BHP Billiton Energy Coal South Africa (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR12/14) [2016] ZALCJHB 193 (19 May 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Case no: JR 12/14

DATE : 19 MAY 2016

Not Reportable

In the matter between:

BHP BILLITON ENERGY COAL

SOUTH AFRICA (PTY) LTD..................................................................................................Applicant

And

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION..........................................................................First Respondent

MASHEGOANA, M.A. NO.....................................................................................Second Respondent

NATIONAL UNION OF MINEWORKERS............................................................Third Respondent

SENONG, W..............................................................................................................Fourth Respondent

Heard: 12 November 2015

Delivered: 19 May 2016

EVERETT AJ;

Jurisdiction

[1] This is an opposed application for review brought in terms of section 145 of the Labour Relations Act of an arbitration award dated 24 November 2013 and issued by the second respondent, a commissioner of the first respondent (‘the CCMA’).

[2] The commissioner found that the forth respondent, ‘the employee’, was unfairly dismissed and ordered reinstatement and retrospective payment of R168 000.

Background facts

[3] The employee worked as a foreman – Mechanical at Khutala Colliery. He was also appointed as Mechanical Maintenance Supervisor

at 4 shaft East Backbye in terms of section 7(4) of the Mine Health and Safety Act.[1] As such, he was obliged to ensure a safe working environment, conduct inspections and report on safety issues.

[4] On 8 April 2013, the employee was charged with neglect of duty as two nip guards on a conveyor drive did not comply with stipulated

standards. A nip guard is a device installed to prevent injury. Without dwelling on the technicalities, these nip guards had been

installed incorrectly and the employee failed to correct them. He was aware that they were incorrectly installed but he recorded in the log book that they were in order.

[5] The applicant’s contention is that the commissioner erred in disregarding that the employee had a legal duty to ensure health and safety in terms of the MHSA; the offence was serious and placed workers at risk; the employee was on a valid final warning for a similar offence; the employee had repeatedly reported that the nip guards were in order; and that there was no inconsistency in the manner in which the employer applied discipline nor could there be because these were different offences arising out of different incidents.

[6] The employee’s defence was that he had found the nip guards installed in that position from before he commenced employment and he had reported this to his supervisor, Mr Kok, who told him to leave them as they were. The commissioner accepted the explanation and found that the employee was not grossly negligent. The commissioner also found inconsistency in the application of discipline because three electricians were found working on a live cable without isolating the power and they were not dismissed, merely counselled.

Evaluation

[7] The facts in this matter were not in dispute and the commissioner had only two key issues to decide: (1) Was dismissal an appropriate

sanction and (2) was discipline consistently applied? In essence, the commissioner found that dismissal was not the appropriate sanction because the faulty installation was in place before the employee’s employment. Also, he had reported it to his supervisor who accepted the fault. As regards consistency in the application of discipline, the commissioner found in the employee’s favour because three electricians were merely counselled for a breach of safety whereas the employee was dismissed.

[8] I agree with the respondent’s submission that this case hinges on the commissioner’s reasoning as expressed in paragraph 36 of his award. Paragraph 36 reads as follows:

‘The applicant established that the belt structure has been operational in that manner prior to his employment and it was further evident that periodical inspections were done timeously and failed to identify the problem for two years. The evidence that Mr Kok was alerted of the nip guard and he accepted it was not challenged; this was the evidence of both the applicant and his witness.’

[9] Mine safety is an issue of extreme importance in South Africa and injuries and deaths on our mines are not uncommon. The MHSA exists to ensure safety in mining operations and it requires appointment of safety officers. The employee, in this matter, held such a responsibility and the standard of care he had to exercise is greater than that of other workers. The fact that the nip guards were incorrectly installed prior to his employment is irrelevant. And if it is true that his supervisor ignored his concerns about the faulty installation, he ought to have taken his concerns up the line, which he did not do. Instead, he continued to report that the nip guards were in order, thereby placing human lives at risk.

[10] Commissioners have a great deal of discretion when deciding whether the sanction of dismissal is appropriate. What one commissioner may see as an appropriate sanction another may see as inappropriate. And so the question is whether the commissioner’s decision was one which a reasonable commissioner would not make. What is reasonable must be assessed in the context of circumstances of the misconduct. The employee had a legal duty to ensure the nip guards were correctly installed and incorrect installation could result in injury or loss of life, which is more serious than damage to company property. I am of the view that the commissioner erred in concluding that the sanction of dismissal was unfair and that no reasonable commissioner would ignore these factors and conclude that the sanction of dismissal was unfair. On that basis alone, the award stands to be reviewed.

[11] As far as the consistency in the application of discipline is concerned, the commissioner found inconsistency because the employer

did not refute the evidence that three electricians working on a live cable were not dismissed whereas the employee was. This is not the test for inconsistency in the application of discipline and the commissioner’s conclusion that discipline was applied

inconsistently does not follow. He was obliged to examine the similarities and differences in the two offences. He needed to weigh

the seriousness of the offences and not merely equate them. One obvious difference was that the employee in this matter had a particular function to ensure health and safety in the workplace and that he reported that the nip guards were in order. The commissioner

erred in finding that the application of discipline was inconsistent.

[12] Having found that the commissioner erred in two respects, I must decide whether the errors are such that no reasonable commissioner

would have come to the conclusion that the dismissal was substantively unfair. The Labour Appeal Court held in Head of Department of Education v Mofokeng and Others,[2] that ‘(i)n the final analysis, it will depend on the materiality of the error or irregularity and its relation to the result.

[13] In this case, the errors were material and they directly impacted on the result and the commissioner’s conclusion that the dismissal was unfair.

[14] I have already given reasons why the sanction of dismissal was appropriate and that there was no basis for finding that the employer applied dismissal inconsistently. In the premises, it would be a futile exercise to remit the arbitration of this matter to the CCMA before another commissioner and it is in the interests of justice that the matter be finalised by replacing the commissioner’s

decision.

Costs

[15] In the interests of fairness, I am of the view that costs should not follow the result.

Order

1. The application to review the arbitration award issued by the second respondent under MP5707-13 is granted.

2. The award is replaced with the following: ‘This dismissal of Mr Walter Senong was substantively and procedurally fair.’

3. There is no costs order.

Everett, AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the Applicant: Adv. Louis Hollander

Instructed by: Webber Wentzel Attorneys

For the Respondent: Mr. M.S Molebaloa

Instructed by: MS Molebaloa Attorneys

[1] Act 29 of 1996 as amended.

[2] (2015) 36 ILJ 2802 (LAC) at para 33.