Blue Falcon 188 Trading (Pty) Ltd t/a Studio 88 v Commission for Conciliation, Mediation and Arbitration & others (Leave to Appeal) [2026] ZALCJHB 374

Seat of Court: Labour Court, Johannesburg

Date Delivered: 8 October 2026

Case No: JR429/23

Name of Judge(s): Heideman AJ

Factual Summary:

The third respondent, a salesperson employed by the applicant retailer, was dismissed for gross negligence after overcharging a customer while operating a till on which she had not been trained, but which her line manager had asked her to operate in his absence. The commissioner found her conduct to be negligent rather than grossly negligent, held the dismissal substantively unfair and ordered reinstatement with four months’ back pay. On 30 July 2026 the Court dismissed the employer’s review application, confirmed the award and updated the back-pay calculation.

The employer sought leave to appeal on eight grounds: six attacking the Court’s findings on authorisation to use the till, onus, the degree of negligence, the misconduct charged, lack of training and the consistency of the employee’s version; a seventh alleging that the Court had failed to determine a ground of review concerning the commissioner’s alleged refusal to permit cross-examination on prior inconsistent statements; and an eighth, abandoned at the hearing, concerning the quantum of back pay.

Legal Questions Considered:

[6] ‘This ground was not pursued at the oral hearing of this matter, and it was conceded that this court’s calculations were correct in this regard.’

[8] ‘Applications for leave to appeal are governed by section 17(1) of the Superior Courts Act[1] (the Act). It has further been established that use of the word “would” in section 17(1)(a) of the Act denotes a heightened threshold since its enactment. It is no longer sufficient for the applicant to show that an appeal might or could succeed. The court must be persuaded that another court would come to a different conclusion.[2] It is in light of this threshold that these substantive grounds of appeal must be considered.’

[9] ‘All of the substantive grounds of review have been cited by the Applicant without acknowledging this court’s central task in the review application: namely, to determine whether a reasonable commissioner could have reached the conclusions he reached in the arbitration proceedings. This court determined that the commissioner’s award was reasonable, and confirmed the award of the commissioner. Therefore, in order to succeed in obtaining leave to appeal, this court must be convinced that another court would find the award of the commissioner to have been unreasonable on the substantive grounds listed by the Applicant.’

[10] ‘During the oral hearing of this matter, it became clear that the Applicant had based its substantive grounds of appeal on a misreading of this court’s judgment and a conflation of issues.’

[11] ‘This summary dispenses with all of the substantive grounds of appeal apart from this court’s findings on negligence.’

[14] ‘These passages support the commissioner’s and this court’s findings that the Third Respondent making a mistake while operating a till where she had not been trained to do so constitutes negligence and not gross negligence. These passages certainly do not motivate for a finding that the Third Respondent had been grossly negligent.’

[17] ‘Once again, the inquiry before this court was whether or not a reasonable commissioner could have found the Third Respondent guilty of negligence, as opposed to gross negligence. The Third Respondent making an error when operating a till which she had not been trained to operate but which she had been authorized to operate by her line manager does not fall into the category of extreme behaviour. The commissioner’s finding that the conduct was negligent and not grossly negligent was reasonable, and these cases do not persuade this court that another court would reach a different conclusion.’

[20] ‘This paragraph in the heads of argument contains no references to where in the record this alleged irregularity can be found. It does not even refer to the founding affidavit or supplementary affidavit where these references might be found.’

[23] ‘In fact, the content of the supplementary affidavit suggests that the Applicant was allowed to pursue its line of questioning regarding the alleged inconsistent statements during the disciplinary inquiry. A perusal of the record at the referenced pages shows not only that the commissioner did not disallow questions around the previous inconsistent statements, he in fact assisted in clarifying a question to the Third Respondent regarding her alleged previous inconsistent statements.’

[24] ‘It has been established that should the Applicant have “simply failed to make out a proper case” in their original founding papers for the relief sought, leave to appeal should be refused.[5] It seems clear that a proper case for this alleged gross irregularity occurring was not made out in the Applicant’s founding papers.’

[25] ‘Leave to appeal ought to be refused on this ground accordingly.’

Relief: The application for leave to appeal was dismissed, with no order as to costs.

Judgment on SAFLII