The First Respondent (Mr Leso) was initially employed by Barloworld as a Fleet Manager and his employment was transferred to the Applicant (Imperial Logistics) on 3 November 2014 in terms of section 197 of the LRA. On 17 September 2019, Mr Leso was dismissed for misconduct on two charges: Charge 2 (dereliction of duty for failing to take corrective action regarding vehicle defects reported by driver Sifiso Shongwe during 24-27 June 2019) and Charge 5 (bringing the company name into disrepute by failing to make proper arrangements when absent from work, which was noticed by the client Makro). The matter proceeded to arbitration before the CCMA, where the commissioner found the dismissal procedurally fair but substantively unfair, and awarded Mr Leso retrospective reinstatement with backpay of R853,531.12 (equivalent to 36 months' remuneration). The Applicant brought a review application to set aside the arbitration award. During the arbitration, Mr Leso was unrepresented and did not seek reinstatement, but rather sought financial compensation only.
The review application was granted only to the extent that the reinstatement portion of the award was set aside and substituted with an order for compensation of 12 months' salary (R23,709.20 x 12 = R284,510.40). The finding that Mr Leso was substantively unfairly dismissed remained undisturbed. There was no order as to costs.
The binding legal principles established are: (1) The test for review of a CCMA arbitration award remains whether the decision is one that a reasonable decision-maker could not reach, applying the Sidumo test; (2) A commissioner may not order reinstatement when the employee did not seek this remedy and explicitly sought only financial compensation; (3) Before ordering reinstatement, a commissioner must properly consider the circumstances under section 193(2) of the LRA, including whether the employment relationship has become intolerable or is not reasonably practicable; (4) A commissioner's failure to properly assess evidence regarding the appropriate remedy, even where the finding of unfair dismissal is reasonable, constitutes a reviewable irregularity; (5) The Labour Court may, in terms of section 145(4)(a) of the LRA, substitute an inappropriate remedy with one it considers appropriate; (6) Delays in bringing charges and the absence of prior warnings can support a finding of substantive unfairness in dismissal; (7) The failure to call material witnesses (such as the driver who allegedly reported the fault) can weaken an employer's case and support a finding that the dismissal was substantively unfair.
The Court made observations about the possible connection between the charges brought against Mr Leso and his complaint email dated 12 August 2019 regarding his working relationship with his manager. The Court noted at paragraph [40] that it was "possible that Mr Leso was charged in response to his email dated 12 August 2019" given the timing of events, though the Court emphasized these were merely observations that did not alter the reasons for finding the commissioner's award on substantive unfairness to be reasonable. The Court also observed that there appeared to be a correlation between Charge 3 (for which Mr Leso received a final written warning) and his complaint email of the same date. These observations suggest the Court had concerns about the employer's motives in bringing the charges, though this was not necessary for the decision. The Court also made a passing comment at footnote 5 identifying an obvious typographical error in the commissioner's award where the word "not" was omitted, showing judicial willingness to read awards sensibly rather than literally when obvious errors are present.
This case is significant in South African labour law jurisprudence as it illustrates the proper approach courts should take when reviewing CCMA arbitration awards. It reinforces that while courts should apply the Sidumo reasonableness test and not interfere with findings that a reasonable decision-maker could reach, commissioners must still properly assess all evidence and circumstances before ordering remedies. The case emphasizes that reinstatement should not be awarded mechanically as the primary remedy, but only after considering whether the employee sought this remedy and whether the employment relationship has become intolerable or is not reasonably practicable. It confirms that commissioners may not order reinstatement when the employee explicitly seeks only financial compensation and evidence suggests the employment relationship has broken down. The judgment also demonstrates the importance of considering all evidence in the arbitration bundle (applying the Fidelity Cash principle) and highlights that delays in bringing charges and failure to provide prior warnings can support a finding of substantive unfairness. The case provides guidance on the distinction between reviewing the reasonableness of a finding of unfair dismissal (where courts should not interfere lightly) and reviewing the appropriateness of the remedy awarded (where courts may substitute an inappropriate remedy).