National Union of Mineworkers and Another v Commission for Conciliation, Mediation and Arbitration and Others (JR1239/08) [2009] ZALC 125 (22 December 2009)

IN THE LABOUR COURT OF SOUTH AFRICA

HELD IN JOHANNESBURG

REPORTABLE

CASE NO: JR1239/08

In the matter between:

NATIONAL UNION OF MINEWORKES 1ST APPLICANT

NDLELA R M 2ND APPLICANT

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION 1ST RESPONDENT

MATLALA L N.O. 2ND RESPONDENT

VAMETCO ALLOYS MINING

(PTY) LTD 3RD RESPONDENT

JUDGMENT

Molahlehi J

Introduction

This is an opposed review application in which the applicants seek to review and set aside an arbitration award issued by the second respondent (the commissioner) under case number NW3759/07 dated 6th April 2008. In terms o the arbitration award the commissioner found the dismissal of the second applicant (hereinafter referred to as “the employee”) to have been substantively fair but procedurally unfair.

Background facts

The employee who was employed by the third respondent (the respondent) as process operator was dismissed on the 22nd June 2007, following an incident which occurred on the 14th June 2007. That incident occurred during night shift when a big rock fell on the conveyor belt and caused it to choke and making it to fail to run.

In an attempt to remove the rock from the conveyor belt the employee hit it with a harmer. The employee contend that in this process he complied with the lockout procedure which requires the employee to go to the main substation, switch off the equipment which he wants to work on, make sure that there is no power to that equipment and after switching it off lock it with a bolt.

The employee was suspended on the 18th June 2007, and thereafter charged with the following misconduct:

“Unsafe work practices and failure to lockout no.4 re-feed conveyor.”

The employee was found guilty as charged at the disciplinary hearing and was accordingly dismissed. As he was unhappy with the outcome of the disciplinary hearing which it included the appeal, the employee referred an alleged unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (the CCMA) and after failure thereof to resolve the dispute referred it to arbitration.

At the arbitration hearing the employee testified that he attempted to restart the conveyor belt after he had removed his initial lockout and the conveyor belt could not start. He then called Mr Peter Sekhutshwane, who was the shift foreman and informed him of the problem that was caused by the blockage in the conveyor belt. After reporting the problem to Sekhutshwane he then went to stop the entire plant.

The employee further testified that he removed the lockout on the instructions from Sekhutshwane who according to him wished to test the conveyor belt before calling the boiler maker to fix the problem. Attempts by Sekhutshwane to have the conveyor belt working failed. In this process the applicant was approached by Mr Nel who enquired what the problem was and thereafter suggested that

a boiler maker be called to resolve the problem. This was confirmed by Mr Nel who testified that he found the employee on the conveyor belt sitting on the rock that was stuck in the “shute” with a harmer.

The employee’s case during the arbitration proceedings, which was disputed by the respondent, was that he had complied with the lockout safety procedure.

The grounds for review

The applicants have raised several grounds of review. The essence of their complaint is that the commissioner failed to apply his mind to the evidence which was presented before him and that had he done so, he ought to have come to the conclusion that the dismissal was substantively unfair. It is also contended on behalf of the employee that the finding that the dismissal was substantively fair is unjustified in the light of the lockout register which according to this submission confirmed the employee’s version. Whilst it is accepted that the finding of the commissioner concerning the procedural fairness is correct, the commissioner is criticized for awarding compensation of 6 (six) months when the employee had been out of employment for about 9 (nine) months. This criticism is based on the averment that there was no evidence before the commissioner justifying the conclusion that the employee was only entitled to 6 (six) months compensation. According to the submission made on behalf of the employee the commissioner ought to have granted the employee a 9 (nine) months compensation.

The arbitration award

In his arbitration award the commissioner after canvassing the two versions presented by the parties regarding the incident that led to the charges against the employee analysed those versions with the argument presented by the parties and came to the conclusion that whilst the dismissal was substantively fair it was however procedurally unfair. In arriving at that conclusion the commissioner took into account the provisions of item 7 of schedule 8 of the LRA and those of section 22 of the Mines Health and Safety Act 29 of 1996 including regulation 20.9.3.1 of schedule 4 of the same Act.

Item 7 of schedule 8 of the LRA which the commissioner took into account in determining whether the employee had contravened a rule applicable at the workplace of the respondent reads as follows:

“Whether the employee transgressed the workplace rule or standard, if so, whether the employee was aware of the rule or standard, or could reasonably reasonable be expected to have been aware of the rule or standard, whether the rule or standard was applied consistently and whether dismissal was an appropriate sanction.”

Section 22 Mines Health and Safety Act 29 of 1996 (MHSA), reads as follows:

“Every employee at the mine, while at that mine, must-

take reasonable care to protect their own health and safety;

take reasonable care to protect the health and safety of other persons who may be affected by any act or omission of that employee;

use and take proper care of protective clothing, and other health and safety facilities and equipment provided for the protection, health and safety of that employee and other employees.”

Section 91 of the MHSA makes it an offence to fail to comply with the duties spelt out in that Act.

Regulation 20.9.3.1 of schedule 4 of the MHSA provides as follows:

“Subject to regulation 20.6 the person in immediate charge of any work on or repairs to machinery shall ensure that the power supply to such machinery is switched off and locked out or disconnected in accordance with a code drawn up in writing by the engineer or competent person appointed in terms of regulation 2.13.2 and that the power supply remains disconnected or switched off until the work or repairs have been completed.”

In applying the above legal principles to the MHSA the commissioner found that the respondent had a written code adopted in terms of that Act. He found in this respect that the code made provisions for a fair and reasonable rule which is aimed at protecting the health and safety of all employees and other persons working at the respondent’s workplace. As concerning the facts of the case the commissioner found that it is common cause that on the night of the 14th June 2007, the employee worked on the re-feed conveyor belt, and was trying to remove a rock that was stuck on the shute using a harmer. The commissioner further accepted the testimony of Mr Nel that when he arrived at the scene to repair the number 2 conveyor belt, the employee and some other people were working on the re-feed conveyor belt, but had not locked out. He found that that version was corroborated by credible witnesses of the respondent.

The commissioner rejected the version of the employee that he applied the lock out, completed the lockout register, but was instructed by Sekhutshwane to remove the lockout which he did but later locked-out again. In rejecting that version the commissioner questioned its credibility in that it was based on the testimony of Sekhutshwane who was not called to testify at the arbitration hearing.

In applying the law to the facts the commissioner found that the employee had contravened an important safety rule, in that he failed to comply with the lockout procedure whilst doing work on the re-feed conveyor belt on the 14th June 2007. He found in this regard that that conduct constituted a breach of the provisions of section 22 including those of regulation 2.9.3.1 of MHSA. In as far as knowledge of the rule was concerned the commissioner found that the employee was aware that running a conveyor belt without applying the lockout procedures could lead to serious accidents which could cause death or serious injuries to other people. Having come to this conclusion the commissioner then proceeded to evaluate as to whether the sanction of dismissal was appropriate. In evaluating the appropriateness of the sanction the commissioner took into account the disciplinary code of the respondent which provides that gross negligence relating to a potential adverse situation which for instance may involve the safety of other employees warrant summary dismissal. He also took into account the fact that the applicant was on a final written warning for violating the lockout procedure which occurred on the 8th June 2007.

Evaluation

In a review application it is not enough for the applicant to show that the award is not of high standards and that it does not cover each and every aspects of the evidence which was tendered during the proceedings. The essential requirement is that, to succeed in a review application the applicant must show that the arbitration award falls short of the required standard of reasonableness. The enquiry to be conducted by the Court in assessing whether or not the arbitration award is reasonable was set out in Sidumo and Another v Rustenburg Platinum Mines and Others [2007] 12 BLLR 1097 (CC). The enquiry to be conducted is whether the decision of the commissioner is one that a reasonable decision-maker could reach. In assessing the reasonableness of the arbitration award the Court has to keep in mind that the ultimate task of determining the fairness or otherwise of the dismissal in terms of the provisions of the LRA lies with the commissioner and not the Court.

The underlying principle in this respect is that the Court should not review an arbitration award simply because it is of the view that had the matter been presented before it, it would have arrived at a different conclusion to the one reached by the commissioner. See Fidelity Cash Management Service v CCMA & Others [2008] 3 BLLR 197 (LAC) at paragraph 97 to 98.

In my view the criticism of the commissioner’s award by the employee bears no merit in that the reading of the award reveals that the commissioner considered and applied his mind to those aspects of the evidence which the employee complains were disregarded. In this respect the commissioner specifically in his award does make specific reference to the employee’s evidence as concerning the recording of the lockout in the lockout register.

In as far as the testimony of the Sekhutshwane is concerned the commissioner correctly found that reliance on that version did not assist the case of the employee because he (Sekhutshwane) was not called to testify. It is apparent from the reading of the award that the person who ought to have called Sekhutshwane is the employee.

Turning to the complaint that the commissioner in arriving at the conclusion that the dismissal was procedurally unfair awarded a 6 (six) months compensation instead of 9 (nine) months, I find that the employee has failed to make out a proper case to review this conclusion. The employee has in this respect failed to lay a basis to show that the commissioner failed to apply the discretion given to him by section 194 of the LRA in determining the compensation for procedural unfairness.

It cannot, in the light of the above reasons, be said that the decision of the commissioner both in terms of the substantive and procedural fairness is unreasonable. The commissioner fully applied his mind to the evidence weighed both versions as indicated earlier and came to a reasonable conclusion that the dismissal was substantively fair but procedurally unfair. Having arrived at the conclusion that the dismissal of the employee was procedurally unfair the commissioner exercised his discretion in a fair and proper manner and awarded the employee compensation of 6 (six) months. Accordingly the applicants’ application to review and the commissioner’s arbitration award stand to fail. I do not however believe that the costs should in law and fairness follow the results.

In the premises the following order is made:

The application to review the arbitration award is dismissed.

There is no order as to costs.

_______________

Molahlehi J

Date of Hearing : 10th September 2009

Date of Judgment : 22nd December 2009

Appearances

For the Applicant : Adv L M Malan

Instructed by : C N Phukubje Attorneys

For the Respondent: Adv F Wilke

Instructed by : Rob Dick Attorneys

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