- Labour Court rejected a review application brought by AMCU and former employee Khaliphile Nyawo.
- Judge Benita Whitcher found there was no proof of assault but ruled that threatening conduct and abusive behaviour justified dismissal.
- The judgment confirms that employees can still be found guilty of related misconduct if the evidence supports it, even when the original disciplinary charge is not proven exactly as stated.
An employee isn’t off the hook just because the employer can’t prove every detail of a disciplinary charge. If the evidence shows related misconduct warranting dismissal, the court can uphold the dismissal.
This principle was reaffirmed by the Labour Court in Durban after a food order dispute at a workplace canteen escalated into threatening behaviour and ultimately led to an employee losing his job.
Judge Benita Whitcher dismissed a review application brought by the Association of Mineworkers and Construction Union (AMCU) and its member, Khaliphile Nyawo, against UCL Company (Pty) Ltd, Commissioner Thandeka Precious Mtolo and the CCMA.
While the evidence didn’t prove Nyawo slapped a canteen employee, it clearly showed threatening conduct, abusive language and gross disrespect, making dismissal a fair outcome.
Food order sparked confrontation
Nyawo, who had worked for UCL Company since June 2012 as a Smart Plant Attending employee in the engineering department, got into an argument with canteen employees Margaret and Sheila after trying to order food.
The confrontation led UCL to charge him with assault, claiming he slapped Sheila. After a disciplinary hearing, he was found guilty and dismissed on 9 May 2023.
The dispute went to the CCMA, where the commissioner upheld the finding of misconduct and agreed the dismissal was fair. AMCU and Nyawo then went to the Labour Court, hoping to have the arbitration award reviewed and set aside.
Assault allegation did not withstand scrutiny
A key issue for the court was whether Nyawo really slapped Sheila. Evidence showed the serving counter had a glass barrier with only a waist-high opening between customers and canteen staff. During arbitration, even one of the employer’s own witnesses agreed that, given the layout, Nyawo couldn’t have reached through the opening and slapped Sheila while she was standing.
Judge Whitcher found the evidence didn’t support the claim that Nyawo struck Sheila. “I accept this because the company’s third witness agreed he couldn’t have managed to slap her face, since the opening was waist high and she was standing,” the judge said.
The applicants argued that the arbitrator should have gone in person to inspect the canteen to see if the assault was even possible. Judge Whitcher rejected this, pointing out that Nyawo’s representative never requested an inspection and that both Nyawo and Sheila had described the canteen’s layout during arbitration. “The applicant’s representative never actually requested an in-person inspection,” she said.
Threatening conduct justified dismissal
Although the assault claim failed, the court found the evidence clearly showed threatening behaviour closely related to the original charge.
Aaron Naidoo, who accompanied Nyawo to the canteen and didn’t work there, testified that Nyawo reached through the opening “in a swinging motion” towards Sheila. No one challenged his evidence.
Judge Whitcher also noted that questions put to Naidoo in cross-examination basically admitted that Nyawo reached through the opening toward the employee. The court also relied on Nyawo’s own statements. During the disciplinary hearing, Nyawo admitted, “I lifted my hand but did not reach Sheila.”
In a handwritten statement signed shortly after the incident, Nyawo wrote, “Sheila showed me her fist and that’s when I tried to grab her, but I couldn’t because she was inside the canteen.” Judge Whitcher found it hard to believe Nyawo’s later denial of that statement.
Abuse and disrespect reinforced the case
The court also considered uncontested evidence about Nyawo’s behaviour during the argument. Margaret testified that Nyawo became irritated when told the food he wanted wasn’t ready and called her “isilima,” which means “stupid.”
The canteen owner also testified that Nyawo told him to “shut up” when asked to lower his voice. Neither of these claims was disputed during arbitration.
Judge Whitcher also dismissed Sheila’s later claim that her original statement was forced, or that the incident was staged because Nyawo had complained about canteen prices.
She described that story as “far-fetched and untenable,” noting it was never put to the company’s witnesses during arbitration.
Important guidance on disciplinary charges
The judgment also reaffirmed an important workplace principle. Judge Whitcher said disciplinary charges don’t have to be as precise as criminal charges. If the evidence proves misconduct that’s similar and directly related to the original charge, and it doesn’t prejudice the employee’s defence, a guilty finding is allowed.
Applying this, the judge found that the threatening conduct shown at arbitration was directly related to the original assault allegation and Nyawo wasn’t prejudiced, since he had every chance to challenge the evidence.
Review dismissed
The court also noted that Nyawo showed no remorse for his actions. “Given the applicant’s failure to express any self-reproach, it can’t be said that a reasonable arbitrator would have found a penalty less than dismissal appropriate,” Judge Whitcher said.
The Labour Court concluded that the CCMA commissioner’s decision was reasonable and dismissed the review application. There was no order as to costs.
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