National Union of Mineworkers v Samancor Limited (Tubatse Ferrochrome)

The second appellant (Mr Maloma) was employed by Samancor as a furnace operator from August 1996. On 20 March 2006 he was arrested on suspicion of robbery but the charge was withdrawn 14 days later. He was arrested again on the same charge on 20 May 2006 and detained for approximately 140 days until released on bail. Meanwhile, on 30 May 2006 (ten days after his second arrest), Samancor terminated his employment by letter sent to the police station, which he did not receive. There was no hearing before termination. After his release, a post-dismissal hearing was held but Samancor decided not to reverse the termination. Mr Maloma had worked for Samancor for almost ten years.

• What is the appropriate standard for reviewing an arbitrator's award under section 145 of the Labour Relations Act?
• Whether the arbitrator's award in this case was one that a reasonable decision-maker could not reach
• Whether an employee's inability to work due to imprisonment constitutes incapacity or absenteeism as a reason for dismissal
• Whether the dismissal was substantively and procedurally fair
• Whether the Labour Appeal Court properly applied the review standard or improperly treated the matter as an appeal on the merits
• Whether the Supreme Court of Appeal should interfere with a Labour Appeal Court decision

The appeal was upheld with costs. The order of the Labour Appeal Court was set aside and substituted with an order dismissing the appeal with costs, thereby restoring the arbitrator's award ordering reinstatement of Mr Maloma with effect from 2 November 2006.

An arbitrator's award may only be set aside on review if it is one that a reasonable decision-maker could not reach (applying Sidumo v Rustenburg Platinum Mines Ltd and Carephone (Pty) Ltd v Marcus NO). A reviewing court may not interfere with an arbitrator's award merely because it considers the award to be wrong or because it would have reached a different conclusion on the merits. When reviewing an arbitrator's award, courts must confine themselves to the limited grounds for review and not treat the matter as an appeal on the merits. In assessing the fairness of dismissal for incapacity due to imprisonment, relevant considerations include whether the employee was at fault, whether the employee occupied a key position necessitating immediate dismissal, and whether temporary arrangements could have been made to accommodate the employee's absence.

The Court observed that while ordinary principles of contract permit termination when one party becomes unable to perform, in employment law the question remains whether it was fair in the circumstances for the employer to exercise that election. The fact that an employee is not at fault for their inability to perform is a consideration that should properly be brought to account in assessing fairness. The Court noted that whether imprisonment constitutes 'incapacity' or 'absenteeism' under section 188(1) of the Labour Relations Act may be a matter of debate, but suggested that incapacity might include imprisonment. However, the Court indicated that the categorization was not material in this case as the arbitrator would have reached the same conclusion regardless of the categorization. The Court acknowledged the dilemma faced by employers when they do not know when an employee will be capable of resuming duties, but emphasized that there is no universal answer and each case depends on its particular facts. Nugent JA noted that he expressed no view on whether he would have reached the same conclusion as the arbitrator, emphasizing that this was not the relevant question on review.

This case is significant for reinforcing the limited scope of review of arbitration awards in labour disputes. It clarifies that courts may not substitute their own views on the merits when reviewing arbitrator awards but must apply the test from Sidumo v Rustenburg Platinum Mines Ltd: whether the award is one that a reasonable decision-maker could not reach. The judgment emphasizes the proper distinction between appeal and review functions, particularly in the specialized labour law context. It also provides guidance on when the Supreme Court of Appeal will exceptionally intervene in Labour Appeal Court decisions despite the general principle in Fry's Metals that further appeals should be rare given the specialized nature of the Labour Appeal Court and the need for expedition in labour disputes. The case illustrates that fundamental procedural failures, such as misconceiving the nature of the jurisdiction being exercised, may warrant SCA intervention.