Not reportable

the labour court of South Africa,
held at CAPE TOWN

case no: C89/2023

In the matter between:

MEDICI ENERGY (PTY) LTD 	Applicant

and

BENNET, CM N.O.	First Respondent

THE COMMISSION FOR					Second Respondent
CONCILIATION, MEDIATION
AND ARBITRATION

ROUX, DESIREE	Third Respondent

Date of Hearing: 	28 January 2025
Date of Judgment:	21 May 2025
This judgment was handed down electronically by circulation to the parties’ legal representatives by email, publication on the Labour Court website and release to SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 21 May 2025.

Summary: (Application to review a CCMA award (unfair dismissal) – commissioner’s conclusions on substantive and procedural fairness reasonable – application refused.).

JUDGMENT

LESLIE AJ 

[1]	This is an application, brought in terms of section 145 of the Labour Relations Act 66 of 1995 (“the LRA”), to review and set aside an arbitration award issued by the first respondent (“the commissioner”) under the auspices of the second respondent (“the CCMA”). The application is unopposed.

[2]	The third respondent (“Ms Roux”) was previously employed by the applicant as a sales executive. She was dismissed on grounds of alleged misconduct on 28 July 2022. 

[3]	At the internal disciplinary hearing, Ms Roux was found guilty of two counts of misconduct. However, before me it was conceded that the second count was unjustified and therefore irrelevant to the review application. The first charge of misconduct was the following: 
“Gross insubordination in that you have failed to follow a lawful and reasonable instruction when the office manager, Lauren Smith, instructed you to return to work in the office on the 10th of June 2022. You were to start working in office by the 13th of June 2022. You have to date failed to come to work in the office, despite numerous instructions from the office manager, your manager and HR.” 

[4]	Ms Roux challenged the fairness of her dismissal in the CCMA. The commissioner concluded that her dismissal was both substantively and procedurally unfair. She was awarded compensation equivalent to 8 months’ salary.

Substantive fairness 

[5]	Ms Roux worked from home in Paarl for a significant period of time (in excess of two years). Her evidence was that this arrangement was put in place because her son suffers from an auto-immune disease. 

[6]	On Friday, 10 June 2022, the applicant issued an instruction to Ms Roux to commence working from the company’s office in Cape Town with effect from Monday, 13 June 2022.

[7]	Ms Roux did not comply with the instruction and this ultimately led to her dismissal. 

[8]	The commissioner held that the instruction was not reasonable and that it had been issued in response to an (intended) workplace grievance raised by Ms Roux. The crux of his reasoning appears from paragraph 19 of the award: 
“I find, on the balance of probabilities, that the direction to return to the office was in direct response to her stated intention to submit a formal grievance. It was made with the sole intention to ‘punish’ Applicant for making a complaint and in the full knowledge that she could not comply. As far as the agreement to work from home is concerned, the evidence supports the conclusion that, far from being fictitious, there was such an agreement. Respondent could not keep its version straight. At one stage there was an agreement and now it was being rescinded and at another, there was no agreement. The email from Michael Ambrose of 11 July 2022 makes it clear that there was an agreement – he refers to it. Why then suddenly, long after the COVID parade had gone by, did working from home become untenable? Because she had dared to raise a grievance against two of her managers. Was it a lawful instruction? On the face of it, yes. Was it a reasonable instruction? Not in the slightest. It was capricious and petulant. Why not discuss it with Applicant and find a solution? Daniel Ambrose said in cross-examination that Applicant was to return to work slowly. This was clearly not communicated to Applicant at any time. What was communicated was ‘come to the office – do it now.’” 

[9]	The applicant seeks to review this finding on the basis that it does not meet the Sidumo-reasonableness standard, namely, that it is not a finding which a reasonable decision-maker could reach. 

[10]	In my view, there is no merit in this submission. The commissioner’s conclusion is more than justified by the evidence that served before him, for inter alia the following reasons: 
10.1	Although the applicant’s witness (Mr Daniel Ambrose, director), prevaricated on this point, there can be no doubt that there was an oral undertaking to allow Ms Roux to work from home in Paarl. This undertaking had been given on account of her son’s medical condition.
10.2	On the face of it (and this was conceded by Mr Orton who appeared for the applicant) it was not reasonable to require Ms Roux to return to the office on effectively no notice. This could only have been calculated to prejudice Ms Roux – for reasons that are set out below.
10.3	The “back to the office” email dated 10 June 2022 referred to a “decline in COVID-19 cases” as being the ostensible reason for the instruction. However, this was not sufficiently substantiated in the applicant’s evidence before the CCMA. 
10.4	On its own, the fact that COVID-19 cases were in decline could not justify the termination of a long-standing arrangement permitting Ms Roux to work from home. One would expect there to be a very pressing reason for terminating this arrangement on such short notice. None was forthcoming in the applicant’s evidence. 
10.5	The timing of the instruction is damning. On 11 May 2022, Ms Roux had requested the applicant’s formal grievance documentation from Daniel Ambrose. She wished to lodge a formal grievance against two managers. Her request was ignored. 
10.6	On 9 June 2022, Ms Roux repeated her request for the grievance documentation from the HR Manager and the forms were forwarded to her.
10.7	The next day, without any prior consultation or warning, Ms Roux was issued with the instruction to work from the office with effect from that coming Monday. 
10.8	As set out above, no plausible reason was put up by the applicant for this sudden termination of Ms Roux’s work-from-home arrangement. The only reasonable inference is that the instruction was issued in retaliation for her stated intention of filing a grievance. Certainly, on the evidence, this was at least a reasonable conclusion to reach. 

[11]	The commissioner’s conclusion is borne out by the contents of Michael Ambrose’s email to Labournet dated 11 July 2022, in which he asked them to “please terminate the working relationship with Dezi [Ms Roux] with immediate effect.” The notice of disciplinary enquiry was duly issued to Ms Roux on the following day. In this email (and in the evidence led at arbitration), surprisingly little is said about the work-from-home arrangement. The main tenor of the applicant’s complaint with Ms Roux was that she was causing trouble by “fighting” with colleagues and management, i.e. her grievance. 

[12]	In short, having regard to the full conspectus of evidence before the commissioner, his conclusion that the instruction was not reasonable (and concomitantly, that the dismissal was substantively unfair) does not warrant interference on review. It was, at the very least, one that a reasonable decision-maker could reach. 

Procedural fairness

[13]	The commissioner’s findings on procedural fairness were similarly reasonable. The commissioner correctly held that it was unfair for the applicant to refuse to give Ms Roux any details or information pertaining to the second charge of misconduct. The evidence revealed, in addition, that Ms Roux was prevented from having her chosen representative represent her on the morning of the hearing – on the spurious basis that he was a potential witness in the matter.

[14]	In my view, the applicant has not made out a proper case, on grounds of reasonableness, justifying interference with the award on review. 

[15]	In the premises, the following order is made:

Order

[1]	The application is dismissed.
[2]	There is no order as to costs.

Leslie AJ
Acting Judge of the Labour Court of South Africa

Representatives – 

For the applicant:	RJC Orton