Exxarro Ferro Alloys (Pty) Ltd v Kekana and Others (JR 1293/16) [2019] ZALCJHB 19 (5 February 2019).

/ / 2019, Labour Law, News


This judgment concerns an Arbitrator’s award made by Commissioner Malubane Buti at the Commission for Conciliation, Mediation and Arbitration (“CCMA”). On analysis of the factual matrix, Exxarro Ferro Alloys (Pty) Ltd(“the Employer”) dismissed Lesiba Kekana (“the Employee”) following an internal poor work performance enquiry into the Employee’s consistent poor work performance (failing to meet the required work standards). The Employee, being displeased with his subsequent dismissal, approached the CCMA. The duly appointed commissioner found the dismissal of the Employee to be substantively unfair but procedurally fair. In view of the above, the Employer, being dissatisfied with the above decision, duly approached the Labour Court requesting the arbitration award be substituted with a finding that the dismissal of the employee was substantively and procedurally fair. The test for review which was authoritatively stated by the Constitutional Court in the case of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC) at para 25 it was reiterated in Herholdt v Nedbank Ltd and Congress of South African Trade Unions  2013 (6) SA 224 (SCA) as follows: “…the arbitrator must have misconceived the nature of the enquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator.”


In terms of Section 145 (1) of the LRA: “A party may apply to the Labour Court on the basis of an alleged defect with a commissioner’s rulings or awards.” In light of the content of Section 145(1) of the LRA and the prevailing precedent, the Court found that the decision of the commissioner did not fall within the range of possible justifiable decisions that could be reached based on the facts before him. In reaching its conclusion the Honourable Court recognised that the commissioner failed to deal and engage exhaustively with the evidence before him, failing to consider all the issues before arriving at his conclusion. The decision arrived at by the commissioner cannot be said to be one a reasonable decision-maker could reach. The evidence presented before the commissioner justified a different finding. Thus, the Honourable Court found reason to set aside the arbitration award and substitute it with an order that the employee be dismissed.


The judgment underlines the employment safeguards which protect every day South Africans.  It underscores that employers have to be mindful of an array of substantive and procedural factors when contemplating and implementing dismissal. It further demonstrates the judicial integrity of the labour court in respect of commissioner awards.

Written by John Mackechnie and supervised by Dingumuzi Ndhlovu


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