Glencore Holdings (Pty) Ltd and Another v Sibeko and Others (JA16/2016, 2013/JR2189) [2017] ZALAC 65; [2018] 1 BLLR 1 (LAC); (2018) 39 ILJ 138 (LAC) (1 November 2017)

Glencore Holdings (Pty) Ltd and Another v Sibeko and Others (JA16/2016, 2013/JR2189) [2017] ZALAC 65; [2018] 1 BLLR 1 (LAC); (2018) 39 ILJ 138 (LAC) (1 November 2017)

The Labour Appeal Court held that the arbitrator erred in refusing reinstatement based on Sibeko's conduct during the arbitration proceedings. Section 193(2)(b) of the LRA only permits consideration of circumstances up to the point of dismissal, not subsequent conduct. The Court found that Sibeko's role as a dozer driver was not affected by his behaviour during arbitration, and thus reinstatement was not impracticable under section 193(2)(c). The Labour Court was correct to set aside the arbitrator's award and substitute reinstatement as the remedy. The appeal was dismissed with costs.

Citation
[2017] ZALAC 65
Parties
Appellant: Glencore Holdings (Pty) Ltd; Appellant: Xstrata Coal South Africa; Respondent: Gegi Joseph Sibeko; Respondent: Wilfred Noka Nkgoeng N.O.; Respondent: Commission for Conciliation Mediation and Arbitration
Court
Labour Appeal Court
Jurisdiction
South Africa
Judgment Date
1 November 2017
Case Number
JA16/2016
Procedural Posture
Civil Appeal / Appeal From Labour Court Judgment Substituting Reinstatement for Compensation After Review of Arbitration Award
Outcome
Appeal dismissed; Labour Court judgment upholding reinstatement confirmed.
Judges
Waglay, Coppin, Sutherland
Legal Topics
Unfair Dismissal, Reinstatement, Section 193 Lra, Review of Arbitration Award
Labour Law Civil Procedure Unfair Dismissal Reinstatement Section 193 Lra Review of Arbitration Award

Case Brief

Summary, issues, holding and outcome

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Parties

Glencore Holdings (Pty) Ltd

Appellant

Xstrata Coal South Africa

Appellant

Gegi Joseph Sibeko

Respondent

Wilfred Noka Nkgoeng N.O.

Respondent

Commission for Conciliation Mediation and Arbitration

Respondent

Procedural Posture

Civil Appeal / Appeal From Labour Court Judgment Substituting Reinstatement for Compensation After Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitrator was correct to refuse reinstatement as a remedy for substantively unfair dismissal.
  2. 2 Whether post-dismissal conduct during arbitration can justify a departure from the primary remedy of reinstatement under section 193(2) of the LRA.
  3. 3 Whether reinstatement was impracticable in terms of section 193(2)(c) of the LRA given the employee's conduct.

Ratio Decidendi

The Labour Appeal Court held that the arbitrator erred in refusing reinstatement based on Sibeko's conduct during the arbitration proceedings. Section 193(2)(b) of the LRA only permits consideration of circumstances up to the point of dismissal, not subsequent conduct. The Court found that Sibeko's role as a dozer driver was not affected by his behaviour during arbitration, and thus reinstatement was not impracticable under section 193(2)(c). The Labour Court was correct to set aside the arbitrator's award and substitute reinstatement as the remedy. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed; Labour Court judgment upholding reinstatement confirmed.

Orders

  • The appeal is dismissed with costs.