AEL Mining Services Ltd v Sishonga and Others

The first respondent (employee) was employed by the applicant (AEL Mining Services Ltd) from 10 September 2011 as an Operator. On 15 June 2017, he was charged with theft, specifically that he allegedly assisted a co-worker, George Masindi, in removing harness wires (blasting wires) worth approximately R10,000 from Mogalakwena Mine Site in a fraudulent manner for personal gain. Masindi was seen on video footage removing boxes of harness wires and speaking to the employee. Masindi later admitted to taking the wires and informed management that the employee knew about the theft. The employee denied participating in the theft but had given a written statement acknowledging knowledge of Masindi's intentions. The employee was dismissed following a disciplinary enquiry. He referred an unfair dismissal dispute to the National Bargaining Council for the Chemical Industry (NBCCI), which proceeded to arbitration. The commissioner found the dismissal substantively unfair but procedurally fair, and ordered reinstatement plus R165,000 compensation. The applicant launched a review application, which was initially late but condonation was granted.

• Whether the commissioner misconceived the nature of the enquiry by focusing on the definition of theft rather than the actual conduct complained of
• Whether the commissioner failed to apply his mind to the material evidence before him
• Whether the commissioner ignored relevant considerations and took into account irrelevant considerations
• Whether the arbitration award was unreasonable in that no reasonable decision-maker could have reached the same conclusion on the evidence presented
• Whether the commissioner failed to determine the true nature of the dispute between the parties

1. The arbitration award issued by the third respondent under case number LPCHEM46-17/18 is reviewed and set aside. 2. The arbitration is remitted back to the fourth respondent (NBCCI) to be heard de novo before another commissioner other than the third respondent. 3. No order as to costs.

An arbitration award is reviewable where the commissioner: (1) misconceives the nature of the enquiry by focusing on irrelevant technicalities (such as labels in charge sheets) rather than the substance of the conduct complained of; (2) fails to apply his or her mind to material evidence before them; (3) takes into account irrelevant considerations while ignoring relevant considerations; (4) identifies the real issue in dispute but fails to determine it; and (5) thereby arrives at an unreasonable outcome that no reasonable decision-maker could reach on the evidence. In disciplinary proceedings, employers are not required to draft charge sheets with criminal law precision, but must comply with Item 4(1) of Schedule 8 of the Code of Good Practice by ensuring employees reasonably understand the allegations and can defend themselves. A commissioner's focus on the criminal law definition of misconduct terms (like 'theft') rather than the workplace conduct at issue constitutes a gross irregularity warranting review.

The Court noted that there appeared to be an error in the dating of the arbitration award, which was dated 4 June 2017 but could not have been issued on that date as the arbitration proceedings only took place on 23 April 2018 and 29 May 2018, with the commissioner signing the award on 7 June 2018. The Court also observed that Mr. Thole had confirmed during testimony that the applicant's policy did not contain a specific charge relating to 'withholding of information,' though the obligation to report wrongdoing was a common cause factor and the employee was aware of this obligation. The Court emphasized that the existence of the rule requiring employees to report unlawful activity to management was undisputed during the arbitration proceedings.

This case is significant in South African labour law for clarifying the proper approach to reviewing arbitration awards and the conduct of arbitration proceedings. It establishes that: (1) Commissioners must focus on the substance of the conduct complained of rather than the technical label attached to misconduct in a charge sheet. (2) Commissioners cannot ignore material evidence or fail to determine the real dispute between the parties. (3) The standard for disciplinary charges is compliance with Schedule 8 of the Code of Good Practice, not criminal law precision - employees must reasonably understand the allegations and be able to defend themselves. (4) Where a commissioner identifies the real issue but fails to adjudicate it, this constitutes a reviewable irregularity. (5) The case demonstrates the application of the Sidumo/Gold Fields Mining test for unreasonableness in review proceedings, showing that ignoring material evidence, misconceiving the enquiry, and failing to apply the mind properly can render an award unreasonable and subject to review under section 145 of the LRA.