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[2018] ZALAC 31
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Mtshwene v Glencore Operations South Africa (Pty) Ltd (Lion Ferrochome) (JA62/2017) [2018] ZALAC 31; [2019] 3 BLLR 219 (LAC); (2019) 40 ILJ 507 (LAC) (8 November 2018)
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable/Not
reportable
Case no:
JA62/2017
In the matter
between:
SOUL
MTSHWENE
Appellant
and
GLENCORE
OPERATIONS SOUTH AFRICA
(PTY)
LTD (LION FERROCHROME)
Respondent
Heard: 29 May
2018
Delivered: 08
November 2018
Coram:
Phatshoane ADJP, Murphy and Savage AJJA
Summary:
The employer lodging a review application against the finding by the
CCMA that the dismissal of the employee was substantively
unfair
because the employer had not been consistent in applying discipline.
The employee filing a cross-review, 122 days out of
time, mounting an
attack on the finding by the commissioner that he was guilty of the
misconduct and further seeking reinstatement
into employment.
The Labour
Court –dismissing the application for condonation of the late
filing of the cross-review and refusing to consider
the cross-review
– granting the main review and setting aside the award of the
arbitrator- substituting same with an order
that the dismissal was
substantively fair.
On
appeal against dismissal of the application for condonation of late
filing of the cross-review- The Labour Appeal Court finding
–
that the explanation for the delay lacked substance – the
cross-review had no reasonable prospects of success - the
Labour
Court could not be faulted in dismissing the application for
condonation - the employee remained accountable for the work
that was
performed by the contractor and his subordinate - the commissioner
correctly found his evidence to be improbable which
conclusion was
unassailable.
On
the argument that the employer had purportedly been inconsistent in
applying discipline - The LAC finding - that the Court a
quo
carefully
considered the commissioner’s award and his manifestly flawed
assessment of the evidence pertaining to the employer’s
alleged
inconsistent approach in applying discipline. Held that - the Labour
Court correctly concluded that the commissioner’s
decision, on
this aspect, was one that a reasonable decision-maker could not reach
and accordingly set aside the award.
Appeal
is dismissed with no order as to costs.
Judgment
PHATSHOANE ADJP,
[1]
This
is an appeal against the whole of the judgment and order of the
Labour Court (
per
Kirstein AJ), dismissing the application for condonation of the late
filing of the cross-review and declining to entertain the
cross-review by Mr Nkeni Soul Mtshwene, the appellant (“Mr
Mtshwene”); granting the review application filed by Glencore
Operations South Africa (Pty) Ltd (Lion Ferrochrome), the respondent
(“Glencore”); and setting aside the arbitration
award
(LP2351-14) dated 31 July 2014 issued by commissioner S M Rantho
under the auspices of the Commission for Conciliation Mediation
and
Arbitration (“the CCMA”) and substituting same with an
order that the dismissal of Mr Mtshwene was substantively
fair.
[2]
On
01 October 2012 Mr Mtshwene entered into employment with Glencore, a
ferrochrome producer, as a refractory technologist. He was
reporting
to Mr Stephen Sunday Zulu, a process superintendent at the plant. His
duties included scoping the work that needed to
be performed by the
external contractors of Glencore; communicating with those
contractors to source their quotation for the work
to be performed;
overseeing and monitoring the contractors’ projects; providing
advice during the installations of refractory
lining by the
contractors; making proposals whether to renew the refractories;
immediately addressing deviations or problems experienced
during the
installation of the refractory lining with Mr Zulu; inspecting the
anchors on the refractory lining to ensure that they
were installed
according to the quality specifications and the standards set by
Glencore; conducting day to day quality checks
and inspection of
equipment and had a Planned Maintenance Checklist (referred to as
PM01’s) which he used for this purpose.
[3]
In
terms of Glencore’s historical data the expected lifespan of a
fitted refractory lining is five years. During the seven
day shutdown
period of 15 to 21 July 2013 Glencore engaged Cerefmet (Pty) Ltd to
install a refractory lining in one of its Kiln.
[1]
Within a period of six months of the installation, five meters of
this newly cast refractory lining collapsed whereas the remaining
five meters of structure was in a bad condition. Glencore instituted
an investigation to determine the probable causes of the premature
kiln refractory failure. This revealed that the substandard welding
of the anchors, which were supposed to keep the refractory
in place,
was the most probable cause of the premature failure. Mr Mtshwene and
his subordinate, Mr Salmon Biljon, bore the responsibility
of
ensuring that the anchors were properly welded during the
installation process.
[4]
As
a consequence of poor workmanship and inadequate on site supervision
Glencore suffered financial loss which was estimated at
R4 million.
Mr Zulu says that the PM01 Checklist had not been completed by Mr
Mtshwene because it was not available to Mr Zulu
on request. He
intimated that this meant that there had been negligence on the part
of Mr Mtshwene for allowing the contractor
to deliver poor quality of
services. He went on to say that Mr Mtshwene was supposed to
supervise the contractors during the installation
process and correct
them, as necessary.
[5]
Insofar
as Mr Mtshwene contended that Glencore was inconsistent in applying
discipline, Mr Zulu explained that it was Mr Mtshwene’s
responsibility to take action against his subordinate and that he had
ample opportunity but failed to do so. Mr Zulu further says
that, in
view of the collapse of the refractory lining, the relationship of
trust between Glencore and Mr Mtshwene was
irreparably
damaged.
[6]
In
his defence to the allegation of negligence on his part, Mr Mtshwene
explained that he did not work a 24 hour but a 12-hour dayshift
during the shutdown period of 15 to 21 July 2013 whereas Mr Biljon
worked nightshift. He claimed that, in terms of a verbal agreement
they had with Mr Zulu, they both reported to Mr Zulu during this
period. He had six other areas of responsibility that he had to
oversee, where contractors had been engaged by Glencore, and
therefore it was impossible for him to be inside the kiln for the
12-hour period of his dayshift. In this case, he says, 2000 anchors
were installed by Cerefmet, the contractor, therefore it was
impossible for him to inspect all of them. He conducted random
inspection “spot checks” and discovered that few of
the
anchors had not been properly installed. He then took this up with
the contractor. Mr Mtshwene went on to say that he completed
the PM01
Checklist and filed same in the shutdown file. Following the collapse
of the structure in January 2014 he says he handed
over these
documents to Mr Zulu.
[7]
On
21 January 2014 Mr Mtshwene was subjected to a disciplinary hearing
on a charge of negligence with aggravating circumstances
in that he
failed to ensure the proper installation of the refractory lining
which resulted in substantial financial and production
loss to
Glencore. He was dismissed on 20 February 2014. Following this, he
referred his alleged unfair dismissal dispute to the
CCMA for
conciliation and arbitration.
[8]
In
his arbitration award the commissioner found that if Mr Mtshwene
could not account for the whereabouts of the checklist it meant
that
it never existed and said “
in
the first place it was never completed
.”
He found Mr Mtshwene’s version improbable and that “
he
is to be blamed for the mishap and as such he transgressed the rule
”.
Although he noted in his award that Mr Mtshwene conceded that Mr
Biljon was “
a
junior supervisor below him
”
he went on to find that Glencore was not consistent in applying
discipline for reasons recorded in his award as follows:
‘
On
the other hand, evidence was led for [Mr Mtshwene] that he only
worked twelve (12) hours and he worked dayshift. That is from
07:00
to 19:00. When he knocked off he handed over the responsibility to Mr
Salmon Biljon who was working nightshift. Together
they were
performing the same job. They were reporting to Mr Zulu. Their
responsibilities were the same. They worked as if they
were on the
same grade during shutdown. During shutdown Mr Biljon was reporting
to Mr Zulu. I find that this evidence was never
contested. If during
shutdown both [Mr Mtshwene] and Mr Biljon were accorded the same
responsibilities and both of them were reporting
to Mr Zulu why did
[Glencore] chose to hold [Mr Mtshwene] responsible to the exclusion
of Mr Biljon. Furthermore, the evidence
has been led for [Glencore]
that in this instance there was no disciplinary action taken against
a subordinate. Mr Zulu repeated
this evidence also during
cross-examination. At what stage was [Mr Mtshwene] expected to take
disciplinary action against Mr Biljon
since the defects were
uncovered after the investigation and at the same time disciplinary
steps were taken against [Mr Mtshwene].
Thus he was left with no
breathing space to think of the next move. Against this background, I
find that the version of [Glencore]
herein is improbable and I will
reject it. In the premise, I find that [Glencore] was not consistent
in its approach to discipline
herein. Therefore, I find that the
dismissal was substantively unfair.’
[9]
After
finding that the dismissal of Mr Mtshwene was substantively unfair
the commissioner awarded him compensation in the amount
of
R222 000.00, equivalent to his six months’ salary, as
opposed to reinstatement as he was of the view that the relationship
of trust was broken down beyond repair.
[10]
On
16 September 2014, within the period prescribed in the Labour
Relations Act, 66 of 1995 (LRA), Glencore launched a review
application
in the Labour Court, challenging the arbitration award on
the basis that no reasonable decision-maker could have arrived at the
conclusion reached by the commissioner. Mr Mtshwene filed a
cross-review on 13 January 2015 attacking the finding of the
commissioner
that he was guilty of the misconduct and seeking
reinstatement. The cross-review was filed 122 days (more than four
months) out
of time and was thus accompanied by an application for
condonation of the late filing thereof.
[11]
Mr
Mtshwene’s reasons for the delay in launching his cross-review
were to the effect that his union representative informed
him that he
was successful and that Glencore had been ordered to pay him
compensation. Being delighted, he did not read the arbitration
award
and trusted that his union representatives would highlight the areas
of concern in relation to the award. He discovered only
on 09 January
2015, during a consultation with his attorneys and subsequent to the
launching of the review application by Glencore,
that the
commissioner had found him guilty of misconduct. He then instructed
his attorneys to file a cross-review against that
finding and to
apply for condonation.
[12]
The
Court
a
quo
found that the explanation offered by Mr Mtshwene for the delay,
amounted to nothing. It dismissed the application for condonation
for
the late filing of the cross-review and refused to entertain the
cross-review. It then found the commissioner’s decision,
that
the dismissal was substantively unfair, on the basis that Glencore
was inconsistent in applying discipline, to have been unreasonable.
Consequently, it granted the review application by Glencore; set
aside the arbitration award; and substituted it with an order
that
the dismissal of Mr Mtshwene was substantively fair.
[13]
The
grounds of appeal are a rambling repetition of the issues and at
times a complete obfuscation of the evidence that served before
the
commissioner. In summary, it was contended before us that the Court
a
quo
erred:
13.1
In
considering the application for condonation on a piece-meal basis
without regard to all other relevant factors and not determining
the
merits of the cross-review.
13.2
In
finding that the decision reached by the commissioner is one that a
reasonable arbitrator “would not have made” as
opposed to
one a reasonable arbitrator “could not have made.” In so
doing, it was contended, the Court applied an incorrect
review test.
13.3 In not
assessing the content of Messrs Mtshwene and Biljon’s
responsibility to monitor the contractor’s work. It
was
contended that the Court did not address what the contractor’s
poor work performance entailed; when such poor work performance
was
tendered; and the whereabouts of Mr Mtshwene and his subordinate when
the poor work was performed.
13.4 In ignoring
the evidence that Messrs Mtshwene and Biljon had to monitor different
projects at different Glencore sites and
thus could not monitor every
step of the installation of the refractory lining by the contractor.
In any event, it was argued,
the contractor installed the anchors and
plastered them before inspection. Therefore, Messrs Mtshwene and
Biljon could not inspect
the quality of the installation of the
anchors after casting. Furthermore, it was argued, it was impossible
for Mr Mtshwene to
have picked up the defective work performed during
Mr Biljon’s shift as the anchors were already casted. It must
immediately
be mentioned that this was never the evidence that served
before the commissioner. It was put to Mr Zulu that: “
During
his [Mr Mtshwene’s] shift all the anchors were straight
(properly installed) and when the casting for the cementation
process
took place that is where he [Mr Mtshwene] saw they were straight,
they were not flat. That will be his evidence
.” In other
words, the anchors were purportedly properly installed before the
plastering process.
13.5
In
finding Mr Mtshwene guilty of the misconduct which was perpetrated by
his subordinate and exonerating all Mr Mtshwene’s
seniors
including Mr Zulu, who had an obligation to discipline Mr Biljon.
The analysis
[14]
In keeping with the LRA objective to facilitate and ensure the
effective resolution of labour dispute, it is trite that employment
law disputes ought to be disposed of expeditiously.
[2]
The Court's power
to grant condonation is discretionary. Generally, the Court will have
regard to the factors relevant to the consideration
of the
application for condonation which includes,
inter
alia
, the degree of
lateness, the explanation therefor, the prospects of success on the
merits and the importance of the case. These
factors are
interrelated.
[3]
T
he
onus
is on the applicant to satisfy the Court that condonation should be
granted.
[15]
The delay of 122 days in filing the cross-review was unreasonable.
The nonchalant threadbare explanation for the delay certainly
lacked
substance. The Court
a
quo
did not consider Mr Mtshwene’s prospects of success in respect
of his cross-review. In dismissing the application for condonation
the Court relied on the decision in
NUM
v Council for Mineral Technology
[4]
where it was held that
without a reasonable and acceptable explanation for the delay, the
prospects of success are immaterial, and
without good prospects of
success, no matter how good the explanation for delay, an application
for condonation should be refused.
[16]
Mr Mtshwene’s cross-review had no prospects of success as I
shall now demonstrate. It is important to remember that he
faced a
charge of negligence with aggravating circumstances in that he failed
to ensure the proper installation of the refractory
lining which
resulted in substantial financial and production loss to Glencore.
The Court
a
quo
found
that: “
It
is clear that the employee had identified some problems with the
workmanship but that he had not alerted his supervisor of them
and it
does not appear that, the employee took additional steps to monitor
the workmanship at a closer level as a result of the
existence of the
problems in the workmanship that he identified
.”
It also held that: “
The
unavoidable conclusion of the matter is that the installation was not
properly monitored for proper work performance. If this
occurred on
Biljon’s shift then the employee should have picked it up when
he was on duty as he was the supervisor and was
therefore responsible
for ensuring that his subordinates performed their duties as
required
.”
[17]
The Court did not confine its determination to the narrow issues
raised in the review, that is, whether the commissioner’s
decision was rationally and reasonably connected to the evidence
before him insofar as he found that Glencore was inconsistent
in the
application of discipline and awarding Mr Mtshwene compensation. In
holding as it did the Labour Court determined the main
issue raised
in the cross-review, that is, Mr Mtshwene’s culpability in
respect of the alleged misconduct. Understandably,
it is difficult to
separate Mr Mtshwene’s accountability from the question of
Glencore’s obligation to apply discipline
consistently.
[18] What arises for determination on
the merits of this appeal and has a bearing on Mr Mtshwene’s
prospects of success in
the cross-review is whether the decision
reached by the commissioner is one that a reasonable decision-maker
could not reach. Section
145 of the LRA is suffused by the
constitutional standard of reasonableness. Applying that standard
will give effect not only to
the constitutional right to fair labour
practices, but also the right to administrative action which is
lawful, reasonable and
procedurally fair.
[5]
[19] The basis
of Mr Mtshwene defence, to the allegation that he was negligent, is
that Cerefmet was intrinsically responsible for
everything that went
wrong with the installation of the refractory lining. What emerges
from the background, earlier sketched,
is that Mr Mtshwene has
attempted to make excuses for his conduct and shifted the blame to
the contractor. For instance, he said:
it was not his duty to see to
the proper installation of the refractory; Cerefmet’s
supervisor had to do strict supervision
of the welding and
installation of the anchors; Cerefmet had to ensure that the anchors
were properly installed; it was not practical
for him to inspect all
the 2000 or 1700 anchors that were installed; he was not in charge of
the project but Cerefmet was; and
furthermore, he had other areas of
responsibility to attend to and could not have been at the kiln in
issue for the whole 12-hour
period of his shift. Whether Mr Mtshwene
was overseeing other projects on the plant is not an excuse. These
other projects, he
said he had to oversee, according to Mr Zulu were
secondary. He explained “
The most critical area is the kiln
lining, we stopped because of kiln lining and the rest is just
auxiliary jobs
.”
[20] One gathers
from the tenor of his answers that Mr Mtshwene was an unsatisfactory
witness. He contradicted himself and vacillated
on the nature of his
responsibilities as a refractory technologist. To demonstrate how he
fared badly, during his evidence-in-chief,
he said: “
while
doing spot checks, yes, I did find few of the anchors that were not
welded properly and then I immediately addressed it with
the
supervisor of the contractor to address those anchors
”. He
contradicted this statement in cross-examination when he said:
“
During my spot checks everything went quite well. When I
tested the anchors the parts were well welded….The anchors
that
I tested that I checked on that day were intact.”
He
also said: “
In this particular instance inside the kiln when
they install the anchors I will check if they have been installed
according to
standard...”
He acknowledged that Biljon and
he were to blame for the collapse of the structure and immediately
recanted this suggesting that
the contractor did not do the work
according to the specifications.
[21] The
evidence of Mr Zulu that Mr Mtshwene’s responsibilities
included,
inter alia
, providing supervision and advice to the
contractor during the refractory lining installations; conducting day
to day inspections
and completing the Planned Maintenance Checklist;
was never controverted. According to Mr Zulu, on the checklist that
Mr Mtshwene
was supposed to complete, he is required to state or tick
that he had checked that all the anchors were properly installed. Mr
Mtshwene’s evidence that he merely did sporadic quality checks
cannot avail him. It was not put to Mr Zulu that Mr Mtshwene
had to
conduct mere random spot checks. In any event, Mr Zulu denied that he
was supposed to conduct spot checks. He explained
that Mr Mtshwene
had to ensure that the “
work is done according to quality
.”
The checklist, which had to show that he inspected all the anchors,
was nowhere to be found. Mr Mtshwene’s evidence
that Mr Zulu
distorted facts when he denied that he received the checklist from
him was correctly rejected by the commissioner
whose conclusion that
the checklist did not exist cannot be criticised.
[22]
Mr Mtshwene cannot extricate himself from the substandard workmanship
that resulted in collapse of the structure. In his own
words, he was
a refractory specialist and had compiled the scope of work that was
supposed to be performed by the contractor in
that kiln. He also
admitted knowing what was expected to be done by the contractor. He
ultimately remained accountable for the
work that was performed by
the contractor and his subordinate. The commissioner correctly found
Mr Mtshwene’s evidence improbable.
His conclusion that he “
is
to be blamed for the mishap and as such he transgressed the rule
”
is unassailable. The Court
a
quo
cannot be faulted in having dismissed Mr Mtshwene’s application
for condonation because, as foreshadowed on the analysis
above, it
had no prospects of success.
[23] Turning now
to the question whether Glencore was inconsistent in applying
discipline, it was contended, for Mr Mtshwene, that
the commissioner
considered all the relevant factors when considering this aspect. It
was further argued that it was unfair for
Mr Biljon to continue being
in employment of Glencore when he was guilty of the same conduct said
to have been perpetrated by Mr
Mtshwene.
[24]
The following dictum in
National
Union of Mineworkers on behalf of Botsane v Anglo Platinum Mine
(Rustenburg Section)
[6]
is apposite:
‘
[27]
In this case, the flaw in the argument that alleges the presence of
inconsistency is the failure to recognize and digest that
the
appellant was alone responsible, within his area of managerial
control,
to
manage
the fitment programme.
[28]
As regards the dereliction of duties by his subordinates, if any acts
of misconduct were to be proven against any particular
individual, it
remains plain that they had no
managerial role
and it is
illogical to draw a comparison as contemplated by the factor of
inconsistency. Moreover, it would be a paradox if the
appellant could
legitimately invoke the failure of the very subordinates he was
accountable to manage effectively to exonerate
or mitigate his
managerial neglect by managing them ineffectively. There is no room
to contemplate the factor of inconsistency
of discipline by invoking
the probability that no subordinates were disciplined (or that it is
unknown whether they were disciplined)
for their infractions. The
reason for this is that if it is assumed that a cogent concrete basis
could be put up to identify which
persons acted irresponsibly in
relation to their specific functions and responsibilities, it would
still not be a failure by them
to manage the fitment programme and be
conduct comparable to the misconduct committed by the appellant.’
[25]
To demonstrate
that
Glencore was inconsistent in the application of discipline, Mr
Mtshwene explained Mr Biljon was his equal during the shutdown
period
in issue and that they both reported to Mr Zulu. The difficulty with
this contention is that it was never put Mr Zulu that
Mr Biljon
reported to him during the shutdown nor was it put to him that he
ought to have disciplined Mr Biljon. Mr Zulu was at
pains to show,
during his cross-examination, that if Mr Mtshwene was of the view
that the shoddy workmanship was performed during
his subordinate’s
shift, it was in Mtshwene’s discretion to discipline him. In
any event, Mr Zulu’s evidence
was clear that Mr Biljon was Mr
Mtshwene’s subordinate and reported to Mtshwene.
[26] Mr Mtshwene
was a senior supervisor on Band 8 whereas Mr Biljon was a junior
supervisor on Band 4. There was no evidence adduced,
during the
arbitration, suggesting that the grading of the two employees’
work changed during shutdown period or that Biljon
was a refractory
specialist or technologist. Furthermore, no evidence was led at the
arbitration demonstrating that Mr Biljon acted
in any negligent
manner during the installation of the refractory lining. Mr Mtshwene
attributed the negligence solely to Cerefmet
and did not see anything
untoward that warranted disciplinary steps being taken against Mr
Biljon. In the end, Mr Biljon could
never have been compared to Mr
Mtshwene because they were not similarly circumstanced thus Glencore
was entitled to distinguish
between them. The argument that Biljon
ought to have been discipline cannot be sustained. There was simply
no basis for any claim
that Glencore was inconsistent in applying
discipline.
[27]
Mr Mtshwene failed in the execution of his duties. The misconduct he
committed was of a serious nature and negatively affected
the
business of Glencore including the safety and well-being of its
employees. The Court
a
quo
carefully
considered the commissioner’s award and his manifestly flawed
assessment of the evidence pertaining to Glencore’s
purported
inconsistent approach in applying discipline. It correctly concluded
that the commissioner’s decision, on this
aspect, was one that
a reasonable decision-maker could not reach and accordingly set aside
the award. In my view, this conclusion
is impeccable.
[28]
In
accordance with the requirements of law and fairness this is not a
case where a costs order ought to be made because the arbitration
award issued by the CCMA may have led to Mr Mtshwene’s
entertainment of false hopes of achieving success in pursuing this
litigation. In the result, I make the following order:
Order
1.
The
appeal is dismissed with no order as to costs.
MV Phatshoane
Acting
Deputy Judge President - The Labour Appeal Court
Murphy
and Savage AJJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR THE APPELLANT:
Mr Lungile Tyat
Instructed by E S Makinta Attorneys
FOR THE RESPONDENT:
Adv A Mosam
Instructed by
Edward Nathan Sonnenbergs
[1]
Three times in a year,
Glencore had shutdown periods explained by Mr Mtshwene as a period
in respect of which operations in a
particular Kiln would be stopped
to allow repairs to be carried out.
[2]
Khumalo & Another
v Member of the Executive Council for Education: KwaZulu-Natal
(2014) 35 ILJ 613 (CC)
at 627 para 42;
Aviation
Union of South Africa and Another v South African Airways (Pty) Ltd
and Others
(2011)
32 ILJ 2861 (CC) at 2880 para 76.
[3]
See
Melane
v Santam Insurance Co Ltd
1962
(4) SA 531 (A).
[4]
[1999]
3 BLLR 209
(LAC) at para 10.
[5]
Sidumo
and Another
v
Rustenburg Platinum Mines Ltd and Others
(2007)
28
ILJ
2405
para
110.
[6]
(2014)
35 ILJ 2406 (LAC)
at
paras 27-28.