Telkom SA SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others

Willie Rahl (fourth respondent) was employed by Telkom SA SOC Limited for 36 years from 1982 to 2018 as a supervisor in the Open Serve business. He was dismissed on 5 February 2018 for gross dereliction of duty. Telkom preferred five main charges against Mr Rahl, all relating to failures to supervise and manage his subordinates properly: overtime mismanagement (permitting employees to claim overtime not due), failures in dispatch management, failures in fleet management, TBI process management failures, and inappropriate time management of subordinates. In the disciplinary enquiry, Mr Rahl was found not guilty of several charges; where guilty, he received sanctions ranging from a final warning to dismissal. The sanction of dismissal applied to two overtime mismanagement charges, one dispatch management charge, all fleet mismanagement charges, and both time management charges. Mr Rahl referred a dispute concerning the fairness of his dismissal to the CCMA. At the arbitration, Telkom led a single witness (Mr Senoamadi, the disciplinary enquiry chairperson) and Mr Rahl testified in support of his application for relief.

• Whether the CCMA Commissioner's finding that the dismissal was substantively unfair was reasonable
• Whether the Commissioner misconceived the nature of the enquiry
• Whether dismissal was an appropriate sanction for the misconduct proven
• Whether the employee's conduct constituted gross negligence or dereliction of duty warranting dismissal
• The appropriate standard of review for challenging CCMA arbitration awards

The application for review was dismissed. There was no order as to costs. The CCMA award reinstating Mr Rahl retrospectively with a written warning valid for six months was upheld.

The binding legal principles established are: (1) For a review of a CCMA award to succeed, the applicant must show that the arbitrator misconceived the nature of the enquiry or arrived at an unreasonable result - one that a reasonable arbitrator could not reach on all the material presented; (2) Gross negligence or dereliction of duty requires proof of deliberate or wilful action, involving a departure from the standard of a reasonable person to such an extent that it may be categorized as extreme, demonstrating either complete obtuseness of mind where there is conscious risk-taking, or a total failure to take care where there is no conscious risk-taking; (3) Where an employer's disciplinary code distinguishes between gross negligence/dereliction of duty (warranting dismissal) and ordinary non-compliance with rules (warranting lesser sanctions), this distinction informs the assessment of whether dismissal is an appropriate sanction; (4) A review court is primarily concerned with the reasonableness of the CCMA arbitrator's decision rather than the reasoning process used to reach that decision.

The Court noted that Mr Rahl had raised in his answering affidavit that the Commissioner failed to provide full compensation for salary lost during suspension and after dismissal, and submitted that the Court should change the award to provide backpay for the full period. However, the Court observed that this submission fell short of an application to cross-review the Commissioner's award and there was no notice of motion seeking such relief, so it could not be considered. This suggests that parties seeking to challenge aspects of CCMA awards must do so properly through formal cross-review applications rather than merely raising issues in answering affidavits.

This case is significant in South African labour law for reinforcing the high threshold required for successful review applications of CCMA arbitration awards. It clarifies the distinction between gross negligence/dereliction of duty (warranting dismissal) and ordinary negligence or non-compliance with company rules (warranting lesser sanctions). The case demonstrates judicial deference to CCMA arbitrators' decisions on appropriate sanctions, particularly where employers have their own disciplinary codes distinguishing between degrees of misconduct. It also provides guidance on the evidentiary requirements for establishing gross negligence in the workplace, requiring more than mere failure to detect subordinates' misconduct - it must involve extreme departure from reasonable standards or total failure to take care.