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[2012] ZALCJHB 117
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National Union of Mineworkers obo Botsane v Parkinson NO and Others (JR 2865/08) [2012] ZALCJHB 117 (18 October 2012)
Reportable
REPUBLIC OF SOUTH AFRICA
T
HE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JR 2865/08
In the matter between:
NATIONAL UNION OF MINEWORKERS
........................................................
Applicant
OBO BOTSANE
and
TERENCE PARKINSON N.O
.............................................................
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
.................................................
Second
Respondent
ANGLO PLATINUM MINES LTD
(RUSTENBURG SECTION)
..............................................................
Third
Respondent
Heard:
26 July 2012
Delivered:
18 October 2012
Summary:
Review based on arbitrator misconstruing the charge
and failing to determine the issues when he found applicant guilty of
failure
to comply with his statutory duties as resident engineer-
award upheld.
JUDGMENT
BHOOLA J
Introduction
This is an application for an order in terms of section 145 (2) of
the Labour Relations Act
1
(“the Act”),reviewing and setting aside the award of the
first respondent (“the arbitrator”) dated 31
October
2008.
Background
The applicant was appointed Resident Engineer at the third
respondent’s Brakspruitand Bleskopshafts from or about July
2006. This is a statutory appointment in terms of Regulation 2.13.1
to Schedule 4 of the Mine Health and Safety Act 29 of 1996,
(“the
MHSA”) in terms of which he was
inter alia
responsible
for ensuring that the two plants and all equipment complied with
statutory safety requirements.
Each underground level of the Brakspruit shaft (which had 24 levels)
had a railway network with locomotives(colloquially known
as
locos)running on tracks and hauling trucks (hoppers). To avoid
collisions underground,the third respondent implemented measures,
known as the S & SD initiative, which involved the fitting of
proximity devices to locomotives that would warn of other moving
locomotives in the vicinity. A proximity device consists of a
battery, a sensor, a transponder and a light which would set off
an
alarm when there is another locomotive within a distance of
approximately 70 – 80 metres. This would allow the drivers
to
take precautionary measures to avoid collisions. The expected
implementation date for the proximity devices was a hotly disputed
issue in the proceedings.
A fatal accident occurred at the Brakspruit shaft on 5 May 2007,
resulting in the death of a miner, Mr A. Marrime, and an
investigation
was conducted by the Department of Minerals and Energy
(“the DME enquiry”) in terms of section 65 of the Mine
Health
and Safety Act. The DME enquirywas held on 23 and 24 May 2007
and established,
inter alia
, that the two locomotives
involved in the accident (SWB29 and JR1) had not been fitted with
proximity devices.This was not found
however to be the cause of the
accident. The finding of the enquiry wasas follows: “Rustenburg
Platinum’s Mining
Standards: Issuing of Licences WG120-0015
(Exhibit M, page 1) clearly states that no person shall drive,
operate or permit any
person to operate Machinery, unless such
persons are authorized. The fact that MrMothhae was not trained and
not familiar with
the new controller installed on locomotive SWB29,
was the reason why the Locomotive SWB29 was put into motion before
the train
pulled by Locomotive JR1 had passed through the rail
switch. From the inquiry it was also clear that the majority of
locomotive
operators on the mine was not tested and authorized
according to the Code of Practice for Issuing Licences as
per
Mining Standard WG-120-0015 (Exhibit M, page 1). There was no key
control system available at Brakspruit Shaft for Rail Bound
Equipment as stated in Underground Tramming and Transport Procedure
WG-320-0003(Exhibit M page 9 point 19)”. In citing
regulations
or codes that have apparently been contravened, the DME enquiry
found that the two locos were not fitted with anti-collision
devices
as stated in the General Loco Safety Procedure of battery locos
Regulations 320-0028. The evidence was that one of the
locos had not
been commissioned for use and did not have a proximity device and
the other had been removed.
On 17 May 2007, the applicant was charged with the following :
‘
1.Gross
negligence – in that you failed to comply with S and SD
Initiative of the Company, relating to the safe operations
of battery
locomotives.
2. Dishonesty.’
It is common cause that the charges were not related to the fatal
accident and that the DME enquiry was only relevant to the
charge of
dishonesty. The applicant was found guilty on both charges and was
dismissed. His dismissal was confirmed on appeal.
He referred a
dispute relating to the procedural and substantive unfairness of his
dismissal to the second respondent.
Grounds of review
The primary ground of review is that the arbitrator misconstrued the
charge when he permitted evidence to be led on systems for
monitoring compliance with the installation of the proximity
devices.
The supplementary affidavit sets out the following as the grounds of
review :
ChristiaanSteynberg’s evidence was irrelevant and was not put
to the applicant in cross-examination;
Jan Hough’s evidence was not supported by documentary
evidence and was improbable but was accepted by the arbitrator
as
probable in preference to the evidence of the applicant;
The arbitrator refused to include inconsistency as a ground for
attacking the substantive unfairness of the dismissal
notwithstanding
the evidence to this effect.
In permitting the third respondent to lead evidence on new issues,
the applicant was cross-examined on issues that he had not
canvassed with his legal representatives;
There is a reasonable apprehension of bias on the part of the
arbitrator.
The evidence led at arbitration
It is common cause that the applicant reported directly to the
Production Manager and had an indirect reporting line to the
Managing Engineer, Hough.It is further common cause that Hough had
instructed him to make sure that the proximity devices were
fitted
to the locos according tothird respondent’s standards.
On 27 November 2006, Hough sent an email to the Mine Manager (Peter
van Dorsten) and copied the applicant. The email contained
a “Loco
Proximity Implementation Plan” which indicated the proposed
completion date for installation of the proximity
devices as being
end May 2007. This was based on a proposed monthly installation
schedule. The applicant’s evidence was
that this was the only
implementation plan of which he was aware, and that Hough’s
version that the implementation date
was in fact end January 2007
emerged for the first time during his disciplinary enquiry. Hough
testified however that this was
never an official implementation
plan but had been prepared at a time when he was uncertain of the
number of devices that could
be obtained from the supplier, and when
a larger consignment was received in December 2006, a new
implementation plan reflecting
31 January 2007 as the completion
datewas communicated verbally to the applicant and his team.
Thereafter on numerous occasions
the applicant was reminded to
ensure compliance with this completion date.
It is common cause that Hough asked the applicant in February 2007
about progress with installing the devices. The applicant
indicated
he was unsure but believed that there were five or six devices that
still had to be installed. Thereafter, in an inspection
in March
2007, Hough found locos on levels 14 and 15 without devices and
instructed the applicant to ensure that they were fitted.
Hough
testified that at some stage the applicant informed him that all the
devices had been installed by 11 March 2007. The applicant
submits
that this evidence could not have been correct as it contradicted
Hough’s testimony in the disciplinary enquiry
andJames
Whitley, the chair of the disciplinary enquiry also understood this
to be the case. In his statement to the disciplinary
enquiry Hough
had stated that the applicant ‘confirmed that the proximity
units will be completed on 11 March 2007 at Brakspruit
shaft’.He
sent a report to the Mine Manager the following day in this regard
and copied same to the applicant.
It is common cause that Hough did not charge the applicant until
after the accident which occurred on 5 May 2007. He also confirmed
that as Resident Engineer the applicant was only required to
continue with systems in place and was not required to invent new
systems, but he was not sure what systems the applicant used to
ensure compliance with the S & SD initiative. In his statement
to the disciplinary enquiry, he stated that it was his opinion that
the applicant ‘did not drive this process diligently,
that he
was grossly negligent in executing his duties in this regard, after
several instructions and that he supplied me with
false
information’.
The applicant’s evidence was that during February 2007, Hough
telephoned him while he was in a meeting with the shaft
engineer,GoitseChoabi, and his foreman. Hough asked him how many
locos had been fitted with proximity devices, and in the presence
of
his subordinates the applicant relayed their feedback that all
locomotives had been fitted. In cross-examination in the arbitration
he confirmed that when he conducted an underground inspection with
Hough on 14 and 15 levels in March 2007 they saw two locos
without
devices and Hough instructed him to make sure they were fitted.
However, on 18 March 2007 he and Choabi conducted an
inspection
underground and again discovered two locomotives without devices.
They instructed an artisan and his crew to immediately
attend to the
installation instead of doing their regular tasks. The applicant
threatened to dismiss the shaft engineer if the
situation ever
recurred. In his statement to the disciplinary enquiry he stated
that thereafter on subsequent inspections he
checked all locos and
established that all had fitted devices. He was sure that following
the inspection on 18 March and after
the two locos had been fitted,
there was 100% compliance as far as the proximity devices were
concerned. Thereafter on 13 April
2007,the applicant instructed the
new foreman, Alfred Seetsi (who took over the mechanical
responsibility of the locos from 10
April 2007) to check whether all
locos had swivel chairs and Perspex windows installed. Although it
was not his direct responsibility
(it is the electrical foreman’s
function), the applicant asked him as a favour to confirm compliance
with the proximity
devices installation.On 14 April
2007,Seetsireported to him telephonically that there were six locos
that were not compliant
in terms of devices and the applicant asked
him to establish which locos they were and on which levels they were
operating. On
the Monday thereafter,however,he could not locate
Seetsiand was unable to verify the identity and location of the six
locos because
he doubted the veracity of Seetsi’s report and
he approached the electrical foreman (Van der Walt).The latter was
adamant
that all the locos had been fitted with devices and the
applicant accepted hisversion. After the accident the applicant
received
reports that drivers had removed the light fittings of the
devices because the lights were too distracting, and had been using
them as drinking cups. When questioned about his failure to take
disciplinary steps he said he had insufficient information to
do
so.He only realised on the day of the fatal accident that the
information provided by Seetsi had been correct and felt very
remorseful to the extent that he informed his colleagues that he
should have believed Seetsi. Hough would not have been aware
as he
was not present at the time.
The arbitration award
The arbitrator’s conclusion on substantive fairness is based
on the inter-relationship between the applicant’s managerial
and legal or statutory duties. He found that although these could be
examined separately they are not mutually exclusive. In
regard to
his management responsibilities he concluded that the applicant
adopted an approach that was based on delegation and
affording some
degree of autonomy to his subordinate engineers and foremen. This,
however, meant that he did not grasp the difference
between
delegation of duties and abdication of responsibilities, which in
this case unfortunately had tragic consequences.
In examining his statutory duties under section 7 of the MHSA, the
arbitrator found that the statute makes no concession to management
style nor does it provide any authority to delegate functions
although this might be normal in day to day management. He had
regard to the legal responsibilities that the appointment of the
applicant carries with it and which are critical in ensuring
that
the third respondent meets its statutory obligations. These, he
found, could under no circumstances be delegated. He cited
regulation 2.13.1 in terms of which the applicant was appointed,
which reads : ‘At any mine or works where- (a)…..,
(b)
any winding plant intended for conveying persons is installed,
all
machinery shall, subject to Regulation 2.13.6.1 be under the general
charge of an engineer who shall be appointed in writing
by the
manager
’ (arbitrator’s emphasis).
In regard to the applicant’s evidence that he relied upon the
integrity and trust of his subordinates, the arbitrator noted
that
the appointment of a subordinate engineer does not relieve the
resident engineer appointed in terms of Regulation 2.13.1
of any
personal responsibility.This justifies his conclusion that :
‘
Botsane
was utterly wrong in confusing his statutory responsibilities with
his managerial duties. Disregarding the evidence of the
[third]
respondent’s witnesses for the moment, Botsane’s
admission that he did not know how many locos had to be fitted
with
devices and his apparent ignorance of the SAP system is almost
incomprehensible’.
The arbitrator thus made the following finding in regard to the
applicant’s failure to fulfil his responsibilities:
‘
.. as
professional engineer, with any understanding of his legal
responsibilities, how could Botsane then, after being appraised
of
the importance and urgency of this critical safety feature, not
determine for himself the number of locos needed (sic) be fitted,
set
a target date for their fitment, not devise a simple plan to plot
progress, such as was devised, on the spot I might add, by
Steynberg
when given the same task?”. Further, if he was aware that
devices were being abused, why, with his legal responsibilities,
did
he not take any steps, personally, to ensure they were put right? To
compound the gross negligence as charged he would have
me believe
that it was acceptable for him to merely abdicate his
responsibilities by placing the onus on his subordinates to feed
him
the correct information, without his carrying out any spot checks
either on the fitment of the proximity devices or ensuring
the
replacement of the damaged parts. I can only conclude that his whole
inept and cavalier approach to both his management and
legal
responsibilities led, in no small part to the tragic consequences
occurring later. Although he could not be deemed to shoulder
all of
the blame, it is only his actions, or lack of them I have been tasked
with determining.’
Submissions
Mr Hulley, advanced two principle submissions in support of the
review:
The arbitrator misconstrued the charge and as a result committed a
gross irregularity in the conduct of the proceedings.
The arbitrator simply accepted one versionover another without a
process of reasoning and without actually weighing the evidence
on
a balance of probabilities.He in fact determined the dispute on the
applicant’s own version and accordingly failed
toarbitrate
the dispute, resulting in misconduct in the performance of his
duties.
Misconstruingthe charge
The applicant objected to evidence being led in regard to his lack
of systems and controls to meet his statutory obligations
as an
engineer. The arbitrator dismissed the objection and explained his
decision in his award as follows
:‘
I
reject any and all propositions that I should not take account of
any evidence not adduced at Botsane’s disciplinary hearing.
It
is now trite law that any arbitration conducted under the auspices
of the CCMA is a hearing
de novo
and certainly not a mere
re-hash of a disciplinary hearing. At company level, all
participants are, almost without exception,
laypersons, whereas in
these proceedings, it is not at all unusual for parties to be
legally represented. That being the case,
one would obviously expect
the evidence to be more extensive and more deeply probed. There is
no restriction that I am aware
of wherein a party is prohibited from
introducing whatever evidence it feels necessary to assist with its
case or on the number
of witnesses sought to give evidence’.
Mr Hulley submitted that the arbitrator misconstrued hisobjection.
The issue was not whether evidence could be led which had
not
featured at the disciplinary enquiry, but whether the third
respondent, having charged the applicant with negligence for
failure
to comply with the S & SD initiative, could lead evidence on a
new issue related to the applicant’s failure
to develop
systems for monitoring the installation of the proximity devices. He
submitted that even the chairpersonof the disciplinary
enquiry,
Whitley, had excludedsystems from the enquiry.
Mr Hulley confirmed that the objection was not that evidence not
adduced at the disciplinary enquiry should not be admissible,
but
that the third respondent had been permitted to cross-examine the
applicant on his alleged failure to develop systems to
monitor
progress with the installation of the proximity devices without
affording him the opportunity to prepare and without
this having
featured in the disciplinary enquiry. The applicant was prejudiced
as a result. Therefore in dismissing the applicant’s
objection
the arbitrator committed a gross irregularity, failed to apply his
mind properly to the issues before him and in consequence
arrived at
a conclusion that no reasonable decision-maker could reach.
Mr Hulleyfurther submitted that the arbitrator committed a gross
irregularity in the conduct of the proceedings by failing to
determine the charge of dishonesty. He found that it was unnecessary
to deal with it in light of the fact that he had already
found the
applicant guilty of gross negligence and held that in any event he
would not have found that the charge, even if proven,
merited
dismissal. Counsel submitted that this approach ignores the common
cause facts recorded in the pre-arbitration minute
that the charge
of dishonesty related to the following:
‘
2.8The
charges related to the Applicant’s alleged dishonesty and
negligence in not ensuring that the proximity devices were
fitted to
all the locomotives at the Brakspruit shaft, and by giving false
information to Mr Hough and at the enquiry convened
by the Department
of Minerals and Energy.
3.1 The respondent contends that
the applicant was dishonest in the following respects:
3.1.1 In the last week of
February 2007 the applicant informed the managing engineer, Mr Hough,
that all the underground locos were
fitted with proximity devices. In
March 2007 the applicant and Mr Hough were underground and discovered
two locos that were not
fitted with proximity devices. The respondent
contends that the information supplied to Mr Hough in February 2007
was accordingly
false and the applicant thus dishonest’.
The dishonesty issue, Mr Hulley submitted, further involved the 11
March 2007 deadline and the applicant’s testimony to
the DME
enquiry. In this regard, the arbitrator recorded the evidence of
Hough as follows: ‘[30] Questioned further on
the dishonesty
charge, Hough said that Botsane had been dishonest when he reported
that all devices had been fitted by the 11
th
of March when
they clearly had not been. Only at the end of February had Botsane
reported that there were 6 locos still to be
fitted and, himself set
the date of 11
th
March for completion. Only after Botsane
had reported to him that the devices had all been fitted by the 11
th
of March had he submitted the tracking report with a covering memo
on the following day, the 12
th
.’
The dishonesty charge was therefore related to his alleged failure
to comply with the S & SD standards and if there was no
dishonesty it would follow as a consequence that there was no
negligence in regard to the above issues. As I understand the
submission, it is that if he was not dishonest in regard to the 11
March deadline then this evidence should similarly have been
rejected as proof of negligence. Mr Hulley submitted therefore that
if the arbitrator failed to determine the dishonesty charge
he could
not have found the applicant grossly negligent in regard to his
failure to comply with the S & SD standards.
I am however in agreement with the submission by Mr Yeo that in
leading evidence on the lack of systems, the third respondent
was
not introducing a new charge or broadening the charge, but was
adducing evidence in support of the charge of gross negligence.
This
is in essence the distinction between
factaprobanda
and
factaprobantia
– the former relates to the components
of the charge and the latter to facts relevant to proving the
charge. It was in
any event put to the applicant in the disciplinary
enquiry that he was grossly negligent
inter alia
for the
reason that he did not ensure that all proximity warning devices
were fitted
and
that he had no systems or controls in place to
check compliance. Hough’s evidence at the disciplinary enquiry
was clearly
that he was not sure what systems the applicant had in
place to ensure compliance, and on the applicant’s own version
his
system consisted purely of receiving verbal feedback from his
subordinates. The applicant conceded that his legal responsibilities
involved using systems.Hough also testified that he was not required
to develop new systems but that he could have used the existing
SAP
asset register as a basis for identifying the locos and thentracking
the installation of the devices. It is common cause
that he failed
to do so.
Hough in fact cross-examined the applicant in the disciplinary
enquiry on the lack of systems and although he indicated that
he
used a spread sheet this was never produced. The exchange is
recorded as follows
2
:
‘
Question:
What is your role and responsibility at Brakfontein?
Answer:To ensure maintenance and
safe operations. All applicable standards and instructions are
implemented.
Question:How?
Answer:Systems (recording)
Question:What recording system
did you have in place?
Answer:Spreadsheet.’
In any event in regard to this issue,Mr Hulley submitted that it was
apparent that the third respondent did not have any systems
other
than oral communication in place prior to the applicant being
appointed and that prior to the accident Hough did not have
any
problem with such a system and in fact used this himself. This was
therefore consistent with the way in which the third respondent
operated. In this regard, it is noteworthy that the S & SD
initiative consisted largely of oral instructions (except for
the
implementation plan), and on Hough’s own version (although the
applicant disputed this) he had conveyed the revised
installation
date to the applicant verbally.
In my view,even if the arbitrator was incorrect in admitting the
systems evidence, the applicant’s admission that he had
his
suspicions about the information he received (at the very leastfrom
Seetsi) but took no steps to verify itwhether by utilising
existing
systems or developing a new one or in fact personally investigating
it urgently, is in itself definitive of his negligence.
He conceded
that his method of checking compliance was not effective and that he
did not insist on a log indicating the status
of the installation in
respect of each loco. Moreover, even if the applicant is correct
that Steynberg’s evidence was not
admissible, it was the
applicant’s own version that he relied entirely on verbal
communication. He also conceded that the
fitment of devices was as
important as the installation of all safety devices in all machines
at the site, and that in addition
to installing the devices he also
had maintenance obligations. The applicant was therefore well aware
of the third respondent’s
case at the disciplinary enquiry and
this evidence should have made it clear that the lack of systems was
an issue that was relevant
to proving his negligence. The fact that
Whitley testified that he did not investigate systems and controls
at the disciplinary
enquiry does not necessarily imply that this did
not form part of the third respondent’s case but simply
reflects the approach
he took to the charge. The applicant could
have been under no misapprehension therefore that the charge
included his failure
to utilise any formalsystem, and that his
reliance on verbal reports from his subordinates without
verification was not sufficient
given his substantial legal
responsibilities. In this regard, the arbitrator in my view
correctly, justifiably and reasonably
accepted that his own evidence
was conclusive proof of his guilt and this cannot be said to
constitute a gross irregularity.
The systems issue did not constitute a new charge or result in the
introduction of new evidence and the applicant’s contention
that he was taken by surprise alternatively prejudiced by being
cross-examined on this issue without having the opportunity to
prepare is therefore without merit. This ground of review
accordingly falls to be dismissed.
Managerialandstatutory responsibilities
Mr Hulley submitted that in concluding that the applicant had
confused his statutory responsibilities with his managerial duties
and citing in detail all his statutory responsibilities, the
arbitrator further misconstrued and expanded the charge. The
applicant’s
statutory responsibilities did not form the basis
of the charge as it was confined to non-compliance with the S &
SD initiative.
This related only to his managerial responsibilities
in that the third respondent’s case is that he failed to
comply with
the deadlines and ensure implementation of all the
proximity devices as instructed by Hough.Steynberg testified after
the applicant
and his version was never put to the applicant, and
secondly, the arbitrator’s finding that the applicant “stuck
to his guns” in relation to the implementation date is not
correct. Steynberg moreover referred to a period of two weeks
not
three and his evidence was largely based on untested assumptions. Mr
Hulley submitted that the arbitrator committed a gross
irregularity
in accepting Steynberg’s evidence in this regard.
At the very least, Mr Hulley submitted, in order to reach the
conclusionthat the overwhelming probabilities favour the view that
the applicant was indeed guilty of gross negligence, the arbitrator
would have had to determine the content of the S & SD
initiative
as well aswhat the applicant failed to do measured against what he
was required to do. There was no documentary evidence
before him on
this aspect however, and he instead accepted the obscure evidence of
Hough that the initiative encompassed both
written and verbal
components and entailed “a couple of technical solutions”
to address safety concerns. In contrast,
the applicant had never
heard of the acronym “S & SD”.Again, thearbitrator,
he submitted, simply reached a conclusion
but did not weigh the
probabilities through a process of reasoning. He failed thus to
perform the most basic duties of a commissioner
and as such
committed misconduct in the performance of his duties.
In addition, Mr Hulley submitted thatthe finding that the
applicant’s conduct “smacks not only of sheer laxity but
of any kind of the sense of urgency which the instructions from
corporate management was intended to convey”, has no
evidentiary basis. Hough was the only witness led by the third
respondent on the charge. He became aware on two occasions that
the
installation had not been completed but nevertheless took no
disciplinary steps against the applicant. Instead he made the
vague
assertion that he intended to charge him at some point. The
arbitrator however made no reference to this in the award.
He simply
presented a conclusion without any process of reasoning or
explanation as to why he accepts one fact over another and
accordingly failed to apply his mind to the matter.
In regard to the contention that the arbitrator misconstrued the
charge by conflating the applicant’s managerial and
legalduties and responsibilities, Mr Yeo submitted that the
applicant’s legal representative accepted at the commencement
of the arbitration that the charges related to the interface between
the applicant’s management and statutory duties. Moreover,
it
is common cause that he was appointed Resident Engineer in terms of
Regulation 2.13.1 and that this was a senior legal appointment
with
a high level of responsibility and accountability. Indeed, it was
his version that his duties were to ensure that machines
were
operating safely according to relevant standards and ‘to put
into place systems that ensure that the machines also
run safely’.
The full spectrum of his statutory duties featured throughout the
disciplinary enquiry. It is clear that what
the arbitrator did was
to weigh the applicant’s responsibilities in the context of
his defence that he relied on reports
given to him verbally by his
subordinates with regard to the fitment of the devices and took no
steps to independently verify
the information.
In any event,the applicant’s own evidence was that despite
knowing that the installation of the devices was a priority
and
being told on 16 April that there were still locos without devices,
he failed to act with the requisite urgency. It is not
surprising
then that the arbitrator found him lacking in urgency. The
arbitrator clearly adopted the correct approach in determining
the
charge in the context of his statutory accountability, and the
applicant’s submission in this regard must be rejected.The
applicant’s statutory obligations, as the arbitrator made
clear, were an essential backdrop to proving that he was responsible
for ensuring the fitment of the devices and failed to do so. In this
context, it is immaterial whether he was entitled to rely
on the
later implementation date or whether he believed the information fed
to him, the fact is that (as the arbitrator found
in evaluating the
evidence) his evidence in regard to the SAP system, his lack of
knowledge of the S & SD initiative (or
of the acronym only as
submitted by his counsel), as well as his failure to determine
independently how many locos were fitted
are utterly
incomprehensible given his substantial legal accountability. In
fact, his evidence that he had consistently done
nothing wrong in
relying on verbal reports (for instance, he asked the electrical
foreman ‘over and over…I asked
about 6 not fitted, I
asked for recheck’
3
)
and the odd spot check, could not absolve him from responsibility
for his failure to comply with both his statutory and management
responsibilities. What is more serious is that although he indicated
that he understood his responsibilities the evidence before
the
arbitrator indicated that at the very least he failed to appreciate
the magnitude of the duties for which he was responsible,
or even if
he did he displayed a glaring nonchalancetowards compliance. To
contend otherwise is to rely on a completely specious
distinction
between his management and statutory duties and cannot constitute a
ground for review.
Failure to arbitrate the dispute
Mr Hulley submitted that the arbitrator is required to weigh the
evidence and determine on a balance of probabilities where the
truth
lies. This requires him toconsider the evidence of both parties but
he instead accepted the version of one party without
any explanation
or reasoning. This constitutes a failure to perform his duty of
arbitrating the dispute in that he simply found
the applicant guilty
on his own version. This failure is apparent from his conclusion
that the applicant lacked any sense of
urgency. Hough’s
evidence was that he was aware at least on two occasions that the
installation had not been completed
(when the applicant told him in
February that there were about six locos outstanding, and in March
2007 when he and applicant
went underground and discovered two locos
that were not fitted with devices). He however took no steps to
charge the applicant,
but said he intended to charge him with
misconduct at a later stage. This is not mentioned by the arbitrator
at all. Mr Hulley
submitted that it was improbable that if the
expected completion date was January, Hough would not take action
against the applicant
for failure to comply but simply continued
making enquiries about progress. Furthermore, the conclusion that
the applicant’s
conduct as “ a professional engineer”
was relevant ignores the common cause fact that he was not required
to attend
to the installation of the devices himself but to ensure
that they were implemented, and this is recorded in the
pre-arbitration
minute as common cause.
4
The arbitrator however avoided the issue completely and fails to
provide any evidentiary basis or reasoning to indicate how he
arrived at this conclusion. The finding that the applicant had an
‘inept and cavalier approach’ is similarly devoid
of an
evidentiary basis in that it was common cause that he was not
responsible for the accident and that it had been caused
by another
employee circumventing the S & SD initiatives.
Although he conceded that the dispute as to the implementation date
was not material, Mr Hulley submitted that it was relevant
to the
probabilities in that Hough’s evidence was not supported by
documentary evidence but the arbitrator nevertheless
accepted his
testimony that the revised date of 31 January 2007 had been verbally
communicated to the applicant. Even though
the applicant produced
the implementation plan to support his version the arbitrator
nevertheless accepted Hough’s version
.
He submitted
that, in the context of a charge relating to the failure to
implement the S & SD initiative, and if the arbitrator
accepted
that, on Hough’s version, it was part of the corporate culture
that verbal communication was acceptable, then
he had to likewise
accept the applicant’s version that he did nothing wrong in
relying on verbal feedback on the installation
process from his
staff. On the contrary however, he seemed to accept that it was
permissible for Hough to operate in this manner
but not the
applicant. Thus, Mr Hulley submitted, one of the principal arguments
of the applicant is that the arbitrator did
not explain why he
accepted one fact over another. He simply presented a conclusion
without undertaking any process of reasoning
or weighing the
evidence on the probabilities.
Mr Yeo submitted that it was the applicant’s own evidence that
during early January he was not satisfied with progress
with the
fitment of the devices and placed the shaft engineer and foremen on
nightshift in order to accelerate progress. He also
confirmed that
he told Hough in February that there might be five or six devices
not fitted. Therefore on the probabilities Hough’s
version was
correctly accepted by the arbitratorand therewas sufficient evidence
which confirmed Hough’s version of the
implementation date as
being 31 January 2007. Hough’s version that 50 devices were
received for the 45 locos they had at
the shaft and “hence it
was communicated that we need to expedite this and have it finished
by 31 January 2007”,
was not disputed. At the end of February,
when he was informed that there were five or six outstanding, Hough
again instructed
the applicant to make sure it was finished because
‘we were already past our cut-off date for the installation
which was
31 January’. The arbitrator therefore cannot be said
to have committed misconduct in accepting that Hough’s version
of the date being brought forward was more probable.In any event,
the applicant informed him on 11 March that the installation
of
devices was completedor would be completed and meant that on his own
version he could not have been working towards a May
completion
date. If that was the case he would have had no need to fast track
the process. In any event, Mr Yeo submitted, the
implementation date
is irrelevant given the admission by the applicant that he had
advised Hough in February and again in March
that
all
devices
had been fitted. Although this has no probative value in relation to
the dishonesty charge it is nevertheless proof that
he failed to
comply with his own deadlines. This ground of review can similarly
not be sustained.
Analysis
As Mr Hulley submitted, the thrust of the applicant’s case is
that it is obvious from his process of reasoning in the award
that
the arbitrator missed the point. This invokes the test for what the
Labour Appeal Court in
Herholdt v Nedbank Ltd,
5
referred
to as the dialectical or process-related test of unreasonableness
(which focuses on the logical path by which the decision-maker
arrived at his or her decision) and which has since
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
,
6
become
accepted in contrast to the substantive or results-based
reasonableness test (which considers whether the outcome reached
by
the arbitrator is one which a reasonable decision-maker could
reach). Mr Hulley however submitted that the applicant was seeking
to rely on the “traditional test” on review by which I
understand him to rely not on a process-related defect but
that the
outcome was unreasonable. In other words, as a result of the failure
to determine the issues before him the arbitrator
committed
misconduct in the performance of his duties thereby resulting in an
award that is not one that could be reached by
a reasonable
decision-maker. In this context,Mr Hulleysubmitted that the
arbitrator simply reached a conclusion unsupported by
any obvious
process of reasoning in regard to the probabilities. In other words,
he failed to determine, through a process of
reasoning, where the
probabilities lie, or to indicate which facts he accepted and
rejected on a balance of probabilities, and
this demonstrates that
he failed to perform his basic duty which is to determine the
dispute.Irrespective of whether one applies
the outcome or
process-based test however, in my view on either test the grounds
for review have not been established. As set
out above the
arbitrator may have expanded the ambit of his decision-making by
incorporating the statutory responsibilities of
the applicant, but
this does not render the outcome unreasonable nor is there a
demonstrated failure to in the process either
by failing to apply
his mind to the material facts or to misconstrue the charge or to
fail to determine the probabilities.Although
his use of language was
unfortunately harsh, the arbitrator properly determined the dispute
and cannot be said to have made a
decision that could not be made by
a reasonable arbitrator on the evidence before him.
[42] The inescapable fact is that the evidence before the arbitrator
established that the applicant as the resident engineer had
statutory
obligations for safety of the plant and machinery. In other words, he
was the legally responsible person and it is clear
from his evidence
that he understood this responsibility. He owed a higher duty in
terms of the MHSA and the arbitrator correctly
and justifiably
understood the charge in this context. It is moreover not correct
that he found the applicant guilty of not complying
with all his
statutory responsibilities.On the applicant’s own version he
doubted the veracity of the information he was
being given by his
subordinates and was very concerned. Yet on his own admission, he did
very little to remedy the situation. He
did not employ independent
verification methods but simply arranged for another employee to act
as a spy and keep him informed.
When he received information that six
locos did not have devices, a full three weeks before the accident,
he spoke to the shaft
foreman and, despite the seriousness of the
information he had been presented with, simply chose to believe him
when he hotly disputed
that his staff had not completed the
installation. This cannot by any stretch of the imagination be said
to absolve him from a
charge of gross negligence.He in fact chose not
to use the existing SAP system or develop his own system for
monitoring fitment
of the devices. By contrast,Steynberg was able to
immediately develop a system for identifying which locos still had no
devices.
Even if one disregards the unproven content of the S &
SD initiatives, it is at least common cause that itrequired the
installation
of proximity devices and it is in this context that the
arbitrator found his conduct lacking. Furthermore, in the context of
the
evidence before the arbitrator that the applicant did not
properly inform Hough of the situation and led him to believe the
devices
had all been fitted, his failure to act urgently flies in the
face of his concession that safety was of paramount concern. He
conceded
that the devices were available in December and the best he
knew was how many had been fitted but could not say to which locos or
on which levels. In fact the fullest extent of his knowledge was that
they had been installed “here and there”. Steynberg’s
testimony that all the locos could have been fitted on a Sunday or an
evening shift was moreover not challenged.Finally it was
not
acceptable for the applicant to absolve himself from responsibility
by saying that it was not his personal responsibility to
install the
devices as he was ultimately accountable as Resident Engineer.One
cannot however help but feel sympathetic towards
the applicant in
that he was obviously not the only person responsible for the
failures and that some responsibility must attach
to the apparently
laissez faire
culture of management that prevailed. However,
this does not absolve him of what is the responsibility ultimately to
ensure that
the lives of employees are safeguarded and that safety
standards are adhered to. He was required to take personal
responsibility
for this and in the circumstances dismally failed to
do so. It is also unfortunate that Hough reminded him of his
commitment to
install the devices on a number of occasions without
taking disciplinary steps, and it is doubtful whether he in fact
would have
disciplined him had the accident not happened. Thus the
arbitrator found, reasonably and justifiably and with due regard to
the
evidence presented, that the applicant was personally
accountable.For these reasons the review is without merit and falls
to be
dismissed. There are no reasons why in the interests of law and
fairness costs should not follow the cause.
Order
[43] Therefore, I make the following order:
The application is dismissed with costs.
_______________________
Bhoola J
Judge of the Labour Court of South Africa
APPEARANCES
FOR THE APPLICANT:
G I Hulley
Instructed by KD
MaimaneInc, Johannesburg
FOR THE THIRD RESPONDENT:
C E Yeo
Instructed by
FairbridgesInc, Johannesburg.
1
66
of 1995.
2
Record
of Disciplinary enquiry, page 79.
3
Record
of Disciplinary enquiry, page 80.
4
Paragraph
2.9 states : “These proximity devices had to be fitted and
installed by the mine’s electricians. The electricians
reported to the foremen, who reported in turn, to the shaft engineer
who, in turn, reported to the applicant”.
5
Unreported
judgment of the Labour Appeal Court under Case No. DA20/2010 dated 4
May 2012 at paras 33 – 41.
6
(2007)
28 ILJ 2405 (CC) at paras 109 – 110.