Willem van der Bank v Commissioner D E Matlatle N.O. and Others

The Applicant was dismissed by Barloworld South Africa (Pty) Ltd (the Employer) for making a statement to an auditor (not employed by the Employer): "die auditeers as a STD jy kan net nie onslae raak van hulle nie" (translated as "You and/or auditors are becoming like a bad STD that won't go away. I just can't get rid of you"). The Applicant was charged with sexual harassment alternatively inappropriate behaviour in the workplace. The CCMA Arbitrator found the Applicant guilty of inappropriate behaviour (but not sexual harassment as the utterances did not accord with the Code) and confirmed the dismissal on the basis that the Applicant failed to show remorse. The Applicant had 10 years of service with a clean disciplinary record, received a 5.64% salary increase in the same year, and had a high performance rating. The utterances were made to an external auditor in what the Applicant claimed was a joking manner. The Applicant brought a review application to set aside the arbitration award.

• Whether the arbitration award was reviewable under section 145 of the Labour Relations Act
• Whether the Arbitrator applied the correct test in determining the fairness of the dismissal
• Whether the Arbitrator properly considered both aggravating and mitigating factors in assessing the appropriateness of dismissal as a sanction
• Whether the guilty finding of inappropriate behaviour was reasonable
• Whether dismissal was an appropriate sanction in the circumstances

The arbitration award under case number GAEK 1193-18 dated 23 April 2019 was reviewed and set aside and replaced with an order that: (1) The dismissal of Willem Van Der Bank by Barloworld South Africa (Pty) Ltd t/a Barloworld Equipment is declared procedurally fair but substantively unfair; (2) Barloworld South Africa (Pty) Ltd t/a Barloworld Equipment is directed to reinstate the Applicant from the date of dismissal; (3) Each party to pay their own costs.

An arbitrator reviewing the fairness of a dismissal must weigh all relevant aggravating and mitigating factors together in light of the seriousness of the breach. Failure to consider important mitigating circumstances constitutes a failure to understand the nature of the dispute and to deal with its substantial merits, rendering the award reviewable. Even where trust has been affected by an employee's misconduct, dismissal does not automatically follow - all circumstances of the case must be considered. An arbitrator who glosses over and fails to determine important facets of a dispute may be found to have not applied their mind, constituting a reviewable irregularity. The test for review is whether the decision is one that a reasonable decision-maker could have reached based on the totality of the evidence and circumstances.

The Court noted that the statement allegedly made by the Applicant during the arbitration process (referred to by counsel for the Employer) would not prevent reinstatement, as if such statement was incorrect, the Employer would still have the right to take necessary disciplinary action against the Applicant. The Court also observed that it struggled to understand how trust would have been affected where the utterances were made to a complainant who was not employed by the Employer but was an external auditor. The Court suggested that a final written warning would be an appropriate sanction in the circumstances.

This case reinforces the established principles regarding review of CCMA arbitration awards in South African labour law. It emphasizes that arbitrators must conduct a comprehensive assessment of both aggravating and mitigating factors when determining the appropriateness of dismissal as a sanction. The judgment confirms that failure to consider important mitigating circumstances constitutes a reviewable irregularity. The case demonstrates that even where misconduct is proven and trust may be affected, dismissal does not automatically follow - all circumstances must be weighed. It also clarifies that where an employee is found guilty of an alternative (lesser) charge rather than the main charge that formed the basis of dismissal, this is a relevant mitigating factor. The case provides guidance on the application of the Goldfields six pillar test and reinforces that arbitrators must understand and deal with all substantial merits of the dispute before them.