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[2017] ZALAC 3
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Noosi v Exxaro Matla Coal (JA62/2015) [2017] ZALAC 3 (10 January 2017)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 62/2015
In the matter between:
TSEPANG PASCALIS
NOOSI
Appellant
and
EXXARO MATLA
COAL
Respondent
Heard:
25 August 2016
Delivered:
10
January 2017
Summary:
The appellant employee was dismissed from the services of the
respondent company for gross negligence
in that he failed to comply
with the Safety Rules and gross insubordination as he refused to
carry out a safety related instruction.
The CCMA- finding that the
dismissal was procedurally and substantively fair. The Labour Court-
dismissing the application for
condonation of the late filing of the
review application but dealing with the merits of the review. The
Labour Court- finding that
the dismissal was fair as it measured up
to the standard of reasonable decision makers. The decision of the
Labour Court confirmed
on appeal.
Coram:
Landman JA, Savage AJA, and Phatshoane AJA
JUDGMENT
PHATSHOANE AJA
[1] This is an appeal
against the whole of the judgment of the Labour Court (per Molahlehi
J) handed down on 25 June 2015 refusing
to condone the late filing of
the review application and dismissing the review with no order as to
costs. The appeal is with leave
of this Court.
The factual background
[2] Mr Tsepang Pascalis
Noosi (Mr Noosi), the appellant, commenced working for Exxaro Matla
Coal, the respondent, on 14 February
1995 as an electrician. This
case concerns the alleged breach of the Safety Rules and Regulations
by him. Mr Hermanus Petrus Schoeman
(Mr Schoeman), a senior foreman
and head of department (Maintenance), testified in the case for
Exxaro and stated that Mr Noosi
was under his supervision whereas Mr
Moses Mcina was his line supervisor.
[3] The offence said to
have been committed by Mr Noosi has its genesis in the workings of
the conveyor belt the operation of which
Mr Schoeman explained as
follows. The conveyor has stop switches at every 200 meters. The
switches are utilised to stop the conveyor
belt from running in cases
of an emergency. From the last stop switch is a feeder breaker with a
pull wire on each side which have
been installed for safety reasons.
The belt is stopped by pulling these wires. The conveyor belt cannot
run without these wires
extending up to the feeder breaker on both
sides. Mr Schoeman explained that it is the duty of the electricians,
of which Mr Noosi
was one, to lock out the belt; extend the stop
switches; and fit in the pull wire. It was also the duty of every
employee to ensure
the safety of fellow employees.
[4] On 27 January 2010,
during the day shift, the Inspector of Mines paid Exxaro a visit at
section 22. On the day in question Mr
Noosi accosted Mr Schoeman and
the shaft manager. He informed them that the section conveyor belt
was running and that the pull
wire had not been extended from the
last stop switch up to the section feeder breaker. Mr Schoeman says
that he gave Mr Noosi a
lawful and reasonable safety instruction, in
the presence of the shaft manager, because he had the authority and
the legal duty
to do so, to stop the conveyor belt and lock it out.
Mr Noosi climbed on the belt bridge and walked over the belt. At some
stage,
in the process, he turned to face Mr Schoeman and the shaft
manager.
[5] Later on that day, 27
January 2010, the Inspector pointed to Mr Schoeman and the shaft
manager to alert them that the belt was
running without the pull wire
extending up to the feeder breaker. He instructed them to stop the
belt immediately which they did.
Mr Schoeman called Mr Noosi and
enquired from him in the presence of the Inspector, the shaft
manager, and the safety officer,
why he did not carry out his
instruction to stop the belt as earlier directed. According to Mr
Schoeman, Mr Noosi made some argument
to justify his failure to
comply with the instruction.
[6] Mr Schoeman went on
to testify that Mr Noosi disregarded the mine’s Safety Rules
and Regulations and created a false impression
to the Inspector
regarding the mine’s safety measures. He remarked that the mine
had been fortunate not to have received
a fine from the Inspector in
respect of the incident. Prior to this episode, during his induction,
Mr Noosi wrote and did well
in a test on conveyor belts and was
properly trained in the mining environment. In one of the tests Mr
Noosi was required,
inter alia
, to name eight forms of abuses
of conveyor belts. One of his answers was “Not following the
lock-out procedures”.
[7] Mr Schoeman explained
that the disciplinary enquiry against Mr Noosi, for this
transgression, was not instituted immediately
following his
misconduct because Noosi had been intermittently off duty in the
period stretching from 28 January to 24 March 2010.
On a document
handed in as evidence headed: “Sequence of events” it is
recorded that on 28 January 2010 he was in Witbank;
on 01 to 03
February 2010 he was in Lesotho; on 04 February 2010 he was off sick;
on 05 February 2010 he visited a dentist; on
08 February to 19 March
2010 he took his annual leave. He returned to work on 23 March 2010.
Apart from these events Mr Noosi had
prior pending disciplinary cases
against him at the workplace. Mr Schoeman says that the shaft manager
reported to him that there
was a special request from Mr Noosi’s
union, National Union of Mineworkers (NUM), that these cases be
completed prior to
the issuance of a fresh notice to attend a
disciplinary enquiry. He says that Mr Noosi had been made aware of
this arrangement
by Mr Moses Mcina, a foreman.
[8] The extract from
Exxaro’s Disciplinary Code provides in part:
‘
4.24
Provision is made for a more flexible time period in order to protect
the Company in any instances where
the initiation process is slowed
down or beyond the direct control of the Company. A complaint, which
has been verified, should
be initiated within a period of 3 (three)
working days after management have reasonably become aware of such an
alleged offence
or complaint.
The
Company reserves the right to initiate disciplinary proceedings
outside of the period of 3 (three) working days in circumstances
which are out of its direct control and the Company hereby undertakes
not to unreasonably delay the initiation of the proceedings.
4.25 The
purpose hereof is to ensure that the individual complaint is
considered by management and resolved
as close as possible to the
point of origin and as expeditiously as practically possible.
The
company and the employees lodging the complaint may by mutual
agreement, extend or reduce the time limit of such procedure.
5.3
Unless otherwise agreed, not more than 10 working days should elapse
between the fact-finding
enquiry and a disciplinary hearing.’
(My emphasis)
[9] On 18 May 2010 Mr
Noosi was charged with these two acts of misconduct:
9.1
Contravention of Code 11 (gross Negligence) in that on 27 January
2010 he failed to install
an emergency stop pull wire between the
last emergency stop and the feeder breaker on the section belt in
section 22 and allowed
the conveyor belt to be operated in
contravention of the
Mine Health and Safety Act, 29 of 1996
.
9.2
Contravention of Code 5 (gross Insubordination) in that on 27 January
2010 he was instructed
by the senior foreman (head of Maintenance) to
stop the section belt in section 22, when the specified belt was
operated without
an emergency stop pull wire between the last
emergency stop and the feeder breaker.
[10] Mr Schoeman
testified that the trust relationship between the mine and Noosi had
disintegrated irreparably due to these transgressions.
The
Disciplinary Code sanctions immediate dismissal for gross
insubordination. Pursuant to a disciplinary enquiry Mr Noosi was
dismissed from the services of Exxaro on 07 June 2010. According to
Mr Schoeman there were employees who committed similar misconduct
and
were charged of gross negligence. They exculpated themselves by
demonstrating to the presiding officer that they made attempts
to
have the belt moving by extending the pull wire. They also guarded
the area for their entire shift. They were exonerated.
[11] Mr Maxwell Modau is
the HR officer at Exxaro. His evidence essentially confirmed that Mr
Noosi had been intermittently absent
from work during the period 28
January 2010 to 24 March 2010 as already alluded to.
[12] Mr Noosi called Mr
Moses Mcina to testify in his case. Mr Mcina says that on 27 January
2010 Noosi reported to him that the
conveyor belt was running without
stop switches, the green line and the pull wires. Mr Mcina inspected
the situation as he knew
that it could be hazardous. He confirmed
that the section electricians, amongst whom was Mr Noosi, were
responsible for installing
the pull wires, the green line and the
stop switches. According to him everyone in the section, including Mr
Noosi, was responsible
for safety in that section as well as the
safety of fellow workers.
[13] In his defence Mr
Noosi testified that his responsibilities were to take hour meter
readings at the beginning and the end of
the shift; reporting on
cables; and attending to electrical breakdowns but not all of them.
He referred to a document headed: “Standards
for Installation,
Operation, Repair, Maintenance and Patrolling of Belt Conveyor
System” in terms whereof, he says, the Foreman
Services,
through his electricians, ensured that “Every Conveyor belt is
fitted with a lock-out and the green line pull wire
accessible from
both sides of the conveyor system, along the length of the conveyor,
to stop the system at any point in case of
an emergency”. This
was not his responsibility because he worked at the production
department. In instances where the belt
was running without stop
switches and the green line the crew would fix it. He added that the
conveyor belt operator was responsible
to stop the belt or to rerun
it. He was not a belt operator.
[14] Mr Noosi says that
on 27 January 2010 he met Mr Schoeman next to the feeder breaker. He
reported to Mr Schoeman that the stop
switches and the pull wires
were not in a working order. At no time did Mr Schoeman give him
instructions as alleged or at all.
He was on leave from 26 February
to 18 May 2010 and was notified of his disciplinary enquiry on the
date that he returned to work.
He was not informed that there would
be some delay in the initiation of his disciplinary enquiry.
[15] The above was the
sum total of the evidence that served before the commissioner.
The arbitration award
[16] The commissioner
comprehensively sketched out the evidence that was led during the
arbitration in his award. With regard to
the procedural fairness of
the dismissal, although he did not say this in so many words, it
appears that he accepted Exarro’s
version that it was not
possible to hold the disciplinary enquiry against Mr Noosi within the
time-frame stipulated in the Disciplinary
Code because he had
intermittently been on leave. In addition, his union had requested
that the enquiry be held in abeyance pending
the finalisation of his
other disciplinary enquiries at the workplace.
[17]
Having had regard to Item 4.24 of the Disciplinary Code
[1]
the commissioner determined that Exxaro was unable to subject Mr
Noosi to a disciplinary enquiry within the time-frames set out
in the
Code for reasons beyond its control. Consequently, he concluded that
the dismissal was procedurally fair.
[18] With regard to the
substantive fairness of the dismissal the commissioner found that Mr
Noosi was not a credible witness in
that he gave contradictory
versions on whether Mr Schoeman gave him an instruction to stop the
conveyor belt and lock it out. The
commissioner had no doubt that Mr
Schoeman gave Mr Noosi the instruction. On the basis of this he
concluded that Mr Noosi’s
dismissal was substantively fair.
Resultantly, on 19 October 2010, the commissioner dismissed Mr
Noosi’s alleged unfair dismissal
claim.
The review proceedings
[19]
On 10 February 2011, eight weeks and four days outside the statutory
prescribed six-week period,
[2]
Mr Noosi filed the review application with the Labour Court
accompanied by an application for condonation.
[20] In his explanation
of the delay Mr Noosi states that upon receipt of the award Mr
Richard Mahlangu, his representative at NUM,
advised him that the
award was forwarded to NUM’s regional office in Witbank for a
decision whether to review it. He says
that a certain Mr Malahlela of
NUM’s regional office informed him that he had, in turn,
forwarded the award to Mr Lazarus
Nica Rakau at NUM’s head
office in Johannesburg for an opinion. Mr Noosi intimated that in
December 2010 he called Mr Mahlangu
who informed him that the review
had already been filed at the Labour Court and that it will take
months to be finalised.
[21] Mr Noosi claims that
on 07 February 2011 he again enquired from Mr Mahlangu about the
progress in the matter. Mr Mahlangu called
Mr Rakau who replied that
he knew nothing about the case. Mr Mahlangu then reminded Mr Rakau of
their December 2010 conversation.
Mr Rakau then said that he thought
that at that stage, in December 2010, he was talking to a different
Mr Mahlangu and that the
report he gave at that the time, about the
review having been lodged, pertained to a different case. Mr Noosi
says that on investigation
it became apparent that Mr Malahlela of
the regional office had indeed sent the award to Mr Rakau but the
latter had not received
it due to a computer crash. He further states
that the “
Information technologies experts were allegedly
engaged and they retrieved the fax from Malahlela. Rakau and Mahlangu
then discussed
the case with me and told me that I do not have good
prospects of success with my case”
. The two union officials
declined to assist him further. He then instructed his current
attorneys to institute the review proceedings
on his behalf.
[22] Mr Noosi stated that
the union officials he interacted with refused to provide him with
confirmatory affidavits. It is noteworthy
that, in support of his
explanation for the delay, he did not provide the specific dates in
respect of which he communicated with
his union. Two and half years
later, on 29 July and 30 August 2013, Mr Rakau and Mr Mahlangu,
attested to the confirmatory affidavits
in support of Mr Noosi’s
case. Save to confirm the correctness of the contents of Mr Noosi’s
founding affidavit, insofar
as it related to them, they denied having
refused to depose to the confirmatory affidavits which Mr Noosi
sought from them.
[23] The Court
a quo
set out comprehensively the explanation proffered by Mr Noosi for the
late filing of the review application. It then dealt with
the
principles governing applications for condonation. The Judge
a quo
was of the view that Mr Noosi was supposed to have provided reasons
why the union officials that were assisting him refused to
provide
him with the confirmatory affidavits but did so only two and half
years later. The Judge was of the view that the filing
of these
supporting affidavits was an afterthought actuated by Exxaro’s
objection to the impermissible hearsay contained
in Mr Noosi’s
founding papers and that Mr Noosi had also failed to attach the
affidavits of the technicians who allegedly
retrieved the award from
the computer that had crashed. He held that Mr Noosi could not be
absolved from the negligence of his
union because,
inter alia
,
he failed to mention the date in respect of which his union advised
him that he had no prospects of success in reviewing and setting
aside the award. Mr Noosi also did not say on which date he
instructed his attorneys to take over the matter from his union. The
Judge then remarked that “
It may well be that the delay was
occasioned by the attorneys also. It may also be as indicated above
that the two union officials
may have told applicant in time that he
did not have a case but he delayed instructing his attorneys to
institute the review application.
” Accordingly, the Court
refused to grant condonation in the light of the poor explanation
provided by Mr Noosi for the delay.
[24] The Court
a quo
found it expedient, in the event it was found to have been incorrect
in refusing condonation, to deal with the merits of the review
application. It did so painstakingly covering all the defences that
Mr Noosi had raised. It found the review to be without merit
and
reasoned that the conclusion reached by the commissioner was
reasonable on the material before him. It then dismissed the review.
The grounds of appeal
[25] The grounds of
appeal are convoluted, characterised by argument and disjointed
criticism of the judgment of the Court
a quo
. In respect of
the application for condonation, paraphrased, they boil down to the
following. That the Court
a quo
erred:
25.1
In its piecemeal approach to the application for condonation, in
particular, ignoring Mr Noosi’s
good prospects of success and
not exercising its discretion judicially;
25.2.
In holding that the Court will not readily grant condonation in
individual dismissal cases unless an applicant’s
case was
compelling. It was argued that this is tantamount to unfairly
discriminating against employees in individual dismissal
cases whose
jobs were just as important as in mass or group dismissals cases;
25.3
In holding that the delay was excessive and that the explanation
proffered by Mr Noosi for the delay
was insufficient;
25.4
In finding that the union officials had acted negligently thereby
delaying the filing of the review
application. That the delay was not
as a result of any negligence on the part of the union officials but
fallibility of humankind;
and
25.5
In finding that Mr Noosi could not be absolved from the negligence of
the union.
[26] The grounds of
appeal in summary, in respect of procedural fairness of the
dismissal, are that the Court
a quo
erred:
26.1
In finding that Exxaro had not lost its authority to discipline Mr
Noosi. Mr Makinta, for Mr Noosi,
contended that Exxaro did not have
the authority to institute disciplinary proceedings against Mr Noosi
after the time prescribed
in the Disciplinary Code had lapsed. That
Exxaro was not prevented by circumstances beyond its control to hold
the disciplinary
enquiry. In any event, counsel argued, there was no
agreement between NUM and Exxarro to suspend the institution of a
disciplinary
enquiry beyond the period prescribed in the Code.
[27] With regard to the
substantive fairness of the dismissal the grounds of appeal and the
argument advanced, condensed, are that
the Court
a quo
erred:
27.1
In finding that Mr Noosi’s defence to the effect that Mr
Schoeman did not have authority to give
him the instruction that he
did was unsustainable. Mr Makinta argued that Mr Noosi did not hear
Mr Schoeman’s instruction
to stop the conveyer belt. In any
event, he went on, the instruction was not valid, lawful and
enforceable as it was in conflict
with Exxaro’s policies.
According to counsel, Mr Schoeman was also not authorised to give the
instruction because he was
not Mr Noosi’s immediate supervisor;
that Mr Noosi was prohibited from carrying out the instruction
because he was not a
service electrician but was engaged in the
production department; and that he was also not employed to operate
and stop the conveyer
belt.
27.2
In finding that the documentary evidence confirmed that it was Mr
Noosi’s responsibility to carry
out the instruction.
27.3
In finding that Mr Noosi failed to establish a
prima facie
case of inconsistency whilst the evidence was that two of his
colleagues had committed the same offence but were not dismissed.
[27.4]
In finding that the misconduct complained of
was very serious and
broke the trust relationship between Exxaro and Mr Noosi irreparably.
Analysis of the
grounds of appeal with regard to the application for condonation
[28]
Condonation for the non-observance of the Rules of this Court and the
Labour Court is by no means a mere formality.
[3]
The Court restated the principles that underpin the consideration of
the application for condonation as follows in
Melane
v Santam Insurance Co Ltd
[4]
‘
In deciding
whether sufficient cause has been shown, the basic principle is that
the Court has a discretion, to be exercised judicially
upon
consideration of all the facts, and in essence it is a matter of
fairness to both sides. Among the facts usually relevant
are the
degree of lateness, the explanation therefor, the prospects of
success, and the importance of the case. Ordinarily these
facts are
interrelated: they are not individually decisive, for that would be a
piecemeal approach incompatible with a true discretion,
save of
course that if there are no prospects of success there would be no
point in granting condonation. Any attempt to formulate
a rule of
thumb would only serve to harden the arteries of what should be a
flexible discretion. What is needed is an objective
conspectus
of all the facts.
Thus a slight delay and a good explanation may help to compensate for
prospects of success that are not strong.
Or the importance of the
issue and strong prospects of success may tend to compensate for a
long delay. And the respondent's interest
in finality must not be
overlooked.’
[5]
[29]
The
delay of eight weeks and four days outside the six-week period
provided for in s 145 of the LRA, as correctly found by the Court
a
quo,
was
inordinate. One of the primary purposes of the LRA is the effective
and expeditious resolution of labour disputes.
[6]
On this score the Constitutional Court had the following to say in
Commercial
Workers Union of SA v Tao Ying Metal Industries and Others
[7]
‘
The LRA
introduces a simple, quick, cheap and informal approach to the
adjudication of labour disputes. This alternative process
is intended
to bring about the expeditious resolution of labour disputes. These
disputes, by their very nature, require speedy
resolution. Any delay
in resolving a labour dispute could be detrimental not only to the
workers who may be without a source of
income pending the resolution
of the dispute, but it may, in the long run, have a detrimental
effect on an employer who may have
to reinstate workers after a
number of years.’
[8]
[Footnote omitted]
[30]
The applications for condonation in individual dismissal cases should
be strictly scrutinised for purposes of speedy resolution
of labour
disputes. In
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
[9]
this
Court pronounced that:
'[24] ... In principle, therefore, it
is possible to condone non-compliance with the time-limit. It
follows, however, from what
I have said above, that condonation in
the case of disputes over individual dismissals will not readily be
granted. The excuse
for non-compliance would have to be compelling,
the case for attacking a defect in the proceedings would have to be
cogent and
the defect would have to be of a kind which would result
in a miscarriage of justice if it were allowed to stand.
[25] By adopting a
policy of strict scrutiny of condonation applications in individual
dismissal cases I think that the Labour Court
would give effect to
the intention of the legislature to swiftly resolve individual
dismissal disputes by means of a restricted
procedure, and to the
desirable goal of making a successful contender, after the lapse of
six weeks, feel secure in his award.'
[10]
This dictum was followed
in
Mbatha v Lyster and Others
(2001) 22
ILJ
405 (LAC);
[2001] 4 BLLR 409
(LAC) at para 18;
Hardrodt (SA) (Pty) Ltd v
Behardien and Others
(2002) 23
ILJ
1229 (LAC) at paras
3-4;
Shaik v South African Post Office Limited and Others
(DA
4/09)
[2013] ZALAC 18
(19 July 2013).
[31] In my view, failure
to deal with labour disputes promptly and effectively may render the
purpose of the LRA manifestly nugatory.
Mr Noosi did not provide a
plausible explanation for the wanton delay. He failed to provide the
dates in respect of which he interacted
with his union
representatives and those in respect of which he instructed his
attorneys of record to assist him. This would have
enabled the Court
to assess the legitimacy of the explanation proffered for the delay.
The remissness on the part of the union
officials to file the review
application in time ought to squarely be imputed to him.
[32] The prospects of
success, although not individually decisive, are an important
consideration to an application for condonation.
It was argued on
behalf of Mr Noosi that the Court
a quo
erred in considering
the condonation application on a piecemeal basis in that it did not
deal with the prospect of success. In
my view, there is no merit in
the argument because the Court
a quo
effectually dealt with
the merits of the review. Mr Noosi’s prospects of success were
poor. I will demonstrate this point
in my analysis of the grounds of
appeal on the review application to which I now turn.
Analysis of the
grounds of appeal with regard to the review application
The procedural
fairness of the dismissal
[33] At first blush the
institution of a disciplinary enquiry after the lapse of
approximately 111 calendar days appears to be excessive.
It will be
recalled that Exxaro justified this delay by demonstrating that Mr
Noosi had been on and off duty for a period stretching
from 28
January to 24 March 2010. It also said that there was an agreement
between itself and NUM to hold in abeyance the issuance
of the fresh
notice of a disciplinary enquiry against Mr Noosi pending the
finalisation of the other disciplinary enquiries he
was attending. In
terms of clause 4.25 of the Disciplinary Code Exxaro may extend or
reduce the time limit for the initiation of
a disciplinary enquiry by
mutual agreement with an employee.
[34] Apparent from the
truncated reconstructed record of the arbitration proceedings no
evidence was led to challenge the existence
of the agreement to defer
the disciplinary enquiry. Under cross-examination Mr Schoeman was
merely asked:
‘
Q:….Can
you prove that you were going to charge the Applicant after all
pending cases were finalised?
A: The applicant was informed that all
pending cases needed to be conducted before he could be charged. He
was aware.’
Mr Noosi did not take
this issue any further when he took the stand because he did not
disclaim the existence of the agreement.
The Court
a quo
cannot be faulted in having concluded that “the version of the
first respondent (Exxaro) that an agreement was reached with
the
union that the institution of the disciplinary proceedings against
the applicant should be delayed pending the finalization
of other
pending disciplinary action was not challenged by the applicant
(Noosi).” In addition, no shred of evidence was
presented by Mr
Noosi that he had been prejudiced by the delayed in the initiation of
his enquiry.
[35]
The Disciplinary Code does not necessarily restrict Exxaro to
initiate the enquiry within three or 10 days from the date of
the
commission of the misconduct. This is so because, in that same Code,
Exxaro reserved its right to institute the disciplinary
proceedings
outside the period of three working days in circumstances which were
beyond its direct control. It also undertook not
to unreasonably
delay the initiation of the proceedings.
[11]
The commissioner had regard to the delay in the institution of the
enquiry and was satisfied that it had been due to circumstances
beyond Exxaro’s control.
[36]
The review test as laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[12]
and
restated in several decisions of this Court and the Supreme Court of
Appeal
is
whether
the
decision reached by the commissioner is one that a reasonable
decision-maker could not reach.
[13]
I am of the view that the conclusion reached by the commissioner that
the dismissal was procedurally fair was reasonable.
The substantive
fairness of the dismissal
[37] The commissioner
correctly identified that, on the evidence presented, Mr Noosi was
dismissed on charges of gross insubordination
and gross negligence.
On a reading of the arbitration award it is apparent that the
complaint that Mr Noosi breached the safety
rules was overshadowed by
the allegation that he did not carry out the head of department’s
safety instruction. However,
it does not follow that the commissioner
cleared Mr Noosi of the breach of safety rules as Mr Makinta sought
to suggest. That suggestion
is, in my view, devoid of substance. The
complaint of gross insubordination was so intrinsically intertwined
with the offence of
gross negligence (Noosi’s alleged failure
to observe the safety rules).
[38] Exxaro’s
evidence to the effect that Mr Schoeman gave Mr Noosi instruction, in
the presence of the shaft manager, to
stop the conveyor belt and lock
it out was not seriously challenged. For instance, it was not put to
Mr Schoeman that he did not
give any instruction to Mr Noosi nor was
it put to him that the instruction was unlawful, invalid and/or
unenforceable.
[39]
Insofar as Mr Noosi did not put his version to Exxaro’s
witnesses Mr Makinta contended that there was a legal obligation
on
the commissioner to caution him and his representatives of their
failure in this respect. The following remarks in
Bafokeng
Rasimone Platinum Mine v Commission for Conciliation, Mediation and
Arbitration and Others
[14]
are
apposite:
‘
[17] 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 floodgates allowing every lay representative who
has bungled his/her case to seek
its reopening 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 s 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 'nitpicking
through every shrapnel of evidence that was
considered or not considered', as was stated in
Coin
Security Group (Pty) Ltd v Machago
(2000)
5 LLD 283 (LC).’
40] Mr Peter Nchabeleng
deposed to Exxaro’s answering affidavit. At 24.1, 24.2 and 60.2
thereof he states:
‘
24.1
The applicant’s allegation that the commissioner failed to
caution him together with his representative
to put his case to the
respondent’s witnesses in full is without basis when one takes
into account that the applicant was
represented by a seasoned union
representative with vast experience in the conduct of the arbitration
proceedings and was well
aware of the consequences of leaving
evidence unchallenged.
24.2 The
applicant was afforded an opportunity to cross-examine the
respondent’s evidence. Blame cannot
be accorded to the
Commissioner for the Applicant’s failure to cross-examine the
respondent’s evidence.
60.2 ……As
already stated elsewhere above, the applicant was represented in the
arbitration
hearing by a seasoned union representative who had
extensive experience in representing employees at the CCMA.’
[41] In his replying
affidavit Mr Noosi did not address any of these damning statements
against him and his representative. The
Court
a quo
was right
in finding that there was no evidence on the record that the union
representative was a lay person who did not understand
the
consequences of failure to put a version to a witness.
[42]
The argument that Mr Schoeman had no authority to give Mr Noosi
instructions is fallacious. He was the head of the department
and a
senior foreman in the section. The learned Judge
a
quo
found
that Mr Noosi did not produce any documentary evidence in a shape of
a policy or employment contract in support of his version
that: Mr
Schoeman had no authority to give the instruction; and that Noosi was
not a service electrician and therefore was not
authorised to execute
the instruction. The learned Judge was satisfied that the documentary
evidence presented by Exxaro, which
had not been questioned by Mr
Noosi, showed that the instruction given fell within his
responsibilities. He was persuaded by the
decision of the Labour
Court in
Exxaro
Coal Mpumalanga Ltd v CCMA and Others
(Unreported,
Case No: JR 269/11, delivered on 13 January 2015 in particular, the
following pronouncement at para 15:
‘…
Should
it be shown that the instruction was lawful, it would be the end of
the enquiry. If it is found that the instruction was
lawful, the
expectation is that the employee to whom such an instruction was
issued should have complied. It will have little,
if any, to do with
whether the instruction related to the employee’s job
description because it will never be a justification
for an employee
to refuse lawful instructions merely because the instructions are not
[his or her] direct functions.’
[43]
The whole argument by Mr Makinta to the effect that Exxaro’s
policy required that no one should perform any artisan work
unless
such an employee was specially trained and appointed to do that work
is not supported by any evidence that served before
the commissioner.
His argument that in terms of Exxaro’s Engineering policy “Lock
out Procedure for Conveyor Devices”
only an authorised
competent person could work on conveyor belts, including starting and
stopping the belt was never dealt with
at arbitration
[15]
nor was any witness confronted on the contents of the document.
[44] Exxaro presented
sufficient documentary evidence, as correctly found by the Court
a
quo
, to demonstrate that Mr Noosi, as an electrician, was
adequately equipped and responsible for the task he was requested to
perform
by Mr Schoeman. For instance, the induction tests relating to
the workings of the conveyor belts, which he passed with flying
colours,
were submitted in evidence during the arbitration.
[45] Mr Noosi’s
defences,
inter alia
, that the electricians were not
authorised to attend to the stop switches; that he was engaged in the
production department; and
that he was not a belt operator cannot
hold water. The probabilities are overwhelming that a valid,
reasonable and lawful instruction
was issued to him. He refused to
adhere to the order simply because that was not part of his
responsibility. Belatedly, in the
review papers, Mr Noosi stated that
he had previously been found guilty of having done work that he was
not qualified for. This
underhand attempt to introduce new evidence
on review is impermissible.
[46] Mr Makinta’s
further argument that Exxaro was inconsistent in the application of
discipline is unfounded for the reasons
that follow. As already
alluded to, Mr Schoeman testified that there were other employees,
without mentioning their names, who
were subjected to discipline for
the similar type of misconduct. They were exonerated, he said,
because they demonstrated to the
presiding officer that they made
attempts to have the belt moving by extending the pull wire. They
also guarded the area for their
entire shift. In what had become a
pattern, this piece of evidence was not challenged.
[47] In his supplementary
affidavit to the review application, Mr Noosi states that there were
service electricians, who worked
prior to his shift, who were not
subjected to similar discipline. Be that as it may, he did not lead
any evidence during the arbitration
of any disparate treatment. What
is baffling is that Mr Makinta’s argument took a different
direction. Before us he argued
that Mr Schoeman and Mr Mcina, both
electricians, were not disciplined for failing to stop the conveyer
belt and out of the blue
he also contended that the belt operator
ought to have been disciplined. Counsel conceded that these issues
were not raised before
the commissioner.
[48]
A generalised allegation of inconsistency is not sufficient. A
concrete allegation identifying who the persons are who were
treated
differently or preferentially and the basis upon which they ought not
to have been so treated must be set out clearly.
[16]
The argument on the inconsistent application of disciplinary measures
in this case cannot pass muster.
[49] The Court
a quo
correctly found that the misconduct committed by Mr Noosi was of a
serious nature. The fact that no injuries were sustained or
that
there had been no damage to any property cannot avail him. Mr
Schoeman’s evidence to the effect that the trust relationship
was completely destroyed, as a result of the misconduct committed by
Mr Noosi, remained uncontroverted and is persuasive. After
all, the
Disciplinary Code prescribed the sanction of dismissal for gross
insubordination.
[50] The Court
a quo
exercised its discretion judicially in refusing to condone the late
lodging of the review. There is nothing in this matter which
merits
that the findings of the commissioner or that of Court
a quo
be upset as there are no material or noteworthy misdirections.
Costs
[51] Mr Makinta confirmed
from the bar that NUM is funding the appeal and that the costs should
follow the result. Mr Noosi was
advised by his union that he had no
prospects of success but, despite this, he persisted with the appeal.
All things considered,
the requirements of law and fairness would
dictate that the costs follow the results of this appeal. I make the
following order:
Order
1.
The
appeal is dismissed with costs.
____________________________
MV Phatshoane
Acting Judge of the
Labour Appeal Court
Landman JA and Savage AJA
concur in the judgment of Phatshoane AJA
APPEARANCES:
FOR THE
APPELLANT:
Mr M.E.S. Makinta
Instructed by E.S.
Makinta Attorneys
FOR THE
RESPONDENT:
Adv G C Pretorius
SC
Instructed by Shepstone &
Wylie Attorneys
[1]
This is referred
to in para 8 of this judgment.
[2]
See s 145 of the
Labour Relations Act, 66 of 1995 (LRA).
[3]
See
Foster
v Stewart Scott Inc
(1997)
18 ILJ 367 (LAC) at 370H,
National
Union of Mineworkers and Others v Western Holdings Gold Mine
(1994)
15 ILJ 610 (LAC) at 613C,
Van
der Grijp v City of Johannesburg
(2007)
28 ILJ 2079 (LC) at 2084 para 10
[4]
1962 (4) SA 531
(A).
[5]
At 532C.
[6]
Section 1(d)(iv)
of the LRA.
[7]
(2008) 29
ILJ
2461 (CC)
[8]
At para 62.
[9]
2000) 21
ILJ
166 (LAC).
[10]
At paras 24-25.
[11]
See clauses 4.24;
2.25 and 5.3 quoted in para 8 of the judgment.
[12]
(2007) 28 ILJ 2405
(CC).
[13]
At 2439 para 110
the Court pronounced: “To summarise,
Carephone
held that s 145 of
the LRA was suffused by the then constitutional standard that the
outcome of an administrative decision should
be justifiable in
relation to the reasons given for it. The better approach is that s
145 is now suffused by the constitutional
standard of
reasonableness. That standard is the one explained in
Bato
Star
:
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?
Applying
it will give effect not only to the constitutional right to fair
labour practices, but also to the right to administrative
action
which is lawful, reasonable and procedurally fair.”
[14]
(2006) 27 ILJ 1499
(LC) at para 17.
[15]
In his
confirmatory affidavit appearing at Vol 1 p 95-96 paras 5-7, Mr
Herrick Makweng, a shop steward of NUM at Exxaro, says
that the
document headed “lock out Procedure for Conveyor Devices
(“EP03”) could not be located and therefore
it never
formed part of the bundle of documents and the pleadings.
[16]
National Union
of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
(2014)
35
ILJ
2406 (LAC) at 2417
para 39.