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[2021] ZALAC 16
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Anglo American Platinum Ltd v Beyers and Others (JA122/2019) [2021] ZALAC 16; [2021] 10 BLLR 965 (LAC); (2021) 42 ILJ 2149 (LAC) (2 July 2021)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JA 122/2019
In
the matter between:
ANGLO AMERICAN
PLATINUM LTD
(RUSTENBURG PLATINUM
MINES)
Appellant
and
EDWIN ANDRIAAN
BEYERS
First Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
IRENE
TSHIFHIWA NYATHELA
N.O
Third Respondent
Heard:
06 May 2021
Delivered:(In
view of the
measures implemented as a result of the Covid-19 outbreak, this
judgment was handed down electronically by circulation
to the
parties' representatives by email. The date for hand-down is deemed
to be 02 July 2021
Coram:
Coppin JA, Savage AJA and Molefe AJA
JUDGMENT
MOLEFE AJA
[1]
This is an appeal against the whole judgment and order handed down by
the Labour Court
per Nkutha-Nkontwana on 11 October 2019. This appeal
turns on the test and circumstances under which an employer in the
private
sector is permitted to interfere with a disciplinary sanction
imposed by a chairperson of a disciplinary hearing appointed by an
employer, and in circumstances where the employer’s
disciplinary code and procedures make no provisions for such
interference.
[2]
The appeal raises the question whether the third respondent’s
(the Commissioner’s)
finding that the appellant was entitled to
intervene and change a disciplinary sanction handed down in a
disciplinary enquiry from
a final written warning to a dismissal, was
fair.
[3]
At the outset of the hearing, the appellant’s late filing of
the notice of appeal
was condoned. The first respondent did not
oppose the condonation application.
Factual
background
.
[4]
The first respondent (Mr Beyers) was employed by the appellant on 1
June 2015 as an
Electrical Foreman. At the time of his dismissal, he
held the position of a Senior Electrical Foreman. On 21 April 2017,
Mr Beyers
was served with a suspension letter pending an
investigation into an alleged breach of the lockout procedures.
[5]
On 3 May 2016, Mr Beyers was issued with a notice to attend a
disciplinary enquiry
for the following misconduct: failure to carry
out the lockout procedure in accordance with the appellant’s
Isolation and
Lockout Operational Procedure (“the lockout
procedure”)
[6]
The lockout procedure states that:
‘
All
equipment associated with that machine must be locked out: The tandem
conveyor drive-both drives must be locked out as well
as the
electrical counterweight must be lowered into the position to remove
stored energy.
Crushers-all conveyors
feeding in ore as well as auxiliaries associated with the crushers
must be locked out.
It is important that
equipment is isolated and locked out in order to prevent personnel
from starting such equipment while it is
being worked on.
It is the responsibility
of each person that works on equipment to do his own lockout. No
person will work under someone else’s
lockout.’
[7]
Mr Beyers pleaded guilty to the allegations against him and the
disciplinary chairperson
found him guilty of breaching his obligation
to follow proper isolation and lockout procedures.
[8]
Mr LeRoux Esterhuyse, the appellant’s appointed initiator at
the disciplinary
enquiry presented a written submission dated 20 May
2016, which reads as follows:
‘
After
my investigation, I found that the workplace was safe and no one was
ever put in harms in any way. This was a breach in procedure
only.
This is also the first offence of Mr Edwin Beyers and the
relationship is still healthy.’
[1]
[9]
The Chairperson imposed a final written warning sanction and required
Mr Beyers to
undergo retraining on the lockout procedure. After the
said sanction, Mr Beyers was sent for retraining on 10 May 2016 and
was
subsequently instructed to report for duty.
[10]
The appellant applied to review the decision of the disciplinary
enquiry chairperson after the National
Union of Mineworkers (NUM)
lodged a complaint regarding Mr Beyers’ final written warning,
accusing the appellant of inconsistent
application of discipline,
alleging that its members who had been found guilty of the same
transgression in the past were dismissed.
Consequently, the appellant
resolved to review the chairperson’s sanction. On 23 May 2016,
Mr Beyers was suspended with immediate
effect pending the review
hearing. A review panel was appointed and a hearing was held on 3
June 2016. The review panel recommended
dismissal as an appropriate
sanction, and Mr Beyers was summarily dismissed with effect from 10
June 2016.
Arbitration Award.
[11]
Mr Beyers referred an unfair dismissal dispute to the Commission for
Conciliation, Mediation and Arbitration
(CCMA). The CCMA arbitrator
held that the dismissal was both procedurally and substantively fair.
The arbitrator held that the
appellant had established that there was
a practice of internal reviews in the workplace, and such practice
was fair, and that
its invocation in this case was justified. The
arbitrator held that the offence was a serious one, and given Mr
Beyers seniority,
his dismissal was justified
[12]
In the award, the arbitrator
inter alia
held as follows:
12.1 It
is common cause that the employer in this case, reviewed the
employee’s sanction of a final written
warning and changed it
to a dismissal. It is also common cause that the employer’s
disciplinary code does not make provision
for a review process. The
onus is on the employer to prove that it was entitled on a balance of
probabilities to review its sanction.
12.2
The employer’s witness Mr Hlokwe testified that the employer
has a practice of reviewing sanctions,
if it is convinced that the
sanction imposed by the chairperson of an enquiry is not appropriate
considering the seriousness of
the misconduct committed. Mr Hlokwe
also argued that the practice is in line with the
BMW
v Van Der Walt (
2000)
2 BLLR 121
(LAC) in that it provides that fairness and fairness alone
is a yardstick. The employee on the other hand argued that the
BMW
case does not apply in this case as it deals with double jeopardy. I
do not accept the employee’s argument that the
BMW
case does not apply in this case in that it had to do with the
question whether the employer can conduct a second hearing which
is
not different from what happened in this case.’
[2]
[13]
In
BMW
(SA)(Pty) Ltd v Van Der Walt
[3]
(‘’BMW”)
relied on by the arbitrator, it was
inter
alia
held that:
[12]
Whether or not a second disciplinary enquiry may be opened against an
employee would what I consider,
depend upon whether it is in all the
circumstances fair to do so. I agree with the dicta in
Amalgamated
Engineering Union of SA and Others v Carlton Paper of SA (Pty) Ltd
(1988) 9 ILJ 588(IC) at 596 A-D
that it is unnecessary to ask
oneself whether the principles of autrefois acquit or res judicata
ought to be imported into labour
law. They are public policy rules.
The advantage of finality in criminal and civil proceedings is
thought to outweigh the harm
which may in individual cases be caused
by the application of the rule. In labour law fairness and fairness
alone is the yardstick.
See also.
Botha v Gengold
[1996] BLLR 441
(IC).: Maliwa v Free State Consolidated Gold Mines (Operations) Ltd
(1989) 10 ILJ 934 (IC).
I should make two cautionary remarks. It
may be that the second disciplinary enquiry is ultra vires the
disciplinary code
(Strydom v Usko Limited
[1997] 3 BLLR 343
(CCMA)
at 350 F-G.
That might be a stumbling block. Secondly, it would
probably not be considered to be fair to hold more than one
disciplinary enquiry
save in rather exceptional circumstances.’
The decision of the
Court
a quo
[
14]
The court
a quo
found the arbitrator’s decision to be reviewable and held that
the appellant had not demonstrated exceptional circumstances
that
warranted its intervention in the disciplinary proceedings of Mr
Beyers. Although the appellant sought to rely on the application
of
discipline as a
bona fide
reason for its intervention, it however failed to adduce proof that
the sanction of a final written warning was inconsistent with
sanctions issued in similar circumstances in the past, despite being
specifically placed in dispute that similar cases in the past
necessarily resulted in dismissal. The court
a
quo
held that the dismissal was
substantively unfair and reinstated Mr Beyers.
[15]
On the contrary, the appellant’s case during the arbitration
was that the transgression
was serious enough to justify the review
of the sanction of a final written warning and substitution with a
sanction of dismissal.
No new evidence was placed before the
arbitrator in this regard, at least to justify the drastic
intervention.
The Appeal.
[
16]
The primary grounds of appeal of the appellant
relate to the following three main findings of the court
a
quo
:
16.1 It
was incumbent upon the appellant to prove exceptional circumstances
that justified its decision to review
and change Mr Beyers’
sanction, and no such exceptional circumstances existed
.
16.2
The transgression committed by Mr Beyers would amount to a procedural
breach and no new evidence was presented
to demonstrate the
seriousness of the offence.
16.3
Alteration of the sanction was impermissible because of the doctrine
of election.
Exceptional
circumstances
[17]
Counsel for the appellant submitted that the learned judge erred in
her interpretation and application
of the principles set out by this
court in the
BMW
matter. It is argued that in
BMW,
this
court decided that fairness is the overriding consideration in labour
disputes. Accordingly, whether a second enquiry may be
convened will
ultimately depend solely on whether it is fair to do so. It is also
submitted that the learned judge misdirected
herself in not applying
the binding authority of
Branford
v Metrorail Services (Durban & others)
[4]
which
held that fairness is the actual test to be applied when determining
whether an employer may intervene in disciplinary proceedings
and
hold a second enquiry.
[18]
The appellant contends that, having applied the incorrect test of
exceptional circumstances,
the court
a quo
erred in not
determining whether it was fair in the circumstances for the
appellant to change the sanction of a final written warning
to one of
a dismissal, given the seriousness of the offence and the
inconsistency, given that the appellant dismisses employees
who are
guilty of breaking safety rules.
[19]
It is argued on behalf of the appellant that in any event,
exceptional circumstances were shown
for the following reasons:
19.1 A
practice to review sanctions existed at the appellant, and such
practice created a precedent in the workplace;
19.2
The offence was a serious one;
19.3 Mr
Beyers was a senior Electrical Foreman and his seniority justified
the ultimate sanction, and the arbitrator’s
reliance on Mr
Beyers seniority was simply not reasonable.
[20]
Mr Beyers’ counsel submitted that any notion to the effect that
the court
a quo
gave no consideration and did not view
“fairness” as a principal consideration ought not to be
sustained. According
to this argument this much is evident from the
court
a quo
’s judgment for example in the following
passage:
[36]
“It follows that in the absence of exceptional circumstances,
Anglo
American’s volte face
was patently unjust to Mr
Beyers; hence his objection. The dictates of modest fairness between
employer and employee demand that
this objection should be
sustained”.
Doctrine of election
[21]
In its judgment, the court a
quo
held
that in the absence of exceptional circumstances justifying the
review enquiry, the appellant’s conduct is impermissible
in
terms of the doctrine of the right of election which is fundamental
in our law and espoused in labour matters as well. In this
regard,
the court
a
quo
relied on
Rabie
v Department of Trade and Industry and Another
[5]
and stated:
[27]
Another reason why abandoning the pre-dismissal arbitration is
unlawful is that it is impermissible
in terms of the doctrine of the
right of election which has since been endorsed by the Constitutional
Court in
Equity Aviation Services (Pty) Ltd v Commission for
Conciliation, Mediation and Arbitration and Others
. The
Constitutional Court referred with approval to
Chambers of Mines
of South Africa v National Union of Mineworkers and Anothe
rwhere
it stated that:
“
One
or other of two parties between whom some legal relationship subsists
is sometimes faced with two alternatives and entirely
inconsistent
courses of action or remedies. The principle that in this situation
the law will not allow that party to blow hot
and cold is a
fundamental one of general application”.
[22]
Counsel for the appellant submitted that the court
a
quo
failed to consider that in at least three authoritative cases,
[6]
the court permitted an employer to vary the sanction imposed by a
disciplinary chairperson, and upheld the arbitrator’s award
imposing a sanction of dismissal based on the consideration of
fairness.
[23]
Counsel for Mr Beyers submitted that a reading of the judgment shows
that the court
a quo
’s reference to the doctrine of
election was not to elevate the said doctrine to a self-standing
test/principle, but rather
applied same within the context of
“exceptional circumstances” that need to be demonstrated
by the employer in such
circumstances.
[24]
Mr Beyers’ counsel argues that the exceptional circumstances
(or the “good cause”
as referred to by the appellant at
the arbitration hearing) relied on by the appellant as substantiation
for its interference with
the disciplinary hearing) sanction, were
premised on the objection by the trade union that a final written
warning constitutes
inconsistent discipline. However, no evidence was
tendered that in the absence of such trade union intervention and
insistence,
the appellant would have had any cause or motivation to
interfere with the said sanction.
Evaluation
[25]
The concept of fairness applies to both the employer and the
employee. It involves the balancing
of competing and sometimes
conflicting interests of the employer on the one hand and the
employee on the other hand. The weight
to be attached to those
respective interests depends largely on the overall circumstances of
each case.
[26]
In
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd
,
[7]
the court made the following
remarks on fairness:
‘
Fairness
comprehends that regard must be had not only to the position and
interests of the workers, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgement to established
facts and
circumstances (
NUM v Free State Cons at
4461).
And in doing so it must have due
regard to the objectives sought to be achieved by the Act. In my
view, it would be unwise and
undesirable to lay down, or attempt to
lay down any universally applicable test for deciding what is fair.’
[27]
In the decision in
Branford
,
[8]
the majority held
inter
alia
that:
“
[15]
Although during the hearing of this appeal Mr B
ingham,
for the appellant contended that the test laid down in
Van
der Walt’s
case (was that a
second enquiry was permissible only in exceptional circumstances,
that is not borne out by dictum in para [12]
quoted above. In that
paragraph it is quite clear that Conradie AJ considered fairness
alone to be the decisive factor in determining
whether or not the
second enquiry is justified. The learned judge of appeal mentioned
the issue of exceptional circumstances merely
as one of the two
caveats and not as the actual or real test to be applied. Therefore,
in my view, it is incorrect to contend that
the test espoused in
Van
der Walt
is that a second enquiry would
only be permissible in exceptional circumstances. The current legal
position as pronounced in
Van de Walt
is that a second enquiry would be justified if it would be fair to
institute it.”
[28]
According to the minutes of the disciplinary hearing, it was only
after the disciplinary chairperson
consulted with the ER Manager Mr
Hlokwe that the final written warning sanction was imposed. In his
testimony, Mr Hlokwe did not
dispute the fact that he sanctioned the
final written warning even though he sought to blame it on some
confusion on the seriousness
of the transgression at the time.
[29]
Mr Beyers’ evidence that Mr Pienaar did perform the lockout for
him and gave him his key
back was not disputed. Mr Esterhuyse
conceded to the contrary during cross-examination that the
transgression would amount to a
procedural breach in relation to the
failure by Mr Beyers to sign the register if indeed he performed a
lockout using his own key.
He also corroborated Mr Beyers’
version of events that his lockout was indeed attended to by Mr
Pienaar, but only that Mr
Beyers did not sign the register.
[30]
In
MEC
for Finance KwaZulu-Natal- and Another v Dorkin NO and Another
[9]
this court held that while the test was ultimately one of fairness,
it would probably be unfair to subject an employee to further
disciplinary action except in exceptional circumstances. It was held
there that:
[14]
The decision of the majority in the
BMW
case sanctioned a
second disciplinary as a way for an employer to achieve that if, in
all the circumstances, it is fair to do so,
and it expressed the view
that it would probably be unfair to subject an employee to a second
disciplinary hearing except in exceptional
circumstances. In the
light of that decision it would be consistent with that decision to
hold in this case that this case presented
exceptional circumstances
and the second applicant had a right to approach the Labour Court to
alter the decision on sanction made
by the first respondent.’’
[31]
A reading of the above mentioned judgments, and to the extent that
the principle of “fairness
and fairness alone” was
enunciated as a threshold or test in matters of this nature, it is
evident that the threshold of
fairness at all relevant times is to be
informed by all the established circumstances of the relevant case
relied upon by the employer
to interfere with the disciplinary
hearing sanction. In particular, fairness is informed by established
exceptional circumstances.
[32]
At all the relevant times the appellant was aware of the final
written warning sanction, accepted
it and acted in accordance with
its terms by re-training Mr Beyers on the lockout procedure and
subsequently instructed him to
report for duty. The appellant had no
objection to the sanction until the Union raised a complaint in this
regard.
[33]
If the employer relies on a Union’s concerns about the
consistency of the disciplinary
sanction imposed as in casu, and/or
on the impact on the consistent application of discipline at a
workplace, the employer was
to establish such facts/circumstances
through evidence properly placed before the arbitrator. It is more so
considering that it
was specifically placed in dispute that similar
cases in the past resulted in dismissal. The appellant made no effort
to place
any evidence before the arbitrator that similar misconduct
in relation to the lockout procedure invariably resulted in
dismissal.
[34]
It is trite that the reasonableness of an arbitration award is
assessed with reference to the
totality of the evidence properly
placed before the arbitrator.
[10]
In applying the
BMW
test, the arbitrator failed to determine whether fairness between the
appellant and Mr Beyers, informed by exceptional circumstances
to do
so, justified the interference with the sanction imposed by the
disciplinary enquiry chairperson.
[35]
Had the arbitrator given due and reasonable weight to all the
relevant evidence, the arbitrator,
acting as a reasonable
decision-maker, could not have reached the conclusion that the
dismissal of Beyers was substantively fair.
[36]
Consequently, premised on the reasons advanced by the court
a quo
,
the court
a quo
’s decision to interfere with the
arbitrator’s award was correct.
[37]
For all of these reasons, the appeal is dismissed with costs.
D S Molefe
Acting Judge of the
Labour
Appeal Court
Coppin
JA and Savage AJA concur.
APPEARANCES
FOR THE APPELLANT: FA
Boda SC and Z Ngwenya
Instructed
by Cliffe Dekker Hofmeyr Inc
FOR THE FIRST RESPONDENT:
C Goosen
Instructed
by Parsons Attorneys
[1]
Volume
3, page 237.
[2]
Volume
1, page 28 Award para 5 .2.1 and 5.2.2.
[3]
(2002)
21 ILJ 113 (LAC) at para [12].
[4]
(2003)
24 ILJ 2269 (LAC).
[5]
(J515/18)
[2018] ZALCJHB 78 (5 March 2018).
[6]
SA
Revenue Services V Commission for Conciliation, Mediation and
Arbitration and Others
[2017] 1 BLLR 8
(CC); (2017) 38 ILJ 97 (CC);
Moodley
v Department of National Treasury and Others
[2017] 4 BLLR 337 (LAC);
(2017)
38 ILJ 1098 (LAC)
;
James
and Another v Eskom Holdings SOC Ltd and Others
[2017] 10 BLLR 979 (LAC);
(2017)
38 ILJ 2269 (LAC)
.
[7]
[1996] ZASCA 69
;
1996
(4) SA 577
(A) at 476.
[8]
(2003)
24 ILJ 2269 (LAC) para 15.
[9]
[2008]
6 BLLR 540
(LAC) at para 14.
[10]
See
Herhold
v Nedbank Ltd (Congress of SA Trade Unions as amicus curiae)
2013 (6) SA 224
(SCA) at para 25,
Head
of Department of Education v Mofokeng & others
(2015) 36 ILJ 2802 (LAC) at paras 32 and 33.