Sulzer Pumps (Pty) Ltd v Nomxhanya and Others (JR445/2020) [2024] ZALCJHB 253; (2024) 45 ILJ 2398 (LC) (15 July 2024)

FLYNOTES: LABOUR – Dismissal – Workplace safety – Occurrence of lost-time injuries – Dismissal of safety manager found procedurally fair but substantively unfair – Misdirection by arbitrator – Failure to deal with components of charges – Findings of not guilty on certain charges reviewed, set aside and substituted – Dismissal nevertheless substantively unfair – Reinstatement intolerable in view of possible ramifications for safety management – Alternative relief awarded in form of compensation.

THE

LABOUR COURT OF SOUTH AFRICA

AT JOHANNESBURG

Of interest to other judges

Case No: JR 455/2020

In the matter between:

SULZER PUMPS SA (PTY) LTD Applicant and

SAMELA

NOMXANYA First Respondent

COMMISSIONER

AUBREY MOTEBANG MOKOENA NO Second Respondent

THE

METAL AND ENGINEERING INDUSTRIES BARGAINING COUNCIL Third Respondent

Heard: 6 February 2024

Delivered: 15 July 2024

Summary: (Review – misconduct dismissal – Misdirection by arbitrator – failure to deal with components of charges - Findings of not guilty on certain charges reviewed, set aside and substituted – Dismissal nevertheless substantively unfair – Reinstatement intolerable in view of possible ramifications for safety management – Alternative relief awarded in form of compensation)

JUDGMENT

LAGRANGE, J

Introduction

[1] This is an opposed review application of an arbitration award handed down on 23 January 2020 in which the arbitrator found that when the applicant (‘Sulzer’) dismissed the respondent Ms S Nomxhanya on 22 February 2019 her dismissal was procedurally fair but substantively unfair. The arbitrator reinstated Ms Nomxhanya with full retrospective effect to the date of her dismissal.

Brief chronology

[2] Ms Nomxhanya was as a Safety Health and Environment (SHE) manager, quality assurance at the beginning of 2015 responsible for the ‘management and administration of the SHE System for Sulzer South Africa Holdings at the Elandsfontein site. Sulzer is a Swiss multinational company, which manufactures pumps and rotating machinery.

[3] At the time of her dismissal, she was earning approximately R 435,000 per annum. Amongst the specific responsibilities assigned to her in her job description were the following:

“Ensure that Policy Statements, Emergency Plans and Risk Assessments are produced and assured.

Management of the Risk Assessment strategies and make recommendations on the implementation of these strategies. Assist and support in the preparation of risk assessments. Monitor the availability of and appropriateness of risk assessments and, where necessary, safe working practices and procedures.

Investigate or arrange for all accidents and near-misses to be investigated, prepare reports of findings, including recommendations to prevent recurrence and implement approved course of action….”

[4] In mid-August 2017 Ms Nomxhanya’s reporting line was changed to report to the managing director, Mr. Arnott (‘Arnott’), who testified for the business at the arbitration hearing. Previously, she had reported to the quality assurance manager.

[5] During 2018, six lost times injuries ("LTIs") occurred over an eight-month period. A lost time injury occurs when a work-related injury requires an employee to take time off work. Three of the incidents resulted in serious trauma to the victims. One of the incidents involved an apprentice working on a lathe. Ms Nomxhanya compiled a report on the incident, but Arnott was not satisfied with it, and called in a UK based Sulzer expert, Mr F Woodward, employed by the company in Leeds, to investigate the matter further.

[6] In the course of his investigation, Woodward identified a number of flaws with safety measures at the Sulzer premises in Elandsfontein. This led Sulzer to appoint an external foreign consultant, Mr W Finnie (‘Finnie’) to identify all safety issues and recommend remedies.

[7] On 15 February 2019 Ms Nomxhanya was issued with notice of a disciplinary enquiry in which the alleged misconduct was somewhat awkwardly expressed in these terms:

“Charge 1: Gross dereliction of your duty as the SHE manager which could potentially have resulted in severe health and safety violations, endangering the lives and safety of employees, customers and suppliers which has resulted in the increase in the number of lost time injuries.

Based on an investigation and internal safety audit conducted from November to date, the following violations have been identified that fall directly under your area of responsibility:

1[1]. No risk assessments had been conducted to cover both routine and non-routine tasks-

a) this includes but is not limited to the fact that you failed to identify and action the risk that the test bay and pressure testing facility posed to the overall safety of those employees working on and in the vicinity of those areas.

b) Machining Risk Assessments have not been completed.

2[2]. No NCR Corrective and Preventative Action Procedure in place. [Non-conformance is to rectify non-conformances].

3[3]. Overall management and control of the KPI's associated with your role as a SHE manager which is evident in the number of LTI's in 2018 and reporting and management of these in line with required Sulzer standards.”

(Original emphasis)

Despite the description of the alleged misconduct as a single charge, it is evident it had three different component charges which were dealt with separately.

[8] According to Sulzer, the disciplinary charges originated from the investigation conducted by Finnie into the six LTIs. The reason the additional assistance was sought was because the managing director, Mr Arnott, was not satisfied with the outcome of the internal investigations conducted by Ms Nomxhanya into these incidents.

[9] Finnie produced an extensive health and safety survey report highlighting various shortcomings and major risks to the company and employees from a health and safety perspective. Based on this assessment, Sulzer formed the view that the third respondent had grossly neglected her duties as a SHE manager in failing to address some of the responsibilities for which she had been employed.

It was this report which specifically highlighted the lack of adequate safety in the testing areas, which is discussed later.

[10] It is common cause that Ms Nomxhanya had conducted Job Safety Analyses (‘JSAs’) of certain machines. However, Arnott testified that these were baseline risk assessments, which did not address the explicit controls of a risk assessment, which include who might be injured, the original risk rating, detailed mitigation controls and residual risk.

[11] Two specific areas of alleged neglect were highlighted.

11.1 The static test bed area: It was a high-risk area which had deteriorated, and pressure test vessels were not, and could not be, certified due to unauthorised welding on the vessels. There was also poor housekeeping and numerous risks exposing employees to

fall and trip hazards. The test bed area had been allowed to operate under high-risk conditions for an extensive period. Management closed this area down at the end of January 2019 until it could be made as safe as possible.

11.1.1 The pump test area: The company maintains this area is more dangerous than the static test area. It is where high pressure pump equipment manufactured by the company is tested. If something went awry, a fatality could result. The criticism of Ms Nomxhanya’s conduct was that the extent of this risk was not identified by her and that the testing of equipment was done with nothing more than a Perspex barrier surrounding the test area,which was insufficient given the high-pressures involved. After Finnies’s

report, management shut this area down until the defects could be remedied. Ms Nomxhanya had been expected to identify the high risk involved and manage the risk accordingly.

[12] Further problematic safety issues identified were that: there was no procedure put in place for the management of hazardous substances or risk assessments of the substances used; allegedly there was no scheduled safety awareness training programme, which was one of Ms Nomxhanya’s key performance indicators (KPIs), until Finnie drew one up. These programmes are considered essential in raising employee awareness of risks and hazardous substances they may be exposed to. The employer maintains that such training might have avoided some of the LTIs experienced in 2018.

[13] In addition, despite an internal audit in 2016 in which certain health and safety risks were identified, items in that report were still outstanding and no action plan had been put in place to address them.

[14] Lastly, in relation to the lathe incident in which an apprentice suffered double fractures to his arm, the allegation was that Ms Nomxhanya’s investigation report of the incident was insufficient and failed to identify the root cause of the accident which was a fundamental breakdown in the management processes and systems. She had only identified lack of supervision as a root cause, but the consultant found further root causes and made additional remedial recommendations.

[15] Ms Nomxhanya defended her conduct, claiming that she had identified the risks in question and taken precautionary steps, even if they were insufficient. In the disciplinary inquiry she also maintained that she could not be expected to perform to the same standard as Mr W Finnie, an external consultant who conducted a review of all the safety measures at the plant. Ms Nomxhanya also complained that Finnie’s report was only made available to her when she was facing the disciplinary enquiry. As a result, she had not opportunity to dispute some of his findings, such as his conclusion there was no qualified safety auditor or that training had not been conducted with staff.

[16] The chairperson of the internal enquiry concluded that:

“8.5.1 The employee produced evidence to show that risk assessments had been conducted to cover routine and non-routine tasks. The allegation that the risk assessments had not been conducted, as envisaged in [charge] 1(a) is not true.

8.5.2 In respect of [charge] 1(b) the employer argued that the risk assessments were not placed at the individual machines and thus were not completed. I agree with the employer in this regard, especially because the risk assessments in fact had to be redone by Wilson, who also ensured that the risk assessments were placed at the machines, as they should have been.”

(emphasis added)

[17] The chairperson also found Ms Nomxhanya was not guilty of the charge of failing to review the NCR Corrective and Preventative Action Procedure because, even though the procedure should have been reviewed given the LTIs which had occurred, Ms Nomxhanya was not obliged to do that.

[18] However, when it came to the last charge of her overall management and falling short on her KPIs, the chairperson found Ms Nomxhanya was guilty. Some of the reasons for his finding were that: had the process of taking preventative measures once a risk was identified been complied with, some LTIs could have been avoided; the root cause of accidents were not identified by Ms Nomxhanya; the culture of workplace safety had deteriorated as evidenced by the LTIs; if she did not address a safety concern out of fear of victimisation, as she had claimed, she ought to have escalated the issue given the severity of safety risks involved. The chairperson also found Ms Nomxhanya was in gross dereliction of her duties in that she failed to identify the serious risk existing in the pump test area and manage it accordingly. Further, the static test area contained equipment, the safety of which could not be certified, requiring it to be shut down too. In addition, there was no scheduled safety awareness training and safety issues,

which had been identified in the 2016 internal safety audit, were still unresolved. He concluded that Sulzer could not employ someone

who was not able to make the crucial decisions expected of her as its custodian of health and safety. Her gradual approach to addressing problems was not sufficient given the risks identified. He found her conduct was aggravated by the rise in LTIs, which remained her area of responsibility.

The arbitration

[19] At the arbitration, Ms Nomxhanya’s defence was that:

19.1 The LTIs which had occurred in 2018 could not be attributed to her.

19.2 the chairperson of the inquiry was biased and considered issues outside the scope of the charges.

19.3 Despite that, he found her not guilty of the first two components of the charge.

19.4 She had in fact done risk assessments, except in respect of certain individual machines.

19.5 She claimed she did not have the authority to shut sections of the plant down. She argued that nobody else thought the measures adopted were insufficient until Finnie picked them up. At the inquiry, she maintained that risk assessments had been made by her, which the chairperson of the inquiry confirmed but noted that she had not done them in relation to the machines where she had drafted JSA's. She contended these JSAs were adequate and served the same purpose as risk assessments.

[20] It is noted that Ms Nomxhanya did not repeat her claim, which she made in the internal enquiry, that she had not done certain things because she feared victimisation.

Arbitrator’s reasoning

[21] The arbitrator concluded that the applicant had to establish that Ms Nomxhanya had consciously or intentionally neglected her duties to perform risk assessments and had not put preventative measures in place. To prove this, the employer had to establish what constituted risk assessments and preventative measures, when and how they were supposed to be done, and that Ms Nomxhanya had failed to do them. It also needed to prove that there was a causal link between her alleged negligence and the injuries sustained by various employees in the various LTIs.

[22] The arbitrator noted it was common cause, on the evidence of both parties, that the injuries suffered by the employees were not caused by Ms Nomxhanya’s conduct. Even so, he acknowledged that the concern raised by the company was that Ms Nomxhanya had not got to the root cause of the injuries so that adequate preventative measures could be taken.

[23] He found the company had not provided an example of what an acceptable risk assessment would look like to compare with the one produced by Ms Nomxhanya, nor did it produce evidence of a rule requiring such documents to be placed on machinery. He found Ms Nomxhanya’s testimony that she had been placing JSA reports on machines since 2015 was not disputed.

[24] After reading the risk assessments and the JSA produced by Ms Nomxhanya, the arbitrator found that the latter document was “user friendly and suitable for everyday use”, compared with the fuller risk assessments. It contained information such as the required protective gear to be used on the machines, the consequences of not doing so, the tasks performed on the machines and preventative measures. He found it was not sufficient to rely on the audit reports to establish that Ms Nomxhanya had not performed risk assessments, in the absence of further corroborating evidence. He concluded that Ms Nomxhanya had in fact conducted risk assessments, noting that the chairperson of the disciplinary inquiry had actually come to the same conclusion.

[25] The arbitrator decided that the company was simply seeking to blame someone for the injuries that occurred between 2018 and 2019 and Ms Nomxhanya was improperly identified as being responsible. Apart from the fact that she did not cause the injuries in question, it could not be said that she neglected her duties.

Review test

[26] The governing principles applicable to a review, in which the reasonableness of an arbitrator’s findings are at issue, may be stated briefly as follows:

26.1 The result will only be unreasonable if no reasonable arbitrator could have reached the conclusion they did on the material before them[4].

26.2 A mere failure by an arbitrator to apply their mind to issues material to the determination of a dispute will usually amount to an irregularity, but to set aside an award that failure must either result in an unreasonable outcome or a misconception of the true enquiry[5].

26.3 Erroneous factual findings or erroneous weighing of evidence by an arbitrator will not warrant setting aside an award unless the effect of those errors is to render the result unreasonable[6].

26.4 A failure to mention material facts or deal with a material issue or an error in the assessment of evidence is insufficient to set aside an award and a review must be evaluated in relation to the totality of the evidence, not on a piecemeal basis. To do otherwise would be tantamount to treating a review as an appeal and would undermine the requirement of s 138 of the LRA, which requires an arbitrator to deal with the substantial merits of the dispute with a minimum of legal formalities and to do so expeditiously and fairly[7].

26.5 If the arbitrator misconceives the nature of the enquiry, that is amounts to a gross irregularity as contemplated in terms of s 145(2)(a)(ii) of the Labour Relations Act, rendering the award reviewable[8].

26.6 An irregularity or error, which results in a misconception of the dispute by the arbitrator, must be one that is material to the determination of the dispute, such that it distorts the arbitrator’s conception of the enquiry, the delimitation of issues for determination and the final outcome. It must result in the arbitrator failing to address the question raised for determination, which means that there was no fair trial of the issues[9].

26.7 Notwithstanding the flawed reasoning of an arbitrator or any irregularity committed, the court itself must still consider if the result could reasonably be reached considering the issues and evidence before the arbitrator[10].

26.8 The review court must not be swayed by an argument that the result could have been different, which is something that can only be considered in appeal proceedings[11].

Grounds of review

Misdirection by the arbitrator

[27] Sulzer claims that the arbitrator misconstrued the nature of the enquiry he had to undertake, which led him to arrive at a conclusion no reasonable arbitrator could reach, in the following respects -

27.1 It alleges that the arbitrator improperly narrowed the enquiry to charges 1 and 2, despite the applicant’s representative emphasising that charge 3 was concerned Ms Nomxhanya’s overall management and control of her KPI’s as SHE manager, which was evident in her reporting and management of LTIs which occurred in 2018.

27.2 Further, the arbitrator failed to determine if Ms Nomxhanya had failed in performing her duties set out in her KPIs, because he adopted an over-simplified understanding of what her duties entailed. He ought to have considered detailed evidence regarding the difference between a risk assessment and a JSA.

27.3 Lastly, Sulzer claims the arbitrator failed to determine the question whether Ms Nomxhanya had been grossly derelict in her duties and whether the risk assessments had been done by her.

[28] Ms Nomxhanya retorts that Arnott confirmed that the second charge concerned her failing to put corrective and protective action procedures in place and this was at the heart of the reason for her dismissal. She submitted that because Arnott agreed that the LTIs were not directly caused by her conduct, no link was established between the first two sub-charges and the third one. As regards the claim that the arbitrator adopted a simplified approach in determining if she was guilty of charge three, she submits that Sulzer advanced no evidence to show what it was that the arbitrator allegedly failed to consider in relation to that charge. Moreover, contrary to Sulzer’s argument that the arbitrator failed to consider evidence relating to risk assessments and JSAs in detail, he went out of his way to have the two types of evaluation properly ventilated.

Unreasonable conclusion

[29] Sulzer contends also that the arbitrator did not appreciate the significance of evidence of certain issues, causing him to reach a conclusion no reasonable arbitrator could have reached. The evidence in question concerned:

29.1 The JSAs Ms Nomxhanya drew up, which were placed on the machines, were insufficient, which was something she had conceded during her disciplinary enquiry.

29.2 The difference between risk assessments and JSAs.

29.3 Ms Nomxhanya was a health and safety practitioner with ten years’ experience who ought to have known the difference between JSAs and risk assessments and how to conduct root cause analyses.

29.4 Root cause analyses of LTIs were not done.

29.5 The reason for calling in other consultants was because LTIs kept occurring.

29.6 Ms Nomxhanya’s failed to identify the static test area and pump test bed areas as high-risk areas.

29.7 The failure to do a proper risk assessment of the pump test facility, which operated under potentially lethal pressures.

29.8 The issue of the pressure test facility was specifically mentioned in the charge sheet and was raised repeatedly in the arbitration.

29.9 Ms Nomxhanya did not show any appreciation of her wrongdoing.

29.10 The nature of Ms Nomxhanya’s position and the implications of her not doing the job entailed the need for a high level of trust, which had caused an irretrievable breakdown.

29.11 Ms Nomxhanya was not the only employee dismissed or disciplined for safety related misconduct.

29.12 No LTIs had been experiences in the period of about 15 months after external consultants did the risk assessments and Ms Nomxhanya had ceased working.

[30] Ms Nomxhanya maintains that the arbitrator’s finding that she had done risk assessments was fundamentally sound and was justified by the evidence. Moreover, she argued that the arbitrator had considered all three charges and all the evidence relating thereto. Further, Finnie’s report relied on by Sulzer was full of inconsistencies and amounted to hearsay evidence which lacked credibility. There was also no evidence that Finnie was an expert and he was never called to corroborate his report. Contrary to Sulzer’s submission about the value to be attached to Finnie’s report, it would have been wrong of the arbitrator to have assumed it was produced by an expert and therefore it ought not to have been treated as more reliable than her own evidence as to whether she performed her duties.

Failure to assist applicant’s representative

[31] Given that Ms Nomxhanya was represented by a qualified attorney, the arbitrator should have advised the applicant’s representative that he was entitled to legal representation. Ms Nomxhanya’s representative, Mr M Nomxanya, argued that he was not a legal representative in terms of s 213 of the Labour Relations Act, 75 of 1996 (‘the LRA’) which defines a legal practitioner as “any person admitted to practice as an advocate or attorney in the Republic”.

[32] The arbitrator also failed to step in and assist the applicant’s representative when he should have. For example, the arbitrator should have warned Arnott of the consequences of not calling either of the authors of the external investigator reports to corroborate their findings, given that he later accepted Ms Nomxhanya’s evidence that she had done the risk assessments, because the reports of the investigators, which contradicted her evidence, could not be relied on because they were ‘unsupported’.

Evaluation

[33] The complaints relating to the alleged failure of the arbitrator to conduct the proceedings fairly by not assisting Arnott in the conduct of the arbitration, or dealing with Ms Nomxhanya’s status as a legal practitioner relate to whether or not the applicant was denied a fair hearing. If he committed reviewable irregularities in these respects, that is a separate matter from whether or not the arbitrator’s findings are ones that no reasonable arbitrator could have arrived at on the basis of the evidence that was placed before him. If no reasonable arbitrator could have arrived at the same outcome, even on the evidence that was presented, the award will still be reviewable, irrespective of whether the applicant ought to have had a fairer opportunity to conduct its case. The same applies if the outcome could not have been arrived if the arbitrator had not misdirected his enquiry. For convenience, the alleged misdirection by the arbitrator will be considered first.

Did the arbitrator misdirect his enquiry ?

[34] The first claim Sulzer makes is that the arbitrator effectively limited his enquiry to whether Ms Nomxhanya had conducted risk assessments and whether she had put an NCR Corrective and Preventative Action procedure in place and, by so doing, had ignored

the wider question whether she had been derelict in performing her KPI’s as an SHE manager in accordance with Sulzer standards.

From the transcript it is clear from the start of the proceedings, that when the arbitrator was trying to clarify the charges against Ms Nomxhanya, he was trying to collapse sub-charge 3 with the first two sub-charges, by the former as a ‘repetition’ of the first two charges. Later he described the first two sub-charge as the ‘two legs’ of the ‘umbrella’ charge of dereliction of duty, whereas the third component specifically addressed her alleged failure to manage her function overall, which was allegedly evidenced by the spate of six LTIs in 2018. In describing the issue before him, the arbitrator found that his task was to determine if Ms Nomxhanya had “intentionally or consciously neglected her duties, namely, to do risk assessments and put preventative measures in place.”

[35] To this, he added the requirement that the employer had to satisfy him that there was a causal link between Ms Nomxhanya failing to perform those two functions and the injuries suffered in the LTI’s which occurred. Because it was common cause that she did not directly cause any of those incidents in which persons were injured, he concluded that Sulzer had failed to establish the necessary causal connection between her alleged conduct and incidents. So, even though he felt the umbrella charge only had two legs, he nonetheless tried to address the issue of the incidence of LTI’s by reframing the third component of the charge as an allegation that her failure to perform her duties mentioned in the first two sub-charges had directly caused the LTI’s. Not only was this a distortion of the third charge, but it was also irreconcilable with his own acknowledgement that the firm’s real problem was that Ms Nomxhanya was not getting to the root cause of the injuries to prevent their recurrence, not that she had caused the incidents.

[36] What the arbitrator was required to determine was if Sulzer had established that Ms Nomxhanya had been grossly derelict in performing certain of her duties as a SHE manager, as described in the three sub-charges. He completely neglected to deal with the specific complaint relating to her risk assessment of the two testing areas, nor did he deal directly with the broad, and somewhat poorly formulated, third sub-charge, even though he grasped that its real import related to Ms Nomxhanya’s allegedly high level assessment of risks and her less than thorough analysis of the causes of LTI’s. The arbitrator’s mis-steps above, did result in him misdirecting his enquiry to a significant extent.

[37] Given these failures, the next question is whether, had he not made these errors, he would necessarily have found that she was guilty of either or both of those other components of the overall charge. If he would have, would he also have been compelled to conclude that Ms Nomxhanya’s dismissal was substantively fair, because no reasonable arbitrator would have found otherwise.

Alleged failure to identify and act on the safety risk in the two test areas

[38] Given the emphasis placed on the significance of a failure to implement suitable preventative measures in the testing areas, it is astonishing that the arbitrator completely failed to deal with this at all in his award. In the award, he merely noted that Arnott had testified to this in the course of his evidence. He did not even deal with Ms Nomxhanya’s response to this allegation. She put to Arnott that the Perspex structure and the new ballistic steel test chamber which replaced it were never tested, so it could not be said that the new structure was adequate either. Arnott’s response was that there was a vast difference between a Perspex protective screen and a test area completely enclosed in ammunition resistant material designed for the safe transport of artillery shells, which cannot be accessed when testing is being conducted.

[39] The arbitrator concluded that Ms Nomxhanya had performed the risk assessments, just as the chairperson of the enquiry had found. In view of the chairperson acquitting Ms Nomxhanya of that complaint, it was not really open for reconsideration in the arbitration. However, notwithstanding that this should no longer have been an issue at the arbitration, that did not conclude the enquiry about whether Ms Nomxhanya failed to identify and implement measures to address the risks in the two test areas. If the real extent of the risk was not appreciated or if the remedial steps were insufficient, it cannot be said that the risks had been properly identified and addressed. The adequacy of the assessment and remedial steps was in issue.

[40] It was not disputed that Ms Nomxhanya had assessed the risk in the pump test area and that, as a result, a protective cover of Perspex screens had been constructed as a protection against high pressure bursts. Arnott’s evidence that the Perspex would be wholly inadequate protection against shrapnel from a pressure burst was also not disputed. On the available evidence it is difficult to escape the conclusion that the risk assessment of these area was seriously deficient, which is tantamount to the risk not being properly identified. Ms Nomxhanya’s risk evaluation and the measures adopted in relation to the pump test area would still have exposed personnel in the vicinity of the area to a risk of serious injury in the event of a pressure burst. Ms Nomxhanya did not provide a reasonable justification for this serious shortcoming, though she pointed out that it was a team assessment for which she was not solely responsible.

[41] The risk assessment relied on by Ms Nomxhanya was titled “Sulzer Environmental Risk and Hazard Register” and dated August 2016. In the entry relating to the test bay area it does identify the risk of explosion and electrocution leading to injury and possible death, but no mention is made of any protective screening under the heading “Corrective Action or Control Mechanism in Place”. The type of items listed under corrective action are” “lockout and tap out procedure and PPE. Only trained staff working, exclusion of other staff, warnings and signage, cables are earthed… “ The associated JSA, which Ms Nomxhanya testified was a simplified form of the risk analysis, focused on identification of faults on the test equipment and the need to use various items of personal protection gear (PPE). The arbitrator accepted the JSA as a ‘user friendly’ form of risk assessment. At face value these documents did not do justice to the extent of the risk and the risk mitigation measures required. While the arbitrator seized on the existence of such documents as evidence that risk assessments were indeed carried out, he paid no regard as to whether they were adequate.

The alleged failure to fulfill KPIs as illustrated by the LTIs

[42] During Arnott’s cross-examination of Ms Nomxhanya, he dwelt on the inadequacy of the risk assessments done and how they did not go far enough to extract the root causes of accidents. She did not dispute that the number of LTIs had even come to the attention of the international head of Sulzer. Arnott debated the lathe incident with her. Her response indicated that the injured apprentice was a fault because he had not taken his glove off to work on the lathe with an emery cloth. Arnott pointed out that the more comprehensive analysis revealed that there was a breakdown in the management system which began with an incorrect component being ordered. He put it to her that, as a result of poor LTI investigations, disciplinary action had not been taken when it should have been. This was because, when the root causes were properly analysed, it revealed that incidents were the result of protocols and procedures not been followed, and that was part of her responsibility as SHE manager to ensure the analyses were thorough.

[43] Importantly, Ms Nomxhanya acknowledged this but argued that it was not all the time that root causes had not been identified.

Moreover, she pointed out that she was part of a whole team that did accident investigations, and was not solely responsible for the findings. Ms Nomxhanya did not accept that she alone should be singled out in that regard. She also complained that it was never brought to her attention that she was failing to fulfill her KPIs and she was never told why her risk assessments or accident analyses were inadequate. A performance management process had just begun in 2019, but management then abruptly abandoned that and instituted disciplinary action instead.

[44] In light of the above discussion, it is difficult to conclude that any reasonable arbitrator could have held that Ms Nomxhanya was not remiss in her management of the proper identification of risk and implementing adequate prevention measures in respect of the test areas. It is also an unavoidable conclusion to be drawn from the evidence that the investigation of the lathe incident did not go deep enough in identifying the causes of that LTI. No reasonable arbitrator could have held that the investigation which was done was adequate. In the circumstances, I am satisfied that if the arbitrator not neglected to deal fully with all the charges he had to decide, that he would have found Ms Nomxhanya guilty of failing to properly manage the risk assessment process in the test bays and failed to ensure that the investigation of the root causes of at least one of the serious LTIs which had occurred was as thorough as it should have been.

[45] In view of these findings on the arbitrator’s misdirections, it is not necessary to consider other grounds of review.

Substitution

Was dismissal an appropriate sanction?

[46] In view of the conclusion that the arbitrator’s findings on two components of the charges cannot stand and must be replaced with findings that Ms Nomxhanya was guilty of that misconduct, the next issue is whether dismissal would have been an appropriate sanction.

[47] Ms Nomxhanya’s failure to ensure an adequate safety regime in the test bed areas, based on a proper risk analysis was serious and, consequently, employees were exposed to serious risk. Her negligence in that regard was serious. The evaluation of the extent of the risk was seriously inadequate. Part of Ms Nomxhanya’s defence was that neither the Perspex enclosure nor the sealed ballistic chamber, which had replaced the former in the pump test area, were tested to see if they did afford adequate protection against flying steel fragments. Accordingly, she argued it could not be said that the replacement protective measure was any more safe than the Perspex screen. It was never suggested that it was a requirement of her position to have a knowledge of physics or fluid mechanics, but her own statement demonstrates she was not in a position to determine the adequacy of the Perspex screen, so she was not in a position to be confident of the assessment or preventative measures proposed. Despite that, she but did not see the need to request expert advice on the issue of what measures would provide a sufficient degree of safety. This reflected a significant deficiency in the risk assessment strategy she was responsible for managing.

[48] In relation to the LTIs is clear that the incidence of these events in 2018 was sufficiently unusual to attract attention at the highest level of the company. Ms Nomxhanya was the person with overall responsibility for health and safety and company’s concern about the level of in depth analysis was a genuine one. Ms Nomxhanya’s view, as expressed in the report on the lathe

incident, was that the analysis did not need to go further than identifying the immediate causes of the accident, and did not have to deal exhaustively with the entire chain of causation which led to the incident. This demonstrated that the analysis she was prepared to accept was insufficient.

[49] These deficiencies in Ms Nomxhanya’s performance of her duties are ones that Sulzer would have been negligent to ignore, given the safety and liability ramifications of inadequate risk assessments and accident investigations. Nonetheless, whether dismissal was an appropriate sanction for these shortcomings in her conduct in relation to her responsibilities must be evaluated in the light of other factors as well.

[50] Ms Nomxhanya did not dispute the extent of her responsibilities in her role as the person primarily responsible for managing and ensuring a comprehensive and compliant safety regime at Sulzer. However, she complained she was never called to account for any shortcomings. The only performance appraisal referred to in evidence was one completed in 2016 and was a positive one. Arnott points out that shortcomings in relation to safety assessments were already identified in the 2016 safety audit. However, Sulzer took no action against Ms Nomxhanya until the aftermath of the investigations in 2018. Although Arnott maintained that the performance management it implemented early in 2019 just concerned her day-to-day activities, it clearly did relate to the fulfillment of her KPIs, which was a foundational ground for her dismissed. No evidence was produced by Sulzer to show that there had been a single engagement with Ms Nomxhanya about the failings in her performance prior to 2019. The evidence pertaining to the test area safety evaluations pre-dated the LTIs. The inadequacy of those evaluations was portrayed as ‘glaring’ by Arnott, yet even though this had seemingly being evident for a couple of years, it was only when Finnie did his evaluation that the company saw the need to take action. When the risk evaluation for the pump test bay was concluded, the recommendations were implemented, and no query was raised at the time about the inadequacies of the assessment or recommended remedial measures.

[51] Even though Ms Nomxhanya had overall responsibility for safety as the manager in charge of the safety function, It is not clear why her shortcomings were not identified and addressed earlier, especially given the fundamental importance of her role as SHE manager. Her complaint that she was never told in what respects she was failing, was something Arnott could not gainsay. To the extent he had any answer to that, it was only to say that the 2016 Environment, Safety and Health report mentioned the inadequacy of risk assessments. It can be argued that Ms Nomxhanya should have taken her cue from that, but it was never put to her that either it was sufficient for her to have known that or that the company was not obliged to take any preliminary disciplinary measures before resorting to dismissal because of that report. There was no evidence that the shortcomings for which she was dismissed were ever the subject matter of a single discussion between her and management before the disciplinary proceedings were instituted in February 2019. At the very least there should have been some engagement between her and management about why the firm believed she was failing to fulfill vital obligations and to put her on clear terms how she could rectify matters. In the circumstances, dismissing Ms Nomxhanya without having taken any prior corrective or disciplinary action was substantively unfair.

[52] Considering these factors, I am not persuaded that Ms Nomxhanya’s dismissal was substantively fair. It follows that, unless one of the exceptions in s 193(2) of the LRA applies, Ms Nomxhanya should be reinstated. The section states:

“(2) The Labour Court or the arbitrator must require the employer to re-instate or re-employ the employee unless—

(a) the employee does not wish to be re-instated or re-employed;

(b) the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable;

(c) it is not reasonably practicable for the employer to re-instate or re-employ the employee; or

(d) the dismissal is unfair only because the employer did not follow a fair procedure.”

[53] In Standard Bank of South Africa Limited v Leslie and Others [12], the Labour Appeal Court held:

“[16] This Court in Glencore Holdings (Pty) Ltd and another v Sibeko and others found that an employee’s behaviour, whether before or after dismissal, can be taken into account in determining whether, in terms of s 193(2)(b), the circumstances surrounding the dismissal are such that a continued employment relationship would be intolerable. In Afgen (Pty) Ltd v Ziqubu it was made clear that there must be an extraordinary reason to deviate from reinstatement as the primary remedy. In Maepe v CCMA and another [8] this Court refused reinstatement on the basis that it was impracticable given that the employee was employed as a commissioner of the CCMA but had given false evidence under oath.”

[54] Is there any reason to suppose that one of the exceptions should apply? Only two need to be considered, namely whether the circumstances are such that a continued employment relationship would be intolerable or that it would not be reasonably practicable to reinstate Ms Nomxhanya. In deciding whether Ms Nomxhanya”s dismissal was substantively fair, the fact that six LTI’s had occurred in eight months under her watch was a significant shortcoming which highlighted deficiencies in her overall management.

However, apart from the lathe incident which was canvassed in detail in the evidence, it cannot be said with any confidence that the remaining five accidents were also practically avoidable. As such, at the time of her dismissal, it could not be said that the six LTIs were a sure indication of a consistently poor pattern of safety management. Thus, it could not have been sufficiently confidently known whether five of the LTIs were simply an unfortunate series of unforeseeable accidents occurring over eight months, and did not warrant a final conclusion that Ms Nomxhanya’s overall ability to manage safety could not be trusted.

[55] However, by the time the arbitration hearing took place there had been no LTIs for a period of about thirteen months since her dismissal. This illustrates that a very dramatic improvement in workplace safety had taken place in that time. With knowledge of that additional information, which was not available when she was dismissed and could not have relied on to justify her dismissal, the probability that the previous spate of LTIs in 2018, was simply an unfortunate run of unavoidable incidents, becomes an untenable

inference to sustain. It makes it much more probable that those incidents were in fact indicative of a poor workplace safety regime.

[56] Given that, the question that must be answered is whether the restoration of Ms Nomxhanya’s employment relationship as SHE manager would not be intolerable. The risk that her reinstatement might reverse the gains made in workplace safety is not merely idle speculation, but a real possibility. In the circumstances it would be intolerable to expect Sulzer to restore the employment relationship with Ms Nomxhanya, given the extent of the responsibilities entrusted to her, when such a step would entail taking a palpable risk in managing the overall safety regime at the company.

[57] Accordingly, in my view an award of compensation must suffice as a remedy. In determining a suitable amount of compensation. I have considered how long Ms Nomxhanya was employed, the fact that her shortcomings were not properly managed, and the fact that she was not blameless and would have still received some sanction short of dismissal had she been reinstated.

Order

1. The arbitration award of the Second Respondent (‘the arbitrator’) issued on 23 January 2020 under case number MEGA 54213 (‘the award’) is reviewed and set aside.

2. The findings of the arbitrator that the First Respondent was not guilty of any misconduct are reviewed and set aside and substituted with the following:

“The Applicant was guilty of neglecting her duty as the SHE manager, which could have had seriously adverse safety consequences in the Respondent’s workplace in that: a) she failed to properly manage the identification of the risk and remedial action necessary in the static test bay and pump testing facilities, which posed a serious risk to the overall safety of those employees working on, and in, the vicinity of those areas, and b) and failed to ensure a thorough accident investigation in relation to all the causes of a lathe incident and the recommend of appropriate preventative measures.”

3. The finding of the arbitrator that the First Respondent’s dismissal by the Applicant was substantively unfair is confirmed.

4. The relief awarded by arbitrator in paragraphs 24 to 26 of the award is substituted with the following:

“The respondent must pay compensation to the Applicant equivalent to 8 months’ remuneration amounting to R292,989.60 based on the monthly remuneration of R36,623.70 per month, which she was receiving at the time of her dismissal.

5. The Applicant must pay the compensation awarded in terms of paragraph 4 above within 15 days of the date of this judgment.

6. No order is made as to costs.

R Lagrange

Judge of the Labour Court of South Africa.

Representatives - For the Applicant: S Saunders instructed by Cliffe Decker Hofmeyr inc. For the First Respondent: M Nomxanya from NUPSAW

[1] Referred to elsewhere in this judgement as ‘sub-charge 1’.

[2] Referred to elsewhere in this judgement as ‘sub-charge 2’.

[3] Referred to elsewhere in this judgement as ‘sub-charge 3’.

[4] Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2008 (2) SA 24 (CC); (2007) 28 ILJ 2405 (CC) at paragraphs 110 and 119.

[5] Head of Department of Education v Mofokeng & Others (2015) 36 ILJ 2802 (LAC) at paragraph 30.

[6] Herholdt v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae) (2013) 34 ILJ 2795 (SCA) at paragraph 25.

[7] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at paragraphs 19 and 20.

[8] Herholdt paragraph 25.

[9] Mofokeng at paragraphs 32 and 33, reaffirmed and emphasised in Makuleni v Standard Bank of SA (Pty) Ltd & others (2023) 44 ILJ 1005 (LAC) at paragraph 3.

[10] Mofokeng at paragraph 31.

[11] Makuleni at paragraph 4.

[12] (JA31/2019) [2020] ZALAC 69; (2021) 42 ILJ 1080 (LAC)