In Sibanye Rustenburg Platinum Mines v Commission for Conciliation, Mediation and Arbitration and Others (JR 2227/21) [2025] ZALCJHB 207 (30 May 2025), the Labour Court revisited the legal character of desertion and clarified its treatment within the framework of misconduct in South African labour law. The judgment reaffirms the employer’s right to dismiss employees who are absent without leave for an extended period, particularly where such conduct contravenes an established workplace rule.
The matter arose following the dismissal of two employees, Messrs Totswana and Mazambane, from operationally sensitive roles within Sibanye’s mining operations. In terms of Sibanye’s Human Resources Procedure on Desertion (the Policy), an employee is deemed to have deserted if they fail to report for duty for seven or more consecutive days without authorisation. Both employees were dismissed in early December 2018 after failing to report for duty over a prolonged period. They reappeared approximately 16 months later and attempted to return to work, only to be informed that their services had been terminated.
Following internal processes, which yielded no relief, the employees, assisted by the Association of Mineworkers and Construction Union (AMCU), referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The arbitrator found in their favour, holding that the employees had not intended to desert but had been incarcerated during their absence, and thus had a reasonable explanation for not reporting for duty. On this basis, the arbitrator found the dismissal substantively unfair and awarded retrospective reinstatement.
On review, the Labour Court set aside the arbitration award, finding the arbitrator’s reasoning to be misdirected and legally flawed. The Court held that the arbitrator erred by centring the inquiry on whether the employees had a reasonable explanation for their absence or intended to return. The true enquiry, the Court emphasised, was whether the prolonged absence constituted misconduct under the applicable disciplinary code.
In this regard, the Court affirmed the binding nature of Sibanye’s desertion policy, to which the employees were contractually bound. There was no dispute that the employees were absent for 16 months without informing their employer and that their conduct fell squarely within the Policy’s definition of desertion. As the Court noted:
“Whether or not the applicant was aware of the incarceration does not alter the fact that the employees were absent for a prolonged period, in contravention of a rule they were fully aware of.”
The Court cited Glencore Operations SA (Pty) Ltd v CCMA and Others [2021] BLLR 1013 (LC) to reinforce the point that the core issue in desertion cases is not the subjective intention of the employee, but whether the conduct i.e. the absence, constitutes a wilful breach of the employment obligation to place services at the disposal of the employer.
Furthermore, the Court rejected the arbitrator’s conclusion that the employer had a humanitarian duty to determine the employees’ whereabouts, noting that Sibanye had in fact attempted to contact the employees’ next of kin. The Court deemed the arbitrator’s expectation legally unfounded and inconsistent with principles of disciplinary fairness.
Significantly, the Labour Court also found the remedy of retrospective reinstatement to be unreasonable, given that the employees had not rendered any services for over a year and a half during their incarceration. Their inability to work during that period fundamentally undermined the appropriateness of retrospective relief.
Legal Significance and Practical Implications
This judgment provides welcome clarity on the legal treatment of absence without leave (AWOL) in South African labour law. It affirms that desertion may properly be dealt with as misconduct, provided there is a clear and consistently applied workplace rule. The decision also illustrates that the employer’s obligation to act procedurally fairly does not extend to investigating the reasons for prolonged unauthorised absence where the rule is well known and enforced.
Employers should ensure that their disciplinary policies define desertion clearly, preferably by specifying the number of days after which unauthorised absence will be deemed desertion. While it is prudent to attempt to contact an absent employee or their next of kin, failure to do so does not, in and of itself, invalidate a disciplinary process grounded in misconduct.
Importantly, the case cautions against framing desertion as incapacity where a disciplinary policy governs unauthorised absence. The misconduct route is preferable when the absence is voluntary, prolonged, and uncommunicated.
This decision also reinforces the importance of maintaining documentation reflecting the employee’s absence, efforts to make contact, and the consistency of disciplinary action in similar cases. In cases involving criminal incarceration, the employer is not legally required to await the employee’s release, especially where operational continuity and safety are at stake.
Conclusion
The Labour Court’s judgment in Sibanye Rustenburg Platinum Mines confirms that prolonged absence without permission, regardless of the underlying reason, constitutes a breach of the employment relationship where an applicable rule exists. The ruling provides employers with legal certainty on their rights and responsibilities in managing desertion and reinforces the principle that employees bear the primary obligation to communicate with their employer and maintain the employment bond. As such, the judgment is an important addition to the developing jurisprudence on desertion, misconduct, and procedural fairness in the South African workplace.
