Exxaro Coal (Pty) Ltd v AMCU obo Baloyi and Others (JR2312/15) [2020] ZALCJHB 182 (31 August 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR2312/15

In the matter between:

EXXARO COAL (PTY) LTD

Applicant

and

AMCU OBO T BALOYI

First Respondent

PIET SHAI N.O

Second Respondent

THE COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION (CCMA) Third

Respondent

Enrolled: 01 July 2020 (via zoom proceedings)

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email, publication on the Labour Court’s website and released to SAFLII. The date and time for hand-down is deemed to be 10h00 on 31 August 2020.

Summary: Review application – breach of safety prescripts in a mining industry is serious enough to warrant dismissal – testing positive for alcohol when the employee was on a final written warning – the commissioner ignored the plea of guilty and final written warning and reinstated the employee on the basis of irrelevant considerations.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] This is an application to review and set aside the arbitration award issued by the second respondent, Piet Shai (Commissioner), with case number LP5887/15, dated 15 November 2015, issued under the auspices of the third respondent, Commission for Conciliation, Mediation and Arbitration (CCMA). The applicant, Exxaro Coal (Pty) Ltd (Exxaro) impugns the award on several grounds. The first respondent, the Association of Mineworkers and Construction Union African (AMCU) acting on behalf of Mr Thomas Baloyi (Mr Baloyi)

is the only respondent opposing the application.

Pertinent facts

[2] The facts in this matter are common cause. Mr Baloyi commenced his employment at Exxaro on 17 July 2014 as a Dump Truck Driver. On 15 December 2014, Mr Baloyi arrived at work and, when tested, was found to have a trace of alcohol in his system. He was charged in terms of Exxaro’s disciplinary code and subsequently subjected to a disciplinary enquiry. He pleaded guilty and was issued with a final written warning. Mr Baloyi was further offered assistance in terms of the Employee Assistance Programme (EAP) but he turned it down, stating that he did not have a drinking problem.

[3] On 4 April 2015, Mr Baloyi once more tested positive for alcohol in his system. Another disciplinary hearing was held on a charge of being under the influence of alcohol. Likewise, he pleaded guilty. He also conceded that he had a drinking problem and requested assistance in terms of the EAP. His request was turned down, instead he and was dismissed.

[4] AMCU referred an unfair dismissal dispute to the, CCMA. subsequent to a failed conciliation, the matter proceeded to arbitration. It is clear from the record that the facts were not disputed. The only issue for determination was the appropriateness of the sanction. The parties accordingly agreed to proceed by way of oral submissions.

[5] AMCU submitted that it had challenged the final written warning and that appeal was never entertained. It then transpired that the appeal was only noted in relation to the second outcome of the disciplinary enquiry. The Commissioner accordingly accepted that the final written was never challenged.

[6] Exxaro’s case is simply that Mr Baloyi was a repeated offender who was on a final written warning. He was charged in terms of Clause 7.1 of the Disciplinary Code read with of the Standard Practice Instruction, SPI/GG/A01.011 (SPI) and Zero Tolerance Policy. Even though Clause 5.1 of the Disciplinary Code recommends a written warning for the first offence, final written warning for the second offence and dismissal for the third office when it comes to drug related offences, Clause 7.1 recommends final written warning for the first offence and dismissal for the second office when it comes to the contravention of the regulation contained

in any applicable legislation, internal policies, procedures and practice.

[7] AMCU, on the other hand, submitted that the SPI referred to in the charge sheet was valid from 3 August 2011 to 3 August 2014. Exxaro only effected the new SPI on 13 July 2015. Yet Mr Baloyi committed that first offence on 14 December 2014 and the second offence on 4 April 2015. It was accordingly submitted that since the transgressions took place during the time when the old SPI had lapsed and the new SPI had not been effected, they ought to have been dealt with in accordance with Clause 5.1 of the Disciplinary Code. As such, Mr Baloyi should have been issued with a written warning for the first offence and a final written warning for the second offence, so the submission further went.

[8] The Commissioner was persuaded by AMCU’s submissions and found as follows:[1]

‘7.7 There is no doubt that the respondent tried hard to adopt a zero-tolerance approach to alcohol-related offences by prosecuting them under clause 7.1 of its code of conduct. Somehow, however, the applicant managed to slip through the safety net because at the time the applicant committed the offence, neither the Standard Practice Instruction which expired on 03 August 2014, nor the Prevention of Intoxicating Substances at Grootegeluk Complex (adopted on 13 July 20215) was inforce.

7.8 At his last conviction, therefore, the applicant was entitled to be sanctioned according to the respondent’s applicable code of conduct, which is contained in clause 5.1 of the 2007 code. The applicant should have been issued with a final written warning despite the fact that he was on such a warning at that time. According to the respondent’s own bundle of documents…the first offence was committed in December 2014 that is, after the expiry date of the Standard Practice Instruction and before the 12 July 2015, the date on which the document was adopted.

7.9 In the circumstances, my finding is that the applicant committed the offences during the window period and should not have been sanctioned as if the amendments were in operation. To this extent, his dismissal was unfair and stands to be interfered with…’

[9] It is this finding that is impugned by Exxaro on the basis of several grounds which I do not deem expedient to rehash; save to mention that the thrust of the Exxaro is that it was denied a fair hearing as a result of the Commissioner’s misapprehension of the nature of the enquiry.

Review test and application

[10] The contentions in this matter are made against a background of well settled and accepted review test as succinctly expounded in Head of the Department of Education v Mofokeng.[2] The enquiry in the present case tune on whether the ordinary errors of fact or law are of such a magnitude so as to result in a

distorting effect on the outcome and accordingly to vitiate the award.[3]

[11] Before I deal with the merits, it is important to once more ring a bell to the Commissioners or Arbitrators and the parties appearing before them of the Labour Appeal Court’s (LAC) judgement in Arends and Others v South African Local Government Bargaining Council and Others,[4] which has constantly been echoed in several decisions of this Court, censuring the practice of conducting the arbitration proceedings by way of oral or written submissions without presenting oral evidence despite the fact that there is no agreed stated case between the parties, as typified in the present case.[5] The LAC patently stated that:

‘[15] The appellants are to some extent the authors of their own misfortune. They placed the matter before the arbitrator as if there was a simple, single issue capable of resolution with the barest minimum of factual matter. Their approach was neither prudent nor correct. When parties desire to proceed without oral evidence in the form of a special case, it is imperative that there should be a written statement of the facts agreed by the parties, akin to a pleading. Otherwise, the presiding officer may not be in a position to answer the legal question put to him. Alternatively, without such a statement, the question put is in danger of being abstract or academic. Courts of law and arbitration tribunals dealing with disputes of right exist for the settlement of concrete controversies and not to pronounce upon abstract questions or to give advice upon differing contentions about the meaning of an agreement. Where a question of legal interpretation is submitted to an arbitrator, the parties must set out in the stated case a factual substratum which shows what has arisen and how it has arisen. The stated case must set out agreed facts, not assumptions. The purpose of the rule is to enable a case to be determined without the necessity of hearing the evidence. An oral stated case predicated upon poorly ventilated and potentially unshared assumptions as to the facts defeats the purpose of the requirements of a stated case and, as this case shows, will lead to problematic results.

[16] Rule 20(1) of the Rules for the Conduct of Proceedings before the CCMA (which might be followed in proceedings before bargaining councils) allows for a pre-arbitration conference at which the parties must attempt to reach consensus inter alia on the agreed facts, the issues to be decided, the precise relief claimed and the discovery and status of documentary evidence. The parties in this case did not engage in a proper pre-arbitration process with the aim of agreeing on a stated case. Although the CCMA rules do not include provisions equivalent to the provisions of rules 33(1) and (2) of the rules of the High Court,

parties who prefer to proceed by way of a stated case at the CCMA or before a bargaining council, in my view, should follow their

prescriptions. These rules provide that the parties to any dispute may, after the institution of proceedings, agree upon a written

statement of facts in the form of a special case for the adjudication of the court. Such statement shall set forth the facts agreed upon, the questions of law in dispute between the parties, their contentions thereon and shall be divided into consecutively numbered

paragraphs. The parties must annex to the statement copies of documents necessary to enable the court to decide upon such questions.

[17] Practitioners must follow these rudimentary elements of good practice when intending to proceed on the basis of a stated case. An arbitrator faced with a request to determine a special case where the facts are inadequately stated should decline to accede to the request...’ (Footnotes omitted and emphasis added.)

[12] Ordinarily, given the undesirable and erroneous approach that was followed during the arbitration proceedings, the award stands to be reviewed without considering the merits. Notwithstanding, the circumstances in the present case are distinguishable in the sense that, indeed, the facts are not in dispute and the principal and threshold question that was raised in oral argument pertains to the appropriateness of the sanction of dismissal.

[13] As mentioned above, Mr Baloyi was not a stranger to discipline and the final written warning was still current when he committed the same offence, a fact clearly accepted by the Commissioner. In essence, if one follows the logic of the Commissioner’s finding, the sanction of dismissal could have been appropriate but for the expiry of the SPI which presumably resulted in the lacuna in the disciplinary prescripts.

[14] There are quite a few difficulties with the Commissioner’s findings, that are robustly defended by AMCU. First, the Commissioner notably misconstrued the charge sheet and the applicable disciplinary prescripts. Mr Baloyi was charged in terms of clause 7.1 of the Disciplinary Code which regulates ‘contravention of any provision of regulation contained in any applicable legislation,

internal policies, procedures ad practice’.[6] It eloped the Commissioner’s scrutiny that the allegedly expired SPI specifically refer to the Regulation 4.1.7 of the Mine, Health and Safety Amendment Act[7] which provides that:

‘No person in a state of intoxication or any other condition which may render or be likely to render him incapable of taking care of himself or a person under his charge shall not be allowed to enter the workings of a mine or be in proximity of any working place or near any machinery on the surface of the mine or at a works, and any person who may have entered the workings of a mine or who is found in the proximity of any workings of a mine or any machinery on the surface of a mine or at any works in a state of intoxication may be arrested immediately by a manager or some person dully appointed by him and be immediately handed over to the police, and shall deemed to be guilty of an offence under these regulations.’

[15] As correctly argued by Exxaro, by arriving at work under the influence of alcohol, Mr Baloyi contravened the Regulation 4.1.7, an offence in terms of 7.1 of the Disciplinary Code. AMCU’s contention that, since SPI had already expired when the transgressions were committed, Mr Baloyi ought to have been disciplined in terms of clause 5.1 which would have afforded him a sanction of a written warning before being issued with a final written warning, which is persisted with in these proceedings, is clearly untenable.

[16] There was no lacuna in the disciplinary prescripts as Exxaro is enjoined by the Regulation 4.1.7 to ensure that its operations are undertaken in a safe environment and prevent any one under the influence or tests positive for alcohol or any intoxicating substance from entering the mine premises. Notably, Mr Baloyi had agreed to the Exxaro’s Zero Tolerance Safety Policies which were incorporated into his employment contract.[8] Even though the SPI had expired, in my view, its terms remained an applicable practice which were enforceable in terms of clause

7.1 of the Disciplinary Code.

[17] Second, Mr Baloyi did not challenge final written warning. Even if the Commissioner’s view that the SPI was not applicable was correct, it was not within the scope of his enquiry to pronounce on the validity of the final written warning. Once it was accepted that the final written warning had been issued consequent to a disciplinary, it was valid until set aside or expired. The effect of a final written warning was addressed by the LAC in XSTRATA SA (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others,[9] where it was stated that:

‘[21] I revert to the present case, and in particular, the grounds on which the judgment of the Labour Court is assailed. As stated earlier, one of the grounds of appeal is that the Labour Court had erred in not concluding that the commissioner had failed to appreciate the effect of the final written final warning on the determination of the appropriate sanction. The nature and effect of a final written final warning, was trenchantly explained by this Court in NUM v Greenside Colliery:[10]

‘A final warning… is precisely what the name suggests. It is a warning that (the employee) will receive no further warnings but will be dismissed if he again transgresses. The employer is of course not bound to carry out the threat, but an employee can have little ground for complaint if (the employer) chooses to do so. To hold otherwise would be to equate a final warning with any other warning, which clearly it is not.’

[22] In Transnet Freight Rail v Transnet Bargaining Council and Others (Transnet),[11] the following was aptly said:

‘[T]he dismissal of an employee on a final written warning is consistent with progressive discipline and, given the seriousness of the offence, suspension would amount to a mere slap on the wrist for an offence which on Fourth Respondent’s own record attracted a final written warning in the first instance. Any sanction short of dismissal would amount to Fourth Respondent not being disciplined at all.’

[18] Likewise, in the present case, the Commissioner occupied himself with irrelevant considerations and ignored the pertinent fact that Mr Baloyi was on a final written warning for the same offence, which, if not dealt with decisively would not only compromise the safely measures in place, but also constitutes a breach of Regulation 4.1.7. In XSTRATA SA, the LAC found this lapse to constitute an irregularity, stating that ‘...by seemingly condoning an employee’s conduct, especially in the face of a final written warning for the same type of misconduct,

could undermine an employer’s safety policy, and send a message to the employer’s other safety critical employees that the breach of the rule was of no consequence.’[12]

[19] It is also instructive that Mr Baloyi had pleaded guilty to the offence of being under the influence of alcohol. Therefore, it does not avail AMCU to belatedly moot a defence that Mr Baloyi was not intoxicated when it conceded that the facts that led to his dismissal are common case. Even so, the importance of the safety measures in the mining industry is worth emphasising. In Sasol Mining (Pty) Ltd v CCMA and Others,[13] Lallie J, was solicitous to stressing that the safety of employees in the workplace is an overriding consideration and stated that:

‘When the evidence before the Commissioner is considered in its totality, it reflects that the third respondent’s misconduct is considered as fatal behaviour by the applicant. The third respondent conceded having breached the lockout procedure by not complying with it in full. However, the Commissioner’s finding that probabilities are that he breached it is not qualified. Safety of employees at the workplace is paramount. It cannot be compromised. An employer cannot be expected to wait until an employee is maimed or has lost his or her life, before taking decisive action against an employee who has exposed fellow employees to danger. Procedures which are intended to prevent injury and fatality particularly in the mining industry need to be complied with properly because a lapse has disastrous consequences. In exercising his power to determine the fairness of the third respondent’s dismissal, the Commissioner had to decide the appropriateness of the sanction of dismissal. His decision that dismissal was inappropriate disregards the value of the lives and safety of the employees the third respondent had the responsibility of protecting. It is not supported by the evidence before him. It constitutes a decision a reasonable decision-maker could not reach on the facts before him and stands to be reviewed and set aside.’ (Emphasis added)

[20] In the circumstances, Mr Baloyi knew that he was on a final written warning for testing positive for alcohol and must have realised that he was at risk of being dismissed if he were to be found guilty of the same offence. He did not challenge the final written warning or avail himself to the EAP. Instead, despite being a Dump Truck Driver in a mining operation, violated the safety regulations and threatened the safety of other employees by presenting himself at work under the influence of alcohol.

Conclusion

[21] It follows that the Commissioner obviously misconstrued the nature of the enquiry. The arbitration award is accordingly vitiated and stands to be reviewed and set aside.

[22] There is no need to remit the matter back to the CCMA given the conclusion I have arrived at. As such, the award stands to be substituted with an order that Mr Baloyi’s dismissal was an appropriate sanction and consequently substantively fair.

Costs

[23] In my view, this is one of those matters where it is fair and equitable that each party pays its own costs.

[24] In the circumstances, I make the following order:

Order

1. The arbitration award issued under case number LP5887/15, dated 15 November 2015, is reviewed and set aside and substituted with the following order:

1.1 The dismissal of Mr Thomas Baloyi is substantively fair.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the Applicant:

Mr MG Maeso of Shepstone & Wylie Attorneys

For the First Respondent: Advocate AL Cook

Instructed by:

LDA Inc.

[1] See: Arbitration award, page 5 of the CCMA record bundle.

[2] [2015] 1 BLLR 50 (LAC) at paras 30 to 33; see also see also: Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curia) [2013] 11 BLLR 1074 (SCA); Sidumo v Platinum Mines Limited and Others [2007] 12 BLLR 1097 (CC).

[3] Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at para 32 to 33; see also: Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16.

[4] [2015] 1 BLLR 23 (LAC); (2015) 36 ILJ 1200 (LAC).

[5] See: South African Social Security Agency v NEHAWU Obo Punzi and Others [2015] ZALCCT 35; (2015) 36 ILJ 2345 (LC); Phillips v Rhopa and Others (JR1070/12) [2016] ZALCJHB 441 (29 November 2016) at paras 39 to 40;

[6] See: Disciplinary Code, table on specific offences, guidelines and sanctions, page 22 of the CCMA record bundle.

[7] Act 74 of 2008.

[8] See clause 5.4 of Mr Baloyi’s employment contract, page 55 of the CCMA record.

[9] (JA 50/2014) [2016] ZALAC 93 (8 September 2016)

[10] National Union of Mineworkers v Greenside Colliery [1995] 4 BLLR 29 (LAC) at para 31.

[11] Transnet Rail Freight v Transnet Bargaining Council and Others (C644/2009) [2011] ZALCJHB 15 (4 March 2011).

[12] Above n 5 at para 28.

[13] (2015) 36 ILJ 2359 (LC) at para 6.