Sasol Oil (Pty) Ltd v Dunywa and Another; National Bargaining Council for the Chemical Industry and Others

Tom P Dunywa and Aupa Mbhele were employed by Sasol Oil (Pty) Ltd as fuel driver operators. On 15 August 2008, an external witness, Mr Percy Bvuma, observed two individuals siphoning fuel from a Sasol petrol tanker at a truck stop in the early hours of the morning. The truck had to be switched on and idling to enable the siphoning. Bvuma reported the incident to security and later identified Dunywa and Mbhele as the individuals he saw. Video footage, security evidence, and internal investigations linked them to the incident, including footage at the security office, evidence about access to the truck key, and inconsistent explanations given by Mbhele regarding his movements. Both employees were charged with theft or, alternatively, unauthorised possession of fuel, found guilty at an internal disciplinary enquiry, and dismissed. The bargaining council commissioner found the dismissals procedurally fair but substantively unfair and ordered reinstatement with back pay. Sasol sought to review and set aside the arbitration award.

The review application succeeded. The arbitration award dated 14 May 2009 was reviewed and set aside and substituted with an order that the dismissal of Tom P Dunywa and Aupa Mbhele was substantively fair. No order as to costs was made.

The case reinforces the Labour Court’s approach to review proceedings under the Sidumo test, emphasising that commissioners must properly assess eyewitness testimony, consider the totality of evidence, and weigh probabilities rationally. It illustrates that speculative reasoning and the disregard of material corroborative evidence can render an arbitration award unreasonable and reviewable.