Association of Mineworkers and Construction Union and Others v Northam Platinum Mine Limited (JA8/19; JA9/19) [2021] ZALAC 32 (14 September 2021)
- There is no justification to restrict an employer's duty under the Mine Health and Safety Act to mitigate hazards and risks to narrow occupational safety in the work process. The intention of the Act is to allow employees to absent themselves from the broader working environment when a hazard or risk of harm to their personal safety arises.
- It is not reasonably practicable for an employer to reinstate employees who place unreasonable pre-conditions on their return to work. The Labour Court has no power to set a condition to reinstatement that a peace pact must first be reached with non-parties to the litigation.
In the context of extremely violent contestation between NUM and AMCU, certain employees refused to return to work despite extensive intervention by the police, the employer and the Minister of Mineral Resources. The employees were dismissed (following a disciplinary inquiry which they failed to attend) for unauthorised and/or un-communicated absence from 17 June 2016 to 24 June 2016. AMCU challenged the dismissals on the grounds that they constituted invalid terminations of the employees' contracts of employment, alternatively were automatically or substantively and procedurally unfair, and sought retrospective reinstatement of the dismissed employees.
The Labour Court dismissed all of AMCU's claims, save for the claim that the dismissal was substantively unfair on the grounds that dismissal was not the appropriate sanction. The court refused to reinstate in terms of Section 193(2) of the LRA and instead awarded the employees each 12 months' remuneration as compensation. The reason for the court's refusal was that the employees sought reinstatement conditional upon the conclusion of a multilateral collective agreement that was not within the capacity of the employer. The Labour Court has no power to set a condition to reinstatement that a peace pact must first be reached with non-parties to the litigation before the employees can be expected to return to work.
On appeal to the Labour Appeal Court, AMCU sought to overturn the Labour Court's rejection of its claims that the dismissals were invalid, automatically unfair dismissals and procedurally unfair. It also wanted the reinstatement of the employees instead of compensation. The employer, Northam Platinum Mine Ltd, opposed the appeal for reinstatement and cross-appealed against the quantum of compensation. Northam did not cross-appeal against the Labour Court's finding that the dismissals were substantively unfair.
Interpreting the provisions of Section 23 of the Mine Health and Safety Act (MHSA) and Guidelines of the Chief Inspector of Mines, the LAC noted that 'Reasonable justification' for refusing to work means that the employee has some objective information that makes him or her believe that there are unsafe conditions at the working place, or the work to be done is unsafe to the extent that there is an imminent and serious danger to the health or safety of person at that working place. The LAC held that there is no justification to restrict the duty of the employer in terms of the MHSA to mitigate hazards and risks to narrow occupational safety in the work process. The intention of the Act is to allow employees to absent themselves from the broader working environment when a hazard or risk of harm to their personal safety arises. However the court found that the mine was safe during the period when the employees refused to return to work.
As regards the Labour Court's refusal to reinstate the employees, the LAC confirmed that where employees make an unconditional and unreasonable demand before they return to work, it is "not reasonably practicable" to reinstate in terms of s 193(2)(c).
The effect of the LAC's judgment was that both the appeal and the cross-appeal were dismissed.
We think the judgment realistically sees an employee's living spaces as potential sites of hazard and danger which may legitimately justify a refusal to work. This is not just a court's perspective - both the MSHA and the Guidelines of the Chief Inspector of Mines anticipate that safety extends beyond the workplace. But this is not a 'free pass' for employees in every situation. In this case the circumstances were tragic and very violent.
Extract from the judgment:
Murphy AJA:
[47] The appellants contend that the individual appellants were entitled to absent themselves and refuse to work after 15 June 2016 on account of Northam breaching its statutory and contractual duty to provide and maintain a safe working environment.
[48] Section 1 of the MHSA includes among its objects the protection of the health and safety of persons at mines; the control and minimising of risks relating to health and safety at mines; and the promotion of a culture of health and safety in the mining industry. The obligation of employers to provide a healthy and safe working environment is set out in section 5(1) of the MHSA which requires every employer, as far as reasonably practicable, to provide and maintain a working environment that is safe and without risk to the health of employees.
[49] Section 102 of the MHSA defines "reasonably practicable" to mean "practicable" having regard to: (a) the severity and scope of the hazard or risk concerned; (b) the state of knowledge reasonably available concerning that hazard or risk and any means of removing or mitigating that hazard or risk; (c) the availability and suitability of means to remove or mitigate that hazard or risk; and (d) the costs and benefits of removing or mitigating that hazard or risk.
[50] Section 23(1) of the MHSA deals with an employee's right to leave a dangerous working place. It provides in relevant part that an employee has the right to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee.
[51] Section 102 defines "safety" to mean "safety at mines". A "mine" is defined to include a "place where a mineral deposit is being exploited, including the mining area and all buildings, structures, machinery, mine dumps, access roads or objects situated on or in that area that are used or intended to be used in connection with searching, winning, exploiting or processing of a mineral, or for health and safety purposes". A "working place" is defined to mean "any place at a mine where employees travel or work."
[52] Section 83 of the MHSA provides inter alia that no person may discriminate against any employee for exercising a right in terms of the MHSA, for doing anything that the employee is entitled to do in terms of the MHSA, or refusing to do anything that the employee is entitled to refuse to do in terms of the MHSA. For the purpose of section 83 of the MHSA "discriminate" is defined to mean "to dismiss an employee or to engage in any other conduct which has the effect of prejudicing or disadvantaging the employee, or which prejudices or disadvantages the employee relative to other employees".
[53] Section 23(1) of the MHSA thus gives an employee a right to leave any working place whenever circumstances arise at that working place which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee.
[54] In 2016, the Chief Inspector of Mines published the "Guideline for the compilation of a mandatory code of practice on the right to refuse dangerous work and leave a dangerous working place" ("the Guideline"), in terms of section 49(6) of the MHSA. The Guideline deals among other things with the right to leave any dangerous working place ("the RLDWP") and the right of refusal to do dangerous work ("the RRDW"). Sections 1.2 to 1.4 of the Guideline read:
'1.2. Under common law employers are required to provide and maintain a work environment that is safe and without risk to the health or safety of employees. This is reflected in section 2 of the MHSA which requires the employer to ensure, as far as reasonably practicable, that the mine is commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering the health and safety of themselves or of any other person.[55] Section 4 of the Guideline offers an interpretation of the concept of "reasonable justification" as required in section 23(1) of the MHSA. It provides:
1.3. Arising from this entitlement to a safe working environment, employees have the RRDW... This right entails not only that the employee is entitled to leave a working place where he/she has reason to believe that the working place is unsafe (the RLDWP), but also that an employee is entitled to refuse to do work in a working place that is safe, but in which there is any equipment, machine, device or thing the employee is required to use or operate which is likely to endanger himself/herself or any other employee (the RRDW). Put differently, the RRDW can be exercised either by refusing to do the required work but remaining in the working place, or by refusing to do the required work and leaving the working place.
1.4. Section 23(1)(a) of the MHSA partly reflects the common law mentioned above. It gives employees the RLDWP if circumstances arise which, with reasonable justification, appear to that employee to pose a serious danger to the health or safety of that employee or if the health and safety representative responsible for that working place directs that employee to leave that working place. The fact that section 23 does not mention the RRDW does not mean that employees do not have that right...'
'Reasonable justification means that the employee has some objective information that makes him or her believe that there are unsafe conditions at the working place or the work to be done is unsafe to the extent that there is an imminent and serious danger to the health or safety of person at that working place. The employee does not have to be correct in his or her knowledge or belief, but such belief should be reasonable given the information of the employee. These principles apply to both RRDW and RLDWP.'[56] Annexure 2 to the Guideline contains a table of examples of major health and safety hazards, which may give rise to the right to leave any dangerous working place which includes "unacceptable and dangerous behaviour of colleagues" and "aggressive or violent behaviour" as instances of such.
[57] Northam submits that section 23(1)(a) of the MHSA does not apply as matter of law to threats to safety arising from criminal conduct perpetrated in the course of inter-union rivalry. The preamble to and the objects of the MHSA, it argues, reflect that the MHSA regulates occupational/operational health and safety at the employees' working place. Section 2(1)(a) and (b) provide that the employer must provide conditions for the safe operation of the mine, and ensure (insofar as reasonably practicable) that the mine is "commissioned, operated, maintained and decommissioned in such a way that employees can perform their work without endangering safety of themselves or any other person". Safety, Northam maintains, thus relates fundamentally to the operation of the mine and the requirement in section 5 of the MHSA to provide and maintain "a working environment that is safe" does not extend beyond the direct working environment on the mine.
[58] We do not accept that the MHSA is limited to occupational health and safety hazards arising in the work process at the coalface. Section 102 defines "hazard" widely as "a source of or exposure to danger", and "risk" as "the likelihood that occupational injury or harm to persons will occur". There is no justification to restrict the duty of the employer to mitigate hazards and risks to narrow occupational safety in the work process. A "working place" which an employee may leave in the face of danger is defined as "any place at a mine where employees travel or work". And a "mine" is defined to include the access roads to the mine. The intention is to allow employees to absent themselves from the broader working environment when a hazard or risk of harm to their personal safety arises.
[59] The reference in the table annexed to the Guideline to "unacceptable and dangerous behaviour of colleagues" and "aggressive or violent behaviour" is a contemporaneous exposition and interpretive aid of what risks and hazards were in the contemplation of the legislature. Violence arising from factionalism of one kind or another is a regrettable feature of life on the mines in our country. Parliament has prudently ordained through the mechanisms of the MHSA that employers should have policies and procedures in place to deploy suitable means to mitigate the risk of factionalism in as far as that is reasonably practicable.
[60] Section 23(1) of MHSA thus bestows a right upon employees to leave their workplace where dangerous, aggressive or violent behaviour by colleagues reasonably appears to pose a serious danger to their safety. However, an employee may only exercise the right if there is reasonable justification to do so. In terms of section 4 of the Guideline there must be an objective basis or reasonable grounds to believe that there are conditions posing "an imminent and serious danger" to safety.
[61] In relation to this issue, the Labour Court noted that the individual appellants did not raise the exercise of their rights in terms of section 23 of the MHSA as the reason for their absence. However, it appeared to accept that employees were entitled to exercise that right in response to a threat of factional violence. It held:
'A party relying on the section 23 has to prove that the section applies to that party's circumstances. Section 23 may not be used as an afterthought by employees who have absented themselves from work for reasons which fall outside its realm. The applicants testified that they did not return to work because NUM refused to give them the undertaking that they would not attack them again. They also sought the respondent to guarantee their safety at the mine. Their refusal to return to work leading to their dismissal therefore went beyond the aggressive and violent behaviour referred to in the guideline. They wanted NUM and the respondent to meet their demands. They led no evidence to the effect that they refused to return to work after 15 June 2016 only because they were in danger. For these reasons, the provisions of section 23 of the MHSA do not apply.'[62] The appellants challenge the findings of the Labour Court. Firstly, they deny that the refusal to return to work was their holding out for the meeting of their demands. All of AMCU's witnesses testified that the employees feared for their lives. The appellants contend that circumstances had arisen on 6 June 2016 which gave rise to reasonable grounds to believe that there was a serious danger to their safety. This situation persisted regardless of whether or not demands were made and the employees thus retained the right to exercise their right to leave the working place in terms of section 23(1) of the MHSA. The Labour Court recognised that the fears of the individual appellants were reasonable. In addition, the failure to specify the specific legislation in terms of which a right is being exercised, it was submitted, can never deprive the employee of such right, or preclude reliance thereon. However, it did not accept that there was reasonable justification for the individual appellants to entirely withdraw their labour for a sustained period.
[63] Northam correctly contends that during the period 6-14 June 2016, there was no question of the individual appellants having exercised their rights in terms of section 23(1)(a) of the MHSA, because operations were suspended for that time. The issue is whether there was reasonable justification to refuse to return to work in response to the call to return to work on 15 June 2016 and thereafter. The evidence suggests that the mine was safe (as far as reasonably practicable) at that time. Additional security measures were implemented, and, as Mr. Mathunjwa admitted, there were no incidents or violence after 6 June 2016. A significant number of AMCU members returned to work without incident.
[64] The witnesses who testified on behalf of the appellants were not able to point convincingly to any objective information leading them to reasonably believe that things were so unsafe at the mine after 15 June 2016 that there was an imminent and serious danger to their safety if they returned to the mine, such as to justify a complete withdrawal of their labour. Rather the evidence strongly supports the conclusion that the individual appellants placed their fate in the hands of AMCU after attending the mass meeting on 14 June 2016 and simply waited on AMCU to tell them if, and when, they should go back to work. They had little knowledge of the conditions at the mine after 15 June 2016 and some returned to their homes outside of Northam. From their experience on the mine, the individual appellants ought reasonably to have known that there had been no violence on the mine for a year-and-a-half before the events of 6 June 2016 and that there were security measures (including surveillance cameras) in place to protect employees at the mine. They also took no steps to communicate with Northam about the prevailing conditions before opting to refuse to work.
[65] Although AMCU may not have properly communicated the 16-point plan to its members, the enhanced security measures were in fact implemented and it was incumbent on AMCU and the individual appellants to assess the true situation before absenting themselves on the grounds of safety concerns. There is no evidence that they did so. Without apprising themselves of the nature and extent of the newly implemented security measures, the individual appellants could not claim reasonable justification for their absence. Their subjective fears were not objectively sustainable. There was in fact no imminent and serious danger.
[66] The attempt by AMCU to construct reasonable justification on the basis of its demands and the failure to accede to them, must fail. Not only because there was in fact no demand for a peace pact at the time of the dismissals but also because the other demands, such as the closure of the hostel, were unreasonable. Insofar as the individual appellants contend that they were holding out for a peace pact, AMCU's demands of 15 June 2016 did not contain a demand for a peace pact but instead sought unilateral guarantees from NUM.
[67] Hence, the individual appellants have failed to bring themselves within the scope of the section 23(1) of the MHSA. The defence conferred by the section was not available in the circumstances of this matter. Accordingly, there is no merit that the dismissal was in conflict with section 82 of the MHSA and invalid for that reason and requiring reinstatement on that basis. In the result, the first ground of appeal must be dismissed.
[68] The Labour Court rejected the appellants' contractual claim as follows:
'The respondent's evidence of absence of mine violence from 15 June 2016 which was conceded by Mathunjwa supports the respondent's version that form the date the applicants refused to return to work, (15 June 2016), to the date of their dismissal (5 July 2016), the workplace was safe. The respondent did not owe the applicants guaranteed safety. There is nothing it could do about the guarantee the applicants sought from NUM which NUM had no legal objection to give (sic). The applicants' testimony is inconsistent with the argument forwarded on their behalf in that the standard of safety which the applicants demanded exceeds the legal one by far. Neither their contracts of employment nor common law requires the respondent to guarantee their safety at the workplace. In argument the applicants conceded that the respondent owed them no safety guarantee. The applicants' claim that their dismissal was unlawful because their absence from work was justified by the respondent's breach of its common law and contractual duty to provide a safe workplace cannot succeed.'[69] At common law, if the employer fails to provide a reasonably safe working environment, employees have the right to refuse to work. Section 23(1)(a) of the MHSA gives effect to this principle. At common law, if the workplace is objectively safe, then employees are obliged to work. It follows from our finding that the mine was reasonably safe after 15 June 2016 (in view of the enhanced security measures, no evidence of violence or intimidation and the safe return of some AMCU members to work) that Northam did not breach its duty to provide the individual appellants with a reasonably safe workplace. The Labour Court accordingly did not err in rejecting the appellants' common-law claim.
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[74] Having come to the conclusion that the dismissal was substantively unfair, the Labour Court turned to the question of remedy. Section 193(2) of the LRA obliges the Labour Court on finding unfairness to order an 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.
[75] The Labour Court declined to order re-instatement for the following reasons:
'The respondent denied that reinstatement is either due to the applicants or is the appropriate relief. It submitted that the demands made by AMCU...which should precede their return to work had not been met. They are unreasonable and without legal basis ... An overwhelming majority of the applicants' witnesses expressed their unwillingness to work should an unconditional reinstatement order be issued. The conditions most witnesses sought were undertakings from NUM that its members would not attack them and a guarantee from the respondent that they would be safe at the workplace....[76] Hence, the Labour Court concluded that reinstatement was not reasonably practicable because the appellants were insisting on the fulfilment of unreasonable conditions before they would return to work.
Although it was argued on behalf of the applicants that they sought to be reinstated, the argument is not consistent with the evidence. Section 193(2)(c) provides that reinstatement must be ordered unless it is not reasonably practicable for the employer to reinstate an employee. Although reinstatement is the primary relief for a substantively unfair dismissal, if circumstances of a case fall within the exceptions provided in section 193(2), it may not be granted. The applicants sought to be reinstated on condition that the respondent and NUM guarantee their safety at the workplace. The condition is incompetent, as neither the respondent nor NUM has a legal obligation to provide the guarantee. Reinstatement can in the circumstances not be granted.'
[77] The appellants contend that the Labour Court erred in refusing reinstatement, and that it ought to have reinstated the individual appellants with back-pay. The individual appellants, they argued, need not do more than tender their services. Given that the duty to maintain and provide a safe workplace rests on the employer, reinstated employees (as with existing employees) would be within their rights to tender on condition that the workplace is safe. The appellants in any event denied that the evidence revealed that they sought reinstatement conditional on NUM and Northam guaranteeing their safety. But even if it did reveal as much, this would not render reinstatement impracticable.
[78] Northam maintains that the evidence reveals that AMCU and its members did indeed pose conditions to reinstatement.
[79] While section 193(2) makes it clear that reinstatement or re-employment is the primary statutory remedy in unfair dismissal disputes, the Labour Court must decide whether it is reasonably practicable to reinstate in the circumstances of the case. That determination involves the exercise of a discretion which is in part a value judgment, and in part a factual finding. The Labour Court must make a factual finding about whether there are reasons, as envisaged in s 193(2) of the LRA, which would render an order for reinstatement inappropriate. It is trite that an appeal court may not lightly interfere with a trial court's discretion on a factual finding unless the appeal court is satisfied that such finding is based on misdirection or is clearly wrong.
[80] AMCU's witnesses generally vacillated in cross-examination when questioned about whether the demands set for their return to work had been abandoned as at the time of them giving evidence. The witnesses who testified on behalf of the appellants although at times equivocating left little doubt that the employees would not tender their services unconditionally. They were only willing to accept reinstatement subject to a peace pact being agreed to by Northam, NUM and AMCU. One may legitimately infer that in addition to their concerns about safety, the appellants were in part motivated to strengthen AMCU's bargaining position at the mine. This, Northam intimated, made reinstatement impracticable in the face of unpredictable outcomes in the envisaged bargaining process.
[81] All the AMCU witnesses when addressing the issue of the demands gave some indication that they would abandon the demands but only if there was an ongoing negotiation involving AMCU, NUM, SAPS and Northam, which yielded an outcome to the satisfaction of AMCU, prior to the individual appellants returning to work.
[82] Mr Mathunjwa during his testimony equivocated on the issue. He opined firstly that reinstatement "is a process on its own"; but he quite evidently envisaged that if reinstatement was ordered, there would need to be a bargaining process to secure a peace pact prior to the individual appellants returning to work. When asked about the proposed engagement, he replied: "I said the company, NUM, AMCU and SAPS should meet and discuss the issue and restore peace, then it will be possible for us to go back to work".
[83] This strategic positioning, premised on the questionable assumption that the workplace remained unsafe, was reiterated by the individual appellants who testified, indicating that the position was probably shared by the AMCU members aimed at gaining some tactical advantage. Thus Ms. Nombale expressed ambivalence about going back to work because it was unsafe, but agreed on balance that she would probably go back "because I believe that there will be negotiations and engagement regarding our safety". When asked what would happen if NUM did not agree to a collective agreement or peace pact, she replied: "then I do not know what must happen". Likewise, Mr. Fana stated: "Even if the court gives an order that I must go to work now, I will not go M'Lady, until I have seen safety." In response to a question whether he meant he would not go back until there was an agreement between Northam, NUM and AMCU, he said that was correct. When asked what he would do if no agreement was possible, he answered that he would wait to hear from AMCU about what he should do. All the other witnesses gave similar testimony, some stating unequivocally that they would not return to work pursuant to an order of reinstatement until a peace pact was concluded with NUM and Northam.
[84] The evidence hence shows that the appellants were holding out for guarantees beyond the employer's duty to provide a reasonably safe workplace. They sought reinstatement conditional upon the conclusion of a multilateral collective agreement that was not within the gift of the employer; or the Labour Court for that matter. The Labour Court has no power to set a condition to reinstatement that a peace pact must first be reached with non-parties to the litigation before the employees can be expected to return to work. In such circumstances, the Labour Court did not misdirect itself by finding that it was not reasonably practicable for the employer to reinstate the individual appellants who were obstinately holding out for a peace pact, which, in all probability, could not be achieved. It was not feasible to order reinstatement, because it was not reasonably possible, in the sense that it was potentially futile. Reinstatement would not have guaranteed that the individual appellants would perform their duties effectively, and hence such an order would have constituted an excessive operational burden for Northam.
[85] In the premises, the Labour Court did not err in refusing to order reinstatement.