FIVE mineworkers who were fired for allegedly taking food underground in a mine have now turned to the Johannesburg Labour Court to get their jobs back.

This came after the mine placed a ban on food going down the mine shaft, as efforts to curb illegal mining and feared that the illegal miners received food while they remained underground.

During arbitration, the commissioner found that the dismissal was substantively fair. They now asked the court to overturn that ruling. Their employer, Sibanye Gold, has opposed the review application.

The individual miners were employed in different capacities and at varying times by Sibanye at its underground Cooke Operations (Operations). It was not disputed that in an endeavour to curb illegal mining activities at its operations, Sibanye had entered into a Memorandum of Agreement (MOU) with representative unions.

It was agreed to institute a total food ban, prohibiting the employees from taking any food items with them when reporting for duties underground. The MOU was to be in place for 45 days, and the food ban was to be revised within 14 days to assess its effectiveness in combating illegal mining activities.

Sibanye informed all the employees of the food ban through a brief that was placed on all notice boards at the operations.

It was claimed that the five miners, however, did take food down the shaft, and following disciplinary hearings, they were fired.

According to Sibanye, the food ban was adhered to by all employees until the individual applicants were allegedly found with food in their possession at what is referred to as the ‘'rush area'', as they attempted to go underground via a “cage.”

Sibanye said that at the time that the applicants attempted to take food with them underground, there was another group of employees that was standing aside from the entrance to the cage after security officers prevented them from proceeding underground because they had food items.

They were instructed by security officers to consume whatever food items they had with them before they could be permitted to proceed underground.

The applicants were also told to either eat the food or take it back to their locker room before they could proceed underground.

According to a security guard, they were carrying food in a lunchbox and plastic bag respectively. The guard testified that the applicants refused to leave their food behind, and they managed to get into the cage with their food and proceeded underground.

The mine explained that they had arrested several illegal miners the previous night. This was after the illegal miners wanted to come out from their hiding places underground because they were hungry.

As a result of the food ban, the illegal miners had no access to food to sustain them while they continued with their illegal activities underground, and therefore the mine wanted to continue with this ban.

The fired miners, however, maintained that their bags were searched and no food was found. They said that was the reason why they had proceeded to go underground.

On arbitration and following video evidence that was presented by Sibanye of the incidents, the commissioner concluded that the balance of probabilities favoured Sibanye’s version; hence, the dismissals were substantively fair.

Judge Edwin Tlhotlhalemaje, in the labour court, however, said there was no basis for this finding, as the video evidence did not show any food in their possession. He referred the matter back to the CCMA to be re-determined by another commissioner.