Bhekuyise Mjoli and Others v Peters Papers (Pty) Ltd

The applicants were employed by Peters Papers (Pty) Ltd as drivers and drivers' assistants, responsible for transporting paper stocks to customers using pallets. In 2016, for the first time in 30 years, the first respondent ran out of pallets and discovered that pallets were being sold at pallet yards rather than returned. The first respondent used a tracking system called 'Trackmatic' to set up 'DECOs' (specific delivery/collection points) at pallet yards, and discovered that drivers/assistants, including the applicants, stopped/idled at these DECOs on numerous occasions (over 300 times at one location). The applicants were among approximately two-thirds of the first respondent's drivers/assistants who were charged with gross deviation from allocated routes, misuse of company vehicles, claiming overtime for unlawful activities, theft/unauthorized removal of company property, and derivative misconduct. Group disciplinary hearings were held on 25-27 July 2016, resulting in the applicants' summary dismissal. The applicants referred disputes to the CCMA, which were consolidated. After a nine-day arbitration, the second respondent (Commissioner Du Plessis) found the dismissals substantively and procedurally fair. The applicants applied to review this arbitration award under section 145 of the LRA.

• Whether the arbitrator's finding that the applicants committed the misconduct of theft (selling pallets) was reasonable based on the evidence before him
• Whether the arbitrator's evaluation of credibility and assessment of the probabilities was proper and sustainable on review
• Whether the arbitrator's finding that dismissal was substantively fair was reasonable
• Whether the arbitrator committed reviewable irregularities in his conduct of the arbitration or reasoning
• Whether the drawing of inferences from circumstantial evidence was reasonable
• Whether the issue of derivative misconduct was properly addressed
• Whether the sanction of dismissal was appropriate for the proven misconduct

The applicants' review application was dismissed. There was no order as to costs, with the Court exercising its discretion under section 162(1) of the LRA, noting that the applicants acted reasonably and were competently represented on a pro-bono basis.

The binding principle is that where an employer establishes a prima facie case of misconduct through reliable circumstantial evidence (including technological tracking evidence showing unexplained presence at locations consistent with misconduct, coupled with context such as missing inventory), the evidential burden shifts to the employee to provide a credible and plausible alternative explanation. Where the employee's explanation is rejected as implausible and lacking credibility, particularly where supported by failure to call available corroborating witnesses, and all the probabilities support the inference of misconduct, an arbitrator's finding that misconduct was proven on a balance of probabilities is reasonable and sustainable on review under section 145 of the LRA. Further, misconduct involving dishonesty and theft ordinarily justifies dismissal as it fundamentally destroys the trust relationship necessary for continued employment. An arbitrator's credibility findings and assessment of probabilities should not be disturbed on review unless they are entirely inconsistent with the evidence as a whole.

The Court made several non-binding observations: (1) The judgment noted at the outset the unfortunate and material delay in concluding the matter, stating that the case dated back almost a decade and only came up for hearing in 2024, and expressed hope that the new Rules of the Labour Court would remedy such delays as "expedition must be one of the cornerstones of employment law dispute resolution." (2) The Court discussed the concept of derivative misconduct following the Constitutional Court's judgment in National Union of Metalworkers of SA on Behalf of Nganezi v Dunlop Mixing and Technical Services, noting that it is now a problematic concept and that caution must be taken not to use it as a means for easier dismissal. The Court observed that the arbitrator's reference to derivative misconduct was "unfortunate" and a "misnomer" but that the case was actually about direct participation or common purpose rather than derivative misconduct. (3) The Court commented on the appropriate radius for DECOs near customer locations (30 meters) as a means to avoid false positives in the tracking system. (4) The Court noted that this was a "highly unusual situation" where approximately two-thirds of the employer's drivers/assistants were dismissed, showing it was "disruptive for the first respondent, and not lightly embarked upon." (5) The Court praised counsel appearing pro-bono for the applicants, stating this "must always be lauded."

This case reinforces several important principles in South African labour law: (1) The Sidumo reasonableness test for reviewing CCMA arbitration awards requires courts to consider whether the outcome was one a reasonable arbitrator could not reach on the evidence. (2) Courts should be reluctant to interfere with arbitrators' credibility findings unless they are entirely at odds with the probabilities and evidence on record. (3) Where a prima facie case of misconduct is established through circumstantial evidence, the burden shifts to the employee to provide a plausible and acceptable explanation. (4) The failure to call available witnesses who could corroborate an employee's version may found an adverse inference. (5) Parties are bound by issues agreed and limited at the commencement of arbitration through opening addresses, which serve the same function as pre-trial minutes in the absence of pleadings. (6) Dishonest conduct involving theft generally justifies dismissal as it destroys the trust relationship essential to employment. (7) Review courts must consider the merits and entire evidence on record when assessing reasonableness. (8) Proper use of technological evidence (such as GPS tracking data) can establish circumstantial evidence of misconduct. The judgment emphasizes the importance of expedition in employment dispute resolution and demonstrates the high threshold required to set aside CCMA awards on review.