Nelesco 318 (Pty) Ltd v AMCU obo Kehologile & others [2026] ZALCCT 178

Date of Judgment & Seat of Court: 12 October 2026, Labour Court, Cape Town

Case No: C71/2022

Name of Judge(s): May AJ

Summary of Factual Matrix:

The employee, a tyre-wheel dozer operator represented by AMCU, was dismissed for refusing to obey instructions (to undergo training on a track dozer and to change shifts), loafing and poor performance, having previously received two final written warnings. He contended that a lower-back condition prevented him from operating the track dozer and that a shift change would cause him transport difficulties. The CCMA commissioner found the dismissal substantively unfair: the employer had not produced medical evidence that he was fit to operate the track dozer, its witness had conceded that an employee may refuse an unsafe instruction, and no evidence of loafing or poor performance had been led.

The employer applied under section 145 of the LRA to review the award, alleging errors of fact and law rendering it unreasonable. The timing of the review was disputed, and the employer also sought unopposed condonation for the late filing of its heads of argument.

Summary of Findings:

[2] ‘Neither party provided proof of when the award was served. The Court will accept therefore that the award was served on the Applicant on 7 January 2022.’

[5] ‘The matter was heard on 10 September 2026 and as such the Applicant’s Heads of argument were due on 20 August 2026. They were filed on 25 August 2026 and were thus 3 days late.’

[7] ‘The delay was short, the review has some prospects of success on the merits, the balance of prejudice weighs heavily in favour of the Applicant, the possible consequence of denying condonation may affect the Applicant’s right to have the matter fairly determined and for all of these reasons, including the fact that the application is unopposed, condonation is granted.’

[16] ‘The review test is whether an arbitrator has misconceived the nature of the enquiry or arrived at an unreasonable result.[4] A result will be considered to be unreasonable if it is one that a reasonable arbitrator could not reach on all the material presented to him or her.[5]’

[22] ‘The Applicant’s review grounds challenge the findings of fact and conclusions of law made by the arbitrator. The findings made by the arbitrator are however not divorced from the evidence led before him. In fact, they accord with the material properly before him. The arbitrator considered the evidence led before him and was acutely aware of his duties. He assessed the evidence before him in its totality; he considered the reliability and credibility of each witness as well as the probabilities of their versions.’

[23] ‘Even if this Court disagrees with the findings made by the arbitrator, this is not sufficient for this Court to interfere because this is a review and not an appeal and the Court on review is not concerned with factual or legal findings unless the outcome reached by the arbitrator was not one that could reasonably be reached on the evidence and other material properly before the arbitrator.’

[24] ‘There is a material connection between the evidence and the result, and the result is reasonably supported by the evidence. As such the award is reasonable.’

[25] ‘It follows therefore that the application should be dismissed. The most appropriate order as to costs is that both parties remain responsible for their own costs.’

Relief: Condonation for the late filing of the applicant’s heads of argument was granted, the review application was dismissed, and each party was ordered to pay its own costs.

Judgment on SAFLII