Belgotex Floors (Pty) Ltd v CCMA and Others

The applicant, Belgotex Floors (Pty) Ltd, dismissed the third respondent, Bhekinhlanhla Zungu, after a disciplinary hearing found him guilty of gross misconduct for striking (or pushing) a female co-worker, Noluthando Masinga, on the neck on 28 October 2022. Zungu referred an unfair dismissal dispute to the CCMA. At arbitration, Commissioner Yande Ngwane rejected Masinga’s version and the evidence of the supervisor, Mr Duma, who testified that Zungu admitted pushing Masinga. The commissioner found that, even if Zungu had struck Masinga, dismissal would have been unfair because of his nine years of service, clean disciplinary record, good reputation and his presentable, restrained demeanour during the hearing. Belgotex Floors then launched a review application in terms of section 145 of the Labour Relations Act 1995.

• Whether the commissioner's arbitration award was one that no reasonable arbitrator could have reached on the evidence, applying the Sidumo standard of review under section 145 of the Labour Relations Act.
• Whether the commissioner's adverse credibility findings against Masinga and Duma were rationally justifiable or were based on subjective opinion, material errors of fact, irrelevant considerations and mischaracterised evidence.
• Whether the commissioner misdirected herself on the substantive fairness of dismissal by concluding that dismissal would be unfair even if Zungu had assaulted Masinga, having regard to his service record and demeanour.

The arbitration award handed down by the second respondent under case number KNPM3009-22 dated 14 August 2023 is set aside and substituted with an award that the third respondent's dismissal was substantively fair. No order as to costs.

An arbitration award may be reviewed and set aside under section 145 of the Labour Relations Act if no reasonable arbitrator could have reached the decision on the evidence before her. Credibility findings are reviewable where they are based on subjective opinions beyond lay expertise, material misapprehensions of fact, mischaracterisation of the record, or irrelevant factors such as a witness’s appearance, emotional reactions under cross-examination, or the respondent’s demeanour during the arbitration. Furthermore, where an employee is found to have physically assaulted a colleague, an arbitrator’s conclusion that dismissal is substantively unfair—founded primarily on the employee’s length of service, clean record and general reputation rather than the gravity of the misconduct—is untenable and warrants interference by the Labour Court.

The court noted that while prior consistent statements are generally not corroborative, they may become relevant where a witness is accused of prior inconsistency in respect of what she reported to a supervisor. The court also observed that the cross-examination of Masinga was at times irrelevant, confusing, argumentative and demeaning, and that the commissioner’s unexplained questioning of Masinga’s gender identity suggested undisclosed personal views that may have improperly influenced the commissioner’s credibility assessment.

The judgment reinforces the narrow Sidumo standard of review under section 145 of the Labour Relations Act and confirms that an arbitrator’s credibility findings are not immune from review where they are grounded in subjective speculation, material errors of fact, or irrelevant considerations such as a witness’s gender presentation or courtroom demeanour. It affirms that long service and a clean disciplinary record do not preclude dismissal for serious misconduct involving physical assault of a co-worker, and underscores that arbitrators must assess evidence on its probative value rather than on personal impressions of witness presentation.