THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Reportable
Case No: JR1964/20

In the matter between:

PHARMA-Q HOLDINGS (PTY)LTD Applicant

and

NATIONAL BARGAINING COUNCIL

FORTHE CHEMICAL INDUSTRY FirstRespondent

PANELIST SOLOMZI MPIKO

N.O. Second Respondent

SACWU obo LETJAGE SOLOMON MADISHA ThirdRespondent

Heard: 26 January2023
Delivered: 31 January2023

JUDGMENT

MABASO, AJ
Introduction [1] In this review application, this Court has to answer two intertwined
questions, as Pharma-Q Holding (Pty) Ltd ("the Applicant") contends that the Second
Respondent ("the Arbitrator") committed reviewable irregularity in issuing an
arbitration award in favour of the Third Respondent ("Mr Madisha"), which are: (a)
Whether the Arbitrator misunderstood the issues that he had been called to decide?
(b) Did the Arbitrator deal with the substantial merits of the dispute?
Only Mr Madisha is opposing this application.

[2] Mr Madisha was employed by the Applicant until dismissed following a guilty
finding on charges of misconduct. He then declared an unfair dismissal
dispute to the National Bargaining Council for the Chemical Industry (the
Bargaining Council). The Arbitrator, who had been tasked to decide the
dispute identified the issues as whether the dismissal was both procedurally
and substantively unfair. The Arbitrator ultimately concluded that the dismissal
was only substantively unfair and ruled thus:

"[30] I order that [the Applicant] reinstates [Mr Madisha] on the same or
similar terms and conditions that regulated his employment before he
was dismissed on 18 March 2020. The Applicant is to report for duty
on 01 December 2020
[31] [The Applicant] is to pay [Mr Madisha] R94 016.00…which is equivalent
to the salary the Applicant lost during the period of unfair dismissal
from 18 March 2020 to 30 November 2020). [Mr Madisha] is to report
for duties at the offices of [the Applicant] on 01 December 2020."(Own
emphasis)

[3] The Applicant takes no issues in the manner in which the Arbitrator couched
the arbitration award (the award), however, this Court opines that after the
Arbitrator had concluded as he did in the Award1, legally he was not permitted
to make the order subsequently made therein2.

[4] The Arbitrator concluded that Mr Madisha was guilty of the offences charged

1 See: para 30 of the award.

2 See: para 31 of the award.
 with, but the dismissal was unfair on the basis that the Applicant did not apply
discipline consistently, meaning reinstatement was based on the parity
principle.

[5] Both in the papers and the oral argument, by Mr Levin for the Applicant,
submitted that the Applicant's concern is that the Arbitrator should not have
ordered reinstatement at all but to confirm dismissal, as it was argued that the
misconduct affected the trust relationship which has subsequently broken
down. This Court has to take into account that the Arbitrator was excising his
discretion to order reinstatement, found in section 193(2)(b) read with 193(1)
of the Labour Relations Act3 (LRA), and cannot easily interfere with such an
outcome unless it is satisfied that the Arbitrator misapplied the law to the
disadvantage of the Applicant which lead to preventing the Applicant from
having a fair trial of issues.

Assessment and analysis

[6] Mr Madisha worked for the Applicant as its machine operator between 31 July
2021 and 18 March 2020. The latter date being a dismissal date. The reasons
for dismissal were that he acted negligently in handling a machine of the
Applicant. It is common cause that Mr Madisha established a problem with the
machine, and in the process of trying to fix it, he used an incorrect procedure
which resulted in the machine being damaged. During this process, Mr
Madisha invited a fellow employee, Mr Christopher Cancer (Mr Cancer), who
subsequently also violated the policy of the Applicant by using a screwdriver.
Both were trying to fix the machine, and no evidence was presented to
suggest that their conduct was, for example, to sabotage the Applicant.

3 No. 66 of 1995, as
4
amended. See:
Transcript at p. 31.
[7] The Applicant led evidence of Mr Leon Cancer (the witness). During
crossexamination, this witness confirmed that the comparator, Mr Cancer,
was not subjected to a disciplinary hearing.4

[8] Upon reading the arbitration award, it is clear that the basis of the Arbitrator's
conclusion is an inconsistent finding relating to the different treatment of Mr
Madisha and Mr Cancer. As indicated above, the Applicant takes issue with
the approach taken by the Arbitrator; as they say, he did not understand the
question before him. Mr Levin, during oral argument, submitted that the
aggravating factors that should have been taken into account were, as
emphasised by the points appearing in the papers, that Mr Madisha showed
no remorse and that fixing the machine cost them R61 000.00, so the
dismissal was an appropriate sanction. In summary, the Applicant's argument
revolves around the alleged breakdown of trust between it and Mr Madisha
and costs.

[9] Once an arbitrator has concluded that an employee has committed an

offence, the subsequent inquiry, depending on the issues raised by the parties
and or apparent in the evidence that he is seized with, is located in clause 7
(b)(iii) and (iv) of the Code of Dismissal on Misconduct, which reads thus:

“(iii) the rule or standard has been consistently applied by the employer; and
(iv) dismissal was an appropriate sanction for the contravention of [such
conduct]”
(Own emphasis)

[10] Before an arbitrator finds that reinstatement is appropriate, there must be an

inquiry made in line with the provisions of section 193(2), and the presiding
arbitrator would have to give brief reasons for his conclusion as enjoined by
section 138(7)(a) of the LRA. If one reads arbitration records the reasons
4
provided must be apparent , because in overturning a decision of an

4 House of Flowers and others v Radebe and others 4 BLLR 366 (LAC) at para 16).
 employer ,by finding that the dismissal was unfair, he is applying "[an
outsider]'s sense of fairness [which] what must prevail and not the employer's
view".5

[11] In casu, the Award does not show that the Arbitrator specifically deliberated
on the inquiry of 7(b)(iv) of the Code, except what is contained in the Award,
where

he held thus: “In the light of the evidence led …cannot conclude that [the
Applicant] proved its case on the balance of probability.”6

[12] So this Court concludes that the Arbitrator indeed committed an irregularity,
but the question remains as to whether this Court can set aside the award on
this basis alone. I do not think so because this Court is expected to consider
the arbitration records and determine all the material that was before the
Arbitrator. If there is material that supports the Arbitrator's conclusion, then the
unfair findings would stand, and this Court will highlight the same hereafter as
it is still necessary to weigh the aggravating and mitigating factors considering
the nature of the offence Mr Madisha was found guilty of. If this Court
concludes that dismissal was not an appropriate sanction, it still has to use its
discretion relating to whether progressive discipline rather than dismissal is
not an appropriate sanction.

[13] Generally, a dismissal is reserved for the most serious infringements and/or
repeated misconduct; however, in certain circumstances, an employer may
successfully call for dismissal, depending on the seriousness of the offence.7
Item 3(4) provides that: “it has to be shown that the continued employment
relationship is "intolerable"”. Therefore, one must look to the seriousness of
the charge and the intolerability of the employment relationship. At the end of
the day, if an employee commits a crime such as theft, dismissal may be an
appropriate sanction.
5 Sidumo and Another v Rustenburg Platinum Mines Ltd and others [2007] 12 BLLR 1097 (CC) at
paras 75 and 78. Cf. SARS v CCMA and Others 2017 (2) BCLR 241 (CC) at para 44-5.
6 See: para 27 of the arbitration award.
[14] In Booi v Amathole Municipality8 the Constitutional Court held thus in relation
to the question of continued employment:

“It is accordingly no surprise that the language, context and purpose of section
193(2)(b) dictate that the bar of intolerability is a high one. The term
"intolerable" implies a level of unbearability and must surely require
more than the suggestion that the relationship is difficult, fraught or
even sour. This high threshold gives effect to the purpose of the
reinstatement injunction in section 193(2), which is to protect substantively
unfairly dismissed employees by restoring the employment contract and
putting them in the position they would have been in but for the unfair
dismissal. And, my approach to section 193(2)(b) is fortified by the
jurisprudence of the Labour Appeal Court and the Labour Court, both of which
have taken the view that the conclusion of intolerability should not easily be
reached, and that the employer must provide weighty reasons,
accompanied by tangible evidence, to show intolerability."(Own
emphasis)

[15] Commenting on the provisions and application of inconsistency in dismissal

dispute matters, the Labour Appeal Court (LAC) in Absa Bank Limited v Naidu
and Others9 held that is not the only deciding factor , as it said:

“[42] Indeed, in accordance with the parity principle, the element of

consistency on the part of an employer in its treatment of employees is
an important factor to take into account in the determination process of
the fairness of a dismissal. However, as this court say, it is only a
factor to take into account in that process. It is by no means decisive
of the outcome on the determination of reasonableness and fairness of
the decision to dismiss…The parity principle was never intended to
promote or encourage anarchy in the workplace. As stated earlier, I
reiterate there are varying degrees of dishonesty and, therefore, each
case will be treated on the basis of its own facts and circumstances."
7 See Item 3(3) of the Code.
8 2022 (2) BCLR 265 (CC) at para 40.
9 [2015] 1 BLLR 1 (LAC)
[16] During the opening statement, in terms of the records, the Applicant's legal
representative stated that Mr Madisha went to the machine and identified that
there was a problem with it; he then used ink that he was not supposed to
use, so he acted contrary to the operating procedures. This indicates that
when this offence was committed, Mr Madisha was executing his duties but,
unfortunately, not following the procedure. 10 Mr Madisha worked for the
Applicant for a period of more than seven years. No evidence was presented
before the Arbitrator that the business was interrupted as a result thereof and
that the Applicant suffered

a loss, except the one of R61 000.00 for the fixing of the machine.

[17] Considering the facts of this case, it is clear that the concern of the Applicant
which necessitates the imposition of the dismissal was because Mr Madisha
did not show any remorse, and money was spent to fix the machine. Mr Levin,
who also represented the Applicant during the arbitration, which produced the
arbitration award before this Court, reiterated these two factors and in addition
stated that if Madisha had acknowledged his wrong then the sanction would
have been different, and he dwelled on the issue of lack of trust. Despite the
submissions by the Applicant that there is no longer a trust relationship, this
Court must take into account that Mr Madisha asked for reinstatement which
is the primary remedy as per the provision of section 193(2)(b). This Court
agree with the Applicant that the Arbitrator did not fully understand the inquiry
before him relating to sanction, so this Court has to decide an appropriate
sanction.

[18] The aforementioned mitigating factors outweigh the aggravating

circumstances herein, and this Court could not find the reasons advanced by
the Applicant to deal with intolerability, also considering that Mr Cancer was
not disciplined despite being one of the people that violated the same rule.

10 See: Transcript at p 26, lines 4 -13.

 Furthermore, Mr Madisha did not have any previous disciplinary record which
works in his favour.
Consequently, it is concluded that dismissal was not an appropriate sanction.
Instead, progressive discipline would be a suitable one.

[19] Now dealing with retrospective reinstatement, as ordered by the Arbitrator,

this means a person is entitled to all the benefits and conditions applicable at
the time of dismissal. Considering paragraph 30 and 31 of the Award the
Arbitrator seemed to not fully understand the inquiry before him as he is not
allowed to order both retrospective reinstatement and compensation in terms
of section 193(1)(c) of the LRA as they are mutually exclusive remedies. This
Court is permitted to correct this error in the interest of justice.11

[20] It is the duty of this Court to correct this error by the Arbitrator, as the
Arbitrator

exceeded his powers in ordering both retrospective reinstatement and

compensation. This Court also considers that since Mr Madisha was been
found guilty of the offences, there must be consequences thereof.

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

11 SA Teachers Union obo Kruger v Gauteng Department of Education and Others Case Number
JA73/2019, at paras 14 - 21, delivered on 11 December 2020.
Order

1. Orders 30 and 31 of the arbitration award areand

set aside
substituted
thus:
“1.1.TheApplicant
is ordered to reinstate
MrLetjage Solom
on Madisha
from 01 December 2020
.
1.2. The Applicant is to issue Mr Letjage Solomon Madisha with a final
written warning valid for a period of 6 months.
2. There isonorder as to costs.

_____________________
SandileMabaso
Acting Judge of the Labour Court
Southof Africa

Appearances:

For the Applicant: Mr Clifford Levin

Instructed by: Clifford Levin Incorporated

For the Third Respondent: Adv Sebai Mahontola

Instructed by: Machete Attorneys