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[2019] ZALCJHB 272
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Beyers v Anglo American Platinum Ltd Mogalakwena Section and Others (JR444/2017) [2019] ZALCJHB 272; [2020] 2 BLLR 173 (LC); (2020) 41 ILJ 1376 (LC) (11 October 2019)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no:
JR444/2017
In the matter between:
ADWIN
ADRIAAN
BEYERS
Applicant
and
ANGLO AMERICAN
PLATINUM LTD
MOGALAKWENA
SECTION First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION Second
Respondent
IRENE TSHIFHIWA
NYATHELA
N.O
Third
Respondent
Heard:
4
September 2019
Delivered:
11 October 2019
Summary:
Review of the disciplinary sanction by employer – not codified
but supported by practice – when there are no
exceptional
circumstances, the employer is bound by the election to issue a final
written warning – the
volte face
was
patently unjust to the employee – objection sustained –
dismissal substantively unfair.
JUDGMENT
NKUTHA-NKONTWANA, J
Introduction
[1]
This
is an application in terms of section 145(1) of the Labour Relations
Act
[1]
(LRA) by the applicant,
Mr Edwin Andriaan Beyers (Mr Beyers), to review and set aside the
arbitration award dated 9 February 2017
with case number LP6075-16,
issued under the auspices of the Commission for Conciliation
Mediation and Arbitration (CCMA). The
third respondent (commissioner)
found that the dismissal of Mr Beyers was both procedurally and
substantively fair.
[2]
The first respondent, Anglo American
Platinum Limited: Mogalakwena Section (Anglo American) is the only
respondent opposing the
application.
Background
facts
[3]
Mr Beyers was employed by Anglo American on 1 June
2015 as an Electrical Foreman at its Mogalakwena Business Area. On 21
April 2017,
Mr Beyers was served with a suspension letter pending an
investigation into an alleged breach of the
Isolation and
Lockout Operational Procedure (lock-out procedure) which provides:
‘
All
equipment associated with that machine must be locked out:
·
The tandem conveyor drive-both drives must be locked out as well as
the
electrical counterweight must be lowered into the position to
remove stored energy.
·
Crushers-all conveyors feeding in ore as well as auxiliaries’
associated
with the crusher must be locked out.
·
It is important that equipment is isolated and locked out in order to
prevent
personnel from starting such equipment while it being worked
on.
·
It is the responsibility of each person that works on equipment to do
his
lockout.
·
No person will work under someone else’s lockout.’
[4]
Mr
Le Roux Esterhuyse (Mr Esterhuyse),
Anglo American’s Section Engineer for the Dry Section and Mr
Beyers’ immediate
supervisor, made a statement of compliant,
stating:
‘
I, Le Roux
Esterhuyse, Sectional Engineer for the Dry Section at Mogalakwena
North Concentrator hereby declare the following:
On Wednesday, 20 April
2016 at approximately 11:00 I had been informed about the potential
lock-out violation at the 102-CV-01 conveyer
belt.
Upon investigation, I
determined that the Electrical Foreman for the Dry Section, Mr Edwin
Beyers, had commenced work, removing
bolts on the conveyer belt drive
motor guard, without him physically applying lock-out or signing the
lock-out register.
Mr Peet Slippers has at
the time of the incident correctly applied his lock-out log and
signed the register.
Mr Tommie Pienaar was
also observed having signed on behalf of Mr Edwin Beyers the lock-out
register and applying a lock-out on
behalf of Beyers. The lock-out
and isolation for Mr Tommie Pienaar was correctly done at the time
that this incident was reported
to me.
I hereby wish to proceed
with the disciplinary action against Mr Edwin Beyers on a charge of
“Failure to comply with code
of good practice” related to
lock-out and Isolation COP and procedure.’
[5]
On 3 May 2016, Mr Beyer was served with a notice to attend a
disciplinary
enquiry on a charge of ‘failure to comply with the
Code of Good Practice’. On 10 May 2016, the disciplinary
enquiry
sat under the chairpersonship of Mr Ferreira. Mr Beyers
entered a plea of guilty. Mr Ferreira allowed the parties to address
him
in mitigation and aggravation of the sanction.
[6]
Mr Esterhuyse, the complainant and Anglo American’s
representative,
presented a written submission stating:
‘
After my
investigation I found that the workplace was safe and no one was ever
put in harms’ way. This was a breach in procedure
only. This is
also the first offence of Mr Edwin Beyers and the relationship is
still healthy.’
[7]
Mr Ferreira consulted with Mr R Hlokwe (Mr Hlokwe), the Employee
Relations
Manager, regarding the appropriate sanction and
subsequently rendered the following outcome in writing:
‘
The
following sanction will apply to the code in question based on the
following information gathered during the cause charged:
“Failure
to comply with code of good practice”.
1.
The complainant is of the view that the action did not endanger any
personnel
working with Mr Beyers.
2.
Mr Beyers admitted guilt and gave evidence as per one (1) above.
3.
Mr Beyers has a clearer record.
The chairperson is,
however, of the opinion that this is a serious offence and in light
of the above the appropriate sanction, after
consultation with the ER
Manager, is a Final Written Warning with none additional sanctions.
1.
The accused have to be re-trained on the Lock-out Procedure before
commencing
duty.
2.
The accused shall for as long as the sanction is valid on a daily
basis do planned
Task Observations on his sub-ordinates on the safe
application of lock-outs as per procedure.’
[8]
Subsequently, Mr Beyers was sent for re-training as per the outcome
of
the disciplinary enquiry and accordingly reported for duty.
[9]
According to Mr Hlokwe, the National Union of Mineworkers (NUM)
lodged
a complaint regarding Mr Beyers’ final written warning,
accusing Anglo American of inconsistent application of discipline
as
its members who had been found guilty of the same transgression in
the past were dismissed. Consequently, Anglo American resolved
to
review the chairperson’s verdict.
[10]
On 23 May 2016, Mr Beyers was served with a letter suspending him
with immediate effect
pending the outcome of the review enquiry on a
charge of failure to comply with the Code of Good Practice.
[11]
Mr Hlokwe drafted the terms of reference for the review committee
that was appointed to
review the sanction imposed by the chairperson
of the disciplinary enquiry on 10 May 2016 and the objective thereof
being to:
‘…
conduct a
review of the hearing in order to determine the appropriateness of
the outcome which emanates from such disciplinary hearing
in terms of
which the chairperson of the disciplinary hearing arrived at an
unacceptable decision of final written warning on a
serious safety
transgression.’
[12]
The review enquiry was held on 3 June 2016. At the end of the
sitting, the review committee
requested Mr Hlokwe to provide it with
the following information: The valid lock-out tags; Mr Esterhuyse’s
investigation
outcome; and the past similar decided cases either
within Mogalakwena or elsewhere in the group.
[13]
It is not clear whether the above information was ever provided as
requested. Nonetheless,
on 9 June 2016, the review committee
presented a written outcome which concluded as follows:
‘
Based
on the points above and the Behavioural Code of the Company, it is
the recommendation from the review of the disciplinary
hearing that
the sanction imposed on the Employee be amended from “Final
Written Warning” to “Dismissal”.’
[14]
Mr Beyers was summarily dismissed on 10 June 2016. He was earning a
gross salary of R57 257.97
at that time. As a result, Mr Beyers
challenged the fairness of his dismissal. He referred an unfair
dismissal dispute to the CCMA
for conciliation and later arbitration.
Review
test
[15]
The review
test is
comprehensively
spelt out in
Sidumo
and Another v Rustenburg Platinum Mines
[2]
and
subsequently
expounded in various
dicta
of both the Supreme Court of Appeal (SCA) and the Labour Appal Court
(LAC).
[3]
Pertinently,
in
Palluci
Home Depot (Pty) Ltd v Herskowitz and Others,
[4]
where the LAC underscored the fact that:
‘
[15]
…the Labour Court’s approach to the review of the
Commissioner's
award transcends the mere identification of process
related errors to reveal the Commissioner’s basic failure to
apply his
mind to considerations that were material to the outcome of
the dispute, resulting in a misconceived hearing or a decision which
no reasonable decision-maker could reach on all the evidence that was
before him or her.
[16]
Significantly, as was held by the SCA in
Herholdt
and endorsed
recently by this Court
in Head of the Department of Education v
Jonas Mohale Mofokeng and Others
, ‘for a defect in the
conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii) of
the LRA, the arbitrator must have
misconceived the nature of the enquiry or arrived at an unreasonable
result’.
Thus, as recognised in Mofokeng, it is not only the
unreasonableness of the outcome of an arbitrator's award which is
subject to
scrutiny, the arbitrator ‘must not misconceive the
inquiry or undertake the inquiry in a misconceived manner’, as
this
would not lead to a fair trial of the issues
. In further
approval of
Herholdt
, this Court in
Mofokeng
stated
that:
‘
Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning
of the arbitrator,
evidence in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material
factors etc. must be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong inquiry, undertaken
the inquiry in the wrong
manner or arrived at an unreasonable result.
Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly
or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the
material
that was before him or her
.’ (Emphasis added)
Arbitration
proceedings
[16]
The issues that the commissioner had to decide can be summarised as
follows:
16.1
Whether the employer was allowed to review its own disciplinary
sanctions;
16.2
Whether the review enquiry was fair as Mr Beyers was not allowed an
opportunity to cross
examine the witnesses of Anglo American;
16.3
Whether the rule was consistently applied as Mr Pienaar was not
dismissed; and
16.4
Whether the sanction of dismissal was appropriate in the
circumstances of this matter.
[17]
The commissioner found that the dismissal of Mr Beyers was both
procedurally and substantively
fair. As a result, the commissioner’s
findings in relation to the above issues are Mr Beyers’ grounds
of review. Primarily,
his impugned is that the commissioner failed to
apply her mind to the evidence that was before her, misconceived the
enquiry and
arrived at an unreasonable outcome.
Was
the practice established?
[18]
It is common cause that the Disciplinary Code did not confer Anglo
American with powers
to review a chairperson’s decision.
Therefore, the onus was on Anglo American to prove, on balance of
probabilities, that
it was entitled to review its own sanction. In
this regard, Mr Hlokwe testified that it was Anglo American’s
practice to
review the sanctions imposed by disciplinary enquiry
chairpersons. Anglo American handed up the documentary evidence to
show that
the practice did indeed exist. However, the said
documentation went up to 2010.
[19]
In 2011, Anglo American amended the Disciplinary Code but did not
codify the practice.
Mr Hlokwe referred to two previous review cases
which were conducted after the adoption of the Disciplinary Code but
did not provide
copies of the said cases.
[20]
The Commissioner concluded that Anglo American was entitled to review
its own sanction
based on evidence of Mr Hlokwe. She stated:
‘
5.2.3
Mr Hlokwe referred to previous review cases which were conducted at
the workplace although the misconduct committed
were different from
the misconduct committed in the current case and the fact that the
review process can be initiated by any of
the parties. He also
referred to an arbitration award wherein Commissioner P Kekana under
case no: GAJB34949 dated 1 September
2011 involving the same employer
wherein he found at paragraph 39 that the “The practice was
fair because it could be initiated
by both parties. Evidence before
me is that some decisions favoured the employer and employees…”
Mr Hlokwe also referred
to two recent review cases which were
conducted after the adoption of the disciplinary code but had not
attached copies of those
cases in his bundle of documents. The
employee argued that the employer is not entitled to review its own
sanction as that has
not been provided for by the disciplinary
procedure, but the employer in this case was able to show an
established practice of
review of disciplinary sanctions and
therefore I find that the employer was entitled to review its own
sanction.
5.2.4
Furthermore, there was no evidence that at some point the employer’s
practice to review disciplinary
sanction was dealt away with save to
argue that since 2010 the employer did not review any case. The
employer, on the other hand,
testified about two cases which were
reviewed recently but did not have copies of the said cases. I am of
the view that the fact
that the employer has not brought copies of
the recent two cases does not mean that it has abandoned the review
process. I am satisfied
that the employer has on the balance of
probabilities shown that that the employer has an established
practice to review its own
disciplinary sanctions in case the
sanction is not in line with the disciplinary code and
procedure.’
[21]
In these proceedings, Mr Goosen who appeared for Mr Beyers submitted
that Anglo American
failed to provide an explanation for relying on
documentary proof to show that the practice existed until 2010 but
failed to provide
any similar documentary proof for the period post
2010. Therefore, the commissioner unreasonably accepted the secondary
evidence
with reference to two other cases which were reviewed post
2010 in the absence of any documentary proof of the said cases and in
circumstances where the alleged practice was specifically challenged,
so his submission went further.
[22]
On the other hand, Mr Nhlapho, who appeared for Anglo American,
submitted that the commissioner
correctly accepted the evidence of Mr
Hlokwe and found that Anglo American had an established practice to
review its own disciplinary
sanctions.
[23]
It is clear from the award that the commissioner had due regard to
the award issued by
commissioner Kekana in 2011 which confirmed the
existence of the review practice by Anglo American and the fairness
thereof. Also,
Mr Hlokwe’s evidence that there were two other
instances that took place post 2010 where he was personally involved
was not
seriously challenged. As such, the failure to produce
documentary proof of those instances is inconsequential. In my view,
the
finding by the commissioner that the practice of reviewing
disciplinary sanctions was well established and had never been
renounced
is unassailable.
Was
the review enquiry fair or justified by exceptional circumstances?
[24]
The other ground of review is that the commissioner unreasonably
failed to determine whether
the review of the chairperson by Anglo
American was, in all circumstances, fair. It was submitted that such
failure rendered the
ultimate decision that Anglo American was
entitled to review Mr Beyers’ sanction unreasonable.
[25]
The essence of Mr Beyers impugn in this regard was that he had not
been afforded an opportunity
to cross examine the witnesses of Anglo
American. Mr Hlokwe was, however, clear in his evidence during
cross-examination that there
was no evidence led during the review
enquiry but parties presented their oral submissions in relation to
the appropriateness of
the sanction. As such, there was no need for
any cross-examination. Therefore, there is no merit in this ground.
[26]
However, Mr Goosen
dealt with Mr Beyers’
broad argument by contending that
given the circumstances that
led to the review enquiry, it follows, therefore, that once the
senior management had decided that
Mr Beyers ought to have been
dismissed, consequent to NUM’s compliant, his fate was sealed.
The whole process was designed
and executed to ensure that Mr Beyers
was in fact dismissed, so he further submitted. The essence of these
submissions is that
there were no exceptional circumstances to
justify the review enquiry.
[27]
In
Samson
v Commission for Conciliation, Mediation and Arbitration and
Others,
[5]
this Court, as per Van Niekerk J, stated:
‘
[12]
…the law as it presently stands is that an
employer is entitled,
when it is fair to
do so (subject to the qualification that it is only in exceptional
circumstances that it will be fair)
to
revisit a penalty already imposed and substitute it with a more
severe sanction.’ (Emphasis added)
[28]
The dictum
in
Samson
[6]
encapsulates
the principles set out in
BMW
(South Africa) (Pty) Ltd v Van der
Walt,
[7]
which was referred to with approval in
Country
Fair Foods (Pty) Ltd v The Commission for Conciliation, Mediation
and
Arbitration
and
Others
,
[8]
where it was stated:
‘
[22]
In
BMW SA (Pty) Ltd v Van der Walt
(2001) 21
ILJ
113
(LAC) Conradie JA cautioned against the importation of the principles
of
autrefois acquit
into labour law. He then made
two cautionary remarks:
“
It
may be that the second disciplinary enquiry is
ultra
vires
the employer’s disciplinary code (
Strydom v
Usko Ltd
[1997] 3 BLLR 343
(CCMA) at 350F–G).
That might be a stumbling block. Secondly, it would probably not be
considered to be fair to
hold more than one disciplinary enquiry save
in rather exceptional circumstances” (at paragraph 12).
[23]
In the present case appellant acted without recourse to the express
provision of its disciplinary
code and on the basis of no precedent.
Second respondent decided that the evidence put up by appellant did
not justify interference
with the Kemp enquiry. In my view, there is
no basis for concluding that the decision of second respondent was
unjustifiable, in
terms of the evidence which was presented at the
arbitration hearing.’
[9]
[29]
Turning to the
present case, even though Anglo
American acted in terms of an establised practice, it was
incumbent
upon it to prove the exeptional cricmustances
that
justified its decision to review and change Mr Beyers’ final
written warning.
[30]
Anglo American
sought to rely
on
inconsistency in the application of discipline as a
bona fide
reason for its intervention. However, it failed to adduce proof that
the sanction of final written warning was, in the circumstances
of
the present case, inconsistent with sanctions issued on similar
circumstances in the past. This is so despite being specifically
placed in dispute that similar cases in the past necessarily resulted
in dismissal.
[31]
On the contrary, Anglo American’s case
during the arbitration was that the transgression was serious enough
to justify the
review of the sanction of a final written warning and
substitution with a sanction of dismissal. No new evidence was placed
before
the commissioner in this regard, at least to justify the
drastic intervention. Particularly, since Mr Ferreira had duly
addressed
himself on distinctive circumstances of this case. Whilst
being alive to the seriousness of the transgression, Mr Ferreira took
into consideration,
inter alia
,
the remorse showed by Mr Beyers; and the submission by Mr Esterhuyse
that the transgression was only procedural, no one was put
in danger
and that the relationship was still intact. Notwithstanding, Mr
Ferreira exercised caution by going an extra mile and
sought advised
from Mr Hlokwe on the appropriateness of the sanction which he, Mr
Hlokwe, duly endorsed.
[32]
Mr Hlokwe did not dispute the fact that he had
sanctioned the final written warning even though he sought to blame
it on some confusion
on the seriousness of the transgression at that
time. Nonetheless, he could not dispute Mr Ferreira’s which
addressed the
seriousness of the offence and the mitigating
circumstances adequately.
[33]
Also, Mr Beyers’ evidence that Mr Pienaar
did perform the lock-out for him and gave him his key back was not
disputed. Conversely,
Mr Esterhuyse conceded during cross-examination
that the transgression would amount to a procedural breach in
relation to failure
by Mr Beyers to sign the register if Mr Beyers
did, indeed, perform a lock-out using his own key. Mr Esterhuyse also
conceded that
the allegations recorded in his statement of complaint
dated 26 April 2016, six days after the incident, corroborate Mr
Beyers
version of events that indeed his lock-out was attended to by
Mr Pienaar but he, Mr Beyers, did not sign the register. Therefore,
it is clear that Mr Esterhuyse was disingenuous in his evidence in
chief when he testified that the statement he submitted in mitigation
of the sanction was made in error.
[34]
In
the absence of exceptional circumstances to justify the review
enquiry, it is my view that such conduct
is
impermissible in terms of the doctrine of the right of election which
is fundamental in our law and espoused in labour matters
as well.
This Court dealt with this doctrine in
Rabie
v Department of Trade and Industry and Another
[10]
and
stated:
‘
[27] Another
reason why abandoning the pre-dismissal arbitration is unlawful is
that it is impermissible in terms of the doctrine
of the right of
election which has since been endorsed by the Constitutional Court in
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
.
[11]
The Constitutional Court referred with approval to
Chamber
of Mines of South Africa v National Union of Mineworkers and
Another
[12]
where it was stated that:
‘
One or other of
two parties between whom some legal relationship subsists is
sometimes faced with two alternative and entirely inconsistent
courses of action or remedies.
The principle that in this
situation the law will not allow that party to blow hot and cold is a
fundamental one of general application
. A useful illustration of
the principle is offered in the relationship between master and
servant when there comes to the knowledge
of the former some conduct
on the part of the latter justifying the servant’s dismissal.
The position in which the master
then finds himself is thus described
by Bristowe J in
Angehrn and Piel v Federal Cold Storage Co Ltd
1908 TS 761
at 786:
‘
It seems to me
that as soon as an act or group of acts clearly justifying dismissal
comes to the knowledge of the employer it is
for him to elect whether
he will determine the contract or retain the servant… He must
be allowed a reasonable time within
which to make his election.
Still, make it he must, and having once made it he must abide by it.
In this, as in all cases of election,
he cannot first take one road
and then turn back and take another
.
Quod semel placuit in
electionibus amplius displicere non potes
t (see Coke Litt 146,
and Dig 30.1.84.9; 18.3.4.2; 45.1.112). If an unequivocal act has
been performed, that is, an act which necessarily
supposes an
election in a particular direction, that is conclusive proof of the
election having taken place.’
The
above statement of the principle may require amplification in
the following respect indicated by Spencer Bower
Estoppel by
Representation
(1923) para 244 at 224 - 5:
‘
It is not... quite
correct to say nakedly that a right of election, when once exercised,
is exhausted and irrevocable, or in Coke's
phraseology:
quod semel
in electionibus placuit amplius displicere non potest
, as if mere
mutability were for its own sake alone banned and penalized by the
law as a public offence, irrespective of the
question whether
any individual has been injured by the volte-face. It is not so.
A
man may change his mind as often as he pleases, so long as no
injustice is thereby done to another. If there is no person who
raises any objection, having the right to do so, the law raises
none
.’ (Emphasis added)
[35]
Anglo
American exercised an election to issue Mr Beyers with a final
written warning, final disciplinary discretion it had delegated
to a
person
qua
chair of a disciplinary enquiry. Put differently, Mr Ferreira was
clothed with the
persona
of Anglo American and as such his decision was definitely that of
Anglo American.
[13]
Accordingly, having exercised its election, Anglo American was barred
from blowing hot and cold.
[36]
It follows that, in the absence of exceptional circumstances, Anglo
American’s
volte face
was patently unjust to Mr Beyers;
hence his objection. The dictates of modest fairness between employer
and employee demand that
his objection should be sustained.
Conclusion
[37]
In all the circumstances, I am satisfied that the
commissioner clearly misconceived the enquiry and as a result
rendered an unreasonable
outcome. As a result, the award on
substantive fairness stands to be reviewed and set aside. However,
the findings of the arbitrator
on the procedural fairness cannot be
impugned and must stand.
[38]
I deem it expedient
not
remit this matter back to the CCMA in the interest of justice. The
issues were properly ventilated during the arbitration proceedings
and the adequacy of the record of those proceedings is not placed in
issue. I am, accordingly, in a position to deal with the matter
to
its finality.
Appropriate remedy
[39]
In the light of
the findings I have arrived at on
the substantive fairness above, it is clear that the dismissal of Mr
Beyers was substantively
unfair. The only issue outstanding is the
remedy.
[40]
In
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others (Kruger),
[14]
the LAC held that:
‘
[42]
Thus, in my view, it must follow that if the substitution of a
sanction is invalid, as found in Chatrooghoon,
that invalidity
vitiates the act completely; ie it cannot be made.
Invalidity is
more than procedural unfairness, it denotes an unlawful act; ie one
the law will not acknowledge. Accordingly, in
my view Pillay J was
correct to hold that an invalid substitution of a sanction was not
merely an instance of procedural unfairness
that might leave open a
space for a parallel enquiry into the appropriateness of a remedy for
such a “procedural” mishap
and, in turn, allow space to
address the gravamen of the misconduct per se
. Similarly, the
contention that the judgment of Ndlovu JA, in Chatrooghoon, has
application only to procedural unfairness cannot
succeed because the
force of those dicta by Ndlovu JA is that a substitution of a
sanction without a lawful foundation, is not
merely unfair for want
of a procedural authorisation, but is invalid.’ (Emphasis
added)
[41]
In the present case, it is common cause that the Anglo American’s
Disciplinary Code
and the breach of health and safety rules are not
automatically sanctioned by dismissal. The appropriate sanction is
required to
be determined with reference to all the relevant
circumstances at the time or, as expressly stated, depending on the
facts and
circumstances of each case.
[42]
As state above, Anglo American failed to lead evidence to prove
inconsistency in the application
of discipline as a result of Mr
Beyers final written warning. Mr Esterhuyse, the complainant and Mr
Beyers supervisor, supported
a corrective sanction after he conducted
an investigation on the circumstances that led to the transgression
and was happy that
the relationship with Mr Beyers was still
healthy.
[43]
Most importantly, the Ferreira verdict also directed Mr Beyers as
follows:
‘
1.
The accused have to be
re-trained on the Lock-out Procedure before
commencing duty
.
2.
The accused shall for
as long as the sanction is valid on a daily
basis do planned Task Observations on his sub-ordinates on the safe
application of
lock-outs as per procedure
.’ (Emphasis
added)
[44]
Mr Ferreira was clearly convinced that Mr Beyers is not incorrigible
hence a sanction of
a final written warning. However, he also
addressed the safety concerns through the above directive. Therefore,
Mr Hlokwe’s
evidence that training would not correct Mr Beyers’
conduct as it amounted to ‘behavioural issue’ stands to
be
rejected as it is devoid of reality and in dissonance with the
Disciplinary Code which supports ‘progressive behaviour
management’.
[45]
I am,
accordingly satisfied that there are no compelling reasons tendered
by Anglo American to debar Mr Beyers the primary remedy
of
reinstatement in terms of the LRA.
[15]
When it comes to the amount of the back pay, I have considered the
circumstances of this case and the fact that Mr Beyers was almost
a
year in the employ of Anglo American at the time of his dismissal.
I
deem it just and equitable to order reinstatement with a back pay
equivalent to 12 months’ salary (R
57 257.97
per month x 12 = R687 095.64).
Costs
[46]
Since each party has been considerably successful, it accords with
the requirements of the law and fairness that each
party carry its own costs.
[47]
In the circumstances, I make the following order.
Order
1. The
arbitration award
dated 9 February 2017, under
case number LP6075-16,
is reviewed and set aside, only to the
extent that the commissioner found that the dismissal of the
applicant, Mr Beyers, was substantively
fair, and substituted with
the following order:
1.1
The dismissal of Mr Beyers is substantively unfair.
1.2
The first respondent, Anglo American Platinum Limited:
Mogalakwena Section, is to reinstate Mr Beyers retrospectively with a
back
pay of R687 095.64 to be paid within two weeks from the date of
this order.
1.3
The disciplinary enquiry verdict by Mr Ferreira is reinstated
and shall be valid for a period of 12 months.
2. There is
no order as to costs.
_________________
P. Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances
For the Applicant:
Advocate
C Goosen
Instructed
by: Parsons
Attorneys
For
the Respondents: Mr B
Nhlapho of Cliffe Deker Hofmetr Inc
[1]
Act 66 of 1995, as Amended.
Section
145(1) of the LRA provides:
‘
Any
party to a dispute who alleges a defect in any arbitration
proceedings under the auspices of the Commission may apply to the
Labour Court for an order setting aside the arbitration award─
(a)
within six
weeks of the date that the award was served on the applicant, unless
the alleged defect involves the commission of
an offence referred to
in Part 1 to 4, or section 17, 20, or 21 (in so far as it relates to
the aforementioned offences) of Chapter
2 of the
Prevention
and Combating
of Corrupt Activities Act, 2004
;
or
(b)
if the alleged defect involves an offence
referred to in paragraph (a), within six weeks of the date that
the
applicant discovers such offence.’
[2]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd
and
Others
[2007] 12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC) paras 78 and 79.
[3]
See:
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC);
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curia)
[2013] 11 BLLR 1074 (SCA).
[4]
2014] ZALAC 81
;
[2015] 5 BLLR 484
(LAC); (2015) 36 ILJ 1511 (LAC) at
paras 15 to 16.
[5]
(2010) 31 ILJ 170 (LC);
[2009] 11 BLLR 1119
(LC) at para 11.
[6]
Ibid.
[7]
[2000] 2 BLLR 121
(LAC) at para 12.
[8]
(2003) 24 ILJ 355 (LAC) at paras 22 to 23.
[9]
See also:
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others (Kruger)
[2016] 3 BLLR 297
([2015] ZALAC
52; (2016) 37 ILJ 655) (LAC)
at
para 31. Even though this decision was reversed at appeal, the
Constitutional Court only pronounced on the appropriateness
of
reinstatement as a remedy in the light of the seriousness of the
transgression and the fact that circumstances surrounding
the
dismissal were such that a continued employment relationship would
have been intolerable.
[10]
Rabie v
Department of Trade and Industry and Another
(LC),
unreported case no J515/18 (5 March 20180 at para 27.
[11]
[2008] ZACC 16
;
2009 (1) SA 390
(CC);
[2008] 12 BLLR 1129
(CC); [2008] 29 ILJ 2507
(CC) at para 54.
[12]
1987 (1) SA 668
(AD) at
690
D-G.
[13]
See:
Kruger
above
n 9 at para 41.
[14]
Kruger
above
n 9 at para 42.
[15]
The present case is distinguishable from the dictum in
South
African Revenue Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2016]
ZACC 38
;
[2017] 1 BLLR 8
(CC); (2017) 38 ILJ 97 (CC);
2017 (1) SA
549
(CC);
2017 (2) BCLR 241
(CC).