Sibanye Gold Limited v Commission for Conciliation, Mediation and Arbitration and Others

Mr Israel Hlophe was employed by subsidiaries of Sibanye Gold Limited from 2013 and, in June 2017, commenced employment with Rand Uranium (Pty) Ltd. On 28 June 2017 he was appointed to act as a Shift Boss on a temporary basis and received an acting allowance. Following a section 189A LRA consultation process, he was retrenched on 30 October 2017. The retrenchment agreement provided severance pay of two weeks’ pay per completed year of service and one month’s notice pay, calculated on his basic salary. Sibanye calculated severance and notice pay excluding the acting allowance. Mr Hlophe referred a dispute to the CCMA, where the commissioner found that the acting allowance should be included in the calculation. Sibanye brought a review application to the Labour Court.

The arbitration award was reviewed and set aside to the extent that it included the acting allowance in the calculation of severance and notice pay. The award was substituted with an order dismissing Mr Hlophe’s claim. No order as to costs was made.

The case reaffirms that section 41 of the BCEA establishes only a minimum severance entitlement and does not apply where parties have agreed, through consultation, to severance pay above the statutory minimum. It underscores the primacy of retrenchment agreements and limits the scope of CCMA commissioners’ powers when interpreting agreed severance packages.