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[2020] ZALAC 23
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Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA96/2018) [2020] ZALAC 23; (2020) 41 ILJ 2059 (LAC); [2020] 11 BLLR 1071 (LAC) (18 May 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA96/2018
In
the matter between:
AQUARIUS PLATINUM (SA)
(PTY) LTD Appellant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
COMMISSIONER
DHELIWE MAVUMA N.O.
Second
Respondent
REGGIE
NGORIMA
Third Respondent
Heard:
20 February 2020
Delivered:
18 May 2020
Summary:
dismissal misconduct – theft – concealment not an element
of theft – theft is the deliberate deprivation
of someone’s
property permanently– where having borrowed material from an
employer and having an intention to return
it, an employee fails to
return the property, a change of intention to permanently deprive the
employer of the property must be
assessed on the probabilities in
light of the evidence
Misappropriation
of employer property – the unauthorised use of employer’s
labour force amounts to an abuse of managerial
position and
misconduct.
Coram:
Davis, Musi and Sutherland JJJA
______________________________________________________________________
JUDGMENT
______________________________________________________________________
SUTHERLAND
JA
Introduction
[1]
This appeal is against the refusal of the Labour Court, which having
reviewed an award
of a CCMA commissioner, nonetheless, endorsed a
finding that the dismissal of the third respondent, Ngorima, was
unfair, and left
an award of reinstatement undisturbed. Ngorima had
been dismissed by the appellant on charges relating to the
misappropriation
of company property.
[2]
The judgment
a quo
, and the award, reveal some important
misconceptions about the idea of theft, misappropriation, dishonesty
and the appropriate
accountability of an employee for such conduct.
This judgment addresses these misconceptions and seeks to clarify the
appropriate
approach to adjudicating such alleged conduct. Further,
the award invoked the idea of inconsistency of discipline to justify
its
conclusion that the dismissal was unfair which, as the analysis
that follows in this judgment shows, was ill-considered, and in
this
respect, was correctly criticised by the Labour Court and was the
foundation for the review of the award.
[3]
The charges which Ngorima faced and upon which he was convicted in a
disciplinary
enquiry were these:
‘
Charge
No 1: Dishonesty, in that during September 2014 you did not act
honestly towards the company as a site engineer in that you
committed
the following:
1.1:
Misappropriation of company assets or resources; use labour and
resources for private use without acquiring authorisation.
1.2:
Abuse and misuse of management position – use mine labour to
perform private tasks; and
1.3:
Damage to company property – cutting of company (scaffolding)
pipes for private usage.
Charge
no 2: Failure to comply with company rules and procedure in that:
-
You
did not comply with the waybill procedure.
Charge
no 3: Theft:
-
Unauthorised
removal of company property, took the pipes belonging to
the company without authority.
The
critical facts
[4]
There are no material disputes of fact. What happened was this:
4.1
Ngorima was the shaft engineer, thus a senior employee.
4.2
He lived off the mine. He wished to mount a TV aerial at his home at
a great
height to inhibit vandalism by passers-by. For this task, the
installer needed a scaffold to access the spot. The installer’s
scaffold was inadequate to reach the spot.
4.3
Ngorima was aware that there were metal scaffolding poles in the
discard yard
at the shaft. He realised that he could supplement the
installer’s equipment by using these poles.
4.4
He telephoned the then mine manager, Mhlambi, who, at that moment,
was absent
on leave. He said he wanted to borrow the poles. Mhlambi’s
answer was that if he did so, he should comply with the procedure,
a
reference to the so-called waybill procedure. The waybill procedure
required any removal of any company property from its designated
place to be documented and authorised. Doubtless, this procedure was
to regulate the movement of property in the possession of
employees
which, if adhered to, would avoid any suspicion of being in
unauthorised possession thereof, an act of misconduct. Ngorima
was
well versed in the procedure.
4.5
Whether the exchange between Ngorima and Mhlambi indeed amounted to a
“permission”
to borrow the poles is not altogether
obvious. For the purposes of this judgment, it is accepted that the
“borrowing”
was authorised. It is common cause that a
practice existed in terms of which company equipment was borrowed by
employees from time
to time. Examples adduced in evidence showed that
employees took equipment and returned it in the condition it had been
taken.
4.6
Ngorima thereupon instructed an artisan, Jansen, to cut 600mm lengths
from the
metal poles taken from the discard yard. These lengths were
then loaded onto his bakkie and removed by him. This exercise
interrupted
other duties that Jansen was busy on. There was some
debate on the importance of the task that Jansen was engaged on –
mending
a security gate installation – but this is a red
herring; the point of significance is the re-deployment of Jansen for
private
purposes.
4.7
Ngorima travelled with the load of poles to another shaft on the
mine, Kroonvaal,
where he was to attend a meeting. He then left the
mine. He himself authorised himself to remove the material from the
shaft to
Kroonvaal, in an ‘internal waybill’. He did not
prepare an ‘external waybill’ to take the material off
the mine. Ngorima offered as an excuse for not filling out an
external waybill that he had intended to do so upon the conclusion
of
the meeting at Kroonvaal, to which he first had gone, but had
overlooked doing so. Why he could not and did not fill out an
external waybill initially, was unexplored in the evidence. The
omission of the latter authorisation was an irregularity recognised
by both the arbitrator and the Labour Court.
4.8
The material was never returned. It was estimated to have a value of
R1000,
if sold as scrap. No acceptable evidence was adduced by
Ngorima to explain why at any time either before or after his
suspension,
seven days after the removal had occurred, the poles were
not returned, or could not be returned, as was his logical obligation
in terms of the borrowing of the equipment. Ngorima’s sole
contribution to an explanation was that his suspension inhibited
him
from so doing. This is hollow when he never even tendered a return at
either his disciplinary hearing or at the arbitration.
The
Award
[5]
The arbitrator held that Ngorima was guilty of charge 2, in not
complying with the
waybill procedure but that this misconduct was
“not grave and wilful”. It must be inferred that
Ngorima’s claim
that he inadvertently overlooked doing so was
not regarded as a proper defence.
[6]
In addressing the other two charges, the award effectively treated
them as intertwined.
The arbitrator concluded that there was no
“dishonesty” by Ngorima. However, the burden of the
ratio
in the award is that there was a culpable inconsistent
application of discipline by the employer. This analysis is plainly
confusing.
If there was no dishonesty present exactly what was
Ngorima guilty of? Furthermore, what act of culpability was to be
compared
with culpable acts of other employees?
[7]
The upshot was that, on these findings, the dismissal was held by the
arbitrator to
be unfair.
[8]
In my view, the award is gravely misdirected.
[9]
First, as to the charge of theft, the arbitrator stated at [58]:
‘
Theft
has an
element of concealing whatever item intended to be stolen
.
In this instance, colleagues were aware and had full knowledge of the
applicant’s intentions of the usage of the scaffolding.
Therefore, I do not find the applicant guilty of theft.’
[10]
This understanding of theft in charge no 3, as an action which is
intrinsically furtive is fundamentally
wrong. It is plain that the
arbitrator misconceived the enquiry he was supposed to conduct. More
is said on this aspect hereafter.
[11]
Second, as to inconsistency in the application of discipline in
respect of charge 1, the arbitrator
stated in the award that the case
of Van der Merwe was comparable.
[1]
The facts of the Van der Merwe incident were these:
11.1
Van der Merwe borrowed a pump for personal use.
11.2
He obtained permission to do so.
11.3
He complied with the waybill procedure.
11.4
He returned the pump.
11.5
Van der Merwe had a car washed by company employees.
11.6
The arbitrator, in the award, said this was for private use, but
apparently the vehicle was itself
company property.
11.7
Van der Merwe was not disciplined.
[12]
These incidents about Van der Merwe and the conduct of Ngorima have
merely to be described to
demonstrate the material misdirection in
perceiving them as a proper foundation for a comparator to conclude
that inconsistent
application of discipline took place; the view also
taken by the Labour Court.
[13]
Therefore, this appreciation of the award compels the conclusion that
the arbitrator did not
render an award that a reasonable arbitrator
could have rendered. It fell, rightly, to be reviewed and set aside.
The
judgment
[14]
The Labour Court disapproved, correctly, of the reliance on the
inconsistency of application
of discipline on the grounds that the
other incidents put forward were not comparable.
[15]
The Labour Court approved the finding of guilt on charge no 1.2 –
abuse of managerial authority,
and on charge no 2 – failure to
follow waybill procedure. On the other charges, the Labour Court was
unpersuaded any “dishonesty”
was evident.
[16]
In two distinct passages the issue of theft as set out in charge no 3
are dealt with by the Labour
court. This is what is said:
‘
[35]
There are different conclusions one can arrive at there,
but I do not think [Ngorima] was charged merely
for the use. When one
looks at the charge sheet it seems to suggest that there was an
appropriation, disposing of company property,
that is now the third
charge in this matter.
[36]
I begin with that because I think it is proper to
conduct that enquiry first. It cannot be said on
the evidential
material before Court that the evidence that is common cause revealed
that the third respondent stole the pipes.
I would not agree that
what he did amounted to theft.
[37]
I would agree that he was not authorised to remove
it permanently. He was authorised to remove it
subject to him
bringing it back.
[38]
I do not know what one would call that, but it cannot be theft.
One has to bear in mind that he had already approached a senior
person. In his mind one would not say he was secretive in what
he was
doing. He was doing it openly. He was not hiding what he was doing.
In fact, the fact that he took the trouble of telephoning
Mr Mhlambi
shows that he was executing his conduct in an open manner.
[39]
I would therefore find it difficult to agree that on the evidence
that was before the commissioner the third respondent ought to
have
been found guilty of theft
.
He could have been found guilty of
retaining property of the company, which he was authorised to take
.
But I do not know what that kind of misconduct would be
.
It
cannot be a misconduct of theft, knowing what that amounts to.
As
I have already alluded to it.
[40]
On the evidence therefore, [Ngorima] could not be found guilty of
theft as described there, but
he could be guilty of some misconduct,
of
taking company property and not returning it
.
In fact, of disposing of it, because he passed it on to a third
party.
[2]
[41]
The problem I have is that without knowing what this kind of
misconduct is, it then becomes difficult to say what kind of sanction
one imposes.
Because one has to go to the company policy and find
where this kind of misconduct fits in, and then find the sanction
that is
appropriate in those circumstances. That is the first problem
with the third count.
.
. .
[47]
The evidence was essentially that once he was done with the pipes he
would return them and Mr
Jansen would put them back into the length
of 1.6 metres, which never happened.
[48]
Therefore in relation to the first count, the evidence was
overwhelming that the third respondent
did use company resources for
private usage, firstly, when he cut the steel pipes.
[49]
It is not clear what the purpose was for which these pipes were still
kept at the time. It may
well be that these pipes would be given away
and sold out at a price of about R1 000. However, on this count I
have a problem.
[50]
The applicant decided to call this an act of dishonesty.
There is
no evidence that suggests to me that this was an act of dishonesty.
He was not acting secretly nor was he acting to the
prejudice of the
company.
[51]
Dishonesty suggests some kind of conniving wrongful conduct. However,
the conduct that is proved
by the evidence seems to suggest
otherwise.
Again, I would say it merely amounts to
misappropriation of company assets, abuse and misuse of a management
position.
Those two can be sustained and should be sustained.
[52]
Mr Mhlambi had been told that the pipes would be privately used. Once
you describe these counts
as they appear in the charge sheet without
dishonesty, it then impacts on the issue of the fairness of the
sanction.
.
. .
[61]
I do accept that the third respondent was a senior personnel in the
sense that he was an engineer
and he was hierarchically senior at the
place where he was employed at the time. However, when one really
looks at what he did
objectively,
it lacked the seriousness that
should attract a severe sanction such as one for dishonesty, or
theft.”
(
emphasis
supplied
)
[17]
I disagree with this perspective of the conduct of Ngorima as
articulated by the Labour Court
and it cannot be endorsed. The idea
that theft or dishonesty requires furtiveness or concealment is
misplaced. It is true that,
often, to either conceal the fact of the
theft or to conceal the identity of the thief, the deed is done
clandestinely. However,
that is not an element of the crime. The
crime of theft is based on the common sense of the ages: all that is
required is that
a person deliberately deprives another person of the
latter’s property permanently. In industrial relations
parlance, theft
is frequently described as misappropriation of the
employer’s property. Conceptually there is no useful
distinction. The
frequent resort to the lesser offence of being in
‘unauthorised possession’ of the employer’s
property, an act
of misconduct listed in many disciplinary codes,
caters for cases where a thieving intention is suspected and requires
of employees
to ensure that they do not place themselves under
suspicion, relieving an employer from having to prove a specific
intent.
[18]
To articulate the notion of a misappropriation of property that is
free of dishonesty is a contradiction
in terms. In my view, to
describe the deliberate retaining of property which the employee is
not entitled to retain is not distinguishable,
conceptually, from
theft. Naturally, a proper appreciation of the dimension of the
requisite intention in regard to misappropriation
is not wholly free
from difficulty. It is conceivable that a person,
bona fide
,
intends to return an item at the time of borrowing but later changes
that intention. If circumstances, where the probabilities
are equally
poised that at the outset, the “borrower” had an
intention to return the item, how is the existence of
the fact of a
change of intention to be determined? Self-evidently, except in rare
cases, that change of intention would have to
inferred from the
evidence. In such a case, the explanation proffered by the borrower
would be of central importance. Where a borrower
gives no
explanation, can the inference indeed be drawn that the intention not
to return the goods be made? In my view, such an
inference can be
drawn if, in the absence of other evidence, the probabilities lend
weight to such an inference. This does not
result from any onus on an
employee to prove the absence of guilt; rather, it is a
straightforward example of inferential reasoning
to determine the
probabilities on the available evidence.
[19]
Moreover, to return to the idea that furtiveness is a necessary
attribute of theft or dishonesty,
such a perspective overlooks that
sometimes theft takes place quite brazenly. One example where this is
common is where senior
employees, often managers, abuse their
standing and authority to take possession of company property for
private use. The workforce
looks on impotent to intervene. The facts
of this case illustrate exactly that scenario.
[20]
Moreover, even were I to be wrong about the
establishment of guilt of theft by Ngorima on this body
of evidence,
and, thus, a finding of theft
per se
, on these facts, were to
be unsafe, there is another significant dimension to the conduct of
Ngorima to be weighed which renders
him culpable of serious
misconduct. That conduct is, as alluded to above, the brazen abuse of
his status and seniority to appropriate
the labour of Jansen for
private purposes, something for which there is no hint that he had
the authorisation to do, and the causing
of the cutting up of company
property. This is an example of an abuse of his managerial position
for which the disciplinary code
provides dismissal as an appropriate
sanction. In the context of large businesses, such as a Mine, where
vast quantities of company
property are continually in the possession
of a large number of employees, a strict standard of conduct is
usually and appropriately
applied to everyone. Ngorima as a senior
employee was obliged to set a good example: he did not. Ngorima was,
in the circumstances,
indeed guilty of serious misconduct in this
regard and dismissal is appropriate.
The
Order
(1)
The appeal is upheld.
(2)
The Award is reviewed and set aside.
(3)
The judgment of the Court a quo is set aside.
(4)
The sanction of dismissal is declared not to be unfair.
_______________________
Sutherland
JA
Davis
and Musi JJA concur
APPEARANCES:
FOR
THE APPELLANT:
Adv G Fourie SC,
Instructed
by Werksmans.
FOR
THE THIRD RESPONDENT:
Adv E Liebenberg,
Instructed
by Ismail and Dhaya.
[1]
There
were also other incidents alluded to in evidence but ostensibly, the
arbitrator did not rely on them. The Labour court mentions
these
other incidents and concluded they were not comparable.
[2]
This
finding that the poles were disposed of is not altogether clear on
the evidence although such an inference was certainly
plausible and
consistent with the fact that a tender to return them was never
made.