National Union of Mineworkers v Impala Platinum Ltd and another (J1022/16) [2017] 6 BLLR 628 (LC)

Principle:

An employer is obliged to take action to combat labour unrest and any inter-union hostility that discloses a potential for violence and injury ,but absolute safety under all circumstances is not guaranteed to the employee by the contract of employment. The employer is not an insurer.

Facts:

After intense union rivalry that resulted in NUM being displaced by AMCU, the employer terminated its recognition agreement with NUM and concluded another with AMCU. In spite of agreements reached to guarantee their reintegration into the workforce, NUM's former shop stewards declined to resume work; claiming that it was unsafe for them to do so. When the employer informed NUM that no further external interventions would take place, NUM launched an urgent application for an order compelling the employer to institute disciplinary action against AMCU members allegedly guilty of intimidating NUM shop stewards.

Having accepted with reluctance that the matter was urgent, the Court noted that employers are obliged to ensure that working conditions are reasonably safe. This includes taking action to combat labour unrest and inter-union hostility which threaten to become violent. However, employers are not required to ensure absolute safety.

Of the incidents on which NUM relied, the employer had failed to institute disciplinary proceedings because of lack of evidence, or the accused employees had been found not guilty, or the incidents had not been reported. The latest acts of misconduct occurred during a highly volatile period, and no disciplinary action had been instituted because to do would create further instability.

The onus rested on NUM to establish that the employer had breached the shop stewards' contracts by not instituting disciplinary action. For about four years, the employer had gone to great lengths to ensure a return to normality in the workforce, which had culminated in a memorandum of understanding being drawn up. No violent incident had occurred after the memorandum was signed, and a number of NUM shop stewards had resumed work without incident. The employer had, accordingly, taken reasonable steps to ensure a safe working environment, and had not acted unlawfully by failing to take disciplinary action against AMCU members.

The application was dismissed.

Extract from the judgment:

Van Niekerk J:

[10]   The relevant legal provisions are well established. An employer is obliged at common law to take reasonable care of the health and safety of employees by providing them with areas on a safe system of work (see Freed land The Personal Employment Contract Clarendon Press 2003 at page 141). Consistent with this view of the nature and extent of the obligation, Brassey states that an employer is obliged to take action to combat labour unrest and any inter -union hostility that discloses a potential for violence and injury(see Employment and Labour Law Vol1 at E4:33). He goes on to say the following:

"But, it must be stressed, the standard is that of reasonableness, not excellence, still less perfection, and employers are not bound to make the workplace fool proof. The law seeks to do no more than strike an appropriate balance between the employer's interests in production and the employees in his self-preservation.

Absolute safety under all circumstances is not guaranteed to the labourer by the contract of employment. The employer is not an in surer. He is not bound to furnish the safest machinery, nor to provide the best methods for its operation, in order to relieve himself from responsibility."

[11]   With that background, and turning first to the timing of the incidents that form the subject to the present application, NUM relies on nine specific incidents over a period of some four years in support of the application. Four of these occurred in 2012(the first on1February2012);one occurred in 2013;three occurred in2014 and one occurred in February 2016.In its answering affidavit, Implats has usefully identified six categories in to which the nine incidents can be placed. The first category is one in which Implats investigated the incident and decided not to institute disciplinary proceedings due to lack of evidence. In the second, Implats instituted disciplinary proceedings but found the AMCU members concerned not guilty. In the third, the alleged victim was a member of AMCU and not NUM at the time, did not lodge a complaint and has subsequently been dismissed. In the fourth category, Implats has no record of the AMCU members who are alleged to have participated in the incidents; and in the fifth, the incident was never reported to Implats. In the sixth, I understand Implats to concede that acts of misconduct occurred during 2012/2013, a highly volatile period in the platinum mining sector but for the reasons can vassed below, no disciplinary action was taken against the perpetrators.

[12]   In regard to the first to the fifth categories above, Implats' defenceis apparent from the nature of the categorisation, and no more need be said of it. In regard to the sixth category it is not disputed on the papers of their [sic] Implats advised NUM as early as 2012 and consistently thereafter hat it would not take disciplinary action given the circumstances that prevailed at the time. Implats advised NUM that it had waived its right to take disciplinary action in relation to these incidents, and that it would be unfair of it not to do so. This position was stated during a number of meetings held between 6 October 2014 and 16 February 2015. The minutes of the last meeting perhaps best reflect Implats' position. The meeting concerned, amongst other things, a submission tabled by the NUM to the effect that Impala management had failed to take action against employees who assaulted NUM members during 2012. Although in the replying affidavit, some "reservations" are expressed about the minutes, their content is not disputed. The minute reads as follows:

"Several months after the assaults there were sporadic incidents of illegal strikes and the situation remained highly volatile as there was no recognised union to hold accountable.

In July 2013, AMCU was recognised and management has been in talks with the about the return of former NUM shop stewards to the operations to which they indicated that they had no problems that refuse to have formal meetings with the NUM to discuss the safe return of former NUM shop stewards to the operations.

It is further more too late to commence with disciplinary action against these employees as the doctrine of waiver applies. As discuss during the previous meeting we waived our right to take action during 2012 due to the highly volatile situation prevailing back then.

Furthermore it would be impossible for the employer to argue that the working relationship has broken down irrevocably and dismissal will not be fair under the circumstances, should the relevant section bead is missal.

It would be destabilising to the operations to institute the disciplinary actions at this latest age and it would also complicate the reintegration of former NUM shop stewards to the operations."

[13]   It is apparent from the minutes that NUM has been aware since at least February 2015 of Implats' position in regard to the reasons for not taking disciplinary action against members of AMCU for alleged acts of misconduct committed some three years prior to that date. But the present application does not concern the prudence or otherwise of Implats' decision.NUM contends that the failure to take disciplinary action and to provide a safe working environment constitutes a breach of the employment contracts of the affected shaft stewards, and to this extent, it is incumbent on NUM to establish that Implats has indeed committed a breach of contract by failing to meet the required standard of reasonableness.

[14]   I am not persuaded that NUM has succeeded in discharging this onus. First, the facts disclose various interventions and the efforts to mediate between the parties conducted over a period of some four years prior to the filing of the present application. All of those initiatives were directed at securing peaceful working conditions and culminated in the MOU signed in December 2015.That agreement, which constitutes a collective agreement between NUM and Implats, sets out the final terms on which are turn to work by the shaft stewards would be effected. As I have mentioned, it was not after that agreement that instituting disciplinary action was a condition of are turn to work, no risk there any plausible evidence to suggest that after signature of the MOU, matters deteriorated to the extent that the safety of the shaft stewards was placed in peril. On the contrary, of some relevance to is the fact that no incidents of violence against former NUM shaft stewards occurred after the conclusion of the MOU. Three incidents of threatening behaviour and intimidation are recorded in the founding affidavit, all of which fall in to one the categories one to five identified above. It is also not disputed that on 21December 2015, a number of NUM shaft stewards returned to work in accordance with the MOU. In short, the applicant cannot credibly rely on Implats 'failure to take disciplinary action against AMCU members arising out of incidents that occurred in 2012 as a basis for are fusal to return working 2016.This is particularly so where in addition to the reasons recorded above (i.e. the fact that NUM was advised as early as 2012 of the reasons why disciplinary action had not been instituted and the terms of the MOU), some 33 out of 45 NUM shaft stewards either never left work or have longs once returned to work, where only one of the individual applicants was allegedly a victim of the incidents complained of, where of all the alleged victims of the incidents complained of, only one remains in Implats' employ.

[15]   For the above reasons, in my view, Implats took reasonable steps to ensure the safety of the individual applicants. The facts do not disclose that Implats acted unlawfully by failing to take disciplinary action against the 21 members of AMCU listed in Annexure"B", or that it sanctions constituted a breach of the contracts of employment of the individual applicants.

[16]   Finally, in relation to costs, the Court is traditionally reluctant to make orders for costs where parties are engaged in a collective bargaining relationship and where an order for costs may have the potential to prejudice that relationship. This case does not fall neatly into that category, but in my view, the same principle ought to apply.

I make the following order:

  1. The application is dismissed.