Mine worker still fighting for reinstatement

A Nkomati Joint Venture worker is still fighting for his reinstatement almost three years after the Commission for Conciliation, Mediation and Arbitration (CCMA) ordered the company to do so.

Simon Nkosi has yet to hear from his employer about when he can report for duty again.

He was dismissed by Nkomati on June 30, 2011 for allegedly reporting for duty under the influence of alcohol.

However, Nkosi, who has been contracted by the mine as from July 1, 2008 as a utility assistant earning R8 528 per month, referred the alleged unfair dismissal to the CCMA.

Documents for the arbitration award that was rendered by the commission, which Barberton Times has in its possession, clearly indicates that the chairman who sat during Nkosi’s disciplinary hearing was bias as he was not under the influence of alcohol (on the day he tested positive), but drank the previous day.

Nkosi’s dispute for arbitration was heard at the offices of CCMA in Belfast on January 11, 2012.

He attended the arbitration and was represented by Makhosonkhe Magudulela, who is the National Union of Mineworkers (NUM) chairman and Nkomati was represented by Tumi Sefularo.

An argument by the union, which represented Nkosi, read, “Nkosi was charged being under the influence of alcohol at work whilst he (Nkosi) argued that he was not but drank the previous day. It was further argued by Nkosi that Nkomati was inconsistent in the application of its discipline by dismissing him since David Nkosi (another employee at Nkomati Mine) was found to be under the influence of alcohol at work and was not dismissed, but issued with final written warning”.

“The available evidence indicates that Nkosi was not under the influence of alcohol. Even if I accept the employer’s argument that he was under the influence of alcohol, it does not automatically end the inquiry into his dismissal. It is very important to mention Nkomati’s own standard operation procedure – definition – When a person is found to be incapable (or impaired) of performing their duties satisfactory due to being under the influence of an intoxicating substance”.

“There was no evidence before me that Nkosi was observed and found to be incapable or impaired of performing his duties satisfactorily,” it further read.

Nkosi said his loss of income has had a severe impact on his life. “I lost all my furniture, my policies have lapsed and divorced my wife because there is no income. My two kids have completed matric but I can’t afford to send them to tertiary institutions,” said Nkosi.

The CCMA award, which was approved by commissioner Harold Maloka, found that the dismissal was procedurally fair and substantively unfair.

It ordered Nkomati to retrospectively reinstate Nkosi with back pay, on the same terms and conditions of employment as before.

“I order Nkomati to pay Nkosi R17 056, which is equivalent to two months’ salary as a result of the retrospective reinstatement. He must report for duty on January 31, 2012. His reinstatement is subject to a final written warning, which will be effective from January 31, 2012,” read the award by the CCMA, which was approved by Maloka.

Magudulela confirmed that Nkosi won the case, but Nkomati appealed the award to be reviewed and the matter was still dragging in the Labour Court.

“By law the employer has the right to apply for review of the award. I explained to Nkosi that the review application takes a long time to be concluded and it is not being handled by us as NUM at branch level because we do not have the capacity to do so. We referred the matter to our regional paralegal offices, which in turn appointed an attorney to deal with the review application. As soon as the matter is concluded, we will notify Nkosi as we constantly keep in touch with him,” said Magadulela.

He said should Nkosi win the case-review application, Nkomati will have to back pay him all the monthly salaries he has not received.

Thandeka Mapi, Nkomati specialist communication said he had forwarded Barberton Times’ enquiry to the general manager, Mandla Nxumalo. However, at the time of going to print the mine had not responded.