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[2013] ZALCJHB 12
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South Gold Exploration v Commission for Conciliation Mediation and Arbitration and Others (JR2068/09) [2013] ZALCJHB 12; (2013) 34 ILJ 2327 (LC) (6 February 2013)
Reportable
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, Johannesburg
JUDGMENT
Case no. JR2068/09
In the matter between:
SOUTHGOLD EXPLORATION
........................................................................
Applicant
and
COMMISSION FOR CONCILIATIO,
MEDIATION AND ARBITRATION
......................................................
First
Respondent
THAMSANQA NKAMBULE NO
.....................................................
Second
Respondent
SAMUEL MANQUTHU
.......................................................................
Third
Respondent
Heard: 14 December 2011
Delivered: 06 February 2012
Summary: -Review application- arbitrator misdirected himself-
failed to apply his mind to the evidence before him- award set aside-
dismissal of the third respondent substantively and procedurally
fair.
JUDGMENT
____________________________________________________________________
MOTHIBI AJ
Introduction
[1] This is an application to review and set aside the arbitration
award made by the Second Respondent (“the Arbitrator”)
under case no. GAJB6292/09. In terms of the arbitration award, the
Arbitrator found the dismissal of the Third Respondent (“the
Respondent”) to have been substantively and procedurally unfair
and made an order reinstating the Respondent retrospectively
and
further ordering that he be paid an amount equivalent to four months
of his remuneration as at the time of his dismissal as
back pay. The
total amount comes to R115 271.68 (4 x R28 817.92).
Background facts
[2] The Respondent was employed by the Applicant on 3 November
2008 as a Production Shift Boss. His appointment was subject
to a
probationary period of 90 days. The 90 day period ran from the date
of his employment, being 3 November 2008.
[3] His employment carried a formal appointment in terms of the Mine
Health and Safety Act, 29 of 1996 (“the MHSA”),
particularly schedule 4 thereof.
[4] He was responsible to the Applicant’s Line Manager. He was,
amongst other things, responsible for production at the mine
in
respect of the section to which he was assigned, but more importantly
and germane to this matter, the health and safety of subordinates.
His responsibility on health and safety included ensuring that
persons working under his supervision and control conducted their
work in a safe manner. In addition he was to regularly inspect
working hours in his section to ensure that production done was
conducted in a safe manner and in accordance with the provisions of
the MHSA.
[5] On or about 2 January 2009, two of the Applicant’s
employees who were working underground and in the Respondent’s
section were injured when rocks came loose in an underground
unsupported area.
[6] Following an investigation, the Respondent was issued with a
notice to attend a disciplinary enquiry. He was charged with:
‘
Negligence
or failure to exercise proper care with regards to the manner of
discharge of your duties in that on 2/01/2009 you instructed
and
allowed your subordinates to work in an unsupported area and also to
make use of LHD bucket to lift them up which resulted
in 2 employees
being injured and the safety of other employees being at risk’.
[7] Pursuant to a disciplinary enquiry which took place on 19 –
22 January 2009, he was found guilty and dismissed. An appeal
hearing
was held on 24 February 2009 which upheld the finding of guilt
and sanction of dismissal.
[8] He referred a dispute to the CCMA.
Arbitration proceeding
[9] The arbitration proceedings took place on 1 June 2009 at which
the Applicant was represented by its Employee Relations Manager.
The
Respondent was represented by a legal practitioner. Both procedural
and substantive fairness was disputed by the Applicant
as set out in
the parties’ pre-arbitration minute. Bundles of documents were
exchanged with an agreement that both sets of
documents were what
they purported to be.
[10] The Applicant called two witnesses, one being Mr PJ Stok
(“Stok”) who was employed as the Applicant’s
Superintendent
at the time. Stok’s evidence revolved around the
investigation that he conducted after the incident that caused
injuries
to the two employees referred to above.
[11] The second witness was the Applicant’s Employee Relations
Manager who presented evidence to rebut the allegation that
the
Respondent’s dismissal was procedurally unfair.
[12] The Respondent testified on his own behalf and did not call any
additional witnesses.
Arbitration Award
[13] Pursuant to the above arbitration proceedings the Arbitrator
found that the dismissal of the Respondent by the Applicant was
procedural and substantively unfair.
[14] It is this award that is the subject matter of this judgement.
[15] The grounds of review articulated in the Applicant’s
papers are that the Arbitrator ignored, misconstrued or failed
to
apply his mind to the evidence which was placed before him during the
arbitration proceedings in finding the Respondent’s
dismissal
was substantively and procedurally unfair. It is further contended
that he ignored the evidence produced in respect of
the charges that
were levelled against the respondent at the arbitration proceedings
and, consequently, that his award is unjustifiable
in relation to the
reasons given.
[16] As appears hereunder I agree entirely with the Applicant.
[17] It is my conclusion, for the reasons set out in this judgment,
that the award stands to be reviewed and set aside because
and as
more fully explained below the Arbitrator ignored, misconstrued or
failed to apply his mind to the evidence placed before
him. I find
that he misdirected himself in the manner that he conducted the
arbitration proceedings particularly around the issue
of probation,
which was not an issue which he was called upon to decide. When the
issue came up he was not entitled to stop the
proceedings midway and
attempt to influence the parties to settle the matter, going so far
as to advice them that should the matter
not be settled then he was
likely to find against the Applicant. I make this finding having
regard to the fact that neither the
First Respondent nor the
Arbitrator made use of their right to file affidavits disputing what
are serious allegations against the
arbitrator as articulated in the
Applicant’s founding affidavit particularly paragraphs 11.3 to
11.7 of the Applicant’s
founding affidavit. Rather than filing
a comprehensive affidavit denying these allegations, the First and
Second Respondents simply
filed a notice advising the Court that it
would abide by the Court’s ruling. The Respondent on the other
hand, was not helpful.
He simply made a bold denial of the
allegations without dealing with them in any comprehensive manner.
[18] Indeed I am inclined to accept the Applicant’s version as
contained in the aforementioned paragraphs and of its founding
affidavit that the Second Respondent had formed a biased view against
the Applicant from the outset of the proceedings based on
his
unreasonable and unjustified views relating to the probation clause
found in the Respondent’s contract of employment.
[19] I pause here to mention that the offending probation clause, if
it is such, provides that the Respondent’s employment
was
subject to a 90 days probationary period commencing 3 November 2008.
The probationary period would accordingly have come to
an end on or
about 4 February 2009. The incident which led to his dismissal
occurred during his probationary period. This however
is not germane
to this matter. Health and Safety in the mining section is of
paramount importance given the inherent risk that
is the mining
occupation. The Respondent had the requisite qualifications and
experience to have known this – he knew it.
Any failure by him
to ensure that his subordinates work in a safe environment is serious
enough, on these facts to warrant dismissal.
This is irrespective of
the probation clause.
[20] On this basis alone, the award must be set aside. The Arbitrator
misconducted himself.
[21] The manner in which the Arbitrator dealt with the probationary
issue and as recorded in his arbitration award is a further
indication that he failed to grasp the issues before him by
misconstruing or failing to apply his mind to the evidence on
probation
when he finds in the award that, and here I refer to
paragraph 6.14 of the award:
‘
On
balance of probabilities there were omission with regard to the
Applicant’s probation, however this was not the matter
before
me but a secondary point raised to indicate whether dismissal was
fair or unfair.’
[22] If probation was not a matter before him as he finds, why then
does he mention it! The Applicant points out that the Arbitrator
fails to record any grounds or facts on which he comes to the
conclusion that there was an omission with regard to the dismissed
employee’s probation. What omission is he referring to? Nothing
further is said to shed light to the reader of the arbitration
award
what further grounds, if any, the Arbitrator took into account to
come to the finding that the Respondent’s dismissal
was
substantively unfair.
[23] A further reason why the award should be set aside relates to
the manner in which the arbitrator assessed the evidence before
him
when he came to his conclusion. It will be remembered that the
evidence before the Arbitrator was in the form of oral evidence
from
both the Applicant’s and Respondent’s witnesses as well
as documentary evidence.
[24] The issue before the Arbitrator, put simply, related to whether
the Respondent was negligent or failed to exercise proper
care with
regard to the discharge of his duties. Did he on 2 January 2009
(during his probation) instruct or allow his subordinates
to work in
an unsupported area? Did he also instruct and allow them to make use
of an LHD bucket to lift them up which instructions
resulted in two
of the Applicant’s employees being injured and the safety of
other employees being compromised?
[25] A careful reading of the arbitration record filed detailing what
occurred at the arbitration proceedings reveals the following
answers
to the above questions:
An accident happened on 2 January 2009 underground when two of the
Respondent’s subordinates were injured whilst working
underground. It is common cause from the record that I have read
that the area where they worked was unsupported. It was further
common cause that they were not, in terms of the
Mine Health and
Safety Act (MHSA
) and the Applicant’s internal safety
procedures supposed to have worked in the area where the accident
happened without
such area being supported. The Respondent did not
dispute that the area was not supported.
The Respondent attempted during the proceedings to suggest that he
was not in the vicinity of the area where the accident happened
alternatively that he did not issue the instruction further
alternatively that if he issued the instruction his subordinates
could and should have ignored him.
[26] I do not intend to burden this judgement with the litany of
contradictions in the Respondent’s testimony during the
arbitration proceedings suffice to find that it is clear from the
record that he was an unreliable, evasive and misleading witness.
His
testimony, compared to that of the Applicant’s witnesses could
not be accepted and should not have been accepted. I reject
it.
[27] To edify my finding it is clear from a statement which was
signed by the Respondent during an investigation undertaken by
the
Applicant’s Mr Stok, which preceded his disciplinary hearing
that he was in the vicinity of the area where the accident
happened.
He confirms that he was there saying in his statement that: “after
marking the marks on the face, Antonio came
back to take a twinie and
pull towards the face”. He continues in his statement to
describe what happened up until the accident
which injured his two
subordinates. It is clear he was there. It is clear that he
witnessed, even assuming that he did not give
the instruction,
employees working underground in an area which was unsupported. He
did not stop them. He allowed them to work.
He clearly failed to
exercise his duties and responsibilities as production shift boss and
in accordance with his formal appointment
in terms of the MHSA,
particularly schedule 4 thereof, by allowing his subordinates to work
in an unsupported area. This can not
be disputed. It is clear from
the record and from the Respondent’s own statement.
[28] During argument in Court, Counsel for the Respondent pivoted her
argument on the basis that Stok’s evidence ought to
be rejected
in toto
because he was not there when the accident happened. I
do not accept this. It is clear from the statement of the Respondent
which
was submitted during the arbitration and not disputed that the
Respondent was there. The Respondent himself says so. The Respondent
furthermore confirms that the statement submitted during the
arbitration proceedings correctly reflects his version. That should
have been the end of the matter. The statement incriminates him and
there is no suggestion by him during the arbitration proceedings
that
the statement was not made freely and voluntarily.
[29] Based on all aforegoing, I come to the finding that the
arbitration award is hereby reviewed and set aside because the
Arbitrator
misdirected himself. Furthermore, the arbitration award
stands to be set aside for the reason that the Arbitrator ignored
evidence
which was placed before him in the form of the Respondent’s
own statement. He further failed to apply his mind on the issues
before him and ignored the evidence placed before him. His finding
that the dismissal was substantively unfair is hereby set aside.
[30] I also set aside his finding that the Respondent’s
dismissal was procedurally unfair on a similar basis. The only
allegation
of procedural unfairness related to the Respondent’s
allegation that he was not given copies of the disciplinary hearing
minutes prior to the appeal hearing. It is however common cause that
he never asked for these minutes prior to his appeal hearing.
In any
event, I do not see why a failure to give him minutes of the hearing
at which he was present constitutes a procedural irregularity.
I
accordingly find that the Arbitrator’s award is one that a
reasonable Commissioner would not have made in the circumstances
and
is unjustifiable in relation to the reasons he provided.
[31] In the circumstances, an order in the following terms is made;
The arbitration award issued by the Second Respondent under the
auspices of the First Respondent under case number GAJB6292/09
and
dated 10 June 2009 is hereby reviewed and set aside.
The Arbitrator’s award is substituted with an order that the
dismissal of the Third Respondent was substantively and
procedurally fair.
There is no order as to costs.
________________
J Mothibi AJ
Acting Judge of the Labour Court
APPEARANCES
FOR THE APPLICANT: Mr Johan Olivier of Brink Cohen Le Roux
FOR THE THIRD RESPONDENT: Adv Este Wessels instructed by Du Randt Du
Toit Pelser Attorneys