Lana Groenewald v Commission for Conciliation, Mediation and Arbitration and Others

Lana Groenewald (the applicant) was employed by Times Square Marketing (Pty) Ltd as Office Manager from 4 October 2021. She was interviewed on 20 and 21 September 2021, during which she was asked about possessing a valid Fidelity Fund Certificate (FFC) for 2021, which was an inherent requirement for the position. The applicant indicated that she needed to renew her FFC and it would take a few days. After commencement of employment, it was discovered that the applicant's account with the Estate Agency Affairs Board (EAAB) was blocked due to non-submission of audits and she did not have a valid FFC. The applicant had not disclosed during interviews that her account was blocked, that audits for two years were outstanding, and that her auditor and accountant had passed away. The process to obtain a valid FFC would take months, not days. On 17 November 2021, the applicant was charged with gross dishonesty for making false representations regarding the validity of her FFC on 20 September 2021. She was dismissed following a disciplinary hearing on 22 November 2021. The applicant referred an unfair dismissal dispute to the CCMA. The Commissioner found the dismissal substantively and procedurally fair on 22 January 2022. The applicant applied to review and set aside the arbitration award under section 145 of the LRA.

• Whether the Commissioner committed misconduct by failing to consider all facts and not reasonably applying her mind
• Whether the Commissioner committed a gross irregularity in the conduct of arbitration proceedings by failing to consider the weight of the applicant's submissions
• Whether the arbitration award was one that a reasonable decision-maker could not reach
• Whether the applicant's non-disclosure of material information regarding her FFC constituted misrepresentation justifying dismissal
• Whether the review grounds met the threshold test established in Sidumo and Herholdt

1. The review application is dismissed. 2. There is no order as to costs.

An arbitration award under the LRA will only be set aside on review if it is one that no reasonable arbitrator could reach on all the material that was before the arbitrator. Material errors of fact and the weight attached to particular facts are not in themselves sufficient to set aside an award unless they render the outcome unreasonable. The reviewing court must undertake a fair reading of the award in the context of the body of evidence adduced and make an even-handed assessment of whether the conclusions are untenable. Review is not an appeal, and the court should not adopt a piecemeal approach but must consider the totality of the evidence. Where an employee withholds material information during the recruitment process that is relevant to their suitability for employment, particularly regarding inherent job requirements, this can constitute misrepresentation justifying dismissal even if there was no outright dishonesty. A Commissioner who properly considers all versions, applies their mind to the evidence, and reaches conclusions grounded in that evidence has not committed misconduct or gross irregularity.

The Court emphasized that commissioners under section 138 of the LRA are required to conduct arbitration proceedings in a manner they deem appropriate to determine disputes fairly and quickly, dealing with substantial merits with minimum legal formalities. This requires commissioners to cut through claims and counterclaims to reach the real dispute between parties, for which they must be allowed significant latitude. The judgment noted that the distinction between dishonesty and misrepresentation is relevant - while the Commissioner found the applicant was not dishonest (as the employer was aware she did not have a current FFC), the applicant nonetheless misled the employer by withholding the full reasons why she could not obtain the certificate and misrepresenting the timeframe required. The Court observed that "even if the perspective of the Labour Court is plausible and reasonable, that is an insufficient reason to displace the award" - the result must be so egregious that no reasonable person could reach it.

This case reaffirms the narrow scope of review of CCMA arbitration awards under section 145 of the LRA, emphasizing that Labour Courts must not substitute their own views for those of arbitrators. The judgment reinforces the principle from Sidumo, Herholdt, and subsequent cases that review is not an appeal, and an award will only be set aside if it is one that no reasonable decision-maker could reach. The case demonstrates that where a Commissioner properly considers the evidence and the parties' submissions, and reaches conclusions grounded in that evidence, a reviewing court will not interfere even if alternative interpretations are possible. It clarifies that material errors of fact are insufficient for review unless they render the outcome unreasonable. The judgment also illustrates the application of labour law principles regarding dishonesty, misrepresentation, and non-disclosure in employment relationships, particularly where inherent job requirements are concerned.