CCMAiL - FEBRUARY 2004
CASE ALERTS
By Lucky Moloi
KN21204-03 Mzowgafi Robert Majozi & Vikitha Walter Ngwabe v Intuthuko Security
cc – Commissioner: Soobedaar
Dismissal for operational requirements – Whether employee is entitled to severance pay
The two applicants appeared in person and there was no appearance on behalf of the
respondent. The applicants alleged inter alia that they had been unfairly retrenched and
had not been paid severance pay or notice pay.
Noted: The commissioner noted that in terms of s 41 of the BCEA, an employer must pay
severance pay to an employee who is dismissed for reasons based on the employer’s operational
requirements. The severance pay must be at least one (1) week’s remuneration for each
completed year of service with that employer.
Further noted: Both applicants were dismissed for reasons based on the respondent’s
operational requirements and neither applicant refused an offer of alternative employment, as
none was made. Both applicants were therefore entitled to severance pay in terms of the
provisions of the BCEA.
Held: The commissioner further advised the applicants that he had no jurisdiction to make any
order in respect of leave pay, however they could pursue that claim through the Department of
Labour.
KN9528-03 M N Gumede v South African Post Office – Commissioner: Shabangu
Unfair dismissal of employee. Whether dismissal was both procedurally and
substantively unfair.
It was common cause that the applicant was dismissed for having orchestrated a sale of
company assets. It was alleged that his actions were tantamount to the misappropriation of
company funds and assets. In effect, the applicant was convicted of and dismissed for the
misappropriation of company property.
The applicant challenged both substantive and procedural fairness of his dismissal. On the
substantive side, the applicant alleged that there was no policies or procedures that dealt with
obsolete assets. He further alleged that the sanction of a dismissal was inappropriate and unfair
given the circumstances of the case. On the procedural issue, the applicant alleged that the
chairperson of the disciplinary enquiry did not apply his mind independently.
The respondent had alleged that the applicant was dismissed for gross misconduct in that he had
orchestrated the sale of company assets without prior approval. The applicant’s conduct of
orchestrating the sale was construed by the respondent to have amounted to the
misappropriation of company property.
The respondent in its evidence, produced a document dealing with fixed assets management and
control which spelt out how fixed assets should have been managed including the writing off and
sale of such assets. The applicant stated that he was not familiar with such a document. The
respondent stated that it was inconceivable that a person in the position of the applicant as a coordinator, who was once a postmaster in charge of company assets, was not aware of such
instructions. The applicant was reasonably expected to have been aware of the said instructions.
Noted: It was, therefore, clear that the respondent had based its contention that the applicant had
intended to misappropriate the money on circumstantial evidence. Circumstantial evidence may
only be relied upon if the inference drawn from the facts was consistent with all the facts proved
and the inference to be drawn was the most plausible inference. To say that the chairperson of
the disciplinary enquiry did not believe that the applicant would pay the proceeds to the post
office, because there was no procedure regarding accounting of such money, did not take the
matter further given the fact that the proceeds of the sale of the units were eventually accounted
for at the insistence of the respondent. It, therefore, stands to reason that the inference that the
applicant had intended to misappropriate the money was not the most plausible inference.
Held: The applicant’s dismissal was held to be substantively unfair and the respondent was
ordered to reinstate the applicant retrospectively. There was no order as to costs.
ECPE2217-03 NUMSA obo members v Behr Climate & Control – Commissioner:
Cameron
Disclosure of information – Whether employer had a duty to disclose relevant
information requested by the applicant for purposes of effective and orderly collective
bargaining.
It was common cause that the applicant and the respondent had been engaged in collective
bargaining over the benchmarking of wages in an attempt to reduce the wage gaps in the
company. The applicant was of the opinion that the respondent had a duty to disclose certain
information in order to assist in effective collective bargaining. The information required was as
follows:



Income differential statements in terms of the Employment Equity Act 55 of 1998,
Details of the salaried employees’ income, and
Auditor’s financial statements for the past two years.
The applicant requested that the respondent disclose the above information, however, the
respondent only provided the income differential statements, and not information in terms of (b)
and (c) above. The applicant challenged the fairness of this refusal to disclose allegedly relevant
information by referring a dispute to the CCMA.
The applicant testified that NUMSA was the majority union at the respondent’s premises,
and had both hourly and monthly paid members. In terms of s 16 of the Act, the
respondent has a duty to disclose information to a majority union. However, the
respondent tended to limit the disclosure of information to that regarding the hourly paid
employees. NUMSA required information on the monthly paid employees’ salary packages
in order to bargain effectively, and at that time of the hearing there had been no proposals
made by the union on reducing the wage gap because of a lack of information regarding
the benchmarking of monthly paid employees’ salaries.
The respondent contended that the union had failed to substantiate the basis upon which they
requested the private and personal information of a large majority of employees within a separate
bargaining unit who were not their members. Furthermore, the income differential statement
submitted with the Employment Equity report discloses a clear differentiation between the various
income levels of employees at the lowest to the highest level within the organisation. It was
submitted that with those figures, the company had provided sufficient information to enable the
union to complete a benchmarking exercise, which would have enabled the union to address any
alleged disparities. Finally, information regarding employees’ salary packages and/or information
regarding the profitability of the company would have had no effect on collective bargaining with
the union as wages/remuneration and conditions of employment were determined at national
bargaining level.
Noted: The applicant had a duty to demonstrate the need and the relevance of the information
that they had required to be disclosed. They have failed to do so. As a result there was no basis
for the commissioner to find that the monthly paid income packages or the financial statements
were necessary or relevant.
Held: The commissioner held that the respondent was under no obligation to disclose the
information sought by the applicant.
MP2268-03 DD Msibi & 3 others v Pep Stores – Commissioner: Dibden
Unfair dismissal. Whether the dismissal of the applicants was either procedurally or
substantively or both procedurally and substantively fair
The applicants had filed a collective dispute, despite that they were originally charged
independently and individual disciplinary cases were held on separate days and their dismissals
were effected on different days as well. The only common denominator was the availability of
expert evidence that was relative to the charges. It was agreed that the commissioner would need
to be presented with evidence specific to each individual. The commissioner advised that
although there would be only one award there may well be different findings relative to the
applicants, given each one’s peculiar and specific charges.
It was common cause that the applicants had been charged for separate incidences related to
breach of till procedures e.g. under ringing, not following procedures for exchanges, lay byes,
receiving of cheque, and/or cash shortages and/or dishonesty in relation to cell phone recharge
vouchers etc. In the majority of cases, there was more than one specific incidence of breach as
detailed on the individual notification to attend disciplinary enquiries and attached charge sheets.
The applicants argued that the respondent was unfair in dismissing them for no fair reason as
they had only carried out the instructions of the manager of the branch. The sanction of a
dismissal was too harsh for the misdemeanour.
The respondent argued that the applicants were fairly dismissed both from a procedural and
substantive point of view. The respondent stated that the applicants were found, on the balance
of probability, to be guilty of the various offences relative to the breach of till procedures. The
sanction of a dismissal was appropriate and was consistent with previous cases. The respondent
further alleged that the applicants had long service and, therefore, were expected to understand
the company rules and a breach thereof.
Noted: There had been more than substantial compliance with the requirements of procedural
fairness by the respondent.
Held: That the dismissal of the applicants was both procedurally and substantively fair. There
was no order as to costs.
LP4366-03 JDH Booysen v Amka Products – Commissioner: Motake
Employee v Independent contractor – Existence of employment relationship
The applicant had lodged an alleged unfair dismissal dispute with the CCMA. The dispute was
duly conciliated in the absence of the respondent. The necessary certificate was issued to
confirm that the dispute remained unresolved. The applicant requested the CCMA to arbitrate the
dispute.
At arbitration, the respondent raised a point in limine. The respondent argued that there was no
employment relationship between the parties. Therefore, there was no dismissal that had taken
place as alleged by the applicant. The respondent thus stated that the applicant’s case be
dismissed. The applicant opposed the said application.
In order to determine the point in limine, it was necessary for the commissioner to determine
whether there was an employment relationship between the parties. The failure to establish the
existence of the relationship would mean that the CCMA lacked the jurisdiction to resolve the
dispute.
The respondent, on the one hand, argued that the applicant was an independent contractor and
not an employee as alleged. On the other hand, the applicant responded by arguing that he was
the respondent’s employee when the alleged dispute arose.
Noted: The question that the respondent raised in this matter, the alleged lack of employment
relationship, was intrinsically connected to the question of whether there was a dismissal or not.
At the arbitration hearing, the applicant was required to discharge the onus to prove, that the
alleged dismissal, indeed, took place. In order to do that, the applicant would have to prove that
there was an employment relationship in existence.
Further noted: The applicant is assisted in the exercise of proving the alleged dismissal, or the
existence of an employment relationship, by the presumption of an employment relationship,
created by s 200A of the LRA, where certain facts are present. The parties did not make any
reference to the said section. The commissioner stated that it was also interesting to note that the
said section expressly provides that the existence of a contract that purported to prove lack of an
employment relationship was not conclusive. All the surrounding facts and factors must be
considered.
Held: The commissioner held that the CCMA has jurisdiction to entertain the matter by drawing
jurisdiction from a valid conciliation certificate that indicated that there was an unresolved dispute
of an alleged unfair dismissal. Therefore, the objection was dismissed.
Case references
BHT Water Treatment v CCMA [2002] 2 BLLR 173(LC)
Sapekoe Tea Estates v Maake [2002] 10 BLLR 1004 (LC)
Zeuna-Stärker BOP v NUMSA [2002] 11 BLLR 1110 (LAC)
Labour Court and Labour Appeal Court Judgements
By Sarah Modise
Labour Court: J1510/02
Bruckner v Department of Health & Others:Judge Francis
Practice and procedures-contempt of Court application
The applicant and her senior were working for the respondents. They were both demoted and
referred an unfair labour practice dispute to the CCMA. The commissioner awarded both of them
reinstatement. The respondents however, failed to comply with the award and the applicant
applied to the Labour Court to have the award made an order of Court. The award was made an
order of Court.
The applicant’s senior thereafter reached a settlement agreement with the respondent. The
applicant however, required the respondent to comply with the Court order. The applicant was
later reinstated to a different position. She however, refused the reinstatement on the grounds
that the position she was reinstated to was more of an administrative position, which was different
from her previous position. The applicant then applied to the Labour Court alleging that the
respondent was in contempt of the Court.
The respondent argued that it could not reinstate the applicant to her previous position, as that
position no longer existed as a result of a restructuring process.
Noted: In contempt of a Court application, the applicant needs to show that:



An order was granted against the respondent,
That the respondent was served or informed of the order, and
That the respondent was in wilful default and in mala fide disobedience of the order.
Further noted: It was clear that a Court order was granted against the respondent. Therefore,
the only issue that the Court needed to determine was whether the respondent was in wilful
default and mala fide disobedience of the Court order.
Held: The Court contended that the respondents’ submission that it could not reinstate the
applicant to her previous position because it had restructured, was not a valid defence. This was
because the respondent could not inform the Court when it started the restructuring process and
when it had ended. Therefore, the Court held that the respondents had failed to prove that there
was substantial compliance with the Court order.
The respondents were found guilty of contempt and were committed to a period of fifteen days
imprisonment. The order of imprisonment was suspended for 60 days to allow the respondents to
make arrangements for the applicant’s reinstatement to her former position.
The respondents had to pay the costs of the application.
Case References
D Lange v Smuts & Others 1998 (3) SA 785 (cc)
H.E.G Consulting Enterprises (Pty) Ltd v Siegwart 2001 (1) SA 507 C
Mjeni v Minister of Health & Welfare, Eastern Cape 2000 (4) SA 446
Putco Ltd v TV Radio Guarantee CO (Pty) Ltd 1985 (4) SA 809 (A)
Uncebo Taxi Services Association v Maninjwa and others (1998) 6 BCLR 683 (E)
Labour Court: C1055/02
SRV Mill Services (Pty) Ltd v CCMA & Others: Judge Tip
Absenteeism- biasness in the application of discipline
The employee was dismissed after being found guilty of absenteeism at a disciplinary hearing. He
referred a dispute to the Metal and Engineering Industries Bargaining Council (MEIBC). The
matter remained unresolved and was referred to the CCMA for arbitration. The commissioner
found the dismissal to be unfair. The employer then applied to the Labour Court to review and set
aside the commissioner’s award.
Inconsistency in applying disciplinary measures
Noted: The employee and another employee did not report for duty on the same day. The
employee was however, found guilty and dismissed, while the other employee was not found
guilty.
Also noted: The employee had previous records of absenteeism.
Further noted: The employer argued that the commissioner had committed a gross misdirection
in determining that it did not discharge the onus to prove why different sanctions applied. By
citing, SACCAWU & Others v Irvin and Johnson Ltd (1999) 8 BLLR 741 (LAC) and Consol Ltd v
Chemical Energy, Paper, Printing, Wood & Allied Workers Union on behalf of Hlongwane and
Others (2001) 22 ILJ 1938(ARB), the employer further argued that the commissioner’s award was
unjustified as the principle of disciplinary consistency is, in general, a principle of bias or improper
motive.
Held: The Court cited, National Union of Metal Workers of SA & Others v Henred Fruehauf
Trailers (Pty) Ltd 1995 (4) SA 456 (A), National Union of Mineworkers v Amcoal Collieries &
Industrial Operations Ltd (1992) 13 ILJ 1449 (LAC), Early Bird Farms (Pty) Ltd v Mlambo (1997) 5
BLLR 541 (LAC) , NUM & another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 8 BLLR
869 (LAC) and Mabinama & others v Baldwins Steel (1999) 5 BLLR 453 (LAC) and held that the
employer had failed to show that the commissioner had misdirected himself in relation to the
evidence that was placed before the Court.
The application for review and setting aside of the arbitration award was dismissed. The employer
was ordered to pay the costs of the employee.
Case References
Cape Town City Council v Masitho & others (2000) 21 ILJ 1957 (LAC)
Consol Ltd v Chemical Energy, Paper , Printing, Wood & Allied Workers Union obo Hlongwane &
others (2001) 22 ILJ 1938 (ARB)
Early Bird Farms (Pty) Ltd v Mlambo (1997) 5 BLLR 541 (LAC)
Mabinama & others v Baldwins Steel (1999) 5 BLLR 453 (LAC)
National Union of Metalworkers of SA & others v Henred Fruehauf Trailers (Pty)Ltd 1995 4 SA
456 (A)
National Union of Mineworkers v Amcoal Collieries & Industrial Operations Ltd (1992) 13 ILJ 1449
(LAC)
NUM & another v Amcoal Colliery t/a Arnot Colliery & Another (2000) 8 BLLR 869 (LAC)
Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union & others (1991) 12 ILJ 806
SACCAWU & Others v Irvin and Johnson Ltd (1999) 8 BLLR 741 (LAC)
Labour Court: JR660/02
Khula Enterprise Finance Limited v Madinane and 2 Others:Judge Kennedy
Review of CCMA award
The employee was dismissed after the chairperson at a disciplinary hearing found him guilty of
insubordination. The employee had failed to obey instructions, and was also charged for gross
negligence, for failing to follow company procedures. He then referred two disputes to the CCMA,
an unfair labour practice dispute and an unfair dismissal dispute. The matters remained
unresolved at conciliation and continued to arbitration. At arbitration, the employee requested the
commissioner to combine the two cases, but this was refused. The arbitrator found the
employee’s dismissal to be both substantively and procedurally unfair and ordered 12 months’
compensation and reinstatement. The employer then applied to the Labour Court to set aside and
review the commissioner’s award.
Procedural fairness
Noted: The arbitrator found the dismissal to be procedurally unfair on two grounds. Firstly, the
arbitrator relied on the disciplinary code which provides that the hearing should be chaired by a
manager that is acceptable to both parties. Therefore, he concluded that the non-compliance with
the disciplinary code entailed that the procedure was unfair.
Held: That the disciplinary code served as guidelines and under the circumstances of this case,
the employer was entitled to look elsewhere for a chairperson in order to have a fair hearing.
The arbitrator also concluded that the chairperson should not have conducted the hearing
because this would have created a perception of biasness.
Held: The Court held that there was no factual basis for such an idea. The fact that a firm of
attorney’s at the request of the employer briefed the chairperson was not unfamiliar. The Court
further held, that the arbitrator also failed to consider the main issue at hand which was whether
the procedure adopted was unfair.
Secondly, the employee was denied the right to appeal.
Noted: Evidence presented at arbitration indicated that the employee was offered the choice of
either appealing or referring the matter to the CCMA. The employee then opted to refer the matter
to the CCMA.
Held: There was no rational basis for the arbitrator’s conclusions that the employee had
been denied the right to appeal.
Substantive fairness
The Court held that the arbitrator did not consider most of the evidence that was presented to
him. For example, charges of insubordination were not dealt with.
Held: The arbitration award was set aside. The matter was referred back to the CCMA to be
heard by a different commissioner. The employee had to pay the costs of the application.
Case References
Changula v Bell Equipment (1992) 13 ILJ 101 (LAC)
Commissioner Competition Commission v General Council of the Bar of South Africa & Others
(2002) (6) SA 606 (SCA)
Crown chicken (Pty) Ltd t/a Rocklands Poultry v Kapp & Others (2002) 23 ILJ 863 (LAC)
CWIU & Another v Hoechst (Pty) Ltd (1993) 14 ILJ 471 (IC)
De Villiers v Fisons Pharmaceuticals (Pty) Ltd (1991) ILJ 1033 (IC)
General Council of the Bar of South Africa v Van der Spuy 1999 (I) SA 577 (T)
Milady’s a division of Mr Price Group Ltd v Naidoo & Others (2002) 23 ILJ 1234 (LAC)
NEHAWU obo Mwalo & Others v Director General of Agriculture and Minister of Agriculture
(1993) 4 (12) (SALLR) 33 (IC)
Oliver v Foschini Group Ltd (1995) 8 BLLR 102 (IC)
President of the RSA and Others v S A Rugby Football Union & others (1999) (4) SA 147 (CC)
SA Revenue Services v CCMA & Others (2001) 22 ILJ 1680 (LC)
SACTWU v Martin & Johnson (Pty) Ltd (1993) 14 ILJ 1033(LAC)
Society of Advocates of Natal v De Freitas & Another (Natal Law Society Intervening) 1997 (4)
SA 1134 (N)
Stocks Civil Engineering (Pty) Ltd v Rip NO & Others (2002) 23 ILJ 358 (LAC)
Labour Court Judgement: J1534/98
Joseph Ndlela v Transnet Ltd: Judge Kennedy
Application for rescission of judgement
The applicant originally referred an unfair dismissal dispute to the CCMA. The CCMA Director
then referred the matter to the Labour Court. Pleadings were filed and an order was granted
stipulating that the parties needed to come up with a suitable date to be arranged by the
Registrar. Four years passed without the parties bringing the matter to trial. The registrar then
informed the parties that the matter would be set down for five days.
At the pre-trial hearing the parties could not come to an agreement on the proposal that was
made by the respondent on the number of days for the hearing. Shortly thereafter, the
respondent’s attorney wrote to the applicant’s attorney stipulating that it had requested the
registrar to remove the matter from the roll as it would have not been available for those days. It
also argued that the parties were not consulted when the days for the hearing were arranged and
that insufficient days were allocated for the hearing. The applicant contended it had responded by
indicating that it had wished the matter would proceed on the allocated dates.
Noted: This was faxed to the number that did not belong to the respondent’s attorney.
Further noted: The respondent attorney argued that it did not receive any response and
therefore, wrote to the registrar requesting that the matter be removed from the roll. The
respondent also filed a notice indicating that both parties had agreed that the matter should have
been removed.
On the said date Judge Revelas heard the matter. The applicant was represented while the
respondent was not represented. Only the applicant’s evidence was heard and the Court ordered
reinstatement. The respondent then applied to rescind the order given by the Court.
Noted: For a rescission application to be successful, the following is required under common law:
Firstly, a reasonable and acceptable explanation for the default and secondly, a bona fide
defence which prima facie carried some prospects of success.
Also noted: The Court further relied on Rule 16(A)(1) and Rule 16A(2)(b)
Further noted: One of the requirements that good cause be shown is that the element of
wilfulness must be absent.
Held: The respondent was aware of the date of the hearing. They did not attend because of the
misunderstanding that the matter would be removed from the role. Furthermore, no effort was
made by the employee to contact the respondent’s attorney during the hearing.
Held: The respondent showed reasonable prospects of success.
The order of the Court was rescinded. There was no order as to costs.
Case References
Brown v Chapman 1928 TPD 320
Carolus & Ano v Saambou Bank Ltd 2002 (6) SA 346 (SECLD)
De Witts Autobody Repairs (Pty) Ltd v Fedgen Insurance Co Ltd 1994 (4) SA 705 (E)
HDS Construction (Pty) Ltd v Wait 1979(2) SA 798 (E)
Maugan t/a Audio Video Agencies v Standard Bank SA Ltd 1994 (3) SA 801 (C)