Solidarity obo Delport v Stucky Motors Group (Pty) Ltd & others (Application for Leave to Appeal) [2026] ZALCJHB 403

Seat of Court: Labour Court, Johannesburg

Date Delivered: 21 October 2026

Case No: JR83/24

Name of Judge(s): Mhambi AJ

Factual Summary:

Mr Delport, represented by Solidarity, was charged by Stucky Motors with gross negligence and with insubordination in relation to the production of an IT Asset Register; he was acquitted of the first charge and dismissed on the second. A commissioner of the Motor Industries Bargaining Council upheld the dismissal, relying in part on uncharged incidents of 10 and 15 February 2023 arising from a dispute over sick leave. On 14 May 2026 the Labour Court reviewed and set aside the award, declared the dismissal substantively unfair and awarded compensation equal to six months' remuneration.

Stucky Motors applied for leave to appeal, contending that the arbitration was a hearing de novo entitling the commissioner to consider the further incidents, that the Court had conducted an appeal in the guise of a review, that the order wrongly disturbed the finding of procedural fairness, that the matter ought to have been remitted rather than substituted, that the compensation was excessive, and that there was a compelling reason for the appeal. The Court also considered whether the application was timeous.

Legal Questions Considered:

[5] ‘The main judgment was handed down electronically on 14 May 2026, which is the deemed date of delivery. Excluding that day and counting only court days, there being no public holiday in the intervening period, the fifteenth day fell on 4 June 2026. The first respondent’s notice of application for leave to appeal is dated 4 June 2026 and was delivered on that day. The application was therefore brought on the last day of the prescribed period. It is timeous and no condonation is required.’

[7] ‘The use of the word “would” has raised the threshold. An applicant must now satisfy the court that the appeal would and not merely might succeed. The degree of certainty required is more demanding than the former test of a reasonable prospect that another court might come to a different conclusion.[2]’

[8] ‘That threshold applies with particular force in this Court. The statutory imperative of the expeditious resolution of labour disputes requires that leave to appeal be granted sparingly, and be confined to matters in which there is a realistic prospect that the factual matrix could receive a different treatment on appeal, or in which there is a genuine dispute on the law.[3]’

[11] ‘This ground does not, in my view, carry a reasonable prospect of success. It is trite that the fairness of a dismissal must be determined on the basis of the reason for the dismissal that the employer gave at the time of the dismissal.[4] Although arbitration proceedings are conducted de novo, that principle does not entitle an employer to alter or amend the reason for the dismissal, or to rely at the arbitration on an entirely different reason.[5] The de novo character of the enquiry permits the employer to lead evidence afresh in support of the reason for which it dismissed; it does not permit the reason itself to morph into a broader or different one.[6]’

[12] ‘The applicant was charged with two counts of misconduct: gross negligence in failing to produce the IT Asset Register by 28 February 2023, of which he was acquitted; and insubordination pertaining to the IT Asset Register, of which he was found guilty. The reason for the dismissal, as reflected in the charges and the outcome of the disciplinary enquiry, was therefore insubordination connected with the IT Asset Register.’

[13] ‘The incidents of 10 and 15 February 2023 concerned a different matter altogether – an altercation arising from the applicant’s request for sick leave, and a subsequent meeting at which the directors addressed that altercation. Those incidents were not the subject of any charge. Indeed, on the first respondent’s own version at the arbitration, its witness conceded that the altercation over sick leave, the related correspondence and the grievance minutes formed no part of the disciplinary charges and bore no relevance to them.’

[14] ‘The Commissioner nevertheless relied on those uncharged incidents, together with his characterisation of the applicant’s compliance with the instruction by the due date as itself insubordinate, to find “numerous instances of insubordinate conduct” and thereby gross insubordination. In doing so he did not receive fresh evidence of the charged insubordination; he substituted a broader and different factual basis for the dismissal than the reason on which the employer had acted. That is the misconception I identified in the main judgment, and it is not answered by the distinction between reason and evidence on which the first respondent relies – precisely because these incidents were not evidence of the charged insubordination, but a separate and uncharged reason.’

[15] ‘The further contention that the applicant displayed insubordination during the disciplinary hearing and the arbitration themselves, by stating that he would not work under Ms Stubbs, does not assist the first respondent. Conduct in the course of the proceedings was not a charged act of misconduct, and cannot supply, after the event, a reason for the dismissal that the employer did not advance at the time.’

[16] ‘It follows that my conclusion that the award was one that a reasonable decision-maker could not reach, because it rested on considerations irrelevant to the charge rests on settled principle. There is no reasonable prospect that the Labour Appeal Court would find otherwise, and the point raises no unsettled question of law.’

[18] ‘I applied the reasonableness standard in Sidumo – whether the decision reached by the Commissioner is one that a reasonable decision-maker could not reach on all the material before him.[7] The irregularity that vitiates the award is not the product of a re-weighing of the evidence; it appears ex facie the award itself, at paragraphs 27 and 32, and on the common cause facts recorded in the main judgment – the terms of the charges, the acquittal on the first charge, the conviction on a charge of insubordination confined to the IT Asset Register, and the fact that the incidents of 10 and 15 February 2023 were not charged. A misconception apparent on the face of the award and from the common cause facts did not require a line-by-line analysis of the transcript to identify. There is accordingly no reasonable prospect that the appeal would succeed on this ground.’

[19] ‘The gravamen of the review, and of my reasoning, was the substantive fairness of the dismissal. The operative relief – the declaration that the dismissal was substantively unfair and the award of compensation – is directed to substantive fairness alone; no separate relief turned on procedural fairness. Even on the reading most favourable to the first respondent, this ground discloses no reasonable prospect that the outcome on appeal would differ. At highest it identifies a matter of clarification, and not a basis on which the appeal would succeed.’

[20] ‘Substitution is competent where the court is in as good a position as the arbitrator to make the determination and where the result is a foregone conclusion, regard being had to fairness and the avoidance of unjustifiable delay.[8] The complete record of the arbitration was before me; reinstatement was neither appropriate nor sought, the applicant having testified that the employment relationship had broken down irretrievably; and the only live remedy was compensation, which I assessed. In those circumstances there is no reasonable prospect that the Labour Appeal Court would find that remittal was the only proper course. I note, moreover, that the applicant, in whose favour the substitution operated, does not challenge it.’

[21] ‘Compensation under s 194(1) of the LRA must be just and equitable in all the circumstances, and its determination involves the exercise of a discretion.[9] I exercised that discretion having regard to the applicant’s period of service, and reduced the compensation from the twelve months he sought to six months. The award is compensation for the injustice of a dismissal found to be substantively unfair; it is not a reward for misconduct. A court of appeal will not lightly interfere with a discretion exercised judicially, and no misdirection of principle has been shown. This ground enjoys no reasonable prospect of success.’

[22] ‘For the reasons already given, that question is not unsettled: the principles governing the relationship between the reason for a dismissal and the de novo character of the arbitration are established in the authorities to which I have referred. No compelling reason has been shown.’

[23] ‘For these reasons I am not persuaded that the appeal would have a reasonable prospect of success, or that there is any other compelling reason why it should be heard. The application for leave to appeal must fail.’

[24] ‘In terms of s 162 of the LRA, costs in this Court are governed by the requirements of the law and fairness, and do not automatically follow the result.[10] Having regard to the nature of the dispute, I consider that the interests of justice are best served by making no order as to costs, as I did in the main judgment.’

Relief: The application for leave to appeal, found to have been brought timeously, was dismissed, with no order as to costs.

Judgment on SAFLII