Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation Mediation and Arbitration and Others (JA28/2002) [2003] ZALAC 18; [2004] 1 BLLR 34 (LAC) (20 November 2003)

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Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation Mediation and Arbitration and Others (JA28/2002) [2003] ZALAC 18; [2004] 1 BLLR 34 (LAC) (20 November 2003)

4
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JA28/2002
In the matter between:
Rustenburg Platinum Mines Ltd
(Rustenburg
Section) Appellant
and
Commission
for Conciliation,
Mediation
and Arbitration
First
Respondent
Moropa
C.J. NO.
Second Respondent
Sidumo
Z
Third Respondent
Long
service does not lessen the gravity of the misconduct or serve to
avoid the appropriate sanction for it…
The employees in casu were not dismissed in order
to punish them. They were dismissed because the employer was not
prepared to run
the risk of employing them any longer once they had
been shown to be [unreliable].
In the circumstances of this case, I consider that
it was
irrational to have relied
on the employees’ long service for having found their dismissal
unfair.
In my judgment the
commissioner has ‘ignored or misapplied legal principles to an
extent that is inappropriate or unreasonable’….
By doing so, she
failed to make a rational connection between the material available
to her and the conclusion she reached”.
(My
underling)
[15] The
appellant’s challenge during argument of the second respondent ‘s
award on the basis that the third respondent’s service
of 14 years
and that during that period he had kept a clean record and on the
Code of Good Practice was not foreshadowed in the founding
affidavit.
It was not open to the appellant to seek to have the second
respondent’s award set aside on the basis that his reliance
on the
third respondent’s clean record and long service was unjustifiable
or a constituted reviewable irregularity when this had
not been
foreshadowed in the founding affidavit. A commissioner is entitled
to know each finding of his that will be attacked on
review to show
the existence of a reviewable irregularity for the purpose of having
his award set aside. That the third respondent
had a clean record
and a long service period is capable of sustaining the finding by the
commissioner that the sanction of dismissal
was too harsh. Whether
or not it would have been enough to sustain the finding had it been
challenged in the founding affidavit
is another matter. However, I
must say that, although the misconduct of the third respondent is,
indeed, serious, I am not sure
that I would not have been in doubt
about whether I should interfere with the finding of the second
respondent. And in case of doubt,
the court should not interfere.
[16] Mr Myburgh emphasised that the third respondent’s
misconduct was extremely serious and submitted that the appellant was
entitled
to have adopted the attitude that the continued employment
of the third respondent posed too great a risk to the employer. He
pointed
out that the third respondent was the last man in the
appellant’s line of defence because, if anyone had stolen any thing
belonging
to the appellant, the third respondent would be the last
man to search the person before such person could leave the company
premises.
Mr Myburgh also urged us to have regard to certain
passages in
Toyota SA Motors (Pty) Ltd v
Radebe & Others (2000) 21 ILJ 340 (LAC
)
at par 24
De Beers Consolidated Mines Ltd v
CCMA & Others (2000) 21 ILJ 1051 (LAC) at paras 22, 24 and 27,
County Fair Foods (Pty) Ltd v
CCMA & Others (1999) 20 ILJ 1701
(LAC) at par 43, Nampak Corrugated Wadeville v Khoza
[1999] 2 BLLR
108
(LAC) at par 35, Metro Cash & Carry Ltd v Tshihla (1996) 17
ILJ 1126 (LAC) at 1133F-G and par 25
in De
Beers case, supra. I do not consider it necessary to deal with each
and everyone of those passages. However, I have considered
them in
the process of considering judgement in this matter. Despite them I
am not able to conclude that they provide justification
for
interference by the court with the decision of the commissioner on
review.
[17] In the circumstances I conclude that the Court a
quo correctly dismissed the application. The appeal is dismissed
with costs.
Zondo JP
I agree.
Mogoeng JA
I agree.
Comrie AJA
Appearances
:
For
Appellants: Adv. A.T. Myburg
Instructed
by: Leepan Beech Attorneys
For
Respondents: Adv. S. Strydom
Instructed
by: Mahlasedi Van Zyl Inc.
Date of
Judgement: 20 November 2003