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[2014] ZALCJHB 22
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NUM obo Modlane v Commission for Conciliation, Mediation and Arbitration and Others (JR1812/12) [2014] ZALCJHB 22 (9 January 2014)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/Not reportable
Case no.:JR1812/12
In the matter between:
NUM obo MODLANE, VINCENT
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER LAZARUS MATLALA N.O
Second Respondent
SHAFT SINKERS (PTY) LTD
Third Respondent
Heard:
9 January 2014
JUDGMENT
WILKEN,
AJ
Introduction
[1]
The Applicant seeks to review and set aside the arbitration award
made by the Second
Respondent (“the Commissioner”) dated
31 June 2012 in Case No.MWRB1275-12 in which the Commissioner held
that the dismissal
of Vincent Modlane (“the Employee”)
was both procedurally and substantively fair. The Employee clarified
the relief
he sought in the Heads of Argument filed on his behalf.
The Employee seeks his reinstatement. The essence of the Employee’s
challenger is the sanction imposed by the Commissioner was
unreasonable.
Condonation
[2]
The Third Respondent (“the Company”) opposes the review.
The Company sought
condonation for the late service and filing of its
answering affidavit. Whilst the Applicant did not file any papers
opposing the
condonation, it was advanced from the Bar at the hearing
of this matter that it sought to oppose the condonation sought by the
Company.
[3]
The opposition by the Applicant to the condonation application is
peculiar having
regard to the apparent acquiescence by it to the
Company filing its answering affidavit late. An apparent agreement to
the Company
filing its answering affidavit late is recorded in
correspondence between the parties and is contained in the founding
affidavit
in the application seeking condonation.
[4]
Dealing with the condonation of the late filing of the answering
affidavit, the well-known
principles in dealing with an application
such as the present applies
[1]
,
viz.:
4.1
the degree of the
delay;
4.2
the explanation for the
delay;
4.3
the prospects of
success; and
4.4
the importance of the
case.
[5]
In exercising its discretion to grant condonation, the Court must
have regard to all
the facts and circumstances advanced in addressing
the basis upon which condonation is sought.
[6]
In the present matter, the answering affidavit is filed approximately
3 ½ months
late in circumstances where the Company’s
official charged with the responsibility of whether the review should
be opposed
or not, was medically incapacitated, and the Applicant
had, on the papers before the Court, not objected to the late filing
of
the answering affidavit. In the circumstances whilst the delay is
not insignificant, the explanation for the delay is plausible
and
considering the Applicant’s acquiescence, had caused the
Applicant no prejudice.
[7]
Given that the only challenge to the Commissioner’s decision
was that the sanction
imposed was too harsh, and having regard to the
test to be applied in matters of this nature, i.e. that the
Commissioner’s
decision would only be upset by a review Court
if his decision was one no reasonable Commissioner could come to, the
Company had
prima facie
prospects of success. For these
reasons I am of the view that the application for condonation should
be granted.
Background
[8]
The Employee was employed by the Company in terms of a limited
duration contract as
a construction assistant with effect 3 June
2010. The Employee was promoted to the station of crane driver on or
about the commencement
of 2012 and received 3 months’ training
in this regard.
[9]
On 14 March 2012, the Employee was required to operate his crane
underground. It is
common cause that this was the first instance the
Employee was required to operate a crane underground. Early on in the
shift the
Employee travelled up an incline and when negotiating a
turn to take up position at a ramp, he engaged the crane in neutral
resulting
in the crane running back and colliding with a conveyor
belt. It is common cause that the damage to both the crane and the
conveyor
belt was negligible, and that nobody was injured in the
incident.
[10]
The incident was witnessed by Quinton Chuter (“Chuter”),
the The Respondent’s
contract engineer and Gerhardus Meyer
(“Meyer”), the shift foreman. Both Chuter and Meyer
proceeded to the scene of
the incident and observed that the Employee
was not wearing his seat belt, did not have his licence to operate
the crane with him.
Whilst evidence was led to the effect that the
Employee had not completed an inspection report at the commencement
of his shift.
The Employee was charged at the disciplinary enquiry
and was brought under the sub-category of
inappropriate/irresponsible/unacceptable
behaviour in that he
performed a gross unsafe act or caused a gross, unsafe condition. For
the purpose of the review nothing therefore
turns on this issue as
this was not advanced as a reason for imposing a dismissal.
[11]
The Company’s disciplinary code provides guidelines to
sanctions to be imposed in respect
of proven misconduct. It
differentiates between the performing of a gross unsafe act, causing
a gross unsafe condition or performing
an unsafe act or causing an
unsafe condition. For the former misconduct attracted the sanction of
dismissal in the first instance
which the latter does not. In other
words, the conduct attracts dismissal if it is so found to be gross,
but if not,dismissal is
not the recommenced sanction at the first
instance.
[12]
The disciplinary code similarly differentiates between gross
negligence, the first in the guideline
sanction act of gross
negligence attracting the sanction of dismissal but the first
infraction in respect of negligence not.
[13]
Finally, the guideline sanction document describes a gross unsafe act
as ‘an act with the
potential to result in/or has led to actual
loss of life or serious loss of/damage to property or loss of
production. The same
principle applies to gross negligence’
Arbitration proceedings
[14]
It was common cause that the Employee had engaged the crane in
neutral whilst negotiating the
turn to enter the area at the ramp,
and that the incident occurred on the first occasion the Employee
drove the crane underground.
[15]
Chuter was clear and could not be moved under cross-examination that
the Employee did not show
him a copy of his crane operator’s
licence. Chuter testified that when he reached the Employee he was
still seated in the
crane and not wearing his seat belt. He did
however, concede that it took him at least two minutes to get to the
scene of the incident
after it had happened. He concluded that the
Employee had not worn a safety belt by virtue of him observing the
safety belt behind
the Employee’s seat. Meyer gave similar
evidence, but had been on the scene earlier and he testified
that the Employee
would have had to exit the crane to position the
seatbelt behind the seat.
[16]
Whilst the Employee had pleaded guilty at the disciplinary hearing to
the complaint and the sub-elements
thereto, he challenged the
complaints relating to him not having worn his safety belt and not
having carried his operating licence.
The Commissioner’s
finding of the Employee’s guilt in this regard was not
challenged on review. On the evidence led
at the arbitration
proceedings I am satisfied that the Employee had not carried his
crane operator’s license nor had worn
his safety belt at the
time of the incident.
[17]
The chairman of the disciplinary hearing, Johannes Coetzee
Engelbrecht (“Engelbrecht”),
approached the issue of
sanction on the basis that the Employee was guilty of an act of gross
misconduct. Whilst Engelbrecht conceded
that the first offence for
gross misconduct (causing a gross unsafe condition / performing a
gross unsafe act) does not necessarily
result in dismissal on the
first instance he believed dismissal was justified in the first
instance given the circumstances of
the case. He contended that
progressive discipline would be inappropriate given the seriousness
of the Employee’s conduct
had in permitting the crane from
rolling back given his training. He contended that had any person
been in the immediate vicinity
of this incident, such person was
likely to have sustained serious injuries. It is apparent from
Engelbrecht’ s testimony
that the determining factor in
imposing a dismissal was the action of the Employee in engaging the
crane in neutral, in circumstances
where he had received extensive
training in operating the crane and given the conditions which
prevailed underground. It is apparent
from Engelbrecht’ s
evidence that little score was placed in him coming to the decision
of dismissal in the Employee not
having his licence on him, not
wearing his safety belt.
[18]
Engelbrecht further continued that safety was not negotiable and he
did not believe any further
training or counselling would assist the
Employee, some had already received extensive training Engelbrecht
testified that he did
not want to take the risk of sending someone
underground who could cause a similar unsafe condition as that might
result in loss
of life or serious injury. Engelbrecht gave extensive
evidence on both the employer and Employee’s obligations under
the
Mine Health and Safety Act 29 of 1996 (“MHSA”), and
the zero tolerance approach adopted by both the Company and its
principal, Lonmin, to any failure to comply with safety measures all
of which was not challenged by the Employee.
[19]
The Company’s third witness was Gerhardus Meyer, the general
foreman who testified that
he witnessed the entire incident as he was
at an elevated level when the incident occurred.
[20]
It is apparent from Meyer’s description of the incident that
what occurred was that the
Employee made a negotiation error when he
approached the landing which would have required him to reverse and
when attempting to
the reverse accidentally engaged the gear in
neutral causing the crane to roll back. Whether that action
constituted negligence
or gross negligence is open for debate but the
Employee pleaded guilty to gross negligence. However, since this was
never challenged,
I must accept that it is evident that the conduct
by Employee constituted an act of gross misconduct.
Arbitration award
[21]
The Commissioner concluded that the Employee’s conduct of not
applying the brakes of the
crane when he attempted to correct his
error in approaching the ramp, when he might have done so constituted
an act of gross misconduct
and that such act contravened an important
health and safety standard in the operating of the crane. The
Commissioner further concluded
that on the evidence the Employee had
received intensive training on how to operate the crane, that the
Applicant was aware of
the standard he was required to operate the
crane at, as well as the rule that he ought to operate the crane in a
safe manner.
The Commissioner further viewed the particular
circumstances under which the act of gross misconduct occurred, viz.,
that it related
to underground mining activities, and the emphasis
placed on safe mining operations as factors justifying the imposition
of a sanction
of dismissal.
Grounds
of review
[22]
In the Employee’s founding affidavit and supplementary
affidavit, it contended that the
Commissioner’s decision stood
to be reviewed as the Commissioner’s decision concerning
sanction was an unreasonable
decision, and/or amounted to a gross
irregularity as he ignored material evidence or failed to apply his
mind in relation to the
sanction imposed given that:
22.1
it was the first time
the Employee had operated the crane underground;
22.2
there were no injuries;
22.3
relatively minor damage
was suffered to plant and machine;
22.4
the sanction imposed
was not in accordance with the Company’s sanction guideline;and
22.5
there was no evidence
led in relation to the issue of destruction of trust.
[23]
At the hearing of this matter the Employee did not persist with the
argument that the sanction
imposed was not in accordance with the
Company’s guideline sanction. Counsel made much of the fact
that no evidence was lead
that the trust relationship had been
destroyed and most significantly, that the Employee was permitted to
continue operating the
crane after the incident on the day in
question.
[24]
Whilst it was common cause that:
24.1
the Employee had
pleaded guilty to the complaint of gross negligence/alternatively
committing a gross unsafe act, and
24.2
the guideline sanction
in the Company’s disciplinary code permitted dismissal for a
first offence;
24.3
it was the first
occasion the Employee had operated the crane underground;
24.4
no injuries ensued as a
result of the incident; and
24.5
the damages to plant
and machinery was minor,
[25]
There was a dispute whether the Employee was permitted to operate the
crane after the incident
on the first day of the incident.
[26]
The Employee did not challenge the evidence of witness Meyer that he
was immediately removed
from the underground operations after the
incident, and similarly the Company did not challenge the Employee’s
evidence in
chief that he was permitted to operate the crane after
the incident on the day in question.
[27]
It is trite that where there are two irreconcilable versions the
Court is required to decide
which version to accept. In doing so, the
Court has to embark upon an enquiry into the credibility of various
facts and witnesses,
their reliability and the probabilities. Given
the approach adopted by the Company in relation to the seriousness of
the incident,
and the extensive evidence led by witness Engelbrecht
in this regard, which was by and large unchallenged, viz. that the
Company
had adopted a zero tolerance approach to safety issues, the
probabilities favours the Company’s case that the Employee was
not permitted to operate the crane after the incident.
[28]
The test to be applied whether the Commissioner’s decision
ought to be set aside and reviewed
is well known
[2]
:
‘
Is
the decision reached by the Commissioner one that a reasonable
decision-maker could not reach
?’
and
has recently been clarified by the Supreme Court of Appeal
[3]
as well as the Labour Appeal Court
[4]
.
[29]
In the Herholdt case, paragraph 25 the Court held that:
‘
In summary the position regarding the
review of CCMA awards is this:A review of a CCMA award is permissible
if the defect in the
proceedings falls within one of the grounds of
Section 145(2)(a) of the LRA … the arbitrator must have
misconceived the
nature of enquiry or arrived at an unreasonable
result… Material errors of fact, as well as a weight and
relevant to be
attached to particular facts, are not in and of
themselves sufficient for an award to be set aside, but are only of
any consequence
if their effect is to render the outcome
unreasonable’.
[30] In the Goldfields case, paragraph 14,
with similar sentiments being expressed at paragraph 18, the Labour
Appeal
Court held that:
‘…
This implies that an application
for review sought on the grounds of misconduct, gross irregularity in
the conduct of the arbitration
proceedings, and/or excess powers will
not lead automatically to a setting aside of the award if any of the
above grounds are going
to be present. In other words, in a case such
as the present,where a gross irregularity in the proceedings is
alleged, the enquiry
is not confined to whether the arbitrator
misconceived the nature of the proceedings but extends to whether the
result was unreasonable
or put another way, whether the decision that
the arbitrator arrived at is one that falls in the band of decisions
to which a reasonable
decision maker could come on the available
material’.
[31]
What the Employee seeks to do in the current review is to upset the
Commissioner’s decision
on sanction only. To be successful the
Employee must demonstrate that the decision reached by the
Commissioner is one that does
not fall within the band of
reasonableness. Whilst the decision by the Commissioner may not have
been one this Court would have
taken, it cannot be said that the
decision taken is so unreasonable that it is one no other reasonable
Commissioner could have
made, given the extensive evidence led by the
Company on the premium placed on safe mining operations and the
approach adopted
by it as well as the client for whom it was
conducting mining operations. In the circumstances the Employee has
not demonstrated
that the Commissioner committed a reviewable act.
[32]
The Company argued that costs followed the event. No special
circumstances to be taken into consideration
was raised by the
Company other than the Company had been put to the expense of
defending the review proceedings. The test to apply
in the Labour
Court when considering the issue of costs is to have regard to the
considerations of law and fairness. The Court
must take into
consideration factors such as the financial position of the parties,
the
bona fide
s of the parties in bringing and defending the
case, whether there is a continued relationship between the parties,
and the effect
a cost order would have in discouraging parties to
have their disputes heard in Court. Given the continuing relationship
between
the union and the Company, and the fact that the Employee did
not pursue his case on a
mala fides
basis, having conceded he
was guilty of the infraction but contesting only the fairness of the
sanction imposed, I am of the view
that there are no special grounds
to award costs to either party.
[33] In the circumstances, I make the
following order:
1
the application for
review is dismissed;
2.
the Third Respondent’s
late filing of its answering statement is condoned;
3.
there is no order as to
costs.
___________________________
Wilken, AJ.
Acting Judge of the Labour of South Africa
23 January 2014
APPEARANCES:
FOR THE APPLICANT:
Mr Terrance
Baloyi of Mothobi Attorneys
FOR THERESPONDENT:
Ms Seherisa Rajah of Webber Wentzel Attorneys
[1]
Melane v Santam Insurance Co. Ltd
1962(4) SA 531 AD and
National Union of
Mineworkers and Council for Mineral Technology
[1999] 3BLLR 209 (LAC).
[2]
Sidumo and Another v Rustenburg Platinum Mines
Ltd and Others
[2007] 12 BLLR 1097
(CC).
[3]
Herholdt v Nedbank Ltd
2013 (34) ILJ 2795 (SCA).
[4]
Goldfields Mining SA (Pty) Ltd v CCMA and
Others
(JA2/2012)
[2013] ZALAC 28
(04/11/2013).