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[2017] ZALCJHB 211
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Sibanye Gold Limited (Kloof Division) v Dlamini and Others (JR2523/13) [2017] ZALCJHB 211 (31 May 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case no: JR 2523-13
In
the matter between:
SIBANYE
GOLD LIMITED (KLOOF DIVISION)
Applicant
and
JOSEPH
DLAMINI
First Respondent
SIMON
DUMISA MALINGA
Second Respondent
NUM
Third Respondent
CCMA
Fourth Respondent
THEMBA
CEDA
N.O.
Fifth Respondent
Heard:
9 February 2017
Delivered:
31 May 2017
JUDGMENT
WHITCHER
J
[1]
This is an opposed application to review and set aside the
arbitration award issued by the Fifth Respondent
[1]
,
and substituting the award with an order that the First and Second
Respondents’ dismissals were substantively fair; alternatively,
remitting the matter to the CCMA for determination by a different
commissioner (with costs).
[2] At the arbitration,
Mr S Khubeka, the Mining Manager, and Mr K Stead, the Senior
Operations Manager testified on behalf of the
Applicant. Mr Dlamini
and Mr Malinga testified on their own behalf. On the instance of the
Commissioner, on behalf of the employees,
Mr Roodt, who had also been
dismissed was called to the arbitration to give evidence.
[3]
The Applicant, with reference to the record of the proceedings set
out in its pleadings and heads of argument the extensive
evidence led
at the arbitration. What follows and is applied, are summaries
thereof where relevant.
[4] The Applicant
conducts mining operations on a two shift system i.e. dayshift from
05h00 to 15h00 and nightshift from 21h00 to
05h00. Malinga was
employed as the Dayshift Miner and Dlamini as the Dayshift Supervisor
for the working place in issue in this
case. The mining operations
commences with the dayshift, who are responsible, under the direction
and supervision of a Dayshift
Miner, for, amongst others, the
installation of permanent support structures in the working place and
blasting. After the working
place has been blasted on dayshift, the
nightshift employees enter the workplace to conduct cleaning
operations i.e. they remove
the blasted rock. The nightshift install
temporary support but they are not responsible for the installation
of permanent support.
Dayshift Supervisors are statutory appointments
in terms of the MHSA. A Dayshift supervisor is appointed for
particular working
areas. Each working place, in turn, is allocated
to a Miner who reports to the Dayshift supervisor. It is the
responsibility of
the supervisor to ensure that the working places
assigned to him comply with the applicant’s safety standards,
to visit each
working place in his section within 2 days of a blast
and other working places at least once a week, to satisfy himself
(either
by way of consultation with the Miners appointed in the area
or with personal inspections) that work is proceeding safely in
accordance
with the applicable rules.
[5] On 5 September 2011,
towards the end of the nightshift an accident occurred at a working
place (“the working place”)
which fell under the
responsibility of Malinga and Dlamini during the dayshift. The
accident resulted in the death of an employee.
[6] Khubeka testified
that an inspection
in loco
revealed that the working place was
in a serious substandard condition. He described these substandards
in detail and corroborated
his evidence with reference to a
surveyor’s diagram. Stead and Khubeka explained why the
identified substandards constituted
serious safety infractions which
had contributed to the fall of ground.
[7] Following the
inspection, disciplinary proceedings were instituted against eight
employees: Dlamini (the Dayshift Supervisor),
Malinga (the Dayshift
Miner), Roodt (the Dayshift Mine Overseer), the Nightshift Production
Supervisor, the Acting Nightshift Production
supervisor, the
Nightshift Team Leader, the Nightshift Miner and the Nightshift
Production Supervisor.
[8]
In summary, both Dlamini and Malinga were found guilty of failing to
ensure that proper support structures were installed in
the working
place, more particularly that 47 elongates were missing and skeleton
packs were not installed correctly, of failing
to comply with the
Mine Standard for mine steep stoping and failing to comply with the
Mine’s special instructions that the
panel face must be
corrected and maintained in a straight line. Malinga was found guilty
of failing to comply with the Mine Standard
relating to operation of
a scraper winch. The applicant extensively traversed all the charges
in its evidence as follows.
Failure by Malinga and
Dlamini to install 47 (forty seven) elongates
[9]
Elongates are permanent support units used to support the hanging
walls which in turn stabilises the newly exposed ground after
blasting. The Miner (Malinga) was responsible to mark the hanging
wall to indicate where elongates are to be installed. It was
the
responsibility of Malinga and Dlamini to ensure that elongates were
installed in the working place in accordance with the applicable
standards. A Rock Engineer’s report dated 12 August 2011,
approximately 3 (three) weeks prior to the fatal accident, recorded
that
the
e
longate support was not installed as per mine
standard
and instructed that this must be rectified. The
instructions were noted by Malinga and Dlamini. Furthermore on 2
September 2011,
3 (three) days prior to the fatal accident, Dlamini
recorded instructions in his logbook to install elongates. At the end
of the
shift, Malinga had confirmed that elongates had been installed
as per the Applicant’s standard.
[10]
On 5 September 2011, the inspection revealed that 47 elongates were
missing. It was Dlamini’s and Malinga’s
version
that all elongates were installed but that the scraper winch used on
the night shift took out the elongate support. It
was put to
them that this version is completely improbable in light of the fact
that the elongates were missing – not broken
or damaged, i.e.
never installed. If the scarper winch used on night shift took
out the 47 (forty seven) elongates, the damaged
elongates would have
been found in the working place after the fatal accident. Elongates
are installed as the face advances, per
blast. The fact that 47
elongates were missing indicates that 3 (three) to 4 (four) face
advances occurred without any elongates
being installed. Moreover,
the appropriate elongate support is designed to support 20 (twenty)
tonnes of weight. The portion of
rock that fell down during the fall
of ground which caused the fatality weighed approximately 5 (five)
tonnes.
Failure by Malinga and
Dlamini to install skeleton packs
[11]
Packs are permanent support used to support the hanging wall behind
the face and to stabilize the immediate hanging wall beam
which in
turn stabilizes the newly exposed ground after blasting. The Rock
Engineer’s report recorded that
pack support above the
cross-cut was not built as skeleton packs
and instructed Malinga
and Dlaimini to ensure that
skeleton packs built above the x/cut
.
On 12 August 2013, approximately 3 (three) weeks prior to the fatal
accident, Dlamini had given instructions to the crew (and
specifically to Malinga) to install a skeleton pack in the working
place. On 5 September 2011, the inspection revealed that the
skeleton
pack required above the cross-cut had not been built and installed.
Failure by Malinga and
Dlamini to comply with the standard for mine steep stoping
[12]
It was the duty of Malinga and Dlamini to ensure that steep area
controls are implemented to prevent any rocks from inadvertently
falling or rolling down and striking employees walking or traveling
in the gully. The inspection revealed that there were no steep
stoping controls in place in the working place at the relevant
portion of the gully and above the cross cut.
Dlamini’s
failure to comply with instruction relating to face shape
[13]
A risk assessment conducted in the working place on 23 May 2011,
approximately three and a half months prior to the fatal accident,
recorded that the face shape was not straight, and issued a special
instruction to
correct and maintain the face shape
. If the
face shape is not straight, it results in seismic stresses on the
face, which could cause falls of ground. Both Dlamini
and Malinga
signed receipt of the special instruction. On 12 August 2011, the
Rock Engineer’s report recorded that the
panel face shape
was [still] not straight
and instructed it to be rectified. It
would have been rectified within 1 or 2 blasts. On 5 September 2011,
when the fatal accident
occurred, the panel face shape was still
irregular.
Malinga’s
failure to comply with the standard for operating a scraper winch
[14]
A scraper winch is used for cleaning operations and is rigged to the
hanging wall of the area being cleaned with ropes. The
nightshift
personnel rely on the drilled holes, made by the dayshift, to rig the
scraper winch. The Dayshift Miner marks the position
of the holes to
be drilled. The inspection revealed that due to the irregular face
shape, the scraper winch could not operate in
a straight line
resulting in Dlamini and Malinga “
making a plan
”
and having intermediate and irregular holes drilled. In addition,
after the end of the day shift, Malinga also failed to
install the
“
No Go Zone
” barrier.
[15]
Clearly, in light of the above evidence, the Applicant substantiated
all the charges levelled against Malinga and Dlamini.
The
Commissioner, however, did not explicitly make a finding in respect
of each charge against each of them, or deal with each
charge in a
way that his findings in respect of each charge can be easily deduced
from a perusal of the award. The Commissioner,
instead, found that
the Applicant failed to prove that Dlamini and Malinga were guilty of
misconduct on the basis of the following
defence advanced by the
Respondents, that:
(a)
The fatal accident occurred during the nightshift
and they cannot be held responsible for the accident as they worked
on the dayshift.
(b)
The nightshift employees had deemed the working
place safe enough to work in.
(c)
They had attempted to comply with the
recommendations of the Rock Engineer’s report but Khubeka had
instructed them to continue
with the blasting operations.
(d)
Malinga was under pressure in that he was
responsible for 3 work places which were far apart.
[16] I agree with the
Applicant that in failing to make a finding on each of the charges on
the basis that Dlamini and Malinga cannot
be held responsible for the
accident as it had occurred on the nightshift, the Commissioner
disregarded the following material
evidence: (1) Dlamini and Malinga
were not charged with causing the accident, but with failing to
correct the substandards identified
in the workplace where the
accident had occurred, (2) the rectification of the substandards
addressed in each of the charges fell
within the responsibility of
the dayshift, (33) the substandards in question contributed to the
ground fall, and (4) the Applicant
took disciplinary action against
the entire supervisor team on dayshift and nightshift.
[17] In finding that
Malinga was under pressure because he was responsible for 3 working
places which were far apart, the Commissioner
failed to appreciate
that on raising a particular defence, an evidentiary burden falls on
the employee to establish that his version
is more likely. If the
Commissioner had properly appreciated this evidentiary rule, he would
have found that all Malinga had offered
were unsubstantiated
assertions. He failed to disprove Kubeka and Stead’s testimony
that the distances between the working
places could be covered
without undue exertions because the cross cuts, connecting the
working places, are next to each other and
that Malinga could have
visited all his sites within 40 minutes. Roodt confirmed that a miner
could be appointed for more than
one working area provided that he
could visit the working places within 40 minutes. At no stage did
Roodt categorically or with
substantiating factors testify that it
would have been impossible for Malinga to attend the workings areas
in the time periods
and manner asserted by Khubeka and Stead. Roodt
also conceded that he had appointed Malinga for the working places.
In addition,
it was confirmed by Mr Stead that Mlinga had team
leaders to assist him in the carrying out of his duties, which
enabled him to
fulfil his duties pertaining to the workplaces. In any
event, even if Malinga did not have Team Leaders to his disposal,
Malinga
was trained as a Panel Miner, which means that he was trained
to supervise a working place without any Team Leaders. Malinga was
therefore trained to operate his crew and give the necessary
instructions without any Team Leaders.
[18]
In any event, as submitted by the Applicant, at best for Malinga, a
correct finding that he was overworked in his capacity
as a Miner was
relevant to sanction and not to the issue of whether he was guilty of
the charges levelled against him.
[19]
In finding that the nightshift employees deemed the working place
sufficiently sage to work in, the Commissioner failed to
take into
account that the inspection revealed that the working area was not in
fact safe. Moreover, the Applicant also took disciplinary
action
against the nightshift supervisory employees for not complying with
safety standards.
[20]
In finding that the Respondents had attempted to comply with the
recommendations of the Rock Engineer’s report but Khubeka
had
instructed them to continue with the blasting operations, the
Commissioner here again failed to appreciate that the evidentiary
burden lay with the Respondents. If he had so appreciated, he would
have been alive to the fact that this assertion was not reliably
established by the Respondents.
[21]
During Khubeka’s cross-examination, it was put to him that he
had instructed the Respondents to stop addressing the substandards
identified in the reports and blast the (sub-standard) panel, and to
that end, had promised them overalls. Khubeka admitted that
the
Respondents had raised the issue regarding overalls with him, and
admitted that he would have discussed blasting of that panel
with
them. He, however, vehemently denied any suggestion that he had asked
or instructed them to blast a panel that was sub-standard,
or that he
asked them to stop addressing the sub-standards identified by the
rock engineer and risk assessment reports, and start
blasting
instead. The Applicant demonstrated that the allegation put to
Khubeka lacked any degree of specificity or particularity
and was
then abandoned for the remainder of Khubeka’s lengthy
cross-examination.
[22]
Roodt testified that he had stopped the workplace, and that Khubeka
did not agree with his decision. The matter was escalated
to Mr.
Stead, who instructed Khubeka to do a risk assessment. Roodt and Mr.
Stead then discussed how the workplace would be rectified.
He
testified that Mr. Stead was not satisfied with Roodt’s
suggested time frame for fixing the workplace. These allegations
by
Roodt were never put to Khubeka and Stead. In any event they do not
add up to an allegation and proof that, on Khubeka’s
instructions, the correction of the substandards were stopped in
favour of continued blasting operations. Even Roodt’s hearsay
allegations regarding a meeting Khubeka had with the Respondents did
not indicate same.
[23] The Commissioner at
the end of Roodt’s testimony put the following to Roodt:
“
But just to establish one
thing. It will appear that you insist that the accident may have
occurred as a result of prioritizing
production over the work
conditions. Because you say management kept on pushing for
production.”
[24] Mr Roodt testified
as follows:
“…
yes it
was difficult as the Manager: Operations, he also wanted his
production. So it was a continued struggle to keep the workplace
stopped and then the other side they wanted the workplace to produce,
so over all, I think it was us miners, and from the other
side,
because of the pressure for production. Management that was pushing
for production
.”
[25]
As submitted by the Applicant there was no basis for the
Commissioner’s question because
Roodt had never suggested prior
thereto that the accident had occurred as a result of Khubeka or
Stead prioritizing production.
His answer further did not confirm the
suggested allegation made in the Commissioner’s question.
[26]
Had the Commissioner taken into account all the above evidence and
considerations, he would in all probability have found that
the
Respondents were guilty of all the charges levelled against them and
that they had not established any defence which discharged
their
guilty.
[27]
In light of the above, the decision of the Commissioner is
prima
facie
unreasonable. The question is whether there is an
evidentiary basis to displace the prima facie case of
unreasonableness. In my
view, there does not exist another
evidentiary basis to displace the prima facie unreasonableness of the
decision. The defence
proferred had no sufficient reliable
evidentiary basis to discharge the allegations in all of the charges
levelled against the
Respondent. Basically, on the evidence, the
decision reached by the Commissioner was
incapable
of being
reached by a reasonable arbitrator.
[28]
Finally, and relevant to the above, I agree with the applicant that
the reliance of the Respondents on the DMR report is misplaced
as it
is a report of a different forum, with a wholly different task. The
Applicant was entitled to independently investigate the
conditions in
the working area, and determine whether there had been a
contravention of its workplace standards and instructions.
Dlamini
and Malinga were charged with failure to comply with the Applicant’s
standards, procedures and instructions. The
mere fact that an
employee’s conduct or omission may not be viewed as a
contravention of the MHSA, does not mean that the
same employee is
not guilty of contravening a standard or instruction from his/her
employer.
[29]
I do not consider that a cost order would be appropriate. The
Respondents at the arbitration raised a defence which, if it
had been
established, would have been relevant to the outcome of the
proceedings.
Order
[30]
The arbitration award issued by the Fifth Respondent is aside on
review and substituted with an award that the dismissal of
the First
and Second Respondents was substantively fair.
[31]
There is no order as to
costs.
________________________________
Whitcher J
Judge of the Labour Court
of South Africa
APPEARANCES:
For
the Applicant: Adv R Itzkin, instructed by Edward Nathan Sonnenbergs
Inc
For
the First, Second and Third Respondents: Mathobi Attorneys
[1]
CCMA case number GAJB8848-12.