MALABA DCJ: This is an appeal against the decision of
the Labour Court reversing the dismissal of the respondent from employment for
gross negligence.
The
facts of the case are as follows. The
respondent was employed by the appellant as its Overseer Miner. In this position the respondent bore the
overall responsibility of ensuring, amongst other things, the safety of the
place where his shift was working.
On
26 April 2006 the respondent was the Overseer Miner on the shift in Mining
North 2 Section of the Mining North Department.
This section consists of three mining areas. The relevant one being Section 58 NGBVHW.
The
area had earlier on been blasted at about 1800 hours that day. It was due for watering down and barring down
to make it safe before any lashing took place.
The respondent was obliged to carry out early examination of the site,
assess its safety and if necessary instruct a responsible person to make safe
all the blasted ends. In this regard he
carried out the first examination and instructed one S. Sithole a support team
leader to make the area safe.
Sithole
watered down the area and discovered an overhanging rock which he could not bar
down. He brought this fact to the
attention of the respondent. Sithole
left the area as the respondent also went to attend the breakdown of a rig and
conveyor belt. This was at about 2130
hours. At about 2330 hours, Mr Shato
came on duty. The respondent who knew
about the dangerous rock at the site instructed Mr Shato to go and lash there. He did not tell Mr Shato about the
overhanging rock. When Shato arrived at
58 Vent Holing West he did not see the rock.
Later
Mr Maphosa came on duty and started lashing at the site. As he was about to remove the third bucket of
ore a 63kg rock fell and hit his left hand fracturing his finger which was
subsequently removed.
This
led to the respondent being charged with gross negligence or wrongful act or
omission that causes accident, injury or death at work. The correct citation of the section allegedly
contravened should be section 4 of S.I. 165 of 1992.
Following
an internal disciplinary hearing he was found guilty and dismissed from
employment. His appeal to the Operation
Director was unsuccessful. He
successfully appealed the decision to the Labour Court. In arriving at its decision the Labour Court
said:
"Respondent's
Mining Standard made appellant (as overseer) responsible for the early
examination of the site. Well, he did
examine the site. Then he delegated the
duty to make site safe to Sithole.
Sithole did not make the site safe.
That is common cause and in fact admitted by Sithole whose statement
reads:
Q.
16. What do you think caused the
accident?
A.
16. I think the end was not adequately
watered down and examining was also not done thoroughly.
It is
difficult on these facts to say what more the appellant could have done. He inspected the site. He instructed a subordinate, who occupied a
responsible position to make the site safe whilst he attended to other
duties. The subordinate did not take
adequate steps to make the area safe. Regrettably an accident occurred leading
to the serious injury to a miner. It
appears to me that the appellant did what the standards required of him. He made the "early examination" of the
site. He delegated to his subordinate
the duty to make the area safe. The
relevant standard, indeed, authorised such delegation. In the circumstances I have difficulty in
discerning misconduct as justified the appellant's dismissal."
A
point in limine was taken by Mr Mpofu as to whether the ground of appeal
raised a point of law. The court is satisfied
that the point in limine is
unsustainable. The ground of appeal
clearly relates to the question whether the court a quo correctly interpreted what constitutes negligence and applied
it to the facts of the case.
The
unanimous view of the Court is that the court a quo misdirected itself in the following respects.
The
court a quo failed to take into
account the provision of s 31 of S.I. 109 of 1990 as amended by s 3 of S.I. 81
of 1995 which places the responsibility of ensuring that a site is safe for
working after a primary blasting on the miner in charge. The respondent bore the statutory
responsibility in his capacity as Overseer Miner to ensure safety of the
site before any work resumed. It was his
duty after Sithole had advised him of the dangerous rock to ensure that no work
resumed until that area had been made safe.
He failed to do that.
The
court a quo misdirected itself in
interpreting the scope of the content of the respondent's statutory duty as
being limited to early examination and delegation to a responsible person
only. The scope of the content of the
duty imposed by statute on the respondent extended beyond mere examination and
delegation to include over inspection and assessment of the safety of the area
after the discharge of the functions to render the site safe. Even on the basis of the mining standards,
the respondent failed to discharge his duties properly.
The
court a quo further misdirected
itself in failing to appreciate the fact that the primary obligation on the
respondent was to ensure the safety of the area being worked on and not to assume
duties not directly related to his role as the Overseer Miner.
A
finding of gross negligence is clearly supportable on the facts. The high degree of negligence emanates from
the fact that this was underground mining which is an inherently dangerous
operation. His job description demands
compliance with stringent mining and safety management regulations.
The
appeal is therefore allowed with costs.
The judgment of the court a quo
is set aside and substituted with the following:-
"The
appeal is dismissed with costs".
Gill,
Godlonton & Gerrans, applicant's legal
practitioners
Messrs J Mambaras & Associates, respondent's legal
practitioners
