Mr van Tonder was dismissed by Sibanye Stillwater for misconduct after he had allowed several employees to face a formal charge of misconduct or submerge their heads in a fishpond on Sibanye’s premises.. The CCMA found that his dismissal was substantively and procedurally fair, whereafter Mr van Tonder took the commissioner’s award on review. The Labour Court held that Mr van Tonder failed to prove that the practice of submerging employees’ heads into a fishpond was customary. The Court also agreed with the CCMA that there was an established rule in the workplace and that the sanction of dismissal is appropriate. Mr van Tonder’s application for review was subsequently dismissed.

Van Tonder v Sibanye Stillwater Ltd and Others (JR 651/20) [2023] ZALCJHB 265 (19 September 2023)

Case summary

Mr van Tonder, the applicant and former employee of the respondent, brought a review application to set aside a CCMA arbitration award which stated that the applicant’s dismissal by Sibanye Stillwater (“Sibanye”) was substantively and procedurally fair.

Sibanye employed Mr van Tonder from 12 January 1987 as an engineering superintendent at its Kloof Four Shaft. He was responsible for the supervision and discipline of several employees, including the complainants.

On 4 October 2018, the complainants reported late for a safety meeting. Mr van Tonder, who felt disrespected, instructed them to report to his office for appropriate disciplinary action. As a form of discipline, Mr van Tonder allowed them to choose between facing a formal charge of misconduct or submerging their heads into a fishpond on Sibanye’s premises. The complainants submerged their heads into the fishpond, while some of their colleagues took photos and videos of them.

The employees felt embarrassed and belittled by this and, therefore, lodged a formal grievance with Sibanye against Mr van Tonder. Sibanye charged Mr van Tonder with misconduct. Mr van Tonder denied that he committed any act of misconduct, as the practice and tradition of submerging the heads of employees or throwing them into the fishpond had existed within Sibanye for decades.

Sibanye denied Mr van Tonder’s contention that there was a well-established custom to submerge employees’ heads into a fishpond as an alternative to formal disciplinary action. Sibanye submitted that its disciplinary code, which came into effect on 1 September 2013, governed all its disciplinary processes.

Mr van Tonder contended that the commissioner failed to apply his mind to and ignored the relevant evidence. He alleged that the commissioner did not apply the law correctly, thus acting irregularly and reaching a conclusion to which a reasonable commissioner would not have come. Mr van Tonder contended that the commissioner failed to apply his mind to his witnesses’ evidence, who confirmed that, by allowing and condoning the complainants’ submergence into the fishpond, he was adhering to a well-established custom that Sibanye had been fully aware of for years.

The Labour Court (“the Court”) held that it had to determine whether the practice was customary. The Court held that a practice must meet three requirements for it to be a custom. Firstly, it must be certain. Secondly, it must be uniformly observed for an extended period. Thirdly, it must be reasonable. During the arbitration proceedings, the applicant failed to prove the that the practice was indeed a custom.

The Court further considered whether there was a rule established in the workplace. The Court held that it is apparent from reading Sibanye’s disciplinary code that it replaces all the previous disciplinary codes, policies and procedures, and it seeks to create certainty and consistency concerning the procedures to be followed to discipline employees. It was clear, as from 1 September 2013, that the code applied to all issues of discipline at Sibanye. Mr van Tonder’s contention that Sibanye created the rule after the event on 4 October 2018 was, therefore, without merit. The Court held that there was a lawful rule in place and submerging employees in a fishpond as an alternative to formal discipline was contrary.

With regard to the sanction of dismissal, the commissioner took into account the importance of the rule and the gravity of its contravention, and found that being in a position of trust, Mr van Tonder was obliged to protect employees from behaviour that impaired their dignity. Mr van Tonder contended that the mere instruction never to allow the submergence of employees into the fishpond ever again would have been an appropriate sanction against him. He, consequently, stated that his dismissal was harsh.
The Court agreed with the commissioner’s finding that Sibanye could not be seen by its international partners as promoting and associating itself with conduct that humiliates and degrades its employees. As a result, the commissioner found no reason to interfere with the employer’s sanction of dismissal.

The Court held that the commissioner’s finding was fair, and the application for review was subsequently dismissed.

Written by Labour Guide