Motshwene Operations v NUMSA obo Desmond Mackay and Others

Mr Desmond Mackay, an employee of Motshwene Operations and a member of NUMSA, was dismissed for gross dishonesty and attempted fraud after claiming severance pay from the employer, which he alleged had not been paid when he was retrenched nine years earlier by an associated entity, Cochrane Steel. Mackay lodged grievances and referred a severance pay dispute to the Metal and Engineering Industries Bargaining Council, where a commissioner found that the severance pay had been paid. Thereafter, Motshwene Operations charged and dismissed him for dishonesty. Mackay referred an unfair dismissal dispute to the bargaining council, and the arbitrating commissioner (Monice Roodt N.O.) found the dismissal substantively and procedurally unfair, ordering reinstatement with retrospective effect and backpay. The employer conceded procedural unfairness but sought to review and set aside the award on the basis that the commissioner failed to properly evaluate disputed evidence and probabilities.

The arbitration award was reviewed and set aside in its entirety and substituted with an order that the dismissal was substantively fair. The employer was ordered to pay Mr Mackay compensation equivalent to five months’ salary for procedural unfairness. No order as to costs was made.

The judgment reinforces the duty of arbitrating commissioners to properly resolve disputes of fact by assessing credibility, reliability, and probabilities. It confirms that failure to evaluate material evidence renders an award reviewable under section 145 of the LRA and clarifies that reinstatement is not competent where a dismissal is unfair only on procedural grounds.