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[2015] ZALAC 111
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Two Rivers Platinum Mine (Pty) Ltd v Roos and Others (JA16/2014) [2015] ZALAC 111 (10 December 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JA16/2014
TWO RIVERS PLATINUM MINE (PTY)
LTD
Appellant
and
COMMISION FOR CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
SHIKO RAPHELA,
N.O
Second Respondent
CHRISTO
ROOS
Third Respondent
Heard: 13 May 2015
Delivered: 10 December 2015
Summary:
review of arbitration award – employee dismissed for gross
negligence for breaching safety related rules –
commissioner
finding employer not applying discipline consistently and that
dismissal substantively unfair – appeal court
finding that
employer not giving opportunity to lead evidence to rebut
inconsistency claim – commissioner failing to advise
parties to
lead evidence on the inconsistency claim. – Award unreasonable
– Labour Court’s judgment set aside
– employee’s
dismissal substantively fair. Appeal upheld.
Coram: Tlaletsi DJP, Sutherland JA,
and Mngqibisa-Thusi AJA
JUDGMENT
MNGQIBISA-THUSI
AJA
[1] The appellant appeals against the whole judgment of the Labour
Court (Gaibie AJ) handed down on 27 August 2013, dismissing
an
application to review and set aside the award of Mr Shiko Raphela
(“the arbitrator”), acting under the auspices
of the
Commission for Conciliation, Mediation and Arbitration (“the
CCMA”). The appellant seeks the substitution of
the
arbitrator’s decision with a decision declaring the third
respondent’s dismissal to be fair or for the matter to
be
remitted to the CCMA.
[2] On 29 August 2013, the Labour Court granted leave to appeal.
Factual background
[3] From 01 February 2008 until his dismissal on 08 January 2010, the
appellant employed the third respondent (hereinafter referred
to as
‘the respondent’) as a miner at its Two Rivers Platinum
mine. The dismissal of the respondent emanated from an
incident,
which occurred at the appellant’s mine on 15 December 2009. The
main allegation against the respondent was that
on the day in
question, he failed to follow the prescribed standard operating
procedures, thereby putting at risk the safety of
the other employees
who were supposed to work in that area. One of the respondent’s
duties as a miner was to secure the working
environment and make sure
that it is safe before the production team is allowed to enter into
the working area. The charges proffered
against the respondent were
the following:
‘
3.1
Gross
negligence in that: You allowed employees to enter and work in
an unsafe workplace on 15 December 2009.
3.2 On 16 December 2009 you
abandoned explosives underground.’
[4] At a disciplinary hearing held on 5 January 2010, chaired by Mr
Vincent Phahlane (“Phahlane”), the respondent although
present, refused to participate in the hearing. Phahlane found the
respondent guilty of the charge relating to gross negligence
and
imposed the sanction of a dismissal. In considering dismissal as the
appropriate sanction, Phahlane took into account the fact
that the
respondent was on a final written warning for a safety breach
misconduct.
Arbitration
[5] The respondent did not appeal the disciplinary chair’s
ruling through the internal appeal processes. Instead, the respondent
referred an unfair dismissal dispute to the CCMA. When conciliation
failed, the dispute was referred for arbitration. On the CCMA
referral form, the respondent indicated as issues in dispute the
following: (i) inconsistency; (ii) procedural unfairness; and
(iii)
non-existing working places.
[6] At the arbitration hearing, the appellant led evidence through,
inter alia
, Mr Hendrik Pienaar (“Pienaar”), the
respondent’s immediate supervisor, Mr Wouter Erasmus
(“Erasmus”),
a mine overseer and Phahlane. Pienaar
testified that on the relevant day, he had instructed the respondent
to inspect the underground
working area and make sure that it was
safe before the production team entered the working area and start
working. Later Erasmus
had alerted him to the fact that the roof of
the working area where the production’s team was working was
unsupported and
unsafe for the production team. As a result, Erasmus
removed the production team from the area. Erasmus testified that
after removing
the production team from the working area, which he
perceived to be unsafe, a large rock fell from a hanging wall.
Phahlane testified
that he considered dismissal as an appropriate
sanction in that the respondent was already on a final written
warning, which, in
his opinion, does not appear to have led to any
(improvement) behaviour modification in terms of safety issues; that
the respondent
showed no remorse and because of the respondent’s
short length of service with the appellant.
[7] The respondent thereupon testified. He stated that he did not
participate in the disciplinary hearing because he did not want
to
incriminate himself. The respondent further testified that in his
opinion the workplace was safe to work in. Furthermore, the
respondent, for the first time in the hearing, raised as an issue the
allegation of the appellant’s inconsistent application
of
discipline. In this regard, the respondent referred to two of his
colleagues, Janie Britz (“Britz”) and Christo
Havenga
(“Havenga”), who he alleged were previously found guilty
of similar misconduct but were not dismissed. The
respondent alleged
that Britz had breached safety regulations leading to him losing an
arm and Havenga had sat on a conveyor belt.
In response to the
allegation of the appellant’s inconsistent treatment of
discipline, the appellant’s representative
submitted to the
arbitrator that the respondent’s case was distinguishable from
Britz’s case in that the respondent
was on final written
warning and Britz had shown remorse.
[8] It is apposite to note that during the arbitration hearing and up
to the stage when he gave his evidence in chief, the respondent
had
not raised the issue of the inconsistent application of discipline.
Neither Mr Johannes Christiaan Labuschagne, the appellant’s
industrial relations superintendent nor Phahlane were cross-examined
by the respondent on this issue.
[9] The arbitrator found the respondent’s dismissal to be
procedurally fair in that the respondent, though present at the
disciplinary hearing, had foregone the opportunity to present his
case by refusing to take part in the hearing. The arbitrator
further
found that the respondent was guilty for failing to comply with the
safety standard procedures of the appellant.
[10] Even though the arbitrator concluded that the respondent had
misconducted himself, the arbitrator came to the conclusion that
the
respondent’s dismissal was substantively unfair in that the
appellant had inconsistently applied discipline in the case
of the
respondent, unlike previous similar cases. The arbitrator came to the
conclusion that the reason given by the appellant
for the
differential treatment of the respondent on the one hand and Havenga
and Britz on the other hand was not sufficient to
justify the
respondent being treated differently. As a result, the arbitrator
found the dismissal of the respondent to be substantively
unfair on
the ground of inconsistent application of discipline. In concluding
that the respondent’s dismissal was substantively
unfair, the
arbitrator stated that:
‘
[25] The employer’s
basis for differential treatment is that the two employees (Brits and
Havenga) did not have any record
of final written warning against
them. I don’t agree that this is a valid basis for
differential treatment or to distinguish
between employees. The
employee is, in my view, justifiable to consider himself aggrieved.
The Labour Court in
SRV
Mill Services (Pty) Ltd v CCMA & Others
[2007] ZALC 64
;
[2004] 2 BLLR 184
(LC)
added that inconsistent treatment is ‘likely to produce in the
mind of interested and impartial observers alike a perception
of
unfairness and, possibly, one of bias or ulterior purpose. In
Greater Letaba Local
Municipality v Mangabe NO & Others
[2007] ZALC 74
;
[2008] 3 BLLR 229
(LC)
,
the court said consistent discipline, on the other hand, enhances
employees’ faith in the impartiality of the employer’s
disciplinary system and promotes respect and obedience for the rules.
[26] Taking into account the
generally applicable industrial norms, I find the decision to dismiss
the employee was substantively
unfair.’
[11] The arbitrator ordered the reinstatement of the respondent with
retrospective effect from 8 January 2010 without any loss
of
benefits.
Labour Court
[12] The appellant brought a review application in terms of section
145 of the Labour Relations Act
[1]
(“LRA”) in the court
a quo
for the review and
setting aside of the arbitrator’s award. The appellant sought
the review and setting aside of the arbitrator’s
award on the
ground that the arbitrator had committed a reviewable irregularity in
concluding that the respondent’s dismissal
was substantively
unfair on the ground that the appellant had inconsistently applied
discipline. It was the appellant’s contention
that the
arbitrator failed to take into account the fact that the respondent
only raised the issue of inconsistent (discipline)
treatment for the
first time when he gave evidence and that the issue of inconsistency
had not been put to the appellant’s
witnesses.
[13] The court
a quo
found the respondent’s dismissal to
be substantively unfair as the appellant had not, on a balance of
probabilities, proven
that the respondent was guilty of gross
negligence.
[14] On the issue of inconsistency, the court
a quo
made two
findings. Firstly, the court was of the view that the respondent had
clearly indicated on his referral form that he was
relying on the
ground of inconsistent treatment in challenging his dismissal. The
court
a quo
held that the appellant, on whom the
onus
was to prove that the respondent’s dismissal was fair, did not
provide any evidence in rebuttal, showing that there was a
fair and
proper distinction between the misconduct by the respondent and that
of Britz and Havenga. The court
a quo
went further and stated
that:
‘
[25] There is clearly no
evidence on the record to indicate that there was any distinction
made between Roos on the one hand and
Brits and Havenga on the other
hand on the basis of their disciplinary records. And, if
anything, the applicant did not establish
any basis for distinction,
not even in the form of an assertion between Roos and Havenga.’
[15] Secondly, the court
a quo
held that even if the
respondent had not raised the issue of inconsistent treatment at the
start of the arbitration proceedings
and during the cross-examination
of the appellant’s witnesses, this could not be held against
the respondent who was a lay
person and he should have been assisted
by the arbitrator in how to conduct cross-examination. The court
a
quo
concluded that the common law rule that a party who wishes to
lead evidence to contradict an opposing witness should first
cross-examine
the witness on the facts he intends contradicting so as
to enable the opposing witness to explain his version on the
potential
contradiction) was not inflexible.
[16] Overall, the court
a quo
found that the award was one a
reasonable arbitrator would have made.
Appeal
[17] The appellant’s grounds of appeal are the following:
17.1 that the Labour Court erred in finding that the respondent’s
dismissal was substantively unfair in that the appellant
failed to
show that there was a fair reason for the dismissal;
17.2 that the Labour Court erred in finding that the arbitrator had
not committed a reviewable irregularity in finding that the
dismissal
of the respondent is substantively unfair because the appellant had
inconsistently applied discipline in dismissing the
respondent; and
17.3 that the Labour Court erred in finding that the arbitrator had
not committed a reviewable irregularity in determining the
issue of
inconsistent application of discipline without advising the appellant
of the need to adduce evidence to rebut the respondent’s
claim
of inconsistent treatment in his dismissal.
[18] At the hearing of the appeal, the parties correctly pointed out
that the issue of the guilt of the respondent for the misconduct
he
was charged with was not before the court
a quo
as the
arbitrator did not conclude that the respondent’s dismissal was
substantively unfair because he was not grossly negligent.
I am
therefore of the view that the appellant ought to succeed on the
first ground of appeal.
[19] The issues to be determined in this appeal are the following:
19.1 whether the arbitrator’s decision that dismissal was
substantively unfair because appellant had applied discipline
inconsistently was reviewable; and
19.2 whether the arbitrator had committed an irregularity in not
advising the appellant and respondent’s representatives
to
adduce evidence on the alleged differential application of discipline
by the appellant.
[20] In
Herholdt v Nedbank Ltd,
[2]
the Supreme Court of Appeal clarified the test in
Sidumo
[3]
as follows:
‘
[25] For a defect in the
conduct of the proceedings to amount to a gross irregularity as
contemplated by section 145(2)(a)(ii),
the arbitrator must have
misconceived the nature of the inquiry or arrived at an unreasonable
result. A result will only
be unreasonable if it is one a
reasonable arbitrator could not reach on all the material before the
arbitrator. Material errors
of fact, as well as the weight and
relevance to be attached to particular facts, are not in and of
themselves sufficient for an
award to be set aside, but are only of
any consequence if their effect is to render the outcome
unreasonable.’
[4]
[21] In terms of the appellant’s standard safety procedures,
the respondent, as a miner and as part of his duties, was expected
to
check and ensure the general safety of the area where mining
activities were to take place, which included the barring of
unsecured
areas to prevent loose rocks from falling. In terms of the
appellant’s Disciplinary Code, the sanction for failure to
comply
with safety procedures is dismissal.
[5]
[22] It is common cause that the respondent had contravened a
standard safety procedure, which rendered the workplace unsafe. At
the arbitration hearing, the respondent did not, with conviction,
dispute the fact that he had allowed the production team to enter
the
working environment without making sure it was safe to start drilling
therein. The respondent testified that:
‘
When they started
bolting, after barring down, they started from the safe side worked
towards the bad hanging.
’
[23] In his evidence in chief, the respondent testified that the
working place was safe; he testified that he only visually inspected
the working area to ensure that it was safe. The respondent was
therefore aware of the rule or standard or should have known what
was
expected of him and had failed to comply. It is further common cause
that at the time of the respondent’s disciplinary
hearing, he
was on a final written warning for a safety infraction.
[24] It is the appellant’s contention that the court
a quo
erred in not finding that the arbitrator’s decision to
reinstate the respondent was a reviewable irregularity in that it
was
not one a reasonable decision-maker could have made in light of the
available evidence. It was argued on behalf of the appellant
that the
arbitrator, in concluding that the respondent’s dismissal was
substantively unfair failed to apply his mind to the
facts by
ignoring the evidence of Phahlane. It is submitted in this respect
that Phahlane took into account the fact that the respondent
was on a
final written warning for a safety breach; the respondent had shown
no remorse; the respondent’s short tenure of
employment with
the appellant and the gravity of the respondent’s misconduct.
It is also the appellant’s contention
that the arbitrator
misconducted himself in failing to advise both the appellant and the
respondent of the need to provide evidence
on the issue of
inconsistency. It was further argued on behalf of the appellant that
the arbitrator committed a reviewable irregularity
in not giving the
appellant an opportunity to adduce evidence on the issue of
inconsistency because it was only raised for the
first time during
his evidence in chief. The appellant submits that the question of
inconsistent application of discipline was
never raised during the
disciplinary hearing because of the failure by the respondent to
participate. Moreover, its witnesses in
the arbitration, in
particular Labuschagne and Phahlane, were never confronted about the
issue of inconsistency. It is the appellant’s
contention that,
when the respondent raised the issue of inconsistent application of
discipline, the arbitrator should have advised
the appellant’s
representative of the need to adduce evidence to rebut the allegation
of inconsistent application of discipline.
[25] The respondent’s Counsel, whilst admitting that the
respondent only mentioned the issue of inconsistency in the referral
form to the CCMA, contended that the appellant was aware at the start
of the arbitration hearing that inconsistency was an issue.
It was
further submitted that the
onus
was on the appellant to show
that there was no inconsistency in the application of discipline
between the respondent on the one
hand, Britz, and Havenga on the
other hand. With regard to the appellant’s third ground of
appeal, it was submitted on behalf
of the respondent that at the
arbitration hearing, the appellant was in a position to deal with the
issue of inconsistency even
if it was not pertinently raised at the
start of the proceedings because a person with experience in labour
matters represented
it. Respondent’s counsel argued that the
arbitrator’s role is to assist lay persons on how to conduct
themselves during
proceedings but not to advise them on the evidence
they should adduce in order to successfully prosecute their claim or
defence.
[26] Item 7 of the Code of Good Practice: Dismissal, provides,
inter
alia
, that:
‘
Any person who is
determining whether a dismissal for misconduct is unfair should
consider –
…
(b)
if a rule or standard was
contravened, whether or not –
…
(iii)
the rule or standard has
been consistently applied by the employer; and
(iv)
dismissal was an
appropriate sanction for the contravention of the rule or standard.’
[27] Item 3(6) of the Code of Good Practice: Dismissal, provides that
for a fair dismissal “the employer should apply the
penalty of
dismissal with the way in which it has been applied to the same and
other employees in the past, and consistently as
between two or more
employees who participate in the misconduct under consideration.”
In
SA Commercial Catering and Allied Workers Union and Other v
Irvin & Johnson Ltd,
[6]
the court stated that:
‘
[29] ….Consistency
is simply an element of disciplinary fairness (M S Brassey ‘The
Dismissal of Strikers’ (1990)
11 ILJ 213 at 229). Every
employee must be measured by the same standards (
Reckitt
and Colman (SA) (Pty) Ltd v Chemical Workers Union and Others
(1991) 12 ILJ 806 (LAC) at 813 H-I). Discipline must not be
capricious. It is really the perception of bias inherent
in
selective discipline, which makes it unfair…’
[7]
[28] It is trite that an employer bears the
onus
of proving
that an employee’s dismissal is fair. In the event of the
employee challenging his dismissal on the ground that
the employer is
guilty of applying discipline inconsistently, it is incumbent on the
employee to pertinently raise the issue of
inconsistent treatment and
present evidence showing the inconsistency. Once he does that, the
employer bears
prima facie
the burden of explaining the
distinction made between the employee’s misconduct and that of
previous infractions by other
employees.
[29] Even though the respondent did make reference to “inconsistency”
in his referral to the CCMA, none of the appellant’s
witnesses
were confronted with this issue. The respondent only brought up this
issue when he testified. It cannot therefore be
said that the
appellant was aware what facts were relied on to invoke a claim that
inconsistent treatment had occurred and could
not therefore have been
expected to have dealt with it when it presented its case. Had the
respondent participated in the disciplinary
hearing, it is possible
that the alleged inconsistency of the application of discipline by
the appellant would have been raised,
thus making the appellant aware
of it and giving the opportunity to prepare and deal with it at the
arbitration hearing. In
National Union of Mineworkers on behalf of
Botsane v Anglo Platinum (Rustenburg Section),
[8]
the court stated that:
‘
[39] Moreover, as a
matter of practice, a party, usually the aggrieved employee, who
believes that a case for inconsistency can
be argued, ought, at the
outset of proceedings, to aver such issue openly and unequivocally so
that the employer is put on proper
and fair terms to address it.
A generalised allegation is never good enough. A concrete allegation
identifying who the persons
are who were treated differently and the
basis upon which they ought not to have been treated differently must
be set out clearly.
Introducing such an issue in an ambush-like
fashion, or as an afterthought, does not serve to produce a fair
adjudication process
(
SACCAWU
and Others v Irvin & Johnson
(1999) 20 ILJ 2302 (LAC) at [29]; also see
Masubelele
v Public Health and Social Development Bargaining Council and Others
[2013] ZALCJHB TR2008/1151 which contains an extensive survey of the
case law about the idea of inconsistency in employee discipline)”.
[30] In view of the fact that the respondent had not clearly made
inconsistent treatment an issue, I am of the view that the arbitrator
committed a reviewable irregularity in allowing the respondent’s
evidence on inconsistent treatment, particularly as the
appellant was
not given an opportunity to deal with this issue.
[31] Inconsistency is but one of the factors an arbitrator has to
take into account in determining whether dismissal is an appropriate
sanction under the circumstances of the case. It appears that in
deciding to reinstate the respondent, the arbitrator failed to
appreciate the fact that the respondent was a recidivist for similar
safety related misconduct. The respondent was not a first
time
offender and if one takes into account the premium the mining
industry places on safety and the consequences thereof in the
event
of an accident, the misconduct renders a continued employment
relationship intolerable. In
De Beers Consolidated Mines Ltd
v CCMA and Others
,
[9]
this Court stated that:
‘[22]
Dismissal is not an
expression of moral outrage; much less is it an act of vengeance.
It is, or should be, a sensible operational
response to risk
management in the particular enterprise. That is why
supermarket shelf packers who steal small items are
routinely
dismissed. Their dismissal has little to do with society’s
opprobrium of a minor theft; it has everything
to do with the
operational requirements of the employer’s enterprise.’
[10]
[32] The fact that this was the respondent’s second act of
misconduct for a safety breach is indicative of the respondent’s
nonchalant attitude towards safety issues. I am of the view that the
arbitrator failed to appreciate that the respondent’s
second
safety breach distinguishes his case from that of Britz and Havenga,
as he was already on a final written warning. In
National Union of
Mineworkers and Another v Amcoal Colliery t/a Arnot Colliery and
Another,
[11]
the court held that the imposition of a final written warning on an
employee who was already on a final written warning would render
the
principle of progressive discipline nugatory. The arbitrator failed
to have regard to the respondent’s previous final
written
warning that was a material fact in the consideration of whether his
dismissal was substantively fair.
[12]
The mining industry places a premium on safety in view of the
consequences of an accident. The respondent showed no remorse and
appreciation of the risk his misconduct posed on the appellant’s
operations. I am satisfied that, in light of the seriousness
of the
misconduct, the respondent’s disciplinary record and the
respondent’s lack of remorse, the arbitrator’s
decision
to reinstate the respondent with a final warning is a gross
irregularity which is reviewable and ought to be set aside
.
[33] Even if I am wrong in my conclusion with regard to the second
ground of appeal, I am of the view that the arbitrator failed
in his
duties as an arbitrator in, firstly, not advising the appellant of
the need to adduce evidence to rebut the respondent’s
claim of
inconsistent application of discipline. Secondly, if he was aware
that the respondent’s defence to the charge he
was convicted of
was that of inconsistent application of discipline, he failed to
advise the respondent of the need to cross-examine
the appellant’s
witnesses or put his version so that that the appellant’s
witnesses could respondent to it.
[34] In terms of the so-called “helping hand” cases,
there is an obligation on arbitrators to guide and assist parties
represented by lay persons in matters of procedure and evidentiary
steps that need to be taken. Failure to do so, in appropriate
circumstances, could render an award susceptible to review on the
ground of an irregularity in the proceedings. In
Bafokeng Rasimone
Platinum v CCMA and Others,
[13]
the court stated that:
‘
In conclusion, it needs
to be stated that whereas there is a duty on arbitrators to provide
guidance and assistance to lay litigants,
the question of whether
such duty arose and whether failure to carry it out is an
irregularity rendering an award reviewable is
a matter to be decided
with reference to the particular circumstances of each case. Care
should be taken not to straddle the fine
line between legitimate
intervention by an arbitrator and assistance amounting to advancing
one party’s case at the expense
of the other. Otherwise, we
would be opening the flood gates allowing every lay representative
who has bungled his/her case to
seek its re-opening by shifting the
blame to the arbitrator. At the end of the day, the cardinal question
is whether the merits
of the dispute have been adequately dealt with
and fairly so in compliance with the provisions of section 138 of the
Labour Relations
Act. That question can best be answered by
considering the conduct of the arbitration proceedings as a whole
rather than
“
knitpicking
through
every
shrapnel of evidence that was considered or not considered”, as
was stated in
Coin
Security Group (Pty) Ltd v Machago
(2000) 5 BLLR 283
(LC).’
[35] As indicated in paragraph 30 above, the arbitrator should have
disallowed the evidence on inconsistent treatment as it was
not
pertinently raised for the appellant to deal with it. The fact that
the appellant’s representative was from a large employers’
organisation and should have been aware that it ought to counter the
claim of inconsistency has no basis in view of the fact that
the
issue of inconsistency only emerged after the appellant’s
witnesses had testified. Since the gravamen of the arbitrator’s
decision that the respondent’s dismissal was substantively
unfair because the appellant had treated him differently form
Britz
and Havenga for the same misconduct, it was crucial for the appellant
to be given an opportunity to present evidence to contradict
the
respondent’s claim.
[36] It is common cause that neither at the commencement of the
arbitration hearing nor during the cross-examination of the
appellant’s
witnesses did the respondent, or even the
arbitrator raise inconsistency in the application of discipline, as
an issue.
[37] I am therefore of the view that the arbitrator committed a
reviewable irregularity in the conduct of the proceedings by failing
to advise the appellant’s representative and the respondent of
the need to lead evidence to rebut the claim of inconsistency
or to
cross-examine the appellant’s witnesses on the issue of the
inconsistent application of discipline.
[38] I am satisfied that the arbitrator’s decision that the
respondent’s dismissal was substantively unfair to be one
a
reasonable decision-maker could not have reached with the available
material before him.
[39] Accordingly, the following order is made:
1. The appeal is upheld.
2. The order of the court
a quo
is set aside and substituted
with the following order:
‘The arbitration award reference number MP165-10 issued by the
second respondent is reviewed and set aside and replaced by
an order
that ‘the dismissal of the respondent was both procedurally and
substantively fair’.
3. No order as to costs is made.
Mngqibisa-Thusi
AJA
Tlaletsi
DJP and Sutherland JA concur in the judgment of Mngqibisa-Thusi AJA
APPEARANCES:
FOR
THE APPELLANT:
Adv M J Van As
Instructed by Cliffe Dekker Hofmeyr Inc
FOR
THE THIRDRESPONDENT:
Mr A Goldberg of Goldberg Attorneys
[1]
Act 66 of 1995.
[2]
[2013] 1 BLLR 1074
(SCA) at para 25.
[3]
Sidumo and Another v Rustenburg Platinum Mines Ltd
and Others
2008 (2) SA 24
(CC);
[2007] 12
BLLR 1097
(CC).
[4]
At para 25.
[5]
Item 9.5 of the Disciplinary Code lists ‘non-compliance
with safety rules’ as one of the acts of misconduct warranting
the sanction of a dismissal.
[6]
(1999) 20 ILJ 2302 (LAC).
[7]
At para 29. See also in this regard
Hullett
Aluminium (Pty) Ltd v Bargaining Council for Metal Industry
(2008) 29 ILJ 1180 (LC) the court at para 39
National
Union of Metalworkers of SA and Others v Henred Freuhauf Trailers
(Pty) Ltd
(1992) 15 ILJ 1257 (A) at 1264
A-D.
[8]
(2014) 35 ILJ 2406 (LAC).
[9]
[2000] 9 BLLR 995
(LAC).
[10]
At para 22.
[11]
(2000) 5 LLD 226 (LAC).
[12]
Sidumo
at para 268
.
[13]
[2006] 7 BLLR 647
(LC) at para 17.