In considering the dismissal reason the LAC partially allowed the appeal against the judgment of Vatalides AJ in the LC.

Idwu obo Linda v Super Group (JA19/2015) [2017] ZALAC 17 ; [2017] 10 BLLR ?; (2017) ILJ 1292 (LAC) (28 February 2017) per Sutherland JA (Tlaletsi DJP and Davis JA concurring)

Sutherland JA equated ‘sanction’ with an ‘unfair reason’ after finding that the reason for dismissal was valid.  In other words and apart from lawfulness, employers must prove that the reason for dismissal must not only be valid but also fair.  It is difficult to understand why it is necessary to refer to a fair reason as a ‘sanction’.  So despite the employees having deserted and despite the ‘serious consequences for the business credibility of the employer, the sanction of dismissal was inappropriate.  Allowing due weight to the effect of their misconduct on the business credibility of the employer, a final written warning would be proportionate to their delinquency’.

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Excerpts from judgment (without footnotes)


[1]   The appeal is brought on behalf of employees who had initially been found by an arbitrator to have been unfairly dismissed by the first respondent (the employer),[1] but which award to that effect had been set aside on review.

. . . . .

[3]   The judgment of the Labour Court is defended by neither party, and was plainly incorrect as regards the test adopted for review. It may safely be ignored.

[4]   The award of the arbitrator also leaves much to be desired. He had to conduct two enquiries.  First, he had to decide a dispute of fact about the reason for the dismissal.  He favoured the employee’s version, but neglected to offer an explanation why he did so.  Second, he had to decide if any misconduct of which the employees were truly guilty, warranted dismissal.  This enquiry he did not embark on because he exonerated the employees of any misconduct.

. . . . .

The (un)reasonableness of the award

[12]   It is common cause that the first respondent is a labour broker; that it assigned the employees to Goodyear at a site in Germiston, on 8 February 2008, and that they left the site before the end of the work-day. The employer relies on the desertion of the employees from their jobs on that day to justify the dismissal.  The employees’ defence is that they did not desert; rather, one Lucas Nkosi, a supervisor, told them to leave as they were not up to the job, and they acquiesced in that instruction.  The versions are, thus, diametrically opposite.

. . . . .

[29]   In my view, the body of evidence cannot sustain the result rendered by the arbitrator. The appropriate set of facts to be found proven was that advanced in support of the employer’s case.   This is not simply because this court takes that view and, ergo, the arbitrator was unreasonable.  Rather, the finding in the award is perverse in relation to the evidence.  Accordingly, the employees were guilty of desertion.

The Sanction

[30]   Self-evidently, an enquiry into an appropriate sanction on the proper facts was not undertaken. That task must be performed now.

. . . . .

[36]   In my view, admittedly derived from a paucity of facts on this record, it is not apparent why the personal circumstances of the employees did not enjoy greater consideration. The perfunctory handling of the issue of guilt owing to a plea of guilty may be overlooked in the hands of laymen, but the matter of sanction warranted conscious consideration.  It seems to me that the sole premise for deciding the sanction was the embarrassment the employer suffered.  That was not good enough.

On the meagre wages being earned, it must be obvious that the net earnings after transport costs is a major factor in the ability of these employees to support themselves, and no less, support or contribute to the support of their families.  The fact that they would walk out in mid-shift seems to me to lend weight to the sincerity of their grievance, which regardless of contractual obligations ought to have been investigated.  The common labourer is not to be treated as a mere unit of labour.  He is also a human being.  No more than a modicum of empathy ought to have propelled the chairman of the disciplinary enquiry to probe the implications of their predicament and weigh that factor in determining the degree of blameworthiness to attach to their actions.