Engen Petroleum Ltd v National Bargaining Council for the Chemical Industry & others [2026] ZALCJHB 362

Date of Judgment & Seat of Court: 21 September 2026, Labour Court, Johannesburg

Case No: JR851/2023

Name of Judge(s): Myburgh AJ

Summary of Factual Matrix:

Mr Sibaya, a bulk truck operator and shop steward at Engen's Alrode depot, was dismissed on 25 April 2022 after being found guilty of three charges relating to his timekeeping in January 2022: being absent without leave on 27 January, being late on 11 occasions (while on a current written warning for the same misconduct), and dishonestly claiming an hour's overtime. A bargaining council arbitrator found the dismissal substantively unfair and ordered his retrospective reinstatement.

On charge 1, the employer's lay representative relied throughout on an email from a supervisor, Mr Mamosebo, which the arbitrator never ruled upon until his award, when he held it to be inadmissible hearsay and drew an adverse inference from the failure to call its author. On charge 2, he found Mr Sibaya not guilty because a co-passenger, Mr Kruger, had not been charged. Engen applied under s 145 of the Labour Relations Act to review and set aside the award; the union (condonation for its late answering affidavit being sought) and Mr Sibaya opposed.

Summary of Findings:

[3] ‘Having perused the papers, the court is satisfied that the union has shown good cause for the grant of condonation, which is thus granted.’

[9] ‘The award (and arbitration proceedings) suffers from two material reviewable defects.’

[12] ‘The court is persuaded that the commissioner committed a gross irregularity in failing to rule on the admissibility of the email when it was first introduced, and then allowing it to remain ‘in play’ for the duration of the arbitration, only to exclude it on account of it being hearsay, and draw an adverse inference from the company’s failure to call Mr Mamosebo, out of the blue in his award. The arbitrator would have known full well from the events of the arbitration that Ms Kwetsi (a lay litigant) considered the email to constitute admissible evidence and that Mr Mamosebo was probably not called on that basis. Had he explained things and ruled on the admissibility of the email when it was first introduced into evidence, as he was obliged to do, the company would have changed its strategy, according to Ms Kwetsi. To not do so and allow the company to labour under the misapprehension that it did for the duration of the arbitration, only to pull the proverbial rug out from underneath it in his award was patently unfair. The matter is analogous to the LAC’s judgment in Exxaro Coal (Pty) Ltd & another v Chipana & others,[3] where the award was set aside.’

[13] ‘The second material reviewable defect is the arbitrator’s finding that Mr Sibaya was not guilty of charge 2 because the company had acted inconsistently in not also charging Mr Kruger. This constitutes a material error of law, because inconsistency goes to sanction, not guilt. Practically speaking, the fact Mr Kuger was not charged did not have a bearing on whether Mr Sibaya came late for work – it had a bearing (potentially) on the issue of sanction. And as a result of the error, the arbitrator never got around to deciding whether the late coming was worthy of sanctioning and, if so, what the sanction ought to have been in the light of the fact that Mr Sibaya was on a valid written warning for the same misconduct committed in March 2021 (when he was late on 10 occasions during that month).’

[14] ‘In circumstances where the company was deprived of a fair hearing as a consequence of the commissioner’s handling of Mr Mamosebo’s email in relation to charge 1, the ordinary remedy is that the award should be reviewed and set aside and the matter remitted to the bargaining council for a fresh arbitration – this so as to enable the company to call Mr Mamosebo as a witness. This is so because, as the LAC held in Exxaro Coal, late rulings on the admissibility of evidence resulting in unfairness cannot be undone on review.[4]’

[15] ‘[…] But this is not feasible, because the charges are interlinked – all relating to time-keeping in January 2022. So, for example, a finding that Mr Sibaya was guilty of charge 1 (which stands to be determined afresh with the benefit of the evidence of Mr Mamosebo) may have implications for the determination of sanction overall.’

[16] ‘In the result, the entire award falls to be set aside and the matter remitted to the bargaining council. Given that Mr Sibaya was dismissed as far back as April 2022, this is a very unfortunate situation, and every endeavour should be made to have the matter re-determined as efficiently and expeditiously as possible.’

[17] ‘To this end, the court intends to order that the remitted dismissal dispute be determined by the new arbitrator de novo based on the record of the first arbitration, subject to the company calling Mr Mamosebo as a witness on charge 1 and the union and Mr Sibaya being afforded the opportunity of re-opening their case in response to such evidence. This court has granted similar remittal orders in the past.[5]’

Relief: Condonation was granted for the union's late answering affidavit. The award of 21 March 2023 was reviewed and set aside, and the dispute was remitted for arbitration de novo before a different panellist on the existing record, subject to Engen calling Mr Mamosebo on charge 1 and the respondents being allowed to reopen their case. The council was directed to enrol the matter on an expedited basis. There was no order as to costs.

Judgment on SAFLII