G4S Cash Solutions (Pty) Ltd v NUMSA obo Mosinyane and 8 Others and Others

G4S Cash Solutions (Pty) Ltd operates in the cash-in-transit industry, replenishing ATMs for clients such as Capitec Bank. The employees were employed as custodians, the final link in a strictly regulated chain of custody, responsible for transporting cash and loading it into ATMs. Between January and June 2019, cash shortages totalling R1 377 690.00 occurred on the dedicated routes of the employees. Following polygraph tests indicating deception and extensive technical investigations, the employees were individually charged with gross negligence for being unable to account for the shortages. They were dismissed between August 2019 and January 2020 after internal disciplinary hearings. NUMSA referred an unfair dismissal dispute to the National Bargaining Council for the Road Freight and Logistics Industry (NBCRFLI). The arbitrator found the dismissals both substantively and procedurally unfair and ordered retrospective reinstatement with back pay. G4S instituted a review application in the Labour Court under sections 145 and 158(1)(g) of the Labour Relations Act 66 of 1995, contending that the award was unreasonable and irregular.

• Whether the arbitrator's award was reviewable under the Sidumo reasonableness standard on the grounds of gross irregularity and unreasonable outcome.
• Whether an employer is entitled to lead additional evidence at arbitration not presented at the internal disciplinary hearing, and whether such evidence must relate to the same reason for dismissal.
• Whether the arbitrator correctly identified the true reason for dismissal, or whether she impermissibly narrowed the disciplinary charges to impose only a duty to count and report cash shortages.
• Whether the employees, as custodians in sole control of cash at ATMs, had a duty to account for shortages and whether their failure to provide a reasonable explanation constituted gross negligence.
• Whether the arbitrator properly applied the principles relating to inconsistency in dismissal and whether the employees established a proper like-for-like comparison.
• Whether the disciplinary process was procedurally unfair.
• Whether an arbitrator must assess an unfair dismissal dispute on a balance of inherent probabilities rather than applying a criminal-law reasonable-doubt standard.

The review application succeeded. The arbitration award (including the variation rulings) was reviewed and set aside. The arbitrator's findings that the dismissals were substantively and procedurally unfair were overturned.

1. An arbitration award under the LRA is reviewable and may be set aside under section 145 if, applying the reasonableness standard in Sidumo, the outcome is one that a reasonable arbitrator could not have reached on all the material evidence before the arbitrator. 2. Unfair dismissal arbitration is a hearing de novo; an employer may lead additional evidence not presented at the internal disciplinary hearing, provided such evidence relates to the same reason for dismissal given at the time of dismissal. An employer may not advance a new or different reason for dismissal at arbitration. 3. The true reason for dismissal must be determined by reading the disciplinary charge in its proper factual and workplace context; charges need not be formulated with criminal-law precision, provided the employee was informed of the allegations in sufficient detail to understand and answer them. 4. Where an employer establishes a prima facie case that an employee in a position of trust failed to account for cash shortages occurring under the employee's sole control, the burden shifts to the employee to provide a reasonable and acceptable explanation; failure to do so supports a finding of negligence, which may be gross depending on the degree of remissness and the surrounding context. 5. A finding of inconsistency in dismissal requires a proper factual basis establishing that a similarly situated comparator was treated more favourably. 6. An arbitrator must assess unfair dismissal disputes on a balance of inherent probabilities and may not apply a criminal-law reasonable-doubt standard.

The Court remarked that parties in review applications have a duty to provide the Court only with what is necessary to decide the matter, and criticised the parties for submitting an unnecessarily voluminous record spanning thousands of pages across approximately 30 lever arch files, noting that the underlying dispute was in fact relatively straightforward. The Court also made general observations regarding the strict zero-tolerance controls applicable in the cash-in-transit industry and the high degree of trust placed in custodians when handling cash at ATMs.

The judgment reinforces the Sidumo reasonableness standard for review of arbitration awards under section 145 of the LRA. It provides important guidance on the scope of de novo arbitration proceedings, clarifying that an employer may lead new evidence at arbitration provided it relates to the same reason for dismissal advanced at the time of dismissal, but may not change or 'morph' the reason. It also affirms that disciplinary charges must be read contextually rather than with narrow technical precision, and that employees in positions of trust who are unable to provide a reasonable explanation for cash shortages occurring under their sole control may be found guilty of gross negligence. Additionally, it reiterates that arbitrators must apply a civil balance of probabilities and not a criminal standard of proof when determining unfair dismissal disputes.