About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 167
|
|
Sasol Mining (Pty) Ltd v CCMA and Others (JR 2170/11) [2015] ZALCJHB 167; (2015) 36 ILJ 2359 (LC) (26 May 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: JR 2170/11
DATE: 26 MAY 2015
Reportable
In the matter between:
SASOL MINING (PTY)
LTD
...................................................................................................
Applicant
And
CCMA
............................................................................................................................
First
Respondent
COMMISSIONER WILFRED NKOENG
N.O
.....................................................
Second
Respondent
NUPDW obo SIFISO
CHILIZA
................................................................................
Third
Respondent
Heard:20 May 2015
Delivered: 26 May 2015
Summary:
Safety of employees in
the mining industry cannot be compromised. An award finding the
dismissal of an employee who has breached
part of a safety procedure
unfair is unreasonable.
JUDGMENT
Lallie J
Introduction
[1] This is an application to review
and set aside an arbitration award of the second respondent (“the
Commissioner”)
in which he found the third respondent’s
dismissal by the applicant substantively unfair and ordered his
reinstatement with
effect from 1 August 2011, and the period between
the date of his dismissal and 1 July 2011 to be regarded as
suspension without
pay. The application is opposed by the third
respondent.
Background facts
[2] The applicant conducts business in
mining. It employed the individual third respondent (“third
respondent”) as
an artisan, who, amongst his responsibilities
had to ensure the safety of employees in his environment. His
responsibilities included
locking a machine or conveyor belt
electrically and physically by following a procedure known in the
mining industry is the lock
out. Its main purpose is to ensure that a
machine or conveyor belt will not cause harm or fatally injure
employees or damage to
the applicant’s property. On 21 January
2011 the third respondent breached the lockout procedure. The
applicant submitted
that the manner in which the third respondent
breached the procedure exposed its employees to the risk of injury
and fatality and
its property to the risk of damage. It further
caused the applicant to suffer financial prejudice in lost production
as it made
production impossible. The third respondent submitted that
he breached the procedure by failing to remove chain locks and allow
the conveyor belt to go back to production and not handing over the
shift to his colleague before going home. He conceded that
his
conduct cost the applicant loss of production. Under cross
examination he conceded that failure to follow the lockout procedure
constituted fatal behaviour in the applicant’s policy.
Grounds for review
[3] The applicant submitted that the
second respondent committed gross misconduct by reinstating the third
respondent although he
had made a concession of having committed
dismissible misconduct. He disregarded the evidence that the lockout
rule was reasonable
and applied consistently by the applicant. His
decision that the sanction was too harsh was not based on evidence.
He committed
gross misconduct by reinstating the third respondent
when the relationship of trust had been irreparably broken. Opposing
the application
the third respondent submitted that there were no
valid grounds to review the arbitration award as the criticism
levelled against
the award by the applicant was unfounded. No
evidence of the breakdown of the trust relationship was led. It
submitted that the
Commissioner correctly exercised the power vested
in him by the Labour Relations Act 66 of 1995 (“the LRA”)
in determining
the appropriate sanction particularly because no
evidence was led to the effect that the breach of the lockout
procedure was punishable
by dismissal.
The arbitration award
[4] The Commissioner found that the
probabilities were that the applicant did not follow the lockout
procedure on 21 January 2011.
He took into account that the third
respondent was the only artisan on duty in his shift as the second
one had been instructed
to work night shift. He criticised the
applicant for not applying progressive discipline or considering
sanction less than dismissal
before dismissing the third respondent.
He found the sanction of dismissal too harsh and concluded that the
third respondent’s
dismissal was substantively unfair. He
substituted it with an order reinstating him with effect from 1
August 2011 and ordered
the period between the date of his dismissal
and the date of reinstatement to be regarded as suspension without
pay.
Evaluation
[5] This court may interfere with an
arbitration award of a CCMA Commissioner if the decision is one a
reasonable decision-maker
could not reach on the facts before him or
her. In this regard see Sidumo & another v Rustenburg Platinum
Mines Ltd &
others
[2007] 12 BLLR 1097
(CC). In determining the
reasonableness of an award the reviewing court needs to consider the
totality of the evidence before the
arbitrator, ascertain whether the
arbitrator considered the principal issue, evaluated the facts
presented and came to a conclusion
that is reasonable. See Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation Mediation and Arbitration
and Others
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) para [16]. In Herholdt v Nedbank Ltd
[2013] 11 BLLR 1074
(SCA)
para 13 the court found that the “Sidumo test” will
justify the setting aside of an award on review if the decision
is
“entirely disconnected with the evidence” or is
“unsupported by any evidence” and involves “speculation
by the commissioner”.
[6] When the evidence before the
Commissioner is considered in its totality, it reflects that the
third respondent’s misconduct
is considered as fatal behaviour
by the applicant. The third respondent conceded having breached the
lockout procedure by not complying
with it in full. However, the
Commissioner’s finding that probabilities are that he breached
it is not qualified. Safety
of employees at the workplace is
paramount. It cannot be compromised. An employer cannot be expected
to wait until an employee
is maimed or has lost his or her life,
before taking decisive action against an employee who has exposed
fellow employees to danger.
Procedures which are intended to prevent
injury and fatality particularly in the mining industry need to be
complied with properly
because a lapse has disastrous consequences.
In exercising his power to determine the fairness of the third
respondent’s
dismissal, the Commissioner had to decide the
appropriateness of the sanction of dismissal. His decision that
dismissal was inappropriate
disregards the value of the lives and
safety of the employees the third respondent had the responsibility
of protecting. It is
not supported by the evidence before him. It
constitutes a decision a reasonable decision-maker could not reach on
the facts before
him and stands to be reviewed and set aside.
[7] The applicant sought an order
substituting the arbitration award. The applicant filed a complete
record of the arbitration proceedings.
It is common cause that the
third respondent breached procedure which is designed to protect the
safety of the applicant’s
employees and property. He claimed to
have forgotten to perform part of the procedure. He also stated that
he had no time to perform
the procedure in full. His evidence that he
was the only artisan on duty on the shift is not supported by
evidence which proves
the presence of another artisan in the same
shift. Exposing employees to the risk of injury and fatality is
inexcusable when one
is charged with the responsibility to protect
them. The third respondent’s conduct also exposed the
applicant’s property
to the risk of damage and caused lost
production. To appreciate the gravity of the misconduct which led to
the third respondent’s
dismissal and the appropriate sanction,
one needs to take a cue from this Court’s attitude towards
theft at the workplace
and unauthorised possession of employers’
property. It is not tolerated and justifies dismissal of employees
with years of
unblemished service. The purpose of the approach is to
prevent closures owing to financial loss caused by pilferage and
theft with
the concomitant job losses. Safety of employees deserves
more protection. In the circumstances the third respondent’sdismissal
was substantively fair.
[8] The applicant sought a costs order
against the respondent. I am not convinced that the order should be
granted as the respondent
opposed this review application armed with
an arbitration award in his favour. His conduct of opposing the
application was not
unreasonable.
[9] In the premises the following order
is made:
9.1 The arbitration award issued by the
second respondent under case number MP 4540 – 11 and dated 10
August 2011 is reviewed
and set aside and substituted with the
following:
“The dismissal of Sifiso Chiliza
by the applicant was fair.”
Lallie J
Judge of the Labour Court of South
Africa
APPEARANCES:
For the Applicant: Mr M J Ramathe of
Ramathe M J Inc
For the Respondent: Mr I Shongwe
Instructed by: TMN Kgomo and
Associates Inc