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[2020] ZALAC 17
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Samancor Limited (Eastern Chrome Mines) v Commission for Conciliation, Mediation and Arbitration Limpopo and Others (JA140/2018) [2020] ZALAC 17; [2020] 9 BLLR 908 (LAC); (2020) 41 ILJ 2135 (LAC) (18 May 2020)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA140/2018
In the matter between:
SAMACOR LIMITED
(EASTERN CHROME
MINES) Appellant
and
THE COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
LIMPOPO First
Respondent
COMMISSIONER NICHOLAS
SONO NO
Second
Respondent
National UNION OF
MINEWORKERS obo
VIOLET MASHA & 4
OTHERS Third
Respondent
Heard:
18 February 2020
Delivered:
18 May 2020
Coram: Davis, Musi and
Sutherland JJJA
JUDGMENT
DAVIS JA
Introduction
[1]
This appeal concerns five members of the
third respondent who were dismissed following events that took place
on 19 October 2015.
In his award, second respondent found these
employees guilty on certain charges but nonetheless reinstated them
because of the
inconsistency of discipline on the part of the
appellant. The appellant sought an order to review and set aside this
award. Sitting
in the court
a quo,
Basson AJ dismissed this application with costs. The appellant now
approaches this court, with the leave of the court
a
quo
.
The charges
[2]
The five employees were charged with the
following offences:
‘
Breach
of company safety rules and procedures (contravening of s 22 and 23
of
Mine Health and Safety Act of 1996
) in that on 19 October 2015 you
were found working at North 8 North tip area excavation without
installing temporary support.
Failure to carry out a
lawful instruction in that on 19 October 2015, you were instructed by
the Miner Overseer to stop and withdraw
from tip N8N to fix
sub-standard conditions observed.
Breach of company
strategy rules and procedures and/or gross neglect of duty in that on
19 October 2015 you failed to comply to
support standard in that you
were found drilling permanent support without installing temporary
support.’
[3]
The events which gave rise to these charges
took place on 19 October 2015. All of the employees were part of a
crew which was working
at the North 8 North section of appellant’s
mine. Between 10h00 and 11h00, on 19 October 2015, the mine shift
boss Mr Freek
Duvenhage visited the North 8 North section and found
the employees attempting to make the area safe. He instructed the
miner,
Ms Violet Masha, not to drill or blast in the so called tip
area because, according to a rock-engineering report, this tip was
affected by a vertical fault. Special attention had therefore to be
given to this specific tip. When Mr Duvenhage left the site,
the
temporary support and safety net which was required in terms of basic
security and safety standards had not yet been installed.
[4]
Shortly thereafter, Mr Clement Madikwane,
the mine overseer, visited this site and found the employees drilling
without a temporary
support and safety net having been installed. Mr
Madikwane issued a verbal instruction to Ms Masha and to the crew to
cease drilling
and to install the temporary support and safety net
before they could proceed to drill.
[5]
According to Mr Madikwane, he then left the
site. Some ten minutes later he heard the noise of drilling machines
coming from the
direction of the tip. He returned to the tip and
found that the employees had continued working without installing the
requisite
safety measures. He testified that he then issued the
employees with a written instruction. According to Mr Madikwane, this
instruction
was also disobeyed leading to the charges against the
employees. The dispute proceeded to arbitration before second
respondent.
The award
[6]
After hearing evidence from both parties,
the second respondent concluded that the appellant had proved, on a
balance of probabilities,
that the employees had been guilty of
working without installing temporary support and safety net on 19
October 2015. Further,
Ms Masha had allowed these employees to work
in this area which was clearly not safe. However, second respondent
found that one
Simphiwe Maseko who was apparently the girlfriend of
Mr Madikwane and who had been part of the crew on 19 October 2015 had
not
been dismissed. Accordingly, second respondent concluded that
‘the employer has failed to justifiably differentiate between
the employees and Simphiwe Maseko’. The employer had shown bias
by not finding Simphiwe Maseko guilty and dismissing her
from working
without installing the temporary support and safety net on 19 October
2015.’ For this reason, he found that
the dismissal of the
employees was substantively unfair and ordered their reinstatement.
The court
a quo
[7]
In dealing with an application to review
the award of second respondent, Basson AJ found that Mr Madikwane had
not returned to inspect
the work on 19
th
after he issued the written instruction. In the view of the
learned judge, Mr Madikwane’s evidence did not show that
the
employees continued working in defiance of the written instruction of
the 19
October
2015. The only evidence proffered on this point was that Mr Madikwane
returned to the site some three or four days later
and found the site
to be in the same condition as before. However, he was not questioned
on exactly what he found on the site when
he issued the written
instruction and what he found at the site when he returned three of
four days later. On this basis, Basson
AJ held that the appellant
‘had failed to prove on a balance of probabilities that the
employees had defied the written instruction
given to them by
Madikwane.’ For this reason, he dismissed the application.
The appeal
[8]
Critical to the submissions of appellant’s
counsel was the evidence of Mr Madikwane which requires further
analysis. He testified
that on 19 October. he inspected the tip and
‘found the crew drilling without installing the safety nets and
camlock jacks.
He then took out his red stop card and ‘blew the
whistle because the machine was drilling they could not hear me and I
called
the crew back to come to me then I verbally instructed the
crew to stop the activity that they were doing to fix the substandard
condition observed.’
[9]
Minutes after departing from the tip, he
heard machines drilling. He returned and spoke to Ms Masha and ‘asked
her why are
they drilling if the substandard conditions were not
addressed or not rectified. I looked at my note book, I could not
find it
then I requested Ms Violet Masha to borrow me a note book,
(sic) a note book, and I wrote instructions to withdraw the crew to
fix the substandard conditions before they can continue with their
normal duties. I wrote the instruction and I gave the book to
Ms
Masha.’
[10]
There seems to be no dispute about this
version. A series of statements supports Mr Madikwane on this point.
In the first place,
there is a handwritten note of 19 October 2015
where Mr Madikwane writes: ‘I instructed the miner V Masha to
stop the supporting
of the tip and B8N of North section due to
substandard installation of temp support and safety net not properly
done. All work
will resume when area is safe to do so.’
[11]
On 22 October 2015, he deposed to a further
statement which reads:
‘
On
19 October 2015 I went underground to do my inspection and follow-ups
on the weekend work, I inspected the main belts and proceeded
to
North section to inspect the conditions of the road-ways as I was
walking down I met the Mine Overseer of the North section
Mr Soenki
Selepe at belt north 7 north where the new cross under supposed to be
blasted.
We then proceed to belt
north 8 north tip where one of my crew are working to also inspect
the condition of the ground as there
was a fault that was running
NE-SW (Rock-engineering report). On my arrival found the crew
drilling support without installing
temporary support accordance to
the following procedures ECM-OP-MIN-M-006 and ECM-SOP-MIN-M-DRB010.
I therefore took out my
whistle and red stop card called everybody involved with the task
perfumed at 8 north tip trying to ascertain
as to what prompted the
crew to endanger their own life’s
(Section 22
of MHSA of 1996)
working substandard the response was the area was too high and they
could not install the jacks and the safety
net was not installed
because it was damaged but it was never being brought to the
attention of the shift boss and myself (mine
overseer). I
therefore verbally instructed the crew and Miner to stop the
drilling, do the ramp by means of a lhd, install
the jacks according
to procedure and the safety net.
I
therefore left the crew with the belief and trust that I had on them
that they will carry out my instructions, I went to one (1)
shaft
with Mr Selepe to inspect the condition of cross under that was
supposed to be blasted then I heard the machine drilling
from the tip
and was very surprised because the instructions that was issued to
the crew could have not been completed within that
short space of
time, then I went back to investigate as to what transpired only to
find the crew continuing with the drilling without
fixing the
sub-standard conditions that I have observed and not carrying out the
instructions issued to them. I then took
out the book wrote the
instructions and let the Miner and Safety Rep to sign and
acknowledging the instruction
.’
[12]
Mr Madikwane was accompanied on 19 October
2015 by Mr Selepe. Although Mr Selepe was not called to give
evidence, he did depose
to a statement which confirms the version of
Mr Madikwane.
[13]
Mr Madikwane also testified that he had
returned to the site three or four days later. The site
remained in exactly the same
condition; that is the requisite safety
net had not been installed and his instructions had not been carried
out.
[14]
The evidence of the chief safety officer,
Mr Makitla, is also of relevance. He testified that, if a particular
work place had been
made safe, there would be a signed safety
declaration form, of which in this case there was no evidence. Mr
Makitla also testified
in detail about the meeting on 21 October 2015
of which Mr Madikwane spoke about the events of 19 October. According
to Mr Makitla:
‘
Clement
advised us that he found this crew drilling for support without
installing the safety net underground, and he spoken to
them to
install the support, then he went away but when he was going, he
heard that they were continuing with drilling. When
he went
back, he found them drilling without the temporary support.
Then he gave them a written instruction. Then Clement
asked all the
crew members to explain to us what was happening. Violet answered the
question in saying that she is sorry, she does
not have a lot to say.
Then Clement continued
asking questions more directed to the other crew members, “Why
were you still drilling for support,
without the necessary temporary
support?” Then Mr Khoza answered and said they were forced by
the miner. Then Clement said
to the other guys, ”What can you
say about this?” Mr Pholwane answered and said he was not
drilling. Then from
my side I said, it was not a question, but what
more can you tell us about the occurrence?’
[15]
This account clearly supports Mr
Madikwane’s version as to what occurred on 19 October 2015.
Second respondent noted that
Mr Madikwane had made no effort to go
back to the site and check if his instructions had been implemented.
This finding is at odds
with the direct evidence which second
appellant provided and which I have set out.
[16]
In short, no rational basis was provided by
second respondent to disregard this evidence that the employees acted
in violation of
an important safety instruction which had been issued
to them. However, there is a far greater problem concerning both the
award
of second respondent and, following thereon, the judgment of
the court
a quo
.
[17]
Notwithstanding second respondent’s
finding regarding Mr Madikwane not returning to the site to check on
whether his written
instruction had been followed, second respondent
concluded as follows:
‘
The
employer has proved on a balance of probabilities that the employees
were indeed guilty of working without installing temporary
support
and safety net on 19 October 2015. The employer has also proved on a
balance of probabilities that Violet Masha has allowed
employees to
work in an area that was not safe on 19 October 2015
.’
[18]
However, critical to the justification of
his order was second respondent’s approach to the case of
Simphiwe Maseko and the
finding of the disciplinary panel that she
was not guilty of the charges brought against her. On the strength of
this finding he
concluded that:
‘
The
employer has failed to justifiably differentiate between the
employees and Simphiwe Maseko. The employer was biased by not finding
Simphiwe Maseko guilty and dismissed her for working without
installing the temporary support and safety net on 19 October 2019.’
[19]
It was on this specific basis that second
respondent held that the dismissal of five employees was
substantively unfair and that
they should be reinstated.
[20]
For some reason, however, the court
a
quo
concentrated on the issue of the
response by the employees to the instruction given by Mr Madikwane
rather than analysing the central
finding of the second respondent,
namely the inconsistency of discipline which justified a finding in
favour of the five employees.
In other words, the central finding of
the arbitration award was that there was unjustifiable
differentiation between the employees
and Ms Simphiwe Maseko. Yet
this received no examination for as Basson AJ made clear in his
judgment:
‘
The
dispute which I need to determine is whether he employees are guilty
of failing to carry out a lawful instruction. The lawful
instruction
in question is the written instruction issued by Madikwane to the
effect that the employees should have withdrawn,
i.e. stopped what
they were doing and fixed the substandard conditions before they
could continue with their normal duties.
’
[21]
Ms Maseko was charged as is evident from a
notification issued to her to attend a disciplinary hearing on 1
December 2015. The charges
brought against her were similar (but not
the same) as those brought against the other employees. As explained
by Mr Madikwane,
the charges brought against Ms Maseko were slightly
different because, in the case of other employees, there was evidence
of drilling
and therefore an additional charge of being found to have
drilled without installing the necessary temporary support was
brought
against these employees.
[22]
Mr Madikwane stated, insofar as Ms Maseko
was concerned, that:
‘
When
I arrived at 8 knot, Ms Maseko was not there, hence in the first
place there was no charge instituted against her. After
a long
discussion between the union and management, an instruction was
issued that Ms Maseko, action must be taken against her
as well, for
her to prove her innocence
.’
Ms Masha testified that
she had sent Ms Maseko to fetch explosives that she had ordered. For
this reason, Ms Maseko was not present
when Mr Madikwane arrived on
19 October. Her absence from the site was also confirmed by Father
Mandla Mhlongo, the drilling operator
who also testified before
second respondent.
[23]
The basis for the second respondent’s
finding of inconsistency of discipline was not based on an error
conducted at the disciplinary
hearing of Ms Maseko. But, in any
event, that she was acquitted cannot form the basis by which the
finding of inconsistency of
discipline can come to the aid of the
other employees. This court made this point clear in
SACCAWU
& others v Irvin Johnson Limited
[2008] BLLR 869
(LAC):
‘
If
a chairperson conscientiously and honestly, but incorrectly, exercise
his or her discretion in a particular case in a particular
way, it
would mean that there was unfairness towards the other employees. It
would mean no more than that his or her assessment
of the gravity of
the disciplinary offence was wrong. It cannot be fair that other
employee’s profit from that kind of wrong
decision. In a case
of plurality dismissal, a wrong decision can only be unfair if it is
capricious, or induced by improper motives
or, worse, by a
discriminating management policy.’
[24]
In summary, neither on the basis of the
finding of inconsistency of discipline as found by the second
respondent nor upon any absence
of evidence that there were two
warnings issued to the employees to comply with safety requirements
which they disregarded can
the finding of the second respondent be
considered to be one that a reasonable decision-maker could have made
in the circumstances
of this case. Further, the decision of the court
a quo
not
only adopts an opposing position to that of the second respondent
with regard to the Madikwane’s instructions but there
is no
basis by which to hold as the court
a
quo
did that a reasonable
decision-maker could find that the five employees did not disregard
the instructions given by Mr Madikwane.
The appropriate
sanction
[25]
In his award, the second respondent
recorded that ‘the employees were aware of the rules that the
rules were valid and reasonable
and that the dismissal is an
appropriate sanction for the contravention of the rules’. This
was a concession wisely made
in the light of 3 (4) of the Code of
Good Practice – Dismissal. While generally it is not
appropriate to dismiss an employee
for a first offence, this default
position does not have to be followed if the misconduct is serious,
which includes the wilful
endangering of the safety of others. Where
the conduct of employees carries a high risk of potential danger to
the safety of others
which is certainly the case when there is
manifest disregard for safety regulations at a mine, dismissal based
on the conduct of
which the five employees have been found guilty is
clearly justified.
[26]
The importance of safety is captured in the
following
dictum
in
Impala Platinum Ltd v Jansen &
others
(2015) 36 (ILJ) 2359 at para 17:
‘
It
is clear that the mining industry has been under tremendous scrutiny
regarding safety measures due to the high risk in the nature
of the
work done. In order to have a safe mining environment, the
regulations which were contravened by Jansen were promulgated
to
ensure that workers doing underground work underwent competency
training, and declared competent before being allowed to do
underground work. By his actions Jansen did not only undermine the
regulatory framework and put in danger life and limb, he also
placed
his employer at risk of section for contravening the statutory
regulations.’
[27]
In my view, once a finding has been made
that, on the available evidence, the five employees disregarded both
a verbal and written
instruction to ensure that adequate safety
measures were to be installed, the sanction of dismissal was
justified.
[28]
In the result, the appeal must succeed. The
following order is made:
1.
The appeal is upheld with costs.
2.
The order of the court
a
quo
is substituted as follows:
3.
The arbitration award issued by second
respondent on 17 March 2016 which was delivered to the applicant on
30 March 2016 is reviewed
and set aside.
4.
The dismissal of Violet Masha and four
other former employees of the applicant is declared to have been fair
both procedurally and
substantively.
5.
Third respondent is ordered to pay the
costs of the application.
________________
Davis JA
Musi
and Sutherland JJA concur.
APPEARANCES:
FOR THE
APPELLANT: Adv
Watt-Pringle SC
Instructed
by Lebea Attorneys
FOR THE THIRD
RESPONDENT: Adv Q M
Dzimba
Instructed
by Mothibi attorneys