About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 515
|
|
NUM and Others v Impala Platinum Ltd and Another (J 1022/16) [2017] ZALCJHB 515; (2017) 38 ILJ 1370 (LC); [2017] 6 BLLR 628 (LC) (5 January 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT
Case
no: J 1022/16
Not
Reportable
In
the matter between:
NATIONAL
UNION OF MINEWORKERS APPLICANT
MEMBERS
LISTED IN ANNEX 'A' 2ND
& FURTHER APPLICANTS
and
IMPALA
PLATINUM LTD
1sT
RESPONDENT
AMCU 2ND
RESPONDENT
Heard: 9 September 2016
Delivered:
5 January 2017
JUDGMENT
VAN
NIEKERK J
[1]
The applicants seek an order compelling the first respondent
("lmplats") to institute disciplinary proceedings on
charges of intimidation, in accordance with its disciplinary code and
procedure, against the persons listed in Annexure "B"
to
the Notice of Motion. (The 21 persons listed are members of the
second respondent (AMCU)). The applicants submit that lmplats
has
violated and continues to violate the freedom of association of the
persons listed in Annexure "A" (members of the
first
applicant (NUM), all of them former NUM shaft stewards) and that by
failing to take appropriate disciplinary action and failing
to
provide a safe working environment, Implats has breached their
conditions of employment.
[2]
Adv. Myburgh SC, for lmplats, did not pursue the issue of urgency, a
point taken in the answering affidavit and the heads of
argument.
Many of the incidents of which the applicants complain occurred some
years ago. The most recent incident occurred in
April 2016, a month
or so before the founding affidavit was filed. Although I have
reservations whether the application is in fact
urgent, intend to
deal with the merits of the application.
[3]
The relevant facts have their roots in the violence in the platinum
mining sector that commenced in 2012, and its aftermath.
Historically, NUM represented the vast majority of workers employed
in the platinum belt. NUM's levels of representivity have plummeted,
a development sparked, at least partially, by the dissatisfaction of
some union members concerning NUM's handling of the 2011 wage
negotiations. Soon afterward, AMCU commenced recruiting members in
the sector, with significant success. Indeed, the NUM's level
of
representivity at lmplats has dwindled to 3.38% of the bargaining
unit, while AMCU has attained majority status.
[4]
During the first half of 2012, a strike occurred at lmplats'
Rustenburg operation, a strike that was marred by acts of violence.
At this point, due to the volatility of the situation, it became
unsafe for NUM shaft stewards to report for duty - they reported
instead at the union's regional offices in Rustenburg. The strike
culminated in a mass dismissal and the subsequent reinstatement
of
employees, over a period, on the same terms and conditions that
prevailed at the time of dismissal. The shaft stewards returned
to
work only during October 2012 only to report to the regional offices
again during January. During the course of the next month,
February
2013, following a verification process, lmplats terminated its
recognition of NUM.
[5]
In July 2013, lmplats concluded a recognition agreement with AMCU,
which by that stage had secured majority representation within
the
bargaining unit. From September 2013 onwards, the former NUM shaft
stewards, including the individual applicants, have continuously
and
repeatedly been called on to report for duty at lmplats' Rustenburg
operations.
[6]
Between September 2013 and December 2015, a number of meetings took
place to address the situation at lmplats and in particular,
the
return to work of the former NUM shaft stewards, the assessment of
the prevailing risk and the terms on which a return to work
was to be
secured. These meetings variously involved the NUM, AMCU, and the
Department of Mineral Resources (DMR).
[7]
On 17 December 2015, an integrated security plan was accepted and
signed by lmplats, the NUM and the South African Police Services
(SAPS). On the same date, lmplats and NUM concluded a memorandum of
understanding (MOU) under the auspices of the CCMA, in which
the
return to work of the former NUM shaft stewards was addressed.
Amongst other things, the MOU provides that the shaft stewards
would
report for duty on 21 December 2015 and follow an agreed integration
process programme. It was also agreed that there would
be compliance
with the security plan facilitated by the SAPS and signed by both NUM
and lmplats. It was also agreed that the conclusion
of the MOU was
the final attempt at resolving the issue of a return to work. On 21
December 2015, a number of former NUM shaft
stewards returned to work
in accordance with the MOU. For present purposes, it is significant
that the MOU makes no reference to
the shaft stewards return to work
being dependent on lmplats instituting disciplinary proceedings
against any AMCU members.
[8]
A number of former shaft stewards failed to return to work, for
various reasons. In the present proceedings, NUM contends that
the
reasons are lmplats' failure to investigate incidents of violence and
intimidation and to discipline the perpetrators of that
misconduct,
and the failure by the SAPS to share its risk assessment report with
the NUM at the joint operations committee meetings
held on 5 and 8
February 2016. The SAPS had been unwilling to disclose the security
report because it considered it to be a classified
document. However,
assurances had been given to the NUM (and to lmplats) that the
security plan took the security assessment into
account.
[9]
On 9 March 2016 the general secretary of the NUM addressed a letter
to lmplats' chief executive officer. lmplats' response to
that
letter, on 5 April 2016, effectively drew a line in the sand in
relation to the return to work of the NUM shaft stewards and
put NUM
on notice that no further external interventions would be implemented
and that the company would result of the measures
available to it in
terms of its own procedures and the relevant legislation. NUM's
response was to file the present application.
[10]
The relevant legal provisions are well-established. An employer is
obliged at common law to take reasonable care of the health
and
safety of employees by providing them with a reasonably safe system
of work (see Freedland
The Personal Employment Contract
Clarendon
Press 2003 at p 141). Consistent with this view of the nature and
extent of the obligation, Brassey states that an employer
is obliged
to take action to combat labour unrest and any inter-union hostility
that discloses a potential for violence and injury
(see
Employment
and Labour Law
vol 1 at E4:33). He goes on to say the following:
"But,
it must be stressed, the standard is that of reasonableness, not
excellence, still less perfection, and employers are
not bound to
make the workplace fool proof. The law seeks to do no more than
strike an appropriate balance between the employer's
interests in
production and the employees in his self-preservation.
Absolute
safety under all circumstances is not guaranteed to the labourer by
the contract of employment. The employer is not an
insurer. He is not
bound to furnish the safest machinery, nor to provide the best
methods for its operation, in order to relieve
himself from
responsibility."
[11]
With that background, and turning first to the timing of the
incidents that form the subject of the present application, NUM
relies on nine specific incidents over a period of some four years in
support of the application. Four of these occurred in 2012
(the first
on 1 February 2012); one occurred in 2013; three occurred in 2014 and
one occurred in February 2016. In its answering
affidavit, lmplats
has usefully identified six categories into which the nine incidents
can be placed. The first category is one
in which lmplats
investigated the incident and decided not to institute disciplinary
proceedings due to lack of evidence. In the
second, lmplats
instituted disciplinary proceedings but found the AMCU members
concerned not guilty. In the third, the alleged
victim was a member
of AMCU and not NUM at the time, did not lodge a complaint and has
subsequently been dismissed. In the fourth
category, lmplats has no
record of the AMCU members who are alleged to have participated in
the incidents; and in the fifth, the
incident was never reported to
lmplats. In the sixth, I understand lmplats to concede that acts of
misconduct occurred during 2012/13,
a highly volatile period in the
platinum mining sector but for the reasons canvassed below, no
disciplinary action was taken against
the perpetrators.
[12]
In regard to the first to the fifth categories above, lmplats'
defence is apparent from the nature of the categorisation, and
no
more need be said of it. In regard to the sixth category, it is not
disputed on the papers of their lmplats advised NUM as early
as 2012
and consistently thereafter that it would not take disciplinary
action given the circumstances that prevailed at the time.
lmplats
advised NUM that it had waived its right to take disciplinary action
in relation to these incidents, and that it would
be unfair of it not
to do so. This position was stated during a number of meetings held
between 6 October 2014 and 16 February
2015. The minutes of the last
meeting perhaps best reflect lmplats' position. The meeting
concerned, amongst other things, a submission
tabled by the NUM to
the effect that Impala management had failed to take action against
employees who assaulted NUM members during
2012. Although in the
replying affidavit, some 'reservations' are expressed about the
minutes, their content is not disputed. The
minute reads as follows:
"Several
months after the assaults there were sporadic incidents of illegal
strikes and the situation remained highly volatile
as there was no
recognised union to hold accountable.
In
July 2013, AMCU was recognised and management has been in talks with
them about the return of former NUM shop stewards to the
operations
to which they indicated that they had no problems that refuse to have
formal meetings with the NUM to discuss the safe
return of former NUM
shop stewards to the operations.
It
is furthermore too late to commence with disciplinary action against
these employees as the doctrine of waiver applies. As discussed
during the previous meeting we waived our right to take action during
2012 due to the highly volatile situation prevailing back
then.
Furthermore
it would be impossible for the employer to argue that the working
relationship has broken down irrevocably and dismissal
will not be
fair under the circumstances, should the relevant section be a
dismissal.
It
would be destabilising to the operations to institute the
disciplinary actions at this late stage and it would also complicate
the reintegration of former NUM shop stewards to the operations.
[13]
It is apparent from the minute that NUM has been aware since at least
February 2015 of lmplats' position in regard to the reasons
for not
taking disciplinary action against members of AMCU for alleged acts
of misconduct committed some three years prior to that
date. But the
present application does not concern the prudence or otherwise of
lmplats' decision. NUM contends that the failure
to take disciplinary
action and to provide a safe working environment constitutes a breach
of the employment contracts of the affected
shaft stewards, and to
this extent, it is incumbent on NUM to establish that lmplats has
indeed committed a breach of contract
by failing to meet the required
standard of reasonableness.
[14]
I am not persuaded that NUM has succeeded in discharging this onus.
First, the facts disclose various interventions and other
efforts to
mediate between the parties conducted over a period of some four
years prior to the filing of the present application.
All of those
initiatives were directed at securing peaceful working conditions and
culminated in the MOU signed in December 2015.
That agreement, which
constitutes a collective agreement between NUM and lmplats, sets out
the final terms on which a return to
work by the shaft stewards would
be effected. As I have mentioned, it was not a term of that agreement
that instituting disciplinary
action was a condition of a return to
work, nor is there any plausible evidence to suggest that after
signature of the MOU, matters
deteriorated to the extent that the
safety of the shaft stewards was placed in peril. On the contrary, of
some relevance too is
the fact that no incidents of violence against
former NUM shaft stewards occurred after the conclusion of the MOU.
Three incidents
of threatening behavior and intimidation are recorded
in the founding affidavit, all of which fall into one the categories
one
to five identified above. It is also not disputed that on 21
December 2015, a number of NUM shaft stewards returned to work in
accordance with the MOU. In short, the applicant cannot credibly rely
on lmplats' failure to take disciplinary action against AMCU
members
arising out of incidents that occurred in 2012 as a basis for a
refusal to return work in 2016. This is particularly so
where in
addition to the reasons recorded above (i.e. the fact that NUM was
advised as early as 2012 of the reasons why disciplinary
action had
not been instituted and the terms of the MOU), some 33 out of 45 NUM
shaft stewards either never left work or have long
since returned to
work, where only one of the individual applicants was allegedly a
victim of the incidents complained of, where
of all the alleged
victims of the incidents complained of, only one remains in lmplats'
employ.
[16]
For the above reasons, in my view, lmplats took reasonable steps to
ensure the safety of the individual applicants. The facts
do not
disclose that lmplats acted unlawfully by failing to take
disciplinary action against the 21 members of AMCU listed in Annexure
B, or that its actions constituted a breach of the contracts of
employment of the individual applicants.
[17]
Finally, in relation to costs, the court is traditionally reluctant
to make orders for costs where parties are engaged in a
collective
bargaining relationship and where an order for costs may have the
potential to prejudice that relationship. This case
does not fall
neatly into that category, but in my view, the same principle ought
to apply.
I
make the following order:
1.
The application is dismissed.
ANDRÉ
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
REPRESENTATION
For
the applicants: Adv. JG van der Riet SC, instructed by Cheadle
Thompson and Haysom Inc.
For
the first respondent: Adv. AT Myburgh SC, instructed by ENS Africa
For
the second respondent: Adv. S Collett, instructed by Larry Dave
Attorneys