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[2018] ZALCJHB 260
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Exxaro Coal Mpumalanga (Pty) Ltd Matla Coal v NUM obo Stigling and Others (JR1288/12) [2018] ZALCJHB 260 (15 August 2018)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR1288/12
In
the matter between:
EXXARO
COAL MPUMALANGA (PTY) LTD MATLA
COAL
Applicant
And
NUM
obo STIGLING &
ANOTHER
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND
ARBITRATION
Second
Respondent
COMMISSIONER
LESLIE NTULI
N.O
Third
Respondent
Heard:
18 July 2018
Delivered:
15 August 2018
Summary:
Review application – award not one that another reasonable
decision maker could reach based on evidence – award
reviewed
and set aside
JUDGMENT
BESTER,
AJ
Introduction
[1]
This is an application in terms of section 145 of the Labour
Relations Act
[1]
(the LRA), to
review and set aside an arbitration award (“the award”)
made by the third respondent (the commissioner)
under the auspices of
the second respondent (the Commission for Conciliation Mediation and
Arbitration (CCMA)) under case number
MP6727-11 on 15 April 2012. In
the award the commissioner held that the dismissal of the members of
the first respondent (the employees)
by the applicant was
substantially unfair. The commissioner reinstated the employees with
limited retrospective effect. The procedural
fairness of the
dismissal was not challenged.
[2]
The applicant seeks that the commissioner’s award be replaced
with an order that the employees’ dismissal was fair.
[3]
The employees were dismissed by the applicant following a
disciplinary enquiry during which they were found guilty of
misconduct.
The misconduct entailed the employees’ failure to
adhere to safety procedures which resulted in an accident at the
workplace
of the applicant, a mining company which operates in a high
risk environment and is subject to strict compliance with safety
legislation,
- policies and - procedures. The incident occurred
whilst the employees were performing maintenance on a machine known
as a continuous
miner.
[4]
It is common cause that:
4.1 Ms Stigling was
employed by the applicant as an Electrician;
4.2 Ms Sibanyoni was
employed by the applicant as a Technician;
4.3 The applicant had a
rule in place regarding the electrical isolation and lock-out of
machinery prior to any work being conducted
on such machinery;
4.4 The employees had
knowledge of the rule;
4.5 The machinery was not
locked when work commenced on the machine.
[5]
The employees’ case before the commissioner was that:-
5.1 They had only
theoretical knowledge of the rule and no practical training;
5.2 The applicant acted
inconsistently;
5.3 The sanction of
dismissal was too harsh.
[6]
The union contended that the employees received no practical training
on the machines and were not given communication tools
or a radio at
the time of the incident.
[7]
The union further contended that the applicant acted inconsistently
because a driver (Mr. E Ngina), who was involved in a similar
incident, had not been charged with misconduct. In addition, another
employee (Mr. J Makula), who was present at the time of the
accident,
had the padlock but did not lock out the machine however was not
dismissed for misconduct.
[8]
The union lastly contended that the sanction of dismissal was too
harsh. The union confirms that these were the issues which
the
commissioner was called upon to decide.
[9]
In his award, the Commissioner held that the sanction of dismissal
was too harsh in the circumstances. In coming to this conclusion,
he:
9.1 Relied on the content
of an internal investigation report relating to training received by
the employees and based on this report
found that the employees
received no practical training and that no proof of practical
training was presented to the team that
produced the investigation
report;
9.2 Held that the
applicant did not lead evidence in rebuttal of the inconsistency
challenge;
9.3 Held that the
applicant failed to adequately address him on why dismissal was the
appropriate sanction for violation of company
rules, regulations and
procedures in circumstances where the disciplinary code provides for
a final written warning,
9.4 Held that the
applicant did not establish gross negligence on the part of Lucia
Sibanyoni,
9.5 Held that the
applicant failed to present evidence that the trust relationship
between the applicant and the employees had broken
down.
[10]
The applicant contends that the Commissioner committed a gross
irregularity by failing to have proper regard to common cause
facts
and evidence led by the applicant at the arbitration which, if had
considered such evidence, would have resulted in him coming
to a
different conclusion and finding that the employees was fairly
dismissed.
[11]
The facts and evidence in relation to practical training are as
follows:
11.1 The common cause
fact that the Employees had knowledge of the rule that machinery must
be locked out and electrically isolated
before being worked on and
was fully trained on the existence of the rule.
11.2 The evidence of Mr.
Greyvenstein that:
11.2.1
Ms. Stigling received on the job training on the lock-out procedure,
was qualified and declared competent;
11.2.2
Only qualified and competent persons who are artisans and
electricians by trade could do electrical isolation.
11.3 The evidence of Mr
Van Jaarsveld that:
11.3.1
Ms. Sibanyoni is a qualified artisan trained to do work on the
continuous miner and had worked on this machine long before
she
joined his department;
11.3.2
The duty to isolate machines was that of the electrical technician
and/or the conditioning monitoring artisan. Ms Sibanyoni
was the
conditioning monitoring artisan on the day of the incident and would
have been responsible for the isolation of the machine;
11.3.3
Ms. Sibanyoni attended and required an induction program for which
she received 98%. She also received practical training
on the job and
various on-site training courses as well as some courses outside the
mine;
11.3.4
he had personally provided her with training underground to show her
how the machine works and she had worked in the central
department
where the machines were assembled;
11.3.5
Ms. Sibanyoni received and signed for receipt of the relevant
Engineering procedures.
11.4 The evidence of Mr.
Roberts that:
11.4.1
He issued Ms. Stigling with her competency certificate which
indicates that she was conversant with the lock-out procedure
and
which certificate Ms. Stigling has signed;
11.4.2
A competency certificate is only issued when it has been ascertained
that the person it is issued to is a qualified artisan
and, for the
lock out procedure, a competent person means a person who is a
qualified artisan who has been trained to work on the
equipment
he/she is required to maintain.
11.5 The employees’
own evidence:
11.5.1
Ms. Sibanyoni confirmed that she had previously performed a lock-out
procedure on the continuous miner during vibration testing
and oil
sampling;
11.5.2
Ms. Stigling testified expressly that she knew how to conduct a
lock-out procedure;
[12]
The facts and evidence in relation to inconsistency are as follows:
12.1 The evidence that
Mr. Makola was disciplined for his role in the matter in that he
received a final warning;
12.2 Mr. Van Jaarsveld’s
evidence that:
12.2.1
Mr. Makola was in the role of an assistant for Ms. Sibanyoni on the
day and that he did not carry the direct responsibility
for the
lock-out procedure as was the case with the employees;
12.2.2
Mr. Makola was only responsible to lock out the machine when he was
changing oil samples, which Ms. Stiglingh confirmed that
he did;
12.2.3
Mr. Makola was still new in the department and the Presiding Officer
of his disciplinary enquiry believed he was “
a victim of the
situation”.
12.3 Mr. Mgcina evidence
that:
12.3.1
The evidence that Mr. Mgcina had no involvement in the incident that
led to another employee’s dismissal in similar
circumstances
and was therefore not charged.
12.4 The evidence that
other employees in other incidents have been dismissed for similar
misconduct in similar circumstances.
[13]
The facts and evidence in relation to the trust relationship are as
follows:
13.1 the evidence of Mr.
Van Jaarsveld that he does “
not know how he can trust”
and that he regards dismissal as the appropriate sanction to be
fair and consistent with previous incidents
.
Evaluation
[14]
I am of the view that the evidence set out hereinabove is material
and should have been given due consideration, more so in
light of the
specific issues that the commissioner had to decide. It is clear from
the arbitration award that the commissioner
did not apply his mind to
the said evidence and in fact apparently completely disregarded same.
The commissioner’s failure
hereto constitutes a gross
irregularity which resulted in a finding that is unreasonable and not
one that another reasonable decision
maker would make.
[15]
Had the commissioner applied his mind properly to the evidence
presented by the applicant, he would have held that the employees
knew that they had to lock-out the machine and that they knew how to
do it. Even if they were not trained, they knew how to lock-out
and
conceded to having done it before. In those circumstances, it becomes
irrelevant whether they received practical training or
not, however,
it is clear from the applicant’s evidence that they did indeed
receive such training.
[16]
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2]
,
Van Niekerk J, held that inconsistency claims, more particularly
within the context of similarity of circumstances will fail where
the
employer is able to differentiate between employees who committed
similar transgressions on the basis of,
inter
alia
,
differences in personal circumstances, the severity of the misconduct
or on the basis of any other material factor. The applicant
in this
matter gave a sound explanation for the alleged inconsistencies which
were challenged by the employees.
[17]
The commissioner questioned the fact that the applicant did not
address him adequately in respect of the applicant’s
disciplinary code which provides for a final warning and not
dismissal in respect of non-compliance with company rules and
procedures.
It is clear that non-compliance covers a range of rules
and procedures and that transgression will not be equally serious in
all
cases.
[18]
It is clear from the evidence of the applicant that safety and
adherence to safety procedures are a huge priority for the applicant
and that non-compliance with such measures are regarded as extremely
serious. The applicant gave evidence that non-compliance with
safety
measures in the past has resulted in dismissal.
[19]
An
arbitrator is required to determine whether the sanction imposed by
the employer is fair and not to impose a sanction afresh.
In
African
Bank v Magashima and Others
[3]
Tlhotlhalemaje AJ (as he then was), held that:
“
In
determining whether an employer had acted fairly in dismissing an
employee, an arbitrator should also consider the factors outlined
in
Sidumo
[4]
.
Other
than these factors, where an employee claims inconsistency, further
factors inclusive of those outlined in
Sidumo
to be considered include the following:
a)
The circumstances surrounding the act of
misconduct committed by individual employees;
b)
The personal circumstances of the
employees, including their length of service, and the employees’
disciplinary records;
c)
The positions they occupied at the time of
the commission of the misconduct,
the
nature of the duties they performed and hierarchy within the
organisation;
d)
The severity of the misconduct or its
impact on the employer and its operations;
e)
The consequences of the misconduct
vis-à-vis the sustainability of the employment relationship
between the employer and the
employee, and also as between
co-employees;
f)
Whether the employees have shown genuine
contrition. Genuine contrition implies that an employee owned up to
the misconduct as soon
as it took place, and showed remorse from that
moment. This should be distinguished from the charade of showing
remorse at disciplinary
proceedings, purely for the purposes of
pleading in mitigation of sanction.”
[20]
It is evident that the arbitrator failed to appreciate the nature and
importance of the rule that the employees did not comply
with; the
potential consequences of non–adherence to the rule; the fact
that the employees were well aware of the rule and
had elected not to
comply with it, the nature of the employees’ duties as well as
the fact that the employees did not show
any contrition but instead
defended their conduct by claiming that they did not receive
practical training.
[21]
Taken into account all of the circumstances in this matter the
commissioner’s award is not one that a reasonable decision
maker could have reached based on the evidence before him and
therefore should be set aside.
[22]
In the premises the following order is made:
Order
1. The arbitration award
is set aside and substituted with an order that the dismissal of the
employees was substantively fair;
2. There is no order as
to costs.
_____________________________________
E
Bester
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant: Mr. M.G Maeso from Shepstone and Wylie Attorneys
For
the respondent: Adv. S.M. Malatji
Instructed
by: M.S. Molebaloa Inc.
[1]
66 of 1995, as amended.
[2]
[2009]
11 BLLR 1128 (LC).
[3]
[2014] ZALCJHB 298 at para 24.
[4]
2008 (2) SA 24
(CC) at Paras 78 – 79. These include the
totality of the circumstances of the matter; whether what the
employer did was
fair; the importance of the rule that the employee
breached; the reason the employer imposed the sanction of dismissal;
the basis
of the employee’s challenge to the dismissal; the
harm caused by the employee’s conduct; whether additional
training
and instruction may result in the employee not repeating
the misconduct; the effect of dismissal on the employee and
the
long service record of the employee.