THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C517/2022
In the matter between:
NATIONAL UNION OF MINEWORKERS
(NUM) obo MARIO DE JONGH Applicant
and
BLACK MOUNTAIN MINING (PTY) LTD First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
HENDRIK OLIPHANT N.O. Third Respondent
Heard: 28 August 2025
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email, publication on the Labour Court website and release to
SAFLII. The date and time for handing down judgment is deemed to be 10h00 on 13
October 2025.
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______________________________________________________________________
JUDGMENT
DE KOCK, AJ
Introduction
[1] This matter arises from a tragic incident in the mining sector - a sector already
burdened by a history of loss and sacrifice. The death of an employee, arising
from an incident involving the conduct of a fellow employee who was
subsequently dismissed, serves as a sobering reminder of the human cost that
often accompanies industrial operations. Whilst this judgment is concerned with
assessing the reasonableness of an award that upheld the sanction of dismissal,
this Court cannot ignore the broader context in which this dispute unfolds. The
loss of life in the workplace is never merely incidental; it reverberates through
families, communities, and the conscience of our labour system. I proceed with
this judgment mindful of that reality, and with empathy for all those affected.
[2] The matter came before the C ourt as an application to review the arbitration
award issued by the third respondent (the commissioner) in terms of section 145
of the Labour Relations Act
1 (LRA). The review application brings to the fore
allegations of some irregularities by a commissioner in the conduct of the
arbitration proceedings and allegations that the outcome reached were one a
reasonable decision-maker could not reach. Insofar as there is a challenge to the
applicant’s late filing of the supplementary affidavit, this Court is of the view that
the late filing must be condoned, and the review application be considered based
on all the pleadings filed.
1 Act 66 of 1995, as amended.
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Background
[3] The applicant was employed as an Advanced Mining Operator in the first
respondent’s (BMM) Cut and Fill Production Department. He commenced
employment with BMM on 3 December 2007 and was dismissed on 17
September 2021. As part of his duties, De Jongh was required to operate a
Sandvik Boltec DS311 machine ( the Boltec Machine), an electro- hydraulic rock
bolter designed for rock reinforcement of the roof and side walls in underground
mines with small and medium cross-sections.
[4] On 10 January 2020, at approximately 23h00, an incident occurred at 49 Level
West / 100 / Lense 2 / Lift 3 (Deep Shaft), which led to the death of Ms. Venessa
Plagg (Plagg), a Mining Operator and Working Place Safety Representative in
the employ of BMM. This resulted in an internal investigation in terms of section
11(5) of the Mine Health and Safety Act
2 and disciplinary action against the
applicant.
[5] During the section 11(5) inquiry conducted by BMM, it was discovered that the
applicant asked Plagg to untie a resin capsule discharge hose ( the resin hose)
from the boom of the Boltec whilst the power pack of the Boltec was running. As
Plagg was untying the resin hose, she sustained multiple injuries as a result of
blunt-force trauma which ultimately caused her death.
[6] On 21 August 2020, a disciplinary hearing was held to deal with allegations of
serious misconduct against the applicant relating to the fatality. The charges
were formulated as follows:
‘Offence(s):
1. Dishonesty in that you made false statements and/or withheld
information relevant to the investigation into the happenings of 10
January 2020.
2 Act 29 of 1996.
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2. Gross negligence in that during the night shift of 10 January 2020, you
failed to adhere to work standards and the Mine Health and Safety Act,
in that you instructed your colleague to do work in front of the machine
you were responsible for whilst the power of the machine was switched
on and not isolated. You thereby placed your colleague’s health and
safety at risk.’
[7] The applicant was found guilty on both charges and dismissed. He appealed the
finding and sanction. On 12 October 2021, an appeal hearing was held. The
finding and sanction were upheld as both substantively fair and procedurally fair.
The applicant thereafter referred an unfair dismissal dispute to the CCMA.
Arbitration award
[8] The commissioner, after considering the evidence and arguments, made some
key findings. In relation to the dishonesty charge, the commissioner found that he
could not conclude that the applicant acted dishonestly with the requisite
intention to deceive. The commissioner noted that the applicant had voluntarily
returned to the police to correct his statement, which demonstrated a measure of
honesty. BMM delivered a cross -review in respect of this finding, which cross -
review only needs to be determined in the event of the applicant’s review on the
gross negligence charge being successful.
[9] However, the Commissioner reached a different conclusion in respect of the
charge of gross negligence. The Commissioner found that it was clear from the
applicant’s own version that he told Plagg to work in front of the machine. The
commissioner accepted the evidence that no one is permitted to work in front of
the Boltec when the power pack is running, as it is too risky – the machine’s
boom moves very fast with the power pack on. The commissioner accepted the
uncontested evidence of Mr Carstens that the B oltec machine’s power pack was
running between 22h55 and 23h06 on the night in question, and that no one had
reported that the machine had malfunctioned.
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[10] The Commissioner, having considered the applicant’s credibility as a witness and
the contradictory testimony he gave, found that the applicant was not honest and
that his evidence was unreliable. The Commissioner concluded that a reasonable
inference from the applicant’s evidence was that he had no issue asking a
person to work in front of the machine with the power pack on. The
Commissioner accepted BMM's version as more probable and found it probable
that the applicant told Plagg to work in front of the machine whilst the power pack
was still on.
[11] The Commissioner found further that the applicant acted grossly negligently by
failing to adhere to work standards and the Mine Health and Safety Act. The
applicant placed his colleague's health and safety at risk by instructing Plagg to
loosen the resin hose in front of the machine. Plagg was struck by a blunt object,
the rocks present did not strike her, she fell and died. The Commissioner drew
the reasonable inference that it was the machine that caused the incident.
[12] In relation to whether the sanction was too harsh, the Commissioner found that it
was common cause that gross negligence was not tolerated in the workplace.
The applicant had ignored a critical safety rule and, in doing so, his conduct
involved a departure from the standard of a reasonable person to such an extent
that it may properly be categorised as extreme. It demonstrated a complete
obtuseness of mind or a total failure to take care. His negligence placed his
colleague's health and safety at risk and r esulted in a fatality. The gravity of the
conduct was severe.
[13] The Commissioner found that the applicant remained defiant in that he
maintained he would allow a person to work in front of a machine with the power
pack on. The applicant showed no remorse and his "the job must go on"
approach created a real danger for him and his colleagues. The Commissioner
found that the applicant could not be trusted with health and safety matters. His
found that the applicant could not be trusted with health and safety matters. His
conduct constituted a serious breach of health and safety rules in circumstances
where the mine is an inherently dangerous workplace.
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[14] The Commissioner concluded that BMM's interest outweighed that of the
applicant and that a lesser sanction would not rehabilitate the applicant . The
Commissioner found that the sanction of dismissal was appropriate and that the
dismissal was substantively fair.
Grounds of review
[15] The applicant challenges the arbitration award on several grounds, which may be
summarised as follows:
15.1 The award is defective and is such that no reasonable decision- maker
could have made while applying his mind to the facts.
15.2 The Commissioner misconstrued the proceedings and reached a
conclusion not supported by any evidence or facts presented.
15.3 The Commissioner misdirected himself and failed to apply his mind
preferring one party’s version to the uncontested evidence of the other
regarding breakdown of the relationship. There was no evidence that the
relationship had broken down irretrievably.
15.4 The Commissioner drew an inference where there was no evidence to
support the conclusion reached in the following respects:
15.4.1 The Commissioner drew an inference of gross negligence
that was neither consistent with the proven facts, nor the
most plausible inference to be drawn.
15.4.2 In arriving at this conclusion, the Commissioner drew an
inference which was unsupported by the facts let alone the
evidence which was presented by BMM’s witnesses.
15.4.3 The Commissioner assessed the circumstantial evidence on
a piecemeal basis and thus failed to assess the cumulative
effect of items of circumstantial evidence and arrived at the
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unreasonable conclusion which no reasonable
Commissioner based on the evidence which was presented
before him could have arrived at such decision.
15.5 The Commissioner made findings not based on the evidence put before
him.
15.6 The Commissioner misunderstood the evidence presented.
15.7 The Commissioner failed to address or consider critically relevant
evidence and failed to discharge his duty regarding the necessity for oral
or documentary evidence.
15.8 The Commissioner exceeded his powers by deciding not to make any
finding on the credibility of witnesses.
15.9 The Commissioner failed to apply section 193(2) of the LRA properly by
not ordering reinstatement when there was no evidence that the
employment relationship had irretrievably broken down.
15.10 The sanction of dismissal is too harsh for a first-time offender.
15.11 The Commissioner failed to consider the applicant’s personal
circumstances, including his age and the difficulty of finding alternative
employment in conditions of high unemployment.
15.12 The Commissioner failed to consider that where dishonesty has not been
established, corrective discipline short of dismissal is warranted even
where misconduct is proven.
Review Test
[16] In Sidumo & another v Rustenburg Platinum Mines Ltd & others,3 the Court held
that “the reasonableness standard should now suffuse section 145 of the LRA ”,
3 (2007) 28 ILJ 2405 (CC); 2008 (2) SA 24 (CC).
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and that the threshold test for the reasonableness of an award was: “… Is the
decision reached by the commissioner one that a reasonable decision maker
could not reach?...”
4. In Herholdt v Nedbank Ltd (Congress of SA Trade Unions
as Amicus Curiae) 5 the Court applied this reasonableness consideration as
follows:
“In summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the proceedings
falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in
the conduct of the proceedings to amount to a gross irregularity as
contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the
nature of the inquiry or arrived at an unreasonable result. A result will only
be unreasonable if it is one that a reasonable arbitrator could not reach on
all the material that was before the arbitrator. Material errors of fact, as
well as the weight and relevance to be attached to particular facts, are not
in and of themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome unreasonable.”
[17] This test has thus been applied as a two- stage review enquiry. Firstly, the review
applicant must establish that there exists a failure or error on the part of the
arbitrator. If this cannot be shown to exist, that is the end of the matter. Secondly,
if this failure or error is shown to exist, the review applicant must then further
show that the outcome arrived at by the arbitrator was unreasonable. If the
outcome arrived at is nonetheless reasonable, despite the error or failure, that is
equally the end of the review application. In short, in order for the review to
succeed, the error or failure must affect the reasonableness of the outcome to
the extent of rendering it unreasonable.
[18] Further, the reasonableness consideration envisages a determination, based on
all the evidence and issues before the arbitrator, as to whether the outcome of
all the evidence and issues before the arbitrator, as to whether the outcome of
the arbitrator arrived at can nonetheless be sustained as a reasonable outcome,
4 Id at para 110.
5 (2013) 34 ILJ 2795 (SCA); [2013] 11 BLLR 1074 (SCA) at para 25.
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even if it may be for different reasons or on different grounds. 6 This necessitates
a consideration by the review court of the entire record of the proceedings before
the arbitrator, as well as the issues raised by the parties before the arbitrator,
with the view to establish whether this material can, or cannot, sustain the
outcome arrived at by the arbitrator. In the end, it would only be if the outcome
arrived by the arbitrator cannot be sustained on any grounds, based on the
material, and the irregularity, failure or error concerned is the only basis to
sustain the outcome the arbitrator arrived at, then the review application would
succeed.
7
[19] In Goldfields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA & Others 8
the Labour Appeal Court further explained the reasonableness test in the
following terms:
“[15] A ‘process -related review suggests an extended standard of review,
one that admits the review of an award on the grounds of a failure by the
arbitrator to take material facts into account, or by taking into accounts
facts that are irrelevant, and the like. The emphasis here is on process
and not result. Proponents of this view argue that where an arbitrator has
committed a gross irregularity in the conduct of the arbitration as
contemplated by s145(2), it remains open for the award to be reviewed
and set aside irrespective of the fact that the decision arrived at by the
arbitrator survives the Sidumo test. I disagree. What is required is first to
consider the gross irregularity that the arbitrator is said to have committed
and then to apply the reasonableness test established by Sidumo. The
gross irregularity is not a self -standing ground insulated from or standing
independent of the Sidumo test. That being the case, it serves no purpose
6 Fidelity Cash Management Service v Commission for Conciliation Mediation and Arbitration & Others
[2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) at para 102.
[2007] ZALAC 12; [2008] 3 BLLR 197 (LAC); (2008) 29 ILJ 964 (LAC) at para 102.
7 See Campbell Scientific Africa (Pty) Ltd v Simmers & others (2016) 37 ILJ 116 (LAC); [2016] 1 BLLR 1
(LAC) at para 32; Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others (2015) 36 ILJ
1453 (LAC); [2015] 4 BLLR 394 (LAC) at para 12.
8 (JA 2/2012) [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC) (4 November 2013).
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for the reviewing court to consider and analyse every issue raised at the
arbitration and regard failure by the arbitrator to consider all or some of the
issues albeit material as rendering the award liable to be set aside on the
grounds of process-related review.”
and
“[20] To do it differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section 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. This is also confirmed in the decision of
CUSA v Tao Ying Metal Industries. Failing to consider a gross irregularity
in the above context would mean that an award is open to be set as ide
where an arbitrator (i) fails to mention a material fact in his award; or (ii)
fails to deal in his/her award in some way with an issue which has some
material bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts presented at the
arbitration. The questions to ask are these: (i) In terms of his or her duty to
deal with the matter with the minimum of legal formalities, did the process
that the arbitrator employed give the parties a full opportunity to have their
say in respect of the dispute? (ii) Did the arbitrator identify the dispute he
was required to arbitrate (this may in certain cases only become clear
after both parties have led their evidence)? (iii) Did the arbitrator
understand the nature of the dispute he or she was required to arbitrate?
(iv) Did he or she deal with the substantial merits of the dispute? and (v) Is
the arbitrator’s decision one that another decision- maker could reasonably
have arrived at based on the evidence?”
and
“[21] Where the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable decision. Where the
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arbitrator fails to follow proper process he or she may produce an
unreasonable outcome (see Minister of Health and Another v New Clicks
South Africa (Pty) Ltd and Others 2006 (2) SA 311 (CC)). But again, this is
considered on the totality of the evidence not on a fragmented, piecemeal
analysis. As soon as it is done in a piecemeal fashion, the evaluation of
the decision arrived at by the arbitrator assumes the form of an appeal. A
fragmented analysis rather than a broad based evaluation of the totality of
the evidence defeats review as a process. It follows that the argument that
the failure to have regard to material facts may potentially result in a
wrong decision has no place in review applications. Failure to have regard
to material facts must actually defeat the constitutional imperative that the
award must be rational and reasonable - there is no room for conjecture
and guesswork”
[20] The Labour Appeal Court in Head of the Department of Education v Mofokeng
and Others
9 provided the following exposition of the review test:
“[33] Irregularities or errors in relation to the facts or issues, therefore, may
or may not produce an unreasonable outcome or provide a compelling
indication that the
arbitrator misconceived the inquiry. In the final analysis,
it will depend on the materiality of the error or irregularity and its relation to
the result. Whether the irregularity or error is material must be assessed
and determined with reference to the distorting effect it may or may not
have had upon the arbitrator’s conception of the inquiry, the delimitation of
the issues to be determined and the ultimate outcome. If but for an error or
irregularity a different outcome would have resulted, it will ex hypothesi be
material to the determination of the dispute. A material error of this order
would point to at least a prima facie unreasonable result. The reviewing
judge must then have regard to the general nature of the decision in issue;
judge must then have regard to the general nature of the decision in issue;
the range of relevant factors informing the decision; the nature of the
9 (JA14/2014) [2014] ZALAC 50; [2015] 1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC) (1 October 2014).
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competing interests impacted upon by the decision; and then ask whether
a reasonable equilibrium has been struck in accordance with the objects
of the LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By the
same token, an irregularity or error material to the determination of the
dispute may constitute a misconception of the nature of the enquiry so as
to lead to no fair trial of the issues, with the result that the award may be
set aside on that ground alone. The arbitrator, however, must be shown to
have diverted from the correct path in the conduct of the arbitration and as
a result failed to address the question raised for determination.”
[21] The court will now proceed to consider the review application against the above
principles and the test applicable to review applications.
Evaluation of grounds of review
Ground 1: Award defective – no reasonable Commissioner could have made it
[22] This ground is formulated in general terms, and it essentially encapsulates the
applicant’s overall challenge to the award. It does not identify a specific defect
but rather asser ts the conclusion that the award should not have been made.
This is too broad as a ground of review and must be assessed in light of the
more specific grounds of review that follow. This Court shall return to this ground
after considering the substantive challenges raised in grounds 2 to 12 hereunder.
Ground 2 – Misconstrued proceedings and reached conclusion not supported by
evidence
[23] The applicant contends that the Commissioner misconstrued the proceedings
and reached a conclusion not supported by any evidence or facts. This ground of
review must fail as the arbitration record reveals that the Commissioner was
presented with the following:
23.1 Detailed evidence of BMM’s witnesses (Carstens, McCoy and Stoffels).
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23.2 The applicant’s own evidence.
23.3 Extensive documentary evidence including DCU data from the Boltec
machine; investigation reports; autopsy report; training manuals and
procedures; the applicant’s two police statements; and pre- use inspection
checklists.
[24] The Commissioner’s award demonstrates that he carefully considered the
evidence. He set out the background to the incident; the charges and the parties’
respective cases; a detailed analysis of the evidence on the dishonesty charge; a
detailed analysis of the evidence on the gross negligence charge; and an
analysis of the appropriate sanction. The Commissioner further made specific
findings on disputed factual issues such as whether the applicant instructed
Plagg to untie the hose; whether the power pack was running at the time;
whether the machine was in proper working order; what caused Plagg’s death;
and whether the applicant’s conduct was negligent or grossly negligent.
[25] Each of these findings on disputed factual issues was based on evidence that
was before the Commissioner. The applicant may disagree with how the
Commissioner evaluated conflicting evidence or which witnesses he found more
credible, but that does not mean that the findings were not supported by
evidence. The suggestion that there was no evidence to support the
Commissioner’s conclusions is demonstrably incorrect. There was substantial
evidence before the Commissioner, which he clearly considered. The real i ssue
is whether the Commissioner was entitled to prefer that evidence over the
applicant’s version – which goes to the reasonableness of the decision and not
the absence of evidence.
[26] This ground of review accordingly fails.
Ground 3 – Misdirection regarding breakdown of relationship – no evidence of
irretrievable breakdown
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[27] The Commissioner, under the heading “Was the sanction too harsh” explains
why the relationship has broken down irretrievably. The Commissioner might not
have used the exact words “irretrievable breakdown”, but he noted that gross
negligence was not allowed in the workplace; that the applicant ignored a safety
rule; that the applicant’s action s involved a departure from the standard of the
reasonable person; that the actions are to such an extent that it may properly be
categorised as extreme; that it demonstrates a complete obtuseness of mind or a
total failure that his negligence placed his colleague’s health and safety at risk,
which resulted in a fatality as far as the gravity of the conduct is concerned; that
the applicant remained defiant in that he will allow persons to work in front of the
“power pack machine”; the applicant did not show remorse; that the applicant’s
“the job must go on” approach creates a real danger for him and his colleagues;
it is obvious that the applicant cannot be trusted with health and safety and that
his action is a breach of the health and safety rules, considering the mine being a
very dangerous workplace; and that Carstens confirmed the conduct caused a
breach of trust and that a different sanction will not rehabilitate the applicant.
[28] There is therefore no merit in this ground of review and must according fail.
Ground 4: Drew inference where there was no evidence and ground 5: Made findings
not based on evidence
[29] These two grounds of review will be addressed together as they raise similar
challenges. The specific inferences challenged is that the applicant instructed
Plagg to work in front of the machine, that the power pack was running at the
time, and that the machine caused Plagg’s death. The applicant contends that
these findings rest on hearsay evidence from witnesses who did not directly
observe the events (Carstens, McCoy and Stoffels). This Court must evaluate
whether the Commissioner’s inferences were reasonable.
whether the Commissioner’s inferences were reasonable.
Applicant instructed Plagg to untie the hose
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[30] The Commissioner found that the applicant told Plagg to work in front of the
machine. This finding was based on the applicant’s own signed statement in
which he stated that he asked Plagg to untie the resin hose and the applicant’s
concession during cross -examination that he asked Plagg to loosen the resin
hose. The argument on behalf of the applicant that asking someone to untie a
hose is different from instructing them to work in front of the machine while it is
running does not carry any conviction. Whet her Plagg was instructed, told, or
asked does not take the matter any further. The fact remains that the applicant is
the person responsible for the machine, who told Plagg to loosen the hose whilst
the machine was still running. The applicant must accept full responsibility for this
and cannot hide behind the allegation that he did not have authority to instruct
Plagg.
[31] The evidence shows that the resin hose was attached to the boom at the front of
the machine and that, to untie it, Plagg would need to be in front of the machine.
The applicant admitted asking her to untie the hose and it is clear from the
uncontested evidence, which the Commissioner accepted, that the power pack
was running at the time.
[32] The inference drawn by the Commissioner was entirely reasonable and
consistent with the proven facts, including the applicant’s own admissions. This
Court finds that there is no merit in this ground of review, and the ground
accordingly fails.
The power pack was running
[33] The Commissioner’s decision that the power pack was still running when Plagg
went in front of the machine to untie the hose is based on verified DCU data
showing the power pack ran from 22h56 to 23h06; the applicant’s statement that
the incident occurred around 23h00; and the emergency call log showing Mr
Molale called at 23h05.
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[34] It is clear from this time sequence that the incident occurred within the window
when the DCU data proves the power pack was running. It is immaterial that
McCoy never examined the machine and that he relied on reports from Mr Herbst
and Mr Steyn who were not called as witnesses. This Court does not regard this
evidence as hearsay evidence, as the evidence is directly corroborated by the
DCU data, which was verified and tested on 23 January 2020. The applicant did
not challenge the accuracy of this data or the verification process and neither did
he present any expert evidence to contradict the correctness of the data.
[35] This Court therefore finds that the inference drawn by the Commissioner that the
power pack was running at the time of the incident was not only reasonable – it
was the only inference consistent with the objective DCU data and timeline of
events. Notably, the applicant conceded during cross -examination that there
were many instances where he would let someone work in front of the machine
when the engine and power pack were on, and that he understood what the
training required but testified that “the work needed to be done”. This concession
directly supports the Commissioner’s finding and, as such, there is no merit to
this ground of review.
The machine caused Plagg’s death
[36] The Commissioner found that Plagg’s injuries were caused by the Boltec
machine and not by falling rocks. This decision was based on Dr Stoffel’s
interpretation of the autopsy showing injuries from blunt trauma consistent with
being struck by a machine; the fact that two rocks nearby were removed by Mr
Louw during “safe-making” before the incident; the size and distance of the rocks
making them an implausible cause given the limited damage to Plagg’s hard hat;
and the applicant’s own statement on 29 January 2020 in which he conceded the
machine could have caused the death.
[37] The applicant’s challenge that Dr Stoffels never conducted the tests on the body
[37] The applicant’s challenge that Dr Stoffels never conducted the tests on the body
and relied on Dr Fouche’s report is rejected as a valid challenge to Dr Stoffels’
testimony. This Court finds that the Commissioner’s reliance on Dr Stoffels’
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testimony, supported by the autopsy, was reasonable and so too is the
Commissioner’s inference drawn from this evidence. There is no merit to this
ground of review.
[38] In summary therefore this Court finds, in respect of the review grounds 4 and 5
that the Commissioner did not draw inferences in the absence of evidence and
that each key finding was supported by evidence presented to the
Commissioner. The inferences drawn were reasonable, rationally connected to
the evidence and within the range of reasonable decision- making. These
grounds of review accordingly fail.
Ground 6 – Misunderstood the evidence
[39] The applicant contends that the Commissioner misunderstood the evidence
presented. No specific example is pleaded in the founding affidavit and reference
is made to hearsay evidence in the supplementary affidavit, which will be
addressed in ground 7. Without any specific particulars of what evidence was
misunderstood and how, this ground is too vague to be sustained.
[40] Moreover, having reviewed the award carefully, this Court is satisfied that the
Commissioner understood the evidence before him. The award reflects that he
understood the applicant’s defence; understood BMM’s case; understood the
technical evidence; understood the expert medical evidence about the cause of
death; and understood the safety training and procedures. The fact that the
Commissioner rejected the applicant’s version does not mean that he
misunderstood the evidence. This ground therefore has no merit and must fail.
Ground 7: Failure to address critically relevant evidence / failed to discharge duty
regarding oral or documentary evidence
[41] This ground in essence refers to the applicant’s challenge to the award insofar as
inadmissible hearsay evidence is concerned. The applicant contends that
Carstens, McCoy and Dr Stoffels’ evidence was hearsay evidence. This Court is
of the view that their evidence was admissible given that Carstens testified based
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on documentary evidence, the applicant’s own and uncontested evidence, his
investigation, and about facts falling within the scope of his role and knowledge;
McCoy testified about verified DCU data within his area of expertise and based
on being qualified to interpret the DCU data, which he testified cannot be
tampered with; and Stoffels , who is a medical practitioner, provided an expert
interpretation of an autopsy report. In respect to Stoffels’ evidence, the autopsy
report is the evidence, Stoffels is qualified as a medical practitioner to interpret it,
and he explained the basis for his interpretation. In this Court’s view, the
Commissioner’s reliance on their evidence was reasonable and does not render
the award reviewable on the ground of unreasonableness.
[42] Commissioners, in any event, are allowed to admit hearsay evidence, but need
to decide what weight to attach to such hearsay evidence. In this matter, the
witnesses’ testimony was supported by documentary evidence and the
Commissioner acted reasonably in attaching the w eight that he did to their
evidence, which cannot be said to be hearsay evidence in the true sense. The
documentary evidence, in any event, was not seriously challenged regarding its
veracity and its admissibility during the arbitration hearing.
[43] This Court therefore finds that the Commissioner did not fail to address critically
relevant evidence, nor did he fail to discharge his duty. He carefully considered
all the evidence before him, including the applicant’s evidence, and arrived at a
reasonable conclusion.
Ground 8: Exceeded powers by deciding not to make findings on credibility
[44] The applicant contends that the Commissioner exceeded his powers by deciding
not to make any finding on the credibility of witnesses. This contention is simply
incorrect, as the Commissioner did make credibility findings in his award. The
Commissioner found the applicant’s evidence regarding the differing statements
Commissioner found the applicant’s evidence regarding the differing statements
by the applicant as credible. He explicitly rejected the applicant’s version that the
applicant did not instruct Plagg to work in front of the machine, which is a
credibility finding.
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[45] The Commissioner found the defence about machine modification not credible,
as McCoy’s evidence, which he accepted, showed that the machine was in
proper working order. The Commissioner further, throughout his award,
constantly preferred BMM’s evidence over the applicant’s evidence. It is not
required for a Commissioner to explicitly state that he finds specific witnesses’
evidence not credible, as credibility findings are evident from which version the
decision-maker accepts or rejects. The Commissioner im plicitly found BMM’s
witnesses’ to be more credible than the applicant on key disputed issues. This
ground accordingly also fails.
Ground 9: Failed to apply section 193(2) – should have ordered reinstatement
[46] The applicant’s contention that the Commissioner failed to apply his mind to
section 193(2) of the LRA and should have ordered reinstatement because there
was no evidence that the employment relationship had irretrievably broken down
was already addressed above. The Commissioner found that the applicant’s
dismissal was substantively fair and that finding, if found to be reasonable,
means that reinstatement is not an appropriate remedy.
[47] This ground of review therefore fails as a standalone ground of review, but is
relevant to the overall assessment of reasonableness, especially insofar as the
finding that the dismissal was substantively fair is concerned.
Ground 10: Sanction too harsh for first-time offender
[48] The applicant contends that the sanction of dismissal is too harsh for a first -time
offender, and that corrective discipline should have been imposed. This Court is
not required to determine whether the sanction of dismissal is one that this Court
would have imposed but is to determine whether the sanction of dismissal falls
within the range of sanctions that a reasonable decision-maker could impose.
[49] This Court is of the view that the sanction of dismissal imposed, based on the
[49] This Court is of the view that the sanction of dismissal imposed, based on the
reasons provided by the Commissioner, is certainly a reasonable sanction. In
fact, this Court finds it difficult to comprehend how any other sanction of
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dismissal could have been imposed based on the evidence placed before the
Commissioner. The Commissioner, in assessing sanction, considered the
extreme gravity of the conduct; the fatal consequences of the conduct; the
breach of trust in a safety-critical role; the mining environment which is inherently
dangerous; that Schedule 8 reserved dismissal for such serious offences; the
applicant’s attitude of “the job must go on”; and the absence of remorse.
[50] This Court is therefore satisfied that the Commissioner’s finding of dismissal was
reasonable, fair and appropriate given the circumstances of the matter. This
ground of review must accordingly fail.
Ground 11: Failed to consider personal circumstances
[51] The applicant contends that the Commissioner failed to consider his personal
circumstances, including his age and the difficulty of finding alternative
employment in conditions of high unemployment. Although it may be so that the
Commissioner did not explicitly mention that he considered the applicant’s
personal circumstances, this does not in itself result in a conclusion that the
Commissioner’s conclusion regarding sanction was one that a reasonable
decision-maker could not reach.
[52] The applicant’s personal circumstances, as testified to, are outweighed by the
seriousness of the applicant’s conduct, and the fatality that occurred due to a
deliberate serious breach of health and safety procedures. The Commissioner
concluded that, given the seriousness of the applicant’s conduct, BMM’s interests
outweigh the interest s of the applicant. This could only have referred to the
applicant’s personal circumstances.
[53] This Court is of the view that the Commissioner’s failure to explicitly mention the
personal circumstances does not result in the outcome, i.e., to uphold the
sanction of dismissal, being unreasonable. The Commissioner’s finding is one
that falls well within the bands of reasonableness, and this ground of review must
fail.
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Ground 12: Failed to consider that without dishonesty, corrective discipline warranted
[54] The applicant contends where dishonesty has not been established, and even if
misconduct is proven, corrective action short of dismissal is warranted. This, as a
general proposition, in simply incorrect. The absence of dishonesty does not
mean that dismissal is inappropriate. There are many offences that do not
involve dishonesty which can justify dismissal for a first offence. These are, for
example, gross negligence, assault, sexual harassment, serious breach of safety
rules and gross insubordination, to mention but a few examples.
[55] The test is not whether dishonesty was proven, but whether the proven
misconduct was so serious that dismissal is justified. The Commissioner found
the applicant guilty of gross negligence and, given that in this Court’s view this
finding is reasonable, the Commissioner was entitled to impose dismissal as a
sanction. As stated, the question is whether the proven offence – gross
negligence resulting in a fatality - was serious enough to warrant dismissal. In
this Court’s view, the offence was sufficiently serious to warrant dismissal and
the Commissioner’s decision cannot be said to be one that a reasonable
decision-maker could not reach. This ground of review must therefore fail.
Conclusion
[56] For the reasons set out above, this Court is satisfied that the Commissioner did
not commit any gross irregularity in the conduct of the arbitration proceedings.
The Commissioner properly understood the nature of the inquiry before him,
considered the relevant evidence and legal principles, and reached a conclusion
that was reasonable and defensible.
[57] The mere fact that the applicant disagrees with the outcome, or might have
preferred a different result, does not render the award reviewable. The threshold
for review is high, and rightly so. The Commissioner's findings and conclusions
for review is high, and rightly so. The Commissioner's findings and conclusions
fall comfortably within the range of reasonable outcomes available on the
evidence and the law.
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[58] The review application must therefore be dismissed.
Costs
[59] The applicant has been unsuccessful. In the ordinary course, costs would follow
the result. However, this is a matter involving a trade union acting on behalf of a
member who has suffered significant consequences - the loss of employment
and the trauma associated with a workplace fatality. While the review application
was unsuccessful, it cannot be said that it was frivolous or vexatious.
Furthermore, the matter raised important issues regarding workplace safety in
the mining sector and the proper applicati on of the Sidumo review standard to
fatality cases. It was appropriate that these issues be ventilated before this Court.
In the circumstances, it is appropriate that each party bears its own costs.
[60] In the premises, the following order is made:
Order
1. The application for the arbitration award to be reviewed and set aside is
refused.
2. There is no order as to costs.
_____________________________
C. de Kock
Acting Judge of the Labour Court of South Africa
Appearances:
For the Applicant: M Malematja from Mashabela Attorneys
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For the First Respondent: E Ellis from Edward Nathan Sonnenbergs Inc.