Association of Mineworkers and Construction Workers Union obo Maluleke v Commission for Conciliation, Mediation and Arbitration & others [2026] ZALCJHB 377

Date of Judgment & Seat of Court: 7 October 2026, Labour Court, Johannesburg

Case No: JR2130/23

Name of Judge(s): Whittington AJ

Summary of Factual Matrix:

The employee, an administrative assistant with some fourteen years’ service and a clean disciplinary record at Glencore Eastern Chrome Mines, was responsible for updating a transport vendor’s letter of good standing on the mine’s access-control systems. Although he knew that the vendor’s access would expire on 6 January 2023, he went on bereavement leave following the death of the grandfather who had raised him without updating the system or handing the task over. The vendor’s trucks were denied access for almost seven hours until another employee intervened. He was dismissed for gross negligence, while his supervisor, who had granted leave without enquiring about outstanding work, was counselled.

The commissioner upheld the dismissal as substantively fair. On review under section 145 of the LRA, the union contended that the commissioner had failed properly to weigh the bereavement, long service and clean record, had misapplied progressive discipline, had wrongly disregarded inconsistent treatment of the supervisor, and had overstated the seriousness of the omission and the potential loss, so that dismissal was too harsh.

Summary of Findings:

[29] ‘The question on review is whether the commissioner misconceived that enquiry, deprived a party of a fair hearing, or reached a result which no reasonable decision-maker could reach on the material before her. It is not whether this Court would have imposed the same sanction.[7]’

[30] ‘That distinction is particularly important where the complaint concerns the weight attached to mitigation or the appropriateness of dismissal. The award must be read fairly and as a whole. A reviewing court cannot isolate each alleged error, determine the merits afresh and substitute its preferred conclusion. Equally, describing the proceedings as a review does not insulate a material error from scrutiny. Its effect on the enquiry and the outcome must be assessed, both individually and cumulatively.[8]’

[32] ‘The seriousness of the omission must be assessed with that qualification, rather than on an exaggerated account of a complete cessation of all loading.’

[33] ‘It is correctly submitted, on Mr. Maluleke’s behalf, that the absence of actual financial loss is relevant. It also has substance in questioning the precision of the estimated potential loss. The award records the figure as unchallenged, yet Mr. Knoesen was cross-examined about quantification and said that he could not quantify the loss himself, referring the question to the financial manager. It would accordingly be unsafe to treat approximately R7.3 million as an established loss, or as a conclusively proved measure of the risk during the interruption. The review can be determined without accepting that quantum.’

[34] ‘The absence of proved loss does not, however, eliminate misconduct or require a finding of negligence. It remains necessary to assess the foreseeable consequences of the omission and the degree of departure from the standard reasonably expected of this employee.’

[35] ‘A sufficiently marked departure from the reasonable standard may constitute gross negligence even without conscious risk-taking. The test remains demanding and contextual.’

[36] ‘There was evidence from which the commissioner could find a serious departure from the required standard: the task was specifically allocated to Mr Maluleke, its significance had repeatedly been explained, and the expiry was known. He neither attended to the outstanding extension nor alerted a colleague to the particular task before leaving. The ease with which access was eventually restored does not necessarily diminish the importance of carrying out the task in time. Those circumstances permitted a finding of gross negligence, provided that his explanation arising from bereavement was genuinely assessed. The operational consequences alone would not suffice.’

[37] ‘As noted above, bereavement was a substantial mitigating circumstance and the Commissioner was required to consider this. The loss was of a grandfather whom Mr Maluleke regarded as a father, and his evidence described the shock of the news, his distress at work and the practical burden of arranging the funeral. Neither grief nor its effect on concentration requires medical certification before it can be taken seriously. Nor is there an inherent contradiction between forgetting a task and attributing that lapse to grief. To the extent that the Commissioner treated those explanations as mutually exclusive, that reasoning is unsatisfactory.’

[38] ‘Nevertheless, the evidence did not compel a finding that he was incapable of attending to the extension or communicating the outstanding task. His admission that he had not asked his supervisor to take responsibility for it was material to the Commissioner’s assessment of the explanation.’

[39] ‘Here the explanation and its bearing on performance and handover were tested in cross-examination and assessed in the award. The Commissioner’s conclusions may be open to criticism, but the matter is not one in which an unchallenged explanation was simply ignored.’

[40] ‘The progressive-discipline criticism requires closer attention. Ms. Dorey expressly distinguished the standing agenda items from corrective measures. No prior written or final written warning was established, and Mr. Knoesen did not recall a previous failure by Mr Maluleke to update a letter before going on leave. The Commissioner’s references to progressive discipline and the employee committing the same misconduct should therefore not be understood as proof of a disciplinary record which did not exist. Mr. Maluleke’s complaint on this aspect are not devoid of any merit but, as noted above it is also not on its own decisive of the matter.’

[41] ‘The reminders regarding the importance of the task nevertheless remained relevant to knowledge of the duty, the training supplied and the importance attached to compliance. Their evidential value for those purposes must be separated from the erroneous suggestion that formal corrective discipline had already failed. […] A code’s description of gross negligence does not itself determine fairness, but the absence of previous warnings does not invariably preclude dismissal for a first serious offence.’

[42] ‘The question is thus whether the error about progressive discipline materially vitiated the sanction decision. The award did not rest on that consideration alone. It also addressed the employee’s assigned function, the importance of the duty, the interruption of access, his explanation and his failure to arrange a handover. Those were independent considerations arising from the evidence.’

[43] ‘The inconsistency challenge should not be disposed of merely because the minute did not expressly use the word “inconsistency”. The minute placed substantive fairness and the appropriateness of dismissal in issue.’

[44] ‘Glencore’s assertion that it had no opportunity to address inconsistency is therefore too broad. […] The appropriate course here is to assess the Commissioner’s conclusion on the evidence which was heard.[13]’

[45] ‘Ms. Dorey’s responsibility cannot be dismissed as immaterial. She accepted that she had been negligent in not asking about the outstanding tasks, that she had a supervisory responsibility to check performance, and that emergency absences involved shared responsibility. Those admissions undermine an absolute assertion that no other employee bore any responsibility. They do not, however, compel a finding of equal culpability. Mr. Maluleke had the direct allocation, knew the expiry and had not drawn the outstanding extension to anyone’s attention; Ms. Dorey’s lapse concerned supervision and the arrangements made on receiving his leave request.’

[46] ‘The parity principle requires a comparison of materially similar misconduct and circumstances. It does not require identical sanctions merely because two lapses contributed to the same incident. […] The distinction drawn by the Commissioner between direct performance of the allocated task and negligent supervision was a distinction reasonably open on this evidence, even if another Commissioner might have attached greater weight to the supervisor’s responsibility.[14]’

[47] ‘Mr. Maluleke’s length of service and clean record were material considerations, particularly in assessing the prospects of correction. The Commissioner expressly referred to both. […] Nevertheless, recognition of them did not dictate a particular sanction. Experience may mitigate the consequences of dismissal while also informing the standard of care reasonably expected in performing an established and important function.[15]’

[48] ‘Mr. Maluleke’s assistance in supplying contact details while attending to the funeral must also be weighed in his favour. It qualifies any suggestion of complete indifference to the employer’s predicament. Together with the prompt intervention by Ms. Els and the absence of actual loss, it made a lesser sanction a tenable outcome. It did not, however, retrospectively remove the failure to complete or arrange the task before the known expiry. The existence of a reasonable case for a warning does not establish that a finding of fair dismissal lay beyond the permissible range.’

[49] ‘The finding about remorse must be treated with similar care. An employee does not become undeserving of correction merely by disputing the charge or advancing an explanation. Reliance on grief and the supervisor’s role is not, without more, proof that future compliance is impossible. The dictum from De Beers relied upon in the Award concerned an employee’s dishonest conduct and false denial; it should not be applied mechanically to a negligent omission. The conclusion on review need not depend upon treating the employee’s defence as an aggravating circumstance.[16]’

[50] ‘Nor does the absence of express testimony that the trust relationship had irretrievably broken down necessarily render the award reviewable. […] At the same time, that explanation does not authorise an automatic inference from the label “gross negligence”. The inference must be justified by the nature of the duty, the established conduct and the evidence bearing on continued employment.’

[52] ‘On a cumulative assessment, the errors identified do not establish that the Commissioner undertook the wrong enquiry or denied the applicant a fair opportunity to present the material defence. I have considered the result without treating the departmental reminders as previous disciplinary sanctions, without accepting the precise potential-loss estimate, without assuming that the ability to obtain funeral funds disproved grief, and without treating the defence as conclusive proof of an absence of remorse. The remaining evidence still concerns a known and important task, an imminent expiry, an opportunity either to perform it or to seek assistance, no specific handover, and an actual interruption which required remedial intervention.’

[53] ‘As can be seen from the discussion of the matter above, the case for a lesser sanction was not insubstantial. A warning, including a final written warning, might have been a reasonable response to the first established infraction by a long-serving employee affected by bereavement.’

[54] ‘That, however, is not the question which this Court must decide. Having considered the mitigating circumstances together with the seriousness of the allocated responsibility and the evidence concerning the explanation, I am not persuaded that no reasonable commissioner could find the dismissal substantively fair.’

[55] ‘The identified deficiencies do not, singly or cumulatively, make the result untenable. The applicant has therefore not established a basis for reviewing and setting aside the award, and the review application falls to be dismissed.[19]’

[56] ‘Having considered the record as a whole: I am satisfied that the Commissioner identified and determined the substantive dispute before her. Although aspects of her reasoning are open to criticism, the deficiencies identified do not, either individually or cumulatively, establish that she misconceived the enquiry or reached a result which no reasonable decision-maker could reach.’

[57] ‘Mr. Maluleke’s bereavement, long service and clean disciplinary record, together with the absence of actual financial loss, provided substantial grounds for considering a lesser sanction. Those circumstances did not, however, compel that outcome. The evidence concerning his knowledge of the outstanding task, its importance, and his failure either to perform it or arrange assistance before the known expiry provided a reasonable basis for the Commissioner’s finding that dismissal was substantively fair.’

[58] ‘The applicant has accordingly failed to establish a basis for interference under section 145 of the Labour Relations Act. The review application falls to be dismissed and the arbitration award remains undisturbed.’

Relief: The review application was dismissed and the arbitration award upholding the dismissal remained undisturbed. No order as to costs was made.

Judgment on SAFLII