LAC summary: review of arbitration award.  Employee dismissed for unauthorised consumption of employer’s property and being intoxicated while on duty- evidence proving only unauthorised consumption of alcohol.  Employee misconducting himself-  misconduct not so serious as to warrant dismissal- lack of remorse and dishonesty not another charge but  an aggravating factor- arbitrator finding dismissal inappropriate – Labour Court refusing to intervene.

Appeal disallowed and Labour Court’s judgment upheld with costs.

SA Breweries Ltd v CCMA (CA13/2012) [2014] ZALAC 26 (30 May 2014)

Coram: Waglay JP, Musi and Dlodlo AJJA

Heard:           29 August 2013         Delivered:     30 May 2014


[1] This is an appeal against the judgment of the Labour Court.  In its judgment, the Labour Court found that the arbitrator reached a conclusion that a reasonable decision-maker could have come to and that therefore such conclusion should not be set aside.

[2] In the award, the Commissioner described the employee’s (Karstens) dismissal as unfair.  It is contended on behalf of the Appellant that the award ought to have been reviewed and set aside on the basis that the arbitrator’s approach to sanction failed to take into account material facts and that he over-emphasized certain other considerations to the detriment of the Appellant.  The contention made on behalf of the Appellant is that the extent of Karstens’ dishonesty coupled with his recalcitrant attitude in the subsequent hearings displaced any mitigating effect that his length of service and disciplinary record could have had.  On the other hand, on Karstens’ behalf, the contention advanced is that the arbitrator correctly applied the prevailing law that required him to determine under all the circumstances whether the dismissal was fair.

[3] The determination of whether the dismissal was fair is a requirement that must be exercised by the arbitrator independently.  I set out the factual background infra.