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[2015] ZALCJHB 153
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Harmony Gold Mining Company Limited v Commission for Conciliation, Mediation And Arbitration and Others (JR 385/2012) [2015] ZALCJHB 153 (15 May 2015)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Case
no: JR 385/2012
DATE: 15 MAY 2015
Not reportable
In
the matter between:
HARMONY
GOLD MINING COMPANY
LIMITED
..........................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
JOHN
MASHIKI
N.O
..............................................................................................
Second
Respondent
NATIONAL
UNION OF
MINEWORKERS
............................................................
Third
Respondent
TUMELO
MAFURA
................................................................................................
Fourth
Respondent
Heard:
7 May 2015
Delivered:
15 May 2015
Summary: Review
application. Commissioner failed to consider the evidence and to make
findings on a balance of probabilities. The
award re-instating the
Fourth Respondent was not reasonable. Award is reviewed and set
aside.
JUDGMENT
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 29 January 2012 wherein the Second
Respondent (the arbitrator)
ordered the Applicant to reinstate the
Fourth Respondent (Mr Mafura).
[2]
The issue in dispute was whether Mafura’s
dismissal was substantively and procedurally fair.
[3]
The arbitrator found Mafura’s
dismissal procedurally fair but substantively unfair and ordered that
he be re-instated retrospectively.
Background facts
[4]
The brief history of this matter is as
follows:
[5]
The Applicant operates as a gold mine in
the district of Evander, Mpumalanga Province. Mafura was employed as
a miner and from 17
August 2011 he was
inter
alia
responsible for the 16C13 Panel No
3 (the workplace) at the Evander Gold Mine.
[6]
As a miner Mafura had subordinates
reporting to him and his responsibilities were not only production in
respect of his section,
but also the health and safety of his
subordinates. Mafura had to ensure that his subordinates conduct
their work in a safe manner
and that he inspected working areas to
ensure safety.
[7]
On 8 September 2011 the Applicant’s
acting mine overseer (MO) instituted disciplinary action against
Mafura and the charges
levelled against him were violation of safety
rules and standards, not working to standard 7/9/11 and not obeying
lawful and legitimate
instructions.
[8]
The chairperson of the internal
disciplinary hearing found Mafura guilty of misconduct and he was
dismissed in terms of the Applicant’s
disciplinary code and
procedure which provides that dismissal is an appropriate sanction
for a first time violation of the safety
rules and standards.
[9]
The Third Respondent (NUM) acting on behalf
of Mafura referred an unfair dismissal dispute to the First
Respondent (CCMA), challenging
the substantive and procedural
fairness of Mafura’s dismissal.
[10]
As already statedthe arbitrator found
Mafura’s dismissal procedurally fair but substantively unfair
and ordered that he be
re-instated retrospectively. The Applicant
seeks to review and set aside the award reinstating Mafura. The
application is opposed.
The
arbitration proceedings and award
[11]
At the commencement of the arbitration
proceedings NUM stated that the procedural fairness of Mafura’s
dismissal was challenged
on the ground that there was a forgery of
documents. The arbitrator found no basis for this complaint and held
Mafura’s dismissal
to be procedurally fair and the finding on
procedural fairness is not relevant for this review application.
[12]
On substantive fairness the main issue was
that Mafura was given an instruction on 7 September 2011 and in terms
of the provisions
of the applicable policy he had three days to fix
the problem. Instead he was suspended on 8 September 2011 and charged
with misconduct
on the same date, therefore he was not afforded an
opportunity to fix the problem. It was further stated that the
contractor who
was supposed to do some of the pre-work did not come
on time and Mafura was unable to carry out the instruction.
[13]
NUM accepted that the instruction was given
on 7 September 2011, but disputed that Mafura was given three days to
comply with it
and therefore his dismissal was unfair.
[14]
The Applicant on the other hand stated that
the instruction was placed on the notice board on 11 August 2011 and
was given to Mafura
on 26 August and on 1 and 7 September 2011 and
that Mafura was aware of the instruction but deliberately ignored it
and thereby
violated the Applicant’s safety rules and
standards.
[15]
The evidence adduced during the arbitration
proceedings and relevant for purposes of the application for review
can be summarised
as follows:
[16]
Mr Oosthuizen testified in his capacity as
the acting mine overseer. His evidence was that he visited the
workplace on 26 August
2011 and found several ‘A-hazards’.
An ‘A-hazard’ is one that can put people’s lives in
danger and
if that is found, the practice is ‘stop and fix’
immediately. He instructed the shift boss and Mafura to rectify the
safety hazards. He visited the workplace again on 1 September 2011
and found the hazards he instructed them to rectify on 26 August
2011
were still not rectified and he instructed them to take certain steps
to rectify the situation. He indicated to them that
he would visit
the workplace again in a week’s time.
[17]
On 6 September 2011 and shortly before the
expiry of the week he had granted Mafura and the shift boss to
rectify the issues he
identified, the safety department approached
him and informed him that there were complaints about the safety of
the workplace
and there were fears that somebody might be killed.
[18]
On 7 September 2011 Oosthuizen visited the
workplace with the safety department and noticed that most of the
safety hazards captured
in his previous report were still not
rectified. He testified that those were the things he specifically
instructed the shift boss
and Mafura to rectify and their failure to
do that put people’s lives in danger, was not working according
to standard and
did not follow the rock mechanic’s
recommendations.
[19]
The following day Oosthuizen suspended the
shift boss and Mafura and charged them with violation of safety
rules, not working to
standard and not obeying lawful instructions.
[20]
Oosthuizen testified that Mafura did not
carry out instructions given to him to ensure that the workplace is
safe and this endangered
the lives of others. This impacted
negatively on the trust relationship between the Applicant and
Mafura.
[21]
The material parts of Oosthuizen’s
evidence were not disputed under cross-examination.
[22]
Mr Rathebe, the Applicant’s chief
safety officer testified that the report of the rock mechanic was on
the notice board, located
at the waiting place. The recommendations
were not complied with and he inspected the workplace after he
received complaints about
the safety of the place. The inspection
took place with Oosthuizen on 7 September 2011.
[23]
In his testimony Mafura testified that the
instruction was given to him only on 7 September 2011 during the
safety officer’s
visit. In cross-examination Mafura explained
that the purpose of the notice board at the waiting place was for
employees to get
information from management and special
instructions. He conceded that the Applicant’s disciplinary
code and procedure prescribes
dismissal for violation of a safety
rule, even where it is a first offence. He also conceded that if he
did not adhere to regulations
and recommendations of the Applicant it
is unlawful, it could lead to disciplinary action being taken against
him and somebody
could die or get injured. Mafura explained that the
reason why he did not rectify the safety hazards was because he did
not have
labourers available.
[24]
Upon a question from the arbitrator as to
when he saw the safety hazards, Mafura responded that he saw the
safety hazards on 24
August 2011 when he started at the workplace and
from that day he started to make the area safe and to ensure that
things were
up to standard.
[25]
In considering substantive fairness the
arbitrator moved from the premise that Mafura’s non-adherence
with instructions given
to him violated the safety rules and
standards therefore the dispute was ‘whether Mafura was given
an instruction on 11 and
26 August, 7 September or should have been
reasonably aware of such instruction and deliberately ignored it
thereby violating the
Applicant’s safety rules and standards.’
[26]
Moving from this premise the arbitrator
found that there was no evidence to suggest that an instruction was
given to anyone on 11
August 2011. He found that Oosthuizen testified
that he gave the instruction to the shift boss on 26 August 2011 and
he believed
that it was discussed with the miners. The arbitrator
found this evidence to be speculative and not supported by evidence
and concluded
that the instruction that was given on 26 August 2011
was only given to the shift boss.
[27]
Having found that Mafura was not given an
instruction on 26 August 2011, the arbitrator concluded that the
instruction was indeed
given on 7 September 2011 and as Mafura was
suspended on 8 September 2011 he was not afforded the required three
days to attend
to the problem and fix it. Mafura never ignored the
safety standards as he was attending to it but lacked the necessary
labour
to fully attend to it.
[28]
The arbitrator found Mafura’s
dismissal substantively unfair and reinstated him.
The
grounds for review
[29]
The Applicant seeks to review the findings
and raised three main grounds for review.
[30]
The first main ground for review is that
the arbitrator failed to apply his mind to pertinent facts.
[31]
It is the Applicant’s case that the
arbitrator ignored pertinent facts. These are that Mafura was an
experienced miner and
appointed to the workplace on 17 August 2011,
that he was appointed in a position of great responsibility where he
had to ensure
the safety of the persons working under his
supervision, Mafura was aware of the seriousness of not adhering to
safety regulations
in that somebody could die or be injured and he
knew that violation of safety rules and regulations is sanctioned by
dismissal.
Furthermore the ‘miner’s daily report’
of 26 August 2011 identified a deviation from the standard and
required
Mafura to stop and fix the hazards, Mafura confirmed that
the hazards identified in the ‘miner’s daily report’
of 26 August 2011 were the same as those identified in the MO report
issued on 11 August 2011. The MO report had been on the notice
boards
since 11 August 2011 and on Mafura’s own version the purpose of
the notice board at the waiting place is for him and
the crew to read
and get information from the line-up, management, the shift boss and
the MO. On this version of Mafura he should
have been aware of the
hazards and the instruction that was on the notice board since 11
August 2011.
[32]
Mafura further admitted that Oosthuizen
visited the site again on 1 September 2011 and that the hazards were
still not fixed and
he admitted that on 3 September 2011 it was still
not fixed.
[33]
On Mafura’s own version he saw the
safety hazards on 24 August 2011 when he started at the workplace and
from that day he
started to make the area safe and ensured that
things are according to the required standard.
[34]
The arbitrator found that the instruction
was given on 26 August 2011, but only to the shift boss and not to
Mafura directly. Mafura
was only instructed on 7 September 2011.
[35]
It appears that the arbitrator was of the
view that the instruction should have been given to Mafura directly
and personally and
the only proof of the instruction that was given
to Mafura is the MO’s book which he signed on 7 September 2011
acknowledging
the instruction. Therefore Mafura was only instructed
on 7 September 2011.
[36]
The arbitrator found that Oosthuizen
testified that he gave the instruction to the shift boss on 26 August
2011 and he believed
it was discussed with the miners, including
Mafura. This evidence the arbitrator found speculative and
unsupported. The transcribed
record however shows that Oosthuizen’s
uncontested evidence was that on 26 August 2011 he instructed the
shift boss and Mafura
to rectify the safety hazards and that he
visited the workplace again on 1 September 2011 and found the hazards
he instructed them
to rectify on 26 August 2011 were still not
rectified and he instructed them again to take certain steps to
rectify the situation.
[37]
The arbitrator, without any justification,
found uncontested evidence speculative and unsupported. He did not
consider the uncontested
evidence that there was a follow-up visit
and instruction on 1 September 2011 at all. The arbitrator
acknowledged that Mafura noted
the problems in his daily report of 26
August 2011, but found that he never ignored the safety standards and
was constantly attending
to the problems.
[38]
It is evident that in finding that Mafura
was only instructed on 7 September 2011 the arbitrator ignored
material and pertinent
parts of the evidence adduced and he reached a
conclusion that is not only disconnected from the evidence adduced
but that is also
unreasonable.
[39]
The arbitrator further found that Mafura
was attending to the safety issues but could not fully attend to it
as he had staff shortages.
This version was however never put to
Oosthuizen when he was cross-examined. Mr Molebaloa on behalf of
Mafura submitted that the
shortages of staff was captured in the
‘miner’s daily report’ and despite the fact that it
was not put to Oosthuizen,
the arbitrator could consider that as he
was enjoined to consider the evidence placed before him and his award
could not be faulted.
This argument cannot be accepted. It is trite
that witnesses should be granted an opportunity to respond to the
version of the
other party and without that opportunity evidence is
untested and cannot be merely accepted. An inscription on a miner’s
report cannot be accepted simply because it is part of the documents
without its contents being tested and put in a proper context.
The
version put to Oosthuizen was that the contractor did not arrive on
time and therefore Mafura was unable to fix the problems.
[40]
The second main ground for review is that
the arbitrator failed to attach sufficient weight to the evidence
adduced by the Applicant’s
witnesses. The Applicant’s
case is that the evidence of Oosthuizen was uncontested and remained
mostly unchallenged, yet
the arbitrator failed to take crucial parts
of his evidence into account and failed to attach proper weight to
the clear, consistent
and undisputed evidence. Two other witnesses
corroborated the evidence of Oosthuizen. Mafura’s evidence was
bald denials
and maintaining that no instruction was given to him on
26 August 2011.
[41]
The third main ground for review is that
the arbitrator failed to consider or ignored the inconsistencies in
Mafura’s testimony.
[42]
In my view these are not two separate
grounds for review but both relate to the manner in which the
arbitrator evaluated and dealt
with the versions presented and the
evidence adduced in support of these versions.
[43]
It is the Applicant’s case that the
arbitrator failed to perform a very crucial task namely to weigh up
the versions of evidence
presented and to make a finding on a balance
of probabilities.
[44]
From a perusal of the transcribed record
and the arbitration award it is evident that the arbitrator
completely discounted several
important and unchallenged aspects of
the evidence adduced by the Applicant’s witnesses.
[45]
For instance the arbitrator ignored the
fact that Oosthuizen testified that he gave Mafura the instruction on
26 August 2011, that
he revisited the workplace on 1 September 2011
and repeated the instruction and informed Mafura and the shift boss
that he would
visit the site again in one week’s time and when
he visited the workplace again on 7 September 2011, the safety
hazards were
still not rectified. Mafura’s own version was that
he was aware of the safety hazards since 24 August 2011, he should
have
been aware of instructions placed on the notice board and had in
his ‘miner’s daily report’ of 26 August 2011
identified a deviation from the standard. Considering these versions
and the inherent probabilities, it is astonishing that the
arbitrator
came to a conclusion that Mafura was instructed for the first time on
7 September 2011 and that he never ignored the
safety standards.
[46]
It is evident from the record that there
were inconsistencies in the version presented by Mafura and the
version put forward to
the Applicant’s witnesses under
cross-examination. The arbitrator failed to deal with these
inconsistencies but merely preferred
and accepted Mafura’s
version without any logical reasoning or justification.
[47]
The Applicant and Mafura testified that a
breach of safety rules is very serious as the consequences could be
death or injury and
dismissal was an appropriate sanction, even for a
first offence.
[48]
An
arbitrator in considering whether a dismissal was fair is also
required to determine whether the sanction of dismissal was
appropriate.
In
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[1]
the Constitutional Court set out the factors to be considered in
determining the fairness of the sanction. A consideration of these
factors is glaringly absent from the arbitration award.
[49]
The arbitrator failed to consider the
probative value of the Applicant’s evidence in respect of its
rules and procedures,
Mafura’s knowledge and understanding of
the rules, the instructions given to him and the possible grave
consequences of not
following the instructions, the seriousness of
the misconduct and the reasonableness of the sanction. The arbitrator
completely
failed to understand or appreciate the seriousness of the
misconduct and the gravity of the breach of safety regulations.
[50]
The Applicant’s testimony was that
the trust relationship between the employer and Mafura was broken
down to the extent that
Mafura could no longer be trusted. Mafura’s
misconduct was serious with potential grave consequences. This
testimony was
uncontested. Despite this, the arbitrator had no regard
for the seriousness of the misconduct and the uncontested version
that
Mafura could no longer be trusted when he ordered the Applicant
to reinstate Mafura.
[51]
In
Sasol
Mining (Pty) Ltd v Ngqeleni N.O. and Others
[2]
,
this Court held that:
“
One
of the commissioner’s prime functions was to ascertain the
truth as to the conflicting versions before him. As I have
noted,
this much the commissioner appears to have appreciated. What he
manifestly lacked was any sense of how to accomplish the
task, or
which tools were at his disposal to do so. The commissioner was
obliged at least to make some attempt to assess the credibility
of
each witness and to make some observation on their demeanour. He
ought also to have considered the prospects of any partiality,
prejudice or self-interest on their part, and determined the credit
to be given to the testimony of each witness by reason of its
inherent probability or improbability. He ought then to have
considered the probability and improbability of each party’s
version. The commissioner manifestly failed to resolve the factual
dispute before him on this basis.”
[52]
In
Sidumo
[3]
the Constitutional Court held that:
“…
where
a commissioner fails to have regard to the material facts, the
arbitration proceedings cannot, in principle, be said to be
fair,
because the commissioner fails to perform his or her mandate. In
doing so, the commissioner’s action prevents the aggrieved
party from having its case fully and fairly determined. This
constitutes a gross irregularity in the conduct of the arbitration
proceedings, as contemplated by s145(2)(a)(ii) of the LRA. And the
ensuing award falls to be set aside not because the result is
wrong
but because the commissioner has committed a gross irregularity in
the conduct of the arbitration proceedings.”
[53]
It is evident from the arbitration award
that the arbitrator did not address, let alone resolve, the
fundamental disputes of fact.
One would look in vain to find any
reasoning in the award why the Applicant’s version was rejected
and Mafura’s version
was preferred. There is no assessment and
evaluation of the material evidence adduced and no consideration of
the inherent probability
or improbability of each party’s
version.
[54]
The arbitrator is required to consider all
relevant evidence and to undertake a balanced, equitable and
impartial assessment of
the evidence and to make a finding on the
balance of probabilities that is reasonable.
In
casu
the arbitrator failed to do that
and I cannot but find that he has committed a gross irregularity that
is subject to review.
The test on
review
[55]
The test that this Court must apply in deciding
whether the arbitrator's decision is reviewable is well established
and has been
rehashed innumerable times since
Sidumo
as ‘
Is the decision reached by the commissioner one that
a reasonable decision maker could not reach?’
The
arbitrator's decision must fall within a range of decisions that a
reasonable decision maker could make.
[56]
In
the
decision
of
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[4]
the
Supreme Court of Appeal 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 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 enquiry 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.”
[57]
In the
subsequent judgment of
Goldfields
Mining South Africa v Moreki
[5]
the
Labour Appeal Court held that:
“
In
short: A reviewing court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion that is
reasonable.”
Conclusion
[58]
In reviewing the arbitration award, the grounds
for review as raised by the Applicant must be assessed and the test
to be applied
is a strict and stringent one.
[59]
Having considered the evidence adduced at
the arbitration proceedings, the findings made by the arbitrator in
respect of substantive
fairness and the grounds for review as raised
by the Applicant, the arbitrator’s findings cannot be regarded
as reasonable
findings.
[60]
I find that the arbitrator's decision fell outside
of the band of decisions to which a reasonable decision maker could
come to
and is therefore subject to review.
[61]
Based on the above, I am persuaded that
this award cannot stand and should be interfered with on review. The
record placed before
this Court is complete and I am in a position to
determine the matter finally.
Order
[62]
In the premises I make the following order:
63.1
The
arbitration award issued on 29 January 2012
under case number MP7538-11
is reviewed and set aside;
63.2
The award is substituted with the following order: The Fourth
Respondent’s dismissal was fair;
63.3
There is no order as to costs.
Connie
Prinsloo
Acting
Judge of the Labour Court
Appearances:
For
the Applicant : Mr J Olivier from Webber Wentzel Attorneys
For
the Third and Fourth
Respondents:
Mr Molebaloa from M S Molebaloa Attorneys
[1]
(2007) 28 ILJ 2405 (CC) at para 268
[2]
(2011) 32 ILJ 723 (LC) para 9 – 10.
[3]
Supra
at para 268
[4]
(2013) 34 ILJ 2795 (SCA) at para 25
[5]
(2014) 35
ILJ
943 (LAC) at para 16.