THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JA 52/24
In the matter between:
GLENCORE OPERATIONS SOUTH AFRICA (PTY) LTD Appellant
and
THOKOZANI TAALA First Respondent
NATIONAL UN ION OF MINEWORKERS Second Respondent
COMMISS ION FOR CONCI LIATION
MEDIATION & ARBITRATION Third Respondent
COMMIS SIONER ALFRED MASHEGOANA N.O Fourth Respondent
Heard: 18 March 2025
Delivered: 27 March 2025
Coram: Van Niekerk JA , Nkuta Nkotwana JA et Sutherland AJA
2
JUDGMENT
VAN NIEKERK, JA
Introduction
[1] This appeal has its genesis in an incident that occurred on one of the appellant’s
mining operations at 15:21 on 23 November 2016, when a crane in the process of lifting
a Pit Viper drill mast toppled over, causing a loss of some R5.6 million. The accident
occurred because the drill mast was too heavy for the crane’s selected parameter s –
the wrong counterweight had been selected and fitted to the crane in relation to the load
to be lifted.
[2] An investigation into the incident revealed t hat the crane operator had furnished
the first respondent (employee) , a rigger, with the incorrect load chart for the
counterweight fitted to the crane. The appellant alleged that the employee was negligent
because he had failed to verify the rigging details furnished to him by the crane operator
against the actual c rane configuration. The employee was found guilty of the charge
and dismissed.
[3] The employee disputed the fairness of his dismissal and ultimately referred the
matter to an arbitration hearing conducted by the fourth respondent (arbitrator). The
arbitrator found that the employee’s dismissal was substantively unfair because the
appellant had failed to prove that the employee was required to verify the crane
operator’s selection on the crane’s load chart and secondly, on account of the
appellant’s failure to take disciplinary action against other employees whom the employee alleged should also bear culpability for the incident. The arbitrator ordered
that the employee be reinstated into his position without loss of benefit.
3
[4] The appellant sought to have the arbitrator’s award reviewed and set aside. The
Labour Court (per Dave AJ) dismissed the application and upheld the arbitrator’s award.
With the leave of that Court, t he appellant appeals against the Labour Court’s order.
The arbitration proceedings
[5] At the arbitration hearing, the employee disputed the fairness of his dismissal on
two grounds ; first, that he was under no duty to verify the correctness of the load chart
selection provided by the crane operator (specifically, that there was no written rule
which required him to do s o) and secondly, that the appellant had failed to act
consistently in the exercise of discipline because the supervisor who signed the permit
had not been dismissed.
[6] It was not in dispute that the direct cause of the accident was that the crane had
been fitted with a counterweight of 16.7 tons, an insufficient weight to balance the crane
when lifting 25.6 tons, the weight of the drill mast. The resulting imbalance caused the
crane to topple forward when it attempted to lift the drill mast. The first witness to testify
on behalf of the appellant , Mr Neil van Zyl, read from a statement prepared at the time
of the acci dent. He testified that the crane was operated by Mr Sam Serage. The
electronic control system (the LICCON system) used in the crane displayed a load chart
in the cabin , indicating that the operator had used code 0027, which represented a
counterweight of 46.5 tons. The actual counterweight fitted to the crane was 16.7 tons ,
corresponding to code 0021. The crane operator had furnished the employee with a
load chart that indicated a counterweight of 46.7 tons, sufficient to safely conduct the lifting operation. Van Zyl testified that it was not for the employee simply to accept the
information given to h im by the crane operator – “ [H]e must confirm that it is the correct
detail that he puts on his rigging study ”.
[7] Mr Dudley Lotter, an engineering manager who led the team that investigated the
accident, spoke to the report and testified that the direct cause of the accident was that
the drill mast was too heavy for the crane’s selected parameters. The rigging study
4
calculation had been correctly performed by the employee, but the incorrect load chart
information had been supplied to him by the crane operator. The crane operator had
given the employee information that was used for the 46.7- ton counterweight instead of
the actual 16.7 that had been fitted to the crane. In other words, the c rane operator had
selected the wrong load chart for the counterweight of 16.7 t ons fitted to th e crane.
[8] The report prepared by the invest igation team made a number of findings. The
first was that the direct cause of the accident had been that the rigging study calculation
was correctly done by t he rigger (the employee), but the wrong load chart information
was supplied to him by the crane operator , resulting in the wrong counterweight being
selected. F urther, the crane operator had selected the wrong load chart for the
counterweight fitted to the crane. Under the heading ‘Absent or failed defences ’, the
report indicates the following:
‘2. The Lifting and Cranage COP, procedures and PTO as well as the lifting and
cranage permit do not require the actual counterweight and the actual load chart to be
matched as a check.
3. The crane’s safety system (LICCON) requires operator to select the correct chart
for the counterweight fitted, thereby providing an opportunity to override the safety
system through a manual input.
4. The rigging study calculation was correctly done by the rigger, but the wrong load
chart information was supplied to him by the crane operator resulting in the wrong
counterweight being selected.
5. Not all supervisors taking charge of lifting activities and the permit have specific
training on the rigging studies and more technical aspects of the lifting and crane each process.
Contributing Factors - Individual or Team Actions (Human Factors)
6. The rigging study calculation was correctly done by the rigger the wrong load
chart information was supplied to him by the crane operator resulting in the wrong counterweight being selected.
7. The crane operator selected the incorrect load chart code for the counterweight
fitted to the crane (16.7T) .
5
8. At the e nd of the shift , the initial guide rope handlers went home resulting in the
risk assessment not being discussed with the new guide rope handlers by the rigger …
11. The Lifting and Cranage COP, procedures and PTO as well as the lifting and
cranage permit do not require an actual counter weight and the load chart to be
matched as a check…. ’
[9] Item 11 was identified as a key corrective/preve ntative action to avoid a repeat
incident. One of the other corrective actions identified in the report was “ Consequence
management for failure to perform the rigging study correctly to ensure crane operator
selected the correct load chart for counter weight fitted (Rigger) ”.
[10] Lotter described the duties of a rigger. These include the preparation of a lifting
plan, which defines where the crane must be positioned , the load to be lifted, the weight
of the load, and the swing radius. The rigger calculates the counterweight needed to lift
the specified load. In the present case, the employee calculated that the weight required
was 25.8 tons, with an allowance of up to 35.5 tons. The crane was thus set up with a safety factor of more than 25%. Lotter testified that at Tweefontein, two counterweights
were in use: for smaller loads, a 16.9- ton counterweight was us ed; for heavier loads , a
46.5- ton counterweight was used. In the present instance, the 16.9- ton counterweight
was utilised. That counterweight was selected in circumstances where the chart
selected the 46.5- ton counterweight .
[11] Lotter’s testimony was that it was the employee’s responsibility to ensure that the
load chart and the counterweight matched. He testified that the employee was culpable
on account of the following:
‘So he never physically went and checked in the crane on the system what it is which
should have happened bec ause that is part of responsibility to ensure that he has got
the right load chart and that he has got the right counterweight fitted for that load chart on the crane.’
6
Put another way, for Lotter, the source of the obligation to verify the information
furnished to him by the crane operator lay in the employee’s appointment as the
competent person and his overall responsibility for the lifting procedure:
‘Well, number 6 is really, it is contributing. It is the same point but it says rigging study
calculation was correctly done by the rigger but the wrong load chart information was
supplied to him by the operator resulting in the wrong counterweights being selected. So based on that point if he then actually checked in the cab and said, whoa, you know, this is the char t you selected but that is not the counterweight at the back you selected,
you know, he could have actually then said, it is not correct.
[12] After Lotter’s evidence, and after the appellant’s third witness , De Bruyn , had
been called, the arbitrator made clear that :
‘…the company’s case if I understand it correctly was that the applicant was suppose d
to verify the information received from t he operator. Now the question is becoming
whether or not and lead evidence whether or not that is in terms of his job description, in
terms of his standard operating procedure. That is what is neede d to prove or disprove
the other party’s case.’
[13] By the time of that intervention, the parties could have been under no illusion that
the central issue in dispute was the source of any obligation on the part of the employee
to verify the information furnished by the crane operator and that it was necessary to
lead evidence to establish that source. De Bruyn’s evidence centered on the
qualifications demanded of a rigger, a level 4 NQF qualification. De Bru yn’s evidence
was largely concerned with the relevant unit standards and their content, none of which
was in dispute. Under cross- examination, De Bruyn could not comment on the
existence of any obligation by a rigger to confirm a loading chart furnished by a crane
operator ; his evidence was limited to more general observations regarding the training
of a rigger and the relevant standards.
[14] The employee’s evidence was based on a written statement recorded at the time
of the incident. In essence, the employee state d that he was given the task of installing
7
the drill mast and went to the site with his assistant and the crane operator. He
completed the rigging study, which was handed to his supervisor, who issued the permit
required to proceed with the lift. The employee stated that he conducted the rigging
study together with the crane operator . He was not permitted to come closer to the
crane to verify whether the crane operator had selected the correct code for the load
chart, and he was not allowed to operate the crane. The senior supervisor who
approved the permit should also have been charged with misconduct. He confirmed that he had selected the 16.9- ton counterweight in the rigging study based on what the
crane operator told him. Had the crane operator selected the correct code, the accident
would not have occurred. The employee denied that he had any obligation to verify
whether the crane operator had selected the correct code and stated that he was not
authori sed to enter the crane operator’s cab. In the employee’s view, the accident was
caused by the crane operator entering the wrong code into the system. In doing so, he
overrode the crane. In the employee’s view, if he and the crane operator were to be
charged in relation to t he accident , the supervisor who had signed the permit for the lift
to proceed ought also to be charged. Under cross -examination, the appellant’s
representative focused on the NQ F qualification attained by the employee, the training
that he had received and the unit standards that were met. The unit standards put to the
employee for his comment were those derived from NQF levels dated 2009, in circumstances where the employee had completed his trade test in 2004. The employee
thus disputed the fairness of putting standards to him that may not have been applicable
at the time of his training.
The arbitration award
[15] After a summary of the evidence and the applicable legal principles, the arbitrator
came to the following conclusions:
‘35. The ICAM report clearly stipulates that the A pplicant’s calculations were correct
and this was common cause to both parties. The issue is not with the A pplicant
supposed to verify the load chart selected and given to him by the C rane operator,
Whether or not there was a rule to this effect?
8
36. The respondent’s witnesses confirmed that there were no written rules and
argued that the Applicant was the senior person responsible to manage the team as per
unit standard, these was disputed by the A pplicant. Bundle M, the u nit standards dated
2009 was highly challenged and it wa s not confirmed whether it was for the same unit
standard at the time when the applicant qualified as a rigger in 2004…
37. … The respondent had the duty to proof that it w as still the same unit standard
as of 2004 when the A pplicant qualified as a rigger…
38. The other issue was that the rigging study was compiled by the applicant and
discussed with the supervisor who in turn issued a work permit, the supervisor was not
dismissed… 40. The question is why the A pplicant was dismissed, and not the supervisor as well,
approved and issued the work the job to be done without verifying if it was safe. The
respondent did not proof that the A pplicant contravened the rule that required him to
verify the selection of the load charts . It was not in dispute but the load chart of the
crane is fitted inside the operator cab, and that the A pplicant is not authorized to
operate the C rane, i t was not proven as to how the A pplicant could have been able to
verify the selected load chart without getting into the crane cab.
41. I find that the dismissal of the applicant to be substantially unfair and not effect ed
for good reasons. The applicant sought re instatement and I find no reason not to
accede to the A pplicant’s request…
42. In the circumstance I find that the dismissal of the Applicant to be substantively
unfair and I do not find any justifiable reasons why the supervisor was treated differently and I accordingly, find that there was an inconsistent Application of the rule by the
respondent party (sic).’
[16] In essence, the arbitrator upheld both of the employee’s contentions and found
that the dismissal was substantively unfair on the basis that the appellant had failed to
establish the existence of any workplace rule that required the employee to verify the information furnished to him by the crane operator and further, that the appellant’s
failure to take disciplinary action against the employee’s supervisor amounted to the
inconsistent application of discipline.
9
The Labour Court’s judgment
[17] On review, the appellant submitted that the arbitrator had failed to apply his mind
to the totality of the evidence and rendered an award that failed to meet the reasonableness threshold. In relation to the charge of negligence, the appellant
contended that the employee was highly qualified and experienced and that, on the
evidence led by the appellant during the proceedings, it had been established, on the balance of probabilities, that the employee had the personal responsibility to determine
the configurations for the lifting task . Further, the employee was required to perform this
task with regard to safety considerations. This required the employee to ensure that the
correct configuration was selected in the rigging study and the load chart. Further, the crane operator had acted on the employee’s instruction and direction to ensure that the
correct weight was selected. The appellant submitted further that the arbitrator’s
rejection of its evidence concerning the employee’s qualifications, competency and duties based on the applicable unit standards was unreasonable. Contrary to the arbitrator’s finding, the unit standards established that the employee was trained to ensure that the lifting task was correctly done and that he had a duty to verify that the
crane operator provided him with the correct chart.
[18] Finally , the appellant submitted that the arbitrator failed properly to apply his mind
to the evidence and legal principles concerning inconsistency and that in circumstances where the engineering superintendent was not qualified to perform the duties of rigger and had relied on the employee’s calculations, the principle of inconsistency, as an element of fairness, had no application.
[19] The Court noted that it was common cause that the rigging study calculation was
correctly done by the employee but that he had b ased his calculations on incorrect
information supplied to him by the crane operator, resulting in the wr ong counterweight
being selected. The Court (correctly) regarded the essence of the dispute to be whether
10
the appellant had established that the employee had any responsibility for verifying the
crane operator ’s selection on the crane’s load chart .
[20] Mindful of the applicable threshold of reasonableness, t he Court held that the
arbitrator’s finding, that the appellant had failed to establish that the employee had such
a duty , was a finding to which a reasonable decision- maker could come on the available
evidence. The Court came to this conclusion on the basis that t here was no written rule
that required the employee to verify the correctness of the load chart. In relation to inconsistency, the L abou r Court found that the arbitrator’s findings in this regard were
reasonable and thus not subject to review.
The grounds for appeal
[21] The appellant advances four contentions on appeal. The first is that the L abou r
Court erred by not finding that the arbitrator committed a reviewable irregularity and
thus rendered an unreasonable award by finding that the appellant had failed to prove
that the employee had a duty to verify the load chart selection given to him by the crane operator . Secondly, the L abou r Court erred by not finding that the arbitrator committed a
reviewable irregularity and rendered an unreasonable award by failing to determine whether the employee exercised a reasonable standard of care expected of a rigger with his qualifications and experience. Thirdly, the L abou r Court erred in not finding that
the arbitrator committed a reviewable irregularity by finding that the evidence reasonably established that the appellant had failed to apply discipline consistently , with
the result that the employee ’s dismissal was substantially unfair. Finally, the appellant
contends that the L abou r Court erred in not finding that the arbitrator had committed a
reviewable irregularity by ordering the employee’ s reinstatement.
Evaluation
[22] In essence, the grounds for review on which the appellant relied related to the
arbitrator’s assessment of the evidence. Ha d he assessed the evidence correctly , so the
11
appellant contends, the award that the arbitrator issued would have bee n different. The
consequence of the arbitrator’s misdirection is an unreasonable award. The appellant
pursues the same submissions on appeal, urging us to find that the Labour Court erred
by concluding that the arbitrator’s findings fell within a band of reasonableness.
[23] A ground for review based on an arbitrator’s assessment of the evidence more
often than not raises the red flag of an appeal rather than the more limited, permissible
recourse of review. Sidumo and another v Rustenburg Platinum Mines Ltd and another
1
established that the right to review established by section 145 of the Labour Relations
Act2 (LRA) is to be viewed through the lens of the constitutional right to lawful,
reasonable and procedurally fair administrative action.3 It is well- established that t he
Labour Court may intervene if the applicant seeking to have an award reviewed and set
aside, demonstrates some reviewable irregularity on the part of the arbitrator that has
the consequence of an unreasonable result , in the sense that the outcome of the
proceedings under review represents a decision that no reasonable decision- maker
could reach on the available evidence. In other words, even if the record discloses a
reviewable irregularity in relation to the commissioner’s conduct or reasoning, provided the result or outcome falls within a band of decisions which a reasonable decision-
maker could reach on the available evidence, the award cannot be assailed.
[24] The limitations inherent in a right of review were recently affirmed by this Court in
Makuleni v Standard Bank of South Africa Ltd and Others
4, where Sutherland JA said
the following:5
‘… The court asked to review a decision of commissioner must not yield to the
seductive power of a lucid argument that the result could be different. The luxury of indulging in that temptation is reserved for the court of appeal. At the heart of the exercise is a fair reading of the award, in the context of the body of evidence adduced and an even- handed assessment of whether such conclusions are
1 [2007] ZACC 22; 2008 (2) SA 24 (CC).
2 Act 66 of 1995, as amended.
3 See s 33(1) of the Constitution of the Republic of South Africa, 1996.
4 [2023] ZALAC 4; (2023) 44 ILJ 1005 (LAC) .
5 Ibid at para 4.
12
untenable. Only if the conclusion is untenable is a review and setting aside
warranted.’
And further:
‘To meet the review test, the result of the award has to be so egregious that, as the test requires, no reasonable person could reach such a result.’
6
[25] The hurdle s that the appellant was required to overcome on review w ere to
establish some misdirection on the part of the arbitrator in his assessment of the
evidence and, secondly, that the factual conclusions that he drew were untenable,
rendering the award one to which no reasonable decision- maker could come. I mplied in
the Labour Court’s finding is that the arbitrator had regard to relevant evidence, did not
take irrelevant evidence into account, and arrived at a conclusion that fell within the
bounds of reasonableness.
[26] As the Labour Court correctly pointed out, the nub of the dispute is not whether
the employee’s calculations were correct but whether he was required, given his
function as a rigger, to verify the information received from the crane operator. In the
parlance adopted by the Code of Good Practice: Dismissal7, was there a ‘rule’ imposing
such an obligation on the employee? It was common cause that there was no written instruction or operating procedure to the effect that the employee was required to verify
the information furnished to him by the crane operator . In the review proceedings, the
appellant had sought to locate the source of the obligation for which it contended in the
employee’s skill, qualifications and experience, and the employee’s training in particular
unit standards that the appellant submitted was applicable.
[27] As I have indicated, the La bour Court found that the arbitrator had considered the
relevant evidence and not unreasonably rejected the appellant’s contentions. When
pressed in the hearing before us on the source of any obligation by the employee t o
verify the crane operator’s load chart, the appellant’s representative confirmed that
6 Ibid at para 13.
7 Schedule 8 of the LRA.
13
there was no written instruction in terms of which the employee was obliged to verify the
correctness of the loa d chart . He referred us to the lifting and cranage procedure dated
March 2016, and especially paragraph 5, which provides that the authorised rigger
performing the lifting task must draw and inspect all the required lifting equipment from the rigging store. W e were also referred to the Code of Practice dated April 2017 . None
of these sources disclose a direct or even indirect obligation by a rigger to verify a load chart presented by a crane operator.
[28] The appellant’s representative further appealed to a general duty not to act in a
negligent manner and submitted that , ultimately , the true gravamen of the appellant’s
complaint is that the employee failed to perform his duties at the level that his skill set
required. This was not the case made out by the appellant at the arbitration hearing.
The arbitrator made clear that to sustain a finding of negligence in the form of a failure to verify the information submitted to him by the crane operator, it was necessary for the appellant to lead evidence that was directly concerned with the source of the obligation
for which the appellant contended. The appellant’s representative failed to heed that
caution. There may well have been a case to be made against the appellant, but the fact of the matter remains that it was never clearly articulated. The ar bitrator considered
the evidence before him and reached a decision. Whether that decision is correct on the
available evidence is not the test that the Labour Court is required to apply. The Labour
Court’s decision that the arbitrator came to a conclusion that fell within the band of decisions to which a reasonable decision -maker could come cannot be faulted. It
certainly cannot be said that the arbitrator’s finding was untenable. The Labour Court
was correct to dismiss the review application, and the appeal must fail.
Costs
[29] The rule applicable in this Court is that costs do not necessarily follow the result
and are awarded only in exceptional circumstances. In the present instance, there are
no exceptional circumstances . The existing collective bargaining relationship between
the parties is a factor that mitigates against a costs order. For the purposes of section
14
179 (1) of the LRA, the requirements of the law and fairness are best met by each party
bearing its own costs.
[30] I make the following order:
Order
1. The appeal is dismissed.
Andr é van Niekerk
Judge of the Labour Appeal Court
Nkuta -Nkotwana JA and Sutherland AJA concur .
APPEARANCES:
For The Appellant: Mr G Allsop, Pinsent Masons South Africa Inc
For The First and Second Respondents : Adv K Phuroe
Instructed by : Seleka Attorneys Inc.