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[2025] ZALCJHB 431
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Sibanye Stillwater Ltd t-a Sibanye Gold Ltd v Commission for Conciliation Mediation Arbitration and Others (JR1452/22) [2025] ZALCJHB 431 (19 September 2025)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no. JR 1452/22
In
the matter between:
SIBANYE
STILLWATER LTD t/a SIBANYE GOLD LTD
Applicant
and
COMMISSIONER
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
WILSON, D
N.O
Second Respondent
NUM
obo MAPHOLOBA, VH
Third Respondent
Heard:
11 September 2025
Delivered:
19 September 2025
JUDGMENT
BALOYI,
AJ
Introduction
[1]
The critical issue in this review application is the sanction imposed
by the second respondent, who sat as an arbitrator
in the unfair
dismissal dispute between the applicant and the third respondent. The
second respondent agreed with the applicant
that the third respondent
was indeed guilty of dishonesty. The second respondent, however,
found the sanction of dismissal to be
harsh. He substituted it with a
final written warning valid for 12 months and ordered the applicant
to reinstate the third respondent
retrospectively to the date of
dismissal with full backpay.
[2]
The applicant is aggrieved by this decision; hence, it is seeking to
review and set aside the arbitration award. The applicant
held a
strong view that the most appropriate sanction for dishonesty is
dismissal. According to the applicant, the second respondent’s
decision is not the one which a reasonable decision maker could
reach, as he did not uphold the dismissal. The applicant further
finds the awarding of full backpay after 43 months unreasonable. This
complaint is founded on the delays in finalising the arbitration
proceedings, most of which were occasioned by the instances of the
third respondent. The third respondent opposed the review
application.
More on this appears hereunder.
Factual
background
[3]
The applicant and the third respondent entered into an employment
relationship on 26 November 1987. The applicant dismissed
the third
respondent on 13 October 2018. At the time of his dismissal, he was
occupying the position of Human Resources Officer.
During the
Christmas break in December 2017, the third respondent was rostered
to perform overtime duties on 24, 26, 27, 28, 29,
and 30 December
2017. The charges that led to his dismissal stem from his reporting
for duty on 23 December 2017, whilst he was
not rostered for this
day. The applicant preferred three charges against the third
respondent, and a sanction of dismissal was
handed down.
[4]
The three charges formed part of the material placed before the
second respondent. After hearing evidence from both parties,
the
second respondent issued an arbitration award, in which he made
findings that the third respondent was not guilty of the first
two
charges but was guilty of the third charge of dishonesty. The not
guilty finding on the first two charges signalled the end
of the
matter, as far as these charges were concerned. Since the decision
about the first two charges is not the subject matter
of this review
application, it will serve no purpose to discuss them herein. The
third respondent went on to determine the appropriate
sanction in
relation to the third charge. As pointed out above, he ultimately
substituted the sanction of dismissal with a final
written warning
valid for 12 months. He ordered the applicant to reinstate the third
respondent retrospectively to the date of
his dismissal.
[5]
The facts that led to the formulation of this charge are hugely
common cause.
[6]
According to the applicant, the third respondent was not required to
report for duty on 23 December 2017; however, he
did and submitted a
claim for overtime payment for the day and for the period he did not
render any service, which is between 06h00
and 07h36. What the
applicant found to be extremely dishonest about the third
respondent’s conduct was to ask his colleague,
Ms Nqini, to
assist him with clocking manually. This request was made around
12h00.
[7]
In terms of the third respondent’s version, he had always known
that he was not supposed to report for duty on 23
December 2017. He
reported for duty after receiving a call from his colleague in HR, Ms
Nqini, who informed him that he was expected
to report for duty. He
did not argue with what Ms Nqini told him, as he held a belief that
the circumstances might have changed.
He arrived at the workplace at
06h00, but was unable to gain access to the workplace as he forgot
his clock card at home. He went
back home and returned at 07h36,
clocked in at the shaft access point. He did not clock in at the next
point, which calculates
the working hours, and remembered at about
12h00 that he had not done so. He then asked Ms Nqini to assist him
with manual clocking
to reflect that he had started his shift at
06h00.
[8]
It later came to the attention of one of the third respondent’s
supervisors, Ms Human, that the third respondent
reported for duty on
23 December 2017, whilst he was not supposed to. Ms Human issued an
instruction that the third respondent’s
claim for working on 23
December 2017 should be cancelled. It was also not disputable that
manual clocking could only be applied
with the approval of the Head
of Department. This was not done according to Ms Nqini, who was
called as the third respondent’s
witness. She admitted to
calling the third respondent to come to work on 23 December 2017 and
acknowledged that she committed the
mistakes regarding the manual
clocking, not the third respondent.
[9]
In arriving at the decision made, the second respondent took into
account, amongst others, the following:
1. The third
respondent’s length of service of 31 years.
2. The dishonesty
in question relates to a claim for the period between 06h00 and
07h36, which is not substantial.
3. The extent of
the dishonesty being minor,
4. The third
respondent’s clean record and,
5. The mitigating
factors being significant.
[10]
The applicant is aggrieved by the second respondent’s findings
and posted an attack on the second respondent’s
decision on two
fronts. Firstly, he failed to apply his mind when determining the
appropriate sanction for dishonesty. According
to the applicant’s
disciplinary code, dishonesty is a dismissible misconduct. The second
respondent trivialised the seriousness
of the misconduct and failed
to consider the aggravating factors. Secondly, it is the applicant’s
case that the second respondent’s
decision to award the third
respondent reinstatement with full backpay after 43 months. The
delays were caused by the third respondent
and his representative in
the form of multiple requests for postponements and a six-month delay
in filing the recission application.
The award of backpay is,
according to the applicant, capricious, unjustifiable, and patently
unreasonable.
[11]
The third respondent opposed the application and saw no
irregularities or unreasonableness in the decision of the second
respondent. Furthermore, the applicant has failed to discharge its
burden of proof to succeed in the sanction review. The third
respondent was not the only party to blame for the delays in the
finalisation of the arbitration proceedings. The delays encountered
were a result of the baggage that comes with litigation. The second
respondent had applied his mind properly by awarding the third
respondent primary relief of reinstatement. The review application
should be dismissed.
[12]
This Court has been called upon to make a determination of costs that
were reserved on 24 November 2023. The third respondent’s
union
representative, Mr Bongi Zwane, filed an answering affidavit
prematurely and was directed to remove a cause of complaint
by
withdrawing the premature answering affidavit. He did this without
the knowledge of the trade union’s attorney of record
and
refused to remove such cause of complaint. This led to the applicant
filing an application, which Mr Zwane opposed. The premature
answering affidavit was only withdrawn on the date of the hearing of
the interlocutory application. This issue is dealt with further
below.
The
test for review
[13]
There is no
doubt that the review test is well settled. Firstly, the
determination of the sense of fairness of the dismissal is
reserved
for the commissioner. The default position is that even when the
Court feels that it would have held otherwise had it
been tasked with
arbitrating the dispute, it cannot do so in view of the
reasonableness test. In
Fidelity
Cash Management Service v CCMA & Others
[1]
held as follows:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA commissioner,
the
Court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
Court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the commissioner and that the system would never
work if the Court would interfere with every decision
or arbitration
award of the CCMA simply because it, that is the Court, would have
dealt with the matter differently. Obviously,
this does not, in any
way, mean that decisions or arbitration awards of the CCMA are
shielded from the legitimate scrutiny of the
Labour Court on review.’
[14]
Though the
reasonableness test raises the bar for the review of arbitration
awards, the Court cannot, in the face of the test, rigidly
align
itself with the primary consideration of the sense of fairness of the
dismissal being reserved for the commissioner. Surely,
by bringing
the review application, the applicant is calling for the scrutiny of
the decision made by the second respondent in
the arbitration award.
When scrutinised, with the application of the reasonableness test,
the review court is not bound to find
the arbitration award
reviewable just because it has spotted certain misdirections in the
arbitrator’s decision; hence, the
Supreme Court of Appeal held
in
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2]
that the misconstruing of the inquiry by the arbitrator may only
result in the review of the arbitration, if such misconstruction
has
the effect to render the outcome unreasonable.
[15]
In essence,
not all the defects in the arbitration award have the effect of
rendering the award reviewable. The Labour Appeal Court
(LAC) in
Gold
Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others
[3]
cautioned against the approach to the review of an arbitration award
on a fragmented basis, otherwise, this may take the form of
appeal in
the guise of a review. The following was said:
‘
An
application of the piecemeal approach would mean that an award is
open to be set aside where an arbitrator (i) fails to mention
a
material fact in his or her award; or (ii) fails to deal in his/her
award in some way with an issue which has some material bearing
on
the issue in dispute; and/or (iii) commits an error in respect of the
evaluation or considerations of facts presented at the
arbitration.
The questions to ask are these: (i) In terms of his or her duty to
deal with the matter with the minimum of legal
formalities, did the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the
dispute? (ii) Did the
arbitrator identify the dispute he or she was required to arbitrate?
(This may in certain cases only become
clear after both parties have
led their evidence) (iii) Did the arbitrator understand the nature of
the dispute he or she was required
to arbitrate? (iv) Did he or she
deal with the substantial merits of the dispute? (v) Is the
arbitrator’s decision one that
another decision-maker could
reasonably have arrived at based on the evidence?’
Evaluation
[16]
Before
this Court is the question of whether the substitution of the
dismissal sanction with a final written warning is a decision
falling
within the bands of reasonableness and/or whether it passes the
review test, as Ms Ngwenya for the applicant argued. The
decision
falls to be reviewed and set aside as the second respondent placed
more emphasis on mitigating factors than on aggravating
factors.
Dishonesty cannot be minimised to attract a lesser sanction than
dismissal. She relied on
Autozone
v Dispute Resolution Centre of Motor Industry & Others
[4]
where
the LAC found it not to be mandatory for the employer to lead
evidence on the breakdown of the trust relationship, where it
can be
drawn from the dishonest conduct of the employee, ‘
who
by reason of the misconduct alone will have demonstrated a degree of
untrustworthiness rendering him unreliable and the continuation
of
the relationship intolerable or unfeasible’
[5]
.
A
sanction of dismissal in circumstances of dishonesty is viewed as an
appropriate response to operational risk.
[6]
[17]
The third
respondent’s position, as argued by Mr Makalima, is that not
all offences of dishonesty warrant a sanction of dismissal.
He
subscribed to a view expressed in
ABSA
Bank Ltd v Naidu
[7]
that there are varying degrees of dishonesty which are determinable
based on the facts of each case. The second respondent committed
no
irregularity, even on the award of reinstatement with full backpay,
which is a primary relief.
[18]
In terms of
section 138(7) of the Labour Relations Act
[8]
(LRA), the commissioner is required to issue a signed arbitration
award with brief reasons. The LAC in
Maepe
v CCMA & Others
[9]
held in
this respect as follows.
‘
Although
a commissioner is required to give brief reasons for his or her award
in a dismissal dispute, he or she can be expected
to include in his
or her brief reasons those matters or factors which he or she took
into account which are of great significance
to or which are critical
to one or other of the issues he or she is called upon to decide.
While it is reasonable to expect a commissioner
to leave out of his
reasons for the award matters or factors that are of marginal
significance or relevance to the issues at hand,
his or her omission
in his or her reasons of a matter of great significance or relevance
to one or more of such issues can give
rise to an inference that he
or she did not take such matter or factor into account.’
[19]
Whilst giving such brief reasons, the arbitrator must consider the
totality of factors placed before him or her when
determining the
fairness of the dismissal. In this instant matter, it only came to
the third respondent’s attention through
Ms Nqini that he was
required to report for duty on 23 December 2017. Ms Nqini
corroborated this and went further to acknowledge
that the flaunting
of the manual clocking process was attributable to her. With this at
the disposal of the second respondent,
the underlying blameworthiness
of the misconduct committed by the third respondent did not entirely
fall on him. The second respondent
cannot, under these circumstances,
be faulted for having found the third respondent guilty of dishonesty
on a lesser degree. This
militated against the imposition of a
dismissal sanction. The applicant’s attempt to have the
arbitration award reviewed
on this point should fail.
[20]
The second aspect of the review application relates to the relief
awarded to the third respondent. The third respondent
seemed to be
comfortable with the second respondent’s guilty finding; hence,
there is no cross review posted. What the third
respondent is not
taking into account is that the relief was awarded in circumstances
where his hands were not clean. On the same
token, the Court is alive
to the fact that the third respondent did not choose to be unfairly
dismissed. However, the reasonableness
of the second respondent's
decision should have gone to the extent of taking into account the
fact that the third respondent should
not unduly benefit from his
wrongdoing, even if there were no delays in finalising the
arbitration proceedings.
[21]
Reinstatement
is certainly a primary remedy to be awarded to an employee in terms
of section 193(1) of the LRA
[10]
unless any of the provisos in section 193(2) form part of the
material placed before the second respondent. The second respondent
awarded reinstatement as such. The Court will also not ignore the
third respondent’s delay of six months prior to applying
for
rescission of the ruling made in his absence. The rescission
application was dismissed and challenged by way of review, which
was
ultimately granted based on consent to an order. Had it not been for
the delays occasioned, the arbitration could have been
finalised
within a year. With the material placed before him, including the
guilty finding, full backpay to the date of dismissal
should not have
been awarded. The second respondent has, in this regard, failed to
apply his mind to the material placed before
him. His decision
should, as a result, be interfered with insofar as the relief is
concerned.
[22]
When looking at what the second respondent has failed to consider, as
pointed out above, the full backpay would probably
not have exceeded
a year. With the third respondent’s guilt to be taken into
account, the awarding of the back pay of not
more than six months
would not have been unreasonable.
Costs
[23]
The applicant is seeking costs against the trade union arising out of
the conduct of its union official, Mr Bongi Zwane,
who bypassed the
trade union’s attorneys of record by filing an answering
affidavit prematurely without the knowledge of
the trade union’s
attorneys. He was advised to refrain from such conduct and warned
that a cost order would be sought if
he persisted with it. The
applicant is aggrieved by the fact that it ended up applying to
remove the cause of complaint, which
was settled on the date of its
hearing with costs reserved. There was no plausible reason from the
trade union for why such a cost
order should not be made against the
trade union. A submission that Mr Zwane is a layperson cannot stick
because the union had
already appointed attorneys in the matter and
had access to legal advice. Surely, the applicant has a point on this
aspect. It
will not be in the interest of law and fairness not to
make a cost order on the issue.
[24]
In the premises, the following order is made:
Order
1. The arbitration
award issued by the first respondent under case number GAJB24407/22
is reviewed and set aside insofar as
the relief awarded to the third
respondent, and is substituted with the following order.
1.1.
The dismissal of the third respondent is found to be substantively
unfair.
1.2.
The applicant is ordered to reinstate the third respondent
retrospectively to the date
of his dismissal with backpay limited to
an equivalent of six months' remuneration within 14 days of this
order.
2. The trade union,
NUM, is ordered to pay the costs of this application occasioned by
the premature filing of the answering
affidavit up to the settlement
of the application to remove the cause of complaint.
3. Each party to
pay its own costs in the review application.
MM
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Adv Z Ngwenya
Instructed
by:
Solomon Holmes Attorneys
For the Third
Respondent: Mr S Makalima
Cheadle
Thompson & Haysom
[1]
[2008] 3 BLLR 197 (LAC) at para 98.
[2]
[2013] 11 BLLR 1074 (SCA) at para 25.
[3]
[2014] 1 BLLR 20 (LAC) at para 20.
[4]
(2019)
40 ILJ 1501 (LAC)
[5]
Ibid
at para 12.
[6]
See
De
Beers Consolidated Mines Ltd v Commission for Conciliation,
Mediation & Arbitration & others
, (2000)
21 ILJ 1051 (LAC) at para 26 where it is said: ‘
Dismissal
is not an expression of moral outrage; much less is it an act of
vengeance. It is, or should be, a sensible operational
response to
risk management in the particular enterprise. That is why
supermarket shelf packers who steal small items are routinely
dismissed. Their dismissal has little to do with society’s
moral opprobrium of a minor theft; it has everything to do with
the
operational requirements of the employer’s enterprise
.’
[7]
[2015] 1 BLLR 1
(LAC) at para 52.
[8]
Act
66 of 1995, as amended.
[9]
[2008] 8 BLLR 723 (LAC) at para 8.
[10]
‘(1) If the Labour Court or an arbitrator appointed in terms
of this Act finds that a dismissal is unfair, the Court or
the
arbitrator may –
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee was employed before the dismissal or
in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal;
(c)
or order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless –
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a
continued employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.