The Johannesburg Labour Court’s ruling in Sibanye Rustenburg Platinum Mines v Commission for Conciliation, Mediation and Arbitration has sparked debate on the balance between workplace policies and the complexities of personal circumstances that can lead to employee absences.
This case revolves around the dismissals of two employees, identified only as Messrs Totswana and Mazambane in the judgment, who were terminated for desertion after being absent for over 16 months due to incarceration. Totswana was employed by Sibanye as a rock drill operator from February 2007, while Mazambane worked as a shift controller since December 2006, both holding critical operational roles.
Desertion under workplace policies
The events leading to their dismissal began in 2018 when the two employees failed to report to work. Under the company’s Human Resources procedure on desertion, employees are deemed to have deserted their roles if absent for seven consecutive working days without notification. The applicant’s attempts to contact their next of kin proved futile, and both were dismissed in December of that year.
By March 2020, the employees returned to work, only to discover that their termination had been upheld. They contested the decision through the Commission for Conciliation, Mediation and Arbitration (CCMA), which ruled in their favor, deeming the dismissals substantively unfair and ordering retrospective reinstatement.
However, Sibanye Platinum Mines sought a review of this ruling, arguing that the arbitrator had misdirected the evaluation of evidence, particularly regarding the employees’ understanding of company policy and their awareness of the consequences of their absence.
Accountability and policy compliance
In his judgment, Judge A Asmall emphasised the importance of adherence to workplace policies. He acknowledged that while failing to inform the employer of their incarceration was unfortunate, it did not absolve them of responsibility for their prolonged absence. The ruling reaffirmed that awareness of a policy and deliberate non-compliance constitutes a breach of contractual obligations.
Judge Asmall stated, “The award by the arbitrator dated 16 September 2021 is hereby reviewed and set aside,” determining the dismissals to be substantively fair.
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