by Aug 28, 2023Employment

At Sibanye Platinum Mine, specific zones are designated as off-limits for items (regarded as contraband) such as cellphones, due to the potential explosion risks which these items pose.

Mr. Motswadi, the employee in question, acknowledged that although he hadn’t intended to do so, he had entered a restricted area with his cellphone. A notice board at the entrance of the lamp room clearly informed employees about the prohibition of such items. Consequently, Mr. Motswadi was dismissed for breaching the company rule regarding possession of contraband within demarcated non-contraband zones. AMCU instituted an application to review and set aside the arbitration award issued by the CCMA arbitrator, who upheld Mr Motswadi’s dismissal as fair.

On review, in the recent judgment of AMCU obo Motswadi v CCMA & Others, the Labour Court considered whether the arbitrator’s finding that dismissal was an appropriate sanction was reasonable what has been termed a “penalty review”.

The Court held that the proper approach is for the arbitrator to take into account: the totality of circumstances, the employer’s reasons for imposing the sanction of dismissal and the basis of the employee’s challenge to the dismissal. Other relevant factors include any harm caused by the employee’s conduct, whether additional training and instruction would result in the employee not repeating the misconduct and the effect of dismissal on the employee and his or her long service record. The arbitrator does not consider afresh what he or she would do in the same circumstances; the arbitrator is required to decide, without any deference to the decision of the employer, whether what the employer did was fair.

The evidence presented underscores that contravening the contraband rule is a serious offence that typically leads to dismissal. This rule is in place to meet stringent safety standards within the inherently hazardous mining industry, aiming to prevent injuries and fatalities. Mr. Motswadi was well-informed about the rule and its implications for both colleagues and Sibanye’s operations. Given the rationale behind the rule and its role in managing risks within a perilous work environment, the arbitrator’s decision was reasonable. Consequently, the review application was dismissed and the fairness of Mr Motswadi’s dismissal upheld.