Cindi Alani Samson v Commission for Conciliation, Mediation and Arbitration and Others

The applicant, Cindi Alani Samson, was employed by Reach Summit (Pty) Ltd as a Project Manager: Recruitment and Placement from 1 November 2021, with a probation period that expired without incident on 1 February 2022. In early 2022, the recruitment manager and two team members resigned and were not replaced, reducing the applicant's team from eight to three. During mid-February 2022, the employer received an unusually large order requiring the recruitment of 825 recruits, with tight deadlines and extensive travel to sites including Rustenburg, Polokwane, Mokopane and Thabazimbi. The applicant alleged the deadlines were missed by one week due to extreme workloads and insufficient resources, whereas the employer contended the deadlines were self-imposed. On 28 March 2022, the employer issued a disciplinary notice for poor work quality/negligence, but retracted it on 5 April 2022 and instead issued a final written warning by email without holding a hearing. The warning cited negligence and carelessness causing missed deadlines. The applicant denied she was informed of a right to appeal or given an opportunity to make representations. She referred an unfair labour practice dispute to the CCMA. The commissioner found there was no unfair labour practice, largely by treating disputed facts as common cause. The applicant then brought this application to review and set aside the arbitration award.

• Whether the commissioner failed to apply his mind to the material evidence and issues, and treated disputed facts as common cause, thereby denying the applicant a fair hearing.
• Whether the arbitration award was unreasonable and reviewable under the Sidumo reasonableness test.
• Whether the final written warning issued to the applicant constituted an unfair labour practice under section 186(2)(b) of the Labour Relations Act 66 of 1995.
• Whether the applicant's failure to meet the recruitment deadlines constituted misconduct (negligence/carelessness) or poor work performance (incapacity), and whether the commissioner and parties were required to observe the distinction.
• Whether the Labour Court should determine the dispute afresh or remit it to the CCMA.

The arbitration award issued by the second respondent on 22 July 2022 (case number GATW 4834-22) is reviewed and set aside. The final written warning issued to the applicant is declared an unfair labour practice and is set aside. There is no order as to costs.

A commissioner’s failure to apply his or her mind to material issues in dispute, and the treatment of contested facts as common cause without resolution, constitutes a denial of a fair trial and renders an arbitration award unreasonable under the Sidumo test. Employers must carefully distinguish between misconduct (negligence), where an employee is able to perform but does not, and incapacity (poor work performance), where an employee tries but cannot; where non-performance stems from extreme workloads and insufficient resources, disciplinary action premised on negligence may amount to an unfair labour practice. The issuance of a final written warning without affording the employee a fair opportunity to be heard is procedurally unfair. Where the evidentiary record before the court is complete, a reviewing court may determine the outcome itself rather than remit the matter to the CCMA if it is in the interests of justice and promotes the effective resolution of labour disputes.

The court noted, without deciding the point, that there was nothing problematic in the applicant’s subsequent dismissal dispute proceeding on its own path rather than being consolidated with the unfair labour practice dispute. The court also observed that in labour disputes costs do not follow the result as a matter of course. Additionally, the court made analytical comments about the vagueness and internal contradictions in the evidence of the employer’s manager, Ms Kallis, noting that if accepted at face value her evidence suggested she had undertaken the bulk of the work and contradicted the documentary evidence before the commissioner.

The judgment reinforces that CCMA commissioners must apply their minds to all material disputes and may not treat contested facts as common cause, as this undermines the fairness of the arbitration and renders the award reviewable under the Sidumo reasonableness test. It also reiterates the fundamental distinction between incapacity (poor work performance) and misconduct (negligence), cautioning employers against disciplining employees for failures attributable to unattainable targets and inadequate resources. The decision underscores the procedural requirement that employees must be afforded a fair hearing before disciplinary sanctions are imposed, and confirms that a reviewing court may determine the outcome itself where the record is complete and remittal would not serve the interests of justice.