National Student Financial Aid Scheme v Commission for Conciliation, Mediation and Arbitration & others (Leave to Appeal) [2026] ZALCCT 179

Seat of Court: Labour Court, Cape Town

Date Delivered: 13 October 2026

Case No: 2025/087146

Name of Judge(s): De Kock AJ

Factual Summary:

The third respondent, an employee of NSFAS with some seventeen years’ service and a clean record, was dismissed for blind-copying confidential work emails, including a trial balance and a payroll schedule, to her personal email account in breach of the Information Security Policy. The commissioner classified the misconduct under item 40 of the disciplinary code (which prescribes a final written warning) rather than item 15 (which prescribes dismissal), reasoning that ‘disclosure’ required transmission to a third party and that harm had to be probable, and found the dismissal unfair. On 7 September 2026 this Court reviewed and set aside the award for a material misconception of the enquiry and remitted the dispute for arbitration afresh.

The employee applied, in chambers, for leave to appeal on six grounds: the construction of ‘disclosure’ under item 15; the characterisation of all nine emails as confidential; the treatment of probable harm; and that the award should have been sustained on other reasoning under Fidelity Cash Management, the Court having in effect approached the review as an appeal.

Legal Questions Considered:

[3] ‘Leave to appeal may only be given where the judge is of the opinion that the appeal would have a reasonable prospect of success, or that there is some other compelling reason why the appeal should be heard.[3] The word ‘would’ raised the threshold.[4] A mere possibility of success, an arguable case, or a case that is not hopeless, is not enough; there must be a sound, rational basis for the conclusion that there are prospects of success on appeal.[5]’

[6] ‘It does not, however, meet the question the judgment actually decided. The charge, as particularised, was never one of disclosure to an unauthorised third party. […] The language and context were the foundation of the judgment’s reading, and the third respondent identifies no purpose of item 15 that would confine it to disclosure to outsiders while leaving the removal of confidential material from the employer’s control to be treated as a mere failure to follow a policy. There is no reasonable prospect that the Labour Appeal Court would construe the charge differently.’

[8] ‘The point is well taken as to the imprecision of the sentence. What was common cause, and what the Commissioner found at paragraph 17 of the award, was the fact of the forwarding; the confidentiality of every one of the nine emails individually was not. That imprecision, however, has no bearing on the finding the judgment actually made. […] Nothing in the reasoning that led to the order turns on the number of emails found confidential, and the ground identifies no respect in which a more precise statement at paragraph 22 could have produced a different result. There is no reasonable prospect that the Labour Appeal Court would find otherwise.’

[10] ‘The first limb of that submission does not survive the Court’s conclusion on ground 1. The Commissioner’s enquiry into the probability of the material reaching ‘hackers and the like’ is, on its own terms, an enquiry into whether the information had been made available to an unauthorised third party; it is the enquiry clause 14.5.2(vii) addresses, and not the one the charge, tied as it is to clause 14.5.2(iv), required.[16] Having rejected the submission that the charge required proof of transmission to an outsider, the Court must likewise reject the submission that the Commissioner’s reasoning on the probability of such transmission was a legitimate, if separate, enquiry into risk. It was not; it was the same misdirection restated. The second limb, that the extent of the risk remained relevant to the seriousness of the breach and to sanction, is correct as far as it goes, but it identifies no error. The judgment did not hold that risk was irrelevant to sanction; it held that the Commissioner made probable harm the touchstone of whether the conduct charged was established, a requirement the charge did not contain and the policy does not impose.[17] What weight the risk should carry in the assessment of sanction, once the conduct is correctly classified, is a question the Commissioner never reached on a correct footing, and it is one for the remitted enquiry. Ground 3 fails for the same reason as ground 1.’

[12] ‘Fidelity Cash Management does not assist the third respondent, and it is necessary to say why. […] The reasons must, however, be capable of sustaining the conclusion on the record as it stands. The circumstances the third respondent now invokes, her service, her record, her explanations, the absence of dissemination, are not of that kind. They are factors to be weighed in a sanction enquiry, and their weight depends on what they are weighed against. […] To hold that those factors sustain a finding of unfair dismissal under item 15 would not be to uphold the Commissioner’s conclusion on reasons he did not articulate; it would be for this Court to conduct, for the first time and on the papers, the weighing exercise that item 15 required and the Commissioner never performed. That is not the exercise Fidelity Cash Management contemplates, and it is the evaluation of evidence that the judgment held, at paragraph 34, to be for an arbitrator and not for a court of review.[23]’

[13] ‘Where, as in Fidelity Cash Management, other reasons on the record support the conclusion reached, those reasons may be considered. Where, as here, the sanction finding is the product of a misconceived classification, the reasons now relied upon can sustain it only if the weighing exercise is performed afresh, and that is not a reason supporting the conclusion reached; it is a different enquiry. Ground 5’s reliance on Fidelity Cash Management accordingly identifies no error in the judgment.’

[14] ‘The judgment did not substitute its own view of the appropriate sanction for the Commissioner’s; it found that the Commissioner misconceived the nature of the enquiry, a distinct and established ground of review, and that the misconception was material because the sanction finding is its direct product.[26] That finding is not an appeal in disguise, and the third respondent’s submissions identify no respect in which the judgment weighed the correctness of the Commissioner’s conclusion rather than the propriety of the process by which he reached it.’

[15] ‘The application identifies no compelling reason why the appeal should otherwise be heard. The principles in issue, the construction of a disciplinary code provision against the particulars of its own charge, the reach of the Fidelity Cash Management principle, and the distinction between review and appeal, are settled, and the judgment applied them to the facts of one disciplinary matter. There is no conflict of authority; Fidelity Cash Management and the principle applied in the judgment are reconcilable on the grounds given above, and the third respondent’s submissions do not demonstrate otherwise.’

[16] ‘The requirements of the law and fairness are in any event best served by no order as to costs.’

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

Judgment on SAFLII