unfair dismissal - CCMA - Labour Appeal Court - Cape Town

SERI represents Mr Andries Swartz. Mr Swartz was employed by Mr Rossouw as a farm worker on the farm Versameling in Montagu since January 2005. On 15 March 2013, he was dismissed due to misconduct following a disciplinary hearing.

Mr Swartz’s dismissal followed an assault incident on one of his female co-workers. Mr Swartz grabbed the co-worker and pushed her against the rails of a bakkie after she made comments about his wife. The employer charged Mr Swartz with misconduct, conducted a disciplinary hearing which found Mr Swartz guilty and recommended his dismissal. The employer acted on this recommendation and dismissed Mr Swartz. 

Mr Swartz approached the CCMA which, on 27 July 2013, issued an arbitration award in his favour stating that the sanction of dismissal was too harsh and substantively unfair taking into account his clean disciplinary record. Commissioner Landu of the CCMA also found that Mr Swartz had been provoked by the the co-worker which led to the assault. He further found that the respondent, Mr Rossouw, did not apply the same standard of rule to other employees involved in fighting as they were only given final written warnings. The evidence before the hearing also showed that the two respective families of the co-workers had reconciled and their children were friends. Mr Swartz was ordered to report for duty on 5 August 2013 and it was ordered that he should be retrospectively re-instated from the date of the dismissal, 15 March 2013, albeit without back pay.

On 5 August 2013, Mr Swartz reported for duty but was denied access to the workplace and told by Mr Rossouw to go back home. His union, the Commercial, Stevedoring, Agricultural and Allied Workers Union (CSAAWU), tried to negotiate on his behalf, even presenting Mr Rossouw with the award, but without success.

On 9 September, Mr Rossouw took the award on review to the Labour Court, in terms of section 145 of the Labour Relations Act. The review application was dismissed by Steenkamp J and the award confirmed.

In March 2014, Mr Rossouw applied for leave to appeal against the judgment in the Labour Court, on the basis that a different Judge in a different court may find that the conclusions reached by the Commissioner are in fact so unreasonable that no reasonable commissioner would come to the same conclusions and that the arbitration award should therefore be reviewed and set aside.

On 5 May 2014, Mr Rossouw was granted leave to appeal to the Labour Appeal Court. The notice of appeal was filed on 22 May 2014, and a purported record of appeal delivered on 18 June 2014. This record did not comply with the rules of the Labour Appeal Court. The appeal was also allowed to lapse as it was not proceeded within 60 days.

After SERI advised Mr Rossouw’s attorney of this, he brought an application to reinstate the lapsed appeal.  SERI filed an opposing affidavit in this application. The Labour Appeal Court however granted the application to reinstate the appeal, and dismissed it with costs on 2 March 2017. Effectively, this means that the CCMA’s arbitration award reinstating Mr Swartz to his employ stands and he must be reinstated immediately. In finding for Mr Swartz, the Labour Appeal Court reasoned that the CCMA’s arbitration award was not unreasonable. It found that at the time of the dismissal the parties had forgiven each other and the employer did not always dismiss employees who had fought.

The judgment brings farmers and farm workers into the fold of the Labour Relations Act, and impresses on farmers to be consistent in the way in which they exert discipline in the workplace and also to engage in corrective discipline where this is appropriate as opposed to dismissals.