The applicant approached the Labour Court to set aside an arbitration award in which the employees’ dismissal was found to be substantively unfair. The employees were dismissed on the basis of derivative misconduct in that they assisted in carrying food and materials to illegal miners. The applicant’s evidence was general and could not pass the test for derivative misconduct. The application for review was, therefore, dismissed.

Tarsistep Group (Pty) Ltd v AMCU obo Sonwabile and Others (JR 1950/20) [2023] ZALCJHB 260 (15 September 2023)

Case summary

The applicant approached the Labour Court (“the Court”) in order to set aside an arbitration award that the dismissals of the respondent employees were substantively unfair.

Members of AMCU were dismissed in November 2019 for derivative misconduct. They rendered services at the Evander Gold Mine in Mpumalanga and the allegations levelled against them were serious. The applicant’s case against the individual respondents was premised upon derivative misconduct.

The respondent employees were dismissed after an incident which occurred on 16 October 2019, wherein it was alleged that the employees assisted and participated in illegal mining activities through derivative misconduct. It was alleged that they had transported food and supplies to illegal miners, and had knowledge of strategic positions.

The real perpetrators were in a mine cage of the applicant and provided material support to illegal miners. When the cage was brought back up to the surface, the perpetrators dispersed from the cage and essentially hid in the crowd of other gathering miners. Their identification was not easy and required a rigorous level of investigation to identify the culprits. The Court held that it appeared from the evidence that the investigation was not properly conducted. The perpetrators stood hidden in the crowd or perhaps some were still in the cage. The cage consisted of two decks, which was an important premise for the question regarding the fairness of the dismissals, which the commissioner took into account. Approximately 50 employees can be carried on each deck with both decks taking 100 employees. Of those 100 employees, some were contractors, leaving 41 employees of the employer. Of the 41 employees, only 16 were dismissed.

The Court held that the commissioner understood the issue before him. At arbitration, no witness for the applicant was able to identify the individual respondents as having been inside the cage in which the food was located on 16 October 2019. On a reading of the evidence, the applicant had been unable to prove at arbitration that the individual respondents were in the cage that was brought back up to the surface. This evidence was lacking and is critical in a case of derivative misconduct.

The Court referred to the record of enquiry where the commissioner stated, “So the long and short of it is that everyone who was identified as having been in the cage, that person was suspended, charged and dismissed.” The witness for the applicant confirmed that this was indeed the case and the commissioner responded, “Okay. Beautiful … ”

The Court stated that the difficulty with the applicant’s evidence was that it was general, and there was no evidence linking any of the individual respondents to being in the cage at the time it was brought to the surface. The Court held that their having been in the general area of the cage is not a basis for their dismissal. The Court further held that it was essential that it had been established that the respondents were actually in the cage when it came to the surface, and the commissioner clearly understood this.

The Court reiterated the two factors set out by the Constitutional Court in the case of National Union of Metalworkers of South Africa obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Limited and Others [2019] ZACC 25; (2019) 40 ILJ 1957 (CC), i.e., the applicant must show that the probable inference is that each employee was present when the misconduct was committed, and the applicant should have been able to identify those who committed the misconduct. The applicant in this matter failed to prove both of these factors.

The Court, therefore, concluded that the commissioner’s finding that the dismissals were unfair cannot be faulted on review. So, the applicant’s claim was dismissed.

Written by Labour Guide