Article written by Phuzile Rabula, Candidate Attorney, checked by Courtney Almuner, Associate at Schindlers Attorneys
01 September 2021
In casu, the employees were part of a group working in an area of a mine that was affected by a vertical fault. The vertical fault rendered the area unsafe and dangerous to work in. The mine shift boss visited the area and instructed the employees not to drill or blast in the area until temporary support and a safety net had been installed. This was mandated under the mine’s fundamental security and safety regulations. Shortly thereafter, the mine supervisor visited the area and found the employees drilling without any temporary support and a safety net having been installed. The mine supervisor issued a verbal instruction to the employees to cease drilling and to install the temporary support and a safety net before they could proceed to drill.
When the mine supervisor later returned to the area, he found that the employees had ignored his instruction and continued working without taking the requisite safety measures. The employees were subsequently issued with a written instruction to comply with the safety measures, which instruction was not followed. Same led to disciplinary proceedings against the employees, and ultimately to their dismissals. The employees referred said dispute to the Commission for Conciliation, Mediation and Arbitration. The Commissioner who heard the dispute (“the Second Respondent”) found that the employees had been guilty of working without installing the necessary safety measures. However, it was found that one employee, allegedly the girlfriend of the mine supervisor, who had been part of the crew working in the area, had not been dismissed. Accordingly, the Second Respondent found that the dismissal of the employees was substantively unfair and ordered that the employees be reinstated.
Samancor Limited (Eastern Chrome Mines) (“the Appellant”), dissatisfied with the outcome, took the award on review. The Labour Court of South Africa, Johannesburg (“the Court a quo”), dismissed the application, finding that the evidence did not show that the employees had continued to work in defiance of the instructions issued by the mine supervisor and that the Appellant had failed to “prove on a balance of probabilities that the employees had defied the written instruction issued to them.”
Issue in Dispute
The dispute which the Labour Appeal Court of South Africa, Johannesburg (“the Court”) needed to determine was whether the employees were guilty of failing to carry out the lawful written instruction issued by the mine supervisor.
The Court held that there was no rational basis provided by the Second Respondent to disregard the evidence that the employees acted in violation of the safety instruction which has been issued to them. The Court further held that where the conduct of employees carries a high risk of potential danger to the safety of others (which was the case in this matter) and there is obvious disregard for safety regulations, dismissal is clearly justified.
The Court also addressed the issue of inconsistency in disciplinary proceedings, whereby it held that there was no inconsistency as the employee who had not been dismissed had not been present when the initial instructions were given to the employees, since she had been instructed to fetch explosives. Notwithstanding the same, the Court found that the finding of inconsistency of discipline by the Second Respondent could not come to the aid of the other employees.
The Court referred to the case of SACCAWU and others v Irvin and Johnson Limited1 where the Court had previously found that: “if a chairperson conscientiously and honestly, but incorrectly, exercise his or her discretion in a particular case in a particular way, it would mean that there was unfairness towards the other employees. It would mean no more than that his or her assessment of the gravity of the disciplinary offence was wrong. It cannot be fair that other employees profit from that kind of wrong decision. In a case of plurality dismissal, a wrong decision can only be unfair if it is capricious, or induced by improper motives or, worse, by a discriminating management policy.”
The Court held that once a finding had been made that, on the available evidence, that the employees disregarded both verbal and written instruction to ensure that adequate safety measures were to be installed, the sanction of dismissal was justified.
The Court upheld the appeal and the award by the Second Respondent was set aside. Furthermore, the Court held that the dismissal of the five employees was both procedurally and substantively fair.
This case clarifies the legal position in respect of inconsistency in sanction during disciplinary proceedings.
  ZACC 10; 2000 (3) SA