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[2006] ZALCJHB 26
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Anglo Operations Ltd Bank Colliery v Commission for Conciliation Mediation And Arbitration and Others (JR406/03) [2006] ZALCJHB 26 (16 February 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case
No. : JR 406/03
In
the matter between:-
ANGLO
OPERATIONS
LIMITED
Applicant
BANK
COLLIERY
and
THE
COMMISSION FOR
CONCILIATION
First
Respondent
MEDIATION
AND ARBITRATION
RICHARD
BYRNE
N.O.
Second
Respondent
JOHANNES
PIENAAR
Third
Respondent
MINEWORKERS
UNION
Fourth
Respondent
SOLIDARITY
JUDGMENT
BY:
H.M. MUSI, J
HEARD
ON:
1 DECEMBER 2005
DELIVERED
ON:
16 FEBRUARY 2006
[1]
This is an application brought under the provisions of section 145 of
the Labour Relations Act 66 of 1995 (the LRA) for the
review and
setting aside of an arbitration award. The factual background
to the dispute is set out hereunder.
[2]
It is common cause that the applicant company falls under the purview
of the Mine Health and Safety Act 29 of 1996 (the Act)
and the
regulations promulgated thereunder, which set rules and standards to
promote health and safety in the mining industry.
Mr. Johannes
Pienaar, the third respondent, was employed by the applicant in 2001
as a Face Boss/Miner and was in charge of the
workforce in the
applicant’s south shaft underground section 7 (section 7).
As such he was charged with responsibility
for the safety of the
designated area and workforce thereat. It is common cause that
for a person to be appointed to such
post, he/she must have the
requisite qualifications in the form of certificates in
inter
alia
blasting and gas testing and must
have been properly trained in the safety requirements of the Act.
It is common cause that
the third respondent had the requisite
qualifications and training.
[3]
It is also common cause that section 7 was a methane prone area.
Methane is a highly combustible gas which if ignited,
would explode
and could thereby cause massive underground damage and loss of life.
Now this is a coal mine and methane occurs
naturally with coal.
The situation is made more volatile due to the presence of coal dust
which is also highly combustible.
For that reason, stringent
measures and procedures have been put in place to minimise the risk
of explosions. It is the alleged
failure on the part of the
third respondent to comply with these procedures that is at the root
of the dispute herein.
[4]
The third respondent was arraigned before the applicant’s
disciplinary tribunal on a charge dubbed unsatisfactory work
performance, being a contravention of the provisions of
section 22
of
the
Mine Health and Safety Act read
with
Regulations 8.5.1
,
10.6.4
and
10.6.5
in that he had allowed workers under him to work in an
environment where there was poor ventilation. He was found
guilty
and dismissed on 1 November 2002.
[5]
Following his dismissal, the third respondent declared a dispute with
the CCMA, the first respondent, alleging unfair dismissal.
Conciliation having failed the dispute was arbitrated upon by Mr.
Richard Byrne, the second respondent, under the auspices of the
CCMA. He issued his award on 28 January 2003 in terms of which
he found that the dismissal was procedurally and substantively
unfair
and ordered re-instatement with full backpay and further that the
third respondent be issued with a final warning.
It is this
award that the applicant challenges. The application is opposed
by the Solidarity Union, the fourth respondent,
on behalf of the
third respondent. I shall henceforth refer to the third
respondent simply as the employee, to the fourth
respondent as
Solidarity and to the second respondent as the arbitrator.
[6]
The dismissal arises out of the events of 21 October 2002 at
section
7.
The evidence of the applicant’s ventilation officer in
the name of Mr. Eric Nkosi (Nkosi) is critical and it is briefly
that
Nkosi arrived there at 11h45 and went to the area referred to as
“belt road” where rock face drilling had been
in
progress. He found the machine operator there (the operator) at
his station with the machine switched on but not running.
He
found that the operator’s methanometer with which he was
supposed to test for methane at regular intervals was not
functioning.
Nkosi tested for methane and recorded a staggering
4.2%. He then summoned the employee and alerted him to the risk
posed
by the high concentration of methane in that area. A
second test was then conducted and it recorded 3.7%.
[7]
Nkosi also testified that he found that the fan that was supposed to
provide ventilation at “belt road”, was not
working.
Another jet fan nearby at what is called “Left 1” was not
functioning either. Nkosi also said
that when he and the
employee left belt road for another spot, it was found that the roof
under which they were walking was not
supported, which is dangerous.
[8]
Much of Nkosi’s evidence was uncontested. In particular,
the following is common cause:
8.1
It is a contravention of the rules and
hazardous that the operator should have been drilling whilst his
methanometer was not functioning
as he was then unable to monitor the
concentration of methane at regular intervals as is standard
procedure.
8.2
It was a serious violation of safety
measures to have allowed the operator to operate whilst the methane
levels were above the limit
of 1.4%.
8.3
It is a violation of the safety rules to
have allowed the operator to continue working whilst the fan at belt
road was not functioning.
Ventilation is necessary to dilute
the effects of methane concentration and it was hazardous to do
drilling where there was no
ventilation.
8.4
The rules stipulate that the face boss
should test for methane at intervals of one hour. In the
instant case, the employee
had last tested for methane at belt road
at 09h50, which means that almost two hours had elapsed when the next
test was done at
11h50.
8.5
The regulations stipulate that in
circumstances such as the above where the level of methane is above
the limit and/or where there
is insufficient or no ventilation, the
face boss must clear the area of workers and barricade it so that
nobody remains there until
the problem has been sorted out.
Only those workers who would be working on the problem could remain
at such a site.
It is not in dispute that the area had not been
cleared and barricaded as at the time of Nkosi’s arrival.
[9]
In my view, the above evidence shows a clear dereliction of duty on
the part of the employee and the only question to be determined
is
whether the explanation that he gave was reasonable and acceptable,
as the arbitrator found. In other words, is this finding
by the
arbitrator justifiable?
[10]
The arbitrator’s rendition of the employee’s version is
interesting and I refer here to the paragraph in the middle
of page
63 of the record starting with the sentence:
“
Lets
consider the sequence of events.”
The
passage raises a number of questions. The employee says that
the fan in Left 1 was functioning when he started work in
the morning
but then he never realised that it had stopped functioning until he
was told so at the meeting he had called at 11h00.
This begs
the question: how long had work progressed without this fan
also functioning? Nkosi found it along with the
fan at belt
road not working and the only other source of ventilation would have
been this other fan. You would then have
the situation that for
some time prior to Nkosi’s arrival there was simply no
ventilation at this point. Also it is
a fact that when Nkosi
arrived, the methane concentration at belt road had not been tested
for about two hours. The explanation
for this failure is to be
found in a combination of factors. Firstly, the fact that the
operator’s methanometer was
not functioning and secondly, the
employee had not tested for methane at intervals of one hour as is
required. It is no excuse
to say that the operator should have
reported the fact that his testing device was not functioning.
That did not absolve
the employee from himself monitoring the
situation. The fact that methane levels had shown a marked
fluctuation from 4.2%
to 3.7% within a short space of time, does not
exclude the probability that drilling had proceeded whilst the
methane concentration
was dangerously high.
[11]
Now the employee says that after the meeting he had first gone to
attend to the jet fan at Left 1 and that, had he succeeded
to fix it,
then there would have been enough airflow and the problems would have
been sorted out before Nkosi’s arrival.
The arbitrator
accepted this version and found that the employee was busy attending
to the problems and that if Nkosi had arrived
a little later, the
employee would have taken all the requisite measures.
[12]
Now the arbitrator’s line of reasoning was severely criticized
by Mr. Snider, for the applicant, who also contended that
the
arbitrator had generally misconstrued the evidence and misdirected
himself in material respects in the process. Counsel
submitted
that the arbitrator’s findings are simply not justifiable on
the evidence.
[13]
In my view, this criticism and submissions made by Mr. Snider are not
without merit. What the employee did after Nkosi’s
arrival is immaterial. The fact is that he had neglected to do
all these things prior to Nkosi’s arrival. The
latter was
justifiably upset by what he found. The fact is as at Nkosi’s
arrival the fan at belt road was not functioning
and the fan nearby
at Left 1 was also not functioning. You then have a combination
of a complete lack of ventilation and
no testing for methane at that
point. And quite clearly, drilling had proceeded under those
circumstances. It was a
truly dangerous and unacceptable state
of affairs that put the lives of the workers and the mine property at
risk.
[14]
In support of the arbitrator’s findings, Mr. Raubenheimer, the
Solidarity official who represented the employee, raised
the
following issues:
14.1
The employee’s evidence that he had,
at the start of the shift in the morning, phoned his superior, one
Mr. Hleko, and sought
the latter’s guidance in view of the fact
that the fan at belt road was not functioning. He said that
Hleko had given
him the green light to carry on up to a certain point
on certain conditions.
14.2
The employee’s evidence that after he
had learned at 11h00 that the operator’s methanometer was not
working, he had
instructed the latter not to do any work but to sit
at his machine. It was contended in this regard that the
operator had
not been drilling when Nkosi arrived.
14.3
The evidence that when the shift started
the employee had found no methane at belt road and that the last test
at 10h00 also revealed
no presence of methane. It was contended
that the employee had been justified in using his discretion to work
as he was concerned
about production.
14.4
Evidence that the jet fan at Left 1 was in
fact working although not properly as it was tripping. It was
contended that this
fan provided some ventilation at belt road and
that this coupled with the fact that no methane had been detected
justified the
decision to work.
14.5
The employee’s claim that the
previous shift had left the fan at belt road not working and the
suggestion that they too would
have operated without it.
[15]
Now it was pointed out during argument that the story that Hleko had
advised the employee to carry on working whilst there
was no
sufficient ventilation at belt road, was not canvassed with the
applicant’s witnesses and hence could not be verified
with
Hleko. It was submitted that it should be disregarded as
improbable. The point, however, is that any such instruction
would be illegal as being contrary to the safety rules and it would
not absolve the employee from liability for his own breach
of the
rules. Regarding the second point, Nkosi’s evidence is
that the operator had been working before his arrival
and hence his
machine had not been switched off. It is obvious also that the
operator had been drilling at least up to before
being called to the
meeting at 11h00 whilst he had no means of testing for methane.
Regarding the third point, the fact is
that the employee had no
discretion in the matter. According to the rules, he should not
have started work at all and he
failed to test for methane at the
required intervals.
[16]
It is also a fact that in Nkosi’s presence the jet fan at Left
1 was not functioning and the employee tried to switch
it on.
His evidence in this regard is in fact contradictory. Finally,
there is simply no evidence that the previous
shift team had operated
at belt road whilst the fan was not functioning and the employee
cannot explain his own breach of the safety
measures by pointing a
finger at the previous shift. In any event, if the previous
shift had breached the rules, that would
not entitle him to repeat
the breach.
I
have come to the conclusion that the arbitrator’s finding that
dismissal was substantively unfair, is not justifiable on
the
evidence.
[17]
As for the finding that the dismissal was procedurally unfair, the
arbitrator has sent out mixed signals in his reasoning.
The
employee’s complaint was that he had not been given sufficient
notice of the disciplinary enquiry as he had been informed
thereof
only in the morning of the day of the hearing. The arbitrator
states at page 62 of the record that the employee had
been aware that
a disciplinary enquiry would follow, but that it had been unfair not
to have afforded him sufficient time to prepare.
Significantly
the arbitrator concludes as follows:
“
However
I am not convinced that he suffered any real prejudice as a result
thereof.”
If
the employee suffered no prejudice as a result of the short notice,
what is it then that has resulted in the procedure being
unfair?
In arriving at the conclusion that no serious prejudice has resulted,
the arbitrator took into account that the employee
was able to call
his witnesses and to put his case before the disciplinary tribunal.
Incidentally the employee preferred
not to call his witnesses to the
arbitration. I conclude therefore that the finding that the
procedure was unfair is also
not justifiable.
[18]
The last issue to consider is the appropriateness of dismissal as a
sanction. The arbitrator considered this aspect as
if the
employee had been found guilty of the charges, which he correctly
stigmatised as misconduct as opposed to poor performance.
Here
again, the award suffers from startling contradictions.
Firstly, the arbitrator acknowledged the seriousness of the
offence.
He states the following at page 64 of the record, the middle
paragraph:
“
I
do not intend, in any way, to dilute the safety measures which should
be in place at the mine. The fan should have been
working in
the belt road. Miners and others should appreciate the
seriousness of it. In the circumstances as outlined
by the
respondent this is a serious matter.”
Yet
he continues to find that the offence was not serious. Then
again, he correctly acknowledges that he is not entitled to
substitute his own viewpoints for the legitimate viewpoints of the
employer. Yet he proceeds to do exactly that. He
acknowledges that the question of whether a final warning instead of
dismissal should be given, depends on the seriousness of the
offence. Yet he proceeds to fault the employer for not issuing
a final warning. Quite clearly the finding that dismissal
was a
severe sanction is premised on the view that the offence was not
serious. In this regard, I agree with Mr. Snider that
the
arbitrator has second-guessed the employer. The offence on
which the employee was convicted, is a serious and dismissable
offence in terms of the code of the employer, and the arbitrator was
not entitled to usurp the employer’s discretion in this
regard.
[19] The application
succeeds and the following order is made:
19.1
The arbitration award issued by the second
respondent on 28 January 2003 under number MP4786/2002 is reviewed
and set aside.
19.2
No costs order is made.
___________
H.M.
MUSI, J
On
behalf of applicant:
Adv. A.
Snider
Instructed
by:
Leppan
Beech Attorneys
On
behalf of fourth respondent: Mr. Raubenheimer
Union
Official
Instructed
by:
Solidarity
Trade Union
/sp