SASBO Finance Union obo Strrnkamp v African Bank Ltd and Others (C615/2021) [2025] ZALCCT 35 (30 May 2025)

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THE LABOUR COURT OF
SOUTH AFRICA

AT CAPE TOWN

 

CASE NO: C615 /2021

 

In the matter between:

 

SASBO THE FINANCE
UNION OBO

ALISTAIR
STEENKAMP                                                           

Applicant

 

AND

 

AFRICAN
BANK
LTD                                                                

1^ST
Respondent

 

COMMISSIONER
ORLANDO MOSES N.O                              

2^ND
Respondent

 

COMMISSION FOR
CONCILIATION,

MEDIATION
AND ARBITRATION
                                            

3^RD Respondent

 

Heard:         21
June 2023

Delivered:   
30 May 2025

 

JUDGMENT

 

DUBA AJ

 

Introduction

 

[1] 
This is an application in terms of section
145 of the Labour Relations Act 66 of 1995 as amended, to review and
set aside the arbitration award issued by the Second Respondent
(Commissioner) under the auspices of
the Third Respondent (CCMA) on
23 September 2021.

 

[2] 
In
terms of the award[1] the
Commissioner found that the dismissal of the Applicant, Mr. Alistair
Steenkamp, was procedurally and substantively fair.

 

[3] 
The Applicant is seeking to review and set
aside the arbitration award, which application is duly opposed by the
First Respondent.

 

Background

 

[4] 
The Applicant (Employee) commence
employment on 21 May 2018 holding a position of Customer Relations
Consultant. At the time of
his termination of employment he held a
position as a Driver, earning an amount of R11 140. 74.

 

[5] 
On
23 February 2021, the Applicant received a notice[2]
to attend disciplinary hearing to be conducted on 2 March 2021. The
allegations against the Applicant are the following:

 

First charge:
Negligence

During the period 25
to 26 October 2019, you allegedly acted in a negligent manner when
you left the company speakers, used for
marketing, overnight in the
vehicle when it was raining, while you were aware of the leaking
roof. The speakers got damaged due
to your negligence.

 

On the 28 November
2019, you allegedly acted in a negligent manner by not keeping the
company laptop safe whilst it was in your
possession, and you lost
the laptop due to your negligence.

 

On 27 November 2020,
you allegedly left the company cell phone in an unlocked vehicle
without taking proper care, the cell phone
was stolen, resulting in
loss of R3 899.00

 

Second charge:
Using of vehicle for private use.

During the period
January to December 2019, it is alleged that you parked the company
bus at times at the residence of a relative
without overnight
authority. This is in breach with the Bank’s rules and policy.

 

[6] 
The
Employee pleaded guilty on charge one. The chairperson of the inquiry
found him guilty on the first charge and not guilty on
the second
charge.[3]

 

[7] 
Subsequently,
the employment service of the employee was terminated on 31 March
2021[4]. A dispute was declared
the CCMA for unfair dismissal and the matter was arbitrated, which
award is before court.

 

Overview of the
analysis  

 

[8] 
Before the commissioner, the parties agreed
that the central issue for determination was the harshness of the
sanction, and consequently
whether the dismissal was appropriate
under the circumstances.  

 

[9] 
On
the analysis of evidence and argument the commissioner made the
following findings[5]:

 

38. The Applicant was
charged with three allegations of negligence. The Applicant admitted
guilty to the allegations. Documents
was submitted of the Applicant’s
statements regarding the allegations wherein the Applicant admitted
in the case of the damaged
speakers that he was aware of the leaking
roof, but he left the speakers overnight in the vehicle. The
Applicant statement regarding
the laptop that went missing shows that
he kept the laptop between the two seats in the vehicle, which is
against the policy, which
the forensic report, submitted as evidence,
indicates that the laptop must be carried in the vehicle boot. The
laptop was stolen
out of the vehicle. The Applicant furthermore
confirms in his statement that on the day that the cell phone was
stolen from the
vehicle on 28 November 2020, that the vehicle was
unlocked and his statement indicates that he was away from the
vehicle for a
long period of time. The facts leading to the damaged
of the speakers differed in relation to the missing laptop and cell
phone.
In the case of the laptop and the cell phone the facts very
similar in that company property was stolen, whilst it was in
possession
of the Applicant. In both circumstances property was
removed from the vehicle and no proof of force entry was found. In
the incident
where the cell phone was stolen, the Applicant admitted
that he failed to lock the vehicle. The forensic report indicated
that
in the incident of the stolen laptop, it could not find proof of
force entry, which makes it more probable that the Applicant in
that
instance, also failed to lock the vehicle. Taking into consideration
the evidence submitted, I find that the Applicant was
indeed
negligent when the speakers were damaged and when the laptop and cell
phone were stolen.

 

39. Evidence was tendered
that the incidents of negligence did not take place at the same time,
with the first incident taking place
on 25 and 26 November 2019, the
incident of the stolen laptop taking place on 28 November 2019. The
cell phone being stolen on
20 November 2020. The Applicant argued
that dismissal was inappropriate as a first offence. It was submitted
that the Applicant
pleaded guilty and showed remorse. Schedule 8 of
the Good Practice dismissal provides for progressive discipline,
where there exists
a good possibility of rehabilitation of the
employee. The Applicant may not have had other warnings for similar
conduct, however
the Applicant in three separate incidents acted in a
negligent manner failing to safeguard the equipment entrusted to him.
It may
have been the first disciplinary process that he was subjected
to, but this does not diminish the fact that he was negligent on

three separate occasions and failed to learn from earlier incidences
of negligence which led to damage to or loss of the employer’s

property. A period of approximately 11 months elapsed between the
laptop and cell phone going missing from the vehicle, which indicates

that the Applicant failed to take the necessary precautions to care
after the respondent property and no rehabilitation is evident.

Taking into consideration the evidence I cannot find the
chairperson’s considerations were unreasonable and find the
dismissal
was fair in the circumstances.

 

The Review

 

[10] 
It
is trite that the grounds for review must be supported by totality of
the evidence presented during arbitration proceedings.
The primary
duties of the commissioners were mentioned in Gold Fields Mining
South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and
Others[6]
where the court stated that

“in
short, a review court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluate the facts

presented at the hearing and came to a conclusion which was
reasonable to justify the decision he or she arrived at”

 

[11] 
The following are grounds which the
Applicant relied upon to set aside the Commissioner’s award:

–
That the Commissioner committed a gross
irregularity in excluding relevant information and preventing the
Applicant to testify on
the seriousness of the misconduct,

–
That the misclassification of the nature of
misconduct and the finding that the conduct of the Applicant was
dismissible

–
Failure by the commissioner to have regard
to the collective agreement and its objectives to apply corrective
and progressive discipline

–
Failure by the commissioner to apply his
mind to material facts before him pertaining to the trust
relationship

–
Gross irregularity in that he misconceived
the true nature of the misconduct which misinformed his assessment on
the appropriateness
of the sanction of dismissal.

 

[12] 
The court have considered the grounds for
review and gave more attention to those that the arbitration award
adjudicated upon.

 

[13] 
According to the Applicant the principle
and primary issue placed before the Commissioner for determination,
was whether the sanction
of dismissal, within the totality of facts
and circumstances on the matter, was too harsh and consequently
unfair.

 

[14] 
The
Applicant further submit that the circumstances and context of a
material delay to institute the disciplinary process, the
Commissioner’s finding of a dismissal being a fair penalty or
sanction amounts to a finding, that no Commissioner acting reasonably

could have reached.  Also considering the potential recommended
or prescribed penalties for negligence in terms of the First

Respondent disciplinary code under item 38[7]
that:

 

Negligence, which may or
may not be gross and which may or may not result in a loss to the
bank:

Possible sanction:

Written / final written
warning – Dismissal 

 

[15] 
The Applicant averred that the Commissioner
prevented him to testify on the seriousness of the misconduct and the
incorrect classification
of the misconduct. The Commissioner allowed
the witness of the First Respondent to infuse evidence that the
offence has an element
of dishonesty while the Applicant was
dismissed for negligent, which had an effect on the conclusion to
justify the dismissal.

 

[16] 
The First Respondent averred that the
Commissioner allowed the parties to present evidence on all the
factors and merely directed
the parties to reserve some issues for
argument. Therefore, an allege failure to consider the circumstances
surrounding the misconduct
is not, on its own a fatality as evidence
was common cause and the Applicant had already pleaded guilty to the
charges, the commissioner
was correct in his approach on the
dispute.   

 

[17] 
In
my view the Commissioner misdirected and misconceive the issues
placed before him as the record indicates otherwise. At the
commencement of the hearing specifically interjected[8]
the parties during the hearing alleging that the issues are not in
dispute the evidence already exist and the incidents are not
in
dispute. As a result, the Commissioner misconceive the nature of the
inquiry which lead to no fair trial of issues with the
result that
the award stand to be set aside on that ground alone.

 

[18] 
In
the matter of Head of Department of Education v Mofokeng and
Others[9] the LAC held that:

 

[30] the failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will usually
be an irregularity. However,
the Supreme Court of Appeal in Herold v Nedbank this court in
Goldfields Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v CCMA and
Others have that before such an irregularity will result in the
setting aside of the award, it
must in addition reveal a
misconception of the true enquiry or result in an unreasonable
outcome.

 

[31] the determination of
whether a decision is unreasonable in its result is in an exercise
inherently dependent on variable considerations
and circumstantial
factors. A finding of unreasonableness usually implies that some
other grounds is present, either latently or
comprising manifest
unlawfulness. Accordingly, the process of judicial review on grounds
of unreasonableness often entails examination
of inter related
questions of rationality, lawfulness and proportionality, pertaining
to the purpose, basis reasoning or effect
of the decision,
corresponding to the scrutiny envisioned in the distinctive review
grounds developed casuistically at common law,
now codified and
mostly specified in section 6 of the Promotional of Administrative
Justice Act (PAJA), such as failing to apply
the mind, taking into
account irrelevant considerations, ignoring relevant considerations,
acting for an ulterior purpose, bad
faith, arbitrary or capriciously
etc. The court must nonetheless still consider whether, apart from
the flawed reasons of or any
irregularity by the arbitrator, the
result could be reasonably reached in light of the issues and the
evidence. Moreover, judges
of the labour court should keep in mind
that it is not only the reasonableness of the outcome which is
subjected to scrutiny. As
the SCA held in Herold, the arbitrator must
not misconceive the inquiry or undertake the inquiry in a
misconceived manner. There
must be a fair trial of the issues.

 

[33]
irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide

a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it will depend on the materiality
of the error
or irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and
determined
with reference to the distorting effect it may or may not have had
upon the arbitrator’s conception of the inquiry,
the
delimitation of the issues to be determined and the ultimate outcome.
If the but for an error or irregularity a different outcome
would
have resulted, it will ex
hypothesi
be material to the determination of the dispute. A material error of
this order would point to at least a prima facie unreasonable
result.
The reviewing judge must then have regard to the general nature of
the decision, in issue, the range of relevant factors
informing the
decision, the nature of the competing interest impacted upon by the
decision, and then ask whether a reasonable equilibrium
has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the arbitrator,
a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the inquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone.    

[19] 
Another ground which the Applicant wants to
rely upon, that the Commissioner committed a reviewable irregularity
in not making a
finding on a material issue, being whether it was
fair for the First Respondent to rely on the Applicant’s
actions in October
and November 2019, in support of its justification
for the fairness of his dismissal, which was clump with the actions
of November
2020 to justify the dismissal.  

 

[20] 
Immediately after the incident of October
and November 2019 occurred the First Respondent effectively had a
knowledge of the damage
and loss of the its property, and the
Applicant reported the incidents with South African Police Service.

 

[21] 
The
extensive delay in instituting the disciplinary action against the
Applicant, was raised during the arbitration proceedings
specifically
at cross-examination[10] of
the First Respondent’s witnesses.

 

[22] 
In response the First Respondent testified
about the investigation which the investigator fell and sick and
hospitalized, but failed
to provide proof to that effect or to call
the investigator and his absence was not explained.  

 

[23] 
The allegedly details about the illness of
the investigator, when he became ill and hospitalized, when he
discharged remain unexplained.

 

[24] 
In addition, the failure of the First
Respondent to transfer the investigation to another investigator,
when it became apparent
that the investigator in unable to complete
the investigation within a reasonable time in accordance with their
disciplinary code
was unexplained.

 

[25] 
The fact that the First Respondent
ultimately dismissed the Applicant for repeated acts of negligence by
clumping the separate incidence
together in one charge which occurred
in October and November 2019 and November 2020. The First Respondent
was required to explain
why it would be fair to combine the three
incidents, occurred over a period of 13 months, and in doing so that
dismissal was a
fair penalty in the circumstances.  

 

[26] 
In terms of the award the Commissioner
accepted that the First Respondent was entitled to have regard to all
the incidents to be
clump together and the decision to dismiss the
Applicant for negligence on three separate occasion being fair.

 

[27] 
The First Respondent argue that the
Applicant seeks to draw connection between the passage of time
between the various incidence
and the decision to charge the
Applicant with the misconduct. The waiver was not argued before the
commissioner. It is not open
to the Applicant to introduce waiver on
review. This ground for review should be dismissed for this reason
alone.  

 

[28] 
The Commissioner’s assessment of the
seriousness of the misconduct was therefore reasonable in the
circumstances.

 

[29] 
It
is readily apparent from the evidence on the record that the First
Respondent disciplinary code[11]
states that:

 

§    
Administering of discipline in the
workplace is the duty of management, which will be administered in a
fair, just, consistent and
equitable manner.

 

§    
The disciplinary code is necessary for the
effective operations of the bank and the fair treatment of employees,
and ensures that
employees:

–                 
Have a fair hearing in a formal or informal
setting

–                 
Are timeously informed of allegations of
misconduct

 

§    
Management and/or Group Forensic Services
should initiate a compliant within a period of thirty days or within
a reasonable time,
after management has became aware of such an
allege or compliant subject to the following conditions:

–                 
The bank however reserves the right to
initiate disciplinary hearings outside the 30 day period in
circumstances where an investigation
takes longer than anticipated
and or the compliant or allege offence is complex in nature, or for
any other reason, and

–                 
The bank hereby undertakes not to
unreasonably delay the initiation of the proceedings.

 

§    
The bank should endeavor to expeditiously
conduct the factfinding investigation and proceed with a disciplinary
enquiry.

 

[30] 
The Applicant submit that the First
Respondent Disciplinary Code confers a general intention to initiate
disciplinary action within
30 days after the relevant events has come
to their knowledge. At the same time reserves its right to institute
such proceedings
outside the 30-day period within a reasonable time
and not to unreasonable delay the initiation of the proceedings  

 

[31] 
Under the circumstances, it is the Court
finding that the Commissioner failed to consider the delay which is
in contravention with
the First Respondent disciplinary code to
institute the disciplinary action within a reasonable time, while the
First Respondent
relied on all three incidents of negligence to
justify the decision to dismiss the Applicant. Considering the fact
that the Applicant
extensively challenged the delay, the First
Respondent was required to explain that the delay to institute the
disciplinary action
was reasonable and fair. Even the Labour
Relations Act one of its fundamental purpose was to establish a
system for the quick adjudication of labour dispute.

 

[32] 
The Applicant argued that the Commissioner
concluded that the penalty of dismissal was fair in this matter
because the Applicant
was guilty of negligence and no rehabilitation
is evident.

 

[33] 
The Applicant referred to the First
Respondent disciplinary code dealing with the manner of approach and
possible penalties for
the offence of negligence, specifically that
disciplinary ought to be approached in the first instance and in a
progressive manner.
   

 

[34] 
It is common cause that the Applicant
pleaded guilty to the charges of negligence, the Applicant submit
that was indication of being
remorseful and did not waisted time of
the First the Respondent.

 

[35] 
The Applicant even sign a salary deduction
form as per the policy to pay the cell phone back, in evidence he
testified that if he
was given the opportunity to reimburse the
laptop and the speakers he would have done so.  

 

[36] 
During cross examination the Applicant
undertook not to allow the incidents happen again under his
supervision. The Applicant accepted
his wrong doing and genuine
remorse. The commissioner failed to consider such a mitigating factor
for the Applicant.

 

[37] 
The Commissioner accepted the fairness of
the First Respondent reliance on all three incidents, effectively
held the overring factor
for consideration herein is the that the
Applicant failed to learn from earlier instances of negligence and
that no rehabilitation
is evident.

 

[38] 
Further the Commissioner should have
decided why, it was fair to opt for the most severe of the three
possible prescribed penalties
herein being dismissal.

 

[39] 
The First Respondent argued that the
Commissioner was obligated to implement progressive discipline, which
is incorrect. In fact,
the Commissioner’s award proves that he
considered progressive discipline and found that the Applicant was
not a suitable
candidate for progressive discipline.

 

[40] 
The Commissioner applied his mind to the
fact that the Applicant was persistently negligent. Each time he
either cause damage to
company property and or lost it causing the
employer financial loss. Progressive corrective discipline would
therefore have not
befitted the Applicant considering the repeated
negligent conduct by the Applicant.  

 

[41] 
In the matter of Nemadzivhanani v
University of Venda and Others it was held that:

 

31 “it is so, as
was stated in Toyota SA Motors (Pty) Ltd v Radebe and Others that
certain acts of misconduct are of such
a serious nature that no
length of service can save an employee who is guilty of them, from
dismissal. This is not one of those
matters. There is no indication
that the principle of progressive discipline would not assist to
adjust any future conduct. A plausible
and reasonable justification
for the sanction imposed was not shown to exist and dismissal was not
shown to be the appropriate
sanction”

 

[42] 
I agree this is not the matter that
progressive discipline cannot assist, as the   was never
disciplined prior the 02 March
2021. Further that future employment
exist as the employee was not suspended and the First Respondent
trusted him with its similar
properties until his dismissal,
considering the fact that the First Respondent took more than a year
to institute the disciplinary
action against the Applicant.

 

[43] 
The First Respondent also submitted the
Applicant had an obligation to act in the best interest of the First
Respondent and specifically
to safeguard its assets. He demonstrated
by his own conduct that he was an operational risk, and the First
Respondent’s property
was not safe with him. It would be
untenable for the First Respondent to retain the service of the
Applicant despite continued
evidence of gross negligence. The
breakdown of employment relationship was therefore self-evident. The
Court is referred to the
matter of AutoZone v Dispute Resolution
Centre of Motor Industry and Others where the LAC held that if the
nature of the offence
is such that it would lead to breakdown in
trust, no further evidence would be required.

 

[44] 
The Applicant argue that he was permitted
to continue with his tasks and in fact, trusted by the First
Respondent and he was never
suspended at any stage. It was confirmed
by the First Respondent in its own version that no disciplinary
action, of any kind, was
instituted against the Applicant for over a
period of 16 months. Submitting that the findings of the Commissioner
are unreasonable
under the circumstance.

 

[45] 
In
the matter of Magumeni Philemon Mathebula v Provincial Department of
Agriculture & Rural Development & Land Administration[12]
it was held that: 

 

 “The
burden is on the employer to provide the reason and evidence to show
that it would be intolerable to grant the reinstatement
to an
employee. In Booysen v Safety and
Security Sectoral Bargaining Council and Others,
the Labour Appeal Court (LAC) held that the threshold to show
intolerability is high and cannot be satisfied by the employer simply

reproducing the evidence that was rejected as insufficient at the
point of seeking to justify the dismissal. “

 

“The
required high threshold in showing intolerability has to be
understood in the context of the value which, as stated in Equity
Aviation Services (Pty) Ltd v Commissioner of Conciliation, Mediation
and Arbitration and Other is to protect the security of
employment as envisaged by the section 23 of the Constitution of the
Republic of South Africa, 1996.”

 

[46] 
In all the circumstances I am persuaded
that the Commissioner’s award is not one that can be reached by
a reasonable decision
maker and progressive discipline should have
prevailed, as a result the award stand to be reviewed and set aside.

 

[47] 
For the reasons given I make the following
order:

 

Order:

 

1. 
The arbitration award dated 23 September
2021 under case number WECT5506-21 is reviewed and set aside.

 

2. 
The arbitration award is substituted with
an order that the Applicant is reinstated from the date of this order
and be given a final
written warning.

 

3. 
The First Respondent to pay the Applicant
six months remuneration as back pay.

 

4. 
There is no order as to costs.

 

J Duba

Acting Judge of the
Labour Court

 

Appearances:

For the
Applicant:           
Adv. C. Goosen

Instructed
by:                 
BJ Erasmus
Pieterse Attorneys   

For the Respondent:      
J. Foster

Instructed
by:                 
Cliff Dekker
Hofmayer Inc   

 

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