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[2017] ZALCJHB 447
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Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v Commission for Conciliation, Mediation and Arbitration and Others (JR2265/14) [2017] ZALCJHB 447 (1 December 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JR2265/14
In
the matter between:
EXXARO
COAL MPUMALANGA (PTY) LTD
MATLA
COAL
APPLICANT
And
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
FAITH
GUMEDE
N.O.
SECOND RESPONDENT
NUM
OBO PETROS
MOYANA
THIRD RESPONDENT
Heard:
12 JULY 2017
Delivered
:
01 DECEMBER 2017
JUDGMENT
THOMPSON,
AJ
Background.
[1]
This is an application seeking condonation for the late filing of the
answering affidavit by the Third Respondent. There is
also an
application seeking to review and setting aside of the arbitration
award issued by the Second Respondent under case number
MB4032/14 on
the 15
th
October 2014.
[2]
I shall deal with the condonation. The Third Respondent states that
the Applicant’s Rule 7A (8) notice was not served
on the
Respondent but on the Trade Union. The answering affidavit is six
months out of time. The Third Respondent also argued that
the service
was not proper as it was served via email and that the notification
in terms of Rule 7A (8) is defective as it does
not state that the
Applicant stands by its founding affidavit.
[3]
Clearly one cannot automatically assume that a Trade Union is
representing a party after the arbitration process. One would
also
expect a Trade Union to inform the Applicant’s Attorney of its
status after receiving such a notification. The date
of service on
the Third Respondent is the applicable date.
[4]
The wording of Rule 7A (8) is clear that either (a) a notice or
accompanying affidavit or (b) deliver a notice that the Applicant
stands by its notice of motion. In
Naidu v Ackerman’s (Pty)
Ltd [2000] 9 BLAR 1068 (LC),
it was held that the purpose of the
Rule 7A(8) ‘is to allow a litigant…where no written
reasons have been given prior
to the institutional proceedings to
substitute, amend, vary, add to the grounds of review once the
written reasons and or record
is filed.’
[5]
The notice complies with the requirements of the Rule 7A (8) (b). I
am of the view that the Applicant contributed to the Third
Respondent’s lateness by not establishing whether the Union was
authorised to accept service of the application. Having considered
the merits l find that condonation should be granted.
Review.
[6]
This matter has a long history. The Third Respondent was employed by
the Applicant as a boiler maker. He was dismissed after
an incident
which according to the Applicant breached the Mine Health and Safety
Code. The Third Respondent was found guilty at
an internal
disciplinary hearing and a dismissal followed. The Applicant argued
that the Applicant had a zero tolerance for breaching
of the Mine
Health and Safety Rules. The Third Respondent was performing work on
hand rails between two conveyer belts which were
in motion.
[7]
The Second Respondent determined in her arbitration award that
the dismissal was procedurally fair but substantively unfair.
The
arbitrator based her finding of substantive unfairness, on the Third
Respondent’s evidence that Section 8.9(1) (b) of
MHSA was not
applicable because the Third Respondent had not worked on the
conveyer belt. She found that the structure was independent
of the
conveyer belt. She also found that there was no rule that utterly
stipulated how far approximately the Applicant was forbidden
to work
from a moving conveyer belt. The arbitrator also found that the
conduct was not as serious as perceived by the Applicant.
[
8]
The crisp issue which the Arbitrator had to decide on the evidence
was whether the employee had breached the MHSA by not turning
the
conveyer system off before commencing work.
[9]
The Attorney for the Applicant argued that Mr Venter, the Chief
Safety Officer testified in the arbitration proceedings. He
testified
that on the 24
th
of October during a Labour Audit he was
accompanied by an auditor at the plant and they saw the Third
Respondent working between
two conveyer belts whilst the conveyer
belts were in motion and this breached the regulations.
[10]
It was argued that the Arbitrator’s conclusion that the
employer’s failure to have a rule which stipulates
the distance
prohibiting workers from working in the vicinity of a moving conveyer
belt is misconceived. The question an Arbitrator
in these
circumstances should consider is whether there was a breach of the
prevailing regulations and managerial instruction stating
that (i)
“no employee may work on any part of any conveyer system while
it is in motion.’ This question has to be answered
in the light
of the evidence led and including observations from the
inspection
in loco.
[11]
The Applicant’s Attorney further argues that the evidence of
Venter is clear when he testified ‘I would say that
the
installing structures onto the belt structure itself is part of
repair work and being on the structure itself that is why it
comes
into play.’ He further testifies ‘No, because the
structure that he worked on was on the moving conveyer belt
structure
itself.’
[1]
[12]
The Attorney for the Applicant further argued that the transgression
was picked up by the auditor whilst completing this surveillance
audit and it was reported in the audit report.
[13]
The Third Respondent’s Attorney argued that the matter is not
complex and the crux of this matter is whether the hand
rail formed
part of the platform or the conveyer belt. He argued that the
evidence is clear that the hand rail is not part of the
conveyer
belt.
[14]
The Arbitrator, together with the parties conducted an
inspection
in loco
. No evidence has been recorded during the inspection. I
find it unusual that parties were not allowed to ask questions,
illustrate,
point out during the
inspection in loco.
No
evidence is recorded other than mention made of it by the Arbitrator
in her award. She states that it was observed that the
structures are
not inter-reliant. The witnesses do not testify in any significant
detail relating to the obvious dangers. They
also do not lead
evidence as to the proximity or distance where the Third Respondent
was holding the hand rails in relation to
the moving conveyer belt.
Nor have the parties provided any photographs as to illustrate what
had been observed at the
inspection in loco.
The Applicant
argues that Venter’s evidence, by virtue of his position as
chief safety representative, should be accepted.
The Third
Respondent’s argument is on strict interpretation of the
managerial instruction and the MHSA that he was not working
on the
conveyer belt system. The Arbitrator was confronted with two
contradictory versions. On the one hand the evidence of Venter,
an
expert witness by virtue of his position as the Chief Safety Officer
who testified that the employee’s conduct transgressed
the
Safety Regulations. On the other hand, the evidence of the employee
was that he had not breached the Safety Regulations as
he was not
working on the structure. The Arbitrator oddly ignores the evidence
and entry in the audit report following an inspection
by the Safety
Inspector from Department of Mineral Resources. On discovering the
Employee working on the structure during the inspection,
the external
inspector ordered that the employee cease his work and return to the
workshop. The arbitrator does not deal with the
reason for the
rejection of the expert witness as largely collaborated by the
Department of Mineral Resource’s audit report.
This is
obviously wrong and on this basis the arbitration award stands to be
reviewed and set aside.
Order.
1. The arbitration
award dated 15 October 2014 under case number MB40321/14 is hereby
reviewed and set aside.
2. The Applicant’s
dismissal was both procedurally and substantively fair.
3. There is no order
as to costs.
______________
THOMPSON
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: SHEPSTONE &
WYLIE ATTORNEYS
For
the Respondent: E.S MAKINTA ATTORNEYS
[1]
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