REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR 2055/11

In the matter between:

SAMANCOR CHROME LIMITED

EASTERN CHROME MINES Applicant

and

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION First Respondent

PHUTI GODFREY THABA N.O. Second Respondent

THE NATIONAL UNION OF

MINEWORKERS Third Respondent

JOSIAH MBEMBE Fourth Respondent

Heard : 18 July 2013

Delivered: 07 August 2013

Summary: Review application – Commissioner’s award not rationally

connected to the evidence – Award found to be unrea sonable

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JUDGMENT

MATYOLO, AJ

Introduction

[1] This is an application to review and set aside the arbitration award

issued by the Second Respondent (“the Commissioner”) on 24 July

2011. In terms of the arbitration award, the Commissioner found that

the employment relationship had not broken down irretrievably and

ordered retrospective reinstatement.

Background Facts

[2] The Fourth Respondent was employed by the Applicant in the

position of a miner and had been trained and found competent in the

Applicant’s standard operating procedures.

[3] The Fourth Respondent had been in control of the operational area

when a machine operator (“Zakade”) working under his supervision

and control got injured when a rock was dislodged, cut through his

gumboot and resulted in a laceration.

[4] The Fourth Respondent was charged with misconduct for:

‘Breach of company safety rules, instructions, procedures, standards

and relevant legislation on the 1 February 2011 in that on the 1

February 2011 you allowed an employee to work in a place that was

not properly made safe, resulting in the fall of ground which caused

an injury to the employee, Mr Zakade.’

[5] A disciplinary enquiry convened to deal with the charges against the

Fourth Respondent found him guilty and he was dismissed on 7

March 2011. The Fourth Respondent appealed both the finding of

guilty and the sanction of dismissal. The Appeal Committee upheld

the finding and the sanction of dismissal.

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[6] The Fourth Respondent referred a dismissal dispute to the

Commission for Conciliation Mediation and Arbitration (“the CCMA”)

to adjudicate the matter and the CCMA issued the arbitration award

which is the subject of this review application.

[7] It is common cause that the Fourth Respondent was responsible for

the crew that worked at 1 North, the area in which Zakade got injured.

[8] The main import of the Applicant’s evidence by the witnesses who

testified is, inter alia, that the Fourth Respondent had been instructed

to bar the area and to stay with his crew and to drill one hole at a time

but the Fourth Respondent failed to provide continuous supervision

despite being instructed to do so.

[9] The Fourth Respondent on the other hand testified, inter alia, that he

did not instruct the crew members to start working in that area. He

had instructed them to prepare their equipment and he would come

back after which they would commence with their operations and that

when he came back he found them already working, meaning they

were instructed by Majoro, the Shift Supervisor to start working and

therefore he, Majoro must shoulder the blame for working in an

unsafe area.

The Commissioner’s award

[10] The commissioner found, inter alia, as follows:

10.1 The Fourth Respondent signed a declaration for examination

and making safe of underground working areas. There is no

signature by Majoro, the Shift Supervisor, on the declaration

form and therefore the Fourth Respondent carried the

responsibility for his crew. The Fourth Respondent failed to

follow safety Procedures.

10.2 The safety rule and procedure is more important because the

lives of the crew members depend on it.

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10.3 Though Mr Majoro stated during cross-examination that the

risk assessment was conducted and Makitla testified that it

could be done verbally, he was mindful that risk assessment

should be in writing.

10.4 The Applicant seemed to give more regard to safety

procedures to ensure the safety of its employees, however, the

Applicant should take some of the blame for not conducting

risk assessment before re-opening of the area, 1 North.

10.5 The Commissioner then found that the dismissal was

substantively unfair and awarded reinstatement of the Fourth

Respondent with back pay.

The grounds of review

[11] The Applicant’s grounds of review are, inter alia, as follows:

11.1 The Commissioner found that the Fourth Respondent

contravened safety rules, operating procedures and

instructions and yet without any justification found the

dismissal substantively unfair.

11.2 The Commissioner failed to take into account the full

conspectus of the evidence of the Applicant’s witnesses in

particular the fact that the Fourth Respondent failed to comply

with safety rules and procedures and the consequences

thereof.

11.3 The Commissioner failed to take into account the Fourth

Respondent’s failure as aforesaid was the direct cause of the

accident which caused injury to Mr Zakade.

11.4 The Commissioner also failed to take into account and ignored

the evidence that a risk assessment had indeed been

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performed and that the additional support that needed to

installed was as a result thereof.

11.5 The Commissioner misconstrued the question he had to

consider namely whether having found that the Applicant is

guilty of the charge, was the sanction of dismissal fair.

Evaluation of the Commissioner’s Award

[12] In evaluating awards the courts are guided by the constitutional

imperative contained in section 33 that everyone has a right to

administrative action that is lawful, reasonable and procedurally fair.

The standard of reasonableness and the test for meeting that

threshold was set out in Sidumo and Another v Rustenburg Platinum

Mines Ltd and Others1 where the Court held inter alia that the test is

whether the decision reached by a Commissioner is one that a

reasonable decision-maker could not reach.

[13] In CUSA v Tao Ying Metal Industries and Others,2 the Constitutional

Court held that:

‘It is clear…. that a commissioner is obliged to apply his or her mind

to the issues in a case. Commissioners who do not do so are not

acting lawfully or reasonably and their decisions will constitute a

breach of the right to fair administrative justice.’

[14] In Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others,3 the

Court held that:

‘Section 145 of the Act clearly invites a scrutiny of the process by

which the result of an arbitration proceeding was achieved, and a

right to intervene if the Commissioner’s process related reasoning is

found wanting.’

1 [2007] 28 ILJ 2405 (CC) at para 110. 2 (2008) 29 ILJ 2461 (CC) at para 134. 3 [2009] 11 BLLR 1128 (LC) at para 14.

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[15] The Court found that an award would be reviewable if it suffers either

from dialectical unreasonableness or is substantively unreasonable in

its outcome.

[16] The Commissioner found the Fourth Respondent to have been

responsible for the safety of the crew including Zakade, the injured

crew-member. He also found that the safety procedure is more

important because lives depend on it. The Commissioner further

found that The Fourth Respondent failed to follow safety procedures.

[17] Without making any credibility findings, the Commissioner simply

ignores the evidence that a risk assessment had been done and

without stating the basis for such a finding he states that risk

assessment should be made in writing.

[18] The commissioner further makes a finding that the relationship is not

irretrievably broken down despite having found that the Applicant

gives more regard to safety procedures to ensure the safety of its

employees.

Conclusion

[19] I find that the Commissioner’s award is at odds with his own findings.

He finds the Fourth Respondent responsible for the safety of others;

he finds him guilty of failure to comply with safety procedures; and

inexplicably finds dismissal substantively unfair without explaining

how he gets to that decision.

[20] There is no rational connection between the evidence led before the

Commissioner, his findings and the decision he arrived and for this

reason, I find the Commissioner’s award reviewable.

[21] It remains for me to determine whether the matter should be referred

back to the CCMA for rehearing before another Commissioner. I am

not satisfied that the Commissioner herein properly dealt with the

issues that this matter raises, in particular as previously mentioned, I

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do not understand how he made his decision on the assessment with

making any credibility findings.

[22] Having found the Fourth Respondent guilty of failure to comply the

with the safety procedures, he fails determine what the appropriate

sanction is for that offence and simply finds dismissal to be

inappropriate on the basis of a finding that a risk assessment was not

done without stating the basis for the rejection of the applicant’s

evidence on this point or any justification for such a finding.

[23] The Commissioner fails to indicate which material facts or evidence

did he have regards to in finding that the employment relationship is

not broken down irretrievably.

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

1. The arbitration award made by the Second Respondent, the

Commissioner under case number LP2161-11 is reviewed and

set aside.

2. The dispute is referred back to the First Respondent, the

CCMA, for arbitration de novo by a Commissioner other than

the Second Respondent.

3. No order as to costs

________________

Matyolo, AJ

Acting Judge of the Labour Court of South Africa

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Appearances:

For the Applicant Mr Johan Olivier of Webber Wentzel Attorneys

For the Respondent: Advocate Makgate

Instructed by: Moseamo Papola Inc.