary gift after they
had completed their accounting a week later. The applicant argued that she did not promote any plants for the
organisers and that her duties were to clean and set up, pick and drop off children whose parents were busy, and
making coffee and snacks.
Noted: That the applicant had complied with leave requirements and had divulged her involvement in the annual open
day as she did for the past three years. It was noted that the applicant had a clean disciplinary record.
Also noted: That the applicant was not paid a salary for duties conducted on those two days when she was on leave.
She was offered a monetary compensation as a token of appreciation.
Held: That the applicant did not conduct herself in such a manner as to breach her duty of good faith and honesty
towards her employer. The dismissal of the applicant was both substantively and procedurally unfair. The respondent
was ordered to pay the applicant an amount equivalent to twelve months’ salary.
Case references
Atlas Organic Fertilises v Pikkewyn Ghwane 1991 (2) SA 173 (T)
Orange Toyota v van Der Walt & Others (2000) 21 ILJ 2294 (LAC)
Sappie Novoboard (Pty) Ltd v Bolleurs (1998) 19 ILJ 784 (LAC)
GAPT2253 - 08 Murphy v ABSA Bank - Commissioner: Ferreira
Dismissal - Employee incorrectly advising client to invest in pyramid scheme – Employee acted in conflict with interest
of employer - Dismissal fair.
The applicant was employed as a customer consultant by a financial institution. He was dismissed after a disciplinary
hearing for incorrectly advising the client to invest in a pyramid scheme. The applicant challenged his dismissal as
being procedurally and substantively unfair, and sought reinstatement as a relief.
The applicant denied that he was guilty of any misconduct that warranted a dismissal. He testified that the client came
to visit him as a friend during office hours. During their discussion, the client had mentioned that he had invested some
money in a pyramid scheme. The applicant testified that the client had phoned to inform him that the product was not
good. Later, the applicant received a call from the client informing him that he had invested R300.000-00 in the
scheme. The applicant agreed that he had discussed the product with the client, but he claimed that it was an informal
discussion. And he could not be held responsible if the client had decided to invest money in the product. He argued
that dismissal was harsh, and that there was no reason why his services were terminated.
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The respondent testified that the applicant was employed as a customer consultant. His main responsibility was to
advice clients on various investment options. The respondent’s witness testified that in terms of the Financial Advisory
and Intermediate Services Act no. 37 Act of 2002 (FAIS Act), a person who gives advice to the clients should be
properly accredited. All discussion between the client and the applicant were done during office hours at the
respondent’s office. No private discussions were allowed during office hours at the respondent’s premises. The
respondent’s witness further testified that it was apparent that the applicant would benefit directly from the client
investing in the scheme. The applicant had acted in conflict with the interest of the respondent and could no longer be
trusted.
Noted: That the applicant had obtained accreditation and was properly qualified and trained to provide financial advice
to clients. The pyramid scheme in question was closed down by the South African Reserve Bank some months after
the client invested the monies in the scheme. The client had visited the applicant during office hours. It was noted that
the applicant had advised the client to withdraw money from the respondent and invest it in the pyramid scheme in
question.
Also noted: That it was also noted that the bank could be fined in terms of the FAIS Act for the action of the applicant.
Further noted: That any form of conduct in direct conflict with the interest of the employer could be destructive to the
employment relationship.
Held: That the applicant had a direct interest in the client investing the money in the scheme. The applicant had acted
contrary to the interest of the respondent and was trying to benefit for himself at the respondent’s expense.
Also held: That the actions of the applicant had exposed the respondent to huge financial claims from the client in
terms of the FAIS Act. The applicant’s dismissal was, therefore, substantively fair. The application was dismissed.
Case references
Nasionale Parkeraad v Terblanche (1999) 20 ILJ 1520 (LAC)
Nedcor Bank Ltd v Jappie (1998) 10 BLLR 1002 (LAC)
NUM & Others v Free State Consolidated Gold Mines (Operational) Ltd (1995) 12 BLLR 8 (AD)
Standard Bank of South Africa Ltd v CCMA & Others (1998) 6 BLLR 622 (LC)
Toyota South Africa Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC)
WE5337 - 08 Salie v Neverlost CC - Commissioner: Mofsowitz
Dismissal - Employee reported late for work and left early - Dismissal fair.
The applicant was dismissed for misconduct relating to alleged lateness and leaving work early. She challenged her
dismissal as being both substantively and procedurally unfair, and sought compensation as a relief.
The respondent testified that the applicant had abandoned her post on the day in question. It contended that the
applicant had agreed that she had arrived late and left early. The respondent tried to contact her, but had failed to
reach her. The respondent claimed that the applicant had admitted that she was guilty and had agreed that she had
lost interest in her work.
The applicant contended that she had been charged with an offence that had been previously dealt with. She argued
that she was punished twice for the same offence.
Noted: That the applicant was charged for not reporting for duty. The charges against the applicant were serious to
warrant dismissal.
Held: That the applicant was aware of the respondent’s rules and had deliberately breached them. The dismissal of
the applicant was held to be both procedurally and substantively fair. The application was dismissed.
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GAPT4094 - 08 Tlhwaela v Penguin Pools - Commissioner: Mantyi
Dismissal - Employee dismissed for gross misconduct - Employee made death threat to colleague - Dismissal fair.
The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and
substantively fair. The applicant was dismissed for gross insubordination. He challenged his dismissal as being unfair.
The respondent testified that the applicant had borrowed an amount of R300.00 from his manager, promised to repay it
when he got paid but he did not do so. When the manager confronted him, he became aggressive and swore at him in
full view of the respondent’s clients. The manager had tried to calm him down, but to no avail. He was informed that he
would be issued with a warning if he continued shouting at the manager in front of the clients. The applicant responded
by saying that he would kill the manager should he issue him with a warning.
The applicant testified that he had requested for extension of the payments of the loan with another week. The witness
and the manager started shouting at him for non-payment of the loan. They told him that they could not trust him as he
was still new in the branch. The applicant argued that he had been with the company for eight years, and had a clean
disciplinary record.
Noted: That after the applicant’s dismissal, he was advised of his rights to refer his case to the CCMA.
Held: That the respondent‘s witnesses were reliable and their testimony was supported by the minutes of the
disciplinary hearing.
Also held: That the dismissal of the applicant was both procedurally and substantively fair. The application was
dismissed.
FS2337 - 07 Solidarity obo Pienaar v JD Group Ltd t/a Joshua Doore – Commissioner: van Aarde
Dismissal – Employee inflated sales figures - Employee allegedly dismissed twice - Dismissal fair.
The applicant was employed as a business manager at a furniture retail shop. He was dismissed for breaching the
company procedures and misuse of power. The applicant challenged his dismissal as being unfair.
The applicant contended that he was not afforded proper training for his job and that he did not know the rules of the
company. He argued that as a branch manager, he was supposed to have attended training so that he could be able to
execute his duties properly. The applicant contended that he had a clean record and that he was not afforded enough
time to prepare for his case and that the respondent had acted inconsistently in its application of discipline.
The respondent submitted that there were procedures to be followed when a client buys on credit. It also submitted
that for each sale there are four people who are supposed to sign the documents or delivery note. The applicant had
failed to follow the correct procedures in that none of the four persons had signed the required documentation. It
argued that there was no proof that the goods were delivered to the customer. It contended that the applicant had done
so to inflate sales figures.
Noted: That the applicant was afforded the opportunity of an interpreter during the disciplinary hearing. It was noted
that there was no time when the applicant had objected that he could not follow the proceedings nor did he object to
the correctness of the duplicate documents served on him. The applicant had testified in English that showed that he
understood the process.
Also noted: That the applicant had failed to observe the standing transactions policy of the company. There was no
proof that the applicant was not trained for the position.
Further noted: That the applicant had fabricated the transactions. It was further noted that the applicant was in the
position of trust and was in control of the branch activities.
Held: That there were no merits in the applicant’s argument that the presiding officer of the disciplinary hearing was
biased. His dismissal was found to be fair. The application was dismissed.
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Case references
Maliwa v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC)
Metro Cash & Carry v Tshehla (1997) 1 BLLR 35 (LAC)
Nel v Ndaba & Others (1999) 20 ILJ 2666 (LC)
NUM v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC)
SACCAWU v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC)
Staff Association for the Motor & Related Industries v Motor Industry Staff Association & Others (1999) 20 ILJ 2552
(LAC)
NEGLIGENCE
GAPT5851 - 07 Montshioa v NUMSA - Commissioner: Maree
Dismissal - Union legal officer dismissed for giving members wrong advice and representing fellow employee against
his employer - Evidence indicated that members acted on advice of shop stewards - Dismissal unfair.
The applicant was employed as a regional legal officer by a trade union. He was dismissed for gross negligence in that
he had allegedly provided union members’ with wrong advice. He was also charged with insubordination after he had
represented a trade union employee in a disciplinary proceeding initiated by the union.
The respondent alleged that the applicant gave wrong advice to its members and that had led the dismissal of 48
members. The applicant was supposed to obtain legal advice from the respondent’s national office before advising
members.
The applicant testified that some shopstewards had approached him for advice. He contended that he had contacted
and informed the regional secretary about the matter. He also contended that the disciplinary proceedings against him
had not been properly authorised in terms of the respondent’s constitution. He argued that the disciplinary action
should have been conducted by the respondent’s regional office and not the national office.
Noted: That the main responsibilities of the applicant were to represent the respondents’ members and to ensure that
the respondent’s best interests were served. The applicant had obtained permission to represent the respondent’s
members from the regional secretary.
Held: That the charge of gross negligence was not supported by evidence.
Also held: That the applicant’ dismissal was substantively unfair but procedurally fair. The respondent was ordered to
pay the applicant compensation equivalent to nine months’ salary.
Case references
Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC)
Blaikie & Co Ltd v Yeomans (1992) 1 LCD 5 (LAC)
Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC
PUBLIC HOLIDAY
LP7537 - 07 Shaku v Badirammogo Labour Services – Commissioner: Mello
Public holiday - Applicant refused to work on public holiday – Respondent refused to take part in arbitration citing
agreement to private arbitration – CCMA assumed jurisdiction in terms of s 147 of LRA - Respondent ordered to
compensate applicant.
The applicant alleged an unfair dismissal dispute. The respondent, a labour broker, challenged the CCMA jurisdiction
claiming that the applicant had agreed in his contract of employment that any dispute concerning termination of his
contract of employment should be resolved through private arbitration. The commissioner ruled that s 147 of the LRA
enables and empowers the CCMA to perform dispute resolution functions in exceptional circumstances. The
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respondent was dissatisfied with the ruling and walked out. The arbitration hearing proceeded in the absence of the
respondent.
The applicant alleged that the respondent’s client dismissed him after he had refused to accept a written warning for
refusing to work during a public holiday. He claimed that there was no prior agreement that he would be required to
work on a public holiday, and he, therefore, refused to work when the client insisted he should work on the said day.
The respondent had refused to present its side of the matter, claiming that it had entered into an agreement with the
applicant to the effect that any dispute concerning termination of his contract of employment should be resolved
through private arbitration.
Noted: That in terms of s 192(1) of the LRA, the employee must establish the existence of the dismissal, while s 192(2)
provides that if the employee has proved that he or she has been dismissed, the respondent shall bear the onus to
prove that the dismissal was fair. The commissioner, therefore, noted that the applicant had succeeded in proving that
he had been dismissed.
Held: That the respondent must pay the applicant an amount equivalent to seven months’ salary. The commissioner
held that the amount should accrue interest in terms of s 143(2) of the LRA.
RESIGNATION OR DIMSISSAL
GAJB2053 - 08 Masondo v Foschini - Commissioner: Shear
Dismissal - Employee tendering resignation and retracting it – Employee alleged she was dismissed - No proof of
dismissal.
The commissioner was called upon to determine whether the applicant was unfairly dismissed. After she had
disagreed with her manager, the applicant tendered a resignation and she withdrew it three days later. The applicant
argued that she was dismissed as the respondent did not want to offer her work back. She contended that her contract
of employment obliged her to give two weeks notice if she wanted to resign. The applicant thought that as she was
supposed to give two weeks notice, she was still an employee when she retracted her resignation. She also argued
that the respondent was supposed to reject or accept her resignation, but the respondent did not communicate with her
until she retracted her resignation.
The respondent had confirmed that the letters of resignation and retraction were both received. The applicant was
refused to report for duty as she had already resigned.
Noted: That the applicant did not offer to tender her resignation pending the resolution of the purported dispute
between herself and the manager. The applicant had resigned and the letter of resignation was clear, unambiguous
and not subject to any condition.
Also noted: That an employee does not require the consent of an employer to resign. The employer is not required to
confirm whether it accepts the employee’s notice of termination. The notice itself is a fait accompli, it does not require
acceptance. It was noted that the applicant gave 24 hours’ notice.
Held: That if the applicant thought she was forced to resign, she would have pursued a case of constructive dismissal.
It was held that the applicant was not dismissed, but she resigned on her own free will. The application was dismissed.
Case references
Morna v Commission on Gender Equality (2001) 22 ILJ 352 (W)
Wyeth SA (Pty) Ltd v Manqele & Others (2005) 26 ILJ 749 (LAC)
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GAPT3169 - 08 Marumo v Vorster - Commissioner: de Wet
Dismissal - Employee absent for three months.
The applicant was employed as a general worker at the time of his dismissal. He challenged his dismissal as being
both substantively and procedurally unfair.
The applicant testified that he had applied for leave after his girlfriend had passed away and it was granted. A week
later, the respondent asked him to return to work. The applicant indicated that according to his tradition, it was
impossible to return to work. He claimed that the respondent gave him an ultimatum that he either return to work, or
another person would be appointed in his position. He also claimed that he had called the respondent enquiring about
returning to work, but he was told to come and collect his belongings.
The respondent testified that the applicant had asked for permission to attend a funeral of his girlfriend and also
requested for a loan of R2000.00 for the funeral. It claimed that after the loan was granted, the applicant had
disappeared.
Noted: That the applicant was ready to return to work. It was noted that the applicant was never informed that he was
dismissed.
Held: That when the applicant learnt that someone had already occupied his position, he took his belongings and left.
There was no proof of termination of employment. The application was dismissed.
GAJB11429 - 08 Mariba v FCPM– Commissioner: Masote
Dismissal - Theft and unauthorised possession of company goods – No proof of dismissal.
The commissioner was called upon to determine whether the applicant was dismissed or had resigned. The applicant
challenged his dismissal as being both procedurally and substantively unfair, and sought reinstatement as a relief.
The applicant testified that he was given a gift of copper cable by one of the engineers who was working for a
contractor where the respondent party was also rendering services. He and another employee were found in
possession with copper cable and they were accused of unauthorised possession of company property. The applicant
claimed that he was given a letter of resignation to sign and he did so unwillingly. The colleague who was also found in
possession of the copper, was not disciplined. The applicant argued that the resignation letter was used as a way to
dismiss him.
The respondent testified that it was contracted by a financial institution to dismantle and strip old offices and ablusions.
It contended that prior to commencement with work, a meeting was held with all employees not to remove any item
from the site regardless of its value. This was due to the fact that some employees were caught removing items without
authority. The respondent mentioned that it had received information that the applicant was in possession of copper
which he had removed from the site. One employee was found in possession of the copper was charged, pleaded
guilty and was given a final written warning. It further testified that when the respondent intended to take disciplinary
action against the applicant, he choose to resign.
Noted: That the applicant had failed to reveal the name of the engineer who had offered him copper.
Held: That the applicant‘s claim that he was forced to resign was unfounded. The application was dismissed.
KNPM1169 - 08 Funeka v Abookaker – Commissioner: Jenkin
Dismissal - Employee injured on duty - Employee not provided with money for transport to hospital - Claim of
dismissal- No proof of dismissal.
The applicant had been employed as a gardener on weekends when there was work to be done. She claimed that she
was unfairly dismissed.
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The applicant contended that on one of the Sundays while working, a piece of glass got into eye. She also claimed that
the respondent had refused to give her money for transport to the hospital. She then went away as she thought her
services were no longer required.
The respondent contended that on the day in question, the applicant did not complain of an injury. It argued that about
two weeks later, the applicant came to its home and complained of pain in her eyes. Two weeks later, it had received a
referral about an alleged unfair dismissal.
Held: That the applicant had failed to prove that a dismissal had occurred. It was held that the applicant had thought
that she was dismissed because the respondent told her that it did not have a taxi fare. The application was dismissed.
SEVERANCE PAYMENT
GAJB7667 - 08 Lebea v Dan Quin Services – Commissioner: Masote
Entitlement to severance payment.
The applicant, security officer, was retrenched and alleged that he was not paid his severance pay.
The respondent testified that he had bought the company from a third party and argued that the third party was,
therefore, liable for the applicant’s severance pay. It claimed that it had paid the applicant his basic salary, notice pay
and leave pay.
Noted: That the applicant was retrenched and not paid his severance pay.
Held: That the applicant was entitled to severance pay. The respondent was ordered to pay the applicant his
severance pay.
SUSPENSION
WE440 - 08 Sinclair v SA Post Office Ltd – Commissioner: Brown
Suspension - Employee suspended without pay - Employee claimed unfair labour practice - No proof of unfair labour
practice.
The applicant was employed as a transport controller at the time of his suspension. He was charged with prejudicial
conduct and was suspended without pay. He alleged that his suspension had constituted an unfair labour practice.
The respondent witness testified that he was requested to formulate charges against the applicant by senior
management. The applicant had attended a disciplinary hearing and pleaded not guilty. However, he was found guilty
and a sanction of two weeks suspension without pay was imposed. He also testified that the applicant had agreed to
the suspension and had thanked all the people who were present at the hearing.
The applicant contended that he was in a managerial position, his suspension would impact on receiving and
dispatching of mail.
Noted: That the applicant had showed remorse. He submitted that he had a long service and a clean disciplinary
record.
Also noted: That the applicant had pleaded guilty to the charge of prejudicial conduct as he had failed to comply with
procedures. The respondent’s disciplinary code which the applicant was aware of provided that the sanction for that
conduct was dismissal or a final written warning. It was noted that the applicant had freely and voluntarily agreed to the
sanction of suspension of two weeks without pay.
Held: That the applicant’s suspension did not constitute an unfair labour practice. The application was dismissed.
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GAJB12695 - 08 Ndanduleni v ADT Security Company – Commissioner: Makhubela
Suspension - Employee suspended without pay - Employee claimed unfair labour practice - Suspension unfair.
The applicant, a security guard, was suspended without pay for allegedly being absent from work. He challenged his
suspension as being unfair and sought compensation as a relief.
The applicant testified that on the day in question, he had received a call that his sister had passed away. He claimed
that he had informed his supervisor, so that he could seek a replacement. The applicant mentioned that when he later
reported for duty, he was instructed not to work but to go and see the area manager. He testified that he went to the
area manager and gave him proof and explained what had happened, but the area manager refused to accept that.
The area manager instructed the applicant’s supervisor that he must not be posted to any site. He was informed that if
he worked, he would not be paid.
The respondent’s witness testified that when the applicant was requested to see the area manager, he became violent
and said that they would meet at the Department of Labour. He testified that he never told the applicant not to report
for duty nor had suspended him. The respondent’s witness also testified that people who were a threat to the company
were suspended.
Noted: That the respondent’s area manager had suspended the applicant after he had refused to make a statement
regarding his absence.
Held: That the applicant was suspended as he was not posted to a workstation on the day in question.
Also held: That the suspension of the applicant was unfair. The respondent was ordered to pay the applicant for the
period of his suspension including the day of the arbitration.
THEFT
WE11614 - 07 Ngakane v Steffen t/a Snack Express – Commissioner: Brown
Dismissal - Theft and unauthorised possession of company goods - No evidence of theft.
The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was
employed as a salesperson at the respondent’s kiosk at the railway station. When the respondent noticed that his
takings were down by R8000.00, he suspended the applicant.
The respondent argued that it had suspended the applicant for two weeks in order to conduct a forensic audit. When
the applicant could not account for an amount of R2.500 she was dismissed.
The applicant contended that her dismissal had been both procedurally and substantively unfair as there was no
disciplinary hearing.
Noted: That the applicant was suspended without pay for two weeks. It was noted that the respondent had failed to
produce any proof of theft against the applicant. Furthermore, the respondent had failed to afford the applicant an
opportunity to give her side of the story.
Also noted: That the respondent did not have a proper stock taking system. It did not manage cash of its business on
a daily basis. The respondent had admitted that its cash takings were placed in plastic bags, which were collected on
an informal basis.
Held: That the dismissal of the applicant was both procedurally and substantively unfair. The respondent was ordered
to pay the applicant an amount equal to six months’ salary.
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LP6138 - 07 Munyai v Thohoyandou Spar– Commissioner: Negota
Dismissal - Theft and unauthorised possession of company goods - Employee apprehended with stolen goods Dismissal fair.
The applicant was employed as a cleaner. She was dismissed for stealing a roll-on. She challenged her dismissal as
unfair.
The security guard employed by the respondent alleged that she had found roll-on underneath the applicant’s clothing.
She claimed that the applicant had attempted to bribe her with a R20.00 note, but she refused and recorded the money
in the occurrence book. The applicant was called to a disciplinary hearing, found guilty and was dismissed for theft and
dishonesty. The respondent testified that the applicant’s intention to bribe the security guard was proof that she was
guilty.
The applicant argued that the charge was formulated in a language that she did not understand. She contended that
she had never been reprimanded for misconduct prior to her dismissal.
Noted: That the applicant was dismissed for dishonesty related to stealing the roll-on and for attempting to bribe the
security guard.
Also noted: That gross dishonesty constituted a serious dismissible offence. It was also noted that the applicant had
voluntarily pleaded guilty to the charge as she had asked for forgiveness in her statement.
Held: That the dismissal of the applicant was both procedurally and substantively fair.
Case references
Early Bird Farms (Pty) Ltd v Mlambo (1997) BLLR 541 (LAC)
News Agency (Pty) Ltd v CCAWUSA (1991) 12 ILJ 340 (LAC)
NC1796 - 07 NUM obo Morapedi v Hotazel Manganese Mine– Commissioner: van Eck
Dismissal –Theft and unauthorised possession of company goods - Employee caught in possession of mineralDismissal fair.
The respondent is a mining company that operates and conduct mining. The applicant was found in possession of
wesselite (an underground mineral) by a security guard at the gate. He was called to a disciplinary hearing, found guilty
and was dismissed. He challenged his dismissal as being substantively unfair.
The applicant claimed that he had been framed by the respondent’s security guards. He argued that he had never
heard of wesselite and did not know what it looked like.
The respondent testified that it had problems with the removal of wesselite from the mine by its employees. It testified
that employees were enriching themselves by selling wesselite.
Noted: That the applicant had been apprehended while leaving the gate with a packet of minerals in his pocket. It was
noted that the mineral found in the applicant’s possession was of a high value.
Held: That the applicant was guilty of being in unauthorised possession of company property. His dismissal was,
therefore, found to be substantively fair.
KNDB14955 - 07 Keet v Doves Funeral Directors– Commissioner: Lyster
Dismissal – Misappropriation of company funds - Employee dismissed for using company funds for unauthorised
purpose - Employee failed to follow established procedures and regulations - Dismissal fair.
The applicant was employed as a receptionist at a funeral parlour. She was charged with misappropriation of funds
and was dismissed. The applicant contended that the dismissal was substantively unfair. She also contented that the
sanction of dismissal was harsh.
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The applicant testified that she had mistakenly recorded the money as R22.00 whereas it was R220.00 that had been
paid. She contended that she did not fill in the cash control form and that she had banked the money as she would
have normally done.
The respondent testified that the applicant had dealt with huge amounts of money on a daily basis and that it was
essential that cash be properly recorded. It also testified that any over or under payment should be recorded in the
cash control form, which all staff members were taught how to use.
Noted: That the applicant did not dispute that she was aware of the company rule that any under or overpayment of
cash had to be recorded on a cash control form. It was noted that the respondent had produced a number of unrelated
cash control forms which showed the applicant’s signature and that she had used those methods in the past.
Held: That the applicant had unlawfully misappropriated the funds and paid it back thinking that no action would be
taken against her. It was held that the applicant had breached a reasonable rule which she was aware of. The trust
relationship between the applicant and the respondent had broken down.
Also held: That dismissal was an appropriate sanction. The application was dismissed.
GAJB42413 - 07 Joseph v Central Johannesburg College – Commissioner: Mathebula
Unfair dismissal – Theft – Applicant accused of various charges relating to theft – Security had been lax – Dismissal
unfair.
The matter was referred as an alleged unfair dismissal dispute related to misconduct.
The respondent submitted that the applicant was dismissed for gross insubordination and gross negligence. Eight
charges had been proffered against him, but he was found guilty on five of them. The charges related to:





Failure to answer his company subsidised cell phone,
Failure to carry out an instruction issued by the Director,
Failure to report a damaged alarm system of anchor secure,
Failure to carry out an instruction given by the registrar-corporate services to transport computers, which resulted
in the loss of 59 computers, and
Failure to report a plumbing machine that disappeared from the student’s residences.
The applicant denied commission of the alleged offences. He claimed that he had been appointed as a cleaning
manager, but had acquired extra responsibilities in managing extra casual employees, assisting in payroll, and
overseeing security due to the dismissal of the security manager. The applicant also claimed that security had been
lax. His superior knew that access keys were kept by several people, but did nothing to address that. He further denied
that he had failed to answer his cell phone.
Noted: That none of the respondent’s six witnesses had testified. Therefore, the commissioner noted that the
respondent’s representative’s testimony had been hearsay.
Also noted: That the applicant’s direct superior had been aware of the difficulties he had with the keys. According to
the commissioner, that demonstrated their approval of extra security personnel for that purpose. The commissioner
also noted that the applicant’s evidence showed that security was lax and the keys were kept by a number of people.
Further noted: That the applicant had reported the alarm system to his superior and to the security personnel, which
also resulted in extra security. The commissioner further noted that the applicant had testified that he was not in charge
of plumbers and he did not know about the loss of the machine until he received the charge sheet.
Held: That the dismissal of the applicant had been unfair. The respondent was ordered to reinstate the applicant, and
to pay compensation.
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KNDB12896 - 07 Mngomezulu v Chanel Forms CC – Commissioner: Ngwane
Unauthorised possession – Applicant packed marked and unmarked clothing – Failed to prove she was not intending
to steal - Dismissal fair.
The applicant worked as a domestic employee for a home-run printing business, Chanel Forms cc, owned by Mr & Mrs
Perumal. On 29 October 2007, Chantal Perumal and the applicant entered an agreement that the applicant would sell
Perumal’s used baby clothes. Perumal asked the applicant to get the baby clothes to be sold from the baby’s bedroom
to the lounge where Perumal would mark those that had to be sold. Whilst both parties were still busy marking and
packing baby clothes in a bag, the telephone rang and Perumal went to answer it.
When Perumal returned from answering the phone, she found the applicant in the kitchen with the bag full of clothes
and noticed that some of the clothes in the applicant’s possession were unmarked. The applicant was asked to leave
the bag and return the following day so that the parties could talk about the incident. She was, subsequently, dismissed
for dishonesty in that she was found in possession of property that belonged to the respondent.
The applicant admitted that she was the only person who had packed the bag and she further admitted that there were
unmarked clothing items in the bag but she did not know how those clothes had found their way into her bag. She
challenged the fairness of her dismissal and sought two weeks compensation. The respondent had insisted that the
applicant had been fairly dismissed for dishonesty and asked for her dismissal to be upheld.
Noted: That the applicant had admitted that she was the only person who packed her bag with baby’s clothes, and that
unmarked clothes had been found in her possession.
Also noted: That the applicant’s failure to account for the unmarked clothes in her bag raised the probability that her
intention was to take them for herself without the authority of her employer.
Held: That the sanction of dismissal was within the range sanctions that the employer could impose on its employee
for such misconduct. The applicant’s dismissal was found to be fair, and the application was dismissed.
GAPT9902 - 07 Ndlovu v Dishem Pharmacy – Commissioner: Mohlala
Dismissal – Theft and unauthorised possession of company goods – Employee failed to follow company rules –
Employer failed to proof theft - Dismissal unfair.
The applicant was dismissed for alleged unauthorised possession of company property and failure to follow company
rules. She challenged her dismissal as being unfair and sought reinstatement as a relief.
The respondent testified that the applicant did not provide proof of purchase for the goods that she had in her
possession. The applicant had a final written warning relating to the same incident and product. The respondent
claimed that the product that the applicant was in possession of was sold in the same shop where she was working. It
also claimed that the cameras in the shop did not show that the applicant had paid for the goods. It further testified that
the procedure regarding the non declaration rule applied to all its employees.
The applicant testified that when she knocked off on the day in question, the security guard had found a packet of
tissues in her bag. She claimed that she had forgot to declare them in the morning but had bought them in the same
shop. The applicant was then summoned to the camera room to produce the purchase slip, but she did not know
where it was. She had testified that she normally did not retain slips.
Noted: That the respondent had relied only on the policy that stated that goods that had not been cancelled by the
security guard would be seen as unauthorised possession of company goods. It was noted that the respondent had not
proved that the property in the applicant’s possession belonged to it.
Held: That the dismissal of the applicant was unfair. The respondent was ordered to reinstate the applicant and pay
her an amount equivalent to a month’s salary as compensation.
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CCMA Research Unit: Operations & Information Department (Head Office)
ECPE3918 - 07 Schoeman v Prestige Cleaning Services (Pty) Ltd – Commissioner: Botha
Dismissal – Theft and unauthorised possession of company goods – Dismissal fair.
The respondent provides industrial cleaning services to a number of clients. The applicant, a cleaner, who was based
at the student village of the campus, was dismissed for alleged theft. She challenged her dismissal as being both
procedurally and substantively unfair.
The respondent testified that one of the students had reported to the security guard that there were missing items in his
room. The security guard conducted a search for those items and got them in the staff room. It was submitted that only
supervisors were allowed to remove items in the students’ rooms. The items would then be handed to the hostel
superintendent. It was also submitted that management had drafted a memorandum that no items should be removed
from students’ rooms. It contended that management memorandum was put on the notice board. Cleaners were not
allowed to clean the rooms during school terms, but only once the students had vacated the rooms for holidays. The
respondent also testified that the applicant was aware of the practice.
The applicant agreed that she had removed the student’s items from the room in order to put them in a safer place.
She testified that the owner of the items did not want the respondent to lodge an investigation, but only to issue a
warning.
Noted: That the applicant was not honest in her testimony. It was noted that she had failed to answer key questions
during cross examination.
Held: That the applicant did not have permission to enter the student’ room and remove items. She was therefore,
guilty of unauthorised removal and possession of items not belonging to her.
Also held: That the sanction of dismissal was appropriate. The application was dismissed.
Case reference
De Beers Consolidated Mines Ltd v CCMA & Another (2000) 21 ILJ 1051 (LAC)
UNFAIR DISMISSAL
WE10231 - 07 White v Pinnacle Point Investment (Pty) Ltd - Commissioner: du Plessis
Unfair dismissal - Employee dismissed for alleged dishonesty - Employer not attempting to determine truth of the
allegations - Dismissal unfair.
The applicant was employed as a chief executive officer by a financial institution. After his appointment, the
respondent’s main banker and the applicant’s former employer, had informed the respondent that it was no longer
prepared to do business with it while the applicant was in its employ. The respondent then suspended the applicant
with full pay. That was done because the previous employer had mentioned that the applicant’s name was placed on a
financial sectors register of employees’ dishonesty system (REDS). The respondent dismissed the applicant without a
hearing. The applicant challenged his dismissal as being both substantively and procedurally unfair.
The respondent claimed that when it suspended the applicant, it had expected that the dispute between the applicant
and his former employer would be resolved. It claimed that it did not know that the applicant’s name was placed on the
REDS list. If it had known that the applicant’s name was on the REDS list, it would not have employed him in the first
place.
The applicant testified that he had told the respondent that the previous employer’s forensic auditors were investigating
him about their client’s money which was deposited into his bank account. He also testified that had informed the
respondent that his name had been listed on the REDS list.
Noted: That the respondent did not attempt to launch its own enquiry after the applicant’s suspension and did not
convene a disciplinary hearing before dismissing him.
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Selected CCMA Arbitration Awards Summaries: January – June 2008
CCMA Research Unit: Operations & Information Department (Head Office)
Also noted: That the applicant had been suspended after working for nine days. He had not been charged with any
specific form of dishonesty.
Held: That when the respondent was confronted with a demand by the third party that the applicant be dismissed, the
respondent was bound to assess the nature and implications of the third party’s threat. The respondent did not exhaust
all the alternatives and there was no evidence to show that dismissal was the only option.
Also held: That the dismissal of the applicant was both substantively and procedurally unfair. The respondent was
ordered to pay the applicant an amount equivalent to three months’ salary.
Case references
Ferodo (Pty) Ltd v De Ruiter (1993) 14 ILJ 974 (LAC)
Hoffman v South African Airways (2000) 21 ILJ 235 (CC)
Lebowa Platinum Mines Ltd v Hill (1998) 19 ILJ 1112 (LAC)
Metal & Allied Workers Union & Others v Siemens Ltd (1987) 8 ILJ 117 (IC)
GAJB24102 - 05 Ranft v SAA (Pty) Ltd– Commissioner: Phala
Dismissal – Employee engaged on condition that he pass competency test - Employee fail test - Employment contract
terminated - No proof of dismissal.
The applicant, a commercial pilot, was employed by the respondent as a first officer and was dismissed after failing a
routine flying test. He claimed that the instructors that tested him had deliberately manipulated the test against him as
he was a “political appointee”. He also claimed that after he had referred a dispute to the CCMA, he was offered a new
appointment. One of the requirements of the new post was that he must undergo further series of flying tests. He had
failed tests and his contract was terminated. He contended that his dismissal was both procedurally and substantively
unfair.
The applicant testified that he was a qualified commercial pilot for both aeroplanes and helicopters. He was appointed
by SAA in May 2003. Subsequent to that, the respondent had put together an induction package to give the applicant a
background of what the company did. The applicant also testified that at time rumours were circulating that he was a
political appointee and that had caused his training to take longer than normal. He was then told that his contract was
terminated due to incapacity. The applicant requested a further opportunity for assessment, but the testing committee
rejected his proposal. He argued that the respondent did not do enough to assist him. The applicant claimed that by
the time he did his final assessment, he was nervous, worried about his examinations and his ailing daughter.
The respondent testified that the applicant was granted enough time for training. According to the respondent, the
applicant was rejected because he had been trained for several skills tests but had failed. It argued that the applicant’s
problems were with regard to general flying.
Noted: That an agreement was reached between SAA and the applicant that the instrument rating assessment would
be performed by a panel of examiners chosen by the flight training centre. It was also agreed that if during the
instrument rating assessment the applicant is assessed as being incompetent, his services would be terminated.
Also noted: That the applicant had objected to the examination pilots only after he had failed the test.
Held: That the applicant had accepted reinstatement on condition that he would pass the tests.
Also held: That the applicant’s services had, therefore, been terminated in terms of the agreement after he had been
declared incompetent. The application was dismissed.
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Selected CCMA Arbitration Awards Summaries: January – June 2008
CCMA Research Unit: Operations & Information Department (Head Office)
GAJB15422 - 06 Labuschagne v SAA (Pty) Ltd - Commissioner: de Wet
Unfair dismissal - Employee dismissed for signing credit card payments without checking validity of claims - Employee
charged year after been suspended pending disciplinary action - Employee took elementary precautions and reported
suspicion to responsible managers - Dismissal unfair.
The applicant, a chartered accountant, was employed by the respondent as an executive manager for information
services. She was dismissed for failing to notice irregular and unsubstantiated claims on company credit cards.
The applicant testified that it was never explained to her that she must redo the work of another department. She
contended that she had two departments that she had to supervise and she would, therefore, not be able to redo the
work of another department. The applicant explained that her primary responsibility when authorising was to ensure
that the payment was valid, payable and that there was something to indicate that verification took place. She
explained that the difference in payment as per the statement was as a result of the previous month’s payment not
reflecting on the statement. The applicant testified that she had reported the matter to her supervisor.
The respondent’s witness testified that he had conducted investigations that showed that no reconciliations were
performed. It was found that the Diner’s Club cards were still in use whereas the owner of the card had already left the
service of the respondent. He pointed out that all proper source documents were not attached to the statements, which
was necessary for proper authorisation. The respondent’s witness alleged that the applicant had signed documents
which were submitted for authorisation, and as a result, interest had accrued without the employee initiating any
preventative measures to avoid such accruals.
Noted: That other employees who had played a role in the process of authorisation were not dismissed.
Also noted: That the applicant was charged a year after her suspension. It was also noted that she was excluded from
any bonus and was not allowed to look for alternative employment during that period.
Held: That a disciplinary hearing was supposed to be effected as soon as possible and the delay by one year was
excessively long.
Also held: That the dismissal of the applicant was, therefore, both substantively and procedurally unfair. The
respondent was ordered to pay the applicant an amount equivalent to ten months’ salary.
Case references
Gcwensha v CCMA & Others (2006) 3 BLLR 234 (LAC)
SACCAWU & Others v Irvin & Johnson Ltd (1999) 20 ILJ 2302 (LAC)
UNFAIR LABOUR PRACTICE
GAJB32701 - 07 PGEASA obo Rakuba & Others v Shades of Ngwenya Glass - Commissioner: Ramushowana
Unfair labour practice - Failure to appoint, promote, reinstate or re-employ – Demotion - Employees demoted after
being implicated by colleague - Employees failed polygraph tests - No evidence to prove employees were guilty of
misconduct - Demotion unfair.
The applicants were working as sales assistants (cashiers) when they were demoted to become general workers. This
happened after a colleague had confessed to stealing from a till. That a colleague alleged that it was a general practice
among the staff members to take money from the till. After demotion, their wages remained the same, but they did not
receive commission any more. The applicants contended that their demotions constituted an unfair labour practice.
The respondent testified that one of the applicants had stolen an amount of R570.00 from a customer and that led to
the investigation. That the applicant had admitted stealing money, and had divulged that it was a normal practice as
other cashiers were also doing the same thing. It testified that the applicants were called for questioning, and were
later subjected to a polygraph test. When the results came back, applicants were demoted. The respondent argued
that the demotion was effected to avoid dismissals as the applicants were in positions of trust.
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Selected CCMA Arbitration Awards Summaries: January – June 2008
CCMA Research Unit: Operations & Information Department (Head Office)
The applicants mentioned that they were called by the respondent, and were told that one of the applicants had
admitted that she stole money from the till and that she had implicated them. They were never subjected to a
disciplinary enquiry regarding charges. They claimed that they were told not to inform their shopsteward about their
demotion. The employee representative testified that she was not aware that the applicants had been demoted. She
claimed that she saw them working on a different workstations as general workers. She was not aware if any
disciplinary hearing being held.
Noted: That the respondent had failed to prove that there was a disciplinary hearing. It had, however, claimed that it
had conducted a meeting with the applicants to inform them that one of their colleagues had implicated them in an
alleged theft.
Also noted: That the respondent had testified that the demotion of the applicants was based on the results of the
polygraph tests.
Held: That the polygraph test results would be accepted as reliable evidence only when it support certain evidence
adduced by parties.
Also held: That the applicants’ demotion had amounted to unfair labour practice and was both substantively and
procedurally unfair. The respondent was ordered to reinstate the applicants.
GAJB9597 - 08 SATAWU obo Mvilapa & Others v Bosasa Security (Pty) Ltd - Commissioner: Ngwenya
Unfair labour practice - Demotion - Employee refused to be posted to site - No proof of demotion
The applicant was employed as a security guard. He challenged his demotion as being an unfair.
The applicant testified that he had received information that his father had passed away. He sought, and was granted,
both annual and compassionate leave by the respondent. When he returned from the funeral, he had found that the
respondent had replaced him with another security guard. He claimed that he also found that his firearm was disposed
off and his firearm allowance was discontinued. The applicant contended that the respondent had refused to post him
to another shift.
The respondent disputed the applicant’s version that he was demoted. He argued that the applicant was posted to the
same site that he used to work at on the same terms and conditions but on a different shift. The respondent testified
that in terms of the service agreement with the service provider, the site had to be monitored for 24 hours every day of
the week, and another guard had to be found to fill the applicant’s post while he was away for the funeral. It contended
that the applicant was not prejudiced as he was offered a similar post on a different shift on the same site. The
respondent also contended that the applicant was demanding the same shift. There was no other site that the
respondent could offer the applicant.
Noted: That the applicant’s complaint was the discontinuation of a firearm allowance. The firearm allowance was
offered to security guards who were manning a site that required a guard to carry a firearm. It was noted the applicant
had refused to be posted to a site where there was a need for a firearm, therefore, there was no need for the applicant
to receive a firearm allowance.
Held: That the applicant had refused a reasonable posting to a site. It was held that the respondent had not committed
an unfair labour practice. The application was dismissed.
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