AEL Mining Services Ltd v Sishonga and Others

Patrick Sishonga was employed by AEL Mining Services Ltd as an Operator from 10 September 2011. He was charged with misconduct described as theft, in that he allegedly assisted a co-employee, George Masindi, to remove harness (blasting) wires from the Mogalakwena Mine site on 15 June 2017 for personal gain. Masindi removed the wires and was dismissed for theft. Sishonga denied participating in the removal but admitted knowledge of Masindi’s intention. He was dismissed after a disciplinary hearing. At arbitration under the NBCCI, the commissioner found the dismissal substantively unfair (but procedurally fair) on the basis that Sishonga did not commit theft, ordered reinstatement, and awarded R165 000 back pay. AEL Mining Services Ltd brought a review application under section 145 of the LRA.

The arbitration award was reviewed and set aside. The matter was remitted to the NBCCI to be heard de novo before a different commissioner. No order as to costs was made.

The case reaffirms Labour Court jurisprudence on section 145 reviews, particularly that commissioners must determine the true nature of the dispute and not be constrained by the label used in a charge sheet. It underscores that ignoring material evidence and misconceiving the enquiry constitute gross irregularities justifying review, and that disciplinary charges need not be drafted with criminal-law precision if the employee understands the allegations.