An employee who was dismissed for dishonesty and misrepresentation after erroneously using “dismissal” instead of “suspended” during a dispute with his employer had his dismissal declared unfair and was reinstated by the Labour Court in Johannesburg.

E Tlhaganyane was employed by Assmang Limited-Blackrock Mine as a shift supervisor. On July 20, 2017, he was suspended on allegations of stealing the employer’s disciplinary records.

Following an investigation, it was established that there was insufficient evidence to prove Tlhaganyane’s involvement in the alleged theft. Subsequently, the suspension was lifted.

Unhappy with the theft allegations, Tlhaganyane lodged a grievance in accordance with Assmang’s grievance policy.

He contended that the employer discriminated against him by accusing him of stealing the disciplinary records.

However, after an investigation, Assmang concluded that Tlhaganyane was not discriminated against.

Disenchanted, Tlhaganyane instructed his attorney to issue a summons against Assmang, alleging defamation of character.

Unfortunately, in the summons, the attorney mistakenly stated that Tlhaganyane had been “dismissed” instead of “suspended.”

Consequently, Assmang charged Tlhaganyane with dishonesty and misrepresentation for the inaccurate details in the summons.

After an internal hearing in April 2019, Tlhaganyane was dismissed for dishonesty and misrepresentation.

The mining company stated that dishonesty and misrepresentation are serious transgressions that significantly impact the employer-employee relationship.

Tlhaganyane initiated an internal appeal, but it was unsuccessful. In May 2019, the Association of Mineworkers and Construction Union (Amcu), on behalf of Tlhaganyane, referred the dispute to the Commission for Conciliation, Mediation, and Arbitration (CCMA).

The arbitrator at the CCMA ruled that the dismissal was both substantively and procedurally fair, considering the charges of dishonesty and misrepresentation.

The matter was then brought before the labour court, where Amcu argued that the commissioner had made gross irregularities in finding that Assmang had the right to discipline Tlhaganyane.

Amcu further stated that the commissioner failed to acknowledge the significance of Tlhaganyane’s evidence. It was revealed that Tlhaganyane’s attorney had, under oath, stated that he had filed and served the summons without proper consultation due to Tlhaganyane’s work schedule.

Tlhaganyane later informed his attorney that the content of the particulars of claim regarding dismissal was incorrect.

Acting Judge Smanga Sethene found it surprising that Assmang had instituted disciplinary charges against Tlhaganyane solely based on the mistaken reference to dismissal instead of suspension in the particulars.

Sethene determined that the arbitrator had committed a reviewable irregularity by making a finding that lacked supporting evidence. He stated, “…there is no evidence to support the allegations, there can be no fair reason to dismiss. The dismissal becomes substantively unfair…There was not even a shred of evidence that the employee had any intention to allege that he had been dismissed when he was merely suspended.”

Sethene ordered that Tlhaganyane be reinstated with immediate effect from the date of his dismissal and receive all the remuneration he would have earned had he not been dismissed.

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