Modikwa Platinum Mines v Commission for Conciliation, Mediation and Arbitration and Others (JR1451/13) [2023] ZALCJHB 263 (24 January 2023)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no. JR1451/13

In the matter between:

MODIKWA PLATINUM MINES Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

PIET SHAI N.O

Second Respondent

MANELISI MANTAMBO Third Respondent

NATIONAL UNION OF MINEWORKERS Fourth Respondent

Date heard: 10 November 2022

Date delivered: 24 January 2023

JUDGMENT

BALOYI AJ

Introduction

1. The second respondent issued an arbitration award in terms of which he found the dismissal of the third respondent substantively unfair. Consequently, he awarded the third respondent relief of reinstatement with backpay. The applicant is aggrieved by this decision hence it filed an application for review and set aside of the arbitration award. The inquiry before the second respondent realistically turned on whether the sanction of dismissal was appropriate. It is common cause that the applicant pleaded guilty to a single charge relating to breach of safety that was crafted as follows:

“Failure to observe and to ensure compliance with safety regulation where it is life threatening to self and others. In that on the 1/12/12 you left people underground and you went home.”

2. The second respondent identified the issue for determination to be whether the third respondent’s dismissal was fair or not. After hearing the evidence placed before him, he made his own pronouncement that the third respondent was guilty. In the context of this matter, this was wholly unnecessary. It appears that the parties did not sufficiently point out to him that the fairness of the dismissal was in dispute to the extent of the sanction imposed on the third respondent following a guilty plea. The issues before the second respondent were crisp in that his inquiry should have been limited to whether there were mitigating factors militating against the imposing of a sanction of dismissal. The matter however marched to a full-blown arbitration despite this.

3. Since the issues were heavily conflated by the parties with the second respondent having inadvertently played along, this Court shall for what it is worth unpack the background of the dispute. This will certainly assist in answering the question of whether the sanction of dismissal was appropriate or otherwise.

Background

4. The applicant employed the third respondent on 26 March 2012. He was dismissed on 15 January 2013. At the time of his dismissal, he was holding a position of a miner and was a Crew Captain with a blasting certificate. He was reporting to a shift supervisor Mr. Wessel Germishuizen. The applicant is a mining company. It is as such bound to operate within the confines of strict legislative safety measures. As a measure towards achieving compliance, daily safety meetings are

held before any crew could go underground.

5. On 01 December 2012 the third respondent went underground with his crew and so did Mr. Germishuizen for the 6h00 shift. The third respondent reported to Mr. Germishuizen that everything was going well and there were no problems. After getting this report, Mr. Germishuizen knocked off at 11h00. He only learned telephonically from the third respondent’s fellow miner who enquired as to who released the third respondent. Mr. Germishuizen’s reaction was that he was not aware of the third respondent’s early knockoff. It also came to his attention that the third respondent left without connecting the square that was intended for blasting on that day. In terms of the safety rules, the Crew Captain is not allowed to leave the underground site without his crew or without appointing a competent person to take over his responsibilities.

6. When Mr. Germishuizen contacted the third respondent, it transpired that the third respondent left because he was not feeling well. The third respondent reported for duty the next day, that is, on Sunday 02 December 2012. Once again, he informed Mr. Germishuizen that he was not feeling well. Mr. Germishuizen excused him to enable him to seek medical attention. On 03 December 2012 he did not report for duty. On his subsequent return to work, he submitted two medical certificates to the HR department. The first one was issued by Platinum Health Clinic indicating that he was examined on 03 December 2012 and he was unfit for work from 03 December 2012 to 04 December 2012. The second medical certificate was issued by Mehluko Medical Centre indicating that he was seen on 03 December 2012 and recommended that he be placed on sick leave from 01 December 2012 to 03 December 2012.

7. The Crew Captain is in terms of the safety rules required to make an entry in the logbook stating the reason for his early departure and to inform the control room which in turn contacts the Shift Supervisor. In situations that are not emergencies, the Crew Captain is required to report his possible early departure to his Shift Supervisor. In cases of illness or injury underground the Crew Captain reports to the control room through the refuge bay channel. The ambulance will thereafter be dispatched.

8. The third respondent did not follow any of the rules prior to leaving the underground site before the knock-off time. It is undisputable that he left without his crew. His version is that he reported his illness to Mr. Germishuizen at the safety meeting. He did not complete the necessary paperwork because he appointed Willem Ludick to take over his responsibilities. He did not contact Mr. Germishuizen about the situation because he did not have airtime. He did not go to the mine clinic because members of Discovery medical aid were no longer assisted at the clinic. He did not seek medical attention on 02 December 2012 after being excused by Mr. Germishuizen because he did not have transport. When Willem Ludick refused to take

over his responsibilities, he attempted to approach another miner but he did not find him. He did inform Sipho, another miner about his illness before he left. It is notable from the record that all this was not put to the applicant’s witness with the exception that Sipho knew about his condition.

9. The third respondent further made use of an undated statement made by Willem Ludick. According to the statement, Mr. Ludick states that he was approached by the third respondent to release the remaining miners as others had already knocked off. Mr. Germishuizen was at that time under cross-examination and questioned the validity of the statement as it was not even part of the internal hearing. It then emerged that Mr. Ludick had in fact made the statement on the morning of the arbitration proceedings as he was unable to attend to the arbitration proceedings.

10. In arriving at a finding that the third respondent’s dismissal is substantively unfair, he noted that the third respondent did not do the necessary paperwork but a verbal arrangement he made with Mr. Ludick was sufficient to cover him. He also took into account that the third respondent looked for another miner and could not find him. He accepted Mr. Ludick statement because its discovery was not objected to. He was satisfied that the third respondent was indeed sick.

Evaluation

11. The dispute in this matter is founded on whether the third respondent left the underground site without his crew and/or not ensuring that someone competent was given the responsibility of taking over from him. The third respondent pleaded guilty and was accordingly found guilty at the disciplinary hearing. The second respondent also found the third respondent’s claim of not being aware of the safety rules to be unbelievable and found him guilty of being in breach of such rules.

12. On whether his dismissal was fair, it is of utmost importance to establish whether the facts placed before the second respondent revealed mitigating factors that may lead to any other sanction than dismissal. The second respondent found the dismissal to be too harsh. This finding is based on the defences raised by the third respondent. These are the defences that were rejected in his determination of the merit of the dispute hence the handing down of a guilty finding by the second respondent himself. On the other hand, he looked at such defences as mitigating factors. There is no doubt that he ignored the applicant’s version which served as aggravating factors during the arbitration proceedings.

13. One difficulty amongst others is that the second respondent found the dismissal to be too harsh. He did not come up with an alternative

sanction short of dismissal in light of his passing of a guilty verdict. He awarded the third respondent maximum backpay as if the unfairness of the dismissal was founded on a not guilty verdict in his decision. This on its own reveals the third respondent’s

failure to apply his mind to the issues placed before him. Based on the policies and regulations, the applicant pointed out that an act or omission in breach of safety rules is a matter of life and death. In Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal & Engineering Industries Bargaining Council & Others[1] the Labour Appeal Court held as follows in this regard at paragraph 36:

“[36] The issue of safety and the rules pertaining thereto is accordingly of considerable importance to both the appellant and its employees. At the arbitration hearing, the appellant’s representative explained that at “…Samancor eighty percent of the fatalities of people who die at work is related to (inaudible) or mobile machinery. In other words this is one of the areas where most of the people who die at work (inaudible) and as a company we just cannot tolerate any of our rules which is designed to save peoples lives.” Accordingly, in the context of the present matter, the importance of the safety rules concerned, the reasons for their existence, and the seriousness and potentially life-threatening consequences of a breach of such rules are important considerations that must be accorded due weight”.

14. The Labour appeal Court restated this position in National Union of Mineworkers & Others v Shanduka Coal (Pty) Ltd & Others[2] where the following was said at paragraph 12:

“[12] Workplace safety rules are directed primarily at preventing, and at least limiting, the risk of injury and loss of life at work. The more dangerous the workplace, the greater the importance of ensuring adherence to such rules given the potentially grave consequences of their breach. This Court in Samancor Chrome Ltd (Tubatse Ferrochrome) v Metal & Engineering Industries Bargaining Council & Others noted as much stating that due weight was to be accorded to the safety rule which applied to the operation of the appellant’s smeltery, the reasons for the existence of such rules and seriousness and potentially life-threatening consequences of their breach were important considerations”

15. A high premium was as such placed on the third respondent as a Crew Captain with a blasting certificate. This was not disputed. Instead, he claimed that he did not know the safety rules. Lack of remorse is the only thing to find in the third respondent’s responses in this regard.

16. It must be emphasized that the applicant did not dismiss the third respondent for making misrepresentations about his illness. The main issue is compliance with the rules in circumstances of illness. The third respondent has failed to the detriment of his own life and that of his crew members. That the statement was not objected to cannot be sustainable as the record indicates that the validity of the statement was put in the spotlight. It remains hearsay evidence that is inadmissible. The third respondent did not bring about any of the qualifying exceptions in terms of section 3 of the law of Evidence Amendment Act. Most importantly, the statement is of no consequence in view of the third respondent’s plea of guilty and his own acknowledgment that Mr. Ludick did not assist him hence he resorted to looking for another miner.

17. Since the decision of the third respondent does not pass the test of reasonableness, it cannot be said that it is a decision that a reasonable decision-maker could reach. With the record containing sufficient evidence, the Court is in the position to appropriately determine the matter. That the third respondent had a clean record appears to be the most visible mitigating factor. His service was relatively of a short period. The defences he raised point to a lack of remorse and the absence of a commitment to redeem himself. According to the disciplinary code, breach of safety attracts a sanction of dismissal even on the first transgression. The third respondent has not shown any exception to the imposing of a sanction of dismissal. It is not inconceivable that a Crew Captain should take a lead in ensuring full compliance with the safety rules. In the circumstances, I find no reason to uphold the second respondent’s arbitration award. It falls to be reviewed and set aside. The third respondent is thus not entitled to relief.

Costs

18. There is no employment relationship to be nurtured. The third respondent opposed the award made in his favour on an understanding that the decision of the second respondent was reasonable. I do not find anything exceptional that calls for a cost order. On this note, I find that it is in the interest of law and fairness not to make a cost order.

Order

19. In the premises, the following order is made:

1. The arbitration award issued by the second respondent under case number LP1371-13 is reviewed and set aside.

2. The arbitration award is substituted with an order that:

2.1 The dismissal of the third respondent is found to be substantively fair.

3. There is no order as to costs.

MM BALOYI AJ

Acting Judge of the Labour Court of South Africa

Appearances:

For the applicant: Adv.

MJ Van As

Instructed by Cliffe Dekker Hofmeyr Inc.

For the first respondent: Adv. RC Mathevula

Instructed by Mohale Incorporated

[1] (2011) 32 ILJ 1057 (LAC)

[2] (2020) 41 ILJ 2101