GAJB35599-07 Mbatha v ABI - Amalgamated Beverage ... - CCMA

SELECTED CCMA 

ARBITRATION AWARDS 

JULY – DECEMBER 2008 

Selected CCMA Arbitration Awards Summaries: July – Dec 2008 

CCMA Research Unit: Operations & Information Department (Head Office) 

INDEX 

Breach of trust……………………………………………………………………………………………..….. 2 

Constructive dismissal…………………………………………………………………………….……..…… 2 

Desertion………………………………………………………………………………………….……...…….. 5 

Dishonesty……………………………………………………………………………………………………… 6 

Dismissal or resignation ……………………………………………………………………………………… 8 

Fixed term contract…………………………………………………………………………………….……… 9 

Fraud……………………………………………………………………………………….…………………… 10 

Incapacity………………………………………………………………………………….…………………… 12 

Independent contractor or employee………………………………………………………………………... 13 

Insubordination…………………………………………………….………………………………………….. 13 

Jurisdiction……………………………………………………………………………………….…………….. 15 

Misconduct……………………………………………………………………………………….……………. 16 

Misuse of email………………………………………………………………………………………………. 18 

Negligence……………………………………………………………………………………………….…….. 19 

Poor work performance……………………………………………………………………………….……… 21 

Retrenchment……………………………………………………………………………………….………… 22 

Theft……………………………………………………………………………………………………………. 23 

Strike……………………………………………………………………………………………….………….. 28 

Unfair dismissal…………………………………………………………………………………………….… 28 

Unfair labour practice………………………………………………………………………………………… 29 

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BREACH OF TRUST 



ECPE2407 - 07 Coyle- Dowling v Midcoast Leisure CC t/a Midcoast Boards - Commissioner: Loock 

Dismissal - Employee alleged to start business in competition with employer – Breach of trust relationship - Dismissal 

fair. 

The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and 

procedurally fair. 

The respondent claimed that the applicant was dismissed for attempting to set up a business in competition with it, 

while still in its employ. It testified that the applicant contacted it telephonically to discuss about a timber board 

business venture. Furthermore, the respondent testified that the applicant had admitted during a disciplinary hearing 

that he had approached it to start a business as his relationship with the respondent had soured. 

The applicant claimed that the respondent had breached the contract of employment as he did not compensate him. 

He contended that as he was dissatisfied with the respondent’s conduct he approached its client in order to start his 

own business. The applicant claimed that he held two meetings with the new partner, but had decided not to proceed 

with the business. 

Noted: That a contract of employment imposes both parties a duty to have good faith to each other. 

Also noted: That the applicant had an intention to setup a business in competition with the respondent. 

Held: That the relationship between the applicant and respondent was intolerable. The applicant had breached the 

employment contract. The application, was therefore, dismissed. 

Case references 

County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) 

Korsten v Macsteel (Pty) Ltd & Another (1996) 8 BLLR 1015 (IC) 

Movie Camera Company (Pty) Ltd v van Wyk & Another (2003) 2 All SA 291 (C) 

SAPPI Novoboard (Pty) Ltd v Bolleurs (1998) 5 BLLR 460 (LAC) 

Scholtz v Commissioner N Maseko (2000) JOL 7152 (LC) 

CONSTRUCTIVE DISMISSAL 

KNDB2545 - 08 Bux v Mr Price (Gateway- Clothing) - Commissioner: Grobler 

Dismissal - Employee accused of fraud - Employee resigned - Constructive dismissal proved. 

The commissioner had to determine whether the applicant was constructively dismissed. The applicant resigned after 

the area manager had accused him of fraud. He alleged that he was constructively dismissed. 

The applicant claimed that when he refused to confess to the fraud allegedly committed, his hands were tied behind his 

back and he was detained for several hours in a storeroom. The applicant decided to resign as the working relationship 

was intolerable. 

The respondent contended that the applicant committed a fraud. It claimed that the applicant was suspended for fraud 

and notified for a disciplinary hearing but he resigned a day before the disciplinary hearing. 

Noted: That the respondent had ordered the security guard to handcuff the applicant. The applicant’s body integrity 

was infringed when his hands were tied behind his back. 

Also noted: That the applicant was assaulted, unlawfully detained and humiliated. The respondent had detained the 

applicant without properly investigating the matter. 

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Held: That the applicant’s resignation had constituted constructive dismissal. The commissioner ordered the 

respondent to compensate the applicant an amount equivalent to 12 months salary. 


Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC) 

Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & Others (2007) 10 BLLR 909 (LAC) 

GAJB5464 - 08 Mbele v Woolworths (Pty) Ltd - Commissioner: Boyce 

Dismissal - Employee resigned – Employee claiming employer rendered employment relationship intolerable – No 

proof of constructive dismissal. 

The applicant, a store manager, was transferred from one of the respondent’s stores to another. He decided to resign 

because of the “management style” at the new store which negatively affected his performance. The applicant 

challenged that he had been constructively dismissed. 

The respondent claimed that the applicant’s performance was below the standard. It denied that it had made the 

applicant’s work intolerable. The respondent also denied that the applicant was given short deadlines, but the 

deadlines were similar to that of other heads of departments. 

The applicant claimed that he had raised his unhappiness with the human resources department and he was promised 

that he would be transferred to another branch after two months. He continued to work in the same store but felt that 

he was victimised and decided to resign. 

Noted: That the applicant was given warnings for poor work performance, given deadlines for completing certain tasks 

and his problems had been discussed with human resources. The applicant’s problems did not constitute victimisation. 

Also noted: That there was no proof that the applicant’s working conditions were intolerable. 

Held: That the applicant’s resignation did not constitute constructive dismissal. The application was dismissed. 


Amalgamated Beverage Industries Limited v Jonker (1993) 14 ILJ 1232 (LAC) 

Jooste v Transnet Limited t/a South African Airways (1995) 5 BLLR 1 (LAC) 

Pretoria Society for the Care of Retarded v Loots (1997) 6 BLLR 721 (LAC) 

Quince Products CC v Pillay (1997) 12 BLLR 1547 (LAC) 

Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & Others (1998) 19 ILJ 1240 (LC) 

GAJB16407 - 08 UCIMESHAWU obo Amin v Talk 2 US - Commissioner: Raffee 

Dismissal - Employee alleged that she was forced to resign - Constructive dismissal not proved. 

The commissioner was called upon to determine whether the applicant was constructively dismissed. The applicant 

challenged that he was constructively dismissed and sought an appropriate relief. 

The applicant testified that she resigned because the working environment was hostile and the management was 

uncooperative. She further testified that the working conditions were unbearable and she was emotional and 

distressful. She contended that after returning from leave, she found that her computer was taken away on her desk 

and that was a proof that she was no longer required. 

The respondent had testified that the applicant had been sending confidential and derogatory electronic emails relating 

to the respondent’s project outside third parties using the respondent’s email systems. It contended that the applicant 

had intention to resign. 

Noted: That the applicant did not lodge a grievance to show that the working environment was intolerable. The 

applicant lodged a letter of complaints on the day she resigned. 

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Held: That the applicant’s resignation did not constitute constructive dismissal. There was no proof of constructive 

dismissal. The application was dismissed. 

FS3900 - 08 Masoeu v Nortje Kabinet Makers Bk - Commissioner: van Aarde 

Dismissal - Employee alleged she was assaulted - Constructive dismissal proved. 

The commissioner was called upon to decide whether the dismissal of the applicant was fair. The applicant claimed 

that she was constructively dismissed, challenged her dismissal as unfair and sought an appropriate relief. 

The applicant had testified that on the day in question, she was busy scouring the door frame as there were wood in 

the holes. She filled it up with wood-filler and the respondent approached and reminded her for wrongdoings and then 

slapped her on the shoulder. The respondent further testified that the respondent told her that if she repeats the same 

mistake, she will continue to beat her. She decided to leave the workplace and report the case to the police. 

The respondent had testified that he instructed the applicant to scour a doorframe. It contended that the applicant used 

a filler to fill up the holes in the wood. The respondent further testified that the applicant had continued doing the same 

mistake, it slapped her on the shoulder. It further contended that the applicant walked away from work but was not 

dismissed. 

Noted: That the respondent slapped the applicant as she did not listen to its instruction. 

Also noted: That the respondent did not treat the applicant with respect which she deserves by assaulting her. The 

respondent was supposed to give an employee a warning or called her for a disciplinary hearing if she did something 

which was unacceptable. 

Held: That the respondent had made employment relationship intolerable. The respondent was ordered to compensate 

the applicant an amount equivalent to twelve months salary. 


Modumise v ADG Printers (1996) 7 SALLR 29 (CCMA) 

Minister of Home Affairs v Hambridge & Other (1999) 20 ILJ 2632 (LC) 

Negro v Continental Spinning & Knitting Mills (Pty) Ltd 1954 (2) SA 203 (W) 

Peers v Minolow (Pty) Ltd (2000) 9 CCMA 6.13.2 

Puren v Victoria Express (1998) 19 ILJ 404 (CCMA) 

Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) 

NC1413 - 08 AMG Vermeulen v Vryland Beleggings cc t/a Colesberg Lodge - Commissioner: Osler 

Dismissal - Employee alleged that he was forced to resign - Constructive dismissal not proved. 

The applicant, a manager, alleged that he was forced to resign by the respondent. He challenged his dismissal as 

unfair and sought for compensation as a relief. 

The applicant testified that he was forced to resign for various reasons. He handed his resignation letter and started to 

look for an alternative employment but without success. The applicant alleged that the respondent did not comply with 

Sectoral Determination for the Hospitality Industry. He further alleged that the respondent had forced him to take unfair 

disciplinary action against another employee who later won the case at the CCMA. 

The respondent testified that the problems started when it discovered that there were some irregularities in the bar. 

When it made some investigations, the applicant was unhappy. It argued that it was its responsibility to check up 

irregularities. The respondent contended that the applicant never raised some of the concerns he raised when he was 

still employed by the respondent. It also argued that it had applied for exemption concerning Sectoral Determination for 

Hospitality Industry. 

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Noted: That the applicant did not take any step to show that he was not happy. The applicant was supposed to lodge 

a grievance against the respondent. 

Also noted: That it was the responsibility of the Department of Labour to investigate about non-compliance with the 

sectoral determination. 

Held: That the applicant had failed to prove that he was constructively dismissed. The application was dismissed. 

Case reference 

Murray v Minister of Defence (2008) 6 BLLR 513 (SCA) 

GAPT5670 - 08 van Loggerenberg v South African Post Office (Pty) Ltd - Commissioner: Mokwena 

Dismissal - Employee alleged that he was constructively dismissed – No proof of constructive dismissal. 

The commissioner was called upon to determine whether the applicant was constructively dismissed. The applicant 

alleged that he was constructively dismissed and sought for an appropriate relief. 

The applicant claimed that he was doing the work of three portfolios, which all need the full time managers. He further 

claimed that he notified management that his workload was intolerable in several meetings, but nothing was done. The 

applicant further claimed that he felt humiliated by management. The applicant testified that he resigned because his 

working conditions were unbearable and nobody was listening to him. 

The respondent testified that the applicant did not do his work properly. It argued that the applicant was given two staff 

members to work with him as a relief. It also argued that if the applicant was not happy at work, he was supposed to 

lodge a grievance. 

Noted: That the applicant had managed three portfolios that need full time managers. The respondent seconded two 

staff members to relieve the applicant for his workload. 

Also noted: That the applicant was held accountable for all things that went wrong in those portfolios. The applicant 

was unhappy but did not lodge a complaint and decided to resign on his free will. 

Held: That the applicant’s resignation did not amount to constructive dismissal. The application was dismissed. 

DESERTION 

GAPT2490 - 08 FEDCRAW obo Nyalunga v Edgars (Edcon Group) (Pty) Ltd – Commissioner: Sikwane 

Desertion – Employee did not return to work – Dismissal fair. 

The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and 

substantively fair. The applicant, a permanent part time employee, was dismissed for alleged absenteeism without 

permission. She challenged her dismissal as unfair and sought reinstatement as a relief. 

The applicant testified that she went on leave and did not know when to return for duty because she relied on the 

respondent to tell her when to report for duty. She claimed that she made an enquiry when she was supposed to return 

to work but did not receive any answer from the respondent. The applicant claimed that when she was on leave, she 

felt ill and went to the traditional healer. 

The respondent contended that the applicant was absent from work without permission and her services were 

terminated. It argued that it sent one of the employees to check why the applicant was not reporting for work and it 

was informed that she was sick. The applicant did not produce a medical certificate as requested, she claimed that she 

had consulted a traditional healer. 

Noted: That the applicant knew company policy concerning absenteeism. 

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Also noted: The respondent tried by all means to contact the applicant while she was not at work, but she did not 

bother to come to work. The applicant acknowledged that the receipt of communication from the respondent. 

Further noted: That the applicant had known that festive seasons were the busiest time of the year and that her 

services were required tremendously. 

Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. 

DISHONESTY 

KNDB11631- 07 Pillay v University of Kwazulu Natal - Commissioner: Grobler 

Dismissal – Employee dismissed for lying under oath during disciplinary hearing - Dismissal fair. 

The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was 

dismissed because he allegedly lied under oath before the tribunal which was appointed by the respondent. 

The respondent claimed that the applicant was subject of investigations concerning the acquisitions of his qualifications 

and intimate relationship with his examining professor. A tribunal was appointed by the respondent in order to 

investigate the allegations. The tribunal found that the allegations were true and recommended that a formal 

disciplinary action be taken against the applicant. After the disciplinary enquiry, the applicant was found guilty and 

dismissed. 

The applicant contended that the matter should have ended with the first enquiry. He claimed that he had been 

subjected to double jeopardy. The applicant also contended that the respondent refused to pay his legal costs. He 

further claimed that the presiding officer misconstrued the evidence, disregarded his version and had failed to consider 

mitigating factors. 

Noted: That arbitration under the Labour Relations Act 66 of 1995 (LRA) is a hearing de novo. The Commissioners 

must determine the fairness of dismissals on the basis of evidence presented at arbitration. 

Also noted: That the norm assessing whether the applicant was guilty of an offence was conducted with the 

employer’s disciplinary code. The applicant was subjected to only one hearing and the respondent had not infringed 

the double jeopardy rule. 

Held: That the dismissal of the applicant was fair. The application was dismissed. 


Amalgamated Engineering Union of SA & Others v Carlton Paper of SA (Pty) Ltd (1998) 9 ILJ 588 (IC) 

BMW (South Africa) (Pty) Ltd v van der Walt (2000) 21 ILJ 113 (LAC) 

Frost v Telkom SA (2001) 22 ILJ 1253 (CCMA) 

Maliwa v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC) 

Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR 1097 (CC) 

FS2816 - 08 Nthinya v Old Mutual - Commissioner: Venter 

Dismissal – Employee dismissed for assault committed eight years before commencing service - Dismissal unfair. 

The applicant, a financial advisor, was dismissed after serving the respondents for few months. He challenged his 

dismissal as being both procedurally and substantively unfair and sought compensation as a relief. 

The applicant testified that he had completed security declaration as part of his application. He argued that he was 

never charged with criminal offence and on the declaration form he marked that he was criminally convicted for 

assault. The applicant contended that he could not be charged with dishonesty as he mentioned on the declaration 

form. 

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The respondent claimed that the applicant dishonestly claimed that he qualified under the Financial Advisory and 

Intermediary Services Act 37 of 2002 (FAISA), because the FAISA precludes persons with criminal records from acting 

as financial advisors. It argued that the applicant was not fit and the proper person to work as a financial advisor 

because he was dishonest. 

Noted: That the applicant was dismissed for dishonesty and his fitness to be a financial advisor. The applicant was 

previously convicted for assault and he could not be accused of dishonesty on that score. 

Also noted: That according to FAISA, a person is deemed to be unfit to act as a financial advisor if he/she had been 

convicted of an offence involving dishonesty in the previous five years. 

Further noted: That FAISA presupposes that an enquiry must be conducted before a person is pronounced unfit. The 

applicant was informed telephonically about his dismissal and there was no hearing. 

Held: That the dismissal of the applicant was both procedurally and substantively unfair. The commissioner ordered 

the respondent to compensate the applicant an amount equivalent to five months’ salary. 


Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC) 

WE8238 - 08 Diamouangana v EY Grand Cape Hospitality & Transport Services (Pty) Ltd - Commissioner: 

Bennet 

Dismissal – Employee dismissed for using respondent’s client vehicle without permission – Employee involved in 

vehicle collision - Dismissal fair. 

The commissioner was called upon to decide whether the dismissal of the applicant was fair. The applicant was 

dismissed for allegedly using the respondent’s client vehicle that involved in collision. He challenged his dismissal as 

being unfair and sought compensation as a relief. 

The applicant testified that on the day in question he felt ill while working on a night shift. He claimed that he had 

forgotten his medicine at home and he took the respondent client’s vehicle to drive home as it would have taken him 

three to five minutes to walk to his car as it was parked outside the workplace. 

The respondent argued that if the applicant was seriously ill, he would not be able to drive a vehicle. It contended that 

the applicant had breached the rule which stipulates that he was not permitted at any time to use the client’s vehicle for 

personal reasons unless permitted to do so by the management staff. It further argued that the applicant had known 

the rule but he had disobeyed it. 

Noted: That the applicant had breached the rule he had known. The applicant breached the trust relationship between 

the respondent and its client. 

Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. 

NC1331- 08 NUM obo Makinana v De Beers Kimberley Mines - Commissioner: Osler 

Dismissal – Employee dismissed for allegedly cheating in assessment test - Dismissal fair. 

The applicant, a mechanical operator, was dismissed for allegedly cheating during an assessment test. He challenged 

his dismissal as being unfair and sought for reinstatement as a relief. 

The respondent testified that all employees sent for training courses were told that no cheating was allowed. It 

contended that on the day in question the applicant was found cheating during an assessment. The applicant was 

disqualified for completing the assessment. The respondent argued that the dismissal was a normal sanction for 

dishonesty because the applicant would portray himself as competent person and qualified beyond his capacity which 

would result in poor work performance related problems. 

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The applicant denied that he was cheating on the day in question. He argued that cheating does not amount to 

dishonesty, and was not in the company’s policy. The applicant testified that he took his personal notes into an 

assessment room in order to revise before the test started. He contended that cheating took place in the training 

college not at the workplace. The applicant further claimed that the chairperson of the disciplinary hearing was biased 

as he was briefed about the matter before the disciplinary enquiry. 

Noted: That the courts stressed repeatedly that employees can be dismissed fairly for serious offences that are not 

contained in the employer’s disciplinary code. 

Also noted: That cheating in an assessment is a form of dishonesty and is a dismissible offence. 



Cronje v Toyota Manufacturing (2001) 3 BALR 213 (CCMA) 

Hoch v Mustek Electronics (Pty) Ltd (1995) 16 ILJ 462 (IC) 

Nasionale Parkeraad v Terblanche (1999) 6 BLLR 545 (LAC) 

Nedcor Bank Ltd v Frank & Others (2002) 23 ILJ 1243 (LAC) 

SA Breweries v FAWU & Others (1992) 1 LCD 16 (LAC) 


DISMISSAL OR RESIGNATION 

LP2115 - 08 Maila v Dynamic Marketing Corporation - Commissioner: Mello 

Dismissal – Employee dismissed for alleged abscondment due to illness - Dismissal unfair. 

The commissioner was called upon to determine whether the applicant was dismissed or resigned. The applicant was 

dismissed after he was hospitalised. He challenged his dismissal as unfair and sought compensation as a relief. 

The applicant testified that he started experiencing health problems while working. He submitted a medical certificate 

which was accepted by the respondent. The applicant further testified that when he report for work, the respondent 

requested him to fill resignation form. He contended that the respondent told him to stay at home. 

The respondent argued that the applicant was not dismissed but absconded from work. It contended that the 

respondent disappeared from work without authorisation. 

Noted: That the applicant wanted to continue to work and did not have intention to resign. The applicant was 

dismissed but not resigned. 

Also noted: That the respondent no longer wanted the applicant in its employ due to continuous poor health. 

Held: That the dismissal of the applicant was both procedurally and substantively unfair. The respondent was ordered 

to compensate the applicant an amount equivalent to 10 months’ salary. 


Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) 

NW683 - 08 Ntekiso v Anglo Ashanti t/a Tau Lekoa - Commissioner: Matlala 

Dismissal - Employee alleged he was dismissed – Employee resigned - No proof of dismissal. 

The commissioner was called upon to determine whether the applicant was dismissed or had resigned. The applicant 

claimed that he was told by his supervisor that he was no longer fit to work and must apply for medical boarding so that 

he could not lose his benefits. After the company doctor had examined him, he was told that he could not be 

8



recommended for medical boarding as he was still fit to work. Later on, he was advised to consult his private doctor, 

who also did not recommend him for medical boarding. 

The respondent’s witness claimed that he had promoted the applicant to his current position, had a good relationship 

with him and that he would never dismiss him. He testified that an audit in the applicant’s section had revealed several 

discrepancies in his job. The applicant was given a final written warning for poor work performance after counselling 

and a disciplinary hearing was held. The witness also testified that later on, the applicant had developed epilepsy, 

which became worse and he was hospitalised. The witness further testified that the applicant had come to his office 

with his union representative and told him that he wanted to resign. 

Noted: That if the applicant had thought that he was forced to resign, he would have pursued a case of constructive 

dismissal. 

Held: That the applicant was not dismissed, but had resigned on his own free will. The application was dismissed. 

NW3481 - 08 Fourie v J.P.R. Construction - Commissioner: Mashigo 

Dismissal - Employee alleged he was dismissed – No proof of dismissal. 

The commissioner was called upon to determine whether the applicant’s dismissal was fair. The applicant alleged that 

he was unfairly dismissed and sought an appropriate relief. 

The applicant testified that he was injured at work and reported the incident to respondent. He alleged that the 

respondent became aggressive and swore at him. He was booked off for the whole week by the doctor, when he 

returned to work, he was dismissed. He contended that the applicant refused to complete the workmen’s compensation 

form for him as requested by his doctor. 

The respondent testified that the applicant was a volatile person that could not have a decent conversation with other 

people. It argued that it did not dismiss the applicant, but he left on his will. The respondent denied that it refused to 

complete workmen’s compensation forms for the applicant. 

Noted: That the applicant was a difficult person to communicate with. 

Also noted: That the respondent knew the procedure to be followed before an employee is dismissed. 

Held: That the applicant had failed to prove that he was dismissed. The application was, therefore, dismissed. 

FIXED TERM CONTRACT 

KNDB4885 - 06 Ngcobo v Walter Sisulu University - Commissioner: Dalasile 

Fixed term contract – Employee alleged that he was unfairly dismissed – No proof of dismissal. 

The applicant was employed as a director of human resources on two year fixed term contract and alleged that he was 

unfairly dismissed and sought that his contract be extended. 

The applicant claimed that he thought that his contract would be extended. He further claimed that he settled many 

cases at the CCMA for the respondent while previous directors failed to settle and he was praised by the principal (vice 

chancellor). 

The respondent contended that the employment contract stipulated clearly that it was a fixed term contract, no mention 

of renewal. 

Noted: That there was nothing in the contract which stipulated that there was a renewal of the contract. 

Also noted: That the applicant was not promised that his contract would be renewed or extended. 

Held: That there was no proof that the applicant was dismissed. The application was dismissed. 

9


Dierks v University of South Africa (1999) 4 BLLR 304 (LC) 

Malandoh v SABC (1997) 18 ILJ 544 (LC) 

McInnes v Technikon Natal (2000) 6 BLLR 701 (CC) 

SA Rugby (Pty) Ltd v CCMA & Others (2006) 1 BLLR 27 (LC) 

Swanepoel v Western Region District Council & Another (1998) 19 ILJ 1418 (SE) 

Wyngaardt v UNISA (2006) 1 BALR 91 (CCMA) 

FRAUD 



NW3452 - 07 NUM obo Seabeng v Eskom Holdings Ltd – Commissioner: van Eck 

Dismissal – Employee charging members of public for own gain - Employee dismissed for fraud - Dismissal fair. 

The applicant was dismissed for allegedly accepting money from members of the public to connect their electricity for 

his own gain. He challenged his dismissal as being both substantively and procedurally unfair. 

The applicant denied that he had done anything wrong. He claimed that the respondent’s witnesses were accusing the 

wrong person because his colleague used his bakkie from time to time as they used to work in the same department. 

The applicant argued that the employment relationship was not breached because he was allowed to continue with his 

duties after he had been given a letter of suspension. 

The respondent testified that his clients had complained that they had paid the applicant some money, but he did not 

install their meter boxes. The respondent’s witnesses also testified that the applicant and his colleague had asked 

them for money to replace meter boxes, but nothing was done. 

Noted: That the applicant had dishonestly accepted money from members of the public. The applicant had acted 

contrary to the respondent’s values and ethics. 



Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others (2001) 12 (2) SALLR (LAC) 

LP2861 - 08 Makubedi v Masstores t/a Builders & Tile Warehouse - Commissioner: Ledwaba 

Dismissal – Employee dismissed for allegedly processing fraudulent transaction – 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 allegedly processing fraudulent transaction. He challenged her 

dismissal as being unfair and sought compensation as a relief. 

The respondent testified that the applicant was dismissed for processing a fraudulent transaction. Due to the 

applicant’s actions, the company lost substantial cash. The respondent further testified that the applicant did not 

cooperate during the investigation. 

The applicant testified that her work responsibilities include signing of delivery notes, collection notes and refund 

vouchers. She further testified that she was doing floor work when she was confronted by a colleague, who requested 

her about a password for a worker who was not at work. The applicant contended that she gave a colleague the 

password as requested. She testified that she was informed about the fraud that occurred due to the use of the 

password. 

Noted: That the applicant had breached the company’s rule by processing a fraudulent transaction using a till of the 

cashier who was absent. The rule was known to the applicant. 

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Held: That the applicant was aware of the fraudulent transaction. The dismissal of the applicant was both procedurally 

and substantively fair. The application was dismissed. 

NC985 - 08 NUM obo Gaotsenwe v DVD Engineering - Commissioner: Mocwaledi 

Dismissal – Employee dismissed for time keeping fraud – Dismissal fair. 

The applicant was dismissed for allegedly defrauding the respondent’s clocking system. He challenged his dismissal 

as being unfair and sought reinstatement as a relief. 

The respondent testified that it noted a suspicious clocking timesheet of the applicant. It did an investigation into a 

clocking history of the applicant. The respondent contended that one of the managers visited the applicant at his 

workstation and found that he was absent. It alleged that on numerous occasions the applicant came to work late and 

left early. 

The applicant denied that he sometimes arrived late and left work early. He argued that he had a clean disciplinary 

record and was not allowed to be represented by his union official during a disciplinary hearing. 

Noted: That there was no collective agreement that the applicant must be represented by a union official at the 

disciplinary hearing. Only shop stewards are required to be represented by a union official. 

Also noted: That the applicant had arrived late and left work early on several occasions without a valid reason. There 

was overwhelming evidence that the applicant frequently committed fraud. 

Held: That the dismissal of the applicant was fair. The application was, therefore, dismissed. 

GAJB20849 – 08 PSA obo Sebastio v SARS - Commissioner: Mbelengwa 

Dismissal – Employee allegedly received child support grant while employed – Dismissal fair. 

The commissioner was called upon to decide whether the dismissal of the applicant was substantively fair. The 

applicant was dismissed for alleged fraud and misrepresentation. She challenged her dismissal as being unfair and 

sought reinstatement as a relief. 

The respondent testified that the applicant received a child support grant for fifteen months while she was not entitled 

to. It contended that it came to know about the situation when it received a report from the Special Investigation Unit. 

The respondent argued that the applicant breach the respondent’s strategic plans of collecting revenue to be used to 

provide services to the citizens of the country. It further argued that social grants were for the poor needy people not 

people who are employed. 

The applicant acknowledged applying and receiving child support grant for her two children. She argued that she had 

received the grants because she was going through a divorce and her ex-husband was not paying maintenance. The 

applicant contended that the Special Investigation Unit issued her with a fine and she had repaid all the money. She 

further argued that the respondent was inconsistent in application of discipline because a colleague who committed a 

similar offence was issued with a final written warning. The applicant further argued that her actions were not work 

related and she had a clean disciplinary record. 

Noted: That the applicant had acknowledged that she had misrepresented herself when applying for the child support 

grant. The applicant committed a fraud and she did not show any remorse. 

Also noted: That the respondent was an organ of the state that is responsible for collecting revenue for the state. The 

revenue collected is used to fund child support grants which only unemployed mothers are entitled to. 

Held: That the applicant had breached the company’s Code of Conduct which she signed and pledged to abide by it. 

The dismissal of the applicant was fair. The application was, therefore, dismissed. 

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GAJB38804 - 07 Mhlongo v City Power - Commissioner: Mbekwa 

Dismissal – Employee dismissed for reconnecting respondent’s client electricity illegally – Dismissal fair. 

The commissioner was called upon to determine whether the dismissal of the applicant was fair. The applicant was 

dismissed forillegally reconnecting electricity illegally for the respondent’s client. He challenged his dismissal as being 

unfair and sought an appropriate relief. 

The respondent testified that the applicant was dismissed for reconnecting electricity illegally at one of the 

respondent’s client who owed the respondent. It argued that reconnecting electricity to the house which still owes the 

respondent was against the company’s rules and regulations. 

The applicant testified that he reconnected the house as instructed by his supervisor. He claimed that he did not know 

that the client was in arrears for electricity payments. 

Noted: That the reconnection of electricity to the house was illegally as was not authorised by the respondent. 

Held: That the applicant had breach the company rule which he knew. The application was dismissed. 

INCAPACITY 

WE2717 - 07 Steyn v South African Airways - Commissioner: Goldman 

Dismissal – Employee injured on duty- Employee dismissed for poor work performance - Dismissal unfair. 

The commissioner was called upon to decide whether the dismissal of the applicant was both procedurally and 

substantively fair. The applicant was dismissed for incapacity after undergoing a knee operation which rendered her 

unable to perform flight duties almost two years. 

The respondent claimed that the applicant was counselled on several occassions before her dismissal. It further 

claimed that it advised her to apply for a ground post, but she did not do so. 

The applicant testified that the respondent did not do anything to assist her when she returned from work after 

undergoing a surgery on her knee. She contended that she did not apply for ground position as advised due to that fact 

that she wanted to resume her flying duties as she believed that she would be able to do so. The applicant was 

dismissed before the doctor submitted his report to the respondent. 

Noted: That at the time of the dismissal, neither party was able to confirm whether the applicant would be able to 

resume flying duties. 

Also noted: That the respondent had ignored the advice of its own aviation medical specialist who recommended that 

the applicant must be sent to an occupational therapist. 

Held: That the dismissal of the applicant was both substantively and procedurally unfair. The commissioner ordered 

the respondent to reinstate the applicant to the same position with no lost of benefits. 


CWIU & Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) 

Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 25 ILJ 304 (LAC) 

National Union of Mineworkers & Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) 

12

INDEPENDENT CONTRATOR OR EMPLOYEE 



KNDB13517 - 07 Cox v Clark t/a Charlescor- Commissioner: van Zyl 

Dismissal – Contract of employment - Employee received message saying he had been relieved of his duties – 

Dismissal unfair. 

The commissioner was called upon to determine whether the applicant was an employee or independent contractor. 

The applicant started to work as a sales agent and later became a personal assistant for the respondent. 

The applicant testified that she was asked to sign a new employment contract but she refused as the job 

responsibilities included sales functions. She also testified that she signed it after being warned that if she does not do 

so, she would loose her job. The applicant also contended that the respondent accused her of seeking work 

somewhere and told her to leave. She claimed that later on, she received sms saying that she had been relieved from 

her duties. 

The respondent had claimed that the applicant was an independent contractor. It contended that the applicant had 

planned to start a business in competition with it and had left when it was investigating the issue. 

Noted: That the contract the applicant signed before the termination of the relationship could not determine the nature 

of the preceding relationship. 

Also noted: That the applicant was on call for 24 hours a day, performed both office and personal duties for the 

respondent. 

Further noted: That the respondent had accused the applicant of planning to leave to start a new business. 

Held: That the applicant’s dismissal was both procedurally and substantively unfair. The respondent was ordered to 

pay the applicant compensation equivalent to two months’ salary. 


Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC & Another (2001) 22 ILJ 120 (LC) 

Borcherds v CW Pearce & J Sheward t/a Lubrite Distributors (1993) 14 ILJ 1262 (LAC) 

Hydraulic Engineering Repair Services v Ntshona & Others (2008) 29 ILJ 163 (LC) 

Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC) 

Rumbles v Kwa Bat Marketing (Pty) Ltd (2003) 24 ILJ 1587 (LC) 

SABC v McKenzie (1999) 20 ILJ 585 (LAC) 

SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC) 

INSUBORDINATION 

GAJB16577 - 08 Malangeni v Murray & Roberts Cementation (Pty) Ltd - Commissioner: Oosthuizen 

Dismissal - Employee failed to follow instructions - Dismissal fair. 

The applicant was dismissed for failing to follow instructions. He challenged his dismissal as being both procedurally 

and substantively unfair and sought an appropriate relief. 

The respondent testified that as it was going to open a new site, the applicant did not supply necessary paperwork of 

policies and procedures as requested. It contended that the applicant took leave without completing a leave form. He 

was charged with refusal to obey instructions, found guilty and dismissed. 

The applicant argued that he was not given an opportunity to ask questions during a disciplinary hearing. He 

contended that he was not given copies of a case book during the hearing as it was a company policy. The applicant 

further argued that he was not informed of the reasons for his dismissal. 

13



Noted: That the applicant had failed to follow company’s lawful instructions. The applicant did not inform his supervisor 

that he will be on leave. 

Also noted: That the applicant was well informed of the decision and reasons for his dismissal during disciplinary 

hearing. 

Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was, therefore, 

dismissed. 

GAJB13295 - 08 Zhou v Focus Connection (Pty) Ltd - Commissioner: Lucwaba 

Dismissal - Employee failed to follow lawful instructions - Dismissal fair. 

The commissioner was called upon to decide whether the dismissal of the applicant was substantively fair. The 

applicant was dismissed for allegedly failing to follow lawful instructions. 

The respondent testified that the applicant was called to attend a meeting with other staff members but he refused to 

do so. It also testified that the applicant had failed to produce a future stock demands and debtors’ list. The respondent 

argued that it was the company policy that if there was a staff meeting, all staff members must attend. 

The applicant had argued that the meeting was called during lunch time. He contended that he could not stop eating 

and go to the meeting. The applicant further argued that it was not his responsibility to compile a debtors’ list. 

Noted: That the applicant was given enough time to complete the task but he did not meet the deadlines. 

Held: That the applicant did not follow instructions and the dismissal of the applicant was fair. The application was 

dismissed. 

NW2059 - 08 FAWU obo Caleni v Vector Logistics (Pty) Ltd - Commissioner: MacGregor 

Dismissal - Employee allegedly failed to follow instructions - Dismissal fair. 


dismissed for allegedly failing to follow instructions. He challenged his dismissal as being unfair and sought 

reinstatement as a relief. 

The applicant testified that on the day in question, he requested for permission to go to fetch medication at home. He 

argued that he reported for duty while he should have stayed at home because he was sick. The applicant also argued 

that he had informed his supervisor about his whereabouts. 

The respondent claimed that the applicant asked for permission and promised to come back to work, but he did not 

return. It testified that the applicant was supposed to work overtime for stock taking. It argued that the applicant was 

called for a disciplinary hearing but he did not attend. 

Noted: That the applicant did not return to work as agreed when he left. The applicant did not inform his supervisor 

that he would not return to work. 

Also noted: That the applicant was aware of company rules. The applicant did not come for a disciplinary hearing as 

he was invited. 

Held: That the dismissal of the applicant was fair. The application was dismissed. 

14

GATW6799 - 08 Masenya v Eldo Crete CC - Commissioner: Richter 

Dismissal - Employee allegedly left work early without permission - Dismissal fair. 



The commissioner had to decide whether the dismissal of the applicant was being both procedurally and substantively 

fair. The applicant was dismissed for leaving work early and not coming to work on the following day. He challenged 

his dismissal as unfair and sought compensation as a relief. 

The respondent testified that the applicant left work early without permission on the date in question and he did not 

return to work the following day as he was notified to do so. It contended that the applicant had previous warnings for 

the same offence. 

The applicant claimed that he reached an agreement with his co-workers that he would leave early as he was going to 

apply for a house. He argued that other employees sometime leave early but were not disciplined. 

Noted: That the applicant left work early without authorisation and was informed to come to work the following day did 

not arrive. 

Also noted: That the applicant had previous warnings for the same offence. 

Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was, therefore, 

dismissed. 

JURISDICTION 

KNDB2306 - 07 Mzila v Lusitania Food Services - Commissioner: Grobler 

Jurisdiction – CCMA lacks jurisdiction to entertain matter. 

The commissioner was called upon to determine whether CCMA had jurisdiction to entertain the matter. 

The applicant referred the matter to the CCMA, but did not proceed because the notice was not served to the 

respondent. When the matter was supposed to proceed again, it was postponed because the applicant’s 

representative was not available. After the matter was set to proceed yet again, the applicant failed to appear and the 

matter was dismissed. An application for rescission of that ruling was rejected. The applicant then applied to another 

commissioner to rescind the first rescission ruling. 

The respondent contended that the second ruling was irregular because it had not been given notice to that 

application. 

Noted: That in terms of the CCMA Rules, an applicant for rescission must give notice to all affected parties and was 

not done so. 

Also noted: That the commission lacks jurisdiction to rescind a rescission ruling issued by the commissioner. A 

commissioner considering an application for rescission of an earlier rescission ruling must effectively review the earlier 

decision, a task falling exclusive jurisdiction of the Labour Court (LC). 

Further noted: That the commissioner who had rescinded the first rescission ruling had merely accepted a claim by 

the applicant’s union representative that the notice of set down had not been sent to the applicant. The second 

commissioner had not dealt with the second leg on which the first ruling rested, that prospect of success was weak. 

Held: That the first ruling had been issued in error. The matter must set down for arbitration again. 

Further held: That if both rescission rulings were irregular, the decision to dismiss the matter because of the 

applicant’s non-appearance still stood. The commissioner held that the CCMA lacked jurisdiction to entertain the 

matter. The application was dismissed. 

15




De Wet & Others v Western Bank Limited 1979 (2) SA 1031 (A) 

Foschini Group (Pty) Ltd v CCMA & Others (2002) 23 ILJ 1048 (LC) 

Halcyon Hotels (Pty) Ltd t/a Baraza v CCMA & Others (2001) 8 BLLR 911 (LC) 

Kaefer Insulation (Pty) Ltd v President of the Industrial Court & Others (1998) 19 ILJ 567 (LAC) 

Mimmo’s Franchising CC & Others v Spiro & Others (2000) 21 ILJ 2065 (LC) 

Northern Province Local Government Association v CCMA & Others (2001) 5 BLLR 539 (LC) 

Tao Ying Metal Industry (Pty) Ltd v Pooe NO & Others (2007) 16 (SCA) 

WE12701 - 08 IMATU obo Mortimer v Stellenbosch Municipality - Commissioner: Bulbring 

Jurisdiction – CCMA lacks jurisdiction to entertain the matter- Matter referred to council. 

The commissioner had to decide whether CCMA had jurisdiction to entertain the matter. 

The applicant, a director of corporate services of the municipality, was suspended on full pay pending the investigation 

on charges of misconduct. He referred a dispute to CCMA for unfair labour practice. 

During conciliation, the respondent contended that the CCMA lacked jurisdiction to entertain the matter because both 

parties fell within the scope of local government bargaining council. 

Noted: That the applicant’s contract of employment recorded the parties’ consent to the jurisdiction of the CCMA in 

respect of any claim arising from the contract of employment. 

Also noted: That a council agreement provided that employment contracts of municipal managers or employees 

reporting directly to municipal managers should recognise CCMA’s jurisdiction. 

Held: That both parties cannot confer jurisdiction on the commission while it lacked it. The council agreement provided 

that all disputes between municipalities and their employees must be referred to the council. The matter was, therefore, 

referred to the council as the commission lacks jurisdiction. 

MISCONDUCT 

GAJB16197 - 08 Ntuli v Seton S.A. - Commissioner: Hintsho 

Dismissal – Employee dismissed for allegedly fighting and assaulting with colleague - Dismissal unfair 


dismissed for allegedly fighting with a colleague. He challenged his dismissal as being unfair and sought reinstatement 

as a relief. 

The respondent testified that the applicant was dismissed for disorderly behaviour and fighting with a colleague. It 

contended that the applicant was given an opportunity during a disciplinary hearing to defend himself. The respondent 

argued that the applicant had a bad record for disorderly behaviour. It testified that the applicant had been warned 

previously that his behaviour was unacceptable, if he repeats, he will be dismissed. 

The applicant had testified that he sprinkled a colleague with water by mistake. He testified that the colleague left for a 

while, when he returns he called him “short finger” and “short finger is troublesome”. The applicant contended that he 

had told the colleague that he does not like to be called “short finger” and he grabbed him. 

Noted: That the applicant grabbed colleague in retaliation for having been called by names which he did not prefer. 

The applicant scratched the colleague and assaulted him. The company’s policy stated that assault is a dismissible 

offence. 

Also noted: That there was no evidence to show that the applicant was provoked by the colleague. 

Further noted: That the applicant had a history of disorderly behaviour at work. 

16




GAJB13093 - 08 Mathuloe v Lapace Construction (Pty) Ltd - Commissioner: Sesani 

Dismissal for misconduct - Employee dismissed for fighting - Dismissal fair. 


dismissed for allegedly fighting at work. She challenged her dismissal as being unfair and sought an appropriate relief. 

The applicant alleged that she was busy washing one of the respondent’s client’s vehicle when a co-worker assaulted 

her. She testified that she reported the incident to the respondent, but it said that they must sort their problems 

themselves. The applicant also testified that she reported the matter to the police due to the nature of the injuries she 

sustained. 

The respondent testified that it received a call from its client that two employees were fighting while on duty. It called 

them for a disciplinary hearing, found guilty and were both dismissed. 

Noted: That both employees were found guilty and were dismissed. The company policy stated that fighting on duty 

was a dismissible offence. 

Also noted: That the applicant did not submit any documents to proof that she reported the incident to the police. 


KNRB710 - 08 Sibiya v SAB t/a ABI (Amalgmated Beverage Industries) - Commissioner: Vermaak 

Dismissal – Employee dismissed for allegedly intimidating colleague – Dismissal fair. 

The commissioner had to determine whether the dismissal of the applicant was being both procedurally and 

substantively fair. The applicant was dismissed for allegedly intimidating a colleague. He challenged his dismissal as 

unfair and sought for an appropriate relief. 

The respondent’s witness testified that on the day in question, the applicant told her that he is going to hit her. It 

testified that the applicant throw the bowl of sugar on the colleague. The respondent contended that the applicant had 

received a final warning previously for fighting with another colleague. 

The applicant denied that he intimidated or assaulted a colleague. He argued that the counter was slippery and caused 

the sugar to fall when he placed it on the counter. 

Noted: That the applicant was previously issued with a final written for fighting at work. The applicant was supposed to 

be aware that his behaviour was unacceptable. 

Held: That the applicant had intimidated a colleague and acted in a violent manner. The dismissal of the applicant was 

both procedurally and substantively fair. The application was dismissed. 


SAAWU & Others v Dorbyl Automotive Products (Pty) Ltd (1988) 9 ILJ 680 (IC) 

NW3501 - 08 Mdaka v Rustenburg Platinum Mines - Commissioner: Ramotshela 

Dismissal for misconduct – Employee arrested while on leave - Employee did not report for his whereabouts - 

Dismissal fair. 


procedurally fair. The applicant was detained while on leave, he did not report to work and he was dismissed. He 

challenged his dismissal as being both substantively and procedurally unfair and sought appropriate relief. 

17



The applicant had admitted that he was absent from work as alleged by the respondent. He also admitted that he did 

not inform the respondent about his whereabouts. The applicant contended that the penalty of dismissal was too harsh. 

The respondent testified that the applicant was dismissed for not reporting to work. It contended that the applicant did 

not notify it of its whereabouts, he only return to work after two months. 

Held: That it would be unreasonable and burdensome for the respondent to keep the applicant’s position vacant. It 

was held that the dismissal of the applicant was both substantively and procedurally fair. The application was, 

therefore, dismissed. 

GAPT5566 - 08 Ramporo v Protea Security Group - Commissioner: Tsabadi 

Dismissal for misconduct – Employee allegedly drove customer client’s vehicle without permission - Dismissal fair. 

The commissioner was called to decide whether the dismissal of the applicant was being both substantively and 

procedurally fair. The applicant was dismissed for allegedly driving a respondent’s client vehicle without permission. He 

challenged his dismissal as unfair and sought reinstatement as a relief. 

The respondent testified that the client left the car and keys with the applicant for service to be done for the following 

day. It claimed that when the client had left, the applicant took the vehicle and drove it. The respondent argued that it 

was the applicant’s responsibility to protect the property of its client and customers. It contended that the applicant was 

not allowed to drive the client’s vehicle or those belonging to the client’s customers as per the respondent’s policies 

and procedures. 

The applicant denied that he drove the same vehicle that was mentioned by the respondent but he drove a different 

vehicle. He claimed that he was requested by the client to drive the car. 

Noted: That the applicant’s main function was to protect the property of the client and its customers. The applicant was 

aware of the rules and regulations concerning the respondent’s customer and clients vehicles. 

Also noted: That the applicant had admitted driving the customer’s client vehicle during the disciplinary hearing. The 

applicant’s conduct had irretrievably damaged the relationship of trust. 


MISUSE OF EMAIL 

GAPT3983 - 07 Maumakwe v Vodacom - Commissioner: Ferreira 

Dismissal for misuse of company property – Employee allegedly sent derogatory email to customer - Dismissal fair. 

The commissioner was called upon to decide whether the dismissal of the applicant was being both substantively and 

procedurally fair. The applicant was dismissed for allegedly sending derogatory message by email to the respondent’s 

customer. She challenged her dismissal as unfair and sought for an appropriate relief. 

The respondent contended that it had received a message from the customer who was complaining about the email 

sent. The respondent argued that it had a strict policy about unauthorised access of customer’s information. It 

contended that it could lose its licence as it was regulated by strict laws of Independent Communications Authority of 

South Africa (ICASA). 

The applicant denied that he had done anything wrong and claimed that the respondent had framed him to get rid of 

him. He claimed that he had a clean disciplinary record and dismissal was too harsh. 

Noted: That the applicant had claimed that there was conspiracy against him but he could not provide any further 

evidence to substantiate the allegation. 

Also noted: That the applicant was aware of the company rules that regulates the usage of emails. 

18



Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was, therefore, 

dismissed. 


Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) 

Gerber v Algorax (Pty) Ltd (1999) 20 ILJ 2994 (CCMA) 

Malelane Toyota v CCMA (1999) 6 BLLR (LC) 

NUM & Others v Free State Consolidated Gold Mines (Operations) Ltd (1995) 12 BLLR 8 (AD) 

NEGLIGENCE 

NC400 - 08 NUM obo Motala v Nare Diamond Mining - Commissioner: Kayster 

Dismissal – Employee dismissed for being under the influence of drugs - Dismissal unfair. 

The applicant, a dump truck operator was dismissed for negligence and for being under the influence of drugs. He 

challenged his dismissal as substantively unfair. 

The respondent testified that the applicant was seen smoking dagga while driving the truck and caused accident due to 

his negligence. It claimed that there was a strict rule against the smoking of dagga which all employees knew about it. 

The respondent also claimed that other employees had been dismissed for negligent driving. 

The applicant denied that he smoked dagga on the day in question but claimed that he was smoking a cigarette. The 

applicant mentioned that he was not aware of any policy relating to the smoking of dagga. He testified that having 

dreadlocks did not mean that he smokes dagga, it was just a hairstyle. The applicant claimed that he was following his 

conductor’s instructions, the ground was not level and the accident occurred. 

Noted: That the evidence of the respondent was confusing and contradictory. The mere fact that the applicant wore 

dreadlocks was insufficient to prove that he smoked dagga. 

Also noted: That at the time of the incident, the soil had been removed from the base of the ramp rendering it 

unstable. 

Held: That the applicant was innocent for charge and the dismissal was substantively unfair. The applicant was, 

therefore, reinstated. 

GAJB12897 - 08 Makhetha v Cyber Cleaning & Security - Commissioner: Smith 

Dismissal – Employee dismissed for failing to follow company rules and procedures - Dismissal fair. 

The commissioner was called upon to determine whether the dismissal of the applicant was both being substantively 

and procedurally fair. The applicant was dismissed for negligence. He challenged his dismissal as unfair and sought 

appropriate relief. 

The applicant testified that he did not attend the hearing as he was unfamiliar with the venue. He contended that he 

was not given enough time to prepare for the hearing. The applicant also testified that he was given and forced to sign 

a notice of attendance of the hearing. He argued that he was singled out as the culprit while other employees were not 

charged. 

The respondent contended that the applicant failed to active the security sensors for a period of four hours on the day 

in question. It testified that the applicant was aware of the procedures to be followed. The respondent’s client was not 

sure whether the applicant was at work or not and it decided to terminate the contract with the respondent. 

Noted: That the applicant did not dispute that he had failed to activate the sensor buttons nor that he was familiar with 

the procedures to be followed. 

19



Also noted: That the applicant was served with a disciplinary notice. If he was not prepared, he should have attended 

the hearing and request for a postponement. 


KNDB5843 - 08 Mkhize v Pick n Pay - Commissioner: Balkaran 

Dismissal – Employee dismissed for till shortage - Dismissal fair. 

The applicant was dismissed for till shortage. She challenged her dismissal as being unfair and sought reinstatement. 

The respondent testified that the applicant had been issued with several warnings for till shortages previously. It also 

testified that the applicant had been transferred to other departments as a recommendation from the doctor that she 

was required to do less stressful work. The applicant’s salary was unchanged. It further testified that the applicant was 

transferred to her original position at the time of her dismissal due to negligence. 

The applicant testified that she had stress related problem that affected her performance. She argued that the sanction 

of dismissal was too harsh. 

Noted: That the applicant did not deny that she had several incidents of till shortages and several warnings. The 

respondent had accommodated the applicant by transferring her to less stressful position. 

Also noted: That the applicant was aware of the company policy related to till shortage. 


ECEL347 - 08 SATAWU obo Nel v Vehicle Delivery Services (Pty) Ltd - Commissioner: Cahill 

Negligence – Employee dismissed for ignoring safety rules – Employee causing accident while offloading vehicle - 


The applicant, a carrier driver, was dismissed after a vehicle transported in his carrier was damaged in an accident 

while he was offloading it. He challenged his dismissal as being both procedurally and substantively unfair. 

The applicant testified that on the day in question, the dealership where he was supposed to deliver the vehicles was 

already closed, but he decided to offload their units. One of the vehicles was a non-runner. He claimed that he 

contacted his supervisor by cell phone, but he did not answer. Later on, he started to offload the vehicle. The applicant 

also claimed that in terms of the applicable company procedures, he untied the anchor straps of all four wheels as the 

car was stable. He contended that he opened the driver’s door so as to push the car. He further claimed that as he was 

pushing the car backwards with his right foot, his foot slipped, causing all his weight to shift to his right hand side. He 

indicated that he only recalls lying on the ground when the rescue team arrived to assist him. 

The respondent’s witness testified that he had initiated an investigation on the same day that he became aware of the 

applicant’s accident. He claimed that he inspected video footage of the incident. Subsequent to that, the applicant was 

called to a disciplinary hearing and charged with: 

� gross negligence in that he had caused extreme damage to the respondent’s vehicle, 

� failure to comply with a direct instruction, and 

� breach of internal safety rules in that his actions placed himself and fellow employees’ lives at risk. 

Noted: That the applicant did not comply with the rule which required that a non-runner vehicle must be firstly engaged 

in a gear, and the hand brake must be pulled up fully before the driver undo anchor straps. Had the applicant complied 

with the procedure, the vehicle would not have run down the ramp on its own. 

Also noted: That the applicant had never lost consciousness after the accident, he knew exactly what had happened. 


20




Fidelity Cash Management Services v CCMA & Others (2008) 3 BLLR 197 (LAC) 

NUM & Another v Amcol Colliery t/a Arnot Colliery & Another (2000) 8 BLLR 869 (LAC) 

Shoprite Checkers (Pty) Ltd v Ramdaw NO & Others (2000) 21 ILJ 1232 (LC) 

Sidumo & Another v Rustenburg Platinum Mines (Pty) Ltd & Others (2007) BLLR 1097 (CC) 

NW1821 – 08 De Nysschem v West Dawn Investment (Pty) Ltd t/a JIC Mining Services - Commissioner: 

Matshekga 

Negligence – Employee dismissed for alleged over measuring tunnel – Dismissal unfair. 

The commissioner was called upon to decide whether the dismissal of the applicant was being both procedurally and 

substantively fair. The applicant, a mine overseer, was dismissed for alleged misconduct. He challenged his dismissal 

as unfair and sought reinstatement as a relief. 

The respondent testified that the applicant had over measured the tunnel belonging to the respondent’s client. It 

contended that it had been billed for more work than what he had actually been performed. The respondent contended 

that the applicant did not report them immediately to management. 

The applicant testified that he did not report the over measurements to the respondent as he was not sure how it will 

react. He argued that his letter of appointment did not provide how he should rectify over measurements. 

Noted: That the applicant had admitted that there had been over measurements and he had intention to correct it. 

Also noted: That there was no evidence to prove that over measurement had taken place before the applicant had 

assumed responsibility for the area. The applicant was dismissed because he was the overseer of the area. 

Held: That the dismissal of the applicant was procedurally fair but substantively unfair. The respondent was ordered to 

reinstate the applicant with retrospective effect. 

POOR WORK PERFORMANCE 

GAPT14 - 08 Domingo v Add Bag Advertising CC - Commissioner: Jansen van Vuuren 

Dismissal – Employee dismissed for allegedly failing to reach non existent sales targets - Dismissal unfair. 

The applicant was dismissed after a few weeks’ service. He challenged his dismissal as being both procedurally and 

substantively unfair. The applicant claimed that before her dismissal, a letter had been written informing her that she 

had been dismissed because she had obtained her job on false pretences. She testified that she had not received any 

training, guidance, so that she could meet the respondent’s performance standards. 

The respondent contended that the applicant was expected to make at least twenty calls per day and thereafter meet 

prospective clients. It claimed that the applicant did not meet the prospective clients physically and she had been doing 

her husband’s business during working hours. 

Noted: That the allegation of dishonesty arose from the allegation that the applicant had falsely claimed that she 

owned a motor vehicle. 

Also noted: That the applicant’s contract of employment contained no sales targets. 

Held: That the dismissal of the applicant had been substantively and procedurally unfair. The commissioner ordered 

the respondent to compensate the applicant. 

21


Foudien & Others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) 

NIWU & Others v Chester Wholesale Meats KZN (Pty) Ltd (2004) 25 ILJ 1293 (LC) 



GAJB27073 - 07 IEA obo Byrch v RGC Engineering Sales Division (Pty) Ltd) - Commissioner: Stapelberg 

Dismissal - Employee dismissed for poor performance - Dismissal unfair. 

The commissioner was called upon to determine whether the dismissal of the applicant was being both procedurally 

and substantively fair. The applicant was dismissed after two years of service for alleged poor work performance. 

The respondent contended that the applicant was aware of his shortcomings and his failure to meet required targets. It 

claimed that the applicant failed to reach his targets because he was engaged in outside work. The respondent stated 

that the applicant was not charged for moonlighting because it was only established after his termination. 

The applicant claimed that his dismissal was unfair because the respondent had given him neither warning nor 

informed that his performance was substandard and he was not sent for counselling or training. 

Noted: That the Code of Good Practice for Dismissal require employers to give underperforming employees training, 

education, guidance and counselling, and to afford them a reasonable opportunity to improve. The respondent was 

ignorant of the law. 

Also noted: That the applicant had admitted that he did not meet the required standard. He gave reasons for poor 

work performance and suggestions to improve. 

Held: That the dismissal of the applicant was both procedurally and substantively unfair. The respondent was ordered 

to compensate the applicant an amount equivalent to six months ’salary. 

GAJB18468 - 07 Hlaisi v Liberty Life Group Ltd - Commissioner: Boyce 

Dismissal – Employee dismissed for poor work performance - Employee did not meet set sales targets - Dismissal fair. 

The applicant, a sales manager, was dismissed for poor work performance after his sales team persistently failed to 

reach required targets. He challenged his dismissal as being unfair and sought an appropriate relief. 

The respondent testified that during his performance review meetings, it was found that he did not reach set targets. It 

contended that the applicant was warned that disciplinary action will be taken against him if he does not improve his 

performance. 

The applicant claimed that his dismissal was unfair because he had an inadequate sales team and he received 

insufficient assistance from his supervisor. He also claimed that the presiding officer was biased during disciplinary 

enquiry. 

Noted: That the applicant had underperformed for two years. He had been repeatedly warned that actions will be 

taken against him. 

Also noted: That other sales managers of the respondent had attained their sales targets. There were no valid 

reasons that the applicant provided to show why he did not reach his targets. 

Held: That the applicant’s allegation that the presiding officer at the disciplinary hearing was biased was without 

foundation. 

Also held: That the dismissal of the applicant was fair. The application was dismissed. 

22

RETRENCHMENT 



GAPT11563 - 07 Dube & Others v Tshwane University of Technology (TUT) - Commissioner: de Wet 

Dismissals based on operational requirements – Subjective criteria for selecting employees – Dismissal unfair. 

After the respondent was formed as result of the merger of three institutions, a match and place process was instituted 

to select employees of the merged institutions for available posts in the new institution. The applicants, all in middle 

managerial positions, were not appointed and their contracts were terminated. They challenged their dismissal as 

substantively unfair and sought reinstatement. 

The applicants claimed that the respondent did not adhere to its own guidelines. They testified that they were not given 

a chance to represent themselves during the initial phase of the process and their managers prepared representations 

on their behalf. The applicants contended that they were not provided with valid reasons why they were not selected 

for the posts. 

The respondents claimed that the applicants were retrenched because there were no suitable vacant posts for them. It 

contended that the merger necessitated the development of a new organisational structure. The process required 

inputs from top managers into the appointment of their subordinates. All the applicants were not recommended by their 

managers and they were retrenched. The respondent argued that it retained only the best qualified and most 

experienced staff. 

Noted: That the respondent cannot be blamed for attempting to retain the best qualified and most experienced staff. 

Also noted: That the applicants were not afforded sufficient opportunity to influence the outcome of the process and 

no valid reasons were provided to them. 

Further noted: That the respondent had failed to prove that the applicants were not suitable for any of the available 

posts. The evidence presented by the respondent was inconsistent. 

Held: That the dismissals of the applicants were substantively unfair. The commissioner ordered the respondent to 

reinstate the applicants with retrospective effect. 


CWIU & Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) 

Perumal & Another v Tiger Brands (2008) 1 BLLR 58 (LC) 

WE5670 - 08 IBSA obo Rabin v Old Mutual Life Assurance Co SA Ltd - Commissioner: Goldman 

Dismissal based on operational requirements – Employee dismissed for misconduct while on notice period after been 

retrenched – Employee entitled to severance pay. 

About two weeks after the applicant was retrenched, and while working out her notice period, she was served with a 

notice of disciplinary hearing, found guilty and dismissed. The applicant challenged her dismissal as being both 

procedurally and substantively unfair. 

The applicant claimed that she did nothing wrong. She argued that an employee cannot be dismissed for misconduct 

after being retrenched. 

The respondent contended that the applicant was charged with misconduct because she concluded a contract with the 

respondent’s competitor without following proper protocols. It argued that the applicant’s referral was defective as it 

was out of thirty days period. 

Noted: That the applicant had breached the rule which may have serious repercussions on the respondent both 

financially and in terms of its reputation. 

Also noted: That other employees who had breached the same rule were not disciplined. 

23



Further noted: That the applicant’s referral was not late as the certificate of outcome had been issued, the 

commission was required to arbitrate the matter. 

Held: That the respondent was ordered to pay the applicant the severance pay, leave pay and incentive bonus owing 

to her. 


van As v African Bank Ltd (2005) 3 BLLR 304 (W) 

THEFT 

ECPE958 - 08 Hammond & Another v CTI - Commissioner: Gruss 

Dismissal – Employee assisting employer’s competitor to design logo and letterhead – Dismissal unfair. 

The commissioner was called upon to determine whether the applicant’s dismissal was both procedurally and 

substantively fair. The applicant was dismissed for allegedly assisting the respondent’s competitor to design logo and 

letterhead. 

The applicant admitted that while employed by the respondent, he was an unremunerated director of the consultancy. 

He claimed that his involvement in other entities was known by the respondent. 

The respondent claimed that the applicant had stolen compact disc (CD) containing confidential information and for 

using altered copy of the respondent’s letterhead. It contended that the information obtained by the applicant was 

critical to its marketing operations as the information would be used to attract potential students. The respondent also 

contended that the industry that it operates was highly competitive. 

Noted: That the applicant had assisted one of the respondent’s competitor’s to design a logo and letterheads, but 

there was no proof that the CD allegedly used by the applicant belonged to the respondent. 

Also noted: That the applicant was not afforded sufficient time to answer the charges against him. 

Held: That the dismissal of the applicant was procedurally unfair. The commissioner ordered the respondent to pay the 

applicant compensation equivalent to three months’ salary. 


Avril Elizabeth Home of the Mentally Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC) 

Foudien & Others v House of Trucks (Pty) Ltd (2002) 23 ILJ 2259 (LC) 

Henred Fruehauf Trailers v National Union of Metalworkers of SA & Others (1992) 13 ILJ 593 (LAC) 

Nampak Corrugated Wadeville v Khoza (1999) 20 ILJ 578 (LAC) 

National Union of Mineworkers v Henred Fruehauf Trailers (Pty) Ltd (1994) 15 ILJ 1257 (A) 

NIWU & Others v Chester Wholesale Meats KZN (Pty) Ltd (2004) 25 ILJ 1293 (LC) 

Reckitt & Colman (SA) (Pty) Ltd v Chemical Workers’ Industrial Union & Others (1991) 12 ILJ 806 (LAC) 

GAPT2446 - 08 Sibanyoni v Vizual Security (Pty) Ltd - Commissioner: van Wyk 

Dismissal – Theft and unauthorised possession of company goods – Dismissal fair. 

The applicant, a security guard, was dismissed after a disciplinary hearing which was held in his absence. He 

challenged his dismissal as procedurally unfair. 

The applicant contended that on the day in question, he was apprehended by two colleagues when he exited through 

the main gate. He claimed that they had “planted” the bread in the boot of his car so that he could be dismissed. 

24



The respondent argued that the applicant had contravened the rule which stipulated that no one should take what does 

not belong to him. The respondent’s witness testified that after the applicant had knocked off, he apprehended him in 

possession of eight loaves of bread belonging to the respondent’s client. The applicant was invited to two disciplinary 

enquiries, but never attended any of them. The witness also testified that misappropriation of bread belonging to the 

respondent’s client had placed the entire contract with the respondent’s client at risk. The respondent’s witness 

claimed that about 18 security guards would be without jobs if the respondent’s client terminated the contract with the 

respondent. 

Noted: That the applicant was employed to safeguard the respondent’s client assets instead he stole from the client. 

The respondent’s client can no longer trust the applicant to guard its assets. 

Held: That the applicant’s dismissal was both procedurally and substantively fair. The application was dismissed. 


Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 3 (6) SALLR 1 (LAC) 

Grogan AJ in Carter v Value Truck Rental (Pty) Ltd (2005) 1 BLLR 88 (SE) 

Khanum v Mid-Glamorgan Area Health Authority (1978) IRLR 215 

Nedcor Bank Ltd v Jappie (1998) 10 BLLR 1002 (LAC) 


Standard Bank of South Africa v CCMA & Others (1998) 6 BLLR 622 (LC) 

LP4627 - 08 BGWU obo Kekana v Midway Bricks - Commissioner: Nyofu 



dismissed for allegedly stealing a cable. He challenged his dismissal as being unfair and sought an appropriate relief. 

The respondent testified that it was running a motor vehicle when it saw the applicant jumping up and throwing a cable 

on the ground in the veld. It argued that when it approaches the applicant, he run away and left the cable lying on the 

ground. 

The applicant contended that he went home early on the day in question. He denied that he stole the cable and that 

the respondent saw him on the veld. 

Noted: That the applicant was seen running away leaving the cable on the ground in the veld. The evidence showed 

that the applicant was the one who stole the cable from the respondent’s premises. 


KNPM1721 - 08 CEPPWAWU obo Masondo v R F Gevers (Pty) Ltd - Commissioner: du Preez 

Dismissal – Theft and unauthorised possession of company goods – Dismissal unfair. 

The commissioner was called upon to decide whether the applicant was unfairly dismissed. The applicant was 

dismissed for alleged stealing diesel. He challenged his dismissal as being unfair and sought reinstatement as a relief. 

The respondent testified that as it approached the main shed, the applicant ran away. It found a 5 litre with diesel in it. 

The respondent contended that there was 210 litre pen drum which was open and it concluded that the diesel had 

been taken from the pen drum. It also testified that it called all the staff members and advise them that a guilty person 

must come forward and that a written warning would be given against the person who committed the offence, but 

nobody admitted for theft. As nobody was coming forward he decided to discipline the applicant. 

The applicant contended that he did not steal the diesel. He mentioned that he was suspended, called for disciplinary 

hearing and dismissed. 

25



Noted: That the stealing of diesel was a big problem for the respondent. The applicant was seen running away from 

where the incident occurred. 

Held: That there was no evidence to prove that the applicant was the one who was attempting to steal the diesel. The 

respondent was ordered to reinstate the applicant with retrospective effect. 

MP2080 - 08 UPUSA obo Sakhali v Harmony Gold Mining Company Ltd - Commissioner: Nienaber 

Dismissal – Theft and alleged unauthorised possession of company goods – Dismissal unfair. 


procedurally fair. The applicant was dismissed for alleged unauthorised possession of company goods. He challenged 

his dismissal as being unfair and sought for an appropriate relief. 

The applicant testified that on the day in question, he was instructed by his supervisor to go and fetch a paint 

underground using his supervisor’ clock card. When he returns to the surface, he was searched by the respondent’s 

security guard who alleged that he had stolen the paint. He also testified that the paint was not hidden anywhere but he 

carried it openly. He further testified that he was arrested for the theft of paint. 

The respondent argued that the applicant was caught with stolen paint with his supervisor’s clock card. It contended 

that the applicant did not follow company procedures when he fetches the paint, he was supposed to have an 

authorised letter from his supervisor. The respondent testified that the applicant tried to run away with the paint when 

he was caught. It alleged that the applicant tried to bribe a security guard. 

Noted: That the applicant had the permission to take the paint as instructed by his supervisor. No evidence to prove 

that the applicant did not follow the company procedures. 

Also noted: That the applicant did not hide the paint as he was holding it on his hand. 

Held: That there was no proof that the applicant had stolen the item. The respondent was ordered to reinstate the 

applicant with retrospective effect. 

MP7773 - 07 Khoza v Nelspruit Cash & Carry - Commissioner: Dibden 

Dismissal – Employee dismissed for alleged theft and unauthorised possession of company goods – Dismissal fair. 

The applicant was dismissed for alleged theft. He challenged his dismissal as being substantively unfair and sought 

reinstatement as a relief. 

The respondent argued that the applicant was found in possession of the respondent’s tea bags when he knocks off. It 

argued that if the applicant wanted to buy the goods, he was supposed to buy during working hours prior to his knock 

off. When the applicant was apprehended with the tea bags, all the cashiers had already closed their tills. 

The applicant argued that the tea bags were used by all staff. He also argued that he was going to ask the manager for 

permission to take the tea bags but he had been apprehended before he could do so. 

Noted: That the applicant did not follow the company’s procedures which was well known to him when he took the 

goods. 

Also noted: That the item stolen had an economic value. The applicant was not working on the best interest of the 

employer by stealing goods set aside for all employees usage. 


26



GAPT6226 - 08 Cloete v Chubb Electronics Security (Pty) Ltd - Commissioner: van Wyk 


The commissioner was called upon to decide whether the dismissal of the applicant was both substantively and 

procedurally fair. The applicant was dismissed for alleged unauthorised possession of company goods. He challenged 

his dismissal as being both procedurally and substantively unfair and sought reinstatement as a relief. 

The respondent testified that the applicant was dismissed for stealing petrol belonging to it and putting it to his own car. 

It argued that it had thoroughly investigated the applicant’s case before it charged him. 

The applicant claimed that he was framed. He contended that it would make no sense to steal petrol right in front of the 

respondent’s main offices. 

Noted: That the applicant was found in unauthorised possession of company goods. 

Held: That employment relationship had been destroyed. The dismissal of the applicant was both substantively and 

procedurally fair. The application was dismissed. 


Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 3 (6) SALLR 1 (LAC) 

Carter v Value Truck Rental (Pty) Ltd (2005) 1 BLLR 88 (SE) 

Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry & Others (2008) 3 BLLR 241 (LC) 

Nedcor Bank Ltd v Frank & Others (2002) 7 BLLR 600 (LAC) 

Sidumo & Another v Rustenburg Platinum Mines Ltd & Others 2008 (2) BCLR 158 (CC) 

Standard Bank of South Africa Ltd v CCMA & Others (1998) 6 BLLR 622 (LC) 

NC1907 – 08 Boane v K& B Store t/a OK Grocer - Commissioner: Osler 

Dismissal – Theft and unauthorised possession of company goods - Employee dismissed for alleged dishonesty - 



dismissed for alleged theft. She challenged her dismissal as being unfair and sought compensation as a relief. 

The respondent testified that the applicant had stolen a pre-paid electricity voucher on the day in question. It 

contended that the applicant had generated a voucher for himself for an amount of R200.00 which was not paid. After 

an investigation, it was discovered that the applicant used electricity at her house. The respondent claimed that the day 

the voucher was printed from the till, the applicant was using that till. 

The applicant denied that she stole electricity from the respondent as she used to buy electricity from time to time. She 

claimed that she was framed by her supervisor. 

Noted: That the electricity voucher was used at the applicant’s home. The respondent did not receive any payment of 

that voucher. 

Held: That the applicant was guilty of theft. It was held that trust relationship had broken down. The applicant’s 

dismissal was substantively fair. The application was, therefore, dismissed. 

27

STRIKE 



KNDB10257 - 07 NEHAWU obo Mnguni & Others v St Mary’s Catholic Mission Hospital Trust t/a St Mary’s 

Hospital – Commissioner: Pillemer 

Dismissal – Shop stewards embarked on illegal secondary strike – Intimidating essential service employees - 


The applicants, shop stewards, were dismissed for allege blocking the respondent’s premises and intimidating 

essential services staff members during strike action. They challenged their dismissals as being both procedurally and 

substantively unfair and they sought reinstatement as a relief. 

The applicants testified that they were strike leaders and denied that their participation in industrial action and that they 

had intimidated other staff members. They argued that they did not place debris on the road leading to the 

respondent’s premise entrance. The applicants contended that they did not block the road for ambulances and doctors 

to gain access to the respondent’s premises. 

The respondent testified that on the day in question, the road to its premises was barricaded with rocks and dustbins. It 

contended that the roadblock was strategically placed and blocked the only road to the respondent’s premises’ 

entrance. There was no other viable road leading to the premise. 

Noted: That the applicants had admitted that they played a leadership role during the industrial action. They barricaded 

the road leading to the respondent’s premises and they knew it was wrong. 

Also noted: That the applicants were aware that essential services workers were not entitled to participate in industrial 

action. The applicants refused to negotiate with the respondent concerning entrance of essential workers. 

Further noted: That the applicants were aggressive and using sticks to ensure that essential services workers 

participate in the strike. No essential services staff reported for work that day as they were intimidated by applicants 

and the lives of patients were at risk. 

Held: That the behaviour of the applicants were unacceptable and destructive. The application was, therefore, 

dismissed. 

UNFAIR DISMISSAL 

KNDB2621 - 08 Cele v ABC Discount Centre – Commissioner: Masipa 

Dismissal – Employee given new employment contract but did not sign it – Employee’s contract terminated – Dismissal 

unfair. 

The commissioner was called upon to decide whether the dismissal of the applicant was both procedurally and 

substantively fair. The applicant was dismissed after she did not sign a new contract. She alleged her dismissal as 

being unfair and she sought compensation as a relief. 

The applicant testified that she was given a new contract to sign but she did not sign it. She argued that the previous 

contract did not stipulate expiry date. The applicant was given a letter to terminate her services. 

The respondent argued that its intention was to renew the applicant’s contract. It contended that it gave the applicant a 

new contract due to the fact that it was illegal. The respondent also argued that it did not dismiss the applicant, but her 

employment had expired. 

Noted: That the contract signed by the applicant when she commenced to work did not have an expiry date. 

Therefore, there was no need for the applicant to sign a renewal contract. 

Held: That the respondent had terminated the applicant’s service and the applicant was dismissed 

28



Also held: That the dismissal of the applicant was unfair. The respondent was ordered to compensate the applicant an 

amount equivalent to five months’ salary. 

UNFAIR LABOUR PRACTICE 

GAJB13846 - 08 Gibhard v Golden Pond 652 (Pty) Ltd t/a Beier Plastics - Commissioner: Boyce 

Unfair labour practice - Failure to appoint, promote, reinstate or re-employ – Demotion - No evidence to prove 

employee was demoted. 

The commissioner was called upon to determine whether the respondent had committed an unfair labour practice. The 

applicant, a manager, was given a post of a sales representative after he had reached the retirement age. 

The respondent testified that after the applicant had reached the retirement age, it decided to retain him to work as a 

sales representative for 18 months in order to build a client database. It contended that the main aim was to assist the 

applicant to earn a living wage. The respondent also testified that it did not demote the applicant and that his salary 

was not changed. 

The applicant testified that he was told by the respondent during a meeting that he would be required for a period of 18 

months to build a client database. Since that meeting, the applicant worked as a sales representative and his salary 

was never changed. The applicant argued that he was not sure whether he was working as a sales representative or a 

manager. The applicant notified the respondent that he was not happy to be a sales representative, he wanted to be 

retrenched, but the respondent disagreed. 

Noted: That the applicant was given an opportunity to earn a living wage after he had reached the retirement age. It 

was noted that that was not a demotion, but an offer in order to assist the applicant. 

Also noted: That the applicant’s salary was not changed. The applicant was not happy for doing the duties of sales 

representative. 

Held: That the applicant had failed to prove that he was demoted. The application was dismissed. 

GAJB28663 - 07 UASA obo Forrester v Ekurhuleni Metropolitan Municipality - Commissioner: Shardlow 

Unfair labour practice - Failure to appoint, promote, reinstate or re-employ – External applicant employed to position 

instead of internal applicant – Proof of unfair labour practice existed. 

The commissioner was called upon to decide whether the non promotion of the applicant was unfair. The applicant was 

not given a position he applied for after acting on it for a long period. He challenged that his non appointment to the 

position was unfair. 

The applicant had testified that he had 23 years relevant experience and qualifications for the post. He argued that he 

does not agree with the Employment Equity Act no.55 of 1998 (EEA) as it renders unfair labour practices. He further 

argued that the requirements of employment equity affect local government service delivery. 

The respondent had testified that the appointment of the post in question was done based on employment equity 

targets, the applicant did not form part of the targeted group. It argued that the candidate who was appointed had 

relevant qualifications, skills and experience required for the position. 

Noted: That the respondent was required by law to comply with the EEA. Black male candidates were classified as the 

highest need category and the applicant was a white male. The respondent was obliged to apply for employment 

equity and to exclude certain groups as it is a designated employer and it is compelled by law to comply with the EEA. 

Also noted: That the advertisement of the post did not mention that other candidates from previously advantaged 

groups must not apply. 

29



Further noted: That the applicant had already performed all the functions of the position when he was acting. The 

respondent had used the applicant’s knowledge and expertise without necessary benefits associated with higher 

position. If the applicant can leave the respondent, it would loose a lot of expertise. 

Held: That the respondent had committed an unfair labour practice. The commissioner ordered the respondent that, 

should vacancies exist in future, if the applicant applies, he should be considered on merit. 


Cullen v Distell (Pty) Ltd (2001) 8 BALR 834 (CCMA) 

Department of Justice V CCMA & Others (2004) 25 ILJ 248 (LAC) 

PSA v Department of Justice (2004) 25 ILJ 692 (LAC) 

GAJB28383 - 06 Jiyana v Gauteng Provincial Legislature - Commissioner: Cellier 

Unfair labour practice - Employee alleged reduction of salary and suspension of benefits - No proof of unfair labour 

practice. 

The commissioner was called upon to determine whether the respondent had committed an unfair labour practice. The 

applicant alleged that her salary was reduced. She contended that she had lodged a grievance, but it was not attended 

to. She also contended that while on maternity leave, a draft policy was applied to her, whereby, her medical, provident 

fund and other benefits were suspended for four months. 

She claimed that the relationship with her supervisor was volatile. The applicant further contended that her supervisor 

labelled her as a “trouble maker”. 

The respondent’s witness testified that he had facilitated a meeting between the applicant and her supervisor. The 

respondent claimed that the applicant’s grievances had been addressed and resolved, but the applicant did not 

acknowledge the concerns that her supervisor had raised. He denied that the applicant’s salary had been tampered 

with in an unlawful manner. 

Noted: That the applicant could not submit any proof of her allegations. 

Held: That there was no evidence to prove that the respondent had committed an unfair labour practice. The 

application was dismissed. 

GAJB10046 - 08 Girardi v A Le Roux Attorneys - Commissioner: van der Merwe 

Unfair labour practice – Failure to appoint, promote, reinstate or re-employ - No proof of unfair labour practice. 

The commissioner was called upon to decide whether the respondent had committed an unfair labour practice by not 

promoting the applicant to a position and the respondent denied having offered her the position. 

The applicant claimed that she had been offered and accepted a post during an interview. She claimed that during the 

interview, the respondent explained to her about office set-up, an amount of her salary and later she was introduced to 

other staff members. 

The respondent contended that the applicant was not appointed to the position due to her previous references. It 

denied that it had appointed the applicant and the employment contract was not concluded. 

Noted: That the applicant had relied on working conditions which were mentioned during the interview that she was 

employed. 

Also noted: That the salary which was mentioned by the applicant was out of the line with salaries paid in practice for 

the same position in the labour market. 

Held: That the applicant was not employed by the respondent. The application was dismissed. 

30



NC2043 - 08 Sia v SA Post Office Ltd - Commissioner: Louw 

Unfair labour practice – Employee issued with a warning - Proof of unfair labour practice existed. 

The commissioner was called upon to determine whether a written warning issued to the applicant amounted to an 

unfair labour practice. The applicant challenged the written warning issued to him as unfair and wanted it to be 

withdrawn. 

The applicant testified that he was instructed by his supervisor to place registered items in unlockable drawer. He also 

testified that the items got lost and he was forced to repay them. The applicant was issued with a written warning. 

The respondent argued that the applicant was charged with non compliance of rules and instructions of the company. It 

argued that the rules stated clearly that registered items should be locked in a safe place. The respondent further 

argued that the applicant was given the most lenient sanction instead of a final written warning. 

Noted: That the applicant did not put the registered items in a safe place. It was noted that the correct measures were 

not followed and there was a breach of the rule. 

Also noted: That the applicant was given an instruction by his supervisor to put items in unlockable drawer. The 

applicant did what was expected from him by his supervisor. 

Held: That the warning was unfairly issued against the applicant. The respondent was ordered to remove the warning 

in the applicant’s file. 

31

GAJB35599-07 Mbatha v ABI - Amalgamated Beverage ... - CCMA

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