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[2018] ZALCCT 35
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National Union of Mineworkers obo Moeng and Others v Commission for Conciliation, Mediation and Arbitration and Others (C 792/2016) [2018] ZALCCT 35 (16 November 2018)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not
reportable
Case
no: C 792/2016
NATIONAL
UNION OF MINEWORKERS obo
MOENG
AND 15 OTHER
Applicant
and
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
THEO
POTGIETER N.O
Second Respondent
PMG
MINING (PTY) LTD
Third
Respondent
Heard:
14 November 2018
Delivered:
16 November 2018
Summary:
Review application. No merit in the grounds for review. Application
dismissed.
JUDGMENT
PRINSLOO,
J
Introduction
[1]
The
Applicant seeks to review and set aside an arbitration award issued
on 21 October 2016 wherein the Second Respondent (the arbitrator)
found the individual Applicants’ (the employees) dismissal
substantively and procedurally fair and effectively dismissed
their
case.
[2]
The Third
Respondent (the employer) opposed the review application.
Evidence
adduced
[3]
In order to
assess the arbitrator’s findings and the award he issued, it is
necessary to consider the reasons why the employees
were dismissed
and the evidence adduced at the arbitration proceedings.
[4]
The
employees were employed as truck operators and in April 2016 they
were issued with an instruction to complete the Dover test.
Only two
truck drivers completed the Dover test as per the instruction and the
remainder of the truck drivers were charged with
gross
insubordination and failure to obey a reasonable and lawful
instruction in that they failed to undergo a Dover test. A
disciplinary
hearing was held on 15 April 2016 and the employees were
all dismissed on 12 May 2016.
[5]
The issues
to be decided at arbitration were whether the instruction to do a
Dover test was a lawful and reasonable instruction,
whether the
failure to do the test constituted gross insubordination and whether
the sanction of dismissal was fair and appropriate.
[6]
The
employer’s first witness, Mr Barry van Scheltinga (Mr van
Scheltinga), testified
inter
alia,
about
the process followed when the employees were charged. He referred to
a letter written to the union wherein it was explained
that the
requirement to undergo the Dover test is not a variation of any term
or condition of employment, but it was a requirement
of the Mine
Health and Safety Act
[1]
(MHSA)
and therefore a lawful and reasonable instruction. It was made clear
that any driver who refused to undergo the test, would
be subject to
disciplinary action and NUM was asked not to prevent its members from
undergoing the test, but was requested to assist
to engage with the
NUM members and to encourage them to do the testing. The way forward
could be discussed once the outcome of
the tests was available.
[7]
Mr van
Scheltinga testified that the instruction to the employees was to
report to the training centre and to undergo a Dover test.
Completion
of the Dover test was the first stage of the training programme the
employees had to undergo for transition from operating
the suspended
trucks to become qualified to operate the new trucks the employer
procured. A failure or refusal to complete the
Dover test would
constitute a serious breach of the employer’s rules and the
applicable health and safety legislation and
would lead to
disciplinary action, which might lead to dismissal. The written
instruction was dated 7 April 2016 and was issued
to the employees on
8 April 2016. The employees were requested to sign to acknowledge
receipt of the instruction, but they refused
to accept it.
[8]
This
instruction followed after the employees were informed on 6 April
2016 that they had to do the Dover test on 7 and 8 April
2016, which
they refused to do.
[9]
Mr van
Scheltinga testified that it was explained to the employees on 6
April 2016, when they were told to go for the Dover test,
that the
Dover test is a hand eye coordination test and that if a person
failed the test, the test cannot be done again for a period
of 12
months. The employees were also informed that if they fail the test,
they would not be able to operate the trucks and that
the employer
would engage with such individuals and the union on a way forward.
However, the employer made it clear that it was
unlikely that anybody
would fail the test as the test is not an onerous test, more so where
the employees were operating the trucks
for a long time. Once an
employee passed the test, it opened the door to further training to
operate the new trucks at the mine.
[10]
Mr van
Scheltinga testified that the employer tried to explain and answer
the employees’ questions and queries on 6 April
2016, but the
meeting disintegrated into chaos when the employees started shouting
and screaming and walked out of the meeting.
[11]
Three shop
stewards later returned to have a discussion with Mr van Scheltinga
and Mr Kabaah and they insisted that the matter be
discussed with
NUM. The employer conceded to the request and a meeting with NUM was
arranged for 14:00 on the same day. The outcome
was that the
employees refused to do the Dover test until such a time that the
employer gave them a guarantee that if anybody failed
the test, they
would be maintained at the level of truck driver, regardless whether
they worked in a lower capacity or not. Mr
van Scheltinga testified
that it was unreasonable for the employer to be held ransom to make a
commitment about an event that has
not happened yet or was unlikely
to happen at all. He described the demand by the union and the
employees that the employer must
enter into a collective agreement
with NUM on ‘grandfathering’, effectively a guarantee
that the employees would not
lose any income or benefit, regardless
of the outcome of the Dover test, as unreasonable.
[12]
The
employer committed in writing to further engagement with the union
and employees, should it become necessary in the event that
somebody
failed the test. The employer anticipated that all the employees
would pass the test. The Dover test is a prerequisite
and a
requirement from the Department of Mineral Resources for the
employees to be trained on the new trucks.
[13]
In
cross-examination it was asked of Mr van Scheltinga why Mr Ndlovu was
dismissed. He responded that Mr Ndlovu was dismissed for
gross
insubordination and failure to obey a reasonable and lawful
instruction in that he failed to undergo the Dover test. It was
put
to Mr van Scheltinga that Mr Ndlovu was on leave from 11 – 15
April 2016 , upon which he responded that Mr Ndlovu was
at work on 6
and 8 April 2016 and he received the lawful and legitimate
instruction to undergo the Dover test.
[14]
Mr van
Scheltinga agreed that Ms Maggie Olyn (Ms Olyn) was not at work on 8
April and that she was on sick leave as from 11 –
12 April
2016, but stated that she was aware that she was required to do the
Dover test and she was dismissed because when she
returned from sick
leave, she did not approach the employer with a view to do the Dover
test.
[15]
Mr Edwin
Sefako testified that he was employed as an engineer at Bishop Mine
and he explained that section 8(3) of the MHSA requires
an employer
to prepare and implement a code of good practice. The employer
prepared a code of practice for trackless mobile machinery
(TMM),
which was circulated and once it was signed off, it became the
mandatory code of practice for the mine. The said code was
signed in
October 2014 and was signed by Mr Booysen, the NUM representative.
[16]
Clause
8.12.4 of the code provides that every person who operates trackless
mobile machinery will undergo a physical assessment
and Dover testing
as part of the selection criteria prior to being deemed as competent
and authorised to operate any TMM.
[17]
Mr Sefako
testified that only two truck drivers did the Dover testing and after
they did the test, they received further training
and they are deemed
competent and they were appointed and authorised to operate the TMM.
[18]
Mr Sefako
testified that it had been a requirement for operators of TMM’s
at Bishop mine to have completed Dover tests since
October 2014 to
comply with the statutory requirements. It was however only done in
April 2016.
[19]
Mr Kwah
Kabaah (Mr Kabaah) testified that he is the mine manager at Bishop
Mine. He testified that in November 2015 the Department
of Mineral
Resources suspended the operation of the employer’s trucks, as
a result of which the employer had to rent other
trucks to operate
the mine. The employer subsequently purchased a new fleet of trucks.
The contract with the company that was contracted
to provide the
trucks, ended on 25 April 2016 and it was necessary for the employer
to train its own employees to use the new wager
trucks so that the
employer would no longer incur the extra cost of renting the trucks
and operators. On 6 April 2016 a meeting
was held with the truck
operators so that they could be assisted and trained to be competent
and qualified to operate a truck.
[20]
In the
meeting of 6 April 2016, the truck operators refused to do the Dover
test, where after a meeting was held with the union.
The NUM wanted a
written guarantee from the employer to the effect that the employees
would still receive their salaries and benefits,
even if they failed
the test and would not be qualified to operate a truck. The employer
was unable to provide such a guarantee
and explained to the union and
employees that for them to operate a truck, they need to follow the
process in terms of the instruction
from the Department of Mineral
Resources and they have to comply with the applicable legislation and
be declared competent before
they could operate a truck. The
employees refused and a written instruction was subsequently issued
on 8 April 2016, which they
refused to accept. Two truck operators
accepted the instruction, went for the test, they were trained and
are now qualified.
[21]
Mr Kabaah
testified that on 6 April 2016 the Dover test was explained to the
employees and he testified that the Dover test is to
test an
employee’s coordination. The employees were not prepared to
listen to anyone and they said that they would not do
anything until
the employer gave them the guarantee that they would retain their
salaries and benefits. Mr Kabaah testified that
the employees were
informed that should they be unsuccessful in the Dover test, there
will be a consultation process with human
resources to find a way
forward. The Dover tests were scheduled for 7 and 8 April 2016 and
the employees were instructed to attend
those. When they refused, a
written instruction was issued for them to attend the Dover test at
specified time slots on 11 and
12 April 2016.
[22]
The
employer’s last witness was Mr Joel Reddy, who testified that
at the time of the incident he was the senior human resources
officer. He testified that on 8 April 2016 there was a meeting with
the truck operators in the boardroom but they were not willing
to
take their seats and they were unruly. Mr Reddy explained to them
that he needed to read out the instruction to them. He read
out the
instruction in English and a colleague read it out in Afrikaans and
it was explained to the employees what the content
of the written
instruction was. It was explained that the written instruction was
addressed to each individual and that it specified
a date and time on
which they had to do the Dover test, which was scheduled over a
period of two days, namely 11 and 12 April 2016.
Mr Reddy testified
that half way through the meeting the employees became unruly again
and he tried to explain what the instruction
was. The employees
refused to sign acknowledgement of receipt of the written
instruction.
[23]
Mr Reddy
testified that he asked the employees whether they understood what
was explained to them and they responded that they understood
but
they disagreed with the instruction and that was when they walked
out. Mr Reddy left the letters on the table for the employees
to
collect, but only two truck operators signed for their letters. The
rest of the employees refused to sign for their letters,
they refused
to take the written instruction and they refused to do the Dover
test.
[24]
In respect
of Mr Ndlovu, it was testified that he was present on 8 April 2016
when the instruction to attend the Dover test was
given and that Mr
Ndlovu said he would not take the test. According to him, Mr Ndlovu
never indicated that he was unable to do
the test on 11 April 2016
because he was on leave, he said he would not do the test.
[25]
The
employees’ version put to the employer’s witnesses was
that the instruction to do the Dover test was not issued
to them. In
view of the evidence as per the transcribed record, this version is
far-fetched and improbable.
[26]
Ms Olyn
testified on behalf of the employees. She testified that on 6 April
2016 management called all the truck drivers to a meeting
where Mr
Kabaah introduced Mr Schletinga as the new human resources manager
and where the employees were informed about the Dover
test that had
to be done the next day. The employees asked questions because they
did not know what the Dover test was and Mr Kabaah
said that they
should not be scared because they have been driving for a long time
and the test entailed using your hands, feet
and eyes to see how fast
one could react. Ms Olyn’s complaint was that Mr Kabaah never
showed them the machine on which the
Dover test was to be conducted.
Mr Kabaah said he did not know what would happen if an employee was
to fail the test, but he said
that they would see after the results
of the test.
[27]
The
employees contacted the union and on the same day (6 April 2016) the
union had a meeting with the employer wherein the employer
was asked
to provide a written guarantee that the Dover test results would not
affect the employees and their salaries. The employer
refused to give
such a guarantee.
[28]
Ms Olyn
testified that in terms of the employer’s disciplinary code,
the sanction to be imposed for gross insubordination
is a final
written warning.
[29]
It is
evident from the transcribed record that Ms Olyn had difficulty to
respond to questions in cross-examination. Her version
was that she
had not done the Dover test, but she never refused to do it. She
testified that she was not at work on 7 and 8 April
2016. Ms Olyn
said that she never raised the issue that she was on sick leave
during the disciplinary hearing because she was not
asked about it.
[30]
Ms Olyn
conceded that she was part of the meeting on 6 April 2016 and that at
the meeting the Dover test was explained and that
the employees’
questions regarding the test were answered. Ms Olyn also testified
that if the employer had given the ‘grandfathering’
guarantee, she would have done the Dover test.
[31]
The last
witness was Mr Daniel Riet (Mr Riet) who testified that he was
employed as a truck driver. On 6 April 2016 the truck drivers
were
called to a meeting with Mr Kabaah and Mr van Scheltinga and they
told the employees about the Dover test. The employees asked
questions about the Dover test, such as what would happen to the
truck drivers who fail the test. Mr Kabaah responded that they
should
not worry as they would remain employees of the employer. The
employees asked for a preparation test but Mr Kabaah said
it would
cost the employer too much money. Mr Kabaah said the testing was a
matter of urgency.
[32]
Mr van
Scheltinga informed the employees that the issue whether their jobs
and salaries would be affected, was an issue to be discussed.
[33]
Mr Riet
testified that he knew what a Dover test was as he had done it before
with the companies he was previously employed with
and he had a Dover
testing certificate. He testified that he was surprised to see that
Dover testing was not done at the employer.
Strangely enough Mr Riet
testified that the issue with Dover testing at the employer was that
the reason why Dover testing had
to be done was not explained and
according to him there was no reason for Dover testing.
[34]
Mr Riet
testified that Mr Kabaah said he did not need 25 truck drivers and
this was an attempt to get rid of many of the truck drivers.
This
version was however not put to Mr Kabaah or any of the employer’s
witnesses.
[35]
Mr Riet
explained that there was no explanation on how the Dover test would
work and the employees feared for their future and what
was going to
happen to them should they fail the Dover test. He disputed that Mr
Kabaah explained on 6 April 2016 what the Dover
test is and what it
entails.
[36]
Mr Riet
testified that if there was consultation on the Dover test and if the
employer was prepared to sign the agreement as requested
by the
union, he would have done the Dover test.
[37]
Mr Riet
testified that the employees did not refuse to do the Dover test, but
they requested a guarantee from the employer that
their positions and
remuneration would not be affected in the event that they fail the
test, but the employer failed to provide
that. He disputed that he
had received a written instruction on 8 April 2016 to go for the
Dover test on a specified date and time.
In cross-examination he
however conceded that the instruction was read out in English and
Afrikaans at the meeting on 8 April 2016.
[38]
Mr Riet
filed an appeal but it was never considered by the employer. His case
is that a final written warning is the prescribed
sanction for gross
insubordination in the employer’s disciplinary code and the
sanction of dismissal was too harsh.
The
arbitrator’s findings
[39]
In respect
of procedural fairness the arbitrator found that the employer
followed a fair procedure in dismissing the employees.
This finding
was based on the fact that no evidence was adduced during the
arbitration proceedings to support the employees’
case that the
chairperson of the disciplinary hearing was biased. The arbitrator
further found that the union was at all times
aware that their shop
stewards were part of the employees charged with misconduct and in
fact the evidence showed that the union
was involved in this matter
since it engaged with the employer on 6 April 2016.
[40]
Although
the Applicant alluded to the arbitrator’s findings in respect
of procedural fairness in its founding affidavit, this
is not
persisted with or addressed in the Applicant’s heads of
argument.
[41]
In argument
I confirmed with Mr Dlamini, acting for the Applicant, that I could
accept that the grounds for review as set out in
the Applicant’s
heads of argument are the grounds for review the Applicant was
persisting with and are the grounds this Court
has to consider. I
therefore accept that the Applicant has abandoned its grounds for
review relating to the arbitrator’s
findings on procedural
fairness.
[42]
In respect
of substantive fairness the arbitrator found that the employees and
the employer presented mutually exclusive versions
and that the
evidence tendered on behalf of the employees was also mutually
exclusive in respect of whether the Dover test was
explained and the
reason for the refusal to undergo the said test.
[43]
The
arbitrator accepted that a lawful and valid instruction was given in
order to comply with safety legislation. The arbitrator
was satisfied
that the instruction was given and that it was disobeyed as the
employees refused to undergo the Dover test until
such time that a
written guarantee of job security was given. The employees’
evidence was that they would have done the Dover
test if the employer
had given them a written guarantee that they would retain their jobs
and salaries, irrespective of the outcome
of the test.
[44]
On the
appropriateness of the sanction the arbitrator considered the
arguments and authorities referred to by the parties. He held
that
the employees held the employer at ransom which not only jeopardized
their jobs, but the jobs of all workers at the mine in
that the
Department of Mineral Resources would close the mine due to
non-compliance with safety regulations. The continued refusal,
even
after the employees were suspended and called to a disciplinary
hearing, and the manner in which they refused, confirmed
that
the employees acted grossly insubordinate and failed to accept the
authority of the mine manager and those in managerial positions
instructing the employees to undergo the Dover test.
[45]
The
arbitrator found the employees’ dismissal fair and rejected the
employees’ notion that they could act as they did
because the
disciplinary code suggested a written warning for insubordination as
a misconception of the employment relationship
and the duties and
obligations emanating from it.
[46]
The
arbitrator concluded that the insubordination was gross and that,
taking all the circumstances into consideration, dismissal
was an
appropriate sanction.
The
grounds for review
[47]
In the
Applicant’s heads of argument three main grounds for review are
raised.
The
sanction
[48]
The first
ground for review as set out in the Applicant’s supplementary
affidavit and heads of argument relates to the issue
of sanction.
[49]
Specific
issue is taken with paragraph 31 of the arbitration award wherein the
arbitrator found that “
The
applicants by saying that they could act as they did, because the
code of practice suggested a written warning for insubordination,
is
a complete misconception of the employment relationship and duties
and obligations emanating therefrom. I find that the respondent
has
shown that the misconduct (insubordination) was gross and that
dismissal was the appropriate sanction taken all the circumstances
into consideration.”
[50]
The
Applicant’s case is that the arbitrator failed to appreciate
that the employer’s disciplinary code recommended a
final
written warning for a first offence of gross insubordination. It was
no answer to this point to find that the insubordination
was gross.
[51]
There are a
number of difficulties with this ground for review. The disciplinary
code specifically provides for ‘misconduct
and guidelines to
appropriate action’ and it listed a final written warning for a
first offence and dismissal for a second
offence as recommended
sanctions in the event of gross insubordination. On the Applicant’s
own version these were recommended
sanctions.
[52]
It is
evident from the wording of the disciplinary code that the sanctions
to be imposed for the listed acts of misconduct are nothing
more than
‘guidelines’ and recommended sanctions. The disciplinary
code further stipulates that ‘depending on
the circumstances,
the below could be viewed as gross misconduct if the employer /
employee relationship is adversely impaired
or PMG Mining (Pty) Ltd’s
property and / or operations are jeopardised or any lives are
endangered.’
[53]
The
sanctions listed in the disciplinary code are no more than
recommendations or guidelines and an appropriate sanction has to
be
determined depending on the circumstances.
[54]
In casu,
the
arbitrator considered the circumstances and he recorded the following
factors before concluding that dismissal was an appropriate
sanction:
54.1
That a lawful and valid instruction was given in order to comply with
safety legislation;
54.2
The instruction was disobeyed and would only be obeyed if the
employer gave a written guarantee as to job security;
54.3
The refusal was persisted with;
54.4
The employees held the employer at ransom which not only jeopardized
their jobs, but the jobs of all workers at the mine;
54.5
There was a possibility that the Department of Mineral Resources
would close the mine due to non-compliance with safety regulations
and the employees failed to accept the authority of the mine manager
and those in managerial positions.
[55]
Under the
said circumstances the arbitrator found the employees’
dismissal fair and an appropriate sanction.
[56]
The
Applicant’s case seemingly is that because the disciplinary
code recommended a final written warning, they should have
received
no other sanction than a final written warning and because there was
deviation from the recommended sanction, their dismissal
is unfair.
The complaint is that the arbitrator failed to appreciate the
recommended sanction of a final written warning.
[57]
There is no
merit in the first ground for review. Firstly because the
disciplinary code merely provides guidelines on sanction,
depending
on the circumstances, and secondly, the arbitrator has considered the
relevant factors and circumstances in deciding
the appropriateness of
the sanction of dismissal and he evidently applied his mind to the
question of sanction. Based on the circumstances
that prevailed in
this case and the conduct of the employee, dismissal was appropriate
and such a finding is not unreasonable.
Mr
Ndlovu and Ms Colyn
[58]
The second
ground for review relates to Ms Olyn and Mr Ndlovu.
[59]
The
Applicant’s case is that the arbitrator failed to deal with the
fact that Ms Olyn and Mr Ndlovu were not at work on 11
and 12 April
2016 as they were on sick leave and vacation leave respectively and
that the arbitrator acted unreasonably when he
confirmed the
dismissal of the said individuals, who were not at work on 11 and 12
April 2016. The arbitrator provided no reason
for finding the
dismissal of Ms Olyn and Mr Ndlovu fair in circumstances where they
could not have been found guilty of the offence
for which they were
dismissed.
[60]
A perusal
of the arbitration award shows that the arbitrator indeed made no
separate findings in respect of Ms Olyn and Mr Ndlovu.
The question
is whether the failure to make specific findings on the said
individuals renders the arbitration award reviewable.
[61]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
affirmed the test to be applied in review proceedings and 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.’
[62]
The
Court further held that a piecemeal approach should not be followed
when it said
[3]
:
‘
In
a review conducted under s 145(2)(a)(ii) of the LRA, the reviewing
court is not required to take into account every factor individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by the arbitrator
to
deal with one or some of the factors amounts to process related
irregularity sufficient to set aside the award. This piecemeal
approach of dealing with the arbitrator's award is improper as the
reviewing court must necessarily consider the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision maker could make.
To
do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in s 138
of
the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties with the
minimum of legal formalities and do so expeditiously and fairly.’
[63]
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.
[64]
The
Applicant, relying on the wording of the charge sheet, seeks to limit
the case to the events of 11 and 12 April 2016 and for
those events
to be considered in isolation and as events independent from any
other. The Applicant’s case is that Ms Olyn
and Mr Ndlovu were
not at work on 11 and 12 April 2016, the days on which the test was
scheduled to take place, and as such they
could not be found guilty
of gross insubordination, as they were not there to refuse to take
the test and thus they were not insubordinate.
[65]
The
approach adopted by the Applicant is over technical and not
consistent with the applicable authorities, which made it clear
that
the review Court must consider the totality of the evidence and
decide whether the decision made by the arbitrator is one
that a
reasonable decision maker could make, based on the evidence that was
before the arbitrator.
[66]
The
record shows that the evidence before the arbitrator was that the
truck operators were instructed on 6 April 2016 to do a Dover
test on
7 and 8 April 2016, but they refused to obey the instruction in the
absence of a written guarantee from the employer that
their positions
and remuneration would not be affected, irrespective of the outcome
of the Dover test. The employer was unable
to give such a guarantee
but indicated to the employees that they would remain employees and
depending on the outcome of the Dover
test, they would be engaged on
a way forward. If the employees passed the test, they would be taken
for further training and the
employer clearly anticipated that all
the employees would pass the Dover test, which was a prerequisite for
them to be trained
and be declared competed to operate the new fleet
of trucks acquired by the employer.
[67]
As a
result of the refusal to obey the instruction given on 6 April 2016,
the employer issued a written instruction on 8 April 2016,
instructing the employees to go for Dover testing on specific dates
and times between 11 and 12 April 2016. The tests to be conducted
on
7 and 8 April 2016 were rescheduled to 11 and 12 April 2016.
[68]
In
my view it is evident that the instruction the employer issued on 6
April 2016, namely that the truck operators should go for
Dover
testing, remained the same instruction that was issued in writing on
8 April 2016. The instruction remained consistently
the same, namely
that the employees should go for Dover testing. The instruction
per
se
never
changed. What changed was the variable of the date on which the
testing was to be conducted. Initially the testing was scheduled
for
7 and 8 April 2016, but as the employees refused to go for testing on
the said dates, it was rescheduled to 11 and 12 April
2016.
[69]
The
employees’ refusal, including that of Ms Olyn and Mr Ndlovu, to
do the Dover test remained consistent and the reason for
their
refusal remained the same, namely that until and unless the employer
gave a written guarantee or agreed to a grandfathering
agreement that
the employees’ positions and remuneration would remain the
same, they would not agree to take the Dover test.
[70]
The
reason for dismissal was the failure to obey a lawful instruction,
namely to do the Dover test, and to tie this to a specific
date
namely 11 and 12 April 2016 and say that because a specific
individual was not at work on that specific date, is opportunistic,
given the specific facts and the context of this case. The thrust of
the charge was that the employees failed, neglected and /
or refused
to undergo the Dover test and the date on the charge was merely
inserted as the date on which the test was scheduled.
The date is not
the essence of the charge and the employees’ conduct should be
viewed in a proper context.
[71]
Ms
Olyn and Mr Ndlovu were present in the meeting on 6 April 2016 when
the instruction was given and it is evident from Ms Olyn’s
evidence that she was well aware of the instruction that was given on
6 April 2016 and that she was told what the Dover test entailed.
It
is further evident from her testimony that she would have done the
Dover test only if the employer gave the guarantee that the
union
demanded as on her own version, she was afraid to do the test without
the guarantee. Up to the arbitration she maintained
this stance and
at no point did she tender or indicate a willingness to do the Dover
test in the absence of a guarantee by the
employer. In my view this
is nothing but a refusal to comply with a lawful instruction and Ms
Olyn’s absence on a specific
date, does not change the fact
that she refused to obey the instruction. Ms Olyn’s refusal was
not linked or limited to a
specific date, but it was a generic
refusal to do the test, absent a guarantee from the employer.
[72]
In
respect of Mr Ndlovu the undisputed evidence was that he was present
on 6 and 8 April 2016 when the instruction was issued and
he received
the lawful and reasonable instruction to undergo the test. Even if Mr
Ndlovu was on leave on 11 and 12 April 2016,
there is no explanation
why he did not comply with the instruction given on 6 April 2016 to
go for the test on 7 or 8 April 2016,
prior to the commencement of
his leave and the only reasonable inference is that he never had the
intention or inclination to comply
with the instruction. His refusal
too was not linked to or limited to a specific date.
[73]
Ms
Olyn and Mr Ndlovu, as the other employees, were instructed to
undergo the Dover test, they were aware of the instruction and
they
failed or refused to comply with the instruction. There is no basis
to differentiate between Ms Olyn and Mr Ndlovu on the
one hand and
the rest of the employees on the other and the arbitrator’s
failure to deal with them separately and individually,
does not
render the arbitration award unreasonable and reviewable.
Gross irregularities
[74]
The
Applicant submitted that the arbitrator committed gross
irregularities in the conduct of the proceedings, failed to apply his
mind to the issues before him and issued an award that no reasonable
arbitrator could have issued.
[75]
This ground
for review is no more than a ‘catch all’ ground for
review and does nothing more than to tabulate conclusions
without
substance. In the heads of argument no argument is advanced in
support of this ground for review and a perusal of the founding
and
supplementary affidavits show that no grounds, apart from what had
been dealt with
supra,
are
advanced to support and substantiate this ground for review. There is
thus no merit in this ground for review.
[76]
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
[4]
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.
[77]
The test is
thus whether the decision reached by the arbitrator is one that a
reasonable decision maker could have reached based
on the material
and evidence placed before him or her during the arbitration
proceedings.
[78]
Having
considered the evidence adduced at the arbitration proceedings, the
findings made by the arbitrator and the grounds for review
as raised
by the Applicant, I am satisfied that the arbitrator's findings and
conclusion fall within a range of decisions that
a reasonable
decision maker could make.
[79]
In
conclusion: the grounds for review raised by the Applicant, have no
merit as the award and the findings contained therein
are
reasonable and are not to be interfered with on review.
Costs
[80]
The Court
has a broad discretion to make orders for costs according to the
requirements of the law and fairness.
[81]
Mr
Badenhorst for the employer submitted that the employer was not
persisting with a cost order due to the ongoing relationship
between
the employer and NUM. Mr Badenhorst however highlighted the sad state
of affairs as the employees are left unemployed in
an industry with
excessive job losses, in circumstances where their dismissal could
have been avoided
in
toto.
There
is something to say about this.
[82]
In casu
I am
faced with an employer that operates under the provisions of the MHSA
and under the supervision of the Department of Mineral
Resources, who
had issued a notice to halt mining operations, pursuant to section 54
of the MHSA, regarding the particular trucks
used on the mine. When
the employer purchased a new fleet of trucks to be compliant, the
truck operators had to be declared as
competent and the first step in
that process was the Dover test, where after further training would
follow. When the employer issued
an instruction for truck operators
to undergo the Dover test, only two drivers complied and they were
trained and are competent
to operate as such. The employees on the
other hand, refused to comply with the instruction and literally held
the employer at
ransom and demanded a written ‘grandfathering’
agreement, absent which they would not comply with the instruction.
[83]
The worst
part is that the NUM became involved in the matter on 6 April 2016
and notwithstanding the employer’s pleas with
NUM to engage
with the employees and to encourage them to do the Dover test, it did
none of that, but instead demanded a ‘grandfathering’
agreement from the employer. This conduct was not only unreasonable,
as the NUM never disputed that the employer had to comply
with safety
legislation and the Dover test was provided for in the code of good
practice, signed by NUM in October 2014, but it
was also
irresponsible. It was never open to NUM and the employees to demand
the guarantee as they did from the employer.
[84]
In my view
the union has a lot to answer as the dismissal of the employees could
have been avoided had they acted differently, reasonably
and
responsibly with the interest of the workers in mind and with due
observation of the employer’s obligation to comply
with safety
legislation and the employees’ obligation to comply with lawful
instructions. Instead, the attitude adopted placed
the employer at
risk and jeopardized the employees’ future employment.
[85]
The refusal
to undergo the Dover test until the employer assured them that if
they failed the test, they would continue to be employed
as truck
operators, was outrageous and ill-advised. This indeed resulted in a
sad and unfortunate state of affairs, for which the
union and the
employees are to be blamed.
[86]
In the
premises I make the following order:
Order
1.
The
review application is dismissed;
2.
There
is no order as to costs.
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr B Dlamini of NUM
For
the Third Respondent: Mr W J J Badenhorst of Hogan Lovells Inc
Attorneys
[1]
Act 29 of 1996.
[2]
(2014) 35
ILJ
943 (LAC) at para 16
[3]
Id n 3 at para 18.
[4]
(
2007) 28 ILJ 2405 (CC) at para 110.