- John Thomas Robertson lost his job after a disagreement about an employment contract that listed the wrong salary.
- Judge Robert Lagrange found that the arbitrator used evidence that was never discussed at the disciplinary hearing and considered misconduct that was not part of the original charges.
- Pepkor is required to give Robertson his job back with his 2018 terms and conditions and pay him all the wages he missed.
A salary error of R1,030.35 in an employment contract led to a major Labour Court decision on fair discipline, how arbitration should work, and what employers may charge employees with.
The Labour Court in Cape Town has ordered Pep Clothing, a division of Pepkor Trading (Pty) Ltd, to reinstate veteran mechanic John Thomas Robertson, who was dismissed after refusing to sign an employment contract that incorrectly reflected his salary.
Judge Robert Lagrange delivered judgment on 3 August 2026 in Robertson v Commission for Conciliation, Mediation and Arbitration and others. The respondents were the CCMA, Commissioner Lameesah Jooma, and Pep Clothing. Robertson had challenged a CCMA arbitration award issued in November 2022 that upheld his dismissal.
Salary error sparked the dispute
The dispute began in January 2022 during an internal human resources file audit. Pepkor discovered that Robertson’s personnel file did not contain a signed employment contract and presented him with a contract for signature.
Robertson noticed that the document reflected a monthly salary of R12,053.45 instead of his actual salary of R13,083.80. The company later admitted that the lower figure was the result of a clerical error by its HR department.
Robertson refused to sign the document, took it home for legal advice, and lodged a formal grievance, alleging he was being pressured to sign a contract that appeared to reduce his salary. Although Pepkor later corrected the contract, the dispute did not end there.
Dismissed on two charges
Robertson, who had worked for Pepkor for 31 years, was charged with gross insubordination for allegedly refusing to sign the contract as a lawful instruction.
He was also charged with behaving intolerably by allegedly retaliating through frivolous grievances and making himself unmanageable. Following a disciplinary inquiry, he was dismissed. The CCMA later upheld the dismissal.
Disney audit evidence became a turning point
One of the central issues before the Labour Court was evidence that surfaced only during the arbitration proceedings. Pepkor introduced evidence about a Walt Disney World compliance audit and the alleged commercial consequences of not having signed employment contracts on file.
Judge Lagrange found that this evidence had never been raised during the disciplinary hearing. “The arbitrator committed a severe, reviewable irregularity by basing her entire evaluation of the gravity of charge 1 on the Walt Disney World compliance audit,” the judge said.
He added that re-examination cannot be used “as an ambush mechanism to introduce completely new and damaging evidence”. The court found that Robertson was not given a meaningful opportunity to challenge the new evidence.
Employer’s own witness undermined the second charge
The Labour Court was equally critical of the way the second charge was handled. The charge sheet alleged that Robertson had made the employment relationship intolerable by lodging grievances.
However, during the arbitration, Pepkor’s own witness conceded that Robertson had not been dismissed for lodging grievances. Despite that concession, the arbitrator relied on 21 historical workplace incidents, many of which had already been resolved internally or involved expired warnings, to conclude that Robertson was unmanageable.
“Despite this absolute material admission, the arbitrator ignored the employer’s concession and actively strayed outside the parameters of the charge sheet,” Judge Lagrange said.
The court stressed that an arbitrator cannot find an employee guilty of misconduct that played no part in the original dismissal or that fundamentally departs from the charge that was actually brought.
Commissioner found not to have remained neutral
Robertson also complained about the manner in which the arbitration was conducted. Judge Lagrange found that the commissioner repeatedly interrupted Robertson during cross-examination, answered questions on behalf of employer witnesses, and made hostile remarks to him, including telling him that she “did not care” about his explanations.
“A commissioner who actively takes over the defence of a witness or displays open hostility toward a lay litigant fundamentally undermines the audi alteram partem principle,” the judge said. The court concluded that Robertson “did not get a fair hearing in consequence”.
Long service weighed heavily in the remedy
Pepkor argued that reinstatement was not feasible because Robertson had testified that he no longer trusted management. Judge Lagrange rejected that argument.
He described the dispute as essentially a bureaucratic conflict with the HR department rather than a breakdown affecting Robertson’s ability to perform his work as a mechanic. “It had absolutely no bearing on his capability, conduct, or execution of his daily duties as a mechanic fixing sewing machinery on the floor,” the judge said.
The court found that Robertson’s distrust of HR did not amount to a fundamental breach of trust that made continued employment intolerable.
Labour Court orders reinstatement and back pay
The Labour Court reviewed and set aside the CCMA award and replaced it with a finding that the dismissal was substantively unfair. Pepkor was ordered to reinstate Robertson retrospectively as a mechanic, restore the terms and conditions that applied under his 2018 contract, and pay all back pay from the date of dismissal to the date of judgment. Robertson must report for duty within 14 days, and the back pay must be paid within the same period.
For employers, the judgment carries a clear warning. The court made it plain that the charge sheet matters, that a dismissal must be defended on the reasons that actually led to it, and that arbitration proceedings cannot be used to introduce a substantially different case from the one the employee was originally called upon to answer
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