Mbuyiseni Moses Khambule v National Union of Mine Workers and Others

The appellant (employee) was employed as a Senior Process Operator at a mining refinery producing platinum group metals (PGMs) of high value. On 19 September 2012, Steenkamp, the employee's superior, discovered a sealed black bag hidden under a foot-pedal while working with the employee in a cab of an ammonia tanker. The bag contained over 3.25 kg of PGM valued at over R450,000. The employee told Steenkamp not to report the bag to security but to throw it away. Steenkamp ignored this instruction, reported both the bag and the employee's statement to security. The employer had a well-known rule requiring any PGM found at or around the refinery to be reported immediately to security or management and not to be moved, touched or picked up. Six months later, the employee was charged with gross misconduct for making the statement to Steenkamp. During this six-month period, both the employee and Steenkamp took annual leave and otherwise continued working together. The employee was found guilty at a disciplinary hearing and dismissed. The CCMA found the dismissal substantively and procedurally unfair, finding dismissal too harsh a penalty, and ordered reinstatement with two months' back-pay. The Labour Court reviewed and set aside the CCMA award, substituting it with a finding that dismissal was substantively fair but procedurally unfair, and ordered five months' salary as compensation.

• Whether the CCMA's award that dismissal was too harsh a penalty was reasonable and should not be interfered with on review
• Whether an employer must lead evidence of breakdown in the trust relationship when dismissing an employee for misconduct, or whether such breakdown emerges from the facts themselves
• Whether the employee's conduct of instructing his superior to discard the bag containing valuable metals justified dismissal
• What factors should be considered in determining whether dismissal is an appropriate sanction for misconduct involving dishonesty
• Whether the functional relationship between the employee and the person to whom he made the statement is relevant to determining the appropriateness of dismissal

The appeal succeeded with no order as to costs. The order of the Labour Court was set aside and substituted with an order dismissing the review application. This had the effect of reinstating the CCMA's original award finding the dismissal substantively and procedurally unfair and ordering reinstatement with two months' back-pay.

When reviewing a CCMA arbitration award, a court must consider all evidence led at arbitration and determine whether the award is one which any commissioner could reasonably make, rather than focusing solely on the commissioner's reasoning. An employer is not obliged to lead evidence of breakdown in the trust relationship to justify dismissal for misconduct unless the employer specifically seeks dismissal on the basis of such breakdown as a distinct charge. The nature and seriousness of misconduct cannot be assessed in isolation from the roles and relationships of the parties involved, including the relative positions of power and influence between the employee and the person to whom wrongful conduct was directed. A commissioner's decision on the appropriateness of a sanction will not be interfered with on review if it falls within the range of decisions a reasonable commissioner could make, even where misconduct involving dishonesty has been proven.

The Court made observations about the contrived nature of Steenkamp's evidence regarding breakdown of trust, noting it was extraordinary that he claimed the trust relationship only broke down after the disciplinary hearing found the employee guilty, rather than when the words were actually uttered to him six months earlier, particularly given they had worked together harmoniously throughout that period. The Court also observed that while dismissal might be the only appropriate sanction in cases of dishonest conduct related to high-value metals susceptible to theft, this case might have been different had the roles been reversed with the employee being the supervisor rather than the subordinate who could not influence Steenkamp. The judgment notes that functional relationship between an employee and superior may play a part in determining whether inappropriate behaviour is an obstacle to continued employment, and that even extreme inappropriate behaviour may in exceptional cases not lead to dismissal if there is no proximity between the employee and the supervisor undermined.

This case provides important guidance on the review of CCMA arbitration awards in dismissal cases. It clarifies the distinction between when an employer must lead specific evidence of breakdown in the trust relationship (where this is the basis of the charge) versus when such breakdown should emerge naturally from proven facts of misconduct. It emphasizes that courts must consider all evidence and circumstances when reviewing awards, not just the commissioner's reasoning. The judgment also establishes that the functional relationship and relative positions of power between the employee and the person affected by the misconduct are relevant factors in determining whether dismissal is an appropriate sanction. It reinforces the principle that commissioners have discretion in determining appropriate sanctions and that courts should not interfere with awards that fall within the range of reasonable outcomes, even if the court might have decided differently. The case illustrates the high threshold for interference with CCMA awards on review.