Labour Court orders Cashbuild to reinstate manager, slams CCMA for overreach in R463,000 back-pay ruling
Image: File
What started with the sale of 10 discounted bags of damaged cement — and ended with no delivery for three months — has now seen the Labour Court order Cashbuild to reinstate its dismissed Mqanduli branch manager over procedural disciplinary issues.
The court, in what was Port Elizabeth, found that the Commission for Conciliation, Mediation and Arbitration (CCMA) overstepped in awarding Luvolwethu Dyani 18 months' back pay worth R463 840.38 as it upheld overturning Cashbuild's decision to fire him.
In October 2022, the CCMA ruled Luvolwethu Dyani's dismissal was both substantively and procedurally unfair, ordering his reinstatement with Cashbuild. Cashbuild took the matter to the Labour Court in Gqeberha, arguing that the CCMA ignored key evidence and misapplied the facts.
The saga began in December 2020, when a customer, Mzwandile Mdunyelwa, bought and paid for ten bags of damaged cement at a discount. Cashbuild doesn't normally deliver such stock, but because the men knew each other, Dyani agreed to arrange it.
The bags were never set aside or sent and instead sold to another customer. Over the next three months – December to February – no replacement was delivered despite payment being made.
Mdunyelwa complained to head office in March 2021, prompting an investigation which confirmed the cement had been sold elsewhere. Only then did Dyani arrange for undamaged bags to be delivered, this time at full price.
Dyani was charged with poor customer service/gross negligence and bringing the company name into disrepute. A disciplinary hearing in March 2021, held without him, led to his dismissal, and his internal appeal the next month was unsuccessful.
Then, Dyani went to the CCMA, which found that he should be reinstated with 18 months' salary because his 'dismissal was both substantively and procedurally unfair'.
Cashbuild took the matter to the Labour Court, arguing that the CCMA didn't fairly consider the evidence, effectively discarding what it presented. It said that the CCMA, 'being confronted with two mutually contradictory versions, did not discharge his duty and function to determine what evidence to accept'.
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However, it was determined that some of Cashbuild's allegations featured 'for the first time during the arbitration proceedings' and not during the disciplinary hearing. The judge also noted that some evidence, about there being bags of cement available to distribute, was not presented during the disciplinary enquiry or the appeal hearing.
The judge did note, however, that it was 'unacceptable for a customer to pay for bags and then to wait for three months to receive the bags' and that 'the complaint to the head office was a valid complaint given the third respondent's negligence in this regard'.
The court said that the CCMA's payout decision was 'one that a reasonable decision maker could not reach' and cut it to four months' salary – R103 075.64. It also found that while Dyani had been negligent, dismissal was too harsh, and a final written warning was the more appropriate sanction.
Dyani must return to work within two weeks, with Cashbuild paying the reduced back pay in the same period.
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Cashbuild took the matter to the Labour Court, arguing that the CCMA didn't fairly consider the evidence, effectively discarding what it presented. It said that the CCMA, 'being confronted with two mutually contradictory versions, did not discharge his duty and function to determine what evidence to accept'. Video Player is loading. Play Video Play Unmute Current Time 0:00 / Duration -:- Loaded : 0% Stream Type LIVE Seek to live, currently behind live LIVE Remaining Time - 0:00 This is a modal window. Beginning of dialog window. Escape will cancel and close the window. 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Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Next Stay Close ✕ However, it was determined that some of Cashbuild's allegations featured 'for the first time during the arbitration proceedings' and not during the disciplinary hearing. The judge also noted that some evidence, about there being bags of cement available to distribute, was not presented during the disciplinary enquiry or the appeal hearing. 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Text Color White Black Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Background Color Black White Red Green Blue Yellow Magenta Cyan Transparency Opaque Semi-Transparent Transparent Window Color Black White Red Green Blue Yellow Magenta Cyan Transparency Transparent Semi-Transparent Opaque Font Size 50% 75% 100% 125% 150% 175% 200% 300% 400% Text Edge Style None Raised Depressed Uniform Dropshadow Font Family Proportional Sans-Serif Monospace Sans-Serif Proportional Serif Monospace Serif Casual Script Small Caps Reset restore all settings to the default values Done Close Modal Dialog End of dialog window. Next Stay Close ✕ However, it was determined that some of Cashbuild's allegations featured 'for the first time during the arbitration proceedings' and not during the disciplinary hearing. The judge also noted that some evidence, about there being bags of cement available to distribute, was not presented during the disciplinary enquiry or the appeal hearing. The judge did note, however, that it was 'unacceptable for a customer to pay for bags and then to wait for three months to receive the bags' and that 'the complaint to the head office was a valid complaint given the third respondent's negligence in this regard'. The court said that the CCMA's payout decision was 'one that a reasonable decision maker could not reach' and cut it to four months' salary – R103 075.64. It also found that while Dyani had been negligent, dismissal was too harsh, and a final written warning was the more appropriate sanction. Dyani must return to work within two weeks, with Cashbuild paying the reduced back pay in the same period. IOL
