The Labour Court reviewed and set aside a reinstatement award after deciding that the employee was ‘guilty of misconduct’.  The award was ‘obviously wrong’.  It related to a conflict of interest in the appointment of two employees because of an alleged relationship with their relative.  The relationship was not disclosed during the selection interviews despite participating in them.  It resulted in the two employees being appointed.  The dismissal took place in November 2013.  The arbitration lasted for about two weeks with the record comprising some 2,000 pages.  A comprehensive award was issued but it was held to be ‘obviously wrong’.  That meant the decision reached by the commissioner was one that a reasonable decision-maker could not reach.  It had to be set aside with costs awarded against the employee.

Coega Development Corporation (Pty) Ltd v CCMA (PR270/14) [2015] ZALCPE 64 ; [2016] 2 BLLR 151; (2016) ILJ 923 (LC) (2 December 2015) per Myburgh AJ.


So much for believing that the purpose of labour law is to protect employees!  Given that employers only need a valid and fair reason related to ‘conduct’ was it really necessary to prefer five criminal-type ‘charges’ against her and conclude that she was ‘guilty’, when none of the allegations related to any crimes?  It is not suggested that Coega failed to prove a valid and fair reason to end the contract, it did do so.  But was the conduct really so gross that the employee deserved to forfeit any right to notice pay in terms of the common law and the BCEA?  Would it not have been wiser to follow the statutory procedure in s 189 of the LRA and base the reason for dismissal on ‘operational requirements’, bearing in mind that the overall purpose is to protect enterprises and not to punish employees?

Excerpts [footnotes omitted]

“[63]   When it comes to resolving factual disputes, it is well known by now that commissioners are required to undertake a balanced assessment of the credibility, reliability and probabilities associated with the evidence.

. . . .

[65]   Also important for present purposes is the fact that commissioners are obliged to weigh all the relevant evidence and the probabilities before drawing inferences and making findings.

. . . .

[66]   While Sasol Mining and Madikane tells one how a commissioner is supposed to go about determining factual disputes, drawing inferences and making factual findings, a failure to do so – although possibly constituting a process error or misdirection – will not, in itself, constitute grounds of review, unless the effect thereof was to render the result of the award substantively unreasonable.  This is essentially what was found in the SCA’s judgment in Herholdt and the LAC’s judgment in Gold Fields.

. . . . .

[69]   The shorthand for all of this is the following: where a commissioner misdirects him or herself by ignoring material facts or considerations (brought about by, for example, not engaging in proper analysis of the evidence as per Sasol Mining and Madikane), the award will be reviewable if the distorting effect of this misdirection was to render the award unreasonable.

[70]   There is another issue that warrants some consideration for present purposes – what is the threshold for unreasonableness?

Traditionally, the answer is that the decision must fall outside of a range of reasonable decisions. But this, in itself, is not particularly helpful, because how does one determine the range?

To my mind, the issue turns on the intensity with which a review for reasonableness should be undertaken in the context of this court having been tasked (through its review powers) to supervise the reasonableness of CCMA awards – the higher the intensity of the review, the narrower the range of reasonable decisions (and vice versa).

[71]   In my view, on an overall assessment of the jurisprudence of the LAC (whose judgments are, of course, binding on this court and from which this court takes guidance), it adopts a relatively high intensity reasonableness review.

As a result of this, on my assessment, where an award is obviously wrong, the LAC will typically set it aside on review on the grounds of unreasonableness – it does not have to be hopelessly wrong or absurd before it will do so (which is what the threshold in a lower intensity review might be).

Seen thus, the permissible margin for errors by a CCMA commissioner is between what is objectively right and what is obviously wrong.  Put differently, where a decision is obviously wrong, it falls outside of a range of reasonableness. . . . .

[73]   In summary, in all three judgments:

  • the LAC engaged in a thorough analysis of the evidence;
  • determined for itself what the objectively correct decision was (identifying process errors and misdirections made by the commissioner along the way); and
  • then determined whether the contrary decision by the commissioner was, nevertheless, reasonable.

In two of the judgments, it was held that it was not reasonable, and in the third that it was reasonable.  (In effect, the mode of analysis was similar to that formulated in Mofokeng.)

. . . . .

[95]   To my mind, a reasonable commissioner could not have come to a different conclusion in all the circumstances of this case. Why the commissioner did so is because she unreasonably failed to find Ms F guilty of having placed herself in a conflict of interest by way of her failure to make a full and frank disclosure to the selection panel.  And this failure on the part of the commissioner was caused by her having unreasonably failed to find that Ms F had assisted Ms C in enhancing her application.  In short, the result of the award is unreasonable, which equates to the commission of a gross irregularity on the part of the commissioner”.