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[2016] ZALCPE 19
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National Union of Mineworkers obo Vangile v Commission for Conciliation, Mediation and Arbitration and Others (PR59/15) [2016] ZALCPE 19 (4 November 2016)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT PORT ELIZABETH
C
ase
no: PR 59/15
In
the matter between:
NATIONAL UNION OF
MINEWORKERS obo S
VANGILE
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
M MDLALANA
N.O.
Second Respondent
ESKOM HOLDINGS
(PTY) LTD
Third Respondent
Heard
:
01 November 2016
Delivered
:
04 November 2016
Summary:
(Review-misconduct-failure to comply with
procedures-gravity of misconduct)
JUDGMENT
LAGRANGE
J
Background
[1]
This
is an application to review an arbitration award in which the
individual applicant, Mr S Vangile (‘Vangile’) was
dismissed for failing to comply with “Eskom’s conditions
of service, procedures, agreements with trade unions, operating
regulations, security and/or safety measures, procedures and
directors, and applicable statutory requirements.” It was
alleged
that “[o]n 27 February 2014 you breached
regulations 2.08.b, 5.0 4.1 and regulation 8.0 1.3.2 of the ORHVS
[1]
Regulations in that you failed to correctly returned to service the
400 Kv bus-bar in the Neptune Substation”.
[2]
In the arbitration following his dismissal
the arbitrator found VANGILE guilty of two of the regulations. The
respective regulations
were Regulation 5.04.1, which states:
“
[B]efore
returning any apparatus or line, on which work has been carried out,
to service the authorised person shall first personally
satisfied
himself that all persons had been withdrawn from the apparatus or
line... and that all permanent barriers have been replaced.”
and
Regulation 2.08.b, viz:
“
TAKING
PLANT OFF THE SYSTEM
apparatus
shall not be considered to be part of the power system when it has
been disconnected and declared out of commission from
the power
system by:
(a)
... or
(b)
by the opening of isolators. When opened,
these isolators shall be locked with safety locks on the keys placed
in custody of a person
not directly involved with the operating.”
[3]
The Neptune substation was designed to
transfer the current to a new cable in the process of being directed
which would carry power
to Vuyani substation near Umtatha. On 27
February part of the substation was isolated so that certain tests
could be conducted
on the plant by other employees. To enable this to
be done, VANGILE needed to close certain isolators, which were open.
When and
isolator is open no current can flow and converse applies
when it is closed. The isolators in question were open and were
secured
in the open position with various locks. Some of the locks
had been placed there by a contractor who was working on the Vuyani
line. The 1 was given keys to unlock the isolators locked with Eskom
locks. When he phoned his supervisor about to do in relation
to the
isolators locked open by the contract he was told to cut the locks
which he did.
[4]
The arbitrator also found that once the
testing work had been performed, irrespective of the responsibilities
of the person performing
the testing, VANGILE was responsible for
seeing that all persons were withdrawn from the line and that
permanent barriers had been
replaced before advising the control
officer that the work was completed. As it happened, VANGILE did not
restore the isolators
to their open position and when the connection
was restored, the apparatus which had previously been isolated and
energised and
the line tripped when current was diverted to earth by
temporary earths measures attached to the line. At the time that
comment
was restored, the contractors workers on the Vuyani line had
already stopped working on the line that day, although VANGILE was
unaware of this and the temporary earths were sufficient to stop the
Vuyani line being energised as well. Nevertheless, the trippage
affected amongst others, production operations at Mercedes Benz and
there was evidence that the temporary earths might not necessarily
have prevented injury to workers busy on the Vuyani line.
The arbitration award
[5]
The arbitrator did not accept that VANGILE
could simply absolve himself from responsibility for closing the
isolators which had
been locked open with the contractors locks
because his supervisor had told him to cut them. The contact
details of the contractor
were clearly visible on the labels affixed
to the locks and there was no justification for breaking them without
getting the go-ahead
from the contractor in circumstances where
nobody knew why the contractor had not yet removed them. The
regulations provided that
keys had to be placed in the custody of a
person not directly involved with operating the system. The
arbitrator found that it
was “unwise and patently negligent”
on the part of the applicant and his supervisor to agree to open the
locks forcefully
without checking with the contractor that his work
was finished.
[6]
In relation to the restoration of the
isolated portion of the substation to service, the arbitrator found
that VANGILE was an authorised
person for the purposes of complying
with the regulations, irrespective of whether the person who had done
the testing work might
also have been an authorised person for the
purposes of performing his work. As far as returning the plant to
service was concerned
after the testing had been done the arbitrator
found that VANGILE should have personally satisfied himself that it
was safe to
do so which included ensuring that permanent barriers
such as the isolators locked in the open position were restored to
that position.
[7]
There was evidence led during the
arbitration that the accident which caused the trippage could also
have been prevented if control
of the substation had been properly
handed over to two control centres. However, the arbitrator found
that irrespective of the
role this might have played in the Incident,
VANGILE still had his role to play by ensuring that he was operating
safely and within
the regulations.
[8]
The arbitrator also dismissed regulations
VANGILE’s claim that his dismissal had been procedurally unfair
because the disciplinary
action was only take nearly five months
after the incident, whereas the companies disciplinary code provides
that it would endeavour
to take disciplinary action within three
months of becoming aware of any misconduct. Eskom’s witnesses
had said that the
disciplinary action was delayed because they had
waited for the release of the final report into the incident, though
they simultaneously
denied that the charges had been influenced by
the report itself. The arbitrator clearly didn’t accept this
rationalisation
for the delay but also found that there was no
demonstrable prejudice which VANGILE had suffered as a result
thereof.
Grounds of review
[9]
The applicants contend that some of the
arbitrator’s finding is simply irrational. They also argue that
when deciding on whether
the dismissal was an appropriate sanction,
the arbitrator effectively applied the zero tolerance standard of the
employer instead
of considering all the factors he was supposed to
consider.
Alleged irrational
findings
[10]
The applicants argue that it was irrational
to blame VANGILE for cutting the contractors locks because he had
been instructed to
do so. They also argued that contrary to the
arbitrator’s finding that it was improbable that he would not
have been aware
of the fact that his co-worker who was his ‘buddy’
on the day in question had in fact issued the permit to the
contractor
to work on the line.
[11]
They also contended that it was irrational
to hold VANGILE responsible for ensuring that all persons had been
withdrawn from the
line before it was restored to service because it
was the responsible person for doing that was the person who had been
performing
the tests. It is true that the person performing the tests
(Mr Phokane) had certain duties regarding the apparatus which he had
worked on, but he was not responsible for returning the system he had
worked on to service. As was described by one of the employer’s
witnesses, the work performed by Mr Phokane was like someone who was
responsible for the filling in a sandwich but VANGILE was
responsible
for the rest of the sandwich containing the filling.
[12]
It also stands to reason that the person
performing the testing was not responsible for making creating the
initial safe environment
in which the testing could be performed.
Once the testing was done and Phokane had restored the apparatus to
the condition he found
it and made sure everyone was removed from the
site, it was VANGILE who had ensure that it was now safe to
return the plant
to service. It was clear from the evidence that the
tester had his responsibilities to restore the apparatus to the state
he found
it in and to ensure that all staff were removed from the
area where the work had been done. That duty did not include
restoring
the plant to the state it was in before VANGILE made it
safe for him to perform his duties. To the extent that there was any
overlap
in the responsibilities, it appears that VANGILE had to be
satisfied that the tester had left the plant in a state that made it
possible for him to take the additional steps to return the plant to
service.
[13]
The applicants also criticise the
arbitrator for supposedly ignoring the evidence of the Eskom report
which showed that the trip
on the system could have been avoided if
the system had been properly handed over. Firstly, the arbitrator did
not ignore that
other role players might have prevented the trippage,
but did not mean that VANGILE was absolved from performing his
duties. Had
he performed his duties properly he would also have
prevented the trippage. It is in the nature of the various safety
measures
contained in the regulations and applied by Eskom that
various role players have their own distinct responsibilities, each
of which
can prevent an accident if they are properly performed.
[14]
In
relation to the claim that the arbitrator considered in the relevant
issue in considering whether VANGILE had suffered any prejudice
as a
result of the delay in his disciplinary proceedings, I fail to
understand the merit of this point on review. It is well established
that mere non-compliance with a disciplinary code does not in and of
itself mean that a dismissal was procedurally fair.
[2]
What is required is a consideration whether all the circumstances
such a defect materially impacted on the fairness of the process.
Nothing in the conduct of the proceedings suggest that VANGILE was in
any way hampered in his defence because of the delay. In
the
circumstances no cogent reason has been advanced why the arbitrator’s
finding in this regard was irrational.
[15]
It was also argued that the arbitrator
could not have concluded that VANGILE was negligent in relation to
the consequences of cutting
the contractors locks because there was
no evidence that he was aware that the contractor was still working
on the Vuyani line
because he was not told by his ‘buddy’
Ms Cele who had issued the permit to the contractor that the permit
was no longer
valid nor was he advised by his supervisor. The
arbitrator found that both VANGILE and his supervisor were negligent
in cutting
the contractor’s locks. It might be debatable to
what extent negligence between VANGILE, Ms Cele and the supervisor
should
be shared, but it was not wholly unreasonable in my view for
the arbitrator to conclude that VANGILE was negligent in not taking
any steps himself to verify that the contractor had stopped working
on the line, which would have been a very easy thing to do
given that
the contactor’s contact details were plainly visible on the
locks. Moreover, nothing suggests that VANGILE was
unaware or
ignorant of the purpose of such locks and the possible implications
of the isolators being closed, if work on the Vuyani
line had not in
fact finished. Faced with the fact that the contractor had not
removed the locks it is not unreasonable to assume
that a person with
the level of VANGILE’s expertise would not have simply accepted
the say-so of his supervisor, without
at least asking the supervisor
to obtain confirmation from the contractor to work on the line was
finished and the locks could
be removed. As it turned out, the permit
issued to the contractor was still in force and work on the Vuyani
line was still being
undertaken. Had either VANGILE or his supervisor
bothered to contact the contractor they would have ascertained this,
quite apart
from whether Ms Cele had a duty as the issuer of the
permit to speak up before the locks cut. In any event, while it is
possible
to equivocate over the degree of negligence on the part of
VANGILE in cutting the locks, he was solely responsible for not
ensuring
that the isolators were restored to the open position for
returning any apparatus to service.
[16]
The
applicants most trenchant ground of review is that there was no
evidence that the arbitrator separately considered the question
whether or not dismissal was an appropriate sanction. On the face of
the award, there is nothing to suggest that after finding
the
applicant guilty on two charges that the arbitrator paused to
evaluate whether the dismissal was therefore substantively fair
or,
if not, what the appropriate remedy should be. The applicants contend
that the arbitrator implicitly accepted that a ‘zero
tolerance’
standard applied and that a finding of guilt on the charges
automatically lead to the conclusion that dismissal
was the only
appropriate sanction. The applicants pointed out that the labour
appeal court has recently made it clear in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & Others
[3]
that:
“
[17]
It is also necessary to make some further remarks as regards
dismissal for a first offence, ie a 'zero tolerance' policy. A
dismissal will only be fair if it is procedurally and substantively
fair. A commissioner of the CCMA or other arbitrator is the
initial
and primary judge of whether a decision is fair. As the code of good
practice enjoins, commissioners will accept a
zero tolerance
approach if the circumstances of the case warrant the employer
adopting such an approach.
[18] But the law does not
allow an employer to adopt a zero tolerance approach for all
infractions, regardless of its appropriateness
or proportionality to
the offence, and then expect a commissioner to fall H in
line with such an approach. The touchstone
of the law of dismissal is
fairness and an employer cannot contract out of it or fashion, as it
were, a 'no-go area' for commissioners.
A zero tolerance policy would
be appropriate where, for example, the stock is gold but it would not
necessarily be appropriate
where an employee of the same I employer
removes a crust of bread otherwise assigned for the refuse bin. See
the incisive
contribution by André van Niekerk 'Dismissal for
Misconduct — Ghosts of Justice, Past, Present and Future' in R
le
Roux & A J Rycroft (eds)
Reinventing Labour Law:
Reflecting on the First 15 Years of the Labour Relations Act and
Future Challenges
(Juta J 2012) at 102-19.
Commissioners should be vigilant and examine the circumstances of
each case to ensure that
the constitutional right to fair labour
practices, more particularly to a dismissal that is fair, is afforded
to employees.”
While
the facts of this case might well justify a less tolerant approach to
the infractions in question, it was still incumbent
on an arbitrator
to consider the relevant factors affecting the fairness of the
sanction of dismissal as required by the
Code of Good Practice
read with s 188(2) of the LRA.
[17]
Satisfied that in this instance there is no
evidence that the arbitrator considered the distinct question whether
the dismissal
of VANGILE was fair as a separate issue from
determining his guilt. As such, the arbitrator committed misconduct
in relation to
his duties.
[18]
As far as appropriate relief is concerned I
do not believe that the issue should be determined by this court
without the parties
having an opportunity to make relevant
representations. For that reason the matter is remitted back for the
determination of the
substantive fairness of the dismissal in terms
of the order below.
Order
[19]
The finding of the second respondent in his
arbitration awarded handed down on 26 March 2015 under case number
ECEL 3247-14 that
the dismissal or Mr S Vangile was substantively
fair and his dismissal of his referral are reviewed and set aside.
All the other
findings of the second respondent remain unaltered.
[20]
The matter is remitted back to the first
respondent to enrol the matter within 30 days of receipt of this
judgment for a hearing
before an arbitrator other than the second
respondent to determine if the dismissal of Mr S Vangile for the
misconduct he was found
guilty of by the second respondent was an
appropriate sanction and accordingly if his dismissal was
substantively fair or not,
and to make an appropriate order
consequent thereto if necessary.
[21]
The arbitrator appointed in terms of this
order must determine the fairness of the dismissal on the record of
the arbitration proceedings
before the first respondent, taking
account the findings of this court in the review application and the
unaltered findings of
the second respondent, and after hearing any
submissions of the parties on the substantive fairness of the
dismissal or alternative
appropriate sanction.
[22]
No order is made as to costs.
_______________________
Lagrange J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
J
G Grogan instructed by Wesley Pretorius
THIRDD
RESPONDENT:
N
Gqamana, SC instructed by Smith Tabata Inc.
[1]
Operating Regulations for High Voltage Systems
[2]
See, e.g
Highveld
District Council v CCMA & Others
(2003) 24 ILJ 517 (LAC)
at
520-521, para [15].
[3]
(2015)
36 ILJ 2273 (LAC)