Pilusa v Commission for Conciliation, Mediation and Arbitration and Others (JR 2095/16) [2021] ZALCJHB 189 (29 July 2021)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR 2095/16

In the matter between:

CARLTON PILUSA Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First Respondent

COMMISSIONER P RAKALE N.O Second Respondent

DIRECTIONAL SURVEY AND MAPPING Third Respondent

Heard: 27 July 2021

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 29 July 2021.

Summary: Review application – a claim by the employee that he is innocent is untenable if he conceded his error during the arbitration – an expert employee is expected to know how to execute his duties – a single slip in execution of duties may justify dismissal – procedural fairness entail giving the employee notice of the contemplated disciplinary action and a proper opportunity to be heard.

JUDGMENT

NKUTHA-NKONTWANA, J

Introduction

[1] This is a review application in terms of section 145 of the Labour Relations Act[1] (LRA). The applicant impugns the arbitration award issued by the second respondent (Commissioner) under case number NWRB1359-16 dated on 1 July 2016 and under the auspices of the Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner found the dismissal of the applicant procedurally and substantively fair and dismissed his claim. The third respondent is the only respondent defending the award.

[2] The applicant also seeks condonation for the late filing of the review application by about 40 days. I deem it unnecessary to be arrested by this point as the delay is not excessive and the explanation is reasonable. In any event, the third respondent has abandoned its opposition. Accordingly, the late filing of the review application is condoned.

Background

[3] The applicant was employed by the third respondent as a Mine Surveyor on 25 February 2015. He was dismissed on 1 April 2016 following a disciplinary enquiry and a verdict of guilty on the charge of ‘substandard work, work not done according to Company procedures’[2].

[4] It is not in dispute that a Mine Surveyor’s work involves, inter alia, accurate measurement and recording of mine workings and plans. Mine Surveyors are required to provide correct and accurate plans to mines; and their work is vital to the design, planning, and safety of underground and surface mining activities. The accurate performance of work by a Mine Surveyor is of paramount importance as errors can lead to ground collapse and result in fatalities.

[5] The applicant was employed as a qualified Mine Surveyor and the required competencies in plotting and projecting a peg, put up a total station, work on CAD and Micro-Station. He was dismissed for plotting two projection points incorrectly due to inputting the incorrect data. Disgruntled by his dismissal, he referred a dispute to the CCMA which resulted in the award under review. In these proceedings he impugns the award on various grounds which I briefly deal with hereunder.

Review test

[6] The parties accept the review test as expounded in the leading authorities of the LAC and Constitutional Court.[3] Certainly, this Court is enjoined to consider the totality of the evidence not on a fragmented piecemeal analysis so as to avoid blurring the line between a review and an appeal.[4]

Grounds of review and evaluation

[7] Firstly, the applicant accuses the Commissioner of irregularity for failure to accept his defence that his supervisor, Mr Piet van Schalkwyk (Mr Van Schalkwyk) failed to constantly monitor the quality of his work. Mr Van Schalkwyk refuted this assertion and was adamant that, while he did constantly monitor the applicant’s quality of work when he commenced his employment, he was subsequently satisfied with his competence because for a period of about 10 months he performed diligently. As result, he, Mr Van Schalkwyk, used to perform spot checks at least once or twice per month. The commissioner reasonably rejected the applicant’s defence as a blame shifting.

[8] Secondly, the applicant accuses the Commissioner of failure to accept his alternative version of defence to the effect that his errors were within the limits of error prescribed by the Mine Health and Safety Act[5] (MHSA) and, as such, there was no actual breach of the MHSA legal standards or rules. Regulation 17(14)(b)(v) of the MHSA provides that errors in representation on plan do not exceed 0.1% (zero comma one per cent) of the denominator of the scale of the plan, in addition to the allowable survey error at the nearest survey station or fixed position. Where accurate surveying is not possible due to significant risks, the estimated position of affected workings or objects must be indicated on the plan by broken lines and with reasons why accurate measurements could not be made.

[9] Strangely, the applicant persists with this line of defence despite his concession during cross-examination that the allegations levelled against him had nothing to do with the MHSA. Simply put, his charge pertained to incorrectly plotting projection points, which resulted in the projection points being in the incorrectly placed and out on direction as a result of him using an incorrect method to input data. In any case, the third respondent’s evidence that the errors here about 0.4%, far above the permitted limit in terms of the MHSA, was not disputed. Likewise, the commissioner cannot be faulted for rejecting this version of defence.

[10] Thirdly, there is no merit in the applicant’s contention that the commissioner failed to understand the charges against him because he confused ‘plotting’ with ‘projection’. In my view, the applicant is merely clutching at straws. He seems to forget that he made a concession that he erroneously captured the information, when he captured 182.0137 instead of 182°01”37, and that lead to incorrect measurements. So, his errors related to the plotting of projection points as explained by Mr Van Schalkwyk. It also does not avail the applicant to argue a new defence that to the effect there he did not commit any error, as his counsel did at the hearing of the application. Obviously, this defence stands to be rejected because it at odds with the evidence of record.

[11] Fourthly, the applicant accuses the Commissioner of failure to consider other competent penalties. In the main, it would seem that this is the crux of the applicant’s case. His counsel submitted the third respondent shunned a progressive discipline approach for shotgun and punitive one. The difficulty that the applicant cannot overcome is that he conceded that, as a senior surveyor, he had the requisite skills. There was, therefore, no justification for him to make such mundane errors especially since he had performed his work per the required standards for about 10 months. Worse still, even after the concession that he did make errors, he obviously failed to appreciate the seriousness of his transgression; which is essentially that an incorrect plotting of projection points in a mining operation could lead to fatalities.

[12] Another difficulty I have with the applicant’s impugn in this regard is that he conceded that he had sufficient expertise to perform the required responsibilities and was not someone who needed training or guidance. In fact, his insistence that he did not make errors or, alternatively, that his errors were with the requisite limits in terms of the MHSA, is telling.

[13] In Somyo v Ross Poultry Breeders (Pty) Ltd,[6] the LAC, dealing with the poor performance of a senior employee or an expert, stated that:

‘An employer who is concerned about the poor performance of an employee is normally required to appraise the employee’s work performance; to warn the employee that if his work performance does not improve, he might be dismissed; and to allow the employee a reasonable opportunity to improve his performance… Those requirements may not apply in two cases which are relevant to this matter. The first is the manager or senior employee whose knowledge and experience qualify him to judge for himself whether he is meeting the standards set by the employer… The second is where “. . . the degree of professional skill which must be required is so high, and the potential consequences of the smallest departure from that high standard are so serious, that one failure to perform in accordance with those standards is enough to justify dismissal”…’ (Emphasis added)

[14] Similarly, in the present instance, the applicant did not satisfy the requirements of the appraisal, warning and opportunity to improve, which would apply in the case of an ordinary employee.[7] Thus, the Commissioner cannot be faulted for upholding the sanction of dismissal in the circumstances.

[15] Fifthly, the applicant accused the Commissioners of a failure to undertake an assessment of the versions of the witnesses and determine which was more probable. Evidently, this contention is not supported by facts. The Commissioner specifically made a credibility finding against the applicant which I am disinclined to interfere with as the record shows that he, the Commissioner, properly analysed the evidence that was before him.[8]

[16] Lastly, the applicant’s contention that the Commissioner failed to consider that he did not have sufficient time to prepare for the disciplinary enquiry. The Commissioner specifically rejected this allegation because the applicant had been given almost a week’s notice to prepare and that afforded him a chance to state his case and to question the witnesses of the third respondent.

[17] The applicant’s gripe is that he was served with a charge sheet that did not disclose the particulars of the charge and that happened during the mine shutdown. He only became aware of the details of the allegations levelled against him during the disciplinary enquiry and still was expected to defend himself. Even though the third respondent conceded that the charge sheet lacked particularity, its counsel sought to argue that the applicant ought to have requested a postponement in order to deal with the particulars of the charge sheet.

[18] The real question to be answered in this regard is whether the applicant had been afforded a right to be heard? In JDG Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon,[9] the LAC rejected the contention rule of natural justice may be dispense with in a case of a senior employee who knew what his shortcomings were; and stated that:

‘The opportunity which is given to a senior employee must still meet at least the two basic requirements of the audi alteram partem rule, namely, he must be given notice of the contemplated action and a proper opportunity to be heard. The reference to “notice of the contemplated action” necessarily implies that the action has not been decided upon finally as yet but that it is one which may or may not be taken depending on the representations which the affected person may give…’[10] (Emphasis added)

[19] In my view, it cannot be said in the present instance that that applicant was really afforded a proper opportunity to be heard. It is hard to comprehend how was he expected to question the case of the third respondent if he was not given the details thereof prior to the disciplinary enquiry. To make matters worse, the applicant was also served with the charge sheet during the mine shutdown. It follows that the procedure that led to the applicant’s dismissal was not fair.

Conclusion

[20] Taken as a whole, I am accordingly satisfied that, based the totality of the evidence that was before the Commissioner, the findings pertaining to the substantive fairness are beyond reproach and must stand. However, the converse is true when it comes procedural fairness. As such, the Commissioner’s finding on procedural fairness is not reasonable and stands to be reviewed as set aside.

Relief

[21] I deem it expedient not to remit the matter back to the CCMA in the interest of justice. Moreover, the facts pertaining to the procedural challenge are not contentious. I am, accordingly, in a position to pronounce on it. In the light of the finding that the procedure that led to the applicant’s dismissal was unfair, the only issue that is lingering is compensation in terms of section 194(1) of the LRA[11].

[22] In the circumstances of this case, I am satisfied that compensation that is equivalent to two months’ remuneration is just and equitable. The applicant was earning R22 90.00 per month at the time of his dismissal. As such, the total quantum is R45 800.00.

Costs

[23] Typically, this Court is slow in granting costs against the individual litigants in keeping with the dictates of law and fairness. However, the applicant seeks the costs reserved by the order of Cele, J on 13 March 2020 when he dismissed the third respondent’s point in limine, which I so grant.

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

Order

1. The arbitration award issued by the Commissioner under case number NWRB1358-16 and dated 1 July 2016 is reviewed and set aside, only to the extent that the Commissioner found the dismissal of the applicant procedurally fair, and is substituted with the following order:

‘1. The dismissal of the applicant, Mr Carlton Pilusa, is procedurally unfair.

2 The third respondent shall pay the applicant compensation in the amount of R45 800.00.’

2. The third respondent shall pay the applicant’s costs reserved by the order of Cele, J on 13 March 2020.

` P. Nkutha-Nkontwana

Judge of the Labour Court of South Africa

Appearances:

For the applicant: Advocate X Sibeko

Instructed by: Qhali Attorneys

For the third respondent: Advocate F Venter

Instructed by: Van Gaalen Attorneys

[1] Act 66 of 1995, as amended.

[2] See: Arbitration award, para 3.

[3] See: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC); SA Rugby Union v Watson and Others (2019) 40 ILJ 1052 (LAC); Department of Education v Mofokeng & Others Mofokeng [2015] 1 BLLR 50 (LAC); Palluci Home Depot (Pty) Ltd v Herskowitz & Others (2015) 36 ILJ 1511 (LAC).

[4] See: Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration and Others (Gold Fields) (2014) 35 ILJ 943 (LAC) at para 21.

[5] Act 29 of 1996, as amended.

[6] [1997] 7 BLLR 862 (LAC) at 866C-867B:

[7] Id.

[8] See: National Union of Mineworkers & another v Commission for Conciliation, Mediation & Arbitration & others (2013) 34 ILJ 945 (LC) para 31.

[9] (2000) 21 ILJ 501 (LAC) at paras 60-62.

[10] Id.

[11] Section 194(1) of the LRA prides: ‘The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a .fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.’

[11] Section 194(1) of the LRA prides:

‘The compensation awarded to an employee whose dismissal is found to be unfair either because the employer did not prove that the reason for dismissal was a .fair reason relating to the employee’s conduct or capacity or the employer’s operational requirements or the employer did not follow a fair procedure, or both, must be just and equitable in all the circumstances, but may not be more than the equivalent of 12 months’ remuneration calculated at the employee’s rate of remuneration on the date of dismissal.’