National Union of Mineworkers obo Mokgadi v Commission for Conciliation, Mediation and Arbitration and Others (JR 2149/15) [2021] ZALCJHB 28 (3 March 2021)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2149/15

In the matter between:

NATIONAL UNION OF MINEWORKERS

OBO MINAH MERRIAM MOKGADI Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

COMMISSIONER ELELWANI HLUNGWANI N.O. Second Respondent

WESTERN CHROME MINES

Third Respondent

Considered: 01 July 2020 (On papers)

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 03 March 2021.

JUDGMENT

MAHOSI J

Introduction

[1] This is an application brought by the applicant (NUM) in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award dated 3 September 2015, issued by the second respondent (the arbitrator) under the auspices of the first respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA), under case number NWRB 1410-15 in terms of which the arbitrator found that the dismissal of NUM’s member (the employee) was substantively fair.

[2] NUM seeks that the arbitration award be substituted with an order to the effect that the employee’s dismissal was substantively unfair, and that she be retrospectively reinstated. Alternatively, NUM seeks that the matter be remitted to the first respondent to be heard de novo before an arbitrator other than the second respondent. The application is opposed by the third respondent.

[3] Before the court is also a condonation application brought by the third respondent for the late filing of its answering affidavit. The delay in filing the said affidavit is approximately seventy-eight (78) days. Having had regard to the pleadings filed as well as the record, I am of the view that this matter deserves a full determination and I, therefore, condone the late application of the answering affidavit. As such, I consider all the pleadings filed and the record of the arbitration proceedings.

Material background facts

[4] Prior to outlining the NUM’s case in detail and considering the issues that gave rise to the claim, it is necessary to outline the facts that form the relevant background to the dispute between the parties.

[5] It was common cause that the third respondent is one of the five operations of Samancor Limited, the core business of which is mining and smelting of chrome ore. The third respondent uses conveyor belt located underground to transport materials or products such as chrome.

[6] The employee was employed by the third respondent from 01 June 2014 as a conveyor belt attendant. Subsequent to an incident that occurred on 17 November 2014 at the workplace, the third respondent levelled the following charge against the employee:

‘Failure to comply with, or breach of any of the life preserving rules/fatal risk control protocols or non-adherence to safety standards and/or endangering one’s own safety or the safety of others in that on 17 November 2014, you started up a belt at C4 without completing the daily conveyor checklist.’

[7] Following a disciplinary enquiry, the employee was found guilty and dismissed on 07 April 2015. Aggrieved with the decision to dismiss the employee, NUM referred a dismissal dispute to the CCMA challenging the substantive fairness of her dismissal. The dispute was conciliated, but remained unresolved. It subsequently proceeded to the arbitration hearing which was held on 17 August 2015. After the arbitration was finalised, the arbitrator issued an award on 3 September 2015. It is this award that is the subject of this matter.

Arbitration and the award

[8] The issue before the arbitrator was whether the employee’s dismissal was substantively fair. Mr Martin Kagiso Rakoma (Mr Rakoma) testified in support of the third respondent's case. The employee testified in support of her own case and also called two witnesses, Ms Cynthia Nokwaka Nthobane (Ms Nthobane) and Mr George Sibokgodi (Mr Sibokgodi) to support her case.

[9] Having heard the evidence, the arbitrator found that the third respondent had life-preserving rules that included, amongst others, completion of a checklist prior to the operation of the conveyor belt. Further that this rule was reasonable and known to the employee. In fact, the evidence was that the employee had a final written warning for the same offence at the time of the dismissal. Having found that the employee contravened the rule, the arbitrator concluded that the third respondent’s decision to dismiss her was substantively fair.

Grounds of review

[10] NUM submitted that the arbitrator failed to apply his mind to the relevant evidence and consequently made an award, which no reasonable arbitrator could make in that she:

1. Ignored the evidence of NUM’s witnesses with regards to the practice at third respondent’s premises with regards to the

checklist and only focused on the evidence of third respondent’s witness without given reasons for doing so.

2. Failed to explain how he favoured, or preferred the evidence of third respondent’s single witness to the testimony of the other three witnesses, two of whom it is directly their duties to apply the practice and carry out work-related directly to the charge.

3. Failed to consider whether consistency regarding punishment or discipline where other employees did not follow the health and safety procedures was proven.

4. Ignored the evidence that although the rule was in existence, the team leaders knew that belt attendants did not have checklist books but were instructed to proceed to operate.

5. Disregarded the evidence that even chief bosses no longer checked the checklist.

6. Ignored the evidence that although the employee did not complete a checklist, she did manage to recognise a problem with the belt during her pre-operation inspection and called in the necessary personnel to

highlight the problem.

7. Committed reviewable irregularity in finding that the sanction was appropriate in light of the misconduct charge faced by the applicant without considering other remedial actions short of dismissal.

[11] It is on the basis of the above grounds that NUM submitted that the award was defective and that the arbitrator committed misconduct in relation to his duties, committed gross

irregularity in the conduct on the arbitration proceedings and came to a conclusion that a reasonable decision-maker could not have reached on the evidence before her.

[12] In opposition, the third respondent submitted that it was difficult to glean on the exact nature of the applicant’s grounds of review from the founding affidavit and further critisised NUM for raising a number of general or vague grounds of review. Nevertherless, the third respondent opposed NUM’s grounds of review and submitted that the arbitrator took into account all the evidence presented to her and arrived at a decision that any reasonable decision-maker would arrive at.

Applicable law and analysis

[13] The arbitration awards are reviewable in terms of section 145 of the LRA, which provides that any party to a dispute who alleges a defect in any arbitration proceedings under the auspices of the Commission may apply to the Labour Court for an order setting aside the arbitration award. Section 145(2) defines a defect as the commissioner’s misconduct in relation to the duties of the commissioner as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers or improperly obtaining an award.

[14] Although NUM raised a number of grounds, the question is mainly whether the arbitrator evaluated the facts presented before her and arrived at a conclusion that is reasonable.

[15] As aforesaid, the employee was charged with misconduct for allegedly failing to comply with the third respondent’s safety rule in that on 17 November 2014, she started up a conveyor belt at C4 without completing the daily conveyor checklist. In dealing with dismissals relating to misconduct, item 7 Schedule 8 – Code of Good Practice: Dismissal, requires the arbitrator to consider the following factors:

‘(a) Whether or not the employee contravened a rule or standard

regulating conduct in or of relevance to, the workplace; and

(b) If a rule or standard was contravened, whether or not-

(i) The rule was a valid or reasonable rule or standard;

(ii) The employee was aware, or could reasonably be aware of the rule or standard;

(iii) The rule or standard has been consistently applied by the employer; and

(iv) Dismissal was an appropriate sanction for the contravention of the rule or standard.’

[16] The enquiry is, therefore, whether the employee contravened a valid and reasonable rule that he or she was aware of and which was consistently applied by the employer. The arbitrator is further required to determine whether the dismissal was an appropriate sanction for the contravention of the rule or standard.

[17] The rule applicable, in this case, is that the conveyor belt cannot be set in motion until the inspection of all the components has been conducted and declared safe. To prove that the inspection was done, the belt attendant is required to complete a daily checklist. NUM’s case was that the employee was not aware of the rule in question, that she did not breach the rule, that the rule was inconsistently applied and that the dismissal was not an appropriate sanction. The question is whether the arbitrator, on the evidence before her, arrived at an outcome which is one that a reasonable decision-maker could not reach.

[18] NUM challenged the award on the ground that the arbitrator preferred the third respondent’s evidence without giving reasons. It is apparent from the award that the arbitrator admitted and relied on the evidence of Mr Rakoma’s to arrive at the conclusion that the rule existed and further that it was reasonable, important and known to the employee. Mr Rakoma testified that the third respondent had rules requiring employees to obey all health and safety instructions and to refrain from any conduct that is directly or indirectly in violation of health and safety policies, procedures and practices. The third respondent further developed a list of life-preserving rules that are aimed at, amongst others, saving the lives of employees and encouraging a culture of working safely. These included, amongst others, the following:

‘Compliance procedure – where procedure exist, all employees shall adhere strictly to the provisions of such and order of task.’

[19] Mr Rakoma further testified that the duties of conveyor belt attendant include conducting an inspection of the conveyor belt to, amongst others, confirm proper operation of the machines and to identify any dangerous conditions to prevent injuries and/or fatalities which may be caused by such dangerous conditions. To assist the conveyor belt attendants to perform their duties, they are provided with a daily conveyor checklist that is used to conduct an inspection on the different components, which make up the conveyor belt. The checklist is meant to guide the conveyor belt attendant in inspecting and assessing the machine and it further serves as proof that the examination has been conducted.

[20] Furthermore, Mr Rakoma testified that the checklist uses fine print drawing to represent the different components of conveyor belt that require inspection. Symbols are used to indicate the condition of a specific component. For example, while the belt attendant has inspected the fire extinguisher and it is found to be in working condition, he/she would insert a “C” symbol to indicate that the inspection was done and that safe and normal working may commence. The “B” symbol indicates that the competent can be operated but the Artisan should clear the deviation and the “A” symbol is used to indicate that the component is not safe and no work can commence until it is declared safe. Accordingly, after an examination of its component, the belt attendant is required to mark/insert the appropriate symbol. The components that are not up to safety standard are not only recorded on the checklist but must also be reported to the relevant supervisor for repairs. The checklist,

therefore, serves as a report of any conditions found by the belt attendant to other employees who would be working on it.

[21] The reading of the award and the record evinces that Mr Rakoma’s evidence on the existence and importance of the rule was corroborated by Mr Sibokgodi, who does not only provide training but also induction facilitation to the third respondent’s employees. Mr Rakoma’s evidence was further corroborated by the employee and Ms Nthhobane. Although they downplayed the importance of the rule, they both testified that they were trained on it.

[22] Having considered that all the witnesses testified about the knowledge and the importance of the rule, the arbitrator rejected the applicant’s suggestion that the fact that the rule was conveyed orally made it unimportant and further that it was not the first time that she worked without a checklist. Instead, she accepted the evidence that the rule was there to provide safety and protection to the employees and the business. Further that failure to comply with it would result in fatal accidents, explosions and closure of the third respondent’s operations. On the basis of the above, the arbitrator found that the rule existed, that it was valid and reasonable, and that the employee was aware of it. It is clear from the above that NUM’s submission that the arbitrator preferred the evidence of the third respondent’s single witness over the testimony of the other three witnesses who testified in support of the employee’s case is meritless.

[23] The next issue was whether the employee breached the rule. The arbitrator had no doubt that the employee did breach the rule because she (the employee) testified that she failed to complete the checklist. The employee’s excuse was that she did not have a pen and further that she had an intention to complete it before the end of her shift. The arbitrator rejected the employee’s defence and found that, to an extent that she proceeded to her workstation without a pen while fully aware that she was required to complete a checklist, was an indication that she had no intention of completing the checklist. This, to the arbitrator, was the employee’s display of an attitude of not taking her work seriously, which makes her a liability to the third respondent.

[24] NUM’s further ground was that the arbitrator ignored the evidence that although the rule was in existence, there was a practice in terms of which the team leaders would instruct the belt attendants to proceed to operate the belt knowing that they were not in possession of the checklist books. There is no merit to this ground. In her award, the commissioner considered this evidence and applied the principle laid down in Gcwensha v CCMA and others[2] which state that:

‘… Inconsistency challenge will fall where the employer did not know of the misconduct allegedly committed by the employee used a comparator.’

[25] It is trite that an employee may only rely on inconsistency by the employer in the

application of the rule only if the employer was aware that the chosen comparator

had perpetrated the same offence.[3] In Chemical, Energy, Paper, Printing, Wood, and Allied Workers Union v National Bargaining Council for the Chemical Industry and Others[4] the LAC held that:

‘An employer can only be accused of selective application of discipline if, having evidence against a number of individual employees, it arbitrarily selects only few to face disciplinary action.’

[26] In Mogale v AD Spitz (Pty) Ltd[5] the LAC held that:

‘Where the employee alleges that the employer acted inconsistently, the employer will have a duty to show that it acted consistently in disciplining its employees or where there was differentiation the employer will have to demonstrate that the different treatment was justified. See Early Bird Farms (Pty) Ltd v Mlambo [1997] 5 BLLR 541 (LAC) at 545 J.’

[27] In the current matter, the arbitrator applied her mind to the evidence before her and found that a case of arbitrary or subjective selection by the applicant not to discipline the comparator(s) was not proven by Ms Nthobane. As a result, the arbitrator found that NUM failed to prove that the third respondent acted inconsistently on the application of the rules relating to charge levelled against the employee.

[28] It is clear from the award that the arbitrator did not just take into account the third respondent’s denial of inconsistent application of the rule. Ms Nthobane simply failed to show that although she and/or any other employee were charged with the same offence, the other employee was not dismissed. The arbitrator further rejected Ms Nthobane’s evidence on the basis that she was not a reliable witness as she contradicted herslf. In addition, the fact that the employee was issued with a final written warning for the same offence was enough to convince the arbitrator that the third respondent was consistent in applying the rule.

[29] The arbitrator, therefore, took into account all the evidence presented before arriving at the conclusion that NUM failed to proof inconsistent application of the rule by the third respondent. As such, NUM’s challenge that the arbitrator failed to apply the correct test of inconsistency cannot succeed.

[30] On the question whether dismissal was an appropriate sanction, the arbitrator took into account the seriousness of the misconduct the employee was charged for and the fact that the employee was issued with the final written warning notwithstanding the fact that she had committed a dismissible offence to arrive at the conclusion that dismissal was an appropriate sanction. It can, therefore, not be said that the arbitrator failed to apply her mind to the relevant evidence presented before her.

[31] It is my view that the arbitrator properly applied her mind to the material evidence placed before her and that she reached a conclusion that a reasonable decision-maker could have reached. There is no evidence to support NUM’s argument that the arbitrator committed serious gross irregularities, committed misconduct in relation to her duties or misconceived the nature of the enquiry before her. It follows that the applicant failed to raise valid grounds for this Court to interfere with the arbitrator’s award on review.

[32] With regard to costs, I am of the opinion that the requirements of law and fairness dictate that there should be no order as to costs.

[33] Accordingly, the following order is made:

Order

1. The application to review and set aside the arbitration award dated 3 September 2015, issued by the second respondent under the auspices of the first respondent, the Commission for Conciliation, Mediation and Arbitration, under case number NWRB 1410-15 2 is dismissed.

2. There is no order as to costs.

__________________

D. Mahosi

Judge of the Labour Court of South Africa

Representatives

Applicant

Advocate Q.M Dzimba

Instructed by

Mothobi Attorneys

Respondent

Ms G. Mthalane of Solomon Holmes Attorneys

[1] Act 66 of 1995 as amended.

[2] [2006] 3 BLLR 234 (LAC)

[3] Grogan: Dismissal, Juta page 153; See also: Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others [2009] 11 BLLR 1128 (LC).

[4] [2011] 2 BLLR 137 (LAC).

[5] Case No: JA 36/2011 para 24.