Minyuku v Shield Security Group (Pty) Ltd (JA/97) [1997] ZALAC 4 (16 October 1997)

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[1997] ZALAC 4
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Minyuku v Shield Security Group (Pty) Ltd (JA/97) [1997] ZALAC 4 (16 October 1997)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case no: JA /97
In
the matter between
MAFEMANE WILLIAM
MINYUKU
Appellant
and
SHIELD SECURITY GROUP
(PTY) LTD
Notes:
The
appellant, Mr MW Minyuku, was employed by the respondent, Shield
Security Group (Pty) Ltd as a security guard from August 1991
until
his dismissal in January 1995.
On
the night of 28/29 November 1994, the appellant was on night duty at
Boerstra Bakery (“the bakery”). At the end of his shift
the
appellant was found in possession of bread and biscuits. A statement
was taken from him on 29 November. On 14 December the appellant
appeared before a disciplinary enquiry on two charges:
“
1. Unauthorised
possession of client’s property (bread and biscuits) at Boerstra on
29/11/94.
2. Absent
from duty on 2nd and 3rd of December after his off days.”
The
appellant was found guilty on both accounts. On 18 January 1995 he
was given a final warning on the second charge and was dismissed
on
the first charge.
The
appellant instituted proceedings in the industrial court in terms of
s 46(9) of the Labour Relations Act, act 66 of 1995, in which
he
applied for a determination that his dismissal constituted an unfair
labour practice. He sought reinstatement, alternatively damages.
At
the industrial court on 22 and 23 April 1996, the appellant testified
on his behalf. The respondent called three security guards
to
testify: Mr S Monkwe, Ms R Rampone, and Mr AT Sawoti. The industrial
court found that the dismissal was procedurally and substantively
fair and dismissed the application, with costs.
The
appellant appeals against that finding.
The
respondent’s case, put simply, is that after the appellant came off
duty early on the morning of 29 November 1994 his bag was
searched.
Four loaves of bread and a packet of twelve biscuits were found in
the bag. All employees of the bakery, and the respondent’s
security
guards at the bakery, were entitled to take one loaf of bread home
each day. Waste biscuits could be obtained from “dispatch”
for
consumption at the bakery. Any other products of the bakery could be
purchased and on removal from the bakery, an invoice had
to be
produced as proof of purchase. The appellant’s explanation at the
time was that he had taken the bread from a guard room
and the
biscuits from dispatch, in the belief that the biscuits were scrap.
As the appellant did not have an invoice for the three
extra loaves
of bread and the biscuits, the respondent contended that the
appellant was in unauthorised possession of the bread and
the
biscuits.
The
respondent contended that the appellant knew that he was not entitled
to remove more than one loaf of bread, unless he was in
possession of
an invoice, for two reasons. The first was that he was informed of
the rule on his arrival at the bakery by Monkwe.
The second was that
there was a notice displayed in the guard room in these terms:
“
Notice
to all staff
:
10 November 1994. As from today, Thursday, 10 November 1994,
depending upon availability, one loaf of bread will be given to each
member of staff each day, Monday to Friday.
This bread will be the
returns that our salesmen bring back each day, and will be issued to
you by security at the security entrance
on Soutter Street as you
leave the bakery.
Admin staff who wish to
take advantage of this should contact Martie Coetzer, who will
arrange to have the bread collected from security
and brought to the
admin offices.
A flimsy bag will be
issued with each loaf.
Those wishing to continue
purchasing fresh bread may do so
via
the shop or the ticket
system.”
In
evidence in the industrial court, the appellant placed each element
of the respondent’s case in issue:-
- he testified that the
incident occurred at the end of his first shift at the bakery;
- he
denied that Monkwe had explained the bakery’s rules in regard to
the removal of bread to him;
- he
said that he did not see the notice that was displayed in the guard
room;
- he
said that he had found three biscuits, and not a packet of twelve
biscuits, “inside” which he intended to eat with his tea;
- he
testified that he was in possession of four scraps of bread which he
had found in a dustbin.
It
was contended on appeal on behalf of the appellant that the
industrial court should have accepted the evidence of the appellant
and rejected that of the respondent. The evidence was criticised on
the basis that there were contradictions between the evidence
in the
industrial court, the evidence in the disciplinary enquiry and the
written statements made by the respondent’s witnesses
in early
December 1994. Reliance was placed, for example, on a contradiction
between Monkwe’s evidence in the industrial court
and a statement
he made in the disciplinary hearing. In the industrial court he
testified that after confiscating the biscuits, he
gave them to Mr P
Kekane, an employee of the bakery, for safe keeping. The biscuits
were later produced as an exhibit at the disciplinary
enquiry. The
biscuits were not, however, produced at the disciplinary enquiry and
when Monkwe was asked for an explanation he said
that the biscuits
had been consumed by guards in the guard room who had eaten them not
knowing that they were an exhibit.
The
appellant also contradicted a statement he had made on 24 November
1994. In the statement he said that he was in possession of
three
loaves of bread with the permission of a superior, Lucas, and after
discussing the matter with a fellow security officer, Paulls.
As
pointed out earlier, the appellant’s version in the industrial
court was that he had found scraps of bread in a dustbin.
The
industrial court cannot be faulted for accepting the evidence of the
respondent’s witnesses and rejecting that of the appellant
on the
material issues. The respondent’s witnesses corroborated each other
in the following important respects: that the respondent
was in
possession of four loaves of bread, and not scraps of bread, that he
was in possession of a packet of biscuits and not three
waste
biscuits, and that all those items were found in the respondent’s
bag.
The
one issue on which there was no corroboration was Monkwe’s evidence
that he had explained the procedure in regard to removing
bread from
the premises to the appellant on the appellant’s arrival at the
bakery. But it is not in dispute that the notice was
displayed in the
guard room. The appellant’s evidence that he was unaware of its
contents is not credible. Any experienced security
guard must know
that he is not entitled to remove the property of the owner of the
property he is guarding without the permission
of the owner. The
appellant could not honestly have believed that he was entitled to
remove four loaves of bread and a packet of
biscuits without the
permission of the owner. It is interesting to note that on the
appellant’s original version, he did seek permission
to remove the
bread and obtained permission. Presumably because he knew that he
would not be corroborated by the supervisor, Lucas,
the appellant
changed his version to allege that he found scrap pieces of bread in
a dustbin.
There
was no evidence that the appellant knew that he was not entitled to
remove biscuit scraps from the premises and that he was
required to
consume the biscuits on the premises. However, the appellant was not
found in possession of scrap biscuits. He was found
in possession of
a packet of biscuits. The bakery’s rules were that he was not
entitled to remove its products without an invoice,
showing payment.
He did not pay for the biscuits.
It
follows that the respondent and the industrial court correctly found
that the first charge had been proved.
What
remains to consider is whether dismissal was the appropriate remedy.
The appellant was a security guard. It was his job to guard
the
bakery’s premises and to prevent the removal of the bakery’s
products from the bakery. The appellant, instead, intended to
remove
the bread and biscuits without the permission of the bakery. In
short, he intended to commit theft. He demonstrated that he
was no
longer a trustworthy employee. He had breached the trust placed in
him by his employer. Dismissal was the appropriate remedy.
A
reading of the proceedings in the disciplinary enquiry reveal that
the appellant was given an opportunity to state his case, he
was
represented, his representative cross-examined the witnesses called
by the company. After conviction, he was given the opportunity
to
give evidence in mitigation. Fair procedure was followed.
The
appeal is dismissed.
______________
Myburgh
JP
I concur I concur
____________ ____________
Dr
David John
Date
of Hearing : 97/06/12
Date
of Judgement :
On behalf of the
appellant : Snyman Van Der Heever Heyns Inc
On behalf of the
respondent : Shield Security Group (Pty) Ltd
Date
of judgment: 16 October 1997