Asa Metals (Pty) Ltd (Dilokong Chrome Mine) v Commission for Conciliation Mediation And Arbitration and Others (JR08/2011) [2014] ZALCJHB 307 (12 August 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR08/2011

In the matter between:

ASA METALS (PTY) LTD

(DILOKONG CHROME MINE) Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First

Respondent

MSHEGOANA, M.A., N.O Second

Respondent

NATIONAL UNION OF MINEWORKERS Third

Respondent

MAUNYE, M Fourth

Respondent

Heard: 22 August 2013

Delivered: 12 August 2014

Summary: The commissioner’s failure to evaluate facts in determining whether the applicant applied discipline consistently led him to reach an unreasonable decision and rendered his award reviewable.

Review in terms of section 145 of the LRA – Dismissal for misconduct.

LALLIE, J

Introduction

[1] This is an application to review and set aside an arbitration award of the second respondent (‘the commissioner’) in which he found the fourth respondent’s dismissal by the applicant substantively unfair and ordered her reinstatement.

Factual background

[2] The fourth respondent was employed by the applicant as a miner. On 18 January 2010, Mr Dhlamini (“Dhlamini”) the mine oversee and Mr Kopotsa (‘Kopotsa’) the shift oversee conducted an inspection at section 5 south 9 panel 18 where the fourth respondent was the miner on duty. Dhlamini observed safety infringements and stopped the drilling activities. He called for the fourth respondent’s declaration book in which she declared the workplace safe for work to be performed. The fourth respondent had recorded that the support was 3.6 metres from the face. When Kopotsa verified the fourth respondent’s measurements he discovered that the support was in fact 3.9 metres from the face. In terms of the applicant’s rules work can be done on the face if it is within 3.5 metres from the support. The fourth respondent was consequently changed with dishonesty for giving a false statement in the declaration book and for endangering her own and other workers’ lives for instructing employees to work in an area where the support was an average of 3.9 metres from the face with one line jack. She was dismissed and her appeal in which she relied on the defence of inconsistency was dismissed. She referred an unfair dismissal dispute to the first respondent in which the commissioner was required to determine the issue of inconsistency. The commissioner issued the arbitration award which is the subject of this application.

The award

[3] The commissioner moved from the premise that the applicant had zero tolerance to the contravention of the safety rule. He considered that Mr Tjie (“Tjie”) was found guilty of contravening a safety rule and issued with a final written warning on 18 November 2009. Two months thereafter, the applicant contravened the safety rule and got dismissed. On 17 February 2010 about a month after the applicant’s dismissal Ms Dhlamini (“SK Dhlamini”) contravened the safety rule and the Chief Safety Officer issued an internal section 54 notice and declared the workplace unsafe because the centre gully support was substandard, absence of demarcated safe travelling for employees, substandard signalling arrangements and browns were not supported according to the mine standard. He was not dismissed. He found that the e-mail in which the appeal chairman asked the applicant’s human resources department for reasons why Tjie was issued with a final written warning and the fourth respondent dismissed, a clear illustration of the inconsistent application of the safety rule by the applicant. The commissioner found no justifiable reason why S.K Dhlamini was not dismissed after she had been issued with the internal section 54 notice. He found that as the fourth respondent, Tjie and Dhlamini had contravened the safety rule but the inconsistent application of the rule was unjustified in the applicant’s case rendering her dismissal substantively unfair. The commissioner found the fourth respondent’s version more probable, consistent and supported by the applicant’s documents which had been submitted as evidence. He found Dhlamini’s evidence on the merits of the cases of two of the comparators unacceptable as he was not part of the proceedings of the two cases where the two employees were not dismissed. He drew a negative inference from applicant’s failure to call the chairpersons of both the initial and appeal hearings.

Grounds for review

[4] The applicant submitted that in coming to the conclusion that the fourth respondent’s dismissal was substantively unfair the commissioner committed a number of gross irregularities leading him to reach an unreasonable decision. A further attack on the award is that the decision that the applicant acted inconsistently in dismissing the fourth respondent is not based on the evidence before the commissioner as, in reaching it, he rejected relevant evidence.

The test for review

[5] Interpreting the test enunciated in the leading authority for review, Sidumo and Another v Rustenburg Platinum Mines Ltd and Others,[1] the court in Goldfields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others[2] held that the reviewing court is to ascertain whether the arbitrator considered the principal issue before him/her, evaluated facts

presented at the arbitration and came to a reasonable conclusion. With regard to failure to consider material facts the court held as follows:

‘…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 guess work’.

[6] It is common cause that the applicant and the fourth respondent required the commissioner to determine the question of inconsistency

only. The requirement implies that the fourth respondent did not challenge the fairness of the applicant’s decision that she was guilty of both acts of misconduct which had been preferred against her. There was therefore no need for the applicant to lead evidence to prove the fourth respondent’s guilt at the arbitration.

[7] As the commissioner was required to determine whether the applicant had applied discipline consistently, he could not reach a reasonable decision without applying the authority that governs the issue. In Greater Letaba Local Municipality v Mankgabe NO and Others[3], the court adopted the liberal approach to the issue of consistency. It found that the arbitrator did not adequately or properly consider the consistency factor but decided that the substantive fairness of the reason for the dismissal was not extinguished by its procedural unfairness. The following dictum in Hulett Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and Others[4] apposite:

‘…When deciding the issue of parity, the gravity of the misconduct of the employee who seeks to rely on that principle should receive serious attention’.

[8] The totality of the evidence and the award reflect that the commissioner’s approach to the issue of consistency was that

the applicant adopted zero tolerance to the contravention of the safety rule. Consistency, according to the commissioner, required

that all employees who breached the safety rule be dismissed. The commissioner considered a memorandum written by the applicant’s

Chief Operations Officer in which he highlighted the need to adhere to safety standards and procedures. The memorandum warns employees

that failure to comply with safety standards and procedures could result in disciplinary action which could lead to dismissal. A proper reading of the memorandum does not require the dismissal of all employees who breach safety procedures and standards. All it means is that dismissal is one of the sanctions which could be issued for breaching safety standards and procedures. Nothing turns of the contents of the memorandum because each case is determined on its merits.

[9] The commissioner made a finding that the enquiries made by the appeal chairperson from the applicant’s human resources department about the difference in the sanctions issued to Tjie and the fourth respondent for breaching the safety standards and procedures was a reflection of inconsistency. The weakness of the commissioner’s approach is that he based his decision on a portion of the appeal process. He excluded the appeal chairperson’s findings in which he dealt with the issue of inconsistency and gave reasons for concluding that none existed.

[10] Dealing with another comparator, SK Dhlamini, the Commissioner found that an internal section 54 notice was issued against her too but she was not dismissed and he found no justifiable reasons why she was not dismissed. He added a finding that all the employees mentioned in this matter contravened a safety rule. He concluded that an inconsistent application of the rule was unjustified in the matter.

[11] In Hulett Aluminium (Supra) the court referred with approval to Gcwensha v CCMA and Others[5] where the court held that when comparing employees care should be taken to ensure that the gravity of the misconduct is evaluated. The commissioner was therefore, required to have done more than considering the charges preferred against the fourth respondent and his comparators. Other relevant factors including the gravity of the fourth respondent’s misconduct should have been evaluated. It is common cause that in addition to being found guilty of breaching the safety rules, the fourth respondent was found guilty of dishonesty and she did not challenge the substantive fairness of her dismissal. She therefore accepted the applicant’s finding that she had been guilty of dishonesty. In comparing the manner in which the rule was applied commissioner did not take dishonesty into account. None of the comparators was found guilty of dishonesty.

[12] The gravity of dishonesty is expressed in the following words in Sappi Novoboard (Pty) Ltd v Bolleurs[6]

‘In employment law a premium is placed on dishonesty because conduct involving moral turpituded by employees damages the trust relationship on which the contract is founded’.

The fourth respondent submitted that no evidence was led at the arbitration to prove that the trust relationship between the applicant and the fourth respondent had broken down. Firstly, the submission does not alter the effect of dishonesty on the relationship of employment. Secondly, the issue the commissioner had to determine was limited to consistency. There was therefore no need for the applicant to lead evidence other than on the question of consistency. The applicant’s documents the commissioner

sought to rely on do not corroborate the fourth respondent’s version.

[13] The commissioner rejected Dhlamini’s evidence because he was not part of the proceedings of two of the fourth respondent’s

comparators. There are rules of evidence which govern admissibility of evidence on which the decision to reject Dhlamini’s evidence should have been based. The basis the commissioner relied on for rejecting Dhlamini’s evidence is flawed in that it does not constitute grounds for rejecting evidence. Being part of the two comparator’s proceedings was not a pre-requisite for the admissibility of Dhlamini’s evidence

[14] The commissioner’s failure to evaluate relevant facts in determining consistency constituted gross irregularity which led him to reach an unreasonable decision.

[15] The attempt by the third and fourth respondents to rely on the Civil Procedure Act 25 of 1965 when this matter was argued is misplaced. Contrary to the fourth respondent’s submission in the filing of the supplementary affidavit was not irregular. It is provided for Rule 7A (8) (b).

[16] In the premises, the following order is made:

16.1 The arbitration award issued by the second respondent under case number MP 4202-10 and dated 28 November 2010 is reviewed and set aside.

16.2 The matter is remitted to the first respondent to be arbitrated de novo by a commissioner other than the second respondent.

_____________________________

Lallie J

Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: Advocate Snider

Instructed by: Webber Wentzel Attorneys

For the Third and Fourth Respondent: Mr Mataung of Nomali Tshabalala Attorneys

[1] 2008 (2) SA 24 (CC).

[2] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC) at para 21.

[3] (2008) 29 ILJ 1167 (LC).

[4] [2007] ZALC 93; [2008] 3 BLLR 241 at para 36.

[5] (2006) 27 ILJ 927 (LAC), [2006] 3 BLLR 234 (LAC).

[6] (1998) 19 ILJ 784 (LAC)