In NUM obo De Jongh v Black Mountain Mining [2025] ZALCCT 102, the Court dismissed an application to review and set aside an arbitration award that had upheld the dismissal of a mining operator whose negligent conduct resulted in the death of a colleague.

Mr. De Jongh, was employed by Black Mountain Mining (BMM) as an Advanced Mining Operator in the company’s Cut and Fill Production Department. His duties included operating a Sandvik Boltec DS311 machine (commonly referred to as the Boltec Machine), an electro-hydraulic rock bolter designed for reinforcing the roof and side walls of underground mines with small and medium cross-sections.

On 10 January 2020, a fatal incident occurred resulting in the death of Ms. Venessa Plagg, a Mining Operator and Working Place Safety Representative also employed by BMM. The incident triggered an internal investigation under section 11(5) of the Mine Health and Safety Act 29 of 1996 (MHSA) and subsequent disciplinary action against Mr. De Jongh.

During the section 11(5) inquiry, it was discovered that Mr. De Jongh instructed Ms. Plagg to untie a resin capsule discharge hose (referred to as the resin hose) from the boom of the Boltec Machine while its power pack was still running.

As Ms. Plagg proceeded to untie the resin hose, she was struck and sustained multiple injuries resulting from blunt-force trauma, which tragically led to her death. The inquiry found that the machine had not been properly isolated — a fundamental breach of safety protocols under both BMM’s internal procedures and the MHSA.

Following the investigation, a disciplinary hearing was convened to address allegations of serious misconduct against Mr. De Jongh arising from the fatality. The charges were formulated as follows:

• Dishonesty – in that the employee made false statements and/or withheld information relevant to the investigation into the incident of 10 January 2020; and
• Gross Negligence – in that, during the night shift of 10 January 2020, the employee failed to adhere to work standards and the Mine Health and Safety Act by instructing a colleague to perform work in front of the machine he was operating while the machine’s power was switched on and not isolated, thereby placing the colleague’s health and safety at serious risk.

Mr. De Jongh was found guilty on both charges and subsequently dismissed. Dissatisfied with the outcome, he appealed both the finding and the sanction. The appeal hearing upheld the dismissal as both substantively and procedurally fair.

Following the unsuccessful appeal, the applicant referred an unfair dismissal dispute to the Commission for Conciliation, Mediation and Arbitration (CCMA), leading to the arbitration award that later became the subject of the Labour Court’s review proceedings.

The Arbitration and Review Application

The National Union of Mineworkers (NUM), acting on behalf of De Jongh, brought an application under section 145 of the Labour Relations Act 66 of 1995 to review the arbitration award. The union argued that the commissioner had committed material irregularities, misdirected himself on the evidence, and failed to properly assess the proportionality of dismissal as a sanction.

However, the commissioner had found that uncontested evidence demonstrated that De Jongh instructed Plagg to perform work in front of the machine without isolating its power source, a serious breach of critical safety rules. Data retrieved from the Boltec’s Data Collection Unit (DCU) confirmed that the machine was operational at the time of the incident. Expert medical testimony supported the conclusion that the injuries were caused by contact with the machinery, rather than falling rocks as suggested by De Jongh.

The commissioner found De Jongh’s evidence inconsistent and unreliable, preferring BMM’s version of events. It was further noted that De Jongh displayed a complete failure to take care, remained defiant and unremorseful, and that the trust relationship had been irreparably damaged.

The Labour Court’s Findings

In dismissing the review, the Court held that the commissioner’s decision was reasonable and defensible within the meaning of Sidumo and Another v Rustenburg Platinum Mines Ltd and Others. The commissioner had properly considered all material evidence, including documentary records, expert testimony, and De Jongh’s own admissions.

The Court rejected NUM’s argument that the commissioner relied on hearsay evidence or failed to consider mitigating factors. It held that while De Jongh’s personal circumstances were not explicitly mentioned in the award, this omission did not render the decision unreasonable given the gravity of the misconduct and the fatal consequences of his actions.

Importantly, the Court emphasised that the absence of dishonesty does not preclude dismissal where the employee’s negligence amounts to a gross dereliction of duty with severe safety implications.

Conclusion

The Labour Court’s judgment reinforces a consistent line of authority holding that gross negligence in safety-critical environments, particularly within the mining sector, justifies dismissal. The ruling underscores that employees in such settings bear a heightened duty of care, and that failure to comply with safety protocols, especially where it results in loss of life, destroys the foundation of trust necessary for continued employment.

The application to review and set aside the arbitration award was dismissed, with no order as to costs.

Written by Jan Du Toit, Director at Labour Guide