East Rand Plastics (Pty) Ltd v National Union of Metalworkers of South Africa obo Matola & others [2026] ZALCJHB 378

Date of Judgment & Seat of Court: 7 October 2026, Labour Court, Johannesburg

Case No: JR1907/22

Name of Judge(s): Whittington AJ

Summary of Factual Matrix:

The employee, a quality inspector at a manufacturer of plastic products, was dismissed in April 2021 for fraud, namely falsifying quality-control records and failing to perform quality checks, after a defect was discovered in bags produced for an important customer. The employer relied principally on a manager’s analysis of CCTV footage of his shift, which indicated that prescribed inspections, in particular the drawstring test, had not been performed in accordance with the standard operating procedure although the control sheets recorded full compliance. The bargaining council commissioner found the dismissal substantively unfair, reasoning that the employee had been inadequately trained, that no fraudulent intent had been shown and that the evidence was inconclusive.

The employer applied under section 145 of the LRA to review the award, contending that the commissioner had misconstrued the enquiry as one of incapacity, had misdirected herself on intent, and had uncritically preferred the employee’s version. The employee also sought condonation for the late filing of his answering affidavit.

Summary of Findings:

[20] ‘It does not appear to me that Mr. Matola was himself remiss in dealing with the matter or that it can be said that his conduct (to the extent that any of the allegations in the founding affidavit to the condonation application deal with this at all) has approached anything which would approach requiring a consideration of the principles set out in Saloojee and Another, NNO v Minister of Community Development[3] in which it was stated that there is a limit beyond which a litigant cannot escape the results of his representative's lack of diligence or the insufficiency of the explanation tendered.’

[21] ‘On consideration of what would be fair to both sides, the degree of lateness, the explanation therefor and the importance of the case to the parties I am inclined to exercise my discretion to condone the late filing of the answering affidavit.’

[35] ‘The Commissioner’s remarks in this regard seem to suggest that Mr. Matola may not have carried out his inspections in the manner required in the standard operating procedure because he did not sufficiently understand what was required. This line of reasoning appears to presuppose that Mr. Matola did not perform the required inspections in accordance with the standard operating procedure.’

[39] ‘I note that, it does not appear to me that the Commissioner appreciates that if an employee charged with misconduct believes that their actions can be explained as something wholly or partially beyond their control the employee can lead evidence to show that they are not at fault, or that the degree of fault that they can be held accountable for is diminished and warrants the adoption of other measures before dismissal can be justified.’

[40] ‘Further, an employer is not obliged to eliminate all possible explanations for what appears to be the deliberate and wilful misconduct of an employee.[10]’

[41] ‘On at least one aspect the parties are ad idem – Mr. Matola did receive training on what was expected in terms of the standard operating procedure. Mr. Matola then states that he regarded this training as insufficient. This must of course be compared to the evidence of Ms. Nortman on this aspect and considered in the light of the fact that no evidence is led as to what would constitute adequate training or that the employer fell short of any objective standard.’

[48] ‘The Commissioner ought to have appreciated that she was required to consider whether a fraudulent intention on the part of Mr. Matola could be inferred from the evidence relating to the inspections performed and the documentation completed.’

[49] ‘The onus, of course, remains the ordinary civil one which has to be discharged on a balance of probabilities but, as in any other case where fraud is alleged, it will not lightly be inferred.[12]’

[56] ‘Whether or not CCTV footage did not capture these other tests is of course irrelevant to the fact that the CCTV footage appears to show that the drawstring test was performed at the machine and not in accordance with the standard operating procedure. It would further appear that, in spite of this, Mr. Matola recorded that he had complied with the procedure.’

[58] ‘I note that it is not Mr. Matola’s evidence that he did perform the drawstring tests at the QC station but merely that he could have.’

[59] ‘From the actual evidence it appears that Mr. Matola performed the drawstring tests in the observable area of the CCTV camera and that on each occasion (save for the check between 14h29 and 14h51 – the literal exception that proves the rule) he failed to perform the inspection in accordance with the requirements of the standard operating procedure.’

[60] ‘Nonetheless, on each control document corresponding with the inspections referred to above Mr. Matola recorded that he had done the inspection the required number of times in accordance with the standard operating procedure. This appears difficult to reconcile with the objective evidence.’

[61] ‘This evidence is capable of supporting the applicant's contention that Mr. Matola represented that the inspections had been performed in accordance with the standard operating procedure when the CCTV evidence suggests otherwise.’

[63] ‘Had Mr. Matola actually believed this to be a correct interpretation of the requirement at the time that the tests were performed, he would have on each occasion tested two bags, which does not accord with what Ms. Nortman was able to actually observe of the tests actually conducted. These show that mostly Mr. Matola tested three bags.’

[64] ‘This apparent change of version does not account for the fact that Mr. Matola, on his own previous statements, confirmed that he understood the standard operating procedure to require the testing of four bags, which he stated he complied with.’

[67] ‘Indeed, not only can it not be established that Mr. Matola did his inspections in compliance with what he had allegedly been told - as his observed methods do not follow any particular pattern - but it cannot even be established what the content of the instructions from his supervisors might have been.’

[69] ‘That Mr. Matola advanced several materially different explanations, none of which is supported by any objective evidence, does not appear to be a factor that the Commissioner took into account, nor does it appear that evidence of the control sheets was considered in conjunction with Ms. Nortman’s evidence under oath or the CCTV footage.’

[70] ‘To the extent that Mr. Matola relied on the version that he acted in accordance with his interpretation of the control sheet (rather than in accordance with the standard operating procedure which he understood and which the CCTV camera failed to capture or in accordance with the instructions of his supervisors) this proposition was not put to Ms. Nortman in cross-examination or at all.’

[71] ‘This is a material omission as the evidence relates to the moving target of Mr. Matola’s understanding of the standard operating procedure.’

[75] ‘In each instance, Mr. Matola records on the control sheet that he has complied fully.’

[77] ‘In arriving at this conclusion, the Commissioner does not appear to have considered the apparent inconsistencies in Mr. Matola’s evidence. In doing so, she has omitted to consider material evidence which was before her.’

[78] ‘The Commissioner then goes on to state that the standard operating procedure sets minimum requirements to be adhered to. That appears to be common cause - the case for the applicant is that Mr. Matola did not adhere to these minimum standards.’

[79] ‘The Commissioner then criticises Ms. Nortman’s interpretation of the standard operating procedure as not being fair and objective. This seems to ignore the fact that Mr. Matola was observed to have performed the inspections required in the standard operating procedure in accordance with Ms. Nortman’s testimony as to what was required on some occasions and not others and whilst also ignoring the inherently contradictory nature of his assertions as adverted to above.’

[81] ‘It would appear that the Commissioner did not consider any factors which would affect Mr. Matola’s credibility which he ought to have done.’

[84] ‘It does not appear that the Commissioner applied this technique (and in particular not the considerations relating to internal and external contradictions) to the evidence led by Mr. Matola.’

[85] ‘In the premises, the finding by the Commissioner that the evidence was inconclusive appears to have ignored considerations which ought to have been applied to both the evidence of Ms. Nortman and that of Mr. Matola.’

[87] ‘Given that I have made findings that the applicant was not given the opportunity to respond to certain material allegations raised by Mr. Matola and also given that I am not in a position to review the video evidence relied upon by Ms. Nortman, I am not in a position to substitute the award with an order that the dismissal was fair.’

Relief: The late filing of the employee’s answering affidavit was condoned. The award of 15 July 2022 under case number MEGA57457 was reviewed and set aside, the Court holding that the commissioner had determined the wrong question in part, ignored material evidence and reached an unreasonable result, and the matter was remitted to the bargaining council for arbitration de novo before a different commissioner. No order as to costs was made.

Judgment on SAFLII