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[2024] ZALCJHB 167
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Seriti Power (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration (JR1617/22) [2024] ZALCJHB 167 (16 April 2024)
IN THE LABOUR COURT IN
JOHANNESBURG
CASE NUMBER: JR1617/22
In the matter between:
SERITI
POWER (PTY)
LTD
APPLICANT
and
CCMA
FIRST RESPONDENT
MNISI
VM
N.O
SECOND RESPONDENT
NATIONAL
UNION OF MINEWORKERS
THIRD RESPONDENT
NCONGWANE,
DANIEL
FOURTH RESPONDENT
Heard: 27 February
2024
Delivered: 16 April
2024
Judgment
Norton
AJ
Introduction
1.
The Applicant (Seriti Power), a mining company, seeks to review and
set aside an arbitration award made by the Second Respondent,
commissioner Mnisi in favour of the Fourth Respondent, Mr Daniel
Ncongwane in June 2022.
2.
The Applicant dismissed Mr Ncongwane in May 2021 for misconduct after
he was found guilty at an internal enquiry of dishonesty
and none
compliance with the Mine’s procurement rules and procedures.
The charges read as follows:
“
On
numerous occasions the defendant signed for direct delivery of goods
from a vendor who is not registered to provide such goods.
Furthermore, there exists no proof that the goods were delivered at
site. Such conduct is in breach of the trust relationship.
The
defendant was in breach of instruction and the mine standards on an
occasion where direct goods were delivered to him without
being
received by the warehouse and then distributed from there
.”
3.
At the heart of the charges were the allegation that Mr Ncongwane
bypassed standard procurement rules and procedures, in
that he
ordered goods, which the mine paid for, which were not delivered.
4.
Mr Ncongwane referred an unfair dismissal dispute to the CCMA, which
proceeded to arbitration. At arbitration the Applicant
led two
witnesses Ms Cindy Schoenwinkel, the Warehouse Leader and Mr Kabelo
Lekalakala, a Human Resources Specialist. Mr Ncongwane
testified and
called three witnesses, Mr Derek Shube, a Shift Boss at Khutala Mine;
Mr Jan Maseko, a planner (an ex employee dismissed
for similar
misconduct) and Mr Patrick Mncina, the warehouse supervisor at
Khutala Mine.
5.
The
commissioner found that the dismissal was substantively unfair and
ordered reinstatement with full back pay in the amount of
R817 731.96. Mr Ncongwane was to report for duty on 11 July
2022. The mine has paid 24 months salary (R1 635 463.92)
into their attorneys trust account as security, pending the outcome
of this review as contemplated in section 145(8)(a) of the
LRA.
[1]
The
review challenge
6.
The mine states in the founding affidavit that,
“
the
Commissioner in concluding that the dismissal was substantively
unfair committed gross irregularities in that he did not evaluate
and
determine the evidence properly, failed to apply his mind to the
evidence before him in determining the issues in dispute and
failed
to have regard to legal principles relating to the issue of
appropriateness of sanction, which resulted in the Commissioner
arriving at an award no reasonable commission could have arrived at
on the evidence before him
.”
[2]
7.
The mine refers particularly to the following grounds:
7.1.
The
commissioner erred by assessing credibility and not assessing the
probabilities.
[3]
7.2.
The
commissioner ignored material evidence.
[4]
7.3.
The
commissioner failed to consider whether or not Ncongwane’s
conduct amounted to dishonesty.
[5]
8.
Those grounds arise from the analysis towards the end of the
arbitration award in which the commissioner concludes:
8.1.
That the
mine failed to quantify the occasions Mr Ncongwane signed for the
direct delivery of goods from a vendor who was not registered
to
provide such goods
[6]
8.2.
The
evidence tendered by Ms Schoenwinkel was inconsistent and she
contradicted herself.
[7]
8.3.
The mine
did not demonstrate that Mr Ngongwane had contravened a workplace
rule.
[8]
The
evidence
9.
Schoenwinkel testified about the mine’s standard operating
procedure for receiving goods. Goods ordered were to be
delivered to
the warehouse. Thereafter the goods were distributed to the various
operations.
10.
There was an exception where goods could be delivered directly to
workshops and that was in situations in which special
transport or
material handling was required. Exceptions required pre arrangement
and approval by the warehouse.
11.
Direct
deliveries to end users were not allowed unless there was a breakdown
and the user was not close to the warehouse. The mine
issued a
memorandum to employees on 7 February 2020 emphasising these points.
The purpose of the procedure was cost control and
to maintain ethical
relationships with suppliers. The memorandum read, “…
It
has been decided …to control direct purchases and contractor
utilisation to the entire operation in an attempt to reduce
cost
expenditure
.”
[9]
12.
M r
Schoenwinkel commented that “
There
was a pattern with Vuka Vusi that (
a
vendor
)
their goods did not come through the warehouse at all…it was
always the same people ordering and the same people receiving.”
She then referred to Mr Ncongwane and Mr Maseko in this regard.
[10]
13.
On 18 June
2020 Mr Ncongwane signed a delivery note for four bleeding tools for
R39 100.00 from a vendor called Vuka Vusi Trading.
He also
signed a delivery note for a non flameproof pump for R51 750.00
from the same vendor. There was no record (in terms
of access
control) that Vuka Vusi had entered the mine’s premises that
day to deliver these items.
[11]
14.
Ms Schoenwinkel explained that Mr Ncongwane had breached the SOP
rules in that he took delivery of the items (assuming
they were
delivered) when they should have been delivered to the warehouse, and
he did not seek prior approval to take delivery
of the goods.
15.
It emerged that Mr Ncongwane had ordered, and his colleagues took
delivery of (or arguably purported to take delivery
of) two brake
valve banks, two hydraulic control valves and one aluminium pump.
This conduct too contravened the mine’s standard
operating
procedures.
16.
At the start of the arbitration on 17 March 2021 Mr Ncongwane
proposed that the parties conduct an inspection in loco
at the mine
to show that the goods were on the mine. The employer agreed. The
inspection revealed the following anomalies:
16.1.
There was
no presence of the four nett bleeding tools ordered by Mr Ncongwane
and allegedly delivered.
[12]
16.2. The brake
valves ordered by Mr Ncongwane, and received by Mr Maseko allegedly
delivered by Vuka Vusi were not present.
16.3.
Only one of
four electric joint boxes ordered by Mr Ncongwane and allegedly
delivered by Vuka Vusi to Maseko in May 2020 was present.
Ms
Schoenwinkel later traced the serial number which showed that the
date of manufacture was December 2020, at least 6 months after
the
alleged delivery of the items.
[13]
(Inference being that what was shown to the employer in the
inspection in loco was designed to deceive)
17.
The employer paid R45 000 for the pump, yet a google search
showed the value to be R3 500.00.
18.
Apart from the type of pump and the value of the pump, Mr Ncongwane
did not present any reasonable evidence to explain
the discrepancies
and did not put any versions to Ms Schoenwinkel on the matter in
cross examination.
Discussion
and analysis
19.
The Commissioner gave little weight to this uncontroverted evidence
that demonstrated that the employer had proved on
a balance of
probability that the goods ordered (bleedings tools, brake valves and
electric joint boxes), or signed for by Mr Ncongwane
were not
delivered; that he had breached mine standard operating procedures,
and had been dishonest.
20.
The test
for review is set out in section 145 (2) of the LRA – an
arbitration award may be set aside if the commissioner committed
misconduct, a gross irregularity or exceeded his or her powers, or if
the award was irregularly obtained. The test is infused with
the
standard of reasonableness, established by the Constitutional Court
in
Sidumo and another v Rustenburg Platinum Mines
.
[14]
The standard is expressed in the negative, “
Is
the decision reached by the commissioner one that a reasonable
decision maker could not reach
?”
21.
Over the
years, various courts have espoused related principles, and one
apposite to the case before us is
Herholdt
v Nedbank
.
[15]
In that case the Supreme Court of Appeal stated
“
A
review of a CCMA award is permissible if the defect in the
proceedings fall within one of the grounds in section 145(2)(a) of
the LRA. For a defect in the conduct of the proceedings to amount to
a gross irregularity as contemplated by section 145(2)(a)(ii)
the
arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be unreasonable
if it is one that a reasonable arbitrator could not reach on all the
material that was before the arbitrator. Material errors of
fact, as
well as the weight and relevance to be attached to the particular
facts, are not in and of themselves sufficient for an
award to be set
aside but are only a consequence if their effect is to render the
outcome unreasonable
.”
22.
The conclusions drawn by the Commissioner were with respect
illogical, irrational and unreasonable when considering the
evidence
that Mr Ncongwane ordered items from Vuka Vusi, a vendor not in the
business of those supplies, and that it was more probable
than not
(noting that they were missing at the inspection in loco) that
they were not delivered. The mine had demonstrated
the number of
times that Mr Ncongwane had ordered goods from Vuka Vusi and that he
had breached the standard operating procedures
by ordering directly
and bypassing the warehouse checks and balances. He had clearly
breached the workplace rules on procurement.
Schoenwinkel’s
evidence was clear and supported by documents such as invoices,
policies and access control registers. Akin
to the SCA’s
analysis of
Heroldt,
the Commissioner had arrived at
“
unreasonable result
.”
23.
I am persuaded that the Commissioner committed a reviewable defect as
contemplated in
section 145
of the
Labour Relations Act, 1995
in that
he failed to apply his mind to the evidence before him, and draw the
obvious conclusions. This is a classic award in which
the
Commissioner’s analysis and order falls outside of the
Sidumo
spectrum of reasonableness.
24.
In the circumstance I make the following order:
Order
25.
The arbitration award under case number MPEM 3049/21 is reviewed and
set aside.
26.
The dismissal of Mr Ncongwane was fair.
27.
No order as to cost.
D
Norton
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
MG
Maesto
Shepstone & Wylie
Attorneys
For
the Fourth Respondent: Adv L Phaladi
[1]
Notice of 8 September 2022.
[2]
Paragraph 41
[3]
Paragraph 43
[4]
Paragraph 44 of the Founding Affidavit
[5]
Paragraph 50 of the Founding Affidavit
[6]
Paragraph 62
[7]
Paragraph 63
[8]
Paragraph 67
[9]
Bundle pg 178
[10]
Transcript 70 and 71
[11]
Bundle pg 176
[12]
Pg 74 and 201
[13]
Transcript pg 80
[14]
CCT
85 / 06
[15]
(2013)
34 ILJ 2795 (SCA)