The violence at the mine

This matter finds its genesis in the increasing tensions and violent confrontations between members of the National Union of Mineworkers (NUM), and the Association of Mineworkers and Construction Union (AMCU) back in 2015. Members of NUM engaged in an unprotected strike, following which AMCU members who had also engaged in an unprotected strike as were instructed to vacate a hostel occupied by members of both unions. It was no longer safe for them. Tragic events unfolded with a NUM official being shot and killed 100 metres away from where AMCU was holding a meeting, an AMCU member fatally stabbed, and a car belonging to one of AMCU’s officials torched.

Suspension of operations and dismissals

The ongoing violence led to the mine suspending operations, and the Minister of Mineral Resources intervening. A security plan was compiled with the input of the SA Police Service. All workers were then required to resume work. AMCU was not appeased - it objected and demanded closure of the hostel. The demand was rejected by management, which also cautioned that employees who did not report for duty would be disciplined for desertion.

Between 15 and 24 June 2016, members of AMCU were summoned to a venue without prior or proper notice that a disciplinary hearing had been set up. A total of 292 AMCU members were dismissed in their absence, effective from 5 July 2016. AMCU tendered the service of its members “subject to the employer guaranteeing their safety at the workplace”. Thereafter, referred a dismissal dispute to the CCMA for conciliation. Following an investigation conducted by the mine, 12 NUM members were issued with final written warnings for their participation in an illegal protest. Those involved in and convicted of criminal activity were dismissed.

Before the Labour Court

Before the Labour Court, AMCU contended that the dismissal of its members amounted to unlawful terminations of their employment contracts. In the alternative, argued that they were automatically or substantively and procedurally unfair. Consequently, sought their reinstatement.

AMCU argued that its members were dismissed for exercising their rights under section 23 of the Mine Health and Safety Act (MHSA) which empowers them to leave a workplace which, with reasonable justification, appears to them to pose a danger to their health or safety. The court dismissed the argument that the termination of the employment contracts in this instance was a breach of section 82 of the MHSA.

Although AMCU’s claims were dismissed, the court found found that the dismissals were substantively unfair on the basis that dismissal was not an appropriate sanction and inconsistent application of discipline. Consequently, awarded the members 12 months’ compensation.

The appeal

AMCU appealed against the findings, whilst the mine cross-appealed against the quantum of compensation awarded.

In relation to the MHSA, the court held that an obligation is imposed “as far as it is reasonably practicable”. This is linked to the availability of means to mitigate the hazard. The court also acknowledged employees’ recourse to leave a workplace where the conduct of their colleagues poses a danger to their safety. In this instance, however, an employee may only exercise the right if there is reasonable justification to do so. In this instance, the Labor Court had noted AMCU had not raised its members’ rights under section 23 as the reason for their absence, albeit accepting that they were entitled to exercise their rights in response to threats of violence. Whilst where concerns over safety were justified, the mine had taken reasonably practicable steps to mitigate the danger when it instructed all employees to resume duties. A comprehansive security plan had been put into place where police were patrolling the premises. There were no incidents after 6 June 2016. Accordingly, no imminent or serious danger. Their fears were subjective and not objectively sustainable.

In fact, some of AMCU’s members had resumed work without incidents. The protection of the MHSA was thus not available to those who continued being absent as they had failed to bring themselves under the scope of section 23(1).

The court also considered and dismissed AMCU’s argument of discrimination against its members on the basis of their union membership. It held that the union had failed to demonstrate that this was the dominant cause of their dismissal. Those members who had abided the instruction to resume work had not been dismissed.

Turning to the relief, the court concluded that reinstatement was not reasonably practicable. AMCU had imposed a condition that the mine guarantee’s the safety of its members prior to them returning to work. the court held that this condition was incompetent as the mine was not obliged to take any more steps than it had already done. The LAC went on to recapitulate that whether reinstatement was reasonably practicable entailed a factual finding and the exercise of a discretion, which will not be lightly interfered with on appeal unless the factual finding was wrong. The court was correct in concluding that AMCU could not impose a condition on the mine which was impossible to implement. It did not err in declining reinstatement.

Finally, the LAC turned to consider the mine’s cross-appeal on the quantum of compensation awarded. It held that compensation is not monetary relief for the loss of a job but for the humiliation the employee suffered at the hands of the employer. In determining the quantum, a range of factors must be considered, including the seriousness of the injuria, the circumstances in which it took place and the extent of the employee’s humiliation. The compensation award was upheld.

Conclusion

A safe and healthy working environment is not limited to activities at the employer’s premises only. Under the MHSA, employees may withhold their labour and even leave the workplace where the conduct of their colleagues poses a danger to their safety. Although an employer cannot be expected to guarantee safety, where it has taken reasonable steps to mitigate the danger, the employees’ continued absence would be unjustified. The LAC also highlighted the importance of being compassionate and understanding during union rivalry violence and unprotected strikes.