About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2019
>>
[2019] ZALCJHB 92
|
|
Glencore Operations South Africa (Pty) Ltd (Lion Ferrochrome) v NUM obo Makgata and Others (JR2667/16) [2019] ZALCJHB 92 (30 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case no: JR 2667/16
Not Reportable
In
the matter between:
GLENCORE
OPERTIONS SOUTH AFRICA
(PTY)
LTD (LION FERROCHROME)
Applicant
And
NUM
OBO JERRY
MAKGATA First
Respondent
CCMA
Second
Respondent
JOSIAS
SELLO MAAKE
N.O. Third
Respondent
Heard:
7 August 2018
Delivered:
30 April 2019
JUDGMENT
WHITCHER
J
[1]
This is an application to review an arbitration award in which
Commissioner J S Maake found
that the dismissal of Mr Makgata for
misconduct was substantively unfair.
[2]
The Applicant operates a ferrochrome smelting plant and its
operations
are subject to stringent health and safety rules.
[3]
Mr Makgata commenced employment with the applicant in 2010, as a
trainee engineer. At the
time of his alleged misconduct (April 2016),
he was employed as an Engineering Superintendent in terms of the
OHSA. In short, it
was his job to ensure that his section of the
plant complied with the relevant safety rules.
Inter alia
, he
had to ensure that dangerous moving machinery were properly guarded,
and that it was stopped and fixed when not securely guarded.
The
appropriate guarding prevents employees from coming into contact with
dangerous moving machinery.
[4]
At the arbitration, the applicant led its case through Mr Cheloane,
their
Engineering Manager. His testimony, in summary, was as follows.
4.1
Prior to 12 April 2016, in several discussions, Mr Cheloane
instructed Mr Makgata to ensure that
the sump pump in his section was
operating efficiently. By that, Mr Makgata was to make sure that the
pump was not overflowing.
Mr Cheloane explained to the commissioner
that if the pump did not operate efficiently, it would overflow and
pose a risk of slippery
surfaces for employees.
4.2 Mr
Cheloane also instructed Mr Makgata to ensure the availability of
correct spares to fix a faulty
primary crusher.
4.3 On
11 April 2016, Mr Makgata assured Mr Cheloana that he had complied
with the instructions.
4.4
However, on 12 April 2016, Mr Cheloana observed the following:
(i)
The sump pump was overflowing.
(ii)
Mr Makgata had failed to order the correct spares, and, as a result,
had the main frame of the crusher drilled in order to install and
secure the chik plates, a modification procedure which was not
permitted because it could weaken the structure and cause a faulty
crusher.
(iii)
The guarding on a secondary crusher (“the conveyor”) was
not secured.
It was operating without fixed guards in place. Mr
Cheloane referred the commissioner to a photograph, stating that he
took the
photograph on 12 April and it recorded the defective
guarding that he had observed on 12 April 2016. Based on his
observation,
Mr Cheloana ordered that part of the operation to be
stopped.
4.5 Mr Cheloana said
that Mr Makgata’s overall conduct had not only caused a safety
risk, it also caused
a planned shutdown to be postponed.
4.6 In
addition to the above evidence, Mr Cheloane referred the commissioner
to specific sections
of the transcript of Mr Makgata’s
disciplinary enquiry. According to the transcript, Mr Makgata agreed
at the disciplinary
enquiry that he had been given the above
mentioned instructions, he agreed that the sump pump was found
overflowing, he backtracked
on his claim that a water restriction had
caused the pump to overflow and he agreed that the photograph showed
a defective and
unsafe guarding.
[5]
Mr Makgata was dismissed pursuant to the following charges:
5.1 Breach of safety
regulations in that you failed to ensure that driven machinery was
operated with proper guarding
in place.
5.2 Failure to
follow directions instructions in that after several discussions
regarding the sump pump you failed
to ensure the pump was running
efficiently which led to the sump overflowing, causing final product
contamination and posing a
risk of slippery surfaces to fellow
workers;
and
in that you failed to ensure that the correct
spares were available and that the crusher was not prepared for the
shutdown which
was scheduled for 12 April 2016. This led to the
postponement of the shutdown.
[6]
The chairperson of the disciplinary enquiry held that dismissal was
the appropriate
sanction on the basis that Mr Makgata had been on a
final written warning for safety violations at the time he committed
the misconduct.
[7]
Although Mr Makgata’s coordinator had been similarly charged,
he was not dismissed.
The different treatment was based on the fact
that the coordinator had reported to Mr Makgata [Makgata was his
senior] and, unlike
Mr Makgata, he did not have a final written
warning for similar offences at the time of the misconduct.
[8]
In relation to whether the trust in the employment relationship could
objectively
be held to have irretrievably broken by Mr Makgata’s
conduct, Mr Cheloana testified that he could no longer trust Mr
Makgata
to follow important orders that had safety repercussions and
Mr Makgata had shown that he is not amenable to correction in light
of the fact that he had been sitting on a final written warning for
similar offences at the time of the new offences.
[9]
In a misconduct case, once the employer has fleshed out its
allegations with evidence
to a degree that its version requires a
proper answer or rebuttal lest it be believed, the evidentiary burden
shifts onto the accused
employee to prove otherwise.
[10]
The sum total of Mr Makgata’s defence in his oral evidence and
in the cross-examination
of Mr Cheloana was as follows:
10.1 The photograph of the
defective guard was not taken in his presence, so it does not
constitute proof that the guard in
his section was defective. This
submission has no merit. There is no requirement in labour law (or
any law for that matter) that
for a photograph to be awarded weight
it must be taken in the presence of the accused employee. Moreover,
no sinister or ulterior
motive was suggested for Mr Cheloana taking
the photograph in the absence of Mr Makgata.
10.2 When Mr Makgata agreed at
his disciplinary enquiry that the guarding was defective, he had been
merely referring to the
guarding in the photograph shown to him. He
had denied that the guarding in his section was defective. However,
when called on
to do so, Mr Makgata was unable to establish this
claim with reference to the transcript of the disciplinary enquiry.
10.3 The company logbook
recorded that the plant was stopped because of a dumper. It thus
follows, Mr Makgata argued, that
the plant was not stopped because of
a faulty guard, and it must follow from this, that there was no
faulty guard. Apart from the
logical fallacy of this argument, Mr
Cheloana gave a reasonable explanation for the logbook, which was not
disputed by Mr Makgata.
Mr Cheloana explained that it was a practice
that only the primary reason for a stoppage is recorded in the
logbook. The defective
guarding was one of the reasons, but not the
primary reason, for the stoppage on the day in question.
[11]
Clearly taking his cue only from Mr Makgata’s evidence and
submissions, the commissioner
found Mr Makgata’s dismissal
substantively unfair for the following reasons:
11.1 The applicant was unable to
produce documentary evidence that the operation of the plant was
stopped because of the substandard
guarding on the conveyor.
11.2 The photograph taken by Mr
Cheloana on 12 April 2016 was inadmissible because it was not taken
in Mr Makgata’s
presence.
11.3 There was no proof that the
relationship had irretrievably broken down.
[12]
The first reason is based on a misconception of the law of evidence.
The absence of corroboration is not a ground for
rejecting the evidence of a good witness. Corroborating evidence
merely adds weight
to the evidence of a witness.
[13] The
second reason is also based on a misconception of the law of
evidence, as already discussed
earlier on.
[14]
Regarding the final reason, it is evident that the commissioner
failed to consider the testimony
of Mr Cheloana in this regard. If he
had, he would have found that the applicant had provided sufficient
justification for feeling
that the relationship had irretrievably
broken down. Mr Makgata’s misconduct was serious and the fact
that he had been on
a final written warning for safety violations at
the time of the misconduct demonstrates that he is not amenable to
correction
on very important matters, namely safety in the workplace
and the duty to comply with important instructions.
Order
[15]
In the premises, I make the following order:
1.
The award issued by the third respondent on 26 October 2016 in the
arbitration proceedings between
the applicant and the first
respondent under case number LP5064-16 is reviewed and set aside, and
substituted with an award that
the dismissal of the first respondent,
Mr Jerry Makgata, 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:
D
Masher, from Edward
Nathan Sonnenbergs Inc
For
the First Respondent: Advocate
K. Mahlalela
Instructed
by Motaung
Attorneys