Willem Van Der Bank v Commissioner D E Matlatle N.O. and Others

The applicant, Mr Willem Van Der Bank, was employed by Barloworld South Africa (Pty) Ltd t/a Barloworld Equipment. He was dismissed after making an inappropriate comment to an external auditor, likening auditors to a sexually transmitted disease that one cannot get rid of. The employer charged him with sexual harassment alternatively inappropriate workplace behaviour and dismissed him following a disciplinary hearing. The CCMA arbitrator confirmed the dismissal, primarily on the basis that the applicant showed no remorse. The applicant brought a review application to the Labour Court, challenging the reasonableness of the arbitration award, particularly the sanction of dismissal.

The arbitration award was reviewed and set aside. It was substituted with an order declaring the dismissal procedurally fair but substantively unfair. The employer was ordered to reinstate the applicant retrospectively from the date of dismissal. Each party was ordered to pay its own costs.

The case reinforces the Sidumo principle that dismissal does not automatically follow from a finding of misconduct and that arbitrators must weigh all relevant aggravating and mitigating factors when determining sanction. It clarifies that a failure to conduct a proper sanction analysis constitutes a reviewable irregularity. The judgment underscores the Labour Court’s supervisory role over CCMA awards under the reasonableness standard.