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[2018] ZALCJHB 21
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Shanduka Coal (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (CCMA) and Others (JR725/15) [2018] ZALCJHB 21 (30 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 725-15
Not Reportable
In
the matter between:
SHANDUKA
COAL (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION (“CCMA”)
First Respondent
COMMISSIONER
ABEL VENTER
N.O
Second Respondent
THE
NATONAL UNION OF MINEWORKERS (“NUM”)
Third Respondent
N
GAMA
Fourth Respondent
F
KHUMALO
Fifth Respondent
P
KHUMALO
Sixth Respondent
S
NETSHIAVHA
Seventh Respondent
Heard:
24 August 2017
Delivered:
30 January 2018
JUDGMENT
WHITCHER,
J:
Introduction
[1]
The
applicant seeks to have reviewed and set aside Commissioner Venter’s
award that the dismissal of the fourth to seventh
respondents (“the
employees”) was substantively fair and the applicant must
re-employ them with effect from 1 April
2015.
Evidence
led at the arbitration
[2]
The
employees were charged as follows:
“
Non-adherence
to safety rules, or procedure in that on 12 November 2014, you
offloaded coal from C2 conveyor belt, no risk assessment,
no lock-out
was done before commencement of the work and no permit to work
heights was granted, as well as failure to put on safety
harness”.
.
[3]
The charges
were preferred in accordance with clause 4.1.7 of the internal
disciplinary code which stipulates that any “
failure
to wear protective clothing or to use safety equipment or
non-adherence to safety rules or procedures”
attracts a sanction of dismissal even for the first offence.
[4]
Following
disciplinary enquiries, the employees were found guilty of the charge
and dismissed on 5 December 2014.
[5]
The
applicant,
via
its Mine Safety Superintendent, M Allen and its Safety Officer, Helen
Malindisa, led evidence to the effect that when employees
are
required to work on conveyor belts, they are required to undertake,
inter
alia
,
the following:
(i)
Carry out a
risk assessment on the work to be done. The risk assessment is to be
in the possession of the employees working on the
conveyor belt at
all times.
(ii)
The
employees are then to lock out the conveyor belt by placing their
locks in a designated area and recording the correct information
on
the lockout tags.
(iii)
Ensure the
field isolator is turned into the
off
position.
(iv)
Wear safety
harnesses when working at heights.
[6]
It was
common cause that each of the employees was well aware of the rules
and trained on the Mine’s health safety procedures,
including
those working on conveyor belts. It was also common cause that the
issue of health and safety is of paramount importance
in the Mine
pursuant to the stringent prescripts of the MHSA.
[7]
Evidence
was led that, on 12 November 2014, between 3 and 3.30pm, the
employees were observed by the Mine’s Safety Officer,
Helen
Malindisa, committing breaches of the abovementioned safety
procedures whilst offloading coal and working on the C2 conveyer
belt.
[8]
Her first
observation was that the employees were working without safety
harnesses in an area which required them to utilise safety
harnesses.
When she approached the work site, they jumped off the conveyor belt.
She told them to stop working and “follow
procedure”.
[9]
She went to
report the matter to the plant supervisor. When she did not find him
in his office, she returned to the site. On her
return she observed
that F Khumalo was again on the conveyor belt, so she photographed
the scene.
[10]
She
observed further breaches by the employees, which she also
photographed. They had not properly locked out the conveyor belt
and
recorded the correct information on the lockout tags. They had
further failed to ensure that the field isolator had been turned
into
the “off position” whilst they worked.
[11]
She
confronted the foreman on site, Netshiavha regarding the breaches and
asked to see the risk assessment.
[12]
Netshiavha
told her that the risk assessment was with Mr Mavimbela, the team
leader. She did not believe that a risk assessment
had been done
because he could not produce it on site, so she asked him to radio
the team leader to bring the risk assessment.
[13]
He told her
the store was closed and he had been unable to get safety harnesses.
[14]
She asked
him why “they” had not locked out, but he did not
respond. She then asked the employees for their lock and
tags. They
were unable to produce same.
[15]
While she
was inspecting the lockout breaches, Netshiavha, without any
explanation, got into his bakkie and drove away.
[16]
She
immediately reported the matter to the Health and Safety
Superintendent, M Allan and drafted a report the following morning.
[17]
M Allan,
the superintendent testified,
inter
alia
,
that safety harnesses are obtainable in various departments on site.
The applicant had consistently dismissed employees who had
been found
guilty of similar offences because safety was a huge issue within the
Mine. The seriousness of the employees conduct
and the importance of
following safety rules was borne out by the fact that two days prior
to the completion of the arbitration
proceedings, a sister operation
of the Mine had experienced a fatality as a result of an incident
involving unsafe working procedures
on a conveyor belt.
[18]
Netshiavha
testified on behalf of the employees as follows. He stated,
inter
alia
,
that:
(i)
The
employees were conducting work of a dangerous nature.
(ii)
He was
aware of the rules and safety precautions (described earlier on)
(iii)
In this
particular case, however, he claimed that the isolator had been
locked out.
(iv)
He
confirmed that the multilock had not been used on the day of the
incident.
(v)
He disputed
that all five employees were required to place their locks on the
multilock. He conceded that when Malindisa inspected
the area, the
field isolator had not been locked out.
(vi)
He disputed
that he had been trained to work at heights despite carrying a legal
appointment.
(vii)
A risk
assessment was done by F Khumalo. He left the work site to fetch it
from the team leader. However, when he returned, Malindisa
had
already left the work site.
(viii)
The purpose
of safety officers is to “nail employees” so Malindisa
should not be viewed as an objective and credible
witnesses.
(ix)
The photos
must have been taken on another day, because they were not properly
dated.
(x)
He was
working under pressure on the day in question. There was a shortage
of coal and the conveyor belt kept tripping.
[19]
The
applicant failed to bring this to my attention, but I note from the
record that an internal appeal process dismissed the charges
against
fourth, fifth and sixth respondents in respect of the failure to use
safety harnesses; ostensibly on the basis that they
had asked for,
but Netshiavha had failed to supply them, with safety harnesses. I
did not find a similar finding in respect of
Netshiavha.
The
award
[20]
The
Commissioner found that the dismissal of the employees was
substantively unfair and ordered the Mine re-employ them with effect
from 1 April 2015. The extent of his reasoning is as follows:
On a balance of
probabilities the version of the union is accepted.
Reasons:
The [employees] should
have been charged as per Section 4.1.1 of the code: … “Failure
to comply with safety measures
or engaging in any act which endangers
or may endanger the safety of fellow employees”
The Foreman was under
pressure with the coal burning and the belt tripping. He had a plant
attendant at the switch to assist when
they were trying to fix the
line.
A short cut was used
by the Foreman not to properly lock out the system but a dismissal of
the whole team was not appropriate in
these circumstances. A final
written warning should have been considered as per section 4.1.1.
As the hands of the
[employees] were not clean, re-instatement was not considered.
[21]
The
Commissioner, in effect, found that the employees had not complied
with the standard lockout procedures, but there was a justifiable
basis thereto so the employees should have been issued with final
warnings.
[22]
His view
that the employees should have been tried under section 4.1.1 was
really to accommodate his primary view - that dismissal
was not
appropriate in the circumstances of this case. Clause 4.1.1 provided
for a sanction less than dismissal, namely a final
written warning.
[23]
In arriving
at his findings, the Commissioner failed to take into account a
number of material rules and facts.
[24]
His
function was to determine whether the employees are guilty as charge
– not to decide which charge would have been more
appropriate.
[25]
It was
never disputed with the applicant’s witnesses that there was a
justifiable basis to avoid complying with the applicant’s
lockout procedures, despite the fact that it was obvious from their
testimony that they were in a positon to be cross-examined
on and to
provide a response to Netshiavha’s claim. Both of the
applicant’s witnesses testified on the technicalities
of
lockout procedures, working on conveyor belts and safety procedures.
[26]
Netshiavha
did not claim and prove that he was authorised to make such judgment
calls. As submitted by the applicant, once an employee
encounters a
particular situation, it is not upon him to unilaterally change the
rules.
[27]
There was
no evidence from the other employees as to why
they
had not complied with the lockout and isolator procedures. There was
no evidence to the effect that they were only acting under
the
instruction of Netshiavha, and, for some reason, were obliged to
comply with his instructions.
[28]
A perusal
of the risk assessment [which the employees claim was prepared prior
to them commencing the job], makes it clear that
the employees on
their own account were acutely aware that they were about to embark
on a dangerous job and that they had to use
correct equipment] and
safety measures. In this regard they wrote the following in the
section which asked them to list measures
to deal with the risks
associated with the dangerous task they were about to commence: “Use
the right equipment. Spider hands.
Use correct PPS. Always use
critical safety equipment. Lock out. Always apply lifesaving
behaviours”.
[29]
Malindisa
pertinently testified that when she approached the work site the
employees jumped off the conveyor belt, thus suggesting
that they
were aware that they were not complying with the safety rules.
They failed to dispute and/or explain their suspicious
behaviour.
[30]
She further
testified that she told them to stop working and comply with the
correct procedures, but when she returned she again
found F Khumalo
again on the conveyor belt, and they had still not complied with the
procedures.
[31]
Malindisa
further testified that, in terms of the rules, a risk assessment must
be completed before work commences and the assessment
must be on hand
at the site. The latter rule makes sense, because the assessment
contains what procedures should be followed in
a particular job.
Although Netshiavha claimed that a risk assessment was done, he never
disputed that it must be kept on hand at
the site. It is common cause
that there was no risk assessment at hand on site.
[32]
If the
Commissioner had applied his mind to the above factors, he would have
been constrained to find that:
(i)
the employees were proven guilty of a “
failure … to
use safety equipment or non-adherence to safety rules or procedures”.
In particular they were proven guilty of being in direct breach
of the safety rules regarding the lockout systems, isolator and
having no risk assessment at hand.
(ii)
there was no proof of a justifiable excuse for breaching same or
proof that the employees
were authorised to make such judgment calls.
(iii)
Netshiavha had provided no justifiable excuse for not providing
safety harnesses. Allan’s
evidence that safety harnesses were
available at the time of the incident was not disputed.
(iv)
there was no reason to deviate from the disciplinary code which
prescribes dismissal for
the above offences, considering the purpose
behind the rules, the fact that evidence was led on the potentially
disastrous consequences
that this type of misconduct could have on
the lives of the Mine’s employees and the fact that other
employees had been dismissed
for similar offences.
[33]
In the
premises, the Commissioner’s conclusion on the guilt of the
employees and the sanction was unreasonable – that
is, it
represented a decision so unfounded on the material before him that
no reasonable decision-maker could have reached such
a decision in
the circumstances of this case.
[34]
There is
one final matter. I mention it for the sake of completeness because
it does not impact on the above findings. It was common
cause that
the employees produced a risk assessment at their disciplinary
hearings and claimed it had been prepared at 3.10 pm
on the day in
question. I agree with the respondents that the fact that they only
produced it at the disciplinary enquiry is not
a sufficient basis for
a finding that they did not complete it before they commenced their
work on the day in question. The applicant’s
point in this
regard is therefore rejected.
Order:
[35]
In the premises, the following order is made:
1.
The
arbitration award issued by the second respondent is aside on review
and substituted with an award that the dismissal of the
individual
employees was substantively fair.
2.
There is no
order as to costs.
________________________________
B. Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Mervyn Taback Inc
For
the Respondents:
Mr Makoti
Instructed
by:
Mothobi Attorneys