The applicant operates a fresh produce handling facility. Over approximately a year, more than 6000 pallets went missing from the premises. The loss was discovered when Hobbs, one of applicant's witnesses, saw Mr Naidoo (a senior manager) stealing pallets during weekends when he was in charge. Naidoo confessed via email. The third respondent (employee) was the Chief Operating Officer responsible for controlling assets including pallets and customer stock. He was subjected to a polygraph test showing no deception. The Board directed management to deal with him in the least damaging way. The managing director (Jaco) gave the third respondent a choice: accept a voluntary severance package or face disciplinary enquiry. The third respondent initially declined, and Jaco stated he would "go for his throat" (meaning proceed with disciplinary action). After the third respondent's grievance about this threat was upheld, he was suspended, polygraph tested again, and subjected to disciplinary enquiry. He was charged with breach of fiduciary duty and/or gross negligence for failing to properly manage company assets. He was found guilty and dismissed. The Commissioner in arbitration awarded him six months' compensation, finding the dismissal unfair.
1. The applicant's second supplementary affidavit is struck out with costs as it was withdrawn. 2. The arbitration award dated 26 February 2019 (case reference GAJB 26522018) is reviewed and set aside. 3. The matter is remitted back to the CCMA to be determined by a Commissioner other than the first respondent. 4. Each party to pay their own costs except for the costs of the withdrawn application.
A commissioner commits a reviewable irregularity when: (1) rejecting witness evidence as biased solely based on the witness's position (e.g., being a director) without analysing the actual evidence and credibility; (2) excluding relevant and admissible evidence that falls within the scope of the misconduct charge; (3) failing to properly analyse evidence to determine the central issues (here, whether conduct constituted negligence or gross negligence); and (4) making findings not based on a proper conspectus of all the evidence. Where material evidence has been improperly excluded by a commissioner, a court on review should remit the matter for fresh hearing rather than substitute its own finding, as it is not in a position to determine issues that depend on the excluded evidence.
The Court noted as curious that the third respondent requested five months' compensation at the start of arbitration but the Commissioner awarded six months without being asked, and this was unexplained. However, the Court stated it was not for the Court to consider this aspect. The Court also observed that there is nothing inherently wrong with an employer giving an employee a choice between voluntary severance and facing a disciplinary enquiry, provided there are legitimate grounds for the disciplinary enquiry. The Court noted that the third respondent's argument that shortcomings constituted performance issues rather than misconduct was without merit, as he never testified he was unable to perform his duties but rather defended on the basis he was not negligent.
This case illustrates important principles in labour law review proceedings. It demonstrates that commissioners must analyse evidence on its merits and cannot reject witness testimony solely on the basis of their position (e.g., as directors) without examining credibility and content. The judgment emphasizes that commissioners must consider all relevant evidence and cannot exclude evidence that falls within the scope of misconduct charges. It shows the difference between negligence and gross negligence is material to determining fairness of dismissal, and all relevant evidence must be considered. The case also demonstrates judicial restraint - even where a review succeeds, courts will remit rather than substitute their findings where material evidence was excluded and the full picture is not before the court. It clarifies that offering employees a choice between voluntary severance and disciplinary proceedings is not per se improper if legitimate grounds for discipline exist.