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[2014] ZALCJHB 31
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Ezulwini Mining v Commission For Conciliation Mediation and Arbitration and Others (JR452/12) [2014] ZALCJHB 31 (18 February 2014)
REPUBLIC OF SOUTH
AFRICA
LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
JUDGMENT
Not reportable
Case No JR452/12
In
the matter between
EZULWINI
MINING
…...........................................................................................
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…........................................................
First
Respondent
COMMISSIONER
FAIZEL MOOI N.O
…............................................
Second
Respondent
NATIONAL
UNION OF MINE WORKERS obo WABILE, S.A
.................
Third
Respondent
Heard:
15 January 2014
Delivered:
18 February 2014
Summary:
Review of arbitration award in terms of section 145(2) of the LRA –
Commissioner misconceiving the nature of the
complaint which affected
the outcome of the award thereby, committing a gross irregularity in
the proceedings in terms of section
145(2)(a)(ii) of the LRA –
award set aside
JUDGMENT
CHAVOOS AJ
Introduction
[1] This is an
application for review in terms of
section 145(2)
of the
Labour
Relations Act, 66 of 1995
as amended (the “LRA”) to
review and set aside the award of the Second Respondent (the
“Commissioner”)
under the auspices of the Commission for
Conciliation, Mediation and Arbitration (the “CCMA”). In
terms of his award,
the Commissioner found that the dismissal of the
Third Respondent was substantively unfair and ordered his
reinstatement with no
loss of salary. The reinstatement was to occur
on 8 February 2012 or any other date negotiated by the parties.
Background
[2] The Third Respondent
was employed by the Applicant as a Safety Officer responsible for the
health and safety of underground
and surface operations from 16
January 2009 to 3 October 2011.
[3] He was, pursuant to a
disciplinary hearing, found guilty of a failure to immediately report
the contravention of a non-negotiable
standard determined by the CEO
in that on 30 August 2011 he, during a routine inspection at 550
Level 4 South, identified a tip
area not barricaded and a
sub-standard grizzly (a grizzly is an instrument that is put on top
of an opening around the tip area
to prevent someone falling into the
opening) but failed to immediately report it to the safety manager
and CEO as per the CEO’s
instruction.
[4] A non-negotiable was
an item identified to have caused majority of serious and/or fatal
accidents in the mine and surrounding
mining communities.
[5] It was common cause
at the arbitration proceedings that the CEO had issued the
instruction that five non-negotiables had to
be reported to him. I
refer to this term interchangeably as safety hazards.
[6] The instruction to
report a non-negotiable was given by the CEO after a fatal accident
on the mine, following a meeting between
the CEO and employees at
which the employee (“Wabile”) was present.
[7] There is a factual
dispute as to whether the hazard which fell under one of the
non-negotiable safety issues that needed to
be reported was to be
reported immediately upon it being detected. This issue appeared to
be the main focus of the Commissioner’s
enquiry on which his
findings are based.
[8] The sub-standard
condition / hazard was identified by the employee on 30 August 2011.
[9] It was not disputed
at the arbitration that the reason for the need to bring the safety
hazard to the attention of the CEO was
because in previous instances,
whilst the hazard was recorded, no action was taken to correct the
decision.
[10] According to the
Mine Manager, he identified a missing grizzly segment during an
investigation. This has not been previously
reported.
[11] According to the
employee, he identified the hazard on 30 August 2011 in what is
called a stop-and-fix book and stopped work
in the area until he was
satisfied for work in the area to continue. The shift boss, Mr
Vakutetwa, signed his field book whilst
underground on 30 August
2011.
[12] The employee cites
this as the reason for not reporting the issue to the CEO ie that the
issue had been rectified.
[13] The incident was
also documented in a document entitled “Self declaration of a
development end”.
[14] The shift boss, mine
overseer and production manager all signed the document on 30 August
2011.
[15] It was put to the
employee during his cross examination that the shift boss, mine
overseer, production manager, mine leader
and team leader, in fact
all the individuals who are alleged to have signed the self
declaration of a development end report document
which the employer
relies on to prove that the hazard was identified and fixed on 30
August 2011, were dismissed for non-negotiables.
The employer was not
in a position to admit or dispute this contention.
[16] A contradictory
document which formed part of the bundle of documents used at
arbitration was put to the employee where it
was alleged that the
shift boss recorded in a different document that the hazards
identified by the employee on 30 August 2011
would only be fixed on
15 September 2011, which supported the employer’s version that
when an inspection was conducted on
13 September 2011, the hazards
identified by the employee on 30 August 2011 were not rectified.
[17] According to the
employee, the reason why the shift boss had recorded such information
was because the shift boss informed
him “that he wanted to
bring some other boss to make additional support”.
[18] When the shift boss
Mr Vakutetwa testified as to why he recorded that the opening around
the tip was still supposed to be fixed
and that the date recorded as
to when it would be fixed was 15 September 2011, (an indication that
the tip had not been fixed on
30 August 2011), his response was as
follows ‘the tip is being fixed every day because that this is
too small. There is labour.
They are basically ready every day.
That date I was writing there that this report because he told me on
the 15
th
it would be better then’
.
Vakutetwa
admitted that he was dismissed for one of the five non-negotiables.
The
arbitration award and analysis
[19] It is apparent from
the Commissioner’s arbitration award as well as his findings
that his main focus was whether the
hazard was to be reported to the
CEO and Mine Safety Manager immediately even if it had been attended
to. He went on to find that
no time limit was set to report the
incident if it was rectified on the same day and accordingly, the
employee could not be found
guilty if he rectified the issue the same
day but did not make the report the same day. This was a mitigating
factor for the Commissioner
in finding that the employee was not
guilty.
[20] The difficulty with
the Commissioner’s reasoning is that there was no evidence led
about a discussion with the CEO that
in the event of the issue being
rectified the same day, this was not to be reported to the CEO and
Mine Manager. On the contrary,
Mr Mokone the manager replied that
this was not clarified and I take this to mean that it was never
discussed. The instruction
was simply to immediately report any one
of the five non-negotiable safety issues to the CEO which was not
done. The instruction
given by the CEO is understandable. He has
onerous obligations in terms of legislation to ensure Health and
Safety and there appears
to have been previous reported incidents
that were never rectified. By having a non-negotiable reported to
him, he could personally
ensure that the issue had been rectified. It
is common cause that the issue had not been reported to him
immediately as per his
instruction. It was also not in dispute
that the issue was a life threatening one. It accordingly cannot be
said that the
employee was not guilty of the charge.
[21] The issue was not as
the Commissioner put it whether the Applicant rectified the tip area
and grizzly on 30 August 2011 when
he noticed a problem. On the
contrary, it was whether the hazard which had been identified was
reported to the CEO and Mokone the
Mine Safety Manager immediately.
[22] It is common cause
that the issue was not reported to the CEO the same day when the
hazard was discovered. According to Mokone
the issue was only brought
to his attention on 13 September 2011.
[23] The Commissioner
found that the balance of probabilities favoured the hazard being
rectified on 30 August 2011 due to the following:
23.1
the stop and fix document issued by the
employee to Vakutetwa shows that work had to be stopped for the
hazard to be fixed;
23.2
the self-declaration of a development
document signed by Vakutetwa;
23.3
the mine overseer, production manager,
miner and team leader confirming that the issue had been rectified on
30 August 2011;
23.4
the fact that the employee was not charged
with falsifying documents and Vakutetwa’s testimony which
corroborated the employee’s
testimony that he counter-signed
such documents on 30 August 2011.
[24] This was despite the
fact that Vakutetwa’s report contradicted the employee’s
version in that according to the
document completed by Vakutetwa, the
hazards were still to be fixed and were only completed on 15
September 2011 which was two
days after the hazard come to the
attention of the mine safety manager. The reasons given by Vukutetwa
and the employee for this
recordal in the report were contradictory.
[25] He instead found
that the area was again in a state of disrepair on 13 September 2011
but that this could have been due to
the fact the scrapper constantly
damaged the tipping area. Had this been the case, it begs the
question as to why no evidence was
lead to demonstrate that as a
result of the tipping area being constantly damaged on a daily basis,
this had been identified on
a daily basis, and recorded by the safety
officer on a daily basis. This was put to Vakutetwa in his cross
examination which he
could not explain.
[26] The Commissioner
also makes a credibility finding against Vakutetwa stating that he
was not a good witness as he could not
provide any explanation why he
indicated that the problem would be rectified on 15 September 2011 as
opposed to 30 August 2011.
On the other hand he finds that
Vakutetwa’s testimony corroborates that of the employee’s.
[27] The Commissioner
also fails to apply his mind to the fact that all the witness who
testified on behalf of the employee were
dismissed for non-compliance
of a non-negotiable safety standard.
[28] It is of concern to
me that the crucial piece of evidence namely annexure B1 which
identifies the contradiction in the employee’s
case namely that
the hazard was fixed on 15 September 2011, although submitted as part
of the bundle of documents to the Commissioner,
did not form part of
the record when the record had been filed with this court.
[29] There have been two
recent judgments which now authoritatively set out the requirements
for a successful review for gross irregularity
under section 145 of
the LRA .
[30]
The judgments
are:
30.1
Herholdt v Nedbank Ltd (COSATU as amicus
curiae)
(2013) 34 ILJ 2795 (SCA. The
court held:
‘
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 in
s 145(2)(a)
of the
LRA. For a defect in the conduct of the proceedings to amount to a
gross irregularity as contemplated by s 145(2)(a)(ii),
the arbitrator
must have misconceived the nature of the inquiry or arrived at an
unreasonable result. A result will only be unreasonable
if it is one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors of
fact, as well as the
weight and relevance 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’.
30.2
Gold Fields Mining SA (Pty) Ltd (Kloof
Gold Mine) v CCMA & others
(JA2/2012)
[2013] ZALAC 28 (4/11/2013):
‘
What
is required is first to consider the gross irregularity that the
arbitrator is said to have committed and then to apply the
reasonableness test established by
Sidumo
.
The gross irregularity is not a self-standing ...It follows that the
argument that the failure to have regard to material facts
may
potentially result in a wrong decision has no place in review
applications.
Failure to have regard to
material facts must actually defeat the constitutional imperative
that the award must be rational and
reasonable – there is no
room for conjecture and guessworkground insulated from or standing
independent of the
Sidumo
test.
‘
Where
an arbitrator fails to have regard to the material facts it is likely
that he or she will fail to arrive at a reasonable decision.
Where
the arbitrator fails to follow proper process he or she may produce
an unreasonable outcome
‘
(i)
In terms of his or her duty to deal with the matter with the minimum
of legal formalities, did the process that the arbitrator
employed
give the parties a full opportunity to have their say in respect of
the dispute? (ii) Did the arbitrator identify the
dispute he [or she]
was required to arbitrate (this may in certain cases only become
clear after both parties have led their evidence)?
(iii) Did the
arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv) Did he or she deal with
the substantial
merits of the dispute? And (v) is the arbitrator’s decision one
that another decision-maker could reasonably
have arrived at based on
the evidence?’
[31] Accordingly, the
Applicant must show not only that the Commissioner misconceived the
nature of the enquiry or did not apply
his mind to a crucial and
material issue but also that a reasonable commissioner would have
done so and would have reached a different
conclusion. These
judgments introduce a materiality requirement, An irregularity must
be material to the outcome.
In
my view the test has been satisfied,
[32] It is clear that the
Commissioner proceeded with the wrong line of enquiry in respect of
the charge proffered against the employee
in finding that he was not
guilty of the charge. It was common cause that the issue was not
reported to the CEO which was the nub
of the charge. The employee was
accordingly guilty for not reporting the Hazard to the CEO
irrespective of whether the problem
had been rectified. The
Commissioner exceeded his powers by trying to establish whether this
instruction was still applicable if
the issue had been rectified. In
doing so, he committed a gross irregularity which influenced the
outcome of his award. Having
made a credibility finding against one
of the witness, he had failed to apply his mind to the fact that all
the other witnesses
who testified on behalf of the employee were also
dismissed for non-compliance with non-negotiable safety standards and
that their
evidence ought to have been treated with some trepidation.
Any reasonable commissioner would have applied his mind to the
aforesaid
issues and had the Commissioner applied his mind to such
issues, the result would have been different.
[33] The Commissioner in
my view has failed to have regard to the material facts which has
presented the Applicant from having its
case fully and fairly
determined. This constitutes a gross irregularity in the conduct of
the arbitration proceedings as contemplated
in section 145(2)(a)(ii)
of the LRA. He misconceived the nature of the complaint against
the employee which resulted in him
finding the employee not guilty. A
reasonable commissioner would not have come to the same conclusion if
one has regard to all
the material facts that was before
commissioner.
[34] There was no
substantive evidence led on sanction as the sole focus of the
arbitration was on contravention of the charge.
There is insufficient
evidence on the record insofar as the break-down in the relationship
of trust is concerned or for that matter
the operational risk to the
business in order to make a finding on the appropriate sanction. The
Applicants Counsel correctly pointed
out to me that the Applicant has
not requested that this court substitute the findings of the CCMA. It
has simply requested for
the matter to be remitted back to the CCMA.
In the premise I make the following order:
34.1
The arbitration award issued under case
number GAJ27733-11 dictated 27 January 2012 is reviewed and set
aside.
34.2
The matter is remitted back to the CCMA for
determination before a commissioner other than the second respondent.
34.3
There is no order as to costs.
Chavoos AJ
Acting Judge of the
Labour Court of South Africa
APPEARANCES:
FOR THE APPLICANT: A.J.
Nel instructed by Geldenhuys Van Ryneveld Inc.
FOR THE THIRD RESPONDENT:
M.E.S Makinta of Makinta Attorneys