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[2016] ZALCJHB 26
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National Union of Mineworkers and Others v Rustenburg Platinum Mines and Others (JR628/12) [2016] ZALCJHB 26 (1 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JR628/12
In
the matter between:
NATIONAL UNION
OF MINEWORKERS
First Applicant
PETLELE & 11
OTHERS
Second to
Further Applicants
And
RUSTENBURG
PLATINUM MINES
First
Respondent
CCMA
Second Respondent
COMMISSIONER
K ERASMUS
N.O.
Third Respondent
Date
heard: 15 October 2015
Delivered:
1 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
The applicants seek condonation for the late filing of a review
application and to set aside and substitute the arbitration
award in
question.
[2]
The review application was launched four months out of time, a delay
the applicants concede was lengthy. The founding affidavit
in the
condonation application is deposed to by the national legal officer
of the first applicant (NUM), Nica Rakau (Rakau). He
avers as
follows:
2.1
The union’s
Rustenburg office received the award on the 27 September 2011.
In
mid- October 2011 the union‘s regional office bearer in
Rustenburg, (Dokolwane), was advised that the second to further
applicants wanted the award to be reviewed.
2.2
The award was faxed to him during the third week of October 2011 but
he
did not actually see it
as
he often works out of the office. A few days after it was faxed, he
got a call from Dokolwane. Rakau states as follows:
“
Dokolwane
telephoned me a few days later and asked me if I had seen the
“Petlele” arbitration award and he asked me
whether I
agreed that the award should be reviewed. Dokolwane informed me that
the affected workers were putting him under enormous
pressure and
that I must take a decision soon. When I heard Dokolwane refer to the
“Petlele award” I recalled that
the union had had
referred an arbitration award concerning Mr. Petlele to Cheadle
Thompson & Haysom (CTH) for review. I mistook
the award in this
matter for that matter and informed Dokolwane that the workers need
not worry because CTH had already been instructed
to bring an
application to review and set aside the Petlele award”.
2.3
In mid-November Dokolwane met the workers and told them that CTH was
dealing
with the matter. Rakau avers further that: “Both
Dokolwane and I were extremely busy at the end of the year and we
therefore
did (sic) have an opportunity to think about this matter
again. In fact I was so busy that I could not take leave until 29
December
2011. I remained on leave until 23 January 2012.”
2.4
On about 7 February 2012 he was advised by Dokolwane that the
affected workers
wanted an update and they were concerned that they
had never consulted with CTH. He avers: “They had asked him how
CTH could
represent them without having spoken to them. I agreed that
this sounded strange. At this time it occurred to both Dokolwane and
I that we may have confused this matter with another matter where a
different applicant, also named Mr Petlele was involved. In
investigating, I discovered that I had indeed mistaken this matter
with another.”
[3]
What is clear from the above is that on his version from mid October
2011 up until 7 February 2012, Rakau did not look at the
arbitration
award. Although he was told that the workers wanted to review it
shortly after the award was faxed to him, he purportedly
mistook the
award for one in respect of which CTH had already been instructed
when the matter was raised with him. He simply had
no time to think
about the matter between that time, i.e. mid October 2011, until the
first week of February when the union’s
members raised
questions again.
[4]
Rakau contextualises the delay in launching the matter by emphasising
the breadth and volume of legal work he is responsible
for
overseeing. In particular he states that NUM is one of the
largest trade unions in South Africa with approximately 300,000
members spread across the country.
[5]
His explanation for the delay from the 7 February 2012 to date of the
launching of the application on the 15 March 2012 is as
follows:
5.1
On 7 February, he immediately phoned attorney Reynauld Daniels of CTH
and asked for an urgent opinion on the
prospects of successfully
reviewing the award. The opinion was drafted without input from the
affected workers because it was needed
urgently and they were in
Rustenburg.
5.2
The opinion reached him on the 14 February. He saw it 2 days later
and only managed to contact Dokolwane on
21 February to discuss the
opinion with him. He was told the workers were unhappy with the
opinion because they had not consulted
with CTH before it was drafted
and wanted NUM to arrange a consultation. He contacted Daniels 2 days
later and the consultation
was held in Johannesburg on 29 February.
At the consultation, the workers referred to a bundle of documents
which had not been
brought to the consultation and which the
attorneys needed. He states that on 5 March the bundle of documents
was located and delivered
to CTH by NUM. He met with Daniels on 7
March and on obtaining his advice instructed him to launch the review
application.
5.3
Further averments are made in an attempt to deal with the delay in
February/ March by reference to the fact
that he and Dokolwane were
managing the process of a dispute involving many thousands of members
of NUM at Impala Platinum mine
during those months.
[6]
It is submitted on behalf of the applicants that the above amounts to
a reasonable and acceptable explanation for the lengthy
delay in
launching the application. I cannot agree. In essence the union is
offering an explanation that boils down to the fact
that those
charged with the responsibility for looking after the legal interests
of its members simply did not ‘have time’
to do so. In
2011, in
National
Education Health & Allied Workers Union & others v
Vanderbijlpark Society for the Aged
[1]
my brother Le Grange J had this to say:
“
[9]
The LRA has been in existence for more than 15 years, and the
time-limits governing referrals, not changed
in that time. It is
reasonable to expect that trade unions ought to be well aware of the
need to act timeously in the interests
of their members and to adapt
their internal procedures to accommodate those time-limits, not vice
versa. The scale of an organization
cannot serve as a justification
for delays. On the contrary, it is reasonable to expect that larger
organizations, be they trade
unions or businesses, ought to be able
to see to it that they are organized to deal with disputes of this
nature in a systematic
manner to ensure that they do not fall foul of
the time-limits in the LRA. Where handling such disputes is a core
function of the
organization, this should go without saying.”
[7]
In my view the NUM were negligent in dealing with this matter and
their explanation for the delay in launching the application
is the
very antithesis of reasonable. However in exercising a judicial
discretion in this application, I find it necessary to consider
whether in the circumstances of this matter, the affected workers
should be penalised for the lack of diligence of their union
representatives. The papers as deposed to by NUM set out the
following regarding the steps taken by the affected workers after
the
issuing of the award on 27 September 2011:
7.1
In mid- October 2011 the affected workers told their union
representative that they wanted the award to be
reviewed.
7.2
They put pressure on the union during the last weeks of October
regarding the matter.
7.3
In mid-November they were assured by Dokolwane that CTH were dealing
with the matter.
7.4
By 7 February 2012 they wanted a status update and were questioning
how they were being represented without
any consultation with their
attorney. This then led NUM to arrange same.
[8]
Given the above, which reflects that the second to further applicants
were the driving force behind getting this matter to court,
I am of
the view that the court should consider the merits of the review
application.
[9]
The second to further applicants were employed in various positions
until they were dismissed for “gross negligence and
disregard
of the general health and safety rules of the company”
following an underground mine accident at the first respondent’s
Rustenburg operation. The accident led to a fellow employee being
permanently paralysed after ‘a fall of ground’ incident.
At the arbitration the following issues were common cause:
9.1
There were substandard working conditions at the workplace on the day
in question;
9.2
An Early Entry Examination (EEE) must be done before entering a
workplace and all risks identified must be
fixed, and declared safe
before the crew is allowed to enter the workplace for their assigned
work.
[10]
The two issues in dispute at the arbitration were as follows:-
10.1
whether the applicants breach a rule i.e. whether a rule exists that
the crew is not entitled to enter the workplace
where substandard
conditions are present (and before the area is declared safe) even if
such entry was for the purpose of fixing
the identified problems
during the course of the EEE; and
10.2
whether the first respondent had been inconsistent in the application
of discipline (because the night shift crew the
safety officer and
the mine overseer were not charged).
[11]
The applicants submit that the arbitrator came to a decision that no
reasonable decision-maker could reach on the following
grounds:
11.1
First because the arbitrator failed to properly consider whether the
mine had consistently applied discipline;
11.2
Secondly, because the arbitrator ignored the evidence presented to
him of the long standing practice of the company that
an early entry
examination may be conducted by the entire shift before the safety
declaration form is complete.
[12]
A considerable portion of the Award deals with the Commissioner’s
understanding that the whole team should not be allowed
to conduct
the EEE and fix the hazards detected before they begin their normal
duties. It was conceded by the company’s witness
in the
proceedings that while best practice is for only a 5 person group to
do the EEE, the number of people in the team may differ.
In
submission on behalf of the First Respondent, it was
argued that even if the Commissioner was incorrect in finding
that
the applicants breached a rule (in that they all entered the
workplace to conduct the EEE) this was not the sole basis for
his
finding that the entire team entered the area before it had been
declared safe,
and
then disregarded the prescribed EEE
process. The applicants were dismissed for gross negligence and
failure to follow safety rules.
At best for the applicants, it iwas
submitted the finding on the rule was wrong, but the outcome of the
award cannot be considered
outside of the bounds of reasonableness.
[13]
The arbitrator found as follows regarding the failure to observe
safety rules:
“
[28]
I therefore agree with the incident investigation and findings of the
Respondent’s witnesses, that the Miner and
team leader’s
actions were the main cause of the said injury to one of the
employees and that it was indeed fortunate that
no other employee was
injured as a result of being subjected to these unsafe conditions.
The actions of the Miner and Team Leader
(Competent A Person)
amounted to gross negligence and a total disregard of the general
health and safety rules of the company.
[29]
The next question is whether the other Applicants (employees) were
also grossly negligent and disregarded
the general health and safety
rules of the company. The Respondent’s case was that employees
had a duty to refuse to work
under unsafe conditions and furthermore
had a duty to look out for the safety of the co-workers. They argued
that by working under
these unsafe conditions and by allowing the
injured worker to work on his own, they neglected their duty and
therefore disregarded
the general safety rules of the company…..
[31]
The Applicants were allowed by their seniors (the Miner & Team
Leader) to enter the unsafe working area and were instructed by
them
to assist with the early entry examination. No evidence was presented
that they were also made aware of the fact that where
were a huge
problem with missing support, which made the area particularly
unsafe.
There was also no evidence presented that the Applicant’
persistently or continuously made themselves guilty of being
negligent.
I’m therefore of the opinion that although they at
that stage could have foreseen the possibility of harm to them (and
could
have refused to enter the unsafe area), they did not grasp or
understand the exact extent of the situation. As such I find that
they have not made themselves guilty of gross negligence but do find
that they were indeed negligent in the execution of their
duties. (
my
emphasis
)
[14]
The next paragraph of the Award is key to the Commissioners finding
in respect of the applicants (excluding their leaders)
and relies
heavily on his understanding that they should not have entered the
workplace at all until it was declared safe:
“
[32]
……Evidence was led that that all employees were
regularly trained on all the standards expected from them
as well as
on safety in the mine. While being aware of the necessary safety
standards and procedures (particularly the early entry
investigation
procedure); the Applicants still entered the workplace on the 1
st
March 2011. They should have known that they may not enter any
workplace until such time as the area was declared safe by the early
entry investigation team. Once they became aware of the unsafe
conditions they also had the right to leave the unsafe workplace.
By
entering (and remaining under the unsafe conditions) they had in fact
disregarded the general health and safety rules of the
company,
thereby exposing themselves to a possible injury/death. I therefore
find that they have also contravened a further rule
by disregarding
the general health and safety rules of the company.”
[15]
I must agree that the Commissioner’s findings against this
group are premised on his understanding that the whole crew
was not
permitted to participate in the EEE. However this is contrary to the
evidence given by the company at the proceedings which
the record
reflects – essentially that while it may be best practice to
choose a handful of employees, the whole crew may
do the EEE on a
working panel (ie working place they are assigned to) as happened in
casu
.
[16]
The applicable regulation at issue in the arbitration proceedings was
Regulation14.1 entitled: “Entering of working places”
which reads in relevant part:
“
At
every underground mine where a risk of rock bursts, rock falls or
roof falls exists, and at every other mine where a significant
risk
of rock bursts, rock falls or roof falls exists, the employer-
(1)
may not permit any person, other than those persons examining and
making safe, to enter any of the following
areas at the mine until
such areas are declared safe by competent persons:
(a)
the area between the face and the nearest line of permanent support;
and
(b)
access ways, travelling ways or places where persons need to travel
or work;
(2)
must ensure that the examinations for purposes of regulation 14.1(1)
are carried out as often as may
be required, in terms of the mine's
risk assessment, to maintain a safe working environment;
(3)
must ensure that a record of declarations contemplated in regulations
14.1(1) and 14.1(5) is kept for
a period of at least three months;
(4)
must ensure that where areas contemplated in regulation 14.1(1) have
not been examined, made and declared
safe, persons are prevented from
inadvertently entering such areas;
(5)
must ensure, if at any time a working place or part thereof becomes
unsafe during a shift, that all
persons, other than those examining
and making safe, are removed from such unsafe area and are not
permitted to return thereto
until declared safe by a competent
person;
(6)
must ensure that a quality, assurance system is in place, which
ensures that the support units used
at the mine provide the required
performance characteristics for the loading conditions expected;
(7)
must ensure that only competent persons install, maintain and remove
any support unit;
(8)
must ensure that the input of a competent person is properly and
timeously considered and integrated
into mine design, planning and
operations.
No
person, other than those persons examining and making safe, may enter
any of the areas contemplated in regulation 14.1(1) until
such areas
have been declared safe as contemplated in regulations 14.1(1) and
14.1(5)…..”
[17]
A proper reading of the above makes clear that the prohibition on
entering the work place is in respect of persons not involved
in the
EEE process. Given that the Commissioner found that the applicants
(other than their leaders) were instructed to assist
with the EEE,
and had no knowledge of the problem of the missing support, his
finding that their dismissal was substantively fair
is one that a
reasonable decision maker could not make. The decision in respect to
these applicants thus stands to be reviewed
and set aside. I see no
reason why the primary remedy of reinstatement should not be the
applicable remedy in the circumstances
of this matter.
[18]
In respect of their leaders, Petlele and Goja, it was accepted on
submission on behalf of the applicants, that the Commissioner
could
reasonably have come to the decision that they acted grossly
negligently and with disregard to the Company’s health
and
safety rules, given the failings in the manner in which the EEE was
conducted and the leading role these two employees played
in the
process. The attack on review against the decision to uphold their
dismissals boils down to the allegation that the Commissioner
ignored
the consistency issue in that the Mine Safety Officer who accompanied
Petlele during the course of the EEE was not disciplined.
[19]
In
Absa
Bank Ltd v Naidu & others
[2]
the
LAC revisited the authorities on the parity principle and had this to
say:
[42]
Indeed, in accordance with the parity principle, the element of
consistency on the part of an employer in its treatment of
employees
is an important factor to take into account in the determination
process of the fairness of a dismissal. However, as
I say, it is only
a factor to take into account in that process. It is by no means
decisive of the outcome on the determination
of reasonableness and
fairness of the decision to dismiss.”
[20]
The Commissioner recorded that the Mine Safety Officer had not been
present on that day to assist with the EEE but to do an
audit and to
inform staff of certain general safety information. He also states
that the declaring of the area as safe was not
the responsibility of
that officer. In my view, and taking into consideration the
jurisprudence of the LAC as set out above, the
Commissioner
considered the issue of parity and came to a decision in respect of
Petlele and Goja that was well within the bounds
of reasonableness.
[21]
I see no purpose in remitting the award and consider it equitable
that each party pay their own costs. In all the above circumstances,
the review application has been partially successful and I make the
following order:
Order:
1.
The application for condonation is granted.
2.
The award under case number NWRB1561-11 is set aside and substituted
as follows:
‘
2.1
The dismissal of Joaba Petlele and Zolele Goja was substantively
fair.
2.2
The dismissal of the remaining ten (10) applicants was substantively
unfair.
2.3
The first respondent is to reinstate the following applicants with no
loss of
benefits as of the date of their dismissal:
a.
Mr Siphumzie Ntlantlana
b.
Mr Maphuthi Bham
c.
Mr Tholang Thulo
d.
Mr Victor Mhlaba
e.
Mr Jongilindi Mbedle
f.
Mr Joseph Mohasisa
g.
Mr Festos Rikhotso
h.
Mr Aaron Mtshazi
i.
Mr Mgcineni Sipika
j.
Mr Kgosi Tabane.’
3.
There is no order as to costs.
________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Adv C Orr
Instructed
by:
Cheadle Thompson & Haysom Attorneys
First
Respondent: Mr D Masher of ENSAfrica
[1]
(2011)
32 ILJ 1959 (LC)
[2]
(2015)
36 ILJ 602 (LAC)