Sasol Oil (Pty) Ltd v Tom P Dunywa and Others

Tom P Dunywa (Third Respondent) and Aupa Mbhele (Fourth Respondent) were employed by Sasol Oil (Pty) Ltd (Applicant) as Fuel Driver Operators. On 15 August 2008, an external witness, Percy Bvuma, arrived at the Applicant's truck stop premises early in the morning and witnessed two individuals siphoning fuel from a petrol tanker. When his vehicle's lights shone on them, he could see their faces. The individuals ran away. Bvuma reported the incident to security and later saw the same individuals in the vicinity, positively identifying them as Tom and Aupa. Both employees were charged with theft under the Sasol disciplinary code. Security footage showed Tom and Aupa entering the security office at 04h15, with an arm reaching towards the key box. The truck's ignition records showed it was turned on at 04h23 and idled until 04h30. Tom and Aupa claimed they arrived to take a breathalyser test and that Aupa wanted to shower. Both were found guilty and dismissed following a disciplinary hearing and appeal. They referred an unfair dismissal dispute to the National Bargaining Council for the Chemical Industry. The Commissioner found the dismissals procedurally fair but substantively unfair, ordering reinstatement with five months' back pay for each employee.

• Whether the Commissioner's arbitration award was reviewable under the Sidumo test
• Whether the Commissioner properly evaluated and considered the evidence before her
• Whether the Commissioner's finding that the dismissals were substantively unfair was a decision that a reasonable decision-maker could reach
• Whether the Commissioner committed a gross irregularity by failing to apply her mind to the evidence and rejecting the Applicant's evidence without proper consideration

The arbitration award dated 14 May 2009 issued under case number FSCHEM224-08/09 was reviewed and set aside. The award was substituted with an order that the dismissals of Tom P Dunywa and Aupa Mbhele were substantively fair. No order as to costs was made.

A commissioner's arbitration award will be reviewable and set aside where the commissioner fails to properly apply their mind to the evidence, ignores material facts or evidence, and fails to weigh probabilities in accordance with the versions presented. An award is unreasonable and reviewable under the Sidumo test when it is not a decision that a reasonable decision-maker could reach on the material facts and evidence before them. A commissioner commits a reviewable irregularity by rejecting credible eyewitness testimony and corroborating evidence without proper consideration, and by drawing inferences not supported by the totality of the evidence. The test remains whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach, applying both constitutional principles of fair labour practices and administrative justice.

The Court exercised its discretion not to award costs despite the review application succeeding, noting that while the dispute had a long and protracted history, costs were not warranted in the circumstances. The Court indicated it was in a position to substitute its own order regarding the fairness of the dismissals rather than remitting the matter back to the bargaining council. The judgment also contains observations about the proper application of the reasonableness test in reviews, confirming the principles established in Gold Fields Mining SA (Pty) Ltd v CCMA and Herholdt v Nedbank Ltd that material errors only justify setting aside an award if their effect is to render the outcome unreasonable.

This case illustrates the application of the Sidumo review test in South African labour law, specifically the standard for reviewing CCMA arbitration awards. It demonstrates that courts will intervene where a commissioner fails to properly consider and evaluate material evidence, ignores probabilities, and reaches conclusions that no reasonable decision-maker could reach. The judgment reinforces that while courts should be cautious in interfering with commissioners' factual findings, they retain the power to set aside awards where there has been a failure to apply the mind to evidence or where findings are irrational or unreasonable. The case also highlights the importance of properly weighing eyewitness testimony and corroborating evidence, and the danger of drawing inferences not supported by the totality of the evidence. It confirms that circumstantial evidence, when properly evaluated alongside direct evidence, can support findings of misconduct justifying dismissal.