Assmang Ltd (Black Rock Mine) v Commission for Conciliation Mediation And Arbitration and Others (JR575/2011) [2014] ZALCJHB 341 (5 September 2014)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURTOF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

CASE NO: JR575/2011

In the matter between –

ASSAMANG LIMITED (BLACK ROCK MINE)

Applicant

And

THE COMMISSON FOR CONCILIATION,

MEDIATION AND ARBITRATION

First

Respondent

COMMISIONER GERALD JACOBS

Second Respondent

JACOB TITUS

Third Respondent

HEARD: 04 June 2014

DELIVERED: 05 September 2014

SUMMARY: Review application. Employee failing to check and ensure the area for drilling was free from non exploded dynamite (misfiring).

Commissioner finding the employee negligent but not responsible for certifying the area as safe.

MOLAHLEHI J

Introduction

[1] This in application to review and set aside the arbitration award made under case number NC279-10 dated 9 February 2011, in terms of which the second respondent (the Commissioner) found the dismissal of the third respondent (the employee) to have been unfair and accordingly ordered his re-instatement.

[2] On 23 October 2012, Basson J granted the remployee leave to file his answering affidavit. The employee failed to comply with the time frame provided therein. The failure to comply with the order was condoned.

Background facts

[3] The applicant is based in the North West Province and employs about 1500 employee in its mining of manganese which it in turn exports to China. The applicant is by virtue of its business governed by the Mines Health and Safety Act 29 of 1996 and its regulations. The applicant in instituting disciplinary proceedings against the respondent relied on the provisions of regulation 8.10.15 which reads as follows:

“The examination of misfired holes and sockets, that the miner show before making any hole with wax cryon, paint or other suitable material or before otherwise indicated to any driller waiting and that he the position of any hole to be drilled, remove or cost to be removed all lose or loosened rock, mineral or grounds from the face and immediate vicinity and shall carefully examined such face in the immediate vicinity with a view of discovering misfired holes and sockets in holes.”

[4] The respondent was prior to his dismissal employed by the applicant as a miner. He was, together with his colleague, Mr Van Zyl, charged with gross negligence relating to the drilling of the rock underground.

[5] It is common cause that it is the responsibility of a miner to ensure at the end of a shift that the area where the blasting is to take place is cleared of all misfired explosives. It is also the responsibility of the miner to ensure that the rock face is cleared before the drilling can beginning. The respondent together with his other colleague, Mr Van Zyl were dismissed for gross negligence in that the operator drilled into misfire holes.

[6] The incident that led to the charges against the employee took place on 25 November 2010, when the operator discovered that there was misfire in the hole. The charge against the respondent was thus that he allowed the operator of an underground drill, to drill into a misfired hole which at the time still had explosives and that he failed to make sure that the rock face was safe before the drilling could take place. In other words the respondent was accused of failing to inspect the entire area where the drilling was to take place to ensure that all the safety measures were in place.

[7] The main witness of the applicant Mr Leipoldt, the shift boss, testified that on the night in question he was called by the mine overseer who informed him that the drill rig had drilled into misfire. The respondent was then called and suspended.

[8] Mr Leipoldt, conceded during cross examination that no formal investigation regarding the incident was conducted by the safety officer. He indicated that there was an investigation by him and the mine overseer. The reason for not conducting a formal investigation

is that such an investigation would have involved the Department of Mineral Resource (DMR). It would appear the reason for avoiding the involvement of the DMR was fear that the respondent would lose his blasting certificate.

[9] The respondent in his defence testified that on the night in question he together with the team went underground as usual. According to him they investigated the area before starting the operations and made sure that everything was in order. He checked on all the sockets to make sure that they were all plucked. He testified in this respect as follows:

“One het die sockets gekyk en ek het gesien al die sockets is geplug en ek het nie al die sockets deurgegaan nie want dit is te veel sockets om deur to gaaan.”

[10] After his investigation he directed the team members as to where they should they work.

The grounds for review

[11] The applicant contends that the Commissioner’s arbitration award is reviewable on the grounds that:

a. The decision he reached is one which a reasonable decision maker could not reach.

b. He committed gross irregularity in finding that the respondent was negligent but that he was not responsible for the incident.

The arbitration award

[12] In relation to Mr Van Zyl’s claim (which is not the subject of this review) the Commissioner found that his negligence was serious and posed danger to the health safety of others. It was for this reason that he found Mr Van Zyl’s dismissal to have been for a fair reason.

[13] The Commissioner reached a different conclusion in relation to the respondent’s case. He found that he was also guilty of

negligence but that he was not responsible for the incident.

The test for review

[14] It is now beyond doubt that the test of a reasonable decision maker to be applied in reviews is the stringent reasonable decision maker. In terms of this test they should not lightly and readily interfere with the decision of a Commissioner. In order to succeed in a review application, the applicant has to persuade the Court that, based on the grounds of review, the decision reached by the Commissioner, falls outside the bounds of reasonableness. The focus of the enquiry is on the outcome and not on the process.

Evaluation

[15] In my view the conclusion that the respondent was not responsible for the incident is unreasonable when proper regard is had to the fact and the material which was before the Commissioner. It is unreasonable because there is sufficient and cogent evidence pointing to the fact that not only was the respondent negligent but also that he was responsible for what happened.

[16] It would appear from the reading of the award that the Commissioner places the responsibility of what happened on Mr Van Zyl who had marked the areas where the drilling was to take place. Although no one was injured as a result of the misfiring, the third respondent accepted that employees could have been injured as a result.

[17] It is also apparent that the incident had to do with health and safety and is an incident that the applicant regards as serious enough to warrant a dismissal.

[18] The case of the applicant against the employee was that he had allowed the operator of an underground drill to drill into misfired hole which still contained explosives. The other aspect of the case against the third respondent is that he did not secure or make safe the rock face prior to the drilling.

[19] The version of the applicant in relation to the issue of the responsibility for what happened was that both the respondent and Mr

Van Zyl were responsible. That version was not challenged by the third respondent. According to Mr Leipoldt who testified on behalf of the applicant both Mr Van Zyl and respondent were responsible for declaring the place safe for drilling. This can in a sense be said to be common cause when regard is had to the testimony of the third respondent. He testified that:

“ Ek het saam met die twee boor operators did plek deurgegaan, ons het die plek ge-ondersoek en ons het die plek gesien die plek is veilig.”

[20] It is apparent from the above that the third respondent had to check the place and make sure that it was safe to conduct the drilling. The negligence on the part of the respondent arises from his own admission that he checked the sockets but not all of them. He also admitted during cross examination that in terms of the law he had to check the area.

[21] In my view the totality of the facts and the circumstances of this matter indicate very clearly that the third respondent was responsible for inspecting the rock face and determining whether it was safe to drill prior to the commencement of his shift. In failing to perform this function the third respondent exposed those of the employees working with him to the risk of drilling into the stick of dynamite the consequence, had it happened could have been devastating with the possibility fatality.

[22] In other words the employee was responsible for checking the area even though Mr van Zyl ‘s reasons done the checking also prior to the end of the shift and prior to employees’ shift coming on duty.

[23] In the premises the following order is made:

1. The arbitration award made under the case number NC 279-10dated 9 February 2011 is reviewed and set aside

2. The arbitration award is substituted for an order to the effect that the dismissal of the third respondent was for a fair reason.

3. There is no order as to costs.

E MOLAHLEHI

Judge of the Labour Court of South Africa

Appearances:

For Applicant: Ms Z Ngwenya

Instructed by:Cliff Deker Hofmeyer Inc

For the Respondent: Ms L N Matshegare

Instructed by:ofWerksmens Attorneys