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[2008] ZALCJHB 53
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National Union of Mineworkers and Another v Commission for Conciliation Mediation And Arbitration and Others (JR245/07) [2008] ZALCJHB 53 (11 March 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD IN JOHANNESBURG
CASE
NO: JR 245\07
In
the matter between:
NATIONAL
UNION OF
MINEWORKERS
First Applicant
S
MANDLAZI
Second
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
L
BORMAN
N.O.
Second
Respondent
NORTHAM
PLATINUM
LIMITED
Third
Respondent
JUDGMENT
MOSHOANA
AJ
Introduction
[1]
This is a review application brought in terms of section 145 of the
Labour Relations Act as amended.
Background
facts
[2]
The second applicant, Samuel Norman Mandlazi was employed by the
third respondent as a stop machine operator.
[3]
On or about 08 October 2004 underground blasting activities were
suspended following a mine accident. This was in line with
section 54
(1) instructions from the Department of Minerals and energy. A risk
assessment team was formed to go underground to
do an inspection.
[4]
On that day Mr Gerson Nthengwe a stopper had called for the normal
safety meeting chaired by him. Whilst busy with the said
meeting, the
second applicant disrupted such a meeting as a result Mr Nthengwe
could not proceed with the safety meeting. This
was after one Barend
Loots, the second applicant’s supervisor instructed him to form
four assessment teams. The second applicant
defied this instruction
and proceeded to form only one team consisting of him and others.
[5]
Owing to the conduct of the second applicant as set out above, the
second applicant was charged with 3 acts of misconduct. Following
a
disciplinary hearing, the second applicant was found guilty of all
the acts of misconduct and dismissed.
[6]
He then challenged the fairness of his dismissal. His challenge
failed in that the second respondent issued an award to the
affect
that the dismissal was not unfair. Aggrieved by the award, this
application was launched by the first and the second applicant.
The
attack
[7]
The applicants in their founding papers contend that the second
respondent, committed a gross irregularity, misdirected himself
and
failed to apply his mind, in that he accepted the version of the
third respondent despite contradictions.
[8]
Further, he (second respondent) accepted uncorroborated evidence of
Steyn without critical analysis and proper evaluation. Further,
second respondent was accused of having produced an award that is not
justifiable in relation to the material before him. He is
also
accused of not recognising the second respondent’s version as
being inherently probable.
[9]
In court, Mr Goldberg for the applicants contended that the second
respondent’s award is unreasonable in that in rejecting
the
second applicant’s justification for the misconduct, he ignored
the risk assessment report and common cause facts. He
in support of
that contention referred the court to various decisions of the Labour
Appeal Court and the Constitutional Court.
At the end he argued that
the applicants should succeed with costs following the results.
Analysis
[10]
Having considered the award, I am of the view that the award is
reasonable and in fact supported by evidence before the second
respondent. The second respondent found that there was evidence that
the second applicant disrupted the safety meeting and refused
to
carry out an instruction.
[11]
As was argued by Goldberg, the second respondent cannot factually be
faulted for having found that the second applicant was
guilty of the
said two acts of misconduct. His submission was focused on the fact
that in terms of section 54 instructions, employees
were not supposed
to work and therefore, the second applicant was justified in his
misconduct as it were.
[12]
This submission is absurd. In the first place, the very meeting that
the second applicant disrupted was to deal with safety
issues. How
can he be justified by section 54 instructions to do that. Secondly
the team to be formed were to do a risk assessment
as required by the
aforesaid section 54 instructions. The authorities relied on by
Goldberg do not support the proposition that
this award is
reviewable.
Therefore,
I do not find any grounds upon which this award could be set aside.
Order
[13]
In the result, I make the following order:
1.
The review application is dismissed.
2.
The first applicant and second applicant to
pay the costs of this application, jointly and severally, the one
paying absolving the
other.
________________________
Moshoana
AJ
Acting
Judge of the Labour Court
Johannesburg
Appearances
For
the applicant : Mr
Goldberg
For
the Respondent : Adv Van Den Berg
Instructed
by
: Van Zyl Roux & Hurter Attorneys
Date
of hearing
: 28 February 2008
Date
of Judgment : 11 March 2008