Samancor Chrome Limited v NUMSA obo Portia Mokoena

The first respondent, Portia Mokoena, was employed as a Human Resources Practitioner by Samancor Chrome Limited from 1 April 2015. On 17 May 2019, after taking several days off due to her child being sick, a colleague (Sydney Shabangu) asked what was wrong with her child. She expressed discomfort and lodged a grievance alleging he was interfering in her personal family life. On 22 May 2019, the employee allegedly approached two contract cleaners (Sarah Mahlangu and Sibongile Hamule) and requested them to be witnesses at her grievance hearing, offering to write down what they should say and promising them something in exchange. The cleaners had no knowledge of the incident and reported this to Ms Butshe Makena (another HR Practitioner). The employee was charged with dishonesty for attempting to persuade contractors to provide false testimony. The disciplinary hearing was set for 30 May 2019 but was postponed multiple times (24 July, 6 August, 12 August, 9 December, 12 December 2019, and 14 January 2020) due to the employee's non-attendance, claiming illness or her child's illness. After warnings, the hearing proceeded in her absence on 14 January 2020. She was found guilty and dismissed on 22 January 2020. The employee referred an unfair dismissal dispute to the Metal and Engineering Industries Bargaining Council. The commissioner found the dismissal both substantively and procedurally unfair and ordered reinstatement with payment of R378,749.99. The arbitration award was issued on 14 November 2020. The applicant launched a review application on 6 January 2021.

• Whether the commissioner committed a gross irregularity by misconstruing and/or disregarding material evidence
• Whether the commissioner's assessment of witness credibility was reasonable and complied with established principles for resolving factual disputes
• Whether the commissioner properly discharged the onus of proof under section 192(2) of the LRA
• Whether the commissioner's finding on procedural unfairness (relating to failure to apply poor attendance policy) was reasonable
• Whether the commissioner properly applied section 193(2) of the LRA when ordering reinstatement
• Whether the arbitration award falls within the band of reasonableness

1. The arbitration award (MEMP963) dated 14 November 2020 issued by the second respondent is reviewed and set aside. 2. The arbitration is remitted back to the third respondent (Metal and Engineering Industries Bargaining Council) to be heard de novo before another commissioner other than the second respondent. 3. No order as to costs.

1. A commissioner commits a gross irregularity when failing to consider material evidence of key witnesses whose testimony corroborates other witnesses, and such failure renders the outcome unreasonable. 2. Commissioners must apply the proper approach to resolving factual disputes as established in SFW Group v Martell by assessing the credibility, reliability and probabilities of all parties' evidence. Accepting one party's version at face value while subjecting only the other party's evidence to scrutiny constitutes a gross irregularity. 3. Contradictions in witness testimony do not automatically warrant rejection of evidence. The test is whether the essential features of the witnesses' story are true, taking into account the nature, number and importance of contradictions and their bearing on other evidence (Santam v Biddulph, S v Mkohle). 4. When ordering reinstatement under section 193(1) of the LRA, a commissioner must apply their mind to the factors in section 193(2) and provide reasons why reinstatement is appropriate despite any evidence of an intolerable employment relationship. 5. An arbitrator misconceives the nature of the enquiry and arrives at an unreasonable outcome when making findings on procedural unfairness based on policies or procedures that were not pleaded, argued, or relevant to the actual charges faced by the employee. 6. A result is unreasonable if it is one that a reasonable arbitrator could not reach on all the material before them, particularly where material errors of fact render the outcome unreasonable (Herholdt v Nedbank).

The Court made several non-binding observations: 1. At paragraph [36], the judge observed: "It however appears that the commissioner dismally failed to follow the proper approach in resolving factual disputes. In most instances, arbitration awards which are subject to review, the commissioners are not able to properly resolve the factual disputes between the parties." This reflects judicial concern about a systemic problem with commissioners failing to properly apply established principles for resolving factual disputes. 2. At paragraph [53], the judge noted: "Although reinstatement is a primary remedy in terms of the LRA, a commissioner considering ordering reinstatement must apply his/her mind to the provisions of section 193(2) and clearly provide reasons why section 193(2)(a-d) is not applicable and hence the order of reinstatement." This provides guidance on the proper approach to reinstatement orders, emphasizing the need for reasoned consideration of the statutory factors even though reinstatement is the primary remedy. These observations provide guidance to commissioners on best practices and common pitfalls, though they are not strictly necessary for the decision in this case.

This case is significant in South African labour law for several reasons: 1. It reinforces the standards for reviewing arbitration awards under section 145 of the LRA and the test for unreasonableness established in cases like Gold Fields Mining and Herholdt v Nedbank. 2. It emphasizes the fundamental duty of arbitrators to properly resolve factual disputes by applying the established test in SFW Group v Martell, requiring assessment of credibility, reliability and probabilities of all parties' evidence, not just one party. 3. It clarifies that contradictions in witness testimony do not automatically render evidence unreliable - arbitrators must assess whether contradictions are material and whether the essential features of the story remain true (Santam v Biddulph, S v Mkohle). 4. It demonstrates that failure to consider material evidence of key witnesses constitutes a gross irregularity that can render an award unreasonable. 5. It highlights that arbitrators ordering reinstatement must properly apply their minds to section 193(2) of the LRA and provide reasons why the circumstances do not make continued employment intolerable. 6. It shows that arbitrators must confine themselves to the actual issues in dispute and cannot introduce new grounds (like the poor attendance policy) that were not pleaded or argued. The judgment serves as an important reminder to CCMA and bargaining council commissioners of their obligation to conduct thorough, balanced analyses of all evidence when resolving factual disputes.