Universal Product Network (Pty) Ltd (UPN) v Commissioner Patrick Mbatsana N.O., Commission for Conciliation Mediation and Arbitration (CCMA), National Union of Food Beverage Wine Spirits and Allied Workers (NUFBWSAW), and Simon Rikhotso and Others [2026] ZALAC 14

Seat of Court: The Labour Appeal Court of South Africa, Johannesburg

Date Delivered: 31 March 2026

Factual Summary: 

The Appellant, UPN, is the logistics arm of Woolworths. On 12 October 2015, the trade union called a protected strike. On 19 October 2015, the Appellant obtained an interdict against the union and its members. Approximately 256 employees were charged with misconduct allegedly committed between 20 and 27 October 2015. Twenty-three disciplinary enquiries were conducted; almost all employees were found guilty and dismissed on 28 December 2015. The trade union referred the dispute to the CCMA. Commissioner Mbatsana, in an award dated 12 June 2020, found the dismissals substantively fair but procedurally unfair, awarding one month's remuneration as compensation. The trade union successfully reviewed the award in the Labour Court, which found the dismissals substantively unfair and ordered reinstatement and compensation. The Appellant appealed to the Labour Appeal Court.

Legal Questions Considered:

1. Whether gross procedural unfairness can mutate into substantive unfairness:

"Does a grossly procedurally unfair dismissal morph into a substantively unfair dismissal?" [para 19] "No matter how gross the procedural defect is, procedural unfairness cannot morph into being substantive unfairness. Were that to be the case, a dismissal for theft for instance, effected without any hearing must by reason of a complete lack of a hearing become a substantively unfair dismissal, even in the circumstances where an employer would have had a fair reason – misconduct of theft – to have dismissed an employee. This is unsustainable and inconsistent with the LRA as well as the Convention." [para 22]

2. Whether the Labour Court was entitled to decide an unpleaded case:

"It is trite that a court is not entitled to decide an unpleaded case." [para 14] "A party who seeks to review an arbitral award is bound by the grounds contained in the review application." [para 14]

3. The proper approach to reviewing arbitration awards:

"In a review application, a court may only interfere if the arbitration award falls outside the bands of reasonableness." [para 12] "A court of review is not entitled to substitute reasonable findings of an arbitrator, who listened to the evidence and observed the witnesses. It is not about what a court of review would have done with such evidence, but whether the conclusion is one a reasonable decision maker would reach." [para 17]

4. The bifurcation between substantive and procedural unfairness under the current LRA:

"Section 188(1)(a)(i) of the current LRA is clear that a dismissal is unfair if the employer fails to prove that the reason for the dismissal is a fair reason – related to the employee's conduct. This is in line with article 4 of the International Labour Organisation's (ILO) Termination of Employment Convention No 158 of 1982 (Convention). Section 188(1)(b) specifically provides that a dismissal is also unfair if that dismissal was not effected in accordance with a fair procedure." [para 22]

Order:

1. The appeal is upheld.

2. The order of the Labour Court is set aside and replaced with an order: Dismissing the review application with no order as to costs.

3. In respect of this appeal, this Court awards no order as to costs.