Risk vs responsibility: When safety rules are broken

In Sibanye Rustenburg Platinum Mines (Pty) Ltd v CCMA and Others, the Court reviewed and set aside an arbitration award that had ordered the reinstatement of an employee dismissed for gross negligence. The case underscores the critical importance of workplace safety, particularly in high-risk industries such as mining, and clarifies the role of commissioners in disciplinary reviews.

Background

Mr Massinque, a team supervisor employed by Sibanye Rustenburg Platinum Mines since 2007, was dismissed in May 2021 after pleading guilty to entering a high-risk area, the tip area, without wearing a safety harness. This conduct was in direct violation of the mine’s safety protocols, which require all personnel entering such zones to wear protective equipment.

Despite admitting guilt during the internal disciplinary hearing, Mr Massinque challenged the fairness of the dismissal at the Commission for Conciliation, Mediation and Arbitration (CCMA). The commissioner ruled in his favour, ordering reinstatement with backpay and issuing a final written warning instead of dismissal.

Sibanye Rustenburg Platinum Mines sought to review this decision, arguing that the commissioner had misapplied the law and failed to properly assess the seriousness of the misconduct.

Court’s evaluation and finding

Judge Phehane found that the commissioner had committed a gross irregularity by reconsidering the employee’s guilt and substituting the employer’s sanction with his own. The Court emphasised that the commissioner’s role is not to decide what they would have done, but to assess whether the employer’s decision was fair based on the totality of evidence.

Key points from the judgment include:

• Safety is paramount in mining operations. The failure to wear a safety harness in a high-risk area posed a serious danger, not only to the employee but also to others.
• Dismissal for a first offence may be appropriate if the misconduct is serious enough to make continued employment intolerable.
• The employee’s seniority and leadership role heightened the gravity of the misconduct, as he was expected to set an example for others.
• The commissioner failed to apply his mind to relevant evidence, including past incidents of injury and fatality due to similar breaches, and the breakdown of trust between the employer and employee.

The Court concluded that the dismissal was substantively fair and reinstated the employer’s original decision.

Legal implication

Reinforcement of employer’s right to dismiss for serious safety breaches

The Labour Court reaffirmed that employers have the right to dismiss employees for serious misconduct, even if it is a first offence, particularly where safety is compromised. This aligns with item 3(4) of the Code of Good Practice: Dismissal, which allows dismissal for a first offence if the misconduct is serious enough to make continued employment intolerable.

Implication: Employers are legally justified in dismissing employees who wilfully endanger themselves or others, especially in high-risk industries like mining.

Limits on commissioners’ powers in arbitration

The judgment clarified that commissioners at the CCMA must not substitute their own views for those of the employer. Their role is to assess whether the employer’s decision was fair, not to re-evaluate guilt or impose alternative sanctions unless the employer’s decision was clearly unreasonable.

Implication: This limits the scope of CCMA commissioners in disciplinary reviews and strengthens the employer’s prerogative in managing workplace discipline.

Importance of trust relationship in employment

The Court accepted that a breakdown in trust, especially in safety-sensitive roles, can justify dismissal. Even if the trust relationship is not irretrievably broken, evidence of harm to trust can support the employer’s decision.

Implication: Employers can rely on the erosion of trust as a valid reason for dismissal, particularly where the employee holds a position of responsibility.

Safety compliance as a legal obligation

The judgment emphasised that safety rules are not merely internal policies but are part of a broader legal and regulatory framework. Non-compliance can expose employers to liability and regulatory breaches.

Implication: Employees have a legal duty to comply with safety protocols, and failure to do so can result in lawful dismissal. Employers must ensure safety rules are clearly communicated and consistently enforced.

Judicial deference to employer’s operational risk management

The Court cited previous decisions stating that dismissal is a legitimate operational response to risk management, not an act of punishment. This principle supports employers in making decisions that protect their workforce and business.

Implication: Courts will support dismissals that are based on sound operational and safety considerations, provided they are procedurally and substantively fair.

Key takeaways

For employers:

• Document and enforce safety protocols rigorously. Clear signage, training, and consistent enforcement are essential.
• Maintain detailed records of disciplinary actions and safety breaches. These are crucial in defending decisions before arbitration or review courts.
• Trust relationships matter. Evidence of a breakdown in trust, especially in safety-sensitive roles, can justify dismissal.
• Be prepared to justify the proportionality of sanctions. While zero-tolerance policies are understandable, they must be applied fairly and consistently.

For employees:

• Understand and comply with safety rules. Especially in high-risk environments, non-compliance can have serious consequences.
• Take responsibility for misconduct. Attempting to shift blame may undermine credibility and trust.
• Know your rights—but also your responsibilities. While unfair dismissals can be challenged, admitted misconduct in critical areas may not warrant leniency.
• Seniority comes with accountability. Supervisors and team leaders are held to higher standards due to their influence on workplace culture.

Final Thoughts

This judgment reinforces the principle that safety in the workplace is non-negotiable, particularly in industries where lives are at stake. It also serves as a reminder that fairness in disciplinary proceedings must be balanced with operational realities and the need to manage risk. Employers must act decisively but fairly, and employees must uphold safety standards with diligence and integrity.

For advice or more information, contact Riona Kalua, head of our Labour and Employment team.