Labour Court denies reinstatement for Glencore employee left disabled after workplace injury

A former Glencore employee who was dismissed after he was injured at work and left disabled, lost his application for reinstatement at the Labour Court in Johannesburg.

Moshe Kgatla was employed by the company as an electrical apprentice on a learnership in April 2014 at Glencore Lydenburg Smelter.

Sometime in March 2015, Kgatla was involved in an accident while performing his duties and he sustained serious injuries which led him to be permanently disabled.

He was subsequently charged with negligence after he was accused of jumping into a moving hot charge car which was outside of his working area. Following a disciplinary hearing, he was dismissed in February 2016.

Disenchanted, he referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA). The arbitrator overturned his dismissal, and a final written warning was issued to him, and this could allow him to continue with his learnership.

However, Glencore stated that due to his permanent disability, he was compensated with a permanent disability payout and his learnership was terminated in April 2017. 

Kgatla denied Glencore's version, and for the second time, in 2019 May, he went to the CCMA and through his attorney, he brought an unfair dismissal with condonation application as his matter was old.

The condonation application which was dismissed in September 2019.

Despite these setbacks, Kgatla filed a review application in the Labour Court around 2020. The case was subsequently archived without a hearing date. Kgatla attributed this to the Covid-19 pandemic and the difficulty in securing a court date at the time.

He further stated that during this time, he was in constant communication with Glencore and accused the company of deliberately delaying the matter.

However, acting judge Grace Mafa-Chali remained unconvinced by Kgatla's explanation, noting his failure to demonstrate any steps taken to prosecute the review application in the six months following its submission.

Judge Mafa-Chali stated that Kgatla had every right to ask the court registrar to list the case on an unopposed roll within six months if his former employee did not file a notice to oppose the review application.

The judge stated that a year has passed since the initiation of the review application when Kgatla scheduled the matter for hearing. Consequently, there is a lack of compliance, and the application will be considered archived and treated as lapsed.

"Since a period of six months had elapsed without any steps being taken by the applicant (Kgatla) from the date of filing the review application, thus the application was also archived. Clause 16.3 of the Practice Manual is clear that where a file has been placed in archives, it shall have the same consequences as to the matter having been dismissed," said the judge.

sinenhlanhla.masilela@iol.co.za

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