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[2013] ZALCJHB 47
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National Union of Mineworkers and Another v Commission for Conciliation Mediation and Arbitration and Others (JR2016/2009) [2013] ZALCJHB 47 (20 March 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA
,JOHANNESBURG
JUDGMENT
Not reportable
Case number: JR2016/2009
In the matter between:
NATIONAL UNION OF MINEWORKERS
...............................................
First
Applicant
TEMBA MANANA
..............................................................................
Second
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
......................................................
First
Respondent
MARK HAWYES N.O
....................................................................
Second
Respondent
MIDDELBURG MINE SERVICES (PTY) LTD
...................................
Third
Respondent
Heard: 18 January 2013
Delivered: 20 March 2012
Summary:
JUDGMENT
PRINSLOO AJ
Introduction:
[1] The Applicants are seeking the
review and setting aside of an arbitration award wherein the
dismissal of the Second Applicant
was found to be fair and his case
was dismissed.
[2] The review application was to be
filed within six weeks from 26 May 2009, which means that it was to
be filed by 7 July 2009.
The review application was filed on 28 July
2009 and is therefore filed fifteen Court days late and the
Applicants sought condonation
for the late filing of the review
application. The application for condonation is opposed, which
opposition was persisted with
at the hearing of this matter.
[3] The Third Respondent submitted
that the Applicants did not set out proper grounds for condonation in
the founding affidavit
and that the explanation tendered for the
lateness, is not a plausible explanation as no explanation is
tendered for the delay
between the expiry of the six week period and
the date of actual filing.
[4] The explanation tendered by the
Applicants is that upon receipt of the arbitration award, which I
accept was on 26 May 2009,
the award was sent to the Witbank regional
office for the purpose of review and this was done in accordance with
the Union’s
rules and procedures. The region delayed the
process as the responsible legal officer was not at work and the
award was sent to
head office on 24 July 2009. The award was received
on the same date and a consultation was arranged with the Applicants’
attorney. Consultation took place on 27 July 2009 and the review
application was filed on 28 July 2009.
[5] It is evident from the application
for condonation and the averments made in this respect that the
arbitration award was received
on 26 May 2009, forwarded to the
regional office in Witbank and that the award was only forwarded to
the head office on 24 July
2009, 17 days after the six week period
lapsed and almost two months after the award was forwarded to the
regional office. There
is apart from stating that the responsible
legal officer was not in the office, absolutely no explanation
tendered as to when he
or she was not in the office, why no one else
attended to the matter in his or her absence and why the award was
only forwarded
to the head office on 24 July 2009. I would be
hesitant to accept that a well-established union, as the First
Applicant is, does
not have the capacity to deal with matters and is
not able to make alternative arrangements in the absence of a single
official.
[6] I am inclined to agree with the
Third Respondent that there is simply no detailed explanation
provided for the delay and it
was necessary for the Applicants to
provide a better explanation.
[7] However, the granting of
condonation is within the discretion of this Court and I am of the
view that 15 court days is not so
excessive that the Second
Respondent should be prejudiced to an extent that his application for
review is not considered at all.
Condonation is therefore granted for
the late filing of the review application.
Background facts
:
[8] The brief history of this matter
is as follows: the Third Respondent employed the Second Applicant, Mr
Manana, since February
2008 as a sectional engineer. Mr Manana’s
appointment was in terms of section 7(4) of the Mine Health and
Safety Act No 29
of 1996 (‘the MHSA’) read with
Regulation 2.13.3.1. In the contract of employment of Mr Manana it
was specifically
stated that he was responsible to assist the
Manager, as appointed in terms of the provisions of section 3 of the
MHSA, to carry
out his duties, it was his responsibility to ensure
compliance with the provisions of the MHSA and Regulations and to
report any
contraventions thereof, further to observe and enforce any
codes of practice, instructions, procedures, directive, permissions
and exemptions issued by the mine. Mr Manana held a senior position
at the mine.
[9] In October 2008, one charge of
misconduct was levelled against Mr Manana. The charge was “breach
of life preserving rules
(FRCP-8) (isolation) in that on 17 September
2008 you failed to lock out when inspecting D/Line 012 hoist drum
pedestal.”
A disciplinary enquiry was subsequently held and Mr
Manana was found guilty on the count of misconduct and dismissed on
10 October
2008. The Applicants referred an unfair dismissal dispute
to the First Respondent.
[10] The misconduct related to an
incident that occurred on 17 September 2008 when Mr Manana, Mr
Venter, an engineer and Mr Manana’s
supervisor, Mr de Villiers,
a maintenance engineer and others went to investigate a fault that
was reported on a dragline hoist
drum pedestal. Mr Venter described
the device as being utilised in open cast mining and weighing
approximately 3 500 tons, with
a 120 metre high boom that held
hoisting cables. The cables weigh approximately 100 tons. The fault
that was to be inspected was
a crack on the hoist pedestal that was
linked to a massive drum.
[11] The Third Respondent has a ‘Code
of Practice for de-Energising and Lockout of Machinery and Plant’
that applies
to all employees and contractors working at the
Middelburg Mine. The purpose of the code is to eliminate or minimise
the risk of
fatalities, injuries and incidents arising from
uncontrolled release of energy or hazardous materials, which could
result in an
accident. Compliance with the code and practice is
required and Mr Manana was expected to understand and adhere to the
mine’s
lockout procedures.
[12] The protocol and life preserving
rules, FRCP-8 (Fatal Risk Control Protocol), Mr Manana failed to
comply with on 17 September
2008, stipulate the process to be
followed and it applies to the isolation of all sources of energy,
all controlled sites and activities
and to all employees when
involved in controlled activities. Isolation intends to provide
positive protection and is to be achieved
by the use of locking
devices.
[13] Every employee working on the
plant was issued with a personal locking device and the rules
prescribe that the personal locks
are to be kept under the exclusive
control of the owning individual. The mine has a lockout and tag
system in terms whereof a positive
registration process is
implemented for people working on the isolated equipment. It is used
to know who the employees are who
are present on the isolated
equipment and to ensure that no person is present if and when the
equipment is to be energised. Each
lock represents a person and the
equipment could not be energised as long as a personal lock remained
on the lock out box. It is
not only for the protection of the
individuals, but also to ensure that the mine carries out its duty to
ensure the safety of every
employee.
[14] On 17 September 2008, Mr Manana
did not have a personalised lock and he was unable to lock out
whereupon Mr Venter told him
to leave the machine and only return
once he has his personal lock to be able to lock out. Mr Manana left
and did not return to
the machine with a personal lock.
[15] Subsequent to the incident, Mr
Venter adopted an informal approach of correcting the behaviour of Mr
Manana and he held two
counselling sessions with Mr Manana. However,
Mr Manana insisted that he has not done anything wrong, he denied any
violation of
the safety procedures and stated that no one was injured
and there was no potential that any one could be killed or injured.
After
Mr Manana displayed aggressive and unrepentant behaviour, the
Third Respondent decided to initiate a formal disciplinary process.
[16] It was the Third Respondent’s
case that Mr Manana was a senior manager, responsible to ensure
compliance with the MHSA,
and his flagrant disregard for the
provisions of the MHSA and the applicable safety codes and his
unwillingness to admit his mistake
and to correct his behaviour,
breached the trust relationship to such an extent that dismissal was
justified.
[17] Mr Manana’s version of
events is that on 17 September 2008 Mr Venter approached him and
asked him if he has locked out
and after he replied no, Mr Venter
told him that he was not allowed to go inside the manhole as he has
not placed his personal
lock on the machine, whereupon he left and
waited in the car, as he did not want to argue with Mr Venter that
there was no real
danger.
[18] It was also the Applicants’
case that the Third Respondent was inconsistent in applying
disciplinary measures as Mr de
Villiers also committed a breach of
the safety rules on the same day and he was not disciplined for such
breach. The Applicants
also raised procedural defects and challenged
the fairness of Mr Manana’s dismissal in that regard. The first
ground was
that clause 12.3.4. of the disciplinary code and procedure
stipulates that the presiding officer should generally be one level
higher than the complainant. In the disciplinary enquiry of Mr Manana
the chairperson and the complainant were on the same level.
The
second ground was that the general manager should have been precluded
from the appeal hearing as he had prior knowledge of
the case.
The arbitration award:
[19] The arbitrator and Second
Respondent in this application, considered the charge of misconduct
levelled against Mr Manana. He
found that Mr Manana was required to
have his own personal lock and tag and to attach it to the multi-lock
before working on the
machine. It was common cause that Mr Manana did
not do that and he breached the code of practice for de-energising
and lockout.
Given the position of Mr Manana, his training and legal
appointment, it is reasonable to expect him to have known the rule.
[20]
The arbitrator rejected the contention that the rule was
inconsistently applied and he stated that when De Villiers breached
the safety rule by stepping into an unsafe area, he immediately
acknowledged his mistake and stepped back when instructed to do
so.
Mr Manana on the other hand refused to acknowledge his error. The
Third Respondent initially decided to counsel Mr Manana,
the same
approach taken in respect of De Villiers. Only when Mr Manana refused
to acknowledge any wrongdoing and persisted with
that attitude, was
formal disciplinary action taken. The arbitrator found the adamant
refusal of Mr Manana to admit that he has
breached the internal codes
and procedures and legislative requirements to be
“
startling
and disturbing at the same time”. The issue was not whether the
machine was safe or not or whether there was a danger
for anyone, but
the potential consequences that could follow if a person did not
affix a personal lock and remained inside the
machine.
[21] The arbitrator considered the
uniqueness of the mining environment and the fact that even a
seemingly insignificant breach
of procedures could result in a major
incident, resulting in the loss of life or serious injury and
liability of the mine.
[22] The arbitrator found Mr Manana’s
dismissal substantively fair and held that the sanction of dismissal
was appropriate.
In justifying this finding the arbitrator stated
that Mr Manana demonstrated a lack of insight, he had no appreciation
for the
rules he was breaching and the possible consequences of those
breaches, as a leader he was required to set an example of how the
safety rules should be complied with, he was legally and
contractually bound to ensure compliance, his lack of insight and
leadership
casts doubt on the suitability of Mr Manana to occupy the
position he did and the mine indicated that he could no longer be
trusted
to shoulder the enormous responsibilities if occupying a
managerial and professional engineering role in a mining environment.
[23] The arbitrator found the
dismissal of Mr Manana procedurally fair and rejected the issues
raised in respect of procedural fairness.
These grounds were
dismissed mainly because of the evidence adduced and concessions the
Applicant made during his testimony.
The test on review:
[24]
The
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable has been rehashed innumerable times
since
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
:
1
[w]hether the conclusion reached by
the arbitrator was so unreasonable that no other arbitrator could
have come to the same conclusion.
The Constitutional Court very
clearly held that the arbitrator's conclusion must fall within a
range of decisions that a reasonable
decision maker could make.
[25]
The reasonableness test is still
aptly
described in the pre-
Sidumo
case of
Computicket
v Marcus NO and Others
2
as:
'[T]he
question that I have to decide is not whether [the arbitrator's]
conclusion was wrong but whether ... it was unjustifiable
and
unreasonable.'
[26]
In
S A Breweries Ltd v
Commission for Conciliation, Mediation and Arbitration and Others
3
the Court considered the test on
review and held that:
‘
As
Waglay DJP recently pointed out in National Commissioner of the SA
Police Service v Myers and Others:
“
Whatever
one's personal view may be, the test as set out in Sidumo
...
is
whether
or not the arbitrator's decision that dismissal is an appropriate
sanction is a decision that a reasonable decision maker
could reach.”
Having
considered the evidence at arbitration, the learned DJP held:
“
I
cannot accept that the arbitrator's decision fell outside of the band
of decisions to which reasonable people could come.”
In
Fidelity Cash Management Service
v CCMA and Others
Zondo JP applied the
Sidumo test
thus
:
“
It
will often happen that, in assessing the reasonableness or otherwise
of an
arbitration
award or other decision of a CCMA commissioner, the court feels that
it would have arrived at a different decision or
finding to that
reached by the commissioner. When that happens, the court will need
to remind itself that the task of determining
the fairness or
otherwise of such a dismissal is in terms of the Act primarily
given to the commissioner and that the system
would never work if the
court would interfere with every decision or arbitration award of the
CCMA simply because it, that is the
court, would have dealt with the
matter differently.”
And:
“
The
test enunciated by the Constitutional Court in
Sidumo
for
determining whether a decision or arbitration award of a CCMA
commissioner is reasonable is a stringent test that will ensure
that
such awards are not lightly interfered with. It will ensure that,
more than
before,
and in line with the objectives of the Act and particularly the
primary objective of the effective resolution of disputes,
awards of
the CCMA will be final and binding as long as it cannot be said that
such a decision or award is one that a reasonable
decision maker
could not have made in the circumstances of the case. It will not be
often that an
arbitration
award is found to be one which a reasonable decision maker could not
have made but I also do not think that it will
be rare that an
arbitration award of the CCMA is found to be one that a reasonable
decision maker could not, in all the circumstances,
have reached.”
It
is against this background that the applicant's grounds of review
must be assessed
.’
Grounds of review:
[27] The Applicants raised a number of
grounds of review in their founding and supplementary affidavits,
some of which were repetitive.
[28] In his argument before this
Court, Mr Makinta’s submissions could be summarised as follows:
the charge of misconduct
levelled against Mr Manana is limited to
isolation and if the charge and the applicable regulation is read
together and in context,
the alleged misconduct relate to the
de-energising of the machine. On the date of the misconduct, the
machine was indeed de-energised
and therefore Mr Manana has complied
with the rule. He further submitted that Mr Manana did not have a
personal lock at the time
and that it was impossible for him to
comply with the rule, no damage was caused whatsoever, Mr De Villiers
did the same and was
not dismissed, Mr Manana was not prepared to
accept a final written warning but he was prepared to accept a lesser
sanction. A
reasonable commissioner should have considered that the
Third Respondent was prepared to give a final written warning for the
misconduct
and no reasonable person could find that the only
reasonable sanction was dismissal.
[29] The submissions made in respect
of the limitations of the charge and the nature of the misconduct to
be related to de-energising
and the fact that the machine was indeed
de-energised and therefore Mr Manana has complied with the rule on
the date of the misconduct,
were not part of the issues raised at the
arbitration and were not included in the grounds for review in the
papers before this
Court. These are new submissions not raised before
and this Court cannot consider these as if it were part of the
Applicants’
case on review.
[30] The grounds for review as set out
in the affidavits filed in support of the Applicants’ review
application are repetitive
to an extent and I will deal with the
grounds in summary.
[31]
The first ground for review is that the arbitrator failed to identify
the content of the Third Respondent’s policy on
de-energising
and lockout. This ground cannot be sustained in view of the evidence
before the arbitrator and his analysis of the
evidence so presented.
The arbitrator summarised the evidence that was adduced, and
correctly so, made reference to the applicable
code of practice. Even
if it were correct that the content of the policy was not identified,
this ground for review does not
per
se
justify a review and
setting aside of the entire award.
[32]
The second ground for review, and one that had been repeated, is that
the arbitrator made findings not supported by the evidence
before
him. This ground relates
inter
alia
to the arbitrator’s
findings that the Applicant was guilty of misconduct by not attaching
a personal lock and that such failure
constituted a dismissible
offence, his findings on the counselling process were based on
assumptions, the finding that Mr Manana
did not admit that he was
wrong and his refusal to accept corrective advice and the finding
that the Third Respondent explained
why Mr Nel should chair the
hearing.
[33] During the arbitration
proceedings, Mr Manana conceded that breaching the rule was serious,
he never disputed the existence
of the rule or the procedure to be
followed to lock-out, he merely stated that his non-compliance posed
no danger to any person
and therefore it was not serious to an extent
that warranted his dismissal. The Third Respondent presented evidence
to explain
what corrective steps were taken and what the attitude of
Mr Manana was towards accepting corrective advice. I cannot find that
the arbitrator made findings not supported by evidence and this
ground for review cannot be sustained.
[34] A further ground for review is
that the arbitrator’s findings that the rule was not
inconsistently applied, demonstrates
misconduct and a
misunderstanding of the Applicants’ case on inconsistency. The
Third Respondent provided an explanation
of the incidents that
occurred on 17 September 2008 and the reasons why De Villiers was not
dismissed. A full exposition of why
the case of De Villiers and the
Second Applicant could not be compared and the reasons why it was
treated differently had been
placed before the arbitrator for
consideration. Based upon the evidence adduced and the basis the
Applicants attempted to lay for
inconsistency, the arbitrator was not
persuaded that the rule was inconsistently applied. This finding
cannot be faulted.
[35] The Applicants also take issue
with the fact the arbitrator failed to appreciate the full extent of
the Applicants’ case
and that he failed to assist Mr Manana to
present his case in full. The arbitrator also failed to decide the
issue of racial discrimination,
so the Applicants alleged. Firstly,
Mr Manana was represented by a well-established and experienced trade
union, the National Union
of Mineworkers and he was not in the same
position as an unrepresented, unsophisticated layperson. The
arbitrator’s duty
to assist an unrepresented layperson is not a
duty he has to fulfil when a party is represented by a well-seasoned
trade union.
The allegation that the dismissal was racially motivated
was never put to any of the witnesses, nor did the Applicants raise
it
during the proceedings. It was raised for the first time in
closing argument and the arbitrator quite correctly did not deal with
the allegation as part of the Applicants’ case, as it was
introduced at the eleventh hour in closing argument. Had it been
raised during the arbitration, it would have no doubt raised
jurisdictional issues. This ground for review is without merit and
cannot be sustained.
[36]
The Applicants raised grounds for review relating to the finding that
the conduct of Mr Manana impacted on the trust relationship
and the
appropriateness of the sanction of dismissal. The issues raised by
the Applicants are
inter
alia
that the arbitrator
considered the irrelevant evidence about the attitude of Mr Manana
after the incident, the arbitrator found
that the conduct of Mr
Manana impacted on the employment relationship, but did not indicate
whether the impact was positive or
negative and the arbitrator failed
to determine an appropriate sanction. The arbitrator specifically
considered the uniqueness
of the mining environment and the fact that
a small breach of codes and procedures could result in a major
incident, resulting
in the loss of life or serious injury. He then
considered the appropriateness of the sanction. The arbitrator found
that Mr Manana
had an alarming lack of appreciation for the rules he
was breaching and the possible consequences of breaching the rules.
Mr Manana
was expected to set an example and he was legally and
contractually bound to ensure compliance with safety regulations and
procedures,
but his lack of understanding, leadership and insight
meant that he could no longer be trusted to shoulder the enormous
responsibilities
of the position he held.
[37] It is evident to me that Mr
Manana is not a candidate for corrective discipline as acknowledgment
of wrongdoing is the necessary
first step in correcting behaviour.
The issues raised by the Applicants relating to the arbitrators
findings on the sanction and
the impact of the misconduct on the
trust relationship, are unsubstantiated and without merit. The
arbitrator’s findings
cannot be faulted and most certainly do
not call for interference from this Court.
[38]
In
S
A Breweries Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
4
the Court considered the role of an
arbitrator and held that:
‘
In
my view, the commissioner's role can best be summarized thus: The
employer decides to dismiss. The commissioner conducts an arbitration
de novo. In the light of the totality of circumstances, established
by the evidence at arbitration, the commissioner must then
decide
whether the decision to dismiss was fair. In doing so, it is the
commissioner's own sense of fairness that must prevail.
There can be
no deference to the employer’.
It
should be clear from my understanding of the commissioner's role that
I do not agree that the commissioner's role with regard
to the
employer's decision to dismiss is akin to the role of this court
sitting in review of the arbitrator's decision. The commissioner
must
decide whether the decision to dismiss was fair; this court may only
decide whether the arbitrator's decision was so unreasonable
that no
other arbitrator could have reached the same decision. Even if the
court's own sense of fairness may dictate a different
outcome, it
cannot interfere with the decision of the arbitrator. The converse
applies to the arbitrator when deciding whether
the employer's
decision to dismiss was fair.’
Conclusion
[39] In reviewing the arbitration
award, the grounds for review as raised by the Applicants must be
assessed and this Court can
only decide whether the arbitrator’s
decision was so unreasonable that no other arbitrator could have
reached the same decision.
The test to be applied is a strict one.
[40] Having considered the evidence
adduced at the arbitration proceedings and the probabilities as they
presented themselves to
the arbitrator, the findings made by the
arbitrator and the grounds for review raised by the Applicants, I
cannot accept that the
arbitrator's decision fell outside of the band
of decisions to which a reasonable decision maker could come.
The
conclusion that the arbitrator reached is one that a reasonable
decision maker could have come to and it is not open to review.
[41] The Third Respondent argued that
costs should follow the result. I can see no reason to disagree.
Order
[42] 1. Condonation for the late
filing of the review application is granted.
2. . The application for review is
dismissed with costs.
_______________________
Prinsloo AJ
Acting Judge of the Labour Court
APPEARANCES:
For the Applicants: M. E. S. Makinta
Attorneys
For the Third
Respondents: Webber Wentzel Attorneys
1
2007
28 ILJ 2405 (CC).
2
1999
20
ILJ
342 (LC) at para.346D.
3
(
2012) 33 ILJ 2945 (LC) paras. 17-20..
4
(
2012)
33 ILJ 2945 (LC).