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[2007] ZALCJHB 54
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Rustenburg Platinum Mines v Commission for Conciliation Mediation And Arbitration and Others (JR315/06) [2007] ZALCJHB 54; (2007) 28 ILJ 1114 (LC) (8 February 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANESBURG)
CASE
NO: JR 315/06
In
matter between:
RUSTENBURG
PLATINUM MINES
APPLICANT
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
HLOKKWE,
R. N.O
SECOND
RESPONDENT
NATIONAL
UNION OF MINEWORKERS
THIRD
RESPONDENT
MODISAKENG
FOURTH
RESPONDENT
SELEME,
M
FIFTH
RESPONDENT
MNQAYI,
A
SIXTH
RESPONDENT
MOTLHAGA,
E
SEVENTH
RESPONDENT
KGOSI,
K. A
EIGHT
RESPONDENT
JUDGEMENT
MOLAHLEHI
AJ
Introduction
[1]
This is an opposed application in terms of s145 of the Labour
Relations Act 66 of 1995 (the LRA) to review and set aside the
arbitration award issued on the 21 December 2005, by the second
respondent in terms of which he found the sanction of dismissal
of
the fourth to the eighth respondents (the employees) by the applicant
to have been “harsh.” He substituted the dismissal
with
reinstatement and a final written warning of 12 months for each of
the respondents.
Background
facts
[2]
The applicant carries on the business of platinum mining in the
Thabazimbi region. The employees were before their dismissal
employed
in the laboratory in the metallurgical plant where they were involved
in assessing metallurgical samples. They also operated
a fusion
furnace and for this reason were issued personal safety equipments
which amongst others included the protective face shields.
[3]
It is apparent that some time prior to the conflict escalating into a
dismissal dispute, the employees used what is referred
to as a type
“A” face shields for the purposes of safety when working
in the furnace.
[4]
During August 2004, the employees complained about the type A face
shields. Management took their complaint on board and agreed
that the
type “B” face shields be ordered and it be put to test.
The testimony of the applicant reveals that up until
the delivery of
the type B face shields, the employees used the type A face shields
as a safety approved equipment. Soon after
the arrival and during the
process of testing the type B face shields, the employee expressed
their preference to it over the type
A face shields.
[5]
The type B face shields stock which was delivered during August 2004,
dwindle, and another order was placed on 19 November 2004.
The above
order was delivered on the 26 January 2005, by which time the type B
face shields had run out of stock and everybody
had reverted back to
using type A face shields, according to the applicant.
[6]
As a result of the shortage of the type B face shields, the employees
lodged a complaint with their supervisor, Mr Mabula (Mabula)
on the
24 January 2005. They expressed their dissatisfaction in having to
revert back to using the type A face shields and refused
to work.
[7]
With the view to resolving the matter, the applicant’s
management team convened a meeting with the employees during the
course of the 24 January 2005. The meeting was attended by Mrs Jansen
(Jansen), Mrs Theron (Theron) and Mabula. The management
team was
unsuccessful in persuading the employees to return to work. It was
after the intervention of Mr Peter Ngobeni, the full
time shop
steward and management having added two extra strips to the type A
face shields, that the employees agreed to resume
their duties.
[8]
It is common cause that the employees refused to work again on the 25
January 2005. In an attempt to resolve the problem, Jansen
enlisted
the services of Mr Kemsley (Kemsley), the chief safety officer.
[9]
The applicant’s version is that after inspecting both A and B
face shields, Kemsley, explained to the employees that the
two types
of the face shields were approved and that the type A face shields
were used in the interim pending the arrival of the
type B face
shields. He further informed them that the type B which they
preferred would be delivered the following day. The explanation
given
by Kemsley did not change the position of the employees. They
continued with their refusal to work.
[10]
Thereafter, both Kemsley and Theron issued an instruction ordering
the employees to return to their work station. Failure to
heed the
instruction led to their suspension, discipline and finally
dismissal. Thereafter the matter was referred to the CCMA
for
conciliation, but conciliation having failed, the matter was
arbitrated upon. It is the outcome of this arbitration which is
subject of this review.
[11]
The third respondent arbitrated the matter over a period of two days
and the only issue before him in terms of the agreement
reached
between the parties was to determine the substantive fairness of the
dismissal. The third respondent, found the employees
guilty as
charged but found that the sanction of dismissal was inappropriate
and ordered reinstatement with a final written warning
valid for 12
months.
The
case of the respondent
[12]
In their answering affidavits the respondents disputed the
applicant’s version that the type A face shields were approved,
complied with the Mine Health and Safety Act 29 of 1966 (the MHSA),
and was previously used as a standard stock.
[13]
The employees contended that an agreement was concluded that the type
A face shields would no longer be used, and whatever
stock remained
will be kept in the store room. According to Mr Modisakeng
(Modisakeng) the only witness called by the respondents,
management promised them on the 24 January 2005, that the type B face
shields would be delivered over night and be ready for use
the
following day. This seems to be the reason why they agreed to use the
type A face shields on that day.
[14]
When the new stock did not arrive on the 25 January 2004, the
employee refused to work and according to the testimony of
Modisakeng,
they requested that they wait for the type B face shield
to arrive.
[15]
Mabula who had earlier discussed the issue of the availability of the
type B face shields came back soon thereafter accompanied
by Jansen.
Both told the employees that the type B face shields had not arrived
and that they should continue work using the type
A face shields.
[16]
A meeting was convened with the employees in the “balance room”
where they were told by Jansen and Kemsley
that they should
continue using the type A face shields, otherwise action would be
taken against them.
[17]
Modisakeng contended that the reason for their refusal to obey the
instruction was that they were concerned that the continued
use of
the type A face shields was endangering their safety.
Commissioner’s
reasons
[18]
The commissioner’s reasons are contained in paragraph 5.6 to
5.9 of the arbitration award where she stated:
“
Considering
the merits of the case, the respondent should have given the
applicants the benefit of the doubt. The applicants could
also have
handled the matter better than they had done. But the fact that their
supervisor, Mr Mabula, incited them could have
affected their
judgement negatively. His involvement exacerbated the problem.
The
fact that Mabula incited the applicants does not mean
that the behaviour of the applicants should be condoned. But
the
dismissal is certainly not an appropriate decision the respondent
could effect circumstances of this case.
In
fact Mr Mabula’s conduct was more serious than that of the
applicants because he was put in a position of trust and was
custodian of the respondent’s rules and procedures. He may have
instructed the applicants to work but the instruction had
mixed
messages because he had also told them not to give up the fight for
their preferred face shields. He got away with a final
warning.”
(
the record pages 215- 216)”
[19]
It is apparent from the above that the commissioner came to the
respondents’ relief for the following two reasons:
a)
Mabula had incited the employees not to
work or to refuse to obey lawful instructions.
b)
Inconsistent application of discipline in
that Mabula who had committed a serious offence was but given only a
final written warning.
Evaluation
[20]
It is apparent that Mabula had some discussion with the employees on
the morning of the 25 January 2005, regarding the availability
of the
type B face shields. Mabula informed them that the face shields
had not yet arrived and that he would check with Jansen
what progress
was made in ordering the new face shields.
[21]
Both Mabula and Jansen met with the respondents and advised them to
continue using the type A face shields. Thereafter,
Jansen left
and Mabula who remained and continued the discussion with the
employees.
[22]
Modisakeng’s testimony indicates that even after the departure
of Jansen, Mabula again requested them to continue using
the type A
face shields whilst waiting for the B shields order to arrive. In
fact the record at page 191, line 10 reflects that
Mabula repeated
the request twice after the departure of Jansen. It is at the end of
the second request where it is alleged that,
Mabula told the
respondents that the type B face shields would not be delivered
because the employees were already using the type
A face shields.
[23]
During cross-examination, Modisakeng conceded that he was aware that
the type B face shields had already been ordered. He also
conceded
that he was aware by the 24 January
2005,
that the order had not yet arrived and that the delay in the deliver
was due to the Christmas break.
Issue
of incitement
[24]
In assessing whether the issue of incitement was an issue before the
commissioner and needed his consideration, it is important
to note
that when asked why did they not comply with the lawful instruction,
Modisakeng stated; “
the reason is
we did not have equipment, [sic] protective equipment ….”
(at page 205 of the record). This is
far from attributing their work stoppage to the alleged comment or
involvement of Mabula in
their refusal to work. He further conceded
that the reason they did not want to work with type A face shields
was because the type
“
B was more
comfortable for us.”
[25]
In my view it is clear from the above analysis that the issue of
“
incitement
” was never put as an issue before the
commissioner. This view is further supported by how the respondents
formulated the
issue for consideration by the commissioner in their
heads of argument during the arbitration proceedings before the CCMA.
The
issue was formulated at paragraph 2.3 as follows:
“
Applicant’s
defence is that instruction [sic] given to them was not reasonable as
the equipment was not adequate to be used
in the area they worked.”
[26]
In their answering affidavit the respondents pointed out that Mabula
had “hinted” that if they continued using
the type A face
shields the type B shields might not arrive.
[27]
In the light of the above, it is my view that the conclusion by the
commissioner that Mabula incited the employees and this
was an issue
for consideration before her, was unjustifiable because there was no
evidence before her which pointed towards
incitement.”
It is also unjustifiable in that there was no evidence as to how his
involvement “
could have affected
their judgement negatively.’’
[28]
In essence the conclusion of the commissioner amounted to a defence
of “
incitement
”
on the part of the respondents. It is unjustified and in a
technical sense the commissioner committed a gross misconduct
in
relying on a defence that was not pleaded nor articulated by
Modisakeng in his testimony. It is a defence which was never brought
to the attention of applicant and accordingly the applicant was
denied the opportunity to respond to the defence. Reliance on this
defence gave the employees an unfair advantage.
[29]
In Matla Coal Ltd v Commissioner for Mediation and Arbitration and
others case No JA 33/04 Nicholdson JA said:
“
Where
a defence is not pleaded and not articulated in evidence it is not a
defence and a Court errs when that “defence”
is made a
reason for its conclusion. The essence of our procedure is to give
each party to a dispute a fair opportunity to put
his or her case and
meet the allegation made by the other party. To this end there are
pleadings which define and therefore give
fair warning of the issues
in dispute.”
Inconsistency
of discipline
[30]
The commissioner found that the applicant had applied discipline
inconsistently in imposing a dismissal punishment on the employees
and only a suspension on Mabula who according to him had committed an
offence of a
“
more serious nature”
than that of the employees.
[31]
As a general principle, it is unfair to apply discipline in an
inconsistent manner as there is an expectation on the part of
employees that like cases will be dealt with in the same way.
Consistency is an inherent requirement of fairness. However, an
employer may be justified in differentiating between employees,
guilty of the same offences on the basis of the differences in the
personal circumstances of each of the employee. See Early Bird Farms
(Pty) Ltd v Mlambo
(1997) 5 BLLR 541
(LAC) at 545 H-I.
[32]
In Gwencha v CCMA & Others
(2006) 3 BLLR 234
(LAC) the court
held:
“
Disciplinary
consistency is the hallmark of progressive labour relations that
every employee must be measured by the same standards.”
The
Court went further to say that:
“…
when
comparing employees care should be taken to ensure that the gravity
of the misconduct is evaluated and the disciplinary record
of the two
employees compared”
[33]
In general it is the comparison between the circumstances, history of
discipline and showing remorse that influence the determination
of
the differentiated sanction on the employees involved in the same
offence.
[34]
It therefore, does not necessarily follow that the outcome of a
disciplinary hearing of the employees charged with the same
offence
will automatically be the same. It needs also to be emphasised that
the principles of consistency apply in a case where
employees are
charged with the same offence.
[35]
In the present case the finding of inconsistency is unjustified in
that while there was mention of Mabula having incited the
employees
during the cross-examination of Jansen and Theron and the heads of
argument submitted during the arbitration proceedings,
this was not
substantiated. The only witness of the respondents, Modisakeng, gave
no evidence to this effect.
[36]
The evidence of the chairperson of the appeal hearing did not take
the employees’ case any further in as far as the issue
of the
alleged inconsistent application of discipline was concerned. All
what the chairperson of the appeal hearing did was to
recommend that
an investigation be conducted into the involvement of Mabula in the
matter. He did not pronounce any quilt finding
on Mabula neither did
he play any role in his disciplinary hearing.
[37]
Except for the indication that Mabula was issued with a warning,
there is no evidence as to what happened during the disciplinary
hearing. There was no evidence before the commissioner indicating the
reasons why and the basis upon which the disciplinary hearing
imposed
a suspension on Mabula. There is nothing in Modisakeng’s
version that points to misconduct on the part of Mabula.
[38]
The finding would still be unjustifiable even if it was to be
inferred from the evidence that Mabula had committed an offence.
The
commissioner found Mabula to have committed a serious offence of
inciting the employees to refuse to work. The respondents
were
charged and found guilty of refusal to obey a lawful instruction. If
this inference was to be sustained, Mabula would have
been guilty of
incitement and not of refusal to obey a lawful instruction. The
finding of inconsistency is unjustified in that
the conduct was
manifestly different and incomparable of giving rise to a conclusion
that discipline was applied inconsistently.
Interfering
with the sanction
[39]
In dealing with the sanction the commissioner found the dismissal to
be unfair. In this regard he stated:
“
The
respondent should have given the applicants each a final written
warning. Dismissal, in the context of this circumstances of
the case,
was too harsh.”
[40]
There is authority that the discretion to determine a sanction in a
disciplinary hearing lies with the employer and not the
arbitrators.
The arbitrators have the duty to determine the fairness of the
sanction. The criterion is not whether an arbitrator
would have
imposed a different sanction or he/she did not like the sanction. The
question is not whether the sanction is correct,
or the commissioner
agrees with it. The question is, whether the sanction is fair or not.
[41]
In dealing with the issue concerning the powers of commissioners to
interfere with the sanction of an employer, Cameron JA
in Rustenburg
Platinum Mines LTD ( Rustenburg Section) v CCMA & Others
[2006]
11 BLLR 1021(SCA)
had this to say:
“…
a
CCMA commissioner is not vested with a discretion to impose a
sanction in the case of work place incapacity or misconduct. The
discretion belongs in the first instance to the employer. The
commissioner enjoys no discretion in relation to the sanction, but
bears the duty of determining whether the employer’s sanction
is fair.”
[42]
After analysing the decisions of the Labour Appeal Court, Cameron JA,
(at p10379-1040) held that the above approach is based
on (a) the
textual, (b) conceptual, and (c) institutional frame of the LRA and
the Code for Good Practice.
[43]
With regard to the textual basis, the court found that s 188(2) of
the LRA requires that any person considering whether or
not the
dismissal was for a fair reason, should take into account the Code of
Good Practice on dismissal.
[44]
Conceptually, the criterion of fairness denotes a range of possible
responses all of which could be described as fair. This
approach in
my view extends the discretion of the employer to the level that it
is almost unlimited and very wide. The range of
possible responses is
so wide that in essence all what the commissioner can do at best is
to observe and note the sanction imposed
by the employer.
[45]
This court is bound by the Rustenburg Platinum Mines Judgment.
However in my view the appropriate approach in dealing
with this
issue is that which was adopted in Toyota SA Motors (PTY) LTD v
Radebe & Others (2000) 21 ILJ 340 (LAC) where the
court held
that, it would interfere with the sanction imposed by a commissioner
if the sanction is so egregious that it shocks
and alarms the court.
Another significant aspect of this judgement is that it held that the
reasonable employer test was not part
of our law.
[46]
The SCA finally explained that the institutional basis “
lies
in pointing to commissioners firmly to the limits the statute places
upon their powers.”
In this
regard quoted with approval the decision, in County Fair
Foods v CCMA (1999) 20 ILJ 1701(LAC) also reported
at
(1999) 11 BLLR
1117
(LAC), was quoted with approval, where Ngcobo AJP had this to
say:
“
If
commissioners could substitute their judgement and discretion for the
judgement and discretion fairly exercised by the employers,
then the
function of management would have been abdicated- employees would
take every case to the CCMA. This result would not be
fair to the
employers.”
[47]
It is clear that in finding the dismissal to be harsh, the
commissioner committed a reviewable irregularity. What the
commissioner
was required to consider in terms of Schedule 8 Item
7(b) (iv) of the Code of good Practice was whether the sanction
imposed by
applicant was an appropriate sanction for the
contravention of the workplace rule.
[48]
Conceptually, in terms of the Rustenburg Platinum Mines, the
commissioner, in this matter failed to appreciate that the criterion
for fairness denotes a range of possible responses which may be
described as fair. The sanction may well be harsh but that
does
not necessarily mean that it is unfair. In essence the
commissioner in arriving at the decision as he did, substituted
the
applicant’s decision for what he considered not to be a harsh
sanction. In arriving at this decision he failed to appreciate
that
fairness is a relative concept and in assessing its presence in a
dismissal sanction, account should be taken of the fact
that it is
the employer who has the power to determine the workplace rules and
consequently the sanction in the event of breach
of such rules by
employees. It follows from this that it is the employer who has the
discretion to determine a fair sanction.
[49]
In the light of the above the arbitration issued by the commissioner
stand to be reviewed and set aside. There is no need to
deal with
failure by the commissioner to consider remorse.
Conclusion
[50]
I accordingly make the following order:
1.
The arbitration award dated 21 December 2005 issued under case No
LP793-05 is reviewed and
set-aside.
2.
This matter is referred back to the CCMA for arbitration
de
novo
, before a commissioner other than
the second respondent.
3. Cost
to follow the course.
_________________
MOLAHLEHI
AJ
DATE
OF HEARING :
12
DECEMBER 2006
DATE
OF JUDGMENT :
08 FEBRUARY 2007
APPEARANCES
FOR
THE APPLICANT
:
LEPPAN
BEECH INCORPORATED
INSTRUCTED
BY
:
ADV A MYBURGH
FOR
THE RESPONDENT:
GUMBO
ATTORNEYS
INSTRUCTED
BY : K M
MOKATE