Member Article

The South African Labour Court was recently called on to answer the question whether a trade union, acting on behalf of its members who are employees of the employer, may compel the employer to take disciplinary steps against certain of its employees in order to ensure the safety of the rest of its employees in the workplace. 

An employer has the duty to provide employees with safe working conditions, as far as is reasonably practicable. This includes providing a reasonably safe workplace.
 
In the case of National Union of Mineworkers v Impala Platinum Ltd and Another, the National Union of Mineworkers (“NUM”) sought an order compelling Impala Platinum Ltd (“Impala”) to institute disciplinary proceedings, on charges of intimidation, against certain employees, who were coincidentally members of the Association of Mineworkers and Construction Union (“AMCU”). 

The case has its origins in the violence in the platinum mining sector that commenced in 2012, and its aftermath. The seemingly never-ending battle between the then-established NUM and the so-called “new kids on the block” AMCU dominated local and international headlines. During these turbulent times, a strike that was marked by acts of violence took place at Impala’s Rustenburg Operations. As a result of the violence, the NUM shaft stewards ceased to report for duty as it became unsafe to do so. Instead, they reported at NUM’s offices in Rustenburg. The strike resulted in a mass dismissal and a subsequent reinstatement of dismissed employees over a period of time.

In the first half of 2013, Impala conducted a membership verification process that resulted in its recognition agreement with NUM being terminated. In July 2013, Impala entered into a recognition agreement with AMCU. After September 2013, the former NUM shaft stewards were repeatedly called to report for duty at Impala’s Rustenburg Operations but refused to do so on the basis that it was not safe. Between September 2013 and December 2015, there were a number of meetings involving NUM, AMCU and the Department of Mineral Resources in an attempt to address the situation at Impala and secure the terms on which a return to work would be possible for the former NUM shaft stewards. In December 2015, Impala and NUM entered into a Memorandum of Understanding (“MOU”) under the auspices of the Commission for Conciliation, Mediation and Arbitration, in which the return to work of former NUM shaft stewards was addressed. In terms of the MOU, former NUM shaft stewards would return to work on 21 December 2015, followed by an integration process. Some of the former NUM shaft stewards returned to work. In the proceedings before the Labour Court, NUM contended that the reasons for some of the former NUM shaft stewards not returning to work was that Impala had failed to investigate incidents of violence and intimidation and discipline the perpetrators. 

The court accepted that an employer is obliged to take reasonable care of the health and safety of employees by providing them with a reasonably safe system of work. The employer’s duty is measured against the standard of reasonableness, not excellence. Put differently, the employer is not bound to make the workplace “fool proof”. Accordingly, when an employment contract is concluded, the employer does not guarantee an employee absolute safety under all circumstances. 

Before court, NUM relied on nine incidents over a four-year period in support of its application. Four took place in 2012, one in 2013, three in 2014 and one in February 2016. Impala provided a number of reasons why disciplinary measures had not been taken in respect of these incidents. These included that it had investigated certain incidents but found no evidence to pursue disciplinary action; that it had instituted disciplinary proceedings in some instances but found the AMCU members not guilty; that some incidents were not reported to Impala; and that other incidents took place during the turbulent 2012/2013 period and no disciplinary action was taken given the circumstances that prevailed at the time. The position in relation to the last set of incidents had been communicated to NUM on a number of occasions. 

The court dismissed NUM’s application. It noted that it was not a term of the MOU that instituting disciplinary action was a condition for the return to work nor was there any plausible evidence to suggest that after the signature of the MOU, matters deteriorated to the extent that the safety of the former shaft stewards was in peril. The court found that Impala had taken reasonable steps to ensure the safety of individuals in the workplace. The court went on to conclude that the facts before it did not disclose that Impala had acted unlawfully by failing to take disciplinary action against the identified employees, or that its actions constituted a breach of the employment contracts of the individual applicants. 

Due to the finding that Impala had taken reasonable steps to ensure the safety of employees in the workplace, the court did not have to decide whether an employer could be compelled, as a matter of law, to institute disciplinary action against identified employees. The door thus appears to have been left open for other demands such as these to be made. From a purely contractual perspective, when a party to a contract is in breach of its obligations, the party against whom the breach was committed has available the remedy of specific performance. In the instance of the facts stated above, this remedy could force an employer to provide a reasonably safe workplace. It seems arguable that providing a reasonably safe workplace may well include an employer taking disciplinary action against employees who have committed serious acts of misconduct and/or are the catalyst for the workplace not being reasonably safe. Naturally, the specific set of circumstances would need to be scrutinised carefully. The employee must however be able to objectively demonstrate that the employer has breached its duty to provide a reasonably safe workplace. 

Pareen Rogers

employment director [email protected] cell: +27 82 788 0307 Victor Mndebele

employment senior associate [email protected] cell: +27 82 310 5201