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[2012] ZALCJHB 128
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Rustenburg Platinum Mines Ltd (Amandebult Section) v Ncumani and Others (JR 2392/10) [2012] ZALCJHB 128 (26 October 2012)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2392/10
In the matter between:
RUSTENBURG
PLATINUM MINES
LIMITED (AMANDEBULT SECTION)
......................................................................
Applicant
and
NCUMANI,
ZC
.............................................................................................
First
Respondent
RAMOTSHELA,
N.O
..............................................................................
Second
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION AND ARBITRATION
.............................................................
Third
Respondent
Heard
:
03 October 2012
Delivered
:
26 October 2012
Summary: Review application- Failure by the Commissioner to apply
his mind to the evidence.
JUDGMENT
MOLAHLEHI, J
Introduction
This is an application to review and set aside the arbitration award
made by the second respondent (the Commissioner) under case
number
LP3977-07 dated 9 August 2010. In terms of that arbitration award,
the Commissioner found the dismissal of the first respondent,
Mr
Ncumani (the employee) to have been substantively unfair and for
that reason ordered that he be reinstated.
Background facts
The employee who was employed as a loco team supervisor was charged
with gross negligence and for “allowing his people
to work
substandard.” The employee together with Mr Thipe employed as
team loco supervisors. The applicant operates a number
of
locomotives underground to transport amongst other materials ore and
explosives. As supervisors they were responsible for
supervising the
transportation of ore and the other explosives. However, on those
days that one of them was absent from work,
the one present becomes
responsible for supervising both the transportation of ore and
explosives. In relation to supervising,
the transportation of
explosives the supervisor was responsible for walking behind
locomotive and the hoppers with a red stop
light and a pea whistle.
The reason for walking behind the locomotive and hoppers was to
prevent accidents from occurring with
other transportation of
employees.
On the day of the incident, Mr Thipe was absent from work and
therefore the employee was responsible for supervising the
transportation
of both ore and explosives. The employee was accused
of failing to supervise the transportation of the explosives on the
day
in question. The explosives were transported by Ms Mmebe, the
locomotive driver and Mr Sebolayi, the locomotive guard.
The two of them claimed that on the day of the incident they were
instructed by the employee to transport explosives. Ms Mmebe
stated
that she did not realise whilst driving the locomotive that the
employee was not accompanying them as required by the
rule. She says
she only became aware of this fact when she was alerted by Mr Van
Rooyen and Mr Bukle.
It was further alleged that Mr Van Rooyen confronted the employee
about the incident and he (the employee) admitted that he had
made a
mistake and apologised for allowing the transportation of the
explosives on that day without ensuring compliance with
the rule.
The employee was charged with gross negligence and “allowing
his people to work substandard.” The employee was found
guilty
as charged and was given a final written warning. The employee being
unhappy with the outcome of the disciplinary hearing
lodged an
appeal against the written warning. The chairperson of the appeal
after hearing evidence reversed the sanction of the
written warning
and directed that the employee should be dismissed.
The employee did not accept his dismissal and accordingly challenged
it for unfairness. At the arbitration hearing, the employee
denied
having issued both the driver and locomotive guard instruction to
transport the explosives on the day in question.
The arbitration award
The Commissioner in his arbitration award seems to have accepted the
contention of the applicant that when one of the supervisors
was
absent the other takes the responsibility of supervising both the
transportation of the ore and the explosives. The Commissioner
further accepted that the employee was the only supervisor present
on the day in question. This did not however, according to
the
Commissioner in itself render the employee liable for the incident
of transporting the explosives without following the proper
procedures.
The Commissioner found the employee not to have been guilty of the
offence for two reasons. In this respect, the Commissioner
reasoned
that at the time the driver commenced the transportation of the
explosives, the employee was attending to other tasks
at some other
area where ore comes out and secondly that the driver and his crew
were supposed to have called him when the explosives
arrived. The
Commissioner further accepted the version of the employee that at
the time the explosives arrived he was far from
the area where they
arrived at and could therefore not have been aware that they had
arrived.
It was on the basis of the above reasoning that the Commissioner
found the dismissal of the employee to have been unfair and
accordingly ordered that he be reinstated and be compensated in the
amount equivalent to 38 months calculated at the salary he
received
at the time of his dismissal.
Grounds for review
In challenging the arbitration award, the applicant raised several
grounds of review. The essence of criticism of the arbitration
award
is that the Commissioner committed gross irregularity in the manner
he dealt with the evidence and the facts which were
presented before
him. The other aspect of the challenge relates to the alleged
unreasonableness of the conclusion reached by
the Commissioner.
Evaluation
It is common cause that the explosives had to be escorted by a
supervisor whenever they had to be transported from one point
to the
next. The first respondent therefore had a rule relating to the
transportation of explosive its underlying objective being
safety.
The reasonableness of the rule was not challenged. There seem to
have been some debate initially as to whether the first
respondent
was responsible to supervise the transportation of explosives on the
day in question. It was however, accepted that
in the absence of the
other supervisor he was responsible for the supervision of the
explosives on that day.
The factual issue which the Commissioner was confronted with,
arising from the defence of the employee was whether he (the
employee) was present at the time the explosives were transported
and that he did not give the crew the instruction to transport
the
explosives. The key defence of the employee is that he was not aware
that the crew was transporting the explosives and by
implication
that is the reason he never supervised or escorted the explosive on
the day in question.
The Commissioner accepted the version of the employee that at the
time of the transportation of the explosives he was not aware
as he
was busy at another section. The applicant contends that the
decision of the arbitrator is reviewable because he failed
to take
into account the evidence of the driver of the locomotive and the
safety representative. For the reasons set out below
I agree with
the contention of the applicant that arbitration award of the
Commissioner is reviewable.
It is important to note that the arbitration hearing commenced with
the applicant leading its witnesses. In that context, it
was
incumbent on the representative of the first respondent not only to
challenge the version of the applicants witnesses in
cross
examination but also put the version of the first respondent to
those witnesses in order for them to respond thereto. In
this
respect the first respondent’s representative did not put the
version that the first respondent would in his testimony
deny having
given them instruction to transport the explosives. The first
respondent denied having given the crew the instruction
to transport
the explosives in his evidence in chief. In law, the version of Ms
Mabana remains in this context unchallenged.
This being the
fundamental aspect of the case and in particular the defence of the
first respondent, the Commissioner ought to
have taken this into
account when assessing the evidence which was before him.
The other aspect which the Commissioner failed to consider is that
the version of Ms Mabena was confirmed in certain respect
by the
testimony of the safety officer, whose version was also never
challenged by the first respondent. The safety representative
testified that when he saw the first respondent at the battery bay
he enquired from him as to where the explosives were being
transported to. He further testified that the first respondent
simply told him that they were transporting the explosives. On
this
basis, it follows from the defence that he was not there when the
crew was delivering the explosives and that he did not
give them
instructions to transport the explosives ought to have been
rejected.
In the circumstances, I am satisfied that the applicant has made out
a case warranting interference with the arbitration award
by this
court. I do not however, believe that it would be fair to allow the
costs to follow the results.
Order
In the premises, the following order is made:
The arbitration award made under case LP3977-07 dated 9 August 2010
is reviewed and set aside.
The arbitration award is substituted with an order to the effect
that the dismissal of the first respondent (applicant in the
arbitration proceedings) was substantively fair including the
sanction.
There is no order as to costs.
_______________________
MOLAHLEHI, J
Judge of the Labour Court of South Africa
APPEARANCES
For the Applicant: L Louw of Edward Nathan Sonnenbergs
For the
Respondent: No appearance