Cullinan Holdings Ltd v South African Road Passenger Bargaining Council and Others

Andries Waterboer was a tour bus driver employed by Cullinan Holdings Ltd for four years. On 14 February 2018, he was required to collect a tour guide at a hotel on Mill Street in Cape Town and proceed to the airport. Due to his failure to plan the route properly, he found himself in a one-way street (Mill Street) with limited options to exit. Instead of requesting the driver behind him to reverse or taking other lawful alternatives, Waterboer drove the bus against traffic on a one-way exit into Annandale Road, a main dual carriageway, traveled approximately 70-80 meters in the wrong direction, and then crossed an intersection to access the airport-bound lanes. The incident was witnessed by a member of the public who reported it to the company. Waterboer was charged with gross negligence for driving recklessly and dangerously in a company-branded vehicle. He had no prior warnings for negligent driving but had previous warnings for dishonesty and insubordination. He was dismissed following a disciplinary inquiry. An arbitrator found the dismissal procedurally fair but substantively unfair, ordering reinstatement without back pay and a final written warning. Cullinan sought to review this award.

• Whether the arbitrator's finding that dismissal was substantively unfair was reviewable under the test in Sidumo v Rustenburg Platinum Mines
• Whether the arbitrator properly considered all relevant factors in determining the appropriateness of the sanction
• Whether the arbitrator correctly applied section 193(2) of the LRA in ordering reinstatement as a remedy
• Whether the arbitrator properly weighed the competing interests of the employer and employee when determining appropriate relief
• Whether the trust relationship was so damaged that continued employment would be intolerable
• The evidential status of documents contained in bundles handed up at arbitration hearings

The arbitration award was reviewed and set aside only insofar as it related to the remedy ordered. Paragraphs 17.2 to 17.4 of the award (ordering reinstatement without back pay and a final written warning) were replaced with an order that the employer pay the employee compensation equivalent to five months' remuneration amounting to R51,297.04, payable within 14 days. No order as to costs was made.

When determining appropriate remedy following a finding of substantive unfairness, an arbitrator must conduct a separate inquiry under section 193(2) of the LRA and cannot simply collapse this inquiry with the determination of substantive fairness. The arbitrator must weigh the competing interests of both employer and employee and strike a reasonable equilibrium. Even where dismissal might be found substantively unfair, reinstatement may be inappropriate where the circumstances are such that continued employment would be intolerable, particularly where the nature of the employee's misconduct creates unacceptable ongoing risks related to the core functions of the employer's business. Documents contained in bundles handed up during arbitration proceedings do not automatically constitute evidence before the arbitrator; parties must specifically refer to and lead evidence on such documents if they wish to rely on them.

The court made several non-binding observations: (1) That listing multiple alleged errors by an arbitrator does not constitute grounds for review unless those errors had a distorting impact on the arbitrator's reasoning leading to an unreasonable result; (2) That the fact an arbitrator does not expressly mention every factor in their award does not mean they did not consider it, unless the factor was of great significance; (3) That it is not always necessary for an employer to lead explicit evidence of breakdown in trust if this flows from the nature of the misconduct itself; (4) That in the court's own view, Waterboer's dismissal could have been justified as fair, but the court's view is not the test on review; (5) Observations on the practical difficulties facing employers who cannot directly oversee employees' conduct due to the nature of their work, and employers' duties regarding passenger safety in the transport industry.

This case is significant for several reasons: (1) It reinforces the distinction between the test for substantive fairness of dismissal and the separate inquiry into appropriate remedy under section 193(2) of the LRA; (2) It clarifies that an arbitrator cannot simply collapse these two inquiries and must separately consider whether reinstatement would be tolerable given the circumstances; (3) It emphasizes that when determining remedy, arbitrators must strike a reasonable equilibrium between the competing interests of employer and employee, not merely consider the matter from the employee's perspective; (4) It confirms that in certain contexts (particularly where employee conduct directly relates to core business risks like passenger safety), the nature of the misconduct itself may make continued employment intolerable even if dismissal might be considered harsh; (5) It provides important guidance on the evidential status of documents in arbitration bundles, confirming that such documents are not automatically evidence unless specifically introduced and dealt with in testimony; (6) It demonstrates the application of the Sidumo/NUMSA reasonableness test while acknowledging that different decision-makers may reach different conclusions on the same facts without being unreasonable.