THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case No: JR701/23
In the matter between:
BUMBANA MINING (PTY) LTD Applicant
and
SALU First Respondent
THANDEKA MSOMI Second Respondent
MANDLA NKABINDA N.O. Third Respondent
COMMISSION FOR CONCILIATION, MEDIATION
AND ARBITRATION Fourth Respondent
Heard: 24 February 2025
Reasons delivered: 25 February 2025
REASONS
PHEHANE, J
(1) Reportable: No
(2) Of interest to other Judges: No
(3) Revised
____________ ______________
Signature Date
2
Introduction
[1] This is a review application in terms of section 145 of the Labour Relations
Act1 (LRA) in which the applicant seeks to review and set aside the arbitration
award by the third respondent dated 9 March 2023.
[2] The first respondent , ostensibly a trade union representing the second
respondent (Ms Msomi) filed opposing papers that do not comply with the
Rules of this Court .2 What is astounding is that the first respondent filed an
application together with a founding affidavit in an attempt to oppos e this
review application. The opposition is thus defective and irregular. A trade
union ought to have known and applied the Rules in opposing this application.
This application is effectively unopposed.
Background
[3] The applicant conducts an operation as an openca st coal mine and employs
approximately 340 employees.
[4] In terms of the applicant ’s policies, employees are granted four months of
unpaid maternity leave. The applicant avers that this practice is consistent
with the provisions of section 25 of the Basic Conditions of E mployment Act
(BCEA).3
[5] It is not in dispute that the applicant and Ms Msomi concluded a service
agreement in terms of which Ms Msomi , as with all other employees of the
applicant, agreed that employees on maternity leave would not receive any
remuneration during the period of such leave. The clause on remuneration in
the service agreement reads:
‘The employee will receive wages of R43.50 per hour; payable monthly,
provided that only hours actually worked shall be paid for. Overtime shall be
1 Act 66 of 1995, as amended. See also: notice of motion on p 1.
2 The Rules that were applicable when this review application was delivered, are the former Rules for
the Conduct of Proceedings in the Labour Court dated 14 October 1996 (repealed on 17 July 2024).
3 Act 75 of 1997.
3
paid according to relevant legislation. The employee will also receive a
housing allowance of R1000.00 per month, medical allowance of R250.00 per
month and a night allowance (20.00% all of the night hours worked).’4
[6] Ms Msomi took approved maternity leave from 22 November 2022 to 21
March 2023. During this period, she was not paid any remuneration.
[7] Ms Msomi, represented by SALU, referred a dispute to the fourth respondent
in terms of section 186(2)(a) of the Labour Relations Act 5 (LRA), where Ms
Msomi claimed that the applicant’s conduct in withholding payment of her
benefits of a housing and medical allowance while she was on maternity leave
constituted an unfair labour practice. The applicant contended that Ms Msomi
was not entitled to these benefits which constituted her remuneration while
she was on maternity leave in line with its policies and practice which is
uniformly applied.
[8] The third respondent found that the conduct of the applicant in withholding
payment of Ms Msomi’s housing and medical allowance constituted an unfair
labour practice. He accordingly ordered the applicant to pay over to Msomi a
total amount of R11 536,38 which constituted the amount of benefits withheld
during the period of her maternity leave.
[9] The applicant seeks to review and set aside the third respondent's arbitration.
Test
[10] Section 145(2) of the LRA sets out the grounds upon which an arbitration
award may be reviewed and set aside. They are that the commissioner:
10.1 committed a misconduct in relation to the duties of the commissioner
as an arbitrator;
4 Records bundle at p 84.
5 Act 66 of 1995, as amended.
4
10.2 committed a gross irregularity in the conduct of the arbitration
proceedings;
10.3 exceeded his or her powers.
[11] The test to be applied in review applications is well established . It is one of
reasonableness.6 The concept of reasonableness embraces a wide range of
outcomes, many of which may be reasonable. The outcome should be
evaluated on the totality of the evidence that was before the arbitrator.
7
[12] In Herholdt v Nedbank Ltd (COSATU as amicus curiae) 8, the Supreme Court
of Appeal stated thus:
‘In summary, the position regarding the review of CCM A awards is this : A
review of a C CMA award is permissible if the defect in the proceedings falls
within one of the grounds in s 145(2)(a) of the LRA. For a defect in the
conduct of the proceedings to amount to a gross irregularity as contemplated
by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the
inquiry or arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the material that
was before the arbitrator . Material errors of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of themselves
sufficient for an award to be set aside, but are only of any consequence if
their effect is to render the outcome unreasonable.’
[13] In Head of the Department of Education v Mofokeng and others 9 (Mofokeng)
the Labour Appeal Court (LAC) clarified that if an arbitrator failed to apply his
or her mind to the material issues, this would usually suggest that the
outcome is unreasonable or that the arbitrator misconceived the nature of the
inquiry. If a mistake of fact or law occurs, what matters is its materiality and
whether the error had a distorting effect on the outcome. The mere fact that
6 Sidumo and Another v Rustenburg Platinum Mines (Pty) Ltd and Others (2007) 28 ILJ 2405 (CC) at
para [110].
para [110].
7Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation and
Arbitration and Others (2014) 35 ILJ 943 (LAC).
8 [2013] ZASCA 97; 2013 (6) SA 224 (SCA) at para [25].
9 [2015] 1 BLLR 50 (LAC).
5
the arbitrator's reasoning was flawed is insufficient as the Court must consider
if the outcome is unreasonable in light of all the evidence.
Grounds of review
[14] In essence, the applicant avers that the third respondent committed gross
irregularities, ignored the evidence before him, alternatively, failed to apply his
mind to the evidence before him when he:
14.1 ignored the evidence before him that the policies and practice of the
applicant did not make provision for the payment of remuneration
during maternity leave;
14.2 ignored the terms of the service agreement concluded between the
applicant and its employees that provided that employees would
receive wages, a housing allowance and medical all owance and other
benefits for services rendered;
14.3 ignored the concession by the second respondent that in term s of the
applicant’s leave policy, she was not entitled to receive remuneration
during maternity leave as the policy provides that employees receive
unpaid maternity leave;
14.4 ignored the undisputed evidence before him that the Mutual
Agreement, being a collective agreement concluded between the first
respondent and the applicant provided that employees on maternity
leave are subject to the provisions of section 25 of the BCEA;
14.5 drew a distinction between a salary and benefits as remuneration and
such a distinction is artificial and unsustainable.
10
10 Apollo Tyres South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration [2013]
ZALAC 3 at para [25] (Apollo Tyres).
6
[15] The applicant contends that the third respondent’s irregularities and conduct
as aforesaid, distorts the outcome that he reached and, in the premises, the
outcome does not fall within the band of reasonable decisions and is
therefore, reviewable.
Evaluation
[16] At the outset, it transpires from the transcribed record of the arbitration
proceedings, as well as the third respondent’s handwritten notes, that the
SALU union representative, Mr Vilakazi, did not lead any evidence-in-chief of
Ms Msomi, notwithstanding that Ms Msomi was sworn in as a witness.
11 Ms
Msomi was cross-examined by the representative of the applicant, Mr Scholtz.
During her cross-examination, Ms Msomi made several concessions.
[17] With reference to a copy of service contract of another individual, the content
of which she did not dispute, she confirmed that the above quoted clause on
remuneration was correct and did not dispute that it applied to her . She also
confirmed that remuneration means ‘pay ’. In addition, when referred to the
applicant’s leave policy, she confirmed that the applicant’s l eave policy
provided that a female employee is entitled to at least four consecutive
month’s unpaid maternity leave and conceded that she thus was not entitled
to receive remuneration while on maternity leave and was entitled to claim
maternity benefits from the Unemployment Insurance Fund.
12
[18] Ms Msomi further confirmed with reference to the collective agreement
between SALU and the applicant, that the agreement referred to section 25 of
11 See: transcribed record at pp 5 to 8.
12 Ibid at pp 8 to 10. Clause 4.4.1 of the applicant’s leave policy that makes provision for unpaid
maternity leave appears at p 76 of the records bundle and reads:
‘A female Employee Is entitled to at least 4 (four) consecutive months’ maternity leave, unpaid, and
subject to the Employee having worked for a period of 12 (twelve) months for BUMBANA MININ.G [sic].’
7
the BCEA in respect to maternity leave provisions. 13 With reference to the
provisions of section 25 of the BCEA, Ms Msomi disagreed that the benefits
are included in remuneration. She did not quarrel with her not being entitled to
receive a salary during maternity but insisted on being entitled to receiving her
benefits.
14
[19] The uncontested evidence of Mr Scholtz was that it was a consistent practice
of the applicant not to pay remuneration, which included wages and benefits
to employees during maternity leave periods.
[20] Ms Msomi conceded that remuneration is a collective term relating to all
payments she received.
15
[21] In Apollo Tyres 16 the Labour Appeal Court (LAC) stated as follows regarding
remuneration and benefits and distinguishing between the two:
‘[25] The distinction that the C ourts sought to draw between salaries or
wages as remuneration and benefits is not laudable but artificial and
unsustainable. The definition of remuneration in the Act is wide
enough to include wages, salaries and most, if not all extras or
benefits. Remuneration is defined as: “ Remuneration means any
payment in money or in kind made or owing to any person in return for
that person working for any other person, including the State, and
“remunerate” has a corresponding meaning.
[26] Many benefits that are payment in kind form part of the essentiali a of
practically all contemporary employment contracts. Many extras are
given to employees as a quid pro quo for services rendered just as
much as the wage is given as a quid pro quo for services rendered’.
(Own emphasis).
13 Ibid at pp 10 to 12. The collective agreement appears at pp 63 to 65 of the records bundle. Clause
7.1 of the collective agreement on p 64 of the records bundle refers to section 25 of the BCEA in
respect to maternity leave.
14 Transcribed record at p 12, at lines 1 to 25.
15 Ibid at pp 13 to 14.
16 fn. 10 supra.
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[22] On the totality of evidence before the third respondent and on the ratio in
Apollo Tyres that a distinction between wages and benefits is artificial, Ms
Msomi did not discharge the onus on her to prove that the non-payment of her
housing and medical benefits constituted an unfair labour practice. The
concessions made by her in her evidence are fatal.
[23] The third respondent ignored material evidence before him and misconstrued
the definition of remuneration. In the premises, his decision is unreasonable
and reviewable.
[24] In the premises, the following order was made:
Order:
1. The arbitration award by the third respondent dated 9 March 2023
under case number MPEM982-23 is reviewed and set aside and is
substituted with the following order:
1.1. The referral of the unfair labour practice dispute by the first and
second respondent to the fourth respondent is dismissed.
2. There is no order as to costs.
_______________________
M. T. M. Phehane
Judge of the Labour Court of South Africa