The LAC allowed the appeal, reversed the order of the Labour Court and the arbitral award and reinstated a senior employee with 17 years of unblemished service.  The employee was unfairly and summarily dismissed on 18 August 2008.  The LAC judgment records that he was ‘charged’ and ‘convicted’ of being in unauthorised possession and use of a drinks voucher on 18 July 2008 in the Rhino bar.  So an off-duty employee accepted drinks from a guest who paid for them with vouchers intended for the guest’s consumption.  The employee handled the vouchers.  The LAC stated that even if he had breached a rule it did not warrant his dismissal.  In other words Sun City failed dismally to prove that it had a valid reason to dismiss.  The dismissal was also unlawful.  There was no need to consider the fairness of the reason.  But why is the LAC still using language more akin to criminal proceedings?  How can an employee be treated like a criminal and ‘convicted’ by management of anything, let alone breaching a non-existent workplace rule?  What about the constitutional human right to dignity?

Dikobe v Mouton NO (Sun City) (JA45/2015) [2016] ZALAC 30 (15 June 2016) per Sutherland JA (Ndlovu JA and Murphy AJA concurring)

Excerpts without footnotes

[2]        Upon the basis of this episode, the employee, ie, the appellant, was confronted with an allegation that he breached a workplace rule.  Exactly what this rule supposedly prescribes is addressed hereafter.  The “Disciplinary enquiry record” of the third respondent, the employer, Sun City, describes the charge as:

‘Unauthorised possession and use of MVG  drinks voucher in that on 18 July 2008 – you were in possession of MVG vouchers and used them to purchase drinks at the Rhino bar’.

[3]        He was convicted of that charge, and dismissed summarily.  In a subsequent arbitration, it was held that the dismissal was substantively fair.  On review, that award was confirmed.  On appeal, the award and review judgment are challenged.  The appeal falls to be decided in accordance with the test of whether the award is one which a reasonable arbitrator could not have rendered.

. . . . .

[22]      In my view, the employer, Sun City, failed to establish proof of a rule that the appellant breached. The vagueness of a rule against “possession” is plain; boundaries need to be drawn. The brute fact of “handling” vouchers, without more, cannot be the sum of a reasonable rule. Moreover, no evidence of the communication of an intelligible rule was tendered. The high point of evidence on this aspect is a remark that pre-shift briefings alluded to the vouchers being a guest benefit not intended for staff use, but exactly what the scope of the rule of “non-use” remains obscure.

. . . . .


[23]      In summary:

23.1.   The award is not reasonable, having failed to address the key question of the content, scope and application of the rule relied upon to allege a breach.

23.2.   The evidence demonstrates no breach of any reasonable rule.

23.3.   The appellant’s dismissal was unjustified.

[24]      It may be mentioned that the award is bereft of any consideration of the appropriate sanction, it seemingly being that the arbitrator took it for granted that guilt on the terms he found, warranted dismissal. That approach is, in principle, wrong.

[25]      Moreover, on the proven facts, ie an off-duty employee accepted drinks from a guest who paid for them with vouchers intended for the guest’s consumption, and the employee handled the vouchers, it is far from obvious that termination of the employment relationship was warranted. Moreover, when added to that factor, the appellant’s unblemished 17 years of service, the dismissal, even if a breach of a rule, in the terms described above, had occurred, dismissal was not obviously warranted.

[26]      In the judgment of the review court, the question of the rule was not considered. The reason for that was that the Labour Court took the view that the rule was not in dispute. That approach was misconceived. The “rule” was contested from the very first interview the appellant was called to attend when he was suspended pending a disciplinary enquiry. The contents of the pre-arbitration conference minute alluded to by the Labour Court affords not the slightest support for the notion that the rule was a common cause fact.

[27]      Reinstatement has been sought and must be granted. An argument was advanced to suggest that the lapse of time militates against such an order. That factor alone is of no relevance. In the absence of evidence to demonstrate intolerability or impracticability as contemplated by section 193(2) of the Labour Relations Act 66 of 1995, no lawful reason exists not to order reinstatement.  Axiomatically, where an employee is exonerated from misconduct, no factual basis can exist to found an argument that the trust relationship is compromised.