- Two employees secretly recorded a workplace reconciliation meeting without informing the other participants.
- The employer dismissed both employees, arguing that their conduct amounted to inappropriate behaviour and undermined workplace trust.
- The Labour Court overturned an arbitration award in favour of one employee because the commissioner failed to properly assess the evidence.
A meeting intended to repair a damaged workplace relationship ended up creating another dispute when two employees secretly recorded the same conversation without telling each other.
Both were eventually dismissed, with their employer accusing them of inappropriate behaviour and conduct that further undermined trust in the workplace.
The dispute reached the Labour Court after one of the employees, Ellen Mkhize, successfully challenged her dismissal at the National Bargaining Council for the Chemical Industry. The commissioner found her dismissal substantively unfair and ordered her reinstatement, together with payment of R328 673.62.
However, Judge Connie Prinsloo set aside the arbitration award in a judgment delivered on 30 October 2026, finding that the commissioner had failed to properly assess the conflicting evidence and determine whether Mkhize had committed the misconduct.
Workplace conflict leads to secret recordings
Mkhize had been employed by AkzoNobel SA (Pty) Ltd since January 2014 as a transportation planner. Her working relationship with fellow employee Laura Moodley had deteriorated to the extent that management became concerned about its impact on the wider team and company operations.
The employer had previously attempted to resolve the conflict through meetings, including a reconciliation process in 2023. However, the tensions continued. Management described divisions among employees, poor cooperation and declining staff morale, warning that the situation was affecting productivity and operations.
The company’s human resources manager, identified only as Shabalala, testified that the matter resurfaced on 25 January 2024 when Mkhize complained that Moodley had allegedly been spreading rumours about her.
During a meeting with management, Mkhize allegedly played a recording of the earlier reconciliation meeting from her cellphone. Management subsequently approached Moodley, who confirmed that she had also recorded the meeting without informing the other participants. Both employees initially agreed to provide their recordings to the company but later refused.
The employer considered the conduct particularly serious because the meeting had been arranged specifically to address their strained relationship. Shabalala testified that the employees had made the recordings with the intention of getting back at each other. Both employees were subjected to disciplinary hearings and dismissed.
Mkhize was charged with inappropriate behaviour for recording the meeting without informing anyone, particularly Moodley. The employer relied on its disciplinary code, which classified the conduct as inappropriate or improper behaviour.
Although the code provided for a final written warning for a first offence, Shabalala explained that the company considered the circumstances serious enough to justify dismissal. He also maintained that Mkhize’s subsequent denial that she had played a recording to management further damaged the trust relationship.
Employee denies recording the meeting
Mkhize denied making the recording and accused management witnesses of fabricating the allegations against her. She maintained that she had not committed the misconduct for which she was dismissed. She also disputed the suggestion that there was an ongoing conflict between herself and Moodley.
The commissioner, Nomcebo Mathe, accepted Mkhize’s version and found that the employer had failed to establish that she had made the recording. The commissioner also rejected the company’s argument that the trust relationship had irretrievably broken down.
The dismissal was declared substantively unfair, and AkzoNobel was ordered to reinstate Mkhize and pay her R328 673.62. The company approached the Labour Court to review and set aside the award.
Judge finds commissioner failed to assess evidence
Judge Prinsloo found that the commissioner had failed to properly deal with whether Mkhize had made the recording. The employer relied on the testimony of its human resources manager, Shabalala, and the warehouse manager, identified in the judgment only as Mathonsi.
Both testified that Mkhize had played a recording to them. They also said that Moodley had independently confirmed making her own recording. However, the commissioner preferred the evidence of Roy Arumugam, who had attended the 2023 meeting but had not seen Mkhize recording it.
Judge Prinsloo found this approach flawed. Arumugam’s evidence that he had not witnessed the recording being made did not establish that no recording existed. His evidence was also not necessarily inconsistent with the accounts of the two managers, who testified about a different meeting at which Mkhize allegedly played the recording.
The judge further criticised the commissioner’s reliance on an allegation that the recording had been made using an employer-owned device. This version had not been presented in Mkhize’s evidence or put to the employer’s witnesses during cross-examination.
Judge Prinsloo found that the commissioner had accepted evidence that had never been properly tested and had relied on speculation rather than the evidence presented.
The judge said the commissioner had failed to assess the credibility and reliability of the witnesses and the probabilities of their competing versions. She had also failed to consider the employer’s reasons for maintaining that the trust relationship had broken down, including Mkhize’s denial that she had played a recording to management.
The judge concluded that these failures materially affected the outcome of the arbitration and rendered the award unreasonable.
Dispute referred for fresh hearing
Judge Prinsloo declined to substitute the commissioner’s decision with her own finding on whether Mkhize’s dismissal was fair. She held that the Labour Court should not make credibility findings where the material evidence had not been properly assessed during arbitration.
The commissioner had failed to determine the real dispute and provide adequate reasons for accepting Mkhize’s version. The arbitration award dated 17 March 2025 was reviewed and set aside.
The dispute was remitted to the National Bargaining Council for the Chemical Industry for a fresh hearing, limited to the substantive fairness of the dismissal, before a different commissioner. There was no order as to costs.
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