Cullinan Holdings Ltd v South African Road Passenger Bargaining Council and Others

The third respondent, Mr Andries Waterboer, was employed by Cullinan Holdings Ltd as a tour bus driver for four years. On the night of 14 February 2018, while collecting a tour guide in Mill Street, Cape Town, he drove a Cullinan-branded tour bus down a one-way exit into Annandale Road against oncoming traffic and crossed an intersection in a manner found to be reckless and dangerous. Although no accident occurred, the incident was witnessed by members of the public and reported to Cullinan. Waterboer was charged with gross negligence and dismissed. At arbitration under the auspices of the South African Road Passenger Bargaining Council, the arbitrator found the dismissal procedurally fair but substantively unfair, ordered prospective reinstatement without back pay, and imposed a final written warning. Cullinan sought to review and set aside the award.

The review succeeded in respect of the remedy. The arbitrator’s order of reinstatement was set aside and the court held that reinstatement was not tenable under section 193(2)(b) of the LRA. The precise substituted remedy or final order is not fully available because the judgment text ends mid-sentence before the final order is recorded.

The case clarifies the distinction between the enquiry into substantive fairness of dismissal and the separate enquiry into appropriate relief under section 193(2) of the LRA. It reinforces that reinstatement, although the primary remedy, may be refused where continued employment would be intolerable, particularly in safety-sensitive positions. The judgment also reiterates important review principles under Sidumo and Mofokeng and confirms that documents in an arbitration bundle are not evidence unless properly introduced.