- Engen’s arbitration award ordering the reinstatement of truck operator Ernest Sibaya was set aside because of two errors.
- The arbitrator rejected an email as hearsay only in his final award and wrongly found Sibaya not guilty of repeated lateness because a colleague had not been disciplined for similar conduct.
- The Labour Court ordered a fresh arbitration before a different panellist.
The Labour Court has set aside an arbitration award ordering the reinstatement of Ernest Sibaya, a bulk truck operator dismissed by Engen Petroleum for misconduct relating to his timekeeping.
It found that the arbitrator rejected an email relied on by Engen as hearsay only in his final ruling and wrongly found Sibaya not guilty of repeated lateness because a colleague had not been disciplined for similar conduct.
Email evidence rejected too late
Sibaya worked at Engen’s Alrode depot and was a shop steward for the Chemical, Energy, Paper, Printing, Wood and Allied Workers’ Union.
Engen dismissed him on 25 April 2022 after finding him guilty of three misconduct charges relating to his timekeeping in January that year. The charges concerned an alleged unauthorised absence on 27 January, arriving late for work on 11 occasions and dishonestly claiming an hour of overtime.
The unauthorised absence charge centred on whether Sibaya had obtained permission from supervisor Mr Mamosebo to miss work. Sibaya maintained that Mamosebo had approved the absence and arranged for another employee, Mr Mashaba, to replace him.
Engen relied on an email Mamosebo sent to transport operations supervisor Mr Mhlongo on 13 March 2022. The email stated that Sibaya had not informed Mamosebo of his intended absence and that Mamosebo had not participated in arranging a replacement.
During the arbitration, Engen’s representative, Ms Kwetsi, repeatedly used the email to challenge Sibaya’s version. The arbitrator did not rule on its admissibility when it was introduced. Instead, he declared it inadmissible hearsay in his final award and drew an adverse inference against Engen because the company had not called Mamosebo to testify.
Acting Judge AT Myburgh found that the arbitrator had committed a gross irregularity by failing to rule on the email’s admissibility at the appropriate time.
Kwetsi was a junior employee relations specialist acting as a lay representative and was unfamiliar with the rules of evidence. She explained that she would have called Mamosebo as a witness had the arbitrator ruled on the email when it was introduced.
The judge found that the arbitrator had allowed Engen to rely on the email throughout the proceedings, only to exclude it in his final award. This deprived the company of a fair opportunity to present its case.
Inconsistent discipline did not establish innocence
The second error concerned the charge that Sibaya had arrived late for work on 11 occasions during January 2022, by an average of 15 minutes.
Sibaya admitted arriving late. The arbitrator also noted that Sibaya and fellow truck operator Mr Kruger travelled in the same vehicle and were both late. Engen had charged Sibaya but had not charged Kruger. The arbitrator relied on this inconsistency to find Sibaya not guilty of the charge.
Acting Judge Myburgh found that the arbitrator had wrongly relied on inconsistent discipline to determine guilt. He explained that inconsistency concerns the fairness of the sanction, not whether the employee committed the misconduct. Engen’s failure to charge Kruger therefore did not establish that Sibaya was not guilty.
The arbitrator’s error meant that he did not consider whether Sibaya’s repeated lateness warranted disciplinary action and, if so, what sanction was appropriate. Sibaya was already serving a valid written warning for similar misconduct committed in March 2021, when he had arrived late on 10 occasions.
Fresh arbitration ordered
Judge Myburgh considered whether only the unauthorised absence charge should be referred back for reconsideration. However, the three charges were interconnected because they all concerned Sibaya’s timekeeping in January 2022.
A fresh finding on the unauthorised absence charge could affect the overall assessment of the appropriate sanction. The judge therefore set aside the entire arbitration award.
The Labour Court set aside the arbitration award issued on 21 March 2023 and referred the dispute back to the National Bargaining Council for the Chemical Industry for a fresh arbitration before a different panellist.
Engen may call Mamosebo to testify, while Sibaya and the union may reopen their case in response. The bargaining council was directed to enrol the matter on an expedited basis. There was no order as to costs.
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