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[2019] ZALCJHB 376
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Glencore Operations South Africa (Pty) Ltd (Lyndenburg Smelter) v NUMSA obo Jordaan (JR1690/17) [2019] ZALCJHB 376 (7 August 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
no: JR1690/17
In
the matter between:
GLENCORE OPERATIONS
SOUTH AFRICA
(PTY)
LTD (LYDENBURG SMELTER)
Applicant
and
NUMSA
OBO WILLEMGABRIEL JORDAAN
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
DAVID
MAREI SELLO,
N.O
Third Respondent
Heard: 07
August 2019
Delivered:
07 August 2019
EX-TEMPORE
JUDGMENT
CELE,
J
Introduction
[1]
The
application before me is one brought in terms of section 145 (2) of
the Labour Relations Act
[1]
(LRA) where the applicant seeks to review and set aside the
arbitration award issued by the second respondent (the Commissioner)
under the auspices of the third respondent, the Commission for
Conciliation, Mediation and Arbitration (CCMA) dated 26 June 2017
wherein it found the dismissal of Willem Jordaan who is a member of
the first respondent, NUMSA (the union) to have been unfair.
[2]
The applicant seeks to be granted an order
in the following terms:
‘
1.
Reviewing and setting aside the
arbitration award by the third respondent on 26 June 2017
in the
arbitration proceedings between the applicant and the first
respondent under the auspices of the second respondent under
case
number MEMP2952.
2.
Substituting the decision of the third respondent with the decision
of this court
that the dismissal of Mr Willem Gabriel Jordaan was
substantively fair, alternatively referring the matter back to the
second respondent
for determination afresh by a commissioner other
than the third respondent.
3.
Granting the applicant
further and alternate relief and directing the respondents
who oppose
this application to pay the cost of this application jointly and
severally, the one paying others to be absolved.’
[3]
This application has been opposed by NUMSA,
acting on behalf of it’s member, Mr Willem Gabriel Jordaan (the
employee).
[4]
Mr Masutha, in preparing his heads of
argument, began by alluding that the facts, as summarised by counsel
for the applicant, whom
I think this is Mr Mac, appears to be
correct. Therefore, he conceded that those facts appear to, in
general, be common cause.
He confirmed this at the beginning of his
address today therefore I will take those facts to be common cause.
Background
[5]
The employee commenced his employment with
the applicant on 4 November 2014. He held the position of
assistant supervisor
of machinery. He is often referred to as a
maintenance coordinator. The applicant operates a chrome smelting
plant at Lydenburg
in Mpumalanga.
[6]
The
employee was appointed in terms of the General Machinery Regulation
in terms of section 2(7) of the Occupational Health and
Safety Act
[2]
(OHSA). He had various duties which included ensuring that he
reports in writing any deviations that he is unable to rectify
to an
engineering manager, often referred to as a GMR2(1) who is appointed
in terms of section 16(2) of the OHSA.
[7]
The employee had to ensure that he informed
this engineering manager of any queries, difficulties or any issues
that he is unable
to resolve. He had to ensure that the
operational integrity of the plant equipment, structures, processes
and protective
systems are monitored and assured on an ongoing
basis. He had to ensure that hazards are identified, assessed
and, as far
as reasonably possible, eliminated or treated to avoid
any employees working in the mine from getting injured or being
killed.
[8]
He had to perform all reasonable
instructions given to him by those that were senior to him. He had
people reporting to him as well
and he therefore also had to monitor
their services and ensure that whatever instructions given by him
were followed upon.
[9]
He reported to a Mr Christo Venter. On 18
November 2015 Mr Venter gave the employee an instruction to fix the
guarding on the Grizzly
loose, on what is known as the M662 feeder.
Mr Venter left it there and did not follow-up as to whether his
instructions were followed.
[10]
On 20 January 2016, that is the following
year, the employee processed or did a handover of his duties to Mr
Caswell Shabangu. This
was because the employee was scheduled to take
his vacation leave from 21 January 2016 and would be on leave for
about a week or
so.
[11]
Just a day after the handover had been
done, on 21 January 2016, Mr Venter together with the applicant’s
management team inspected
the plant, in particular the section of the
plant that the employee was responsible for. During that
inspection Mr Venter
and the applicant’s management team
discovered four deviations, including the guarding on the M662 feeder
and on the CV661
tail pulley.
[12]
As a result of these deviations, Mr Venter
and management were of the view that the employee did not comply with
instructions given
to him on 18 November 2015 to fix the guarding on
the M662 feeder. In addition, Mr Venter and management noted that the
employee
failed to provide feedback to Mr Venter regarding the
instruction that had then been given in November 2015.
[13]
In the circumstances, it was decided to
charge the employee with acts of misconduct. These were
described in the following
terms:
“
Failure
to adhere to SHEQ procedures, rules and regulations that apply and
gross negligence in that on 21 January 2016 it was discovered
that
you allegedly failed to make sure that the following item within your
area of responsibility or items within your area of
responsibility
are up to standard, namely: Grizzly loose over the hole and not
fixed. Primary crusher gate not locked.
CV661 tail pulley
guard not fitted and CV661 drive pulley or drive pulley guard open on
the side.”
[14]
An internal disciplinary enquiry was
convened and after all evidence was led, the employee was found
guilty of the misconduct he
was charged with, particularly misconduct
in respect of the M662 feeder and the CV661 tail pulley. I
think he would have
been acquitted of the other two, because there
were four deviations that had been found.
[15]
At the time when he was found guilty, it
remained common cause that he had a valid final written warning which
related to the failure
to comply with the applicant’s safety
rules and standards. The chairperson therefore decided to impose a
sanction of dismissal.
It was felt that in progressive discipline
there was no appropriate sanction other than a dismissal.
[16]
The employee lodged his internal appeal
against this decision, but that appeal was not successful. As a
member of the first
respondent, the dispute that had arisen was
referred as an unfair dismissal dispute to the CCMA for
conciliation. Conciliation
failed to resolve it and it was
referred to arbitration. The third respondent was appointed to
arbitrate this dispute.
[17]
I need not then deal extensively with the
findings of the commissioner in that presently before me there is no
counter review application.
I can just add that when the commissioner
had analysed all the evidence before him, he found the employee to be
guilty of the misconduct
with which he was charged. With that
finding having been made, the commissioner had then to apply his mind
on the appropriateness
of the sanction.
[18]
Mr Venter had testified and in his evidence
it had been conceded that after the finding of the defect on 21
January 2016 in relation
to what the employee was supposed to do,
these were left unattended for about a week until the employee came
back. Mr Venter
also conceded that he did not follow up on the
November 2015 instruction to make sure that it had been carried out.
[19]
The commissioner, considering these
concessions by the supervisor, Mr Venter, then said the following of
concern in these proceedings.
“
50.
Turning to the evidence of Mr Abraham
Christoff Venter who conceded to have had an element of discrepancy
on his part of superintendent in as far as safety is concerned.
He stated again that the whole team, that is himself included,
is
responsible for safety in case there is fatality. He also
agreed with the applicant that Mr Shabangu would have carried
out the
task. He did not inspect the area, which was supposed to be
welded, but dispute that it was welded to satisfactory
condition.
51.
Mr Abraham Christoff Venter, according to evidence, discovered the
discrepancies on 18 November
2015. Discrepancies needed an
urgent attention, according to him, but he did not follow it up
because the instruction was
given to applicant. Yet he had a
responsibility to ensure that the applicant followed the instruction.
52.
I find the action of Mr Abraham Christoff Venter to be inconsistent
with his responsibilities.
I find that the respondent was not
consistent in applying a rule relating to discipline, as it is clear
that Mr Abraham Christoff
Venter saw the deviation and did nothing.
It is my view that it is deviations. If the deviations needed
urgent attention
from the applicant, they also needed the same sense
of urgency from Mr Abraham Christoff Venter.
53.
Lastly, the applicant raised inconsistency with regard to Mr Moses
Maisela who was dismissed
for breaching the same safety rule and
later re-employed, as well as the matter of Mr Elvis Mnisi whose
company is having business
with the respondent.
54.
It should be mentioned that the case of the applicant is not about
the respondent failing to
re-employ or reinstate after dismissal, but
the dismissal related to misconduct. I find that the respondent
is not inconsistent
in this area.
55.
Taking the whole evidence presented before me, I find that the
respondent failed to consistently
apply the rule relating to safety
in terms of safety to subject Mr Abraham Christoff Venter to
disciplinary hearing. The
finding renders the dismissal
substantively unfair.
56.
I find the reinstatement law to be
appropriate remedy under the circumstances. I have also
taken
into account the length of period that has lapsed since the applicant
was dismissed.”
[20]
The applicant then approached this Court on
review seeking to challenge the findings of the commissioner that I
have briefly made
reference to and the decision made by the
commissioner.
Grounds
of review
[21]
The applicant alleges that the commissioner
committed, among others, gross irregularity and exceeded powers.
It is said that
this he did when he took the decision to determine
whether the applicant was inconsistent in the application of
discipline with
reference to Mr Venter. This is so because it was
common cause at the arbitration that the employee challenged the
alleged inconsistent
application of the discipline by the applicant
with reference to only Mr Maisela and Mr Mnisi, not Mr Venter.
[22]
Pausing here for a moment; it really was
the case that the only people who were mentioned as the subject of
any inconsistent disciplinary
procedures were Mr Maisela and Mr
Mnisi. Mr Venter was not cited. One can understand that
he could not be cited, because
he had committed no misconduct at that
stage, as appears on record.
[23]
Now, was the commissioner entitled to use
the evidence unfolding before him to find inconsistent application of
a disciplinary policy
in relation to Mr Venter is the main issue for
consideration before Court. Arbitration proceedings are not preceded
by pleadings
as is the case in the high court here or in the Labour
Court as well. What is very important, however, are the opening
remarks
of the parties, but also the closing remarks. The opening
remarks of the parties are important in that they inform the
commissioner
what issues are serving before that commissioner.
[24]
So at the beginning of the arbitration
hearing and during the evidence it was always made clear that the
inconsistent application
of the disciplinary procedure related to
only two persons, and these two persons did not include Mr Venter.
So from the very
beginning of the arbitration hearing the applicant
was not alerted to the fact that it might have to apply its mind to
the inconsistent
application of a disciplinary principle in relation
to Mr Venter. That issue was never raised really by the first
respondent so
that during the arbitration the applicant would be able
to apply his mind and lead relevant evidence in relation to that very
issue.
[25]
The commissioner
mero
motu
went on to embark on this
mission. Clearly when he did so, he deviated from what ought to
have been done by a commissioner
and he allowed some kind of a trial
by ambush. He therefore introduced an issue which had never served
before the parties, even
as an introduced issue.
[26]
A
guiding case on this principle is found in
ZA1
(Pty) Ltd t/a Naartjie Clothing v Goldman and Others
[3]
.
In that decision a principle is made out clearly that opening remarks
of the parties are important and they indicate and give
a guideline
to a commissioner what the issues are that the parties are coming to
deliberate on, and also the closing remarks of
the parties. In this
case there was a clear deviation by the commissioner, taking the
applicant by surprise. That, in my
view, does amount to a gross
irregularity as defined in the LRA.
[27]
There is a certain consideration. It talks
to the fact that the employee had a similar valid previous
misconduct. Therefore, when
he was dismissed, it was because the
employer was applying progressive discipline and yet no
evidence was brought by anyone
to indicate that Mr Venter was
similarly circumstanced so that one could argue that the comparator
or the comparison was of apples
only and not apples and oranges.
Therefore, the comparison that the commissioner relied on really was
unfair because there never
was any evidence led about it. Clearly the
commissioner exceeded his powers when he went out of his way and
relied on the concessions
made by Mr Venter about him having kept
this place unsafe for about a week.
[28]
In my view, it is this very conduct by the
commissioner which made him arrive at the conclusion that he did.
Had he not embarked
on this enquiry about Mr Venter, he would be left
with having to compare the position of the employee with the other
two persons
that had been mentioned. We do not know if those
two people had any previous acts of misconduct or any valid final
written
warnings, as it were but here we know that there was a final
written warning.
[29]
Clearly, therefore, the third respondent
arrived at a decision which a reasonable decision-maker could not
have arrived at on the
evidence that should have served before the
third respondent and clearly, therefore, the applicant has made out a
case for the
review of the arbitration award in this case, which
should not be allowed to stand.
[30]
I remind myself that the employee had been
found guilty by the employer and had been dismissed. It was but
for the finding
of the commissioner that he was saved and a
reinstatement order was made. In my view, had the commissioner
not committed
this gross irregularity, he would have found that the
sanction of dismissal was in the circumstances very much fair and
would have
left the decision of the employer to dismiss intact and
without interference.
[31]
Accordingly, the following order is made:
Order:
1.
The arbitration award is reviewed to the extent that it relates to
the sanction.
2.
It is found that the dismissal of Mr Jordaan by the applicant was
fair in the circumstances.
3.
No cost order is made.
____________________
H.
Cele
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr D Masher from Edward
Nathan Sonnenbergs Inc
For
the Respondent:
Mr Sello Mogare (Union Official)
[1]
No.
66 of 1995, as amended.
[2]
No.
85 of 1993.
[3]
(2013)
ILJ 2347 (LC).