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[2017] ZALCJHB 359
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR2355/14) [2017] ZALCJHB 359 (21 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR 2355/14
NATIONAL
UNION OF MINEWORKERS
First
Applicant
S
A WABILE
Second Applicant
and
THE COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
M
SOMAN N.O
Second Respondent
FIRST
URANIUM EZULWINI MINE
Third Respondent
Heard:
10 August
2017
Delivered:
21 September 2017
Summary:
Review application. No merit in the grounds for review. Application
dismissed.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicants seek to review and set aside an arbitration award issued
on 15 September 2014 wherein the Second Respondent (the
arbitrator)
found the Second Respondent’s (the employee) dismissal fair and
dismissed his case.
[2]
The Third
Respondent (the mine or employer) opposed the application.
[3]
The
employee was dismissed in September 2011 and his unfair dismissal
dispute was arbitrated in January 2012 and an arbitration
award was
issued wherein the employee’s dismissal was found to be unfair
and he was reinstated. The employer successfully
reviewed the
arbitration award and the matter was remitted for a hearing
de
novo.
The
dispute was arbitrated
de
novo
in
August 2014 and an arbitration award was issued on 15 September 2014
wherein the employee’s dismissal was found to be fair.
The
Applicants seek the review and setting aside of the second
arbitration award.
The
evidence adduced:
[4]
The issue
to be decided by the arbitrator was whether the employee’s
dismissal was substantively fair as he did not challenge
the
procedural fairness of his dismissal.
[5]
In order to
assess the arbitrator’s findings in respect of substantive
fairness and the award he issued, it is necessary to
consider the
evidence adduced.
[6]
The
employee was employed in October 2007 as a safety officer and he was
dismissed in September 2011 for reasons related to misconduct.
The
charge levelled against the employee was “Failure to
immediately report the contravention of non-negotiable standards
determined by the CEO in that on 30 August 2011 during your routine
inspection at 50 level 4 South you identified a tip area not
barricaded and a substandard grizzly (opening around the tip area)
but failed to immediately report it to the safety manager and
the CEO
as per the CEO’s instruction.”
[7]
The
employer’s safety manager, Mr Percival Mokone (Mokone),
testified and he explained that he is responsible for health and
safety issues at the mine. Mokone testified that in 2011 there were a
number of fatal injuries at the mine and the management was
duty
bound to take action as fatalities not only result in the loss of
life, but also monetary losses as the mine has stoppages
for a week
of two after the incident. The CEO and management documented a
procedure that was called ‘non-negotiable’
standards and
five critical issues were identified namely support standards, trucks
and tramming standards, winches and rigging,
ore pass and box holes,
ventilation and explosives. The document was negotiated and the
trade unions were part of drawing
of the document. Mokone explained
that all the employees were made aware of it and the fact that no
deviations would be allowed
and non-compliance with the standards had
to be reported to the CEO immediately so that he could direct action
to be taken. This
was all in an attempt to increase safety and avoid
further fatalities.
[8]
Mokone
explained that the employee in his capacity as safety officer was
part of drawing up the ‘non-negotiable document’
and this
is evident from the attendance register signed by the employee on 24
August 2011. The CEO gave a clear instruction on
24 August 2011 that
any person observing non-compliance with a non-negotiable procedure
must report it to the CEO immediately and
that disciplinary action
would be taken against any employee who did not report it to the CEO.
[9]
Mokone
explained that the employee was dismissed after he conducted an
inspection on 30 August 2011 and on 13 September 2011, when
they went
underground subsequent to another fatal accident at the mine, they
found a tip, which is an open excavation of about
3 metres wide where
broken ore is put into and transported from, which is normally
covered with a grizzly to prevent employees
from falling into it and
barricaded, not barricaded off and with an opening that a person
could fall into. Mokone explained that
they went back to the offices
to investigate and found that the employee observed the substandard
on 30 August 2011, as per his
report, but as a non-negotiable
standard it was not reported to the CEO immediately and therefore
disciplinary action was taken
against the employee.
[10]
Mokone
explained that the employee on 30 August 2011 identified that there
was a big opening around the tip area on the grizzly
and that the tip
area was not barricaded off. The recommended action to be taken was
for the opening to be closed and for the tip
area to be barricaded
off with chains. The recommended action would have been taken and the
issues rectified by 15 September 2011.
Mokone testified that a
barricade could be fixed on the same day and a grizzly, depending on
the availability of the material underground
and at the workplace,
could be fixed in a day or two. It was highly unacceptable that the
life threatening situation identified
on 30 August 2011 was only
fixed on 15 September 2011.
[11]
Mokone
reiterated that the instruction from the CEO was that in the event of
a non-negotiable standard, it should be reported to
him immediately
and the employee did not adhere to this clear instruction. The
employer has been consistent in applying the non-negotiable
document
and any employee found guilty of not applying the rule of
non-negotiable standards, was dismissed.
[12]
In
cross-examination it was put to Mokone that the employee formally
reported on the fact that the tip area was not barricaded off
on 30
August 2011 and that he appropriately reported his safety inspection
findings on that date. Mokone accepted that the report
may have been
written on 30 August 2011, but emphasized that it was never brought
to his attention on 30 August 2011, nor was it
immediately reported
to the CEO. Mokone saw the report for the first time on 13 September
2011, at the time of another accident
at the mine.
[13]
Mokone
explained that the employee’s duty was to immediately report
the non-negotiable standard and he did not do so, resulting
in
employees being exposed to the hazard related to the tip area for an
extended period. The non-negotiable standards had to be
reported
immediately to the safety manager and the CEO and that was not done.
[14]
The
employee testified that he was dismissed for not reporting a
contravention of a non-negotiable standard. He explained that on
30
August 2011 he went underground and did a routine inspection and
found that the tip area was substandard and requested the shift
boss
to have the tip area fixed. The shift boss indicated that the tip
area would be fixed as soon as material was available. The
employee
finished his rounds and went back to re-inspect the tip area and
found that the one segment of the grizzly that was missing,
was
replaced. He testified that the chain barricades were installed and
the grizzly was fixed and the area was declared safe. The
employee
then went to Mokone to discuss the report with him and after he was
satisfied, Mokone attached his signature to the report.
[15]
The
employee testified that there was no requirement for him to report to
the CEO and at the meeting where such an instruction might
have been
given, the employee arrived late and nothing was said to him about
reporting to the CEO.
[16]
The
employee testified that the tip area was fixed on 30 August 2011 and
it was possible that it was substandard again on 13 September
2011,
when Mokone inspected the area, as it was possible that the scrapper
which weighs 30 tons, had run over it again after 30
August 2011.
[17]
It is
evident from the transcribed record that material versions of the
employee’s evidence in chief had not been put to the
employer’s
witness in cross-examination, for example the fact that the issues
identified at the tip area were indeed fixed
on 30 August 2011 and
that the employee had a discussion with Mokone on the same date and
that the report was signed off and that
the area was declared safe.
Analysis
of the arbitrator’s findings and grounds for review
[18]
The
arbitrator accepted that the employee conducted a routine underground
inspection on 31 August 2011, that the employee identified
that the
tip area was not barricaded and that this was recorded in his report
but that it was not reported to the CEO. The arbitrator
further
accepted that the employee discharged his duties regarding the tip
area on 30 August 2011.
[19]
In his
analysis of the charge the employee was found guilty of and dismissed
for, the arbitrator considered that the employee was
not charged with
failing to discharge his duties, but that he was charged for failing
to immediately report the contravention of
non-negotiable standards
to the CEO.
[20]
The
arbitrator considered the Code of Good Practice in Schedule 8 of the
Labour Relations Act
[1]
(the Act)
in determining the substantive fairness of the employee’s
dismissal. The arbitrator firstly considered whether the
employee was
aware of the rule to immediately report any contravention of
non-negotiable standards to the CEO. The arbitrator found
it highly
improbable that the employee would not have been aware of the
requirement to report contraventions immediately to the
CEO. This the
arbitrator found to be the case for a number of reasons including
that the employee was a safety officer and by virtue
of carrying out
safety related duties at the mine, the employee would have been aware
of any policies, decisions or procedures
issued relating to safety in
the workplace, there were numerous accidents at the mine in 2011 and
it was undisputed that the CEO
and management identified
non-negotiable standards in an attempt to prevent further accidents
in the workplace and the employee’s
evidence during the
previous arbitration proceedings indicated that he never disputed
that he received the instruction from the
CEO. In fact, it was common
cause that the CEO had issued the instruction that the non-negotiable
standards had to be reported
to him and that the instruction was
given at a meeting where the employee was present.
[21]
The
arbitrator accepted that there was a rule or standard that the
employee had to report contravention of a non-negotiable standards
to
the CEO and that the employee was aware of the rule. The arbitrator
accepted that the unbarricaded tip identified by the employee
on 30
August 2011 was one of the non-negotiable standards to be reported to
the CEO and it was common cause that the employee did
not report this
to the CEO, which is the nub of the charge the employee was dismissed
for.
[22]
In
considering whether or not dismissal was an appropriate sanction, the
arbitrator considered that the rule was introduced as a
result of
numerous fatalities at the mine and that it was an extraordinary
measure taken by the CEO in an attempt to deal with
a difficult
situation and to prevent the loss of further lives. He found that a
tip area that was not barricaded was dangerous
as employees could
fall into the opening and had the CEO known of the opening of the tip
area, he could have intervened immediately
and ordered that the area
be secured without further delay. The employee was a safety officer
and in light of the fatalities at
the workplace, he did not act in
the best interests of the employer at the time. The arbitrator
accepted that the trust relationship
has broken down and cannot be
resuscitated.
[23]
The
arbitrator rejected the employee’s case that his dismissal was
premeditated and held that the employer acted consistently
in
applying the sanction of dismissal.
[24]
I have to
deal with the merits of the review application within the context of
the test this Court must apply in deciding whether
the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court very clearly held that the arbitrator's
conclusion must fall within a range of decisions that a reasonable
decision maker could make.
[25]
The
Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[3]
affirmed the test to be applied in review proceedings and held that a
piecemeal approach should not be followed. It held that:
“
In short: A
reviewing court must ascertain whether the arbitrator considered
the principal issue before him/her; evaluated
the facts presented at
the hearing and came to a conclusion that is reasonable.”
[26]
This
Court, sitting as a review Court, should not follow a piecemeal
approach but should consider whether the arbitrator dealt with
the
substantial merits of the case and whether holistically viewed, the
decision was reasonable based on the evidence that was
adduced.
[27]
It is in
this context that the grounds for review raised by the Applicants
must be decided.
[28]
The
Applicants’ founding affidavit contains a number of allegations
in respect of the arbitrator and the arbitration proceedings,
but it
is difficult to glean from the averments what the Applicants’
grounds for review are. In my view much of the allegations
are more
akin to an appeal than a review, other allegations are
unsubstantiated and vague and other allegations made are
inappropriate
and do not belong in an application for review. For
instance, the Applicants submitted that ‘the love the
commissioner displayed
in her awards towards the Respondent’ is
a cause for concern. This submission is not only unsubstantiated but
shows that
the Applicants have no idea what the test on review is and
what allegations should be made in a proper review application. The
Applicants have taken an immature and emotional approach, which is
evident in the language used and the averments made, which is
of not
much assistance to their application.
[29]
Be that as
it may, Mr Msimeki on behalf of the Applicants, filed heads of
argument wherein the grounds for review were dealt with.
It is
evident from the Applicants’ heads of argument that there are
three main grounds for review.
[30]
The first
ground for review is in respect of the arbitrator’s finding
that the employee was aware of the instruction issued
by the CEO to
report all contraventions of non-negotiable standards to him
immediately. The Applicants’ case is that this
finding stems
from a number of gross irregularities and misconduct committed by the
arbitrator. Those are that the arbitrator was
influenced and or
relied on testimony given at the first arbitration held on 25 January
2012, the arbitrator placed reliance on
the Labour Court judgment
which was not introduced as evidence in the arbitration proceedings
and the arbitrator ignored the employee’s
evidence in respect
of the reporting of non-negotiables to the CEO.
[31]
The
Applicants’ case is that the versions presented were mutually
destructive and that the arbitrator failed to appreciate
the weight
of the employee’s evidence when she made a finding that he was
aware of the CEO’s instruction. The arbitrator
should have
concluded that the employer had failed to discharge the onus to prove
on a balance of probabilities that the employee
was aware of the rule
to immediately report all contraventions of non-negotiable standards
to the CEO.
[32]
The second
ground for review relates to the arbitrator’s finding that she
accepted Mokone’s version that he signed the
report on 13
September 2011 and that the incident was not reported to Mokone on 30
August 2011 to be more probable. The Applicants’
case is that
the arbitrator committed a gross irregularity and or misconduct by
accepting evidence from the previous arbitration
award and by placing
reliance on the Labour Court judgment, which was not adduced as
evidence.
[33]
The
Applicants’ case is further that the versions presented were
mutually destructive and the arbitrator should have concluded
that
the employer has failed to discharge the onus to prove on a balance
of probabilities that Mokone only signed the report on
13 September
2011 and that the employee failed to report the incident to Mokone
and to the CEO.
[34]
In my view
the gist of the first and the second grounds for review is
essentially the same and in summary it is that the arbitrator
committed a gross irregularity or misconduct by accepting evidence
from the previous arbitration proceedings and by placing reliance
on
the Labour Court judgment and by ignoring the Applicants’
evidence in certain respects.
[35]
In casu
the
arbitration that took place in August 2014 was the second arbitration
as the same matter was arbitrated in January 2012. In
respect of the
first arbitration, evidence was adduced and an arbitration award was
issued wherein the evidence so adduced was
recorded. It is an
acceptable principle in the law of evidence that contradictions in
testimony could be canvassed during cross-examination
and evidence
adduced in previous arbitration proceedings, is evidence under oath
and may be relied upon to test credibility. The
arbitrator is
entitled to consider the portions of the record that were introduced
by witnesses, either in evidence in chief or
cross-examination, as
evidence.
[36]
In casu
the
version presented at the January 2012 arbitration was put to the
employee in his cross-examination and the employee was specifically
asked whether he agreed with the proposition that was put to him in
respect of the evidence and version presented at the previous
arbitration proceedings. It is evident from the transcribed record of
the proceedings that instead of allowing the employee an
opportunity
to respond to the proposition, his representative, Mr Zwane,
intervened and unjustly so and the arbitrator dealt with
the issue
and the employee never disputed the correctness of the version that
was put to him in respect of the previous arbitration
proceedings.
[37]
The mere
fact that the arbitrator considered or had regard to the evidence
adduced during the previous arbitration proceedings does
not
constitute a gross irregularity or misconduct and does not render the
award reviewable.
[38]
The Labour
Court judgment was included in the employer’s bundle of
documents used at the arbitration and it formed part of
the evidence
placed before the arbitrator.
The
arbitrator was entitled to accept the contents of the documentary
evidence placed before her, more so where the document is
a Labour
Court judgment which is a public document that needs no evidence to
support or justify its contents. Equally so can the
mere fact that
the arbitrator considered the content of a Labour Court judgment that
was placed before her not constitute a gross
irregularity or
misconduct that renders the award reviewable.
[39]
It is
evident from the arbitration award that the arbitrator did not solely
rely on the evidence of the previous arbitration proceedings
and the
content of the Labour Court judgment to make her findings, but it was
part of many factors that the arbitrator considered
and it was not
the only consideration that informed her decision.
[40]
The
Applicants’ case is also that the arbitrator ignored evidence
and should have found that it was not shown that the employee
was
aware of the rule to immediately report all contraventions of
non-negotiable standards to the CEO and should have found that
there
was no evidence to prove that Mokone only signed the report on 13
September 2011 and that the employee failed to report the
incident to
Mokone and to the CEO.
[41]
This
Court should not follow a piecemeal approach but should ascertain
whether the arbitrator considered the principal issue before
her,
evaluated the facts presented, dealt with the substantial merits of
the case and whether holistically viewed, the decision
was reasonable
based on the evidence that was placed before her.
[42]
I do not
intend to follow a piecemeal approach. A perusal of the transcribed
record, read with the findings made by the arbitrator,
shows that the
arbitrator considered the evidence that was adduced and that her
findings are not disconnected from the evidence,
but holistically
viewed, the arbitrator’s findings are reasonable and supported
by the evidence.
[43]
The third
ground for review is bias and in the heads of arguments the
Applicants did no more than to refer to a number of paragraphs
in the
Applicants’ founding and supplementary affidavits and to submit
that having acted as stated in the said paragraphs,
the arbitrator
created a reasonable apprehension of bias.
[44]
This Court
should not entertain unsubstantiated allegations of bias.
[45]
In their
heads of argument reference is made to additional grounds for review
as set out in certain paragraphs of the Applicants’
founding
affidavit. The only submission made in this regard is that the
additional grounds for review would be ‘addressed
during
argument.’ The submission so made indicates that the
Applicants’ representative had no appreciation for the
purpose
of filing heads of argument.
[46]
In
Early
Bird Farm (Pty) Ltd v Food and Allied Workers Union and others
[4]
the
Labour Appeal Court held that:
“
In this
appeal the respondents' attorney was required to file heads of
argument succinctly setting out the points to be argued at
the
hearing of the appeal. A document purporting to be heads of argument
was timeously filed on behalf of the respondents. However,
it was of
such poor quality that it can hardly be described as heads of
argument. This court could not derive any assistance from
that
document nor was the attorney helpful to the court at the hearing of
the appeal. Properly prepared heads of argument play
an important
role in the adjudication of a matter - especially in an appeal court.
Useful heads of argument cannot be prepared
unless the person
preparing them has taken the trouble to study the record and has done
such research on the legal issues raised
by the matter or appeal as
may be necessary. Where heads of argument are drawn without the
necessary understanding of the facts
or the evidence in the record
and/or without doing the necessary research on the legal issues that
arise in the appeal, such heads
- and it is very easy to recognize
this in heads of argument - are bound to be of no assistance to the
court hearing the appeal.
That kind of conduct on the part of a
practitioner is unacceptable. A practitioner should not accept
instructions or a brief in
a matter if he does not have the time to
do justice to a client's case. It is inexcusable for a practitioner
to file heads of argument
the contents of which bear no relation to
the issues raised.
In this case the
document purporting to be heads of argument filed by the respondents'
attorney was totally unacceptable”.
[47]
In
Minister
of Safety and Security v Mashego and others
[5]
it was held that
“
Its is not
acceptable that practitioners should merely send up heads which are
not helpful, which do not cite authorities and which
suggest
hurriedness of preparation. Counsel draw heads for the purpose of
assisting the court”.
[48]
In
casu
the
heads of argument prepared by Mr Msimeki showed that he has not
properly researched the topics he addressed, he has not put
in any
effort to substantiate the grounds for review and in this regard the
heads of argument were of little or no assistance to
this Court. I
have already alluded to the fact that the Applicants’ review
application was drafted in a manner that made
it difficult to
understand what the grounds for review were and this is a case where
the heads of argument should have assisted
this Court in analyzing
and addressing the grounds for review. The grounds for review that
were identified in the heads of argument,
were merely mentioned
without any legal argument to support and substantiate the grounds
for review.
[49]
In respect
of the issue of bias as well as ‘additional grounds for review’
no submissions of substance are made. In
fact, the heads of argument
contained no more than references to paragraphs in the Applicants’
affidavits, which is not acceptable.
In heads of argument one would
expect well formulated legal arguments, references to the transcribed
record and relevant authorities
and not references to paragraphs in
affidavits. More bizarre is a statement that these would be addressed
in argument, when the
heads of argument are supposed to be the
argument.
[50]
The
grounds for review relating to bias and the other unidentified
‘additional grounds for review’, are unsubstantiated
and
without merit.
[51]
The
ultimate question is whether holistically viewed, the decision taken
by the arbitrator was reasonable based on the evidence
placed before
her.
[52]
Having
considered the evidence adduced at the arbitration proceedings, the
findings made by the arbitrator and the grounds for review
as raised
by the Applicants, I am satisfied that the arbitrator's findings and
conclusion fall within a range of decisions that
a reasonable
decision maker could make.
[53]
The award
and the findings contained therein are reasonable and are not to be
interfered with on review.
[54]
In respect
of costs, the Applicants left the issue in the hands of this Court
and the Third Respondent submitted that costs should
follow the
result. I can see no reason to deviate from the general rule that the
costs should follow the result.
[55]
In the
premises I make the following order:
Order:
1.
The
application is dismissed with costs.
__________________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Advocate Nyangiwe
Instructed
by:
Msimeki Attorneys
For
the Third Respondent: Ms
Mthalane of Solomon Holmes Attorneys
[1]
Act 66 of 1995.
[2]
(
2007)
28 ILJ 2405 (CC) at para 110.
[3]
(2014) 35 ILJ 943
(LAC).
[4]
(2004)
25 ILJ 2135 (LAC)
at
para 50.
[5]
(
2003)
24 ILJ 1690 (LC).