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[2008] ZALAC 17
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Rawu v Commission for Conciliation Mediation and Arbitration and Others (JA54/2006) [2008] ZALAC 17 (28 February 2008)
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
JOHANNESBURG
CASE NO
: JA54/2006
2008-02-28
In the matter between
ROBERT RAWU
.............................................................................................
Appellant
And
CCMA & OTHERS
......................................................................................
Respondent
_________________________________________________________
J U D G M E N T
_________________________________________________________
DAVIS JA
:
During September 2001, third
respondent dismissed the appellant for his involvement in the theft
of gold bearing material and resulted
in the breakdown of the trust
relationship between the parties.
The appellant referred the dispute to the first respondent and
challenged both the procedural and substantive fairness of his
dismissal. The referral culminated in arbitration proceedings under
the auspicious of second respondent on 19 March 2002.
During the course of these arbitration proceedings, two witnesses,
Messrs Prinsloo and van Wyk testified on behalf on the
third
respondent, while the employee/appellant testified on his own behalf.
On this occasion the third respondent’s representative
tendered
certain documentary evidence and most important a video recording.
In the arbitration award dated 26 March 2002, the second respondent
upheld the appellant’s dismissal on both procedural and
substantive grounds. On 3 August 2005, appellant instituted an action
for review of the arbitration award in the Labour Court and
in a
judgment of 28 February 2006, Revelas J dismissed this
application.
With the leave of the court
a quo
the matter has come on
appeal to this court.
There are certain facts which are common cause: appellant was
employed as a section supervisor for the crusher team in the west
section of the third respondent’s gold refinery. On 4 September
2001, appellant was dismissed for his involvement in theft
of gold
bearing material; it resulted in this breakdown of the trust
relationship to which I have already made reference. The theft
of the
gold bearing material took place at the Velmed sump/pump area of the
crusher plant at the third respondent’s number
2 gold plant;
occurred upon removing of a pipe that exited the sump/pump area when
the crusher plant was not running. The sump/pump
area is a small area
of approximately 6 meters by 8 meters and comprises a square area
surrounded by concrete with two pumps underneath
it. There is only
one access and exit area with steps leading into this area.
Allegations against the appellant concerned his involvement
on these
unlawful activities on 11 June 2001 and 14 June 2001.
During both the internal disciplinary hearing and the arbitration
proceedings, third respondent produced evidence by way of the
video
recording to which I have made reference. This recording was produced
by a hidden video camera that had been installed in
the area over a
period of approximately three weeks. It did not however include any
sound or audio recording. The video recorder
by which the video
recording was produced was set to record events that occurred at the
entrance and exit to the sump/pump area
and not to depict
people/events inside the area.
Insofar as the allegations against appellant were concerned, third
respondent relied on portions of video which recorded events
that
occurred on the two dates in question, 11 June 2001 and 14 June 2001.
From the video, as it is set out in the papers,
it appears that two
persons are seen to be entering the sump/pump area. Another person,
Mr Petrus Mofokeng is seen standing
on steps leading to the
area. At 16:28:33 the appellant approached the area from the side,
appellant stood next to Mr Mofokeng,
appellant is then seen looking
into the sump/pump area and then walking away. From approximately
17:00 onwards the removal of gold
bearing material takes place.
It is apparent from the record that the following events then are
depicted on the same video recording on 14 June 2001. At
approximately
23:15:04, two individuals are seen entering the
pump/sump area. At approximately 00:01:38, the appellant is seen
appearing at the
sump/pump area. The appellant is seen to be standing
around the entrance thereof, in front of the pipe from which the gold
bearing
material is being removed. He then bends forward and looks
into the area, that is the area where the two individuals were in
fact
located. Other persons are then seen to be subsequently removing
gold bearing material. Appellant was the person depicted on the
video
recording concerning the events of 11 June and 14 June 2001.
Mr Mofokeng was a section supervisor for third respondent’s
eastern shift. It is common cause, that he had no reason to be
in the
area at the time when the appellant observed him on 11 June
2001. Neither did any of the other perpetrators shown on
the video
recording have any authority to be in the area at the relevant times.
It is common cause that the other persons depicted
on the recording
including Mr Mofokeng, engaged in illegal activities concerning the
unauthorised removal of gold bearing material.
Appellant did not
report the presence of Mr Mofokeng at the area on 11 June 2001
to any of his supervisors.
The second respondent in his award recorded the following facts as
common cause:
“
The parties were in agreement with the
following salient points of fact:
That illegal activities involving theft and/or unauthorised removal
of gold bearing material took place on 11 and 14 June 2001;
That the employer arrived at the relevant place whilst perpetrators
of the said misconduct were inside the area in question;
That in terms of the applicable procedures, those people had no
authority or reason to be at the area;
That the said people entered the area before the employer arrived
and further left it after he had already left;
That the illegal activities concerned warranted dismissal if proved.
Based on the appellant’s body language as seen on the
applicable portions of the video recording, Mr Prinsloo, third
respondent’s witness, testified, to the effect, that it was
apparent that the appellant had conversed with Mr Mofokeng.
The appellant did not challenge Mr Prinsloo’s specific
evidence concerning the appellant’s body language in question
but he did deny that he spoke to Mr Mofokeng.
He testified that he saw Mr Mofokeng standing at the area on
11 June 2001 and suspected that “
there (was)
something wrong”
. Appellant examined the area to enquire
whether the drain pipe was properly pumping from the inside but he
did not detect anything
untoward. Appellant did not speak to Mr
Mofokeng nor did he make any enquiries from him, as the two of them
were on the same supervisory
level. He did say however, that Mr
Mofokeng had been his subordinate, then he certainly would have made
enquiry.
During the arbitration proceedings, the appellant conceded that he
knew the identity of Mr Mofokeng. However, during the internal
disciplinary hearing, the appellant denied that he knew the identity.
When confronted with conviction, appellant conceded that
he was
“
lying”
during the disciplinary hearing because he
feared some form of intimidation might otherwise take place.
When challenged during cross examination to whether he reported this
intimidation to anybody, appellant tendered the unsubstantiated
explanation that he “
was not given the chance to do so”.
In reaching his conclusions, the second respondent proceeded by way
of assessing the appellant’s overall credibility and
made an
adverse credibility finding of appellant’s testimony. He did
so, it appears against the background of appellant’s
false
denial of the alleged conversation between the appellant and
Mr Mofokeng and, further, the general approach of the
appellant’s testimony. He then concluded that appellant’s
evidence was simply ‘incredible’ and illogical
and
further that appellant desperately wanted to put as much distance
between himself and Mr Mofokeng, as he could simply, “
because
he was aware from the video tape that the latter’s culpability
was beyond the shadow of doubt”.
In this regard, second respondent had regard to the improbable
explanation tendered by appellant that he did not speak to
Mr Mofokeng
when he observed the latter at the area on
11 June 2001 because the two men were on the same level of
employment in the
second respondent’s operation.
Second respondent concluded from, all of the evidence, that he could
infer that the appellant had indeed spoken with Mofokeng and
he
rejected the appellant’s version on the basis that it was
highly unlikely that the employee would ignore Mofokeng who
is
equally responsible for the area in question, when he suspected there
was something wrong at the area. Second respondent then
proceeded to
consider whether or not the appellant was aware and in fact took part
in said illegal activities in one way or the
other. He found that
this was the case and that “
a link”
existed
between appellant “
and the people who stole and removed gold
bearing material from the prohibited area without permission”
and effectively “
that the appellant associated himself
actively with the employees who were engaged in the illegal
activities involving stealing
and/or handling of gold bearing
material”.
In reaching this conclusion, he emphasised the evasive and unreliable
quality of the appellant as a witness and he accepted the
following:
That the employee saw Mofokeng standing at the entrance of the
sump/pump area where there existed no reason for him to be there
but
failed to follow the matter up with his seniors;
That the employee looked down into the sump in circumstances which
he ought reasonably to have seen the employees therein who
had no
reason to be there;
It was clear enough in the sump for the employee to see the pipe
which he wanted to see;
That the area was small and contained only pipes.
Mr van As, who appeared on behalf of appellant, raised two essential
arguments against this approach, firstly, that the charge
had been
one of conspiracy and that accordingly the existence of an agreement
between the appellant, Mofokeng and others had never
been put in any
terms to the appellant during the hearing. Secondly, that other than
the evidence from the video, there was no
direct evidence implicating
the appellant in the events which had taken place.
To evaluate these submissions, it is important to emphasise the
approach which has now finally been settled by the Constitutional
Court in
Sidumo the Rustenburg Platinum Mine Limited
[2007] ZACC 22
; ,
2008 (2) BCLR 158
(CC),
in which the Constitutional
Court has settled the approach which courts must adopt to reviews of
this nature. I wish to emphasise
some important aspects of the
judgment, particular of Navsa AJ, who wrote a judgment in which a
number of the judges concurred.
I hesitate to say majority in that
Navsa AJ was supported by four other judges of the Court. There
is a judgment of Ngcobo J
which is supported by three other
judges of the Court. Nothing material turns on the difference of
approach of these judges insofar
as this dispute is concerned.
Navsa AJ emphasised that in determining the fairness of a
dismissal “
there is nothing in the constitutional and
statutory scheme that suggests that in determining the fairness of a
dismissal, a commissioner
must approach the matter from the
perspective of the employer. All the indications are to the contrary.
A plain reading of all
the relevant provision compels the conclusion
that the commissioner is to determine the dismissal dispute as an
impartial adjudicator”.
(para61)
In providing the arbitrator with this particular power, the question
then arises as to when can a review of such decision take
place.
Navsa AJ answers thus: “
[C]arephone (supra) held that
Section 145 of the LRA was suffused by the then constitutional
standard that the outcome of an administrative
decision should be
justifiable in relations to the reasons given for it. The better
approach is that section 145 is now suffused
by the constitutional
standard of reasonableness. That standard is the one explained in
Bato Star:
is a decision reached by the commissioner, one that a
reasonable decision maker could not reach? Applying it will give
effect not
only to the constitutional right to fair labour practices
but also to the right to the administrative action which is lawful,
reasonable
and procedurally fair” para 110. In this connection
see also the judgment of Ngcobo J at paras 242.
Navsa AJ gives content to this test as outlined by applying the
standard to the facts of
Sidumo,
the conclusion of
which is relevant to this case: “
[h]aving regard to the
reasoning of the commissioner based on the material before him, it
cannot be said that his conclusion is
one that a reasonable decision
maker could not reach. This is one of those cases where the decision
maker acting reasonably, may
reach different conclusions. The LRA has
given that decision making power to a commissioner”
para
119.
Accordingly, in applying this test to the present dispute, the
question arises as to whether the arguments raised by Mr van As,
could justify a conclusion that no reasonable decision maker could
have come to the decision arrived at by the second respondent
in this
case. If a criminal test is applied, this court might have considered
substituting its decision for that of second respondent.
But a
criminal test is not applicable: the test is, did the decision maker
act reasonably even if another reasonable decision could
also have
been made? The fact that there was no express version put to a
witness of the existence of an agreement does not on its
own subvert
the reasonable basis of the decision arrived at by the second
respondent. He came to the conclusion that the only reasonable
inference that could be drawn from the appellant standing in this
closely demarcated area with people who were bent on theft and
did so
on two separate occasions, was that he was part of that conspiracy.
That is a reasonable inference that can be drawn from
all the facts
of this case. The fact that there was no other material evidence
other than the video is a submission that needs
to be qualified.
Second respondent examined the video in the light of the evidence
that had been given by the third respondent’s
witnesses as well
as the evasive, unreliable quality of the evidence given by the
appellant. Again, in a criminal case it might
be arguable that an
overly excessive reliance upon the evidence of the accused was not
justifiable but as already stated this is
not a criminal case and, on
the basis of all the evidence, the conclusion to which the second
respondent came is justifiable upon
the evidence heard and the
analysis thereof which he undertook.
On the test applied by Navsa AJ in
Sidumo
the
decision maker in this case, second respondent, acted as would a
reasonable decision maker.
For all of these reasons, the appeal is dismissed with costs.
JAPPIE & LEEUW JJA
: Concured.
DAVIS JA
---oOo---
On behalf of the Appellant: Mr van As
On behalf of the Respondent: Not on record