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REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 2638 /2014

DATE: 24 MAY 2016

Reportable

In the matter between:

MOKGALIMI PHUTHI..........................................................................................................Applicant

And

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION..........................................................................First Respondent

JACOB DANIEL SELLO N.O................................................................................Second Respondent

SIBANYE GOLD LTD KLOOF DIVISION............................................................Third Respondent

Heard: 21 April 2016

Delivered: 24 May 2016

Summary: Review application. Arbitrator considered appropriateness of the sanction in respect of misconduct that the Applicant was not dismissed for. Upheld dismissal as fair based on consideration of misconduct that was not the reason for dismissal. Award is reviewed and remitted for determination on limited issues.

JUDGMENT

PRINSLOO, J

Introduction

[1] The Applicant seeks to review and set aside an arbitration award issued on 3 December 2014 wherein the Second Respondent (the arbitrator) found his dismissal procedurally and substantively unfair and dismissed his case.

[2] The Third Respondent (Sibanye) opposed the application.

Background facts

[3] The background facts are summarised as follows:

[4] The Applicant was employed by Sibanye on 19 December 1989 and the last position he held was that of miner at the Manyano shaft of Sibanye’s Kloof Mine.

[5] On 25 July 2014, the Applicant was charged with misconduct.

[6] The charge of misconduct levelled against the Applicant related to the events of 22 July 2014 and read as follows:

‘Clocking in and out in that on 22 July 2014 you allegedly clocked for work but did not proceed to your workplace (VC 40/75 N5) underground at Manyano Shaft.’

[7] A disciplinary hearing was subsequently held on 4 August 2014 and after he was found guilty of misconduct, the Applicant was dismissed.

[8] The Applicant referred an unfair dismissal dispute to the First Respondent (CCMA). The issue to be decided was whether the Applicant’s dismissal was substantively and procedurally unfair.

The arbitration proceedings:

[9] Sibanye called four witnesses to testify at the arbitration proceedings.

[10] It is apparent from the argument presented at the arbitration by Sibanye, in opposing the Applicant’s request for legal representation, that he did not regard the charge levelled against the Applicant as complex and it was specifically argued that the charge related to the fact that the Applicant clocked in and did not thereafter go to his work place at VC 40/75 N5.

[11] Prior to any evidence being adduced and at the onset of the arbitration proceedings, the arbitrator attempted to narrow the dispute and he dealt with the charge of misconduct. In this process, he asked the Applicant whether he clocked in on 22 July 2014 and whether he failed to proceed to his workplace at VC 40/75. The Applicant responded positively to both questions and it was evident that he did not dispute the charge levelled against him.

[12] The Applicant’s case was that he was only relieving at V40/75 (section 54) and his actual workplace was at section 52.

[13] Sibanye’s case on the other hand is that the Applicant was appointed as a miner in terms of the provisions of the Mine Health and Safety Act with effect from 10 June 2014 to be specifically responsible for mining, blasting and ensuring health and safety at section 54. On 22 July 2014, he clocked in for work at 05:16 and clocked out at 12:26; and for the entire duration of the seven hours, he clocked in, he did not work at section 54 where he was supposed and expected to be working.

[14] Sibanye’s case is that the Applicant worked at section 52 from 1 November 2013 until 13 May 2014. From 14 May to 9 June 2014, the Applicant was working as part of stopping crew and from 10 June 2014, the Applicant was working at section 54 and not merely relieving there. Mr Gumede was the miner at section 52 as from 10 June 2014 and the Applicant was the miner at section 54.

[15] Mr Amos Parruque (Parruque), a mine overseer, testified that the Applicant was a miner in his section and he explained the duties and responsibilities of the Applicant in respect of safety and identifying hazards. He testified that the Applicant did not report for duty at section 52 on 22 July 2014, with the result that the mining crew could not go to the workplace, as it was not declared safe by the Applicant. The crew was not allowed to commence work before the miner has examined the area and declared it safe.

[16] The next day, 23 July 2014, Parruque questioned the Applicant and asked where he was working during the previous shift. The Applicant responded that he was working at section 52 as he does not work for section 54. He told Parruque that his appointment at section 54 had expired. The Applicant further explained that he went to section 52 as he was relieving another miner there, one Thabo. This was disputed by Parruque.

[17] Mr Mashaba (Mashaba) testified that he is Sibanye’s employee relations supervisor and his testimony was in respect of the procedural fairness of the Applicant’s disciplinary enquiry. He also testified in respect of the Applicant’s disciplinary record.

[18] Mr Gumede (Gumede) testified that he was the legally appointed miner at section 52 between the period June and July 2014. He testified that on 22 July 2014, the Applicant was the responsible miner at section 54 and on that date, he did not see the Applicant at section 52. On 22 July 2014, however, he worked at section 35 and not 54.

[19] Mr Sibiya (Sibiya) testified that he was the chairperson of the Applicant’s disciplinary hearing. The charge that the Applicant faced at the disciplinary hearing was a ‘charge of clocking in at work and out not going to his responsible work place’. In the disciplinary hearing, the Applicant gave two reasons for not going to his workplace on 22 July 2014, namely, that he was relieving another miner, one Thabo and secondly, he did not want to work at section 54.

[20] Sibiya testified about the procedure that he followed in the disciplinary hearing but in my view, that testimony is not relevant for the issue that I have to decide as there is no attack on the arbitrator’s findings on procedural fairness in this review application.

[21] Sibiya was asked specifically why he found the Applicant guilty of the charge and he responded that:

‘I found that he was guilty, it was fraud clocking in and out and not going to your workplace, that’s fraud and you are getting paid for the shift at the end but nothing is coming back for the company. No plus was achieved on the day, actually it was a loss shift and further on not going to a place where you are in charge of where you are risking people underneath your supervision. He was risking their lives in term of if they go in without their miner who is responsible to check the dangerous gasses al those things.’

[22] The Applicant called Mr Kakuwe (Kakuwe) a branch representative of UASA and full time union representative as witness. Kakuwe testified about the events surrounding the disciplinary enquiry and the Applicant also testified.

[23] The arbitrator found the Applicant’s dismissal procedurally and substantively fair and dismissed his case.

Analysis of the arbitrator’s findings and grounds for review

[24] The arbitrator found the Applicant’s dismissal procedurally fair and the Applicant took no issue with the finding on procedural fairness in his application for review; and the findings on procedural fairness require no further consideration and are not subject to review.

[25] In the analysis of the evidence and in consideration of the charge of misconduct, the Applicant was dismissed for, the arbitrator made the following pertinent findings or observations:

25.1.   The Applicant’s misconduct was that he clocked in for work but failed to proceed to his workstation;

25.2.   Time related offences such as absenteeism and late coming are not generally dismissible offences;

25.3.   The Applicant claimed that he carried out his duties at section 52 on 22 July 2014 yet Gumede, who is the miner at section 52, did not see him and the Applicant failed to call any of his colleagues who worked with him on 22 July 2014 at section 52;

25.4.   The only inference is that the Applicant did not work at section 52;

25.5    The arbitrator agreed with the evidence of Sibiya that the actions of the Applicant constituted fraud. Fraud is a wrongful or criminal deception intended to result in financial or personal gain.

25.6.   The Applicant committed fraud as he clocked in but failed to carry out his duties and he was unduly enriched as he was paid for the day.

25.7.   Trust is the cornerstone of every employment relationship and as the actions of the Applicant constituted dishonesty. Sibanye was entitled to terminate his services.

25.8.   The Applicant showed no remorse and instead sought to mislead the arbitration.

[26] The Applicant raised three grounds for review in respect of these findings on the substantive fairness of his dismissal. The first ground for review takes issue with the arbitrator’s finding that the Applicant committed fraud, which led him to conclude that the Applicant was dishonest and that resulted in the conclusion that dismissal was an appropriate sanction.

The charge and the findings on fraud

[27] The arbitrator’s first enquiry and point of departure in determining the substantive fairness of the Applicant’s dismissal should have been whether the Applicant was indeed guilty of the misconduct that he was dismissed for. Once it is found that an employee is guilty of the misconduct that he was dismissed for, an enquiry into the appropriateness of the sanction should follow.

[28] The Applicant was charged with and dismissed for ‘clocking in and out in that on 22 July 2014 you allegedly clocked for work but did not proceed to your workplace (VC 40/75 N5) underground at Manyano Shaft’.

[29] The transcribed record of the arbitration proceedings shows that at the onset of the arbitration proceedings, when the arbitrator attempted to narrow the dispute, he asked the Applicant whether he clocked in on 22 July 2014 and whether he failed to proceed to his workplace. The Applicant responded positively to both questions and it was evident that he did not dispute the charge levelled against him. The Applicant, however, presented evidence as to where he was working and the reasons why he did not work at the workstation as set out in the charge sheet, which evidence was relevant for the enquiry into the appropriateness of the sanction.

[30] In my view, it was common cause that the Applicant clocked in on 22 July 2014, did not proceed to his workplace at VC 40/75 N5 and it follows that he was guilty of the misconduct that he was charged with and dismissed for. This is so on the Applicant’s own admission.

[31] What remained was to decide whether dismissal was an appropriate sanction.

[32] The arbitrator, however, made no findings on the charge that was levelled against the Applicant, he failed to determine whether the Applicant was guilty of the misconduct he was dismissed for and in general made no finding on the issue of guilt. What the arbitrator stated was that time related offences are not dismissible offences but found that he agreed with the evidence of Sibiya that the Applicant’s actions constituted fraud and dishonesty. The arbitrator made no independent finding based on the evidence presented but jumped to a conclusion that the Applicant’s actions constituted fraud and dishonesty based on nothing more but the fact that he agreed with Sibiya’s testimony.

[33] The Applicant’s case is that the finding that he was guilty of fraud and dishonesty is unreasonable as he was not dismissed for committing fraud or any act of dishonesty and that he is prejudiced by the unreasonable finding as it led to a conclusion that dismissal was an appropriate sanction.

[34] It is trite and had been confirmed by this Court and the Labour Appeal Court that the fairness of an employee’s dismissal must be considered and determined on the basis of the reasons for dismissal that the employer gave at the time of the dismissal.

[35] In casu, the Applicant was found guilty and dismissed for clocking in and out on 22 July 2014 and not proceeding to his workplace at VC 40/75 N5 after he clocked in. A plain reading of the charge and a simple understanding of the wording thereof do not disclose any charge or allegation relating to fraud or dishonesty.

[36] Sibanye, in its answering affidavit, defended the arbitrator’s decision that the Applicant committed fraud as a reasonable one and stated that ‘the Applicant’s actions were not only dishonest but constituted fraud’. Mr Navsa, on behalf of Sibanye, argued that dishonesty is implied in the charge. I cannot accept that argument, because if I were to accept that fraud or dishonesty is implied in the charge, it would open the door to acceptance of serious charges as ‘implied’ where it was not included in a charge of misconduct and the accused employee is unaware of the existence of a serious, undisclosed charge of misconduct.

[37] An employer is dominus litis in the process of discipline and when it decides to take disciplinary action against its employees, it has the prerogative to decide what the charges of misconduct would be and the wording of the charges is entirely the employer’s decision. An employer also has a duty to inform the employee of the real nature of the charge. Once an employee is charged with misconduct, the employee should be able to look at the charges and to understand what is the case that he or she would be facing in order to prepare a defence. It can never be that misconduct as serious as fraud be implied in a charge of a far less serious nature without any warning or notification to the employee, effectively, meaning that the charge is more serious and quite different from what meets the eye.

[38] This principle had been confirmed by the Labour Appeal Court in Edcon Limited v Pillemer NO and Others[1] where it was held that:

‘Fair enough, that element of dishonesty may be considered together with other factors for purposes of the appropriateness of the sanction. If it is however 'her lack of candour during the investigation (t) destroyed the trust relationship' as the averment goes in para 24 supra, does that not beg the question whether that should not have been specifically alleged in the charge to enable the third respondent to appreciate the real nature of the charge(s) against her? That appears to be a very crucial allegation, in the absence of which, as the appellant seems to suggest in the excerpt above, the appellant would not consider dismissal on the basis of the destruction of the trust relationship.

The contention of the appellant is that all the instances of lies were traversed at the arbitration in the course of leading the evidence. This may be so. That does not however take away the duty to inform the accused person, with sufficient particularity, of the real nature of the charge.’

[39] The arbitrator clearly misdirected himself by finding that the Applicant committed fraud and that he was dishonest when that was not the charge levelled against the Applicant and that was not the reason Sibanye proffered for his dismissal.

[40] The arbitrator misconstrued the evidence and misconceived the enquiry in finding that the Applicant’s actions constituted fraud, when this finding was based on nothing more but Sibiya’s view.

[41] The evidence before the arbitrator shows that the Applicant was guilty of clocking in and out on 22 July 2014 and not proceeding to his workplace at VC 40/75 N5. 

[42] The second ground for review is that the arbitrator’s conclusion that the Applicant did not work at section 52 on 22 July 2014 is unreasonable and not based on evidence presented. In this regard, it is the Applicant’s case that the arbitrator failed to take into consideration the totality of evidence and failed to consider the evidence on a balance of probability when he found that the only inference is that the Applicant did not work at section 52 on 22 July 2014.

[43] The evidence before the arbitrator was that of Sibiya who testified that ‘he clocked in at work, he went to work somewhere else, not at a place that he was required…’ Gumede, the miner at section 52, testified that he did not see the Applicant on 22 July 2014 at section 52 but on that date, he worked at section 35. The Applicant testified throughout that he worked at section 52 on 22 July 2014. He however did not call any witness to corroborate that.

[44] There is merit in the complaint that the arbitrator did not consider the totality of the evidence and the probabilities inherent in the versions that were presented to him. However, in my view, these findings are indicative of the fact that the arbitrator misconceived the enquiry and that he lost sight of the principal issues that he had to decide.

[45] The arbitrator had to decide whether the Applicant was guilty of clocking in and out on 22 July 2014 and not proceeding to his workplace at VC 40/75 N5, and if so, whether dismissal was an appropriate sanction. The arbitrator was not required to decide where the Applicant worked or whether he worked at all on 22 July 2014 and his findings in this regard are findings on issues he was not required to decide. 

[46] The third ground for review is that the arbitrator failed to determine the appropriateness of the sanction of dismissal. In my view, there is merit in this ground for review but not for the reason that the arbitrator failed to determine the appropriateness of the sanction, as the arbitrator did that.

[47] The Applicant’s complaint includes the fact that he presented his personal circumstances, including the fact that he worked for Sibanye for 25 years, to the arbitrator, which he completely disregarded. The arbitrator found dismissal appropriate because he found the Applicant committed fraud and that he was dishonest.

[48] Sibanye submitted and, in its heads of argument, referred to a number of cases where the Court upheld dismissal where the employee was guilty of misconduct of which dishonesty is an element, hence the Applicant’s dismissal was an appropriate sanction. I agree that fraud and dishonesty are serious acts of misconduct; that it goes to the root of the trust relationship; and that dismissal is appropriate in cases where an employee was dismissed for fraud or dishonesty. This argument is, however, misplaced in casu for reasons I will deal with infra.

[49] In my view, the merit in this ground for review is twofold.

[50] Firstly, the arbitrator found that Sibanye was entitled to terminate the Applicant’s services as his actions constituted fraud and dishonesty. As such, the arbitrator considered the appropriateness of the sanction.

[51] I already found that the only misconduct that the arbitrator could have and should have found the Applicant guilty of was that he clocked in on 22 July 2014 and did not proceed to his workplace at VC 40/75 N5. The Applicant was never charged with or dismissed for fraud or dishonesty and the arbitrator effectively found that he committed misconduct that he was never dismissed for. Such finding is reviewable.

[52] An enquiry into the appropriateness of the sanction calls for a consideration of the factors set out in Schedule 8 of the Labour Relations Act[2] (the Act) and a determination whether it was appropriate for the contravention of the rule. The arbitrator’s point of departure in considering the appropriateness of the sanction was that the Applicant committed fraud and acted dishonestly, a point where he could not have departed from in view of the reason for which Sibanye dismissed the Applicant.

[53] The wrong point of departure had a material impact on the arbitrator’s decision on the appropriateness of the sanction. In fact, it determined the entire outcome of the arbitration.

[54] The issue about the determination of the appropriateness of the sanction, is connected to the Applicant’s case that the arbitrator misconceived the nature of the enquiry because he found the Applicant committed misconduct he was never dismissed for.

[55] The second reason why this ground for review has merit is related to the factors to be considered in determining the fairness of the sanction and as set out by the Constitutional Court in Sidumo and Another v Rustenburg Platinum Mines Ltd and Others.[3] Those are as follows:

“In approaching the dismissal dispute impartially a commissioner will take into account the totality of circumstances. He or she will necessarily take into account the importance of the rule that had been breached. The commissioner must of course consider the reason the employer imposed the sanction of dismissal, as he or she must take into account the basis of the employee's challenge to the dismissal. There are other factors that will require consideration. For example, the harm caused by the employee's conduct, whether additional training and instruction may result in the employee not repeating the misconduct, the effect of dismissal on the employee and his or her long-service record. This is not an exhaustive list. 

To sum up. In terms of the LRA, a commissioner has to determine whether a dismissal is fair or not. A commissioner is not given the power to consider afresh what he or she would do, but simply to decide whether what the employer did was fair. In arriving at a decision a commissioner is not required to defer to the decision of the employer. What is required is that he or she must consider all relevant circumstances.”

[56] In Fidelity Cash Management Services v CCMA and Others,[4] the Labour Appeal Court referred to the Sidumo factors to be considered in deciding the appropriateness of a sanction and held as follows:

‘The Constitutional Court emphasized that this is not an exhaustive list. The commissioner would also have to consider the Code of Good Practice: Dismissal and the relevant provisions of any applicable statute including the Act. In this regard ss 188 and 192(2) of the Act will usually be of relevance. Section 188(1) provides in effect that a dismissal that is not automatically unfair is unfair if the employer fails to prove the matters stated therein. Section 182 enjoins a person considering whether a dismissal is unfair to take into account provisions of the relevant Code of Good Practice. Section 192(2) is the provision that places the onus on the employer to prove that the dismissal is fair.

Once the commissioner has considered all the above factors and others not mentioned herein, he or she would then have to answer the question whether dismissal was in all of the circumstances a fair sanction in such a case. In answering that question he or she would have to use his or her own sense of fairness. That the commissioner is required to use his or her own sense of justice or fairness to decide the fairness or otherwise of dismissal does not mean that he or she is at liberty to act arbitrarily or capriciously or to be mala fide. He or she is required to make a decision or finding that is reasonable.’

[57] A consideration of the factors set out in Sidumo and Fidelity Cash Management is glaringly absent from the arbitration award. The arbitrator not only dismally failed to consider any of the aforesaid factors, he also failed to consider all the relevant circumstances to decide whether the Applicant’s dismissal was an appropriate and fair sanction.

[58] The arbitrator was required to determine the appropriateness of the sanction of dismissal de novo and independently, based on the evidence placed before him and with due consideration of the relevant factors. The arbitrator did none of that.

[59] Insofar as the arbitrator held that Sibanye was within its rights to terminate the Applicant’s services, he did so on the basis of his initial finding that the Applicant committed fraud and that he was dishonest, which was misconceived.

The test on review

[60] The test that this Court must apply in deciding whether the arbitrator's decision is reviewable has been rehashed innumerable times since Sidumo[5] as whether the decision reached by the arbitrator is one that a reasonable decision maker could not reached. The Constitutional Court very clearly held that the arbitrator's conclusion must fall within a range of decisions that a reasonable decision maker could make.

[61] In Goldfields Mining South Africa (Pty) Ltd v CCMA and Others,[6] the Labour Appeal Court held that:

‘In short: A reviewing court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’

[62] Following the Supreme Court of Appeal judgment in Herholdt v Nedbank Ltd (COSATU as Amicus Curiae)[7] and the Labour Appeal Court’s judgment in Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA and Others,[8] the Labour Appeal Court handed down another important judgment in Head of the Department of Education v Mofokeng and Others.[9] In this judgment, the Court provided the following exposition of the review test:

‘Irregularities or errors in relation to the facts or issues, therefore, may or may not produce an unreasonable outcome or provide a compelling indication that the arbitrator misconceived the inquiry. In the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result. Whether the irregularity or error is material must be assessed and determined with reference to the distorting effect it may or may not have had upon the arbitrator’s conception of the inquiry, the delimitation of the issues to be determined and the ultimate outcome. If but for an error or irregularity a different outcome would have resulted, it will ex hypothesi be material to the determination of the dispute. A material error of this order would point to at least a prima facie unreasonable result.

The reviewing judge must then have regard to the general nature of the decision in issue; the range of relevant factors informing the decision; the nature of the competing interests impacted upon by the decision; and then ask whether a reasonable equilibrium has been struck in accordance with the objects of the LRA. Provided the right question was asked and answered by the arbitrator, a wrong answer will not necessarily be unreasonable. By the same token, an irregularity or error material to the determination of the dispute may constitute a misconception of the nature of the enquiry so as to lead to no fair trial of the issues, with the result that the award may be set aside on that ground alone. The arbitrator however must be shown to have diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination.’

[63] In summary: I must ascertain whether the arbitrator considered the principal issue before him, evaluated the facts presented and came to a conclusion that is reasonable.

[64] Viewed cumulatively and in line with the analysis as set out in Mofokeng, the arbitrator, in casu, diverted from the correct path when he found the Applicant committed fraud and that he acted dishonestly when that was not the reason for dismissal. Once he diverted, the arbitrator did not find his way back but proceeded on the path that led him to misconceive the enquiry to an extent that calls for interference on review.

[65] It cannot be said that the arbitrator’s decision to find that the Applicant committed fraud and that dismissal was an appropriate sanction was one that a reasonable arbitrator could have reached on the full conspectus of all the facts before him.

[66] Based on the above, I am persuaded that the arbitration award cannot stand and should be interfered with on review.

Relief

[67] This leaves the issue of relief.

[68] The Applicant seeks for the arbitration award to be reviewed and set aside and to be substituted with an order that the Applicant’s dismissal was unfair.

[69] In the event, the award is set aside on review, this Court has a discretion whether to finally determine the matter.

[70] The appropriateness of the sanction of dismissal is a material issue to be decided. The Applicant takes issue with the fact that such a material aspect was decided where the arbitrator made an unreasonable finding on fraud and without considering the Applicant’s personal circumstances or any other factor that he was required to consider in deciding the appropriateness of the sanction.

[71] In my view, the Applicant is guilty of the offence that he was charged with and dismissed for, namely, that he clocked in and out on 22 July 2014 and did not proceed to his workplace at VC 40/75 N5. The appropriateness of the sanction should have been decided in respect of this misconduct and nothing else. The question to be answered is whether dismissal is an appropriate sanction for the misconduct that the Applicant was dismissed for, taking into consideration all the relevant factors and circumstances.

[72] The appropriateness of the sanction is not for this Court to decide on review, where the appropriateness was never considered in view of the misconduct that the Applicant was dismissed for but where it was considered only in respect of misconduct that the Applicant was not charged with or dismissed for. This Court is not in a position to substitute the award for a finding that the Applicant’s dismissal was substantively unfair and to grant consequential relief.

[73] The matter should be remitted to the CCMA for a proper determination on the appropriateness of the sanction where the Applicant is guilty of clocking in and out on 22 July 2014 and not proceeding to his workplace at VC 40/75 N5.

[74] The remittal is limited and the only issue to be decided is whether dismissal was an appropriate sanction. It follows that the appropriate relief will be decided de novo after proper consideration of the appropriateness of the sanction.

[75] The remittal of the aforesaid issue and the determination thereof is to be done on the existing transcribed record of the arbitration proceedings. The parties will only be allowed to make submissions on the appropriateness of the sanction.

[76] In argument, before Court both parties submitted that the costs should follow the result and both parties sought costs to be awarded in their favour. This Court has a discretion in making a cost order, considering the requirements of law and fairness. In my view, this is a case where the conduct of the arbitrator deprived the parties of a fair, justifiable and reasonable outcome and the interests of justice and fairness would at this stage be best served by no cost order.

Order

[77] In the premises, I make the following order:

1. The arbitration award issued on 3 December 2013 under case number GAJB20073-14 is reviewed and set aside in the following extent:

2. The arbitrator’s findings on procedural fairness are confirmed.

3. The matter is remitted to the CCMA in relation to substantive fairness on the following terms;

3.1 The only issue to be decided de novo is whether the whether dismissal was an appropriate sanction where the Applicant is guilty of clocking in and out on 22 July 2014 and not proceeding to his workplace at VC 40/75 N5;

3.2 The appropriate relief if any is to be decided de novo after determination of the appropriateness of the sanction.

3.3 The remittal and the determination of the issue set out in paragraph 3.1 and 3.2 of this order is to be made on the existing transcribed record of the arbitration proceedings.

4. There is no order as to costs.

C Prinsloo

Judge of the Labour Court

Appearances:

For the Applicant : Advocate Khanyeza

Instructed by : Mabaso Attorneys

For the Third Respondent : Advocate Navsa

Instructed by : Solomon Holmes Attorneys

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