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[2013] ZALCJHB 79
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Marula Platinum (Pty) Ltd v Ockert and Others (JR207/12) [2013] ZALCJHB 79 (23 May 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case no: JR207/12
In the matter between:
MARULA PLATINUM (PTY)
LIMITED
............................................................
Applicant
and
LOMBARD OCKERT
.........................................................................
First
Respondent
SOLIDARITY
.................................................................................
Second
Respondent
MELLO MOHLOMELELE
CHRISTOPHER
N.O.
.
...........................
Third Respondent
COMMISSION FOR
CONCILIATION MEDIATION
AND ARBITRATION
.......................................................................
Fourth
Respondent
Heard: 17 January 2013
Delivered: 23 May 2013
Summary: Review
application – company did not discharge its onus –
decision based on the facts
JUDGMENT
GAIBIE, AJ
Introduction
[1] This is an
application to review and set aside the arbitration award (“the
award”) issued by the third respondent
(“the
commissioner”) under case number MP8879-10 dated 18 December
2011.
[2] The issue in this
matter turns essentially on whether the applicant (“the
company”) had discharged its onus in establishing
that the
first respondent, Mr Ockert Lombard, was guilty of the following
charge:
‘
Gross
dishonesty in that you concealed an accident of Mr Mokome of Industry
No C0827964 – date of alleged offence –
23 September
2010’.
[3] The company seeks to
review the arbitration award on five grounds, at least three of which
attack specific findings made by
the arbitrator and are articulated
as process related grounds of review
1
.
In relation to the last two grounds of review, the company attacks
the award on more general grounds, that relating to the probabilities
of the matter and the consideration of irrelevant evidence in the
determination of the matter. As indicated in the preceding paragraph,
and despite the company’s articulation of the various grounds
of review, the central issue in this matter is whether the
arbitrator’s determination - that Lombard’s dismissal was
substantively unfair - was a decision that would have been
reached by
a reasonable decision maker in terms of the principle enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
2
Background facts
[4] Lombard was employed
by the company as a mine overseer on 1 December 2009. On 29 November
2010 he was dismissed on the basis
of the above charge.
[5] The allegations in
respect of this incident involve the following:
Mr Rexon Mantope Mokome
(“Mokome”), an employee and rock driller, alleged that
he had been injured whilst on duty.
According to him a rock fell on
and injured his left ankle.
Mokome requested a
co-employee, Mr Lehlabapuda Gabriel Moropa (“Moropa”),
to call his immediate supervisor, Mr Molaka
Lucas Molabe (“Molabe”)
so that he could report the incident.
Molabe was not called
as a witness in the arbitration proceedings, but it is not disputed
that Molabe issued a note to Mokome
which effectively released him
from his duties that day. Molabe’s statement which formed
part of the record before the
arbitration proceedings, records the
following:
‘
Mr Makome
told me that he could continue working and I also recorded that in my
notebook...
…
after a few
minutes... Mokome informed me that the pain is unbearable and I then
gave him a note to go to the clinic.’
The company, like any
other entity in the mining industry, had established procedures for
the reporting of injuries at the mine.
It was not disputed by
Mokome that it would have been Molabe’s duty, in the first
instance, to report the injury in terms
of the following process
that was outlined by Lombard in his evidence:
The immediate
supervisor must fill in a provisional accident report in
triplicate in the relevant book. The blue slip which
is the
original form must, once it is completed, be removed from the book
and must accompany the injured to the medical clinic
where it must
be handed to the clinic staff;
The pink slip must
also be removed from the book and submitted to the foreman or mine
overseer of the injured person, because
he is the direct
supervisor or shift supervisor; and
The final slip must be
retained in the book.
It is the
responsibility of the injured employee’s direct supervisor,
in this case Molabe, to complete the provisional
accident report.
The injury should also have been reported to the medical station
before the end of shift otherwise it would
not be seen as an
on-duty injury.
For some inexplicable
reason, Molabe did not comply with this process, and Mokome did not
proffer any explanation for such an
omission.
[6] Subsequent to
Molabe’s involvement in this matter and his departure from the
scene of the incident, the involvement, if
any, of Mokome’s
shift supervisor, Mr Amos Nkambule (“Nkambule”) and
Lombard becomes relevant. The evidence in
respect of this part of the
chronology is however riddled with contradictions.
At some stage after
Molabe’s departure, Nkambule and another mine overseer, Mr
Frikkie Oberholzer (referred to as “Bullet”
in the
arbitration proceedings) arrived at the scene to examine the mine’s
blasting cables, a reason unrelated to the
injury sustained by
Mokome.
Mokome on the
interaction with Nkambule
According to Mokome,
Nkambule had informed him to continue performing his duties despite
his injury. Mokome does not indicate
whether he informed Nkambule
about the precise nature, extent or indeed the cause of his injury.
Referring to Nkambule, Mokome
said in the arbitration proceedings:
‘.... he told me to continue drilling and I told him that I
am injured and I cannot
proceed’.
Mokome proffers a
different recollection of this event in his statement which formed
part of the bundle. In the statement he
indicates that the
instruction (to continue with his drilling duties) was not only
from Nkambule but was also from Bullet.
In this regard he says –
‘
... I
informed them that I sustained an injury, but
both
my shift boss and Bullet
insisted that I must continue drilling and further indicated I must
not leave before the job is done.’
According to Mokome’s
account of the chronology of events, Lombard was not present during
this interaction.
Moropa on the
interaction with Nkambule
Moropa, the only other
witness for the company, provided a different and contradictory
account of the interaction with Nkambule
and Lombard. Unlike Mokome
he suggested that there was only one interaction between Mokome and
his superiors, in which he placed
Nkambule, Bullet and Lombard all
together. He also suggested that the interaction with Nkambule, on
his own, occurred much
later. In the arbitration proceedings he
said –
‘
We came
across them and they were in or at the motor vehicle, they called us.
We went nearer to them, and they then spoke to this
gentleman Mr
Mokome. I was near
.’
Moropa also suggested,
unlike Mokome, that the instruction to continue his duties, despite
his injury, came from all three of
them. In addition he indicated
that Lombard threatened Mokome with dismissal, in the event that he
refused to comply with their
instruction. According to Moropa,
Lombard said –
‘
If you do
not go back to work I will fire you
.........’
In his statement,
Moropa’s account of this interaction is more sedate and he
makes no mention of any threat of dismissal.
He also does not
indicate that there was a vehicle, nor does he say exactly where
the three men were positioned at the time
of this interaction.
His evidence in respect
of where the three men were in relation to the vehicle was
unsatisfactory. First he insisted that all
three of them were
inside the car. After it was put to him that his version was not
possible given that it was a single cab,
he stated that some of
them were in the front and some in the back of the vehicle. Pressed
for specificity as to who was in
the front and the back of the
vehicle, he said that Nkambule was in the back and the other two
men were in the front. At this
stage, Moropa was at pains to
suggest that the discussion between Mokome and Nkambula was heard
by Lombard (who was in the
front of the car), because his version
was, until this stage, that all three men were together, and that
all three men issued
Mokome with the instruction to continue his
drilling duties failing which he would face dismissal, a threat
from Lombard.
For all of the above
reasons, Moropa’s evidence was unsatisfactory, contradictory
and simply unreliable.
[7] After this
interaction, Mokome recalls that the three men left the scene of the
incident. Thereafter he told Moropa to take
him to the waiting place,
and it was at this stage of the chronology that Mokome says he
interacted with Lombard only.
According to Mokome, he
told Lombard that he was injured and –
‘
...
he
indicated that if we do not go and finish our duty he is going to
charge us and dismiss us. From there I went down there with
Mr Moropa
and continued working under those conditions’.
This interaction,
according to Mokome, occurred outside the waiting room when Lombard
was sitting in a van. Lombard was with
other people but he could
not remember who they were.
Under re-examination,
Mokome’s account of this interaction appears in more dramatic
and exaggerated form. He said –
‘
Yes, I did
report to him and he chased me away and told me to go and complete my
job otherwise he will dismiss me’.
In his statement, which
is contradictory to his evidence in the arbitration proceedings,
Mokome does not indicate that Lombard
threatened him with
dismissal.
The instruction, if
any, to conceal the cause of the injury
[8] Moropa does not
indicate in his evidence during the arbitration proceedings, or in
his statement, that there was an instruction
from either Nkambule or
Lombard to conceal the injury generally or to conceal that
information from the mine clinic specifically.
[9] Mokome’s
evidence in respect of this issue in the arbitration proceedings, is
clear in relation to Nkambule but unsatisfactory,
contradictory and
incomplete in relation to Lombard.
In his statement,
Mokome records the following in relation to Nkambule:
‘
My shift
boss transported us to the surface by bakkie. On the way Mr Amos
influenced me not to report the incident to the clinic.
Mr Amos
further indicated that if the incident could be reported to the
clinic, their production would be badly affected. Mr Amos
stressed
the fact that I must claim that the incident happened at home, not at
the mine so in order to protect them and to save
production.’
Mokome does not
formulate this discussion into an instruction, and at best suggests
that he had been successfully influenced
not to report his injury.
Mokome does not explain how his non-reporting would have
‘protected’ them or ‘saved
production’. In
the arbitration proceedings, Mokome formulated the discussion in
more assertive fashion with a different
rationale. In this regard
he indicated that Nkambule told him that he must not report the
matter ‘because we are going
to lose our bonuses so I must
just tell them that I got injured at home.’ Mokome does not,
in his statement or in the
arbitration proceedings, suggest that
his non-agreement, if any, to Nkambule’s request or
instruction was coupled with
any threat of dismissal or indeed any
other disciplinary action.
Mokome does not, in his
statement, make any such assertion in relation to Lombard. His
evidence about Lombard, in the arbitration
proceedings, was
precipitated by the commissioner during his evidence in chief. His
evidence was as follows:
‘
MR
BOIKANYO
:
MR MOKOME did you at any stage tell the clinic that you were injured
at home?
MR MOKOME
: Yes, I told them as
I was afraid that I was going to be dismissed.
MR COMMISSIONER
: You mean the
mine clinic?
MR MOKOME
: Oh, they said if I
go to the mine clinic they will dismiss me.
MR COMMISSIONER
: Who said you
must tell the clinic that you were injured at home?
MR MOKOME
: MR LOMBARD and MR
NKAMBULE told me that I must not say that I got injured at work, I
must tell them that I got injured at home.
Mokome’s evidence
about such an instruction, if any, from Lombard sits uncomfortably
in the context of the analysis of
the evidence presented by the
company for three reasons:
Mokome’s account
of his interaction with Lombard was limited to the allegation that
Lombard had instructed him to continue
with his drilling duties,
and it was that instruction that was coupled with the threat of
dismissal.
To the extent that
Mokome suggested, in his answers to the commissioner’s
questions, that Lombard also gave him the
instruction to conceal
his injury from the mine clinic, he does not locate that evidence
chronologically nor does he provide
a rationale or motive for such
an instruction.
This evidence was, in
any event, not corroborated by Moropa.
The Arbitration Award
[10] Based only on a
holistic approach to the evidence presented, the company simply did
not discharge its evidentiary onus against
Lombard. The company’s
contention that Lombard was guilty of dishonesty because he allegedly
concealed the injury sits uncomfortably
in the context of the
following facts:
In terms of the
established procedure for reporting such incidents, the formal
process of notification to the company should
have commenced with
Molabe and not Mokome. No explanation was provided by the company
as to why Molabe did not do so. If he
had done so, the company
would have received prompt notification of the injury;
Mokome’s evidence
lacks specificity about a number of crucial events, including, but
not limited to the following:
The difference in his
testimony at arbitration, and that contained in his statement as
to whether such an instruction, if
any, was given to him by
Lombard;
The lack of details as
to precisely where, when and in what context such an instruction
was given;
The lack of details as
to how such an instruction would have affected or benefitted the
company, or for that matter Lombard.
Alternatively, Lombard’s
motive, if any, for such an instruction;
On what basis he
concluded that he would be dismissed if he did not comply with the
instruction;
Why Molabe did not
report the incident to the company.
[11] In the absence of
all of this relevant evidence, Mokome’s evidence that Lombard
instructed him not to report the injury
or the incident, is more than
improbable, and the arbitrator’s finding that he was reluctant
to accept Mokome’s version
in respect of this issue, is a
decision of a reasonable decision maker.
Order
[12] In the premises, I
make the following order:
The review application
is dismissed with costs.
_____________
Gaibie, AJ
Acting Judge of the
Labour Court of South Africa.
Appearances:
For the Applicant: Edward
Nathan Sonnenberg s
For the Respondent:
SOLIDARITY
1
As
articulated by Van Niekerk J in
Pam Golding Properties (Pty) Ltd
v Erasmus and Others
(2010) 31 ILJ 1460 (LC) at para 6. Reviews
on the basis of process related grounds has also received
ratification in several
other judgments of the Labour Court and the
Labour Appeal Court
2
2008
(2) SA 24
(CC) at para 110
.