Sibanye Rustenburg Platinum Mines v Commission for Conciliation Mediation and Arbitration and Others (JR 2227/21) [2025] ZALCJHB 207 (30 May 2025)

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THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

 

Not reportable Case

No: JR 2227/21

 

In the matter between:

SIBANYE RUSTENBURG
PLATINUM MINES                  

Applicant

 

And

 

COMMISSION FOR
CONCILIATION, MEDIATION

AND
ARBITRATION                                                           

First Respondent

 

PATEL, M
N.O                                                                    

Second Respondent

 

AMCU obo TOTSWANA, L
AND 1 OTHER                       

Third Respondent

 

Heard:           
15 May 2025

Delivered:      
30 May 2025

 

JUDGMENT

 

ASMALL, AJ

 

Introduction

 

[1] 
This
is an application in terms of section 145 of the Labour Relations Act
(LRA)[1]
to
review and set aside the arbitration award issued by the second
respondent (arbitrator) under case no: NWRB2846-20, dated 16

September 2021, and substitute the award that the dismissal of the
third respondents (Messrs Totswana and Mazambane hereinafter
referred
to as the respondents) were substantively fair.

 

[2] 
The arbitrator found that the dismissal of
the respondents were substantively unfair and ordered retrospective
reinstatement.

 

[3] 
The applicant takes issue with the
arbitrator’s findings, and I will deal with the

evidence to the extent
that is necessary to consider the grounds for review.

 

Background facts

 

[4] 
Totswana was employed by the applicant as a
rock drill operator from February 2007
and Mazambane as a shift controller from December 2006.

 

[5] 
Their positions were critical for the
applicants operations.

 

[6] 
The applicants HR Procedure Policy on
managing desertions states that an employee will be found to have
deserted their positions
if they fail to report to work for seven or
more consecutive days.

 

[7] 
The applicant tried to investigate their
absence by calling their next of kins but were unsuccessful. In terms
of the desertion
policy, their employment was terminated on 4 and 7
December 2018 respectively.

 

[8] 
The respondents reported to work on 16
March 2020, sixteen months later and were
notified of their dismissals for having deserted the workplace. They
appealed in terms of the policy and their
dismissals were upheld, due to them not notifying the employer of
their whereabouts, their
positions could not be kept
open for such a long period as it was
critical for the applicants operations to fill
their positions due to operational reasons.

 

[9] 
The respondents through their union
referred an unfair dismissal dispute.

 

[10] 
I will now deal with the applicable law and
the grounds of review.

 

The test on review

 

[21] 
I
must deal with the grounds for review within the context of the test
that this Court must apply in deciding whether the arbitrator’s

decision is reviewable. The
test
has been set out in Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others[2]
(Sidumo)
as
to whether the decision reached by the commissioner
is
one that a reasonable decision maker could not reach. The
Constitutional Court held that the arbitrator’s conclusion must fall

within a range of decisions that a reasonable decision maker could
make.

 

[22] 
The
Labour Appeal Court (LAC) in Gold
Fields Mining SA (Pty) Ltd (Kloof Gold
Mine)
v Commission for Conciliation, Mediation & Arbitration and Others
[3]affirmed
the test to be applied in review proceedings and held that:

‘In
short: A reviewing court must ascertain whether the arbitrator
considered the principal
issue before him/her; evaluated the facts presented at the hearing
and came to a
conclusion that is reasonable.’

 

[23] 
The
review court is not required to take into account every factor
individually, consider how the arbitrator treated and dealt with
each
of those factors and determine whether a failure by the arbitrator to
deal with it is sufficient to set the
award
aside. This piecemeal approach to dealing with the award is improper,
as the reviewing court must consider the totality of
the evidence and
decide whether the decision made by the arbitrator is one that a
reasonable decision maker could make, based on
the evidence
adduced.[4]

[24] 
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae)[5],
the Supreme Court of Appeal held that:

 

‘… the
test “is a stringent [one] that will ensure that… awards
are not lightly interfered with”… . the Sidumo
test
will, however, justify setting aside an award
on review if the decision is “entirely
disconnected with the evidence” or is “unsupported by any
evidence”
and involves speculation by the commissioner.’

 

[25] 
In
Quest
Flexible Staffing Solutions (Pty) Ltd (A Division of Adcorp
Fulfilment Services (Pty) Ltd) v Legobate[6],
the
LAC confirmed the test to be applied on review:

 

The test that the Labour
Court is required to apply in a review of an arbitrator’s award
is this: “Is the decision reached
by the commissioner one that
a reasonable decision-maker could not reach?” Our courts have
repeatedly stated that in order
to maintain the distinction between
review and appeal, an award of an arbitrator will only be set aside
if both the reasons and
the result are unreasonable. In determining
whether the result of an arbitrator’s award is unreasonable, the
Labour Court must
broadly evaluate the merits of the dispute and
consider whether, if the arbitrator’s reasoning is found to be
unreasonable, the
result is nevertheless capable of justification for
reasons other than those given by the arbitrator. The result will,
however,
be unreasonable if it is entirely disconnected with the
evidence, unsupported by any evidence and involves speculation by the
arbitrator.

 

[26] 
An award will no doubt be considered to be
reasonable when there is a material
connection between the evidence and the
result or, put differently, when the result is reasonably supported
by some evidence. Unreasonableness
is, thus, the threshold for
interference with an arbitrator’s award on review.’

 

[27] 
The review test to be applied is a
stringent and conservative test of reasonableness. The applicant must
show that the arbitrator
ultimately arrived at an unreasonable
result.

 

[28] 
It is within the context of this test that
I have to decide this application for review.

 

The arbitrator’s
analysis of evidence/findings and the grounds for review

 

[29] 
The first ground of review is that the
arbitrator found that the third respondents
had not deserted their employment because
they returned to work with a reasonable explanation (incarceration)
for not being at work.
The arbitrator found that the respondents had
intention of returning to work and there was no
desertion.

 

[30] 
The enquiry before the arbitrator was to
establish whether the dismissal for desertion in terms of the policy
was substantively
fair. The arbitrator needed to
consider the desertion policy, the validity
and reasonableness of the rule, whether the respondents were aware of
the rule, whether
it is consistently applied and whether dismissal is
an appropriate sanction. The dismissal was based on misconduct.

 

[31] 
There is a valid and reasonable rule on
desertion in the workplace which the respondents were aware of. It is
common cause that
the respondents were incarcerated for the 16 month
period. The applicant was not aware of their incarceration. Mokati
testified
that he could not recall being informed of their
incarceration.

 

[32] 
In
the case of Glencore
operations SA (Pty) Ltd v CCMA & Others[7],
which
are
similar
to the facts in
casu,
the court held that the real enquiry was whether the employee was
absent without permission.

‘’The
fact that where an employer dismisses an employee for reasons related
to misconduct, the dismissal shall be considered to be
fair if the
employee is guilty as charged and the sanction of dismissal is
appropriate. Nkosi was dismissed for desertion
or absence from duty without
the necessary permission. Where a
commissioner misconstrues the true nature of the enquiry, he or she
is bound to reach a decision that a
reasonable decision maker would not reach. In other words, the
outcome shall be distorted. The following finding demonstrates
that
Mashego was barking up a wrong tree:

It is common cause that
the Applicant was imprisoned from 17 August until 11 December 2018.
The Respondent decided to charge and
dismiss the Applicant for
failure to inform them about his absence on the days stated above and
not for absenteeism or excessive
absenteeism during the period of his
imprisonment that incapacitated the Applicant from honoring his part
of the employment contract.

All the documentary
evidence point to the fact of absence without permission. On the
charge sheet appears the acronym “AWOP”,
which means
absent without being permitted. The misdemeanor was not so much the
failure to inform but the absence without permission.
Absence without
permission is a form of misconduct. In terms of section 188 of the
LRA a dismissal for reasons of misconduct is
fair. Therefore, the
real inquiry should have been whether Nkosi was absent without
permission. Fact that he was absent, when he
was supposed to be
present was common cause. Fact that he was not given permission to be
absent was also common cause. The following
conclusion indicates that
Mashego dismally failed to address the relevant issue:

In
short it was impossible for the Applicant to freely without serious
hindrances inform the Respondent about his predicament because
he was
imprisoned and as such cannot be
blamed for failing to inform the Respondent about his absence.
Therefore, dismissal for failing to
inform is unfair.”

Ordinarily, an employee
has an obligation to fully place his or her services at the disposal
of the employer. Once an employee absents
himself or herself, he or
she is in breach of the obligation. Whether an employee informs an
employer about his or her whereabouts
that does not detract from the
fact that an employee has breached his or her obligations to place
his or her services to the disposal
of an employer. Where an employee
is absent from duty, the employer suffers operationally and unless
permitted to be absent that
employee commits misconduct even if he or
she can inform the employer that he or she is at home or elsewhere
and not at work, where
he or she is obligated to be. By concentrating
on the informing part and ignoring the common cause facts of absence
from work and
lack of permission, Mashego failed to appreciate the
real dispute and the real reason that led to the dismissal of Nkosi.

In light of the
undisputed evidence, by being absent for a period of six days without
the necessary permission, Nkosi committed
a misconduct. The fact
that Nkosi was arrested serves as a justification for his
absence but does not detract from the fact that he was absent
without permission. If an employer does not accept the
justification, it does not follow that the dismissal that ensues is
bereft of an acceptable
reason in terms of section 188 of the LRA.
Nkosi was not dismissed for incapacity but for misconduct.

In light of the above,
the conclusion I reach is that the award does not fall within the
bounds of reasonableness thus reviewable
in law.”

 

[33] 
In terms of section 145 (4) of the LRA this
Court, on reviewing an arbitration award, has discretionary powers to
determine the
dispute in the manner it considers appropriate. On the
common cause evidence, the respondents are guilty of being absent
from their
duties without the required permission. As pointed out
above, such amounts to a misconduct. With regard to the sanction of
dismissal, being absent from duty for a
period of over 7 days without permission is
serious enough to warrant a dismissal. The respondents conceded that
their work is important to the applicant.

 

[34] 
In casu,
the respondents were dismissed for their absence from work after a
period based on the applicant’s desertion policy. The

definition of deserter in the applicant’s
policy is a person who fails to report
to work or clock for duty for seven
consecutive working days.
The respondents alleged to have given the chair of AMCU, Doctor,
a message to relay to the applicant that they were incarcerated,
which was not proved. The applicant’s efforts to contact
their
next of kins to find out their whereabouts were in vain.

 

[34] 
Applying the principles in Glencore
supra, whether the respondents informed
the applicant or
not of their incarceration, does not detract from the fact that the
respondents were absent for
a long period of time without permission
and thisaligns
with the
desertion policy
which the
applicant correctly
and appropriately
   applied as the
respondents were deemed to have deserted their workplace.

 

[35] 
The respondents submit in their answering
affidavit, in essence, that the respondents had intention to return
to work, had a good
reason (incarceration) for not being at work and
that the applicant failed to investigate their absence properly. The
arbitrator
found that the respondents had not deserted because they
did not intend to desert. This is unreasonable and she misdirected
the
enquiry before her. Although she set out the test for misconduct
correctly in her award, she failed to apply the facts of the matter

to the test. It is common cause that the respondents were
incarcerated but this not detract from the fact that were
absent without permission. This ground of
review is upheld.

 

[36] 
The second ground of review is that Mokati
who was the HR Officer of the applicant, should have taken steps when
he heard rumors
about their incarceration. Mokati testified that he
did not know about their incarceration and nobody informed him of
their incarceration.
The rumors were just hearsay and this version
was not challenged by the respondents.

 

[37] 
The applicant submits that there was no
obligation on the applicant to take further
steps after they tried to contact the
respondents next of kins. It is further submitted
that that since the respondents were
members of AMCU, there was no evidence that
AMCU took any steps to ascertain their whereabouts or that the
respondents took
steps to inform AMCU either directly or through their next of kins
that were incarcerated. This ground has been addressed in
paragraph
34 supra.

 

[38] 
The arbitrator found that on “humanitarian
grounds’ the applicant was required to
take steps to ascertain their whereabouts.
This is an unreasonable finding and is not
founded in law. The evidence of Tlou, who was the ER assistant of the
applicant, where she testified that she tried to contact
the next of
kin numbers provided by Mazambane, without success, was not
challenged by the respondents. This ground of review is
upheld.

 

[34] 
The third ground of review is that the
retrospective reinstatement of the respondents were unreasonable. It
is common cause that
the respondents were
unable to render their services from 26/28
November 2018 until 14 March 2020 but the arbitrator reinstated them
for this period.
This finding is unreasonable and
this ground of review is upheld.

 

[35] 
The fourth and fifth ground of review is
repetitive and should be read with the second and first ground of
review, respectively.

 

[36] 
With regards to the issue of consistent
application of the rule, the arbitrator did not deal with it in the
award and it is not
a ground of review pleaded before me. The
respondents raise it very briefly in their answering affidavit in
conclusion. It is not
necessary to deal with this issue as it is not
properly before this Court.

 

[36]  I have
considered the case law submitted by the respondents and I do not
consider the legal principles applicable to
the facts of this case.

 

Conclusion

 

[49] 
The applicant has merits in their grounds
of review raised and there is a basis for this Court to interfere
with the findings of
the arbitrator.

 

[50] 
The arbitrator failed to evaluate the issue
in dispute, evaluate the evidence and the
probability of versions and came to an unreasonable decision.

 

[51] 
The common cause facts were that the
respondents were absent from work without permission for more than
seven days.

 

[52] 
There is a rule in the workplace confined
to a desertion policy that if an employee fails to report to work for
more than seven
consecutive days, the employee is deemed to have
deserted his workplace.

 

[53] 
The respondents were aware of this rule and
the reasonableness of this rule. The applicant has established that
the arbitrator’s
findings was a decision that a reasonable
decision maker could not reach on considering the totality of
evidence and not piecemeal.

 

[52] 
The arbitrator’s decision is
disconnected from the evidence presented. The dismissals of the
respondents were substantively
fair.

 

Costs

 

[53] 
It is trite that cost do not follow the
result in this Court.

 

[54] 
This is a matter where the interest of
justice will be best served by making no
order as to costs.

 

[55] 
In the premises, I make the following
order.

 

Order

 

1. 
The review application is upheld.

 

2. 
The award
by the
arbitrator dated
16 September
2021 under
case number
NWRB2846-20 is hereby reviewed and set
aside.

 

3. 
The award is replaced with an order that
the dismissal of the respondents were
substantively fair.

 

4. 
There is no order as to costs.

 

Asmall AJ

Acting Judge of the
Labour Court of South Africa

 

Appearances:

 

For the Applicant: Adv
Ngwenya Instructed by: Solomon Holmes Attorneys

 

For the First Respondent:
Advocate Cook Instructed by: AMCU

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