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[2025] ZALCCT 22
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Sibanye Gold Limited t/a Sibanye Still Water v Commission for Conciliation, Mediation and Arbitration and Others (JR 1898/2020) [2025] ZALCCT 22; (2025) 46 ILJ 1416 (LC) (10 April 2025)
FLYNOTES:
LABOUR
– Dismissal –
Intimidation
–
Employee
making phone call to HR superintendent – During violent
strike – Arbitrator ordering reinstatement with
final
written warning – Found that superintendent’s
perception of being threatened was reasonable in the circumstances
– Questions in call probably not made with the intention of
intimidating her – Conduct of putting undue pressure
on
superintendent was nonetheless inappropriate – Review
application dismissed.
THE LABOUR COURT OF
SOUTH AFRICA
AT CAPE TOWN
Reportable/Of
interest to other judges
case no: JR 1898/2020
In the matter between:
SIBANYE GOLD
LIMITEDT/A SIBANYE STILLWATER
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER MAKOLE
JACOB MOKGOSI N.O
Second Respondent
AMCU OBO TITUS
TLOTLISO MAOENG
Third Respondent
Delivered
:
10 April 2025
Summary:
(Review – Reinstatement
application - Bona fide misapprehension that Rule 22B notice
had been filed timeously, within
a year of launching review –
Ommission not the cause of any delay in the enrolment of the review –
reinstatement ordered.
Dismissal – Intimidation vs
Inappropriate Pressure Arbitrator finding that complainant was not
unreasonably fearful, but
no evidence to support the conclusion that
a threat was made, nor that the misconduct was intended to intimidate
the complainant
– Arbitrator dismissing charge of intimidation
but finding employee guilty of improperly pressurising the
complainant –
reinstatement with limited backpay and a final
written warning – Outcome not untenable)
JUDGMENT
LAGRANGE, J
Nature of the
application
[1]
This is an opposed
review application, which had lapsed.
The applicant (‘Sibanye’) has applied to reinstate the
review application. This
application was unopposed. Both applications
were enrolled together.
The reinstatement
application
[2]
The review application
had lapsed as a result of no
further step being taken for more than twelve months to prosecute the
review after it had been launched.
This was a result of an
omission by Sibanye’s attorneys to file the Rule 22B notice
requesting the enrolment of the review
application timeously on the
Registrar, within twelve months of the review being launched. The
notice had been served timeously
on the respondents. In the
mistaken belief that the matter was not out of time and the enrolment
of the application was pending
a decision by the Registrar, the
attorneys waited for a date allocation. When enquiries were made
about it, they were advised that
it was still awaiting a date
allocation. It was only in December 2023, when an audit of review
matters was conducted by the firm
that it was realised that the
review application had lapsed on 20 December 2021 on account of the
late filing of the Rule 22B notice.
It is apparent, the Court was
unaware of this and the matter was eventually enrolled for a hearing
in August 2024. An application
for reinstatement was nevertheless
made.
[3]
In view of the lack
of opposition to the reinstatement of
the review and given that it was that the delay in enrolling the
review was not a consequence
of omission to file the Rule 22B notice
on time, I am satisfied the review application should be reinstated.
The Award
[4]
At the commencement
of the hearing, the arbitrator
dismissed an application to postpone the hearing because the mine
claimed the key witness was involved
in another arbitration. In
his reasoning the arbitrator stated that there were no compelling
grounds to grant the indulgence.
The key witness was not necessarily
the only one and the mine should have been prepared to proceed if its
application was not granted.
The arbitration could not be concluded
on 17 March and resumed on 3 August and 4 November 2020,
[5]
Mr T Maoeng (‘Moaeng’)
was employed as a rock
drill operator by the applicant (‘Sibanye’). Maoeng was
dismissed on 17 December 2019 for telephonically
intimidating/harassing a colleague in the HR department during a
strike called by his union (‘AMCU’), which commenced
on
13 December 2018. AMCU opposes the review application on his behalf.
Maoeng was an AMCU shop steward and also held
a position
in AMCU’s Education Structure.
[6] Maoeng
had been charged in the alternative,
with committing misconduct
characterised as “
behaviour prejudicial to the maintenance
of good order”
It was alleged that apart from being in
contravention of the disciplinary code, he had also breached a court
order which was in
force at the time of the strike. There was
evidence that the strike was very violent, resulting in 25 deaths and
25 serious
injuries.
[7]
The
incident giving rise to the dismissal was a phone call Maoeng made at
06:30 on the morning of 13 December 2018 to Ms M Moleli
[1]
(‘Moleli’), an HR superintendent at Beatrix Shaft 3.
Moleli testified that she was shocked to receive a call
so early from
him. He asked her where she was, if she was already at work,
and when he realised she was not at work, what
time she was going to
report for work. In the arbitration hearing he testified that he then
asked her about mine employees who
had allegedly been ‘paraded’
by the mine and ‘made to join’ other unions. In the
context of the violent
strike by AMCU members Moleli said she felt
threatened by his questions.
[8]
Immediately after
the call she reported the incident to
Potgieter, the General Manager, and the Employee Relations manager,
Mr M Zulu (‘Zulu’),
saying she had received a threatening
call from Maoeng and felt she was going to be another strike victim.
[9]
The priority crime
prevention investigator, Mr H Gephard,
testified that when he was first in contact with Moleli, he observed
she was “
very much scared”
. She was escorted to
and from work by SAPS for a month and SAPS conducted regular patrols
at her house. He also testified that
non-strikers were attacked on
their way to and from work and their houses were burnt down.
[10]
On the same morning she received the call
from Maoeng she
was phoned by two other local union leaders. Mr Marawana, the AMCU
branch secretary, was the next to phone, followed
by Mr X Phololoshi
(‘Phololoshi’), the AMCU regional chairperson. She also
received a second call from Maoeng who had
been spoken to by Zulu.
Zulu had phoned Maoeng about what Moleli had reported to him about
Maoeng’s first call. Maoeng’s
follow up call was made
before Marawana and Phololoshi phoned Moleli. All the calls to Moleli
were recorded and translations of
the calls were extensively referred
to in the proceedings.
[11]
In his follow-up call Maoeng related to
Moleli that he
had y told Zulu that he had merely spoken to her because of the kind
of person she is. Moleli then interrupted Maoeng,
saying “
The
fact of you asking where I am and further asking what time am I
leaving home and I then started asking myself as to what is
it that's
being planned against me.”
Moleli did concede under
cross-examination that she had not complained about the way he was
speaking to her, but all her
subsequent actions, showed she was
deeply distressed by what he said. She elaborated on her fears,
saying that she was afraid because
it was being said that people were
approaching people at their homes, so she did not know what to say in
a case like that, especially
because she was a woman and was truly
scared. She said she had even decided that she was not going to work
because she felt if
she could be killed going to work, she would
rather be killed at home. Maoeng tried to placate her, saying he
apologised if he
had scared her and that he is not that bad and that
he approached her because she knew she would not do something that
was not
right. He said it was not his intention to threaten her.
[12]
In Marawana’s call to Moleli, he came
directly to
the point, telling her that he heard that she and two other named HR
staff members were parading AMCU members to recruit
them for NUM. She
told Marawana this was the second call she had received, and she felt
threatened by being asked her whereabouts.
Marwana said she
should not worry about that, because those were ‘stupid things’
said by Maoeng and he would speak
to him. He advised her to
tell anyone else who called that she had spoken to him. She insisted
that only non-union members
were paraded.
[13]
One leg of Maoeng’s defence was that
his conduct in
speaking to Moleli was indistinguishable from the conversation she
had with Marawana, who was acquitted on a similar
charge of
intimidation arising from his own conversation with Moleli. Sibanye
had contended that the cases were distinguishable
because Marawana
did not question Moleli about her whereabouts but conveyed the
union’s concerns of members about the parades
which were being
held. The union retorted that the chairperson found that in Marwana’s
case she was threatened by his tone
and accusation. She could not
explain what it was about what that Maoeng had said that intimidated
her. The chairperson of Marawana’s
enquiry had accepted that
Marwana wanted to find out the truth about the parading of non-union
employees and found him not guilty
of intimidation for that reason.
[14]
In analysing the critical phone call the
arbitrator also
listened to the recorded conversation as he understood the language
so was not entirely reliant on the translated
transcripts.
[15]
He found it was undisputed that the conversation
began
with the normal greetings and Maoeng had simply asked Moleli if she
was already at work which sounded like “
a fair question”.
He (Maoeng) accepted Moleli’s evidence that she only reported
at 0600 and that is why he found her at work at that time.
She had
explained to Maoeng that she acted on instructions and could not do
as she liked but now they wanted to “
shoot her
” as
if she was responsible for the decisions. The arbitrator translated
the second question posed to her as “
What time do you report
for work?
” followed by the third question “
Are you
still at home?
”. He found that Moleli clearly felt
uncomfortable with these questions and wanted to know why he was
asking such questions.
Maoeng had answered that he wanted to secure a
meeting with her when she was at work and she said he could get in
touch with him
when she was already at work. The arbitrator concluded
that Maoeng had provided a reasonable explanation for the questions
he posed
to her and that is where the conversation should have ended
if it was his intention to secure a meeting with her, but he went
beyond
that and started to ask about HR issuing stop orders. When she
confirmed that it was non-unionised employees who had been paraded
to
choose which union they wanted to join, he then prompted her to try
and find out who had issued the instruction, but she was
reluctant to
do so.
[16]
The arbitrator reasoned that whether Maoeng
was not the
sort of person who would harm or injure Moleli, her perception of
being threatened was determined by her own sensibilities
of feeling
unsafe, threatened and intimidated, which he found “
under
the circumstances reasonable.”
He noted that she had
immediately reported Maoeng’s call to superiors even before she
received the calls from Marawana and
Pololoshi.
[17]
He rejected Maoeng's alleged reason for
calling Moleli to
obtain clarity on the stop orders, because he had testified that he
was already aware what was happening before
he found her. However, in
his view, the critical question was whether he intended to threaten
or intimidate her. The arbitrator
accepted that Maoeng had put
pressure on her to disclose the name of the person who gave the
instruction and that it was probable
she did not because she feared
what might befall her supervisor if she did. The arbitrator stated:
“
Her apprehension of fear associated itself with the violent
acts that occurred during AMCU’s strike
.”
[18]
Having found that it was reasonable for
Moleli, under the
circumstances of the violent strike, to have felt unsafe and
threatened, given her sensibilities, he nevertheless
concluded that,
objectively speaking, Maoeng had not said anything directed at her
that would have made any reasonable person in
her position fear
imminent harm or injury. He noted that Maoeng had ended the
conversation when Moleli said she did not know what
to say anymore
and the conversation concluded on a friendly note.
[19]
However, he did not find Maoeng’s
conduct
blameless. As mentioned, he concluded that Maoeng had pressurised
Moleli to disclose who had instructed her to parade non-striking
employees for the ostensible purpose of determining their union
affiliation. He concluded that, “
(w)hile the applicant’s
conduct of putting undue pressure on Moleli amounted to inappropriate
behaviour and it left her feeling
unsafe, I could not find that it
could be elevated to the level of intimidation or threatening
conduct.”
Accordingly, he concluded Sibanye had not
proven that the dismissal was substantively fair.
[20]
He then proceeded to award reinstatement
because it is
the primary remedy for a substantively unfair dismissal, but in light
of the nationwide lockdown during COVID-19
he did not award full back
pay. He also made Maoeng’s reinstatement subject to him being
issued with a twelve month final
written warning for his
inappropriate conduct. He ordered the payment of backpay from January
to November 2020 excluding the months
of April, May and June that
year.
[21]
Given his reasoning, the arbitrator obviously
did not
find it necessary to address the union’s other claim that
Maoeng’s dismissal was inconsistent with its failure
to dismiss
Marwana for the same reason.
[22]
The arbitrator found that management's action
of parading
employees to join trade unions had prompted a knee-jerk response by
the union, but there was no directive indicating
that he ought to
have approached other managers to complain about the issue, rather
than Moleli.
Grounds of Review
[23]
In broad
terms, Sibanye argues the arbitrator misconceived the nature of the
inquiry or failed to consider material evidence. Apart
from
demonstrating these flaws, it needs to show that they had led the
arbitrator to reach a conclusion no reasonable arbitrator
could have
arrived at on the evidence presented
[2]
.
The more detailed shortcomings alleged by the employer are summarised
below.
[24]
Firstly, it argues that the arbitrator did
not consider
the evidence that demonstrated that Moleli was clearly scared and
that Maoeng realised he had behaved inappropriately
when he spoke to
her the first time, which caused him to phone her again. It was also
argued that the arbitrator ought to have
realised that Maoeng only
phoned her a second time because her supervisor had phoned him to
complain about his call and he was
trying to avoid disciplinary
action.
[25]
Sibanye complains further that the arbitrator
overlooked that
Maoeng was persistent in pressing Moleli to disclose the name of the
superior who had instructed her to parade
non-union members.
Moreover, he had already taken the matter up with her superiors so
there was no reason for him to speak to her
as well. He claimed he
only spoke to her because there was no one else he could ask about
the complaints from members, which begged
the question why he phoned
her superiors.
[26]
Sibanye contends, in effect, that the most probable
and
plausible explanation for Maoeng’s call was to intimidate her
or management to stop parading employees and that they
might suffer
harm if they continued. It cited Moleli’s undisputed evidence
that previously she had never received calls from
AMCU members or
officials during strike action and the call should have been directed
towards the Employee Relations department.
Moleli testified that
Maoeng informed her they had already told her supervisors to refrain
from holding the parades and the arbitrator
had also found it was
unlikely that his enquiry was an innocent one about stop orders
because he said he was already aware what
was happening before he
called her.
[27]
It also argues that the arbitrator committed
a gross
irregularity by failing to have regard to the context and background
of the words used. All the persons who phoned were
union officials or
leaders. The strike was particularly violent, resulting in deaths and
destruction of houses and an interdict
had to be obtained
specifically interdicting acts such as intimidation despite
management having issued a brief that it would take
disciplinary
action against any form of intimidatioin, be it verbal or physical.
Non-strikers had been attacked going to and from
work. Maoeng
himself conceded that everyone was scared due to the strike. All of
this ought to have compelled the commissioner
to conclude that there
was a climate of fear and workers were on edge, which meant that
Maoeng's conduct added to the fear. As
to the contention that Moleli
accepted his subsequent apology, that did not detract from what she
felt at the time, which is what
she said she had relayed to her
superior and to Marawana
[28]
Further, Sibanye submitted that the arbitrator’s
finding that Moleli was not intimidated, was irreconcilable with his
other findings, such as his observation that Moleli felt
uncomfortable about Maoeng asking about her whereabouts and that her
feeling of being, unsafe, threatened and intimidated was reasonable
in the circumstances. He had also accepted that Maoeng had
pressurised Moleli to provide the name of the supervisor who
instructed
the parade of non-members to be held, which she did not
disclose because she feared what might happen to that supervisor if
she
did. His conclusion that there were no words which objectively
could have made her fear any harm was irreconcilable with these
findings.
Discussion
[29]
The first point that needs to be made is that,
contrary to the
argument that he ignored the context in which the misconduct took
place, the arbitrator carefully considered the
effect of the general
context of serious strike violence and how Moleli herself had
interpreted Maoeng’s call in that context.
[30]
The crux of the matter concerned whether it was
Maoeng’s
questions about Moleli’s whereabouts when he phoned her that
was intimidatory. Sibanye argued it was this
which distinguished
Maoeng’s call from Marawana’s. Moleli also made it clear
that this what concerned her about his
call, when he phoned her very
shortly afterwards to apologise. She explained that she construed his
questions as a way of ascertaining
where she might be accosted or
attacked on her way to or from work.
[31]
It is clear Maoeng was trying to ascertain
Moleli’s
whereabouts when he phoned her. He said it was because he wanted to
meet her. He did not ask where she lived. It
is not an untenable
interpretation of the opening portion of the conversation that he was
hoping to meet her that morning to discuss
the parading of employees
and that was the reason for his enquiries about her whereabouts,
rather than determining where she might
be ambushed on her way to or
from work. It was not necessarily sinister, though in Moleli’s
anxious and fearful state, she
did see it that way. The arbitrator
was alive to the fact that Moleli felt extremely vulnerable given the
level of violence which
had accompanied the strike which had resulted
in the death of a number of non-union members and that some had their
homes burned.
He accepted that from her subjective perspective it was
understandable she harboured such fears.
[32]
But he was
also alive to the complexity of a charge of intimidation and that it
was not sufficient just to establish that Moleli
was genuinely
alarmed by Maoeng’s questions about her whereabouts. He found
it was necessary also to prove that Maoeng’s
questions,
objectively speaking, conveyed the fears she entertained and whether
he probably intended to intimidate her
[3]
.
As mentioned, a more innocuous interpretation of the import of
Maoeng’s queries about where she was that morning,
namely that
he wanted to meet her and that it seemed he was trying to ascertain
when she would be at work, cannot be simply dismissed
as implausible.
[33]
Nevertheless, the arbitrator did not ignore
that Maoeng’s
call was aimed at trying to pressurise Moleli to reveal the HR staff
member who had issued the instruction
to parade the unionised
employees. It was not disputed that she was the person who had been
instructed to parade the employees
at the shaft were complaints
raised by AMCU members had emanated from. It is apparent from his
enquiries and the successive calls
she received from Marawana and
Phololoshi that they were all with the object of identifying who was
behind the decision. In passing,
it seems probable that these calls
were not coincidental but were probably intended as an escalating
pressure on Moleli to provide
the information, though they did not
entail implicit or explicit threats of retaliatory conduct against
her if she did not co-operate.
It should also be noted that, unlike
Maoeng’s call, Marwana and Pholoshi directly accused Moleli of
attempting to recruit
employees for other unions, which Maoeng had
not done. Moleli had also found those accusations threatening, but
agreed that Maoeng
had never gone so far as to accuse her of doing
that.
[34]
The common component of all the calls also
contextualises
what prompted Maoeng to make his call in the first place. It was not
about finding out Moleli’s location or
route to and from work
but about ascertaining who had instructed that employees should be
paraded.
[35]
It must also be pointed out that it is far
from obvious
that Maoeng already had all the information about the parading from
Moleli’s seniors. His version was that they
had denied it was
happening, and the union had told them to refrain from doing so. It
was only on the morning of 13 December when
he received calls from
members giving details of the parade which had taken place at Shaft 3
that he received concrete details
that it was happening. He had
phoned Moleli because she was the HR staff member convening the
parade and the union wanted to know
who had authorised it.
[36]
It is apparent also that Moleli herself
felt pressurised
by all the callers to disclose the identity of the person who had
authorised the parading of non-members, but
did not identify that as
the reason she became fearful owing to Maoeng’s call, even
though she was concerned to protect the
person in question by not
identifying them. Her complaint to Zulu, which was reflected in her
response to Maoeng when he phoned
to apologise was about feeling
threatened because of her interpretation of his enquiries about her
whereabouts.
[37]
The object of Maoeng’s second call is open
to different
interpretations. On the one hand it might be interpreted as a cynical
attempt to pre-empt or minimise the prospect
of disciplinary action
because he had been phoned by Zulu about Moleli’s complaint.
Alternatively, it could plausibly be
interpreted as a genuine attempt
to apologise if he had caused her to feel intimidated. It could
equally plausibly be interpreted
to have had a dual purpose of
mitigating the consequences of prospective disciplinary action and to
genuinely apologise. The fact
he did not hesitate to phone her back,
is consistent with any of those alternatives. What is somewhat
distinctive, is that Maoeng
told Moleli she was right to raise her
concerns with Zulu. He did not criticise her for doing so.
Nonetheless, for the purposes
of the review all that matters is that
it cannot be said with any certainty that the only plausible purpose
of the second call
must have been a cynical one.
[38]
There may have been some inconsistencies in the
arbitrator’s
reasoning, but he was dealing with a nuanced situation, in which the
distinction should between improperly harassing
an employee and
conduct conveying a threat in the event the subject of the threat did
not comply is one on which reasonable arbitrators
might disagree.
[39]
In the light of the discussion above, the
arbitrator’s
effective conclusion that the content of Maoeng’s questions
about Moleli’s whereabouts might understandably
have invoked
fear in her but were probably not made with the intention of
intimidating her, was not an untenable conclusion to
reach on the
evidence. His finding that Maoeng’s conduct of putting
undue pressure on Moleli was nonetheless inappropriate
and deserving
of a sanction less severe than dismissal was correspondingly within
the range of justifiable outcomes an arbitrator
might arrive at on
the evidence.
[40]
In conclusion, I am satisfied that the award
was not one
that no reasonable arbitrator could have arrived at and accordingly,
the award should stand.
Costs
[41]
There is an ongoing relationship between
AMCU and Sibanye
and the employment relationship between Maoeng and the mine was
restored by the award. In the circumstances, considerations
of law
and fairness do not warrant a cost award.
Order
1.
The review application is reinstated.
2.
The review application is dismissed.
3.
No order is made as to costs.
_______________________
R Lagrange
Judge of the Labour Court
of South Africa
.
Representatives
For the
Applicant: Adv.
R Itzkin instructed by
Solomon
Holmes Attorneys Inc.
For the Respondent:
Adv S Saunders instructed
by Larry Dave Inc.
[1]
As
she then was.
[2]
See
Head
of Department of Education v Mofokeng & Others
(2015) 36
ILJ
2802 (LAC) at paragraphs
32 and 33.
[3]
In
this regard, it is interesting to note that the arbitrator’s
approach to intimidation is consonant with a number of
constitutional challenges to the
Intimidation Act 72 of 1982
have
whittled down the scope of the criminal offence to focus on the
intent of the alleged offender, viz:
“
Section
1.
Prohibition of and penalties for certain forms of
intimidation
(1)
Any person who—
(a)
without lawful reason and with intent to compel or induce any person
or persons of a particular nature,
class or kind or persons in
general to do or to abstain from doing any act or to assume or to
abandon a particular standpoint—
(i)
assaults, injures or causes damage to any person; or
(ii)
in any manner threatens to kill, assault, injure or cause damage to
any person or persons of
a particular nature, class or kind;
or
(b)
…
shall be guilty of an
offence and liable on conviction to a fine not exceeding R40 000 or
to imprisonment for a period not exceeding
10 years or to both such
fine and such imprisonment.”
See also the discussion
in S Horton, “The Nature and Ambit of the Intimidation
Offence”,
Obiter
, v 44, 2023