ZACC 16
Judgement Date: 22 June 2021
Post Judgment Media Summary
The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.
On Tuesday, 22 June 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against a judgment and order of the Labour Appeal Court. The applicant, the National Union of Mineworkers, acts on behalf of five of its members, namely, Ms Violet Masha, Mr Vincent Pholwane, Mr Nkipilili Siqalane, Mr Father Mhlongo, and Mr Moses Khoza (the employees). These members were employed by SAMANCOR Limited (Eastern Chromes Mines), the first respondent. The second respondent is Mr Nicholus Sono, the commissioner in the proceedings at the Commission for Conciliation, Mediation and Arbitration (CCMA). The third respondent is the CCMA. The second and the third respondents did not participate in these proceedings.
On 19 October 2015, Mr Madikwane, the mine overseer visited the North 8 North Tip section of the first respondent’s mine. Upon arrival, he discovered that the employees were performing their duties in unsafe conditions. They had failed to install a temporary support and safety net before commencing drilling in the area. One of the team members, Ms Maseko, was not present. The mine overseer instructed the employees to stop, install the safety measures and then resume work. On his return, he discovered that his instructions had not been carried out. He proceeded to reissue the instruction in writing. A few days later, he returned to the site and found that the employees had continued to work despite his instruction. The employees were charged for insubordination. After a disciplinary inquiry, they were found guilty of misconduct and dismissed.
Aggrieved with the outcome, the employees lodged a dispute with the CCMA. They alleged that the employer had been inconsistent in disciplining them, in that Ms Maseko had not been charged along with them until the applicant complained. Furthermore, once charged, Ms Maseko and another employee had not been dismissed. The arbitrator, having considered the evidence, held that there was an unjustifiable differentiation in the treatment of the employees which amounted to inconsistency in the application of disciplinary measures. He, therefore, held that the dismissal was unfair and issued an award of reinstatement.
Dissatisfied with this outcome, the first respondent instituted review proceedings before the Labour Court. The Labour Court held that, on the evidence, the mine overseer only returned days after his written instruction to the employees and found the site as it was before. Further, there was insufficient evidence to conclude that the written instruction had been defied. This could have been remedied had the mine overseer concluded a report immediately. However, this being the case, the evidence pointed to him not having gone back to inspect the site as he had alleged. Therefore, on a balance of probabilities, it had not been proven that the employees had defied the mine overseer’s written instruction. Consequently, the review application was dismissed with no order as to costs.
On appeal, the Labour Appeal Court held that the Labour Court failed to consider the actual issue, which was the question whether there had been inconsistency of discipline. After considering the evidence, the Labour Appeal Court held that Ms. Maseko’s acquittal was appropriate as she had not been present when the instructions to cease work at the site were issued. Thus, the employees’ allegation of inconsistency of disciplinary measures was founded on an incorrect premise. Lastly, it held that no reasonable decision maker could find that the employees did not disregard the mine overseer’s instructions. As the employees were aware of the rules, dismissal was an appropriate sanction given the seriousness of the misconduct. The Labour Court order was set aside. The Labour Appeal Court held that the dismissal was procedurally and substantively fair and ordered the applicant to pay costs incurred in the Labour Court and Labour Appeal Court.
Before the Constitutional Court, the applicant sought leave to appeal against the judgment and order of the Labour Appeal Court. The Chief Justice issued directions calling on the parties to file written submissions on the issue of costs, with regard to this Court’s decision in Zungu. Upon receipt of the written submissions, the matter was determined without oral argument. The applicant submitted that the Labour Appeal Court was wrong on the law and on the facts. It submitted that the main issue was the question of inconsistency of discipline since the employer had been inconsistent in disciplining its employees. As a result, the employees were entitled to the award of reinstatement. Regarding the sanction, the applicant submitted that dismissal was inappropriate as the alleged seriousness of the risk was over stated and the personal circumstances of the employees were not considered. Lastly, the employer dismissed employees who were merely standing around, which constituted derivative misconduct and is at odds with this Court’s decision in Dunlop.
The first respondent submitted that the applicant seeks to raise an argument (the derivative misconduct argument) not raised in the Labour Appeal Court. In any event, the argument lacks substance and there is no suggestion that had the argument been considered it would have been material to the outcome. The employees were dismissed for working under unsafe conditions despite an instruction to the contrary. Further, Dunlop is distinguishable from this case. It argued further that the applicant failed to demonstrate that the Labour Appeal Court erred in its iteration and application of the principles relating to inconsistency of discipline.
In a unanimous judgment penned by Mhlantla J (Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Pillay AJ, Theron J, Tlaletsi AJ, and Tshiqi J concurring), the Constitutional Court granted condonation for the late filing of the application. The Court further held that the matter engaged its jurisdiction as it implicated the employees’ rights to fair labour practices, a fair hearing and access to justice.
On the merits, this Court held that it had to be borne in mind that Ms Maseko had not participated in the drilling exercise and was not present when the mine overseer arrived at the site. Another employee, Mr Motlhabing, had installed the safety mechanisms but had failed to do so adequately. Therefore, their cases were distinguishable from that of the dismissed employees. Thus, the Labour Appeal Court’s finding that there was no inconsistency of discipline was unassailable. On the question whether the sanction imposed was disproportionate, the Court held that given the nature of the mining industry, and its often unsafe conditions, the disregard of the mine overseer’s instructions was serious. This misconduct endangered the employees’ lives and that of the other workers. Accordingly, dismissal was an appropriate sanction. Therefore, the Court held that the application for leave to appeal against the dismissal lacked prospects of success and fell to be dismissed.
In relation to costs, the applicant submitted that the costs order was unjustified as the Labour Appeal Court had failed to apply the principle set out by its earlier decision in Dorkin and later by this Court in Zungu. Therefore, it did not exercise its discretion judicially. The first respondent argued that the principles on the awarding of costs are trite and do not constitute a point on which this Court should expand as it is neither an arguable point of law nor a constitutional issue.
This Court held that the Labour Appeal Court erred in awarding costs against the applicant as this was at odds with its decision in Zungu. In Zungu, this Court held that the rule of practice that costs follow the result does not apply in labour matters. It further cited Dorkin, for the underlying rationale in relation to the principle, wherein it was stated that it is important not to discourage employees, unions, and employers’ organisations from approaching the labour courts for fear of an adverse costs order. In any event, where such an order is made, reasons must be provided. The applicant has a duty to defend its members’ rights, and that alone cannot justify a costs order in the absence of untoward conduct on their part. In this case, the Labour Appeal Court failed to provide reasons. This was compounded by the fact that the Labour Appeal Court substituted the order of the Labour Court on costs and issued a costs order against the applicants where the Labour Court had not done so. This Court held that the Labour Appeal Court did not exercise its discretion judicially and it was thus entitled to interfere with the costs orders. Leave to appeal on costs was granted. In the result, this Court issued an order where it dismissed the application for leave to appeal on the merits, granted leave to appeal on costs, upheld the appeal and set aside the costs orders issued by the Labour Appeal Court.
The Full judgment here