Law Reports
Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal …

Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44; [2019] 10 BLLR 1134 (LAC) (13 June 2019)

Labour Law

Brief Summary

Labour Law — Dismissal — Review of arbitration award — Employee dismissed for insubordination and endangering foreman's life — Employee showed remorse and had a clean record — Arbitrator found dismissal inappropriate, recommending reinstatement with a final warning — Labour Court set aside arbitrator's award, deeming dismissal fair — Appeal upheld, finding no reviewable error by the arbitrator, reinstatement with final warning appropriate.

Full Judgment Text (Click to expand)

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[2019] ZALAC 44
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Mushi v EXXARO Coal (Pty) Ltd Grootegeluk Coal Mine (JA62/2018) [2019] ZALAC 44; [2019] 10 BLLR 1134 (LAC) (13 June 2019)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JA62/2018
In
the matter between:
HOSEA
MUSHI

Appellant
And
EXXARO
COAL (PTY) LTD
GROOTEGELUK
COAL MINE

Respondent
Heard:
21 May 2019
Delivered:
13 June 2019
Summary:
Review
of arbitration award – employee dismissed for endangering the
life of the foreman and insubordination – employee
showing
remorse for acting in an incorrect manner – commissioner
finding that dismissal not appropriate sanction in accordance
with
employer’s disciplinary guideline which provides final warning
for insubordination
Held
that:
In
finding that reinstatement with a final written warning was
appropriate when there was no evidence that the misconduct committed

was so serious and of such gravity that it made a continued
employment relationship intolerable, the arbitrator cannot be
faulted.
No
reviewable
error or irregularity was committed by him and the decision arrived
at was not one which
a
reasonable decision-maker could not reach
on the material
before him
. Labour Court’s
judgment set aside. Appeal upheld with costs.
Coram:
Waglay JP, Murphy and Savage AJJA
JUDGMENT
SAVAGE
AJA:
Introduction
[1]
This appeal,
with the leave of the Court
a
quo
, is
against the judgment of the Labour Court in terms of which the award
of the arbitrator was set aside on review and substituted
with an
order that the dismissal of the appellant, Mr Hosea Mushi, was fair.
[2]
The appellant
had been employed by the respondent, Exxaro Coal (Pty) Ltd, at
Grootegeluk Coal Mine for 24 years when he was dismissed.
On 10 March
2015 at around 22h50, he was on duty driving an oversized coal haul
truck, the wheel size of which exceeded the height
of two adults. He
reported to his foreman that the shovel operator was loading the
truck in an unsafe manner. The foreman instructed
the appellant to
continue loading and undertook to observe the loading process.
Shortly thereafter the foreman informed the appellant
via radio that
he would board the truck at the loading area. The appellant refused
to let the foreman board the truck at this area.
As the foreman
walked towards the loading area the appellant moved the truck forward
causing the foreman to have to move out of
the way.
[3]
At the
ensuring disciplinary hearing, the appellant admitted that he had
behaved improperly, but not that he had undermined the
authority or
threatened the life of the supervisor. The disciplinary code, which
was stated to be a guideline, provided for a final
written warning
for misconduct of the nature committed. The appellant was
nevertheless dismissed from his employment on 29 April
2015, for
having refused to obey an instruction of a foreman, unsafe acts
committed while driving the truck and improper behaviour
in operating
the truck after the foreman was proceeding towards it.
Arbitration
and review
[4]
Aggrieved with
his dismissal the appellant referred a dispute to the Commission for
Conciliation Mediation and Arbitration (CCMA).
At arbitration, the
parties agreed that the misconduct committed was not in dispute and
that the issues for determination by the
arbitrator were the
appropriateness of the sanction and the issue of consistency since
the foreman had not been disciplined. No
oral evidence was presented
by either party at arbitration.
[5]
The arbitrator
found that in not taking disciplinary action against the foreman
there had been no inconsistency by the respondent
in the application
of discipline. However, in relation to the charges against the
appellant, it was stated:
‘
The
three charges are mutated of one another. The number of the charges
by mutating them does not make the act to be more severe
than it
would ordinarily be. In any event, there is no dispute about the fact
that it is not a dismissible offence at first instance.
The
respondent is not correct when it argues that it has a zero tolerance
attitude towards an offence of this nature
.’
[6]
In finding the
sanction of dismissal imposed on the appellant to be inappropriate,
the arbitrator had regard to the fact that the
appellant had not been
charged with gross insubordination, there were no aggravating
circumstances present to prove that progressive
discipline was
inappropriate, the appellant had a long period of service, a clean
service record and had shown remorse for his
conduct. The dismissal
was found to be unfair and the appellant was reinstated
retrospectively into his employment with the respondent,
with no loss
of remuneration and back pay awarded in the amount of R77 398.72.
A final written warning was imposed on the
respondent operative from
the date of his reinstatement, to expire on a date as prescribed by
the respondent’s disciplinary
code.
[7]
The respondent
sought the review of the arbitration award by the Labour Court. In
its judgment the Labour Court found the award
reviewable on the basis
that the respondent had been prejudiced by not having been given an
opportunity to address the issue raised
mero
motu
by
the arbitrator relating to the duplication or “mutation”
of charges. The Court took the view that it did not matter
that the
misconduct committed by the appellant had not been termed “gross”
insubordination and that since the appellant
had admitted endangering
the life of the foreman, it was inconceivable that dismissal was not
a fair sanction. The award of the
arbitrator was therefore set aside
on review on the basis that it was so unreasonable that no other
reasonable arbitrator could
have come to the same conclusion. The
award was substituted with an order that the dismissal of the
appellant was fair, with no
order as to costs made.
Submissions
on appeal
[8]
On appeal, it
was argued that the Labour Court had erred in considering all three
charges when the arbitrator had not found the
appellant guilty of all
charges. The appellant in explaining why he had pleaded guilty stated
that he did not accept that he had
acted in an unsafe manner or that
he had endangered the foreman’s life, but rather that he had
not carried out the foreman’s
instructions as he was required
to do. As a consequence, the misconduct committed amounted to
insubordination and this finding
was not challenged by way of a
cross-review by the respondent. It was submitted that the Labour
Court had therefore erred in finding
that the arbitrator had acted
unreasonably in not raising the issue of the mutation of charges with
the parties when the parties
chose not to present oral evidence at
the hearing and the arbitrator had correctly found that for the
purpose of sanction the charges
should be treated as one. As a first
offender, in terms of the respondent’s disciplinary code, a
final written warning was
the appropriate sanction. Consequently, it
was submitted that the appeal should succeed with costs.
[9]
The respondent
opposed the appeal on the grounds that in finding that the three
charges were “mutated of one another”
the arbitrator had
exceeded his mandate when the only issue before him was whether the
sanction of dismissal imposed was appropriate.
It was submitted that
the Labour Court correctly found that the issue of mutation was
raised for the first time in the arbitration
award, without the
parties afforded an opportunity to address the issue. Furthermore,
the arbitrator’s criticism that the
appellant had not been
charged with gross insubordination was without merit given that the
applicable disciplinary code does not
provide for “gross”
misconduct. In disregarding the applicable working conditions, the
respondent’s statutory
obligations and its rules and procedures
in the consideration of an appropriate sanction, the respondent
argued that the commissioner
had committed a reviewable irregularity
and that the appeal should be dismissed with costs.
Evaluation
[10]
The parties
elected to approach the arbitration on the basis that only two issues
required determination - the appropriateness of
the sanction and
whether there had been a consistent application of discipline by the
respondent. No statement of case nor any
oral evidence was presented
to the arbitrator for the purpose of determining these issues. The
result was that the parties were
limited to the documentary evidence
placed before the arbitrator which indicated that the appellant had
admitted at the disciplinary
hearing to having behaved improperly in
the manner he had operated the truck. The appellant had not admitted
misconduct in relation
to the other charges and did not accept that
he had by his conduct threatened the life of the foreman, nor was
there evidence that
he had done so.
[11]
The
respondent’s disciplinary code, which was expressly stated to
be a guideline, provided that the appropriate sanction in
cases of
insubordination, refusal to obey instructions, misuse of property or
improper behaviour was that of a final warning. D
isciplinary
rules are intended to create a degree of certainty and consistency in
the application of discipline in the workplace.
It follows that
departures from a code should not be arbitrary or for no valid
reason.
[1]
Even where the code
is expressed as a guideline t
here
must be a
“
plausible
and reasonable justification”
[2]
for the sanction imposed
,
having regard to
the
gravity of the
misconduct
and relevant aggravating or mitigating factors. It follows that in
this matter for dismissal to be appropriate the respondent
was
required to prove that the imposition of the most severe of
sanctions, on which exceeded that provided in the disciplinary
code,
was fair.
[12]
While health
and safety issues, particularly in the mining industry, is of
paramount concern, no evidence was put up to show that
the
foreman’s life was endangered as a result of the appellant’s
conduct. The appellant admitted that he had erred in
his conduct and
showed remorse for it.
The
arbitrator’s finding that the three charges related to the same
misconduct did not amount to an irregularity in the conduct
of
proceedings when regard is had to nature of the misconduct, which the
parties had agreed to be common cause. In addition, the
failure to
charge the appellant with “gross” misconduct did not
alter the nature or degree of the misconduct committed
on the facts
of this matter. Nevertheless, the arbitrator had regard
to
the material before him in the manner he was required. This included
that the respondent had a clean disciplinary record, long
service and
the disciplinary code recommended a final written warning for the
type of misconduct committed. Endorsing the
concept
of corrective or progressive discipline,
the arbitrator
arrived at the conclusion that the imposition of the sanction of
dismissal was too harsh.
[13]
In
finding that reinstatement with a final written warning was
appropriate when there was no evidence that the misconduct committed

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