National Union of Mineworkers obo 35 Employees v Grogan NO and Another (CA 2/07) [2010] ZALAC 3; (2010) 31 ILJ 1618 (LAC) ; [2010] 8 BLLR 799 (LAC) (24 February 2010)

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[2010] ZALAC 3
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National Union of Mineworkers obo 35 Employees v Grogan NO and Another (CA 2/07) [2010] ZALAC 3; (2010) 31 ILJ 1618 (LAC) ; [2010] 8 BLLR 799 (LAC) (24 February 2010)

IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT
JOHANNESBURG
APPEAL COURT CASE NO: JA 2/2007
In the matter between:
NATIONAL UNION OF
MINEWORKERS APPELLANT
Obo 35 EMPLOYEES
and
ARBITRATOR JOHN
GROGAN, N O 1
ST
RESPONDENT
DE BEERS
GEOLOGY 2
ND
RESPONDENT
_______________________________________________________
J U D G M E N T
LEEUW JA
:
Introduction:
[1] This appeal, which
comes before us with the leave of this Court, is against the judgment
granted by Murphy AJ, reported as
National
Union of Mineworkers & Others v Grogan NO & Another
[2007] 28 ILJ 1808 (LC), in which he dismissed the appellant’s
application for the review of the arbitration award granted by the
first respondent (the arbitrator) in favour of the second respondent,
which was to the effect that the dismissal of the appellant’s
members (the dismissed employees) was both substantively and
procedurally fair. The employees were dismissed by second respondent
on the 24
th
July 2002 after they had been found guilty of misconduct in internal
disciplinary hearings on various allegations of misconduct was
by
conducted.
[2] Subsequent to the
dismissal, the dismissed employees referred a dispute of unfair
dismissal to the Commission for Conciliation
Mediation and
Arbitration (“CCMA”), for conciliation. Subsequently, the
parties agreed that the dispute be determined by private
arbitration
in terms of the Arbitration Act No 42 of 1965, (the
Arbitration Act).
The
parties further agreed amongst others, that Mr. John Grogan be
the arbitrator in respect of that dispute. The terms of the
agreement
were the following:
“
2.4 The arbitrator shall have the
powers contained in section 14 of the Arbitration Act, 42 of 1965
(“
the
Arbitration Act
”).
2.5 The Respondent shall record the
proceedings by means of cassette tape recording or such other form of
electronic recording as
may be necessary.
2.6 The arbitrator shall finalise and
deliver to the parties an award in writing within 14 (fourteen) days
from the date of completion
of the arbitration proceedings or the
delivery of the parties heads of argument, whichever is the latest.
The award shall be deemed
to have been published on the date of
receipt by the parties.
2.7 The award shall be final and
binding on the parties, but shall be subject to review on the same
grounds to which parties are entitled
to review CCMA arbitration
awards in terms of the Labour Relations Act No 66 of 1995 (“the
Act”) and the Constitution of the
Republic of South Africa No 108
of 1996.”
[3] The arbitration
hearing was held and the award was issued on the 4
th
August 2003. The arbitrator held that the dismissed employees’
dismissals were both substantively and procedurally fair. The
appellant
(the union) applied to the Labour Court for the review of
the arbitration award. As already stated, the application was
dismissed
by the Labour Court, hence the appeal to this Court.
Before I can consider the appeal, it is necessary to set out the
background
to the dismissal dispute.
Background
[4] The second respondent
conducts a diamond mining business worldwide and is a division of De
Beers Consolidated Mines, Ltd Companies
(“De Beers”) and has in
its establishment a Department of Laboratory Services. This
department consists of two divisions namely,
the heavy mineral
sorting laboratories (one in Centurion and the other one in
Kimberley) and a sample treatment reduction plant unit
in Kimberley.
[5] The second respondent
provides free geological exploration support services to De Beers
globally with clients in Canada, Australia,
Africa (Angola), Guinea,
Gibbon and Zimbabwe. It conducts joint venture partnerships with
them in that they provide samples of indicator
minerals to the second
respondent’s facilities in Centurion and Kimberley for sorting and
evaluation. The process of sorting for
the presence of indicator
minerals assists in establishing the location of diamonds in certain
diamond mining areas. The second
respondent provides the same kind
of evaluation service to private companies at a fee.
[6] The employees were
all employed by the second respondent as sorters at its business in
Kimberley with the exception of
Viviene
Paulse
(Ms
Paulse) who was occupying a position of supervisor. Some of the
employees’ duties were to sort and treat mineral samples collected
from the De Beers Companies’ partners globally. The present matter
concerns mineral samples dispatched from Canada which were
first
processed at the second respondent’s reduction plant in Sudbury,
Toronto from where they were then dispatched to both the
Centurion
and Kimberley laboratories of the second respondent for processing.
[7] The samples collected
in Canada which have a standard grain size or concentrate of 0.3 mm,
are processed as follows at the Canada
reduction plant:
they are separated into
smaller portions called aliquots, which vary in weight between 1
gram and approximately 30 grams;
these concentrates are
put into small packets of transparent plastic similar to those used
by banks for holding coins;
each aliquot is tagged
with the weight indicated on each packet and is heat sealed;
the samples are then
placed in bins and transported to Kimberley.
[8] On receipt of the
aliquots at the Kimberley and the Centurion laboratories:
the samples are
captured by the data processors into the sample processing system,
which is a computer system designed for handling
samples;
each aliquot is marked
with a barcoded label, recorded into the computer and the samples
put in cardboard boxes;
the concentrate
supervisor rechecks the samples by opening the box and checking
that the aliquots are correctly screened according
to the size
fraction required as well as to check whether there is any
deterioration in the samples which could have occurred
during the
shipment of the consignment; he or she checks whether the packets
are correctly sealed and the labels properly barcoded
and attached
to the packets. The supervisor will then sign off before the
aliquots are dispatched to the laboratory for sorting;
the laboratory
supervisors collect the boxes from the holding room in the
laboratory and distribute the aliquots to the sorters
under their
control;
the sorters cut open
the plastic packets and pour the contents thereof into a beaker
using a funnel.
portions of the
contents of the beaker are then poured into a petrie dish for
examination. The examination of the samples is
done under a
microscope through which they identify five types of minerals from
which they extract
“Kimberlitic”
indicator minerals or simply indicator minerals. Kimberlitic
indicator minerals are minerals found in a rock brought to the

surface through a volcanic eruption and from which diamonds form a
constituent part. It is a rock that contains diamonds and
which
was brought to the surface through a volcanic eruption;
the indicator minerals
are removed or extracted from the samples with tweezers and placed
onto a slide. These are later checked
and classified after
analysis;
the sorted aliquots are
also checked and rechecked to ensure that indicator minerals have
not been missed during analysis;
the samples usually
contain magnetic and non-magnetic grains. The former naturally
cling together and may include indicator minerals.
The sorting
process may be conducted without the magnetic and non-magnetic
portions being separated or only after separating
the two portions.
Once the sorting has been completed and the indicator minerals
extracted, the sorter returns the remaining
sample to its original
packet, reseals it with staples and marks the packet with his or
her identity number;
sorted packets are
checked at random to determine whether indicator minerals have been
missed during sorting; and
the samples are then
stored after the process has been completed. It would be expected
when the whole process is completed, that
the samples would have
the same weight as that reflected on dispatch from Canada, less the
weight of the removed indicator minerals
and weight change brought
about by the cutting and re-sealing of the packets.
[9] There is another
procedure called acidisation and bromoforming to which, under certain
circumstances, the indicator minerals would
be subjected prior to the
sorting procedure:
Acidisation
is a process of cleaning the grains and removing the minerals that
are not wanted in the sample. This procedure does not destroy
the
sample and it would have a very low weight reduction effect to the
aliquot to the extent that it would not be necessary to
weigh the
sample before and after acidisation;
Bromoforming
is a process used for removing the lighter minerals that have not
been removed prior to any processing in order to make the sample
smaller. The process makes sorting quicker and easier by selecting
only those grains that are actually needed. The mass in
bromoformed samples will only be reduced if the composition of the
light minerals is high. The bromoformed samples are weighed
prior
to sorting at the laboratory, which weight would be recorded and
used as the final dispatch weight used for calculation.
[10] The allegations of
misconduct proffered against the appellants, related to samples
dispatched from Canada to the Kimberley laboratory
during 2001. The
charges of misconduct read as follows:
“
(i) Failure to ensure that the
standard operating procedures/instructions regarding the sorting and
recovery of heavy minerals were
properly followed by inter alia:
° not adhering to the correct sorting
procedures when handling samples with magnetic background materials
which potentially contained
indicator minerals but to, magnetic
illmenities;
° willful deliberate discarding of
part or all of the magnetic fraction of certain consignments;
° Failing to record or report any
losses of concentrate and/or spoiled samples or aliquots whether
deliberate or accidental during
2001;
° Falsely enhancing your efficiency
rate (i.e. number of grains missed) and sorting rate (i.e. grams per
hour) by discarding sample
which may have contained indicators
rendering potential losses of indicators undetectable during
subsequent checking or rechecking
phases.
(ii) Failure to implement/adhere to
standard operating procedures/instructions as alluded to above,
knowing (or when you should have
known) that this would severely
compromise the integrity of the information arising from the heavy
mineral sorting and recovery processes
and the data capture thereof;
on which the Company and its partners place great reliance to make
important and costly decisions regarding
future prospecting and
exploration activities.
Intentional failure to
implement/adhere to the standard procedures/instructions knowing (or
when you should have known) that this
would unfairly advantage you
in respect of performance and increases and bonuses.”
[11] The second
respondent’s case was based on the evidence of Mr Rowan Carr, Dr
Jack Robey, Miss Victoria Ziegler, Miss Pamela
Ellemers and Mr
Stewart Brown:
11.1
Mr
Rowan Carr
(Mr
Carr) who is in the employ of the second respondent as the Head of
the Laboratory Services Department, conducted a preliminary
investigation into the irregularities after having received
information from Ms Barbara Van der Westhuizen that a considerable
amount
of grain was being discarded by the sorters at the Kimberley
laboratory. Ms Barbara Van Der Westhuizen had previously been
employed
at the Centurion laboratory. In his preliminary
investigation, Mr Carr noted that certain consignments from Canada,
which weighed
0.3 grams had recorded very high sorting rates of 21
grams an hour for the entire consignment whereas one would normally
have expected
a recording of between 5 – 11 grams per hour.
11.2 He subsequently
reviewed seven boxes relating to the suspect consignment from the
storage department, rechecked and retested
them by applying the
prescribed scientific method and repeated the same procedure about
twelve times. He realized that there were
significant losses of
about 80% of the original sample which could not be accounted for.
The actual content of the concentrate sample
in a packet, though
recorded to be high in grams on the packet, was in actual fact lower
in grams inside the packet. The irregularities
were discovered in
samples sorted by employees whose identity codes appeared repeatedly
in respect of most irregular consignments.
The losses of grains in
the packages were discovered in some cases after repeated checking of
the packages.
11.3 Mr Carr consequently
commissioned
Dr
Jack Robey
(Dr
Robey), the company’s internal auditor, to investigate the
irregularities further. Mr Carr further testified that he requested
Dr Robey to speed up his investigation because the irregularities
were at an alarming scale and the result of the audit would have
an
effect on the employees’ annual bonuses.
[12]
Dr
Jack Robey
(Dr Robey), who is a Research Geologist involved in research
activities, auditing jobs and training of staff of the second
respondent
and who also specialised in Kimberlitic and mountain rocks
from which the Kimberlitic grains are derived, testified that:
12.1 he received a
memorandum from Mr Carr requesting him to firstly investigate the
irregularities he had discovered regarding the
weight loss of the
samples, secondly, to identify the cause thereof or how the loss of
the weight of the samples in the packets occurred
and, thirdly, and
if possible, to identify the persons involved in the irregular
practice of discarding sample;
12.2 he, Dr Robey
together with Mr Wawik Nordin, who is a geologist specialist in
computer activities and other geologists at the
Kimberley laboratory,
were given a list of consignments which they were requested to audit.
30% of the 0,3 fraction of the samples
were from Canada. These
samples were received in the year 2000 at the Kimberley and Centurion
laboratories and were contained in
boxes, with the identification
marks thereon. The Canadian samples were in small size packets
inside the boxes which also had identification
marks or numbers;
12.3 these aliquots were
indicated in the size fraction of the grains involved and they ranged
between 0,3 to 0,5 millimetres (the
0,3 samples);
12.4 Mr Wawik Nordin and
his team were also in possession of the data that was available at
the Kimberley laboratories in relation
to those samples. Some of the
samples had stickers indicating that they were checked and rechecked
and others did not;
12.5 in his investigation
he applied tests of a technical nature in accordance with the skills
acquired and his scientific knowledge;
he tested the calibration of
the scales used during the audit so as to establish whether they were
in sync with those used by the
different ventures, including Canada,
in testing the samples; he came to the conclusion that his scales
were operating correctly,
and that the weight losses in the samples
could not be attributed to an aberrant scale;
12.6 Mr Wawik Nordin and
his team then tested the samples in order to establish whether there
was a possibility of magnetic fractions
remaining in the samples.
Magnetic
fraction means that
the
grains or samples that have been submitted to the laboratory for
sorting would in certain cases be found to be significantly magnetic
in that there would be a complete spread of magnetic minerals
contained in them. The presence of magnetic fraction in a sample
would
be detected by using a magnetic plunger which they dragged
through the sample whilst taking out the magnetic grains and
transferring
them into a beaker. The magnetic fraction weight and
the percentage of the material left in the packet as well as the
weight of
the non-magnetic fraction, which total calculation would
add up to 100%, were recorded in a separate sheet. The investigation
revealed
that there was a considerable amount of grain lost in the
samples from the Kimberley laboratory which loss could have been
occasioned
by either spillage or deliberate discard of the
concentrate caused by selective magnetic removal, in other words, the
magnetic grains
were not returned to the packets after the final
analysis or sorting of the aliquots. The investigating team tested a
higher number
of samples from the Kimberley laboratory than those
from Centurion;
12.7 Mr Wawik Nordin
tested approximately 3000 samples and of those samples whose weights
were reduced, on the packet of one sample
it was written that it had
a spilt; there were also about less than five smaller packets
containing magnetic fraction in the larger
packets of the aliquot;
12.8 further, the amount
of grain which was generally left in the box when they took out the
material out of the box (the handling
loss) was relatively
insignificant; it was a total of 0,005 grams when compared to the
original sample weight. In the samples which
were above the median
of 2% the general loss of weight ranged between 30% to 80% which was
abnormally high; he, however, stated that,
as a geologist, a loss of
above 1% would call for concern;
12.9 with regard to the
identity of the sorters who were responsible for the irregular weight
loss in the aliquots, the samples had
the identification code (and
not names) of each sorter. They only outlined samples and aliquots
that had a loss greater than 2%.
In order to apportion blame, they
concentrated on all the samples that were first sorted and prepared a
data sheet of the sorters
involved from every laboratory and passed
them on to the laboratory manager to deal with the matter further.
[13]
Ms
Victoria Ziegler
(Ms
Ziegler) who was employed at the second respondent’s Sample
Treatment Centre, (STC) as a section head during the period 2000
and
August 2001, testified that:
13.1 during the period
2000 and 2001 she never received reports about spillage of
concentrate of the Canadian samples. She said that
she used to
receive a report from Martha Duschovny who was the head of the
sorting section at the Kimberley laboratory. She further
stated that
samples treated from Canada were of a high standard because their
samples were properly cleaned;
13.1 she also explained
that prior to the sorting procedure, the aliquots would be sent back
to the laboratory for acidisation and
bromoforming. Canadian samples
were never bromoformed or acidised because the Canadian environment
is a glacial one and that explained
the clean nature of their grains.
She further stated that she would have known about bromoformed or
acidised samples from Canada
had she been informed about them.
[14]
Ms
Pamela Ellemers
(Ellemers),
who is a geologist with a Bachelor of Science degree in Geology and
Bachelor of Arts in Geography from Canada, testified
that;
14.1 she worked for De
Beers in Canada and she was part of the team that collected samples
in certain locations in Canada and took
them to De Beers laboratory
in Canada for processing; she was involved in collecting samples from
the field and geological mapping
for more than 8 years and was
thereafter appointed as a laboratory supervisor for the De Beers
Mineralogical Unit in Canada during
1998; she was not directly
involved with the sample treatment laboratory, but did examine
samples using the same process as that
applied at the Kimberley
laboratory;
14.2 she came to South
Africa in October 2001 and was appointed as a manager at the
laboratories in Centurion and later Kimberley;
she stated that she
raised concerns about the very high rate at which samples were
examined or sorted at the Kimberley laboratory;
14.3 according to her, in
Canada, the 0,3 gram sample would generally be examined at a maximum
of 7 or 8 grams per hour whereas at
the Kimberley laboratory, the
rate was at an average rate of 25 grams per hour which is 0,3 – 20
grams per hour for the 0,3 gram
which rate was too quick and
impossible;
14.4 the problem with a
quick sorting rate is that the concentrate contains millions of
grains and it is difficult to find the indicator
grain because
“looking for a needle in a haystack” requires careful and
thorough sorting as the indicator grains are very elusive;
14.5 they introduced the
“I50 170/25 2000 standard,” which is a quality management system,
specifically designed for testing laboratories;
through this process,
documenting and using data could be shown to clients and regulatory
bodies that they had a competent facility
which would enable them to
have the test results re-examined; this process also indicated
consistency in the way they tabulated their
data and the procedure
applied in processing samples;
14.6 intensive workshops
were held in Kimberley and Centurion during 1993 and all the sorters
participated in the workshops; they
were thoroughly trained on how to
analyse and treat the samples, (sorting in general) and how to avoid
spillage of grain in the sample;
when a packet arrived at their
laboratory from the STC and it had a much less weight than the weight
reflected on the label, the
sorters were required to report or notify
the supervisor thereof;
14.7 in addition to the
procedures that were discussed by the sorters at the workshop, there
was in 2001 a procedural manual which
was in the possession of the
supervisors and a copy thereof was kept in the sorting room next to
the scanning computer; this procedure
manual contained the same
procedures that were applied from 1993;
14.8 in December 2001
they received a consignment of samples from Canada which were
magnetic; she went to every room of the sorters
and alerted them
thereof and even requested them to be more cautious during the
sorting process; the impression created when she
supervised the
sorted samples was that not all sorters adequately followed the
procedure prescribed for sorting; she decided to remove
the magnetic
plunger and ordered the sorters to redo the consignments; she
explained that one of the possible reasons for discarding
the
magnetic grains was that during the separation of the magnetic from
the non-magnetic grains, “paramagnetic illmenites” were
put in
the magnetic portion; some examiners would usually not recover the
non-magnetic grains; she asserted that sorters were instructed
not to
throw away samples or portions thereof;
14.9 that the supervisor,
Mr Paulse was not actively involved in the sorting of samples. She,
however, ought to have identified the
problem in relation to the
discarding of sample by the sorters and should have taken appropriate
action to curb the loss. She further
stated that Ms Paulse worked in
the same room with the sorters, and was supposed to have supervised
the actual examination of the
concentrates and that with her
experience, she could have realised that when a 30 gram sample only
weighed 10 grams, it signified
that there was a problem with the
sorting and should have reported it.
[15]
Mr
Stewart Brown
(Mr
Brown), who was the general manager at the second respondent,
testified that he was given a full report by Mr Carr about the
irregularities
in the laboratory. He was part of the team that
decided to instruct Dr Robey to conduct an audit. As a result of the
findings of
the audit committee, he decided to hold a disciplinary
inquiry against the appellants. Mr Brown further testified that:
15.1 an independent
chairperson, Mr Barclay, who had no connection whatsoever with the
second respondent, save for the fact that he
worked at the IR
Department at the Premier Mine, which is a subsidiary of De Beers,
was appointed to preside over the disciplinary
hearings of the
employees;
15.2 Mr Barclay was not
subjected to any kind of interference or intimidation by him as a
senior, (as was suggested by Counsel for
the appellant during
cross-examination) and had no authority whatsoever over Mr Barclay as
their entities operated independent of
each other; he testified that
the disciplinary hearing was procedurally fair;
15.3 the irregularities
discovered in the sorted of samples had far reaching negative
financial consequences on the second respondent’s
image and
business as well as their entire clientele and partners globally.
The second respondent’s reputation as a specialist
in its business
was in jeopardy.
The appellant’s
version
[16] The appellant’s
case was based on the evidence of the following witnesses:
16.1
Ms
Washiela Kariem
(Ms
Kariem), who testified on her behalf and all the other employees in
this matter, stated that: (a) she received training for a
month on
“spiking” samples (which means sorting out samples); (b) she saw
the document on procedures for grain picking for the
first time at
the disciplinary hearing; (c) Ms Ellemers did conduct workshops but
could not shed more light about them because she
had not attended any
of the workshops;
16.2 Ms Kariem could not
say how the samples, which were contained in boxes, were transported
from other countries outside South Africa
to the Kimberley
laboratory;
16.3 with regard to
sorting the samples, Ms Kariem stated that a probe was used for
sorting and tweezers used for picking the grains.
In addition to all
other utensils used for sorting the grains, they used a magnetic
plunger for separating the magnetic portion
from the non-magnetic
ones;
16.4 the use of the
plunger was discontinued in December 2001 when Zenobia Fredericks,
who was a mineral classifier, approached her
and Ross Bartis with a
green slide. The green slide was used by the supervisor for detecting
those grains which the sorter failed
to pick up during sorting. The
mineral classifier, who is in a supervisory position, would then
classify those grains into Kimberlitic
or non-Kimberlitic grains and
if Kimberlitic grains were discovered in the sample, they counted
against the sorter for the end of
the year merit appraisal, that is
if the sorter admitted that he or she had made a mistake;
16.5 she further stated
that she and Ross Bartis, when they were confronted with the missed
grains detected through the green slide,
approached Pam Ellemers and
expressed their dissatisfaction with the fact that the grains were
classified as Kimberlitic when in
actual fact they were magnetic.
She was not happy with the classification because they were taught
that magnetic “illmenites”
or grains were always non-Kimberlitic;
16.6 Ms Ellemers told the
staff to discontinue using the magnetic plungers, and explained that
samples containing magnetic “illmenites”
or grains were from a
certain area in Canada, which grains were highly magnetic. The
sorters were made to redo about 20 consignments
which process took
them almost three months to complete. They were this time only using
a probe which was a non-magnetic instrument,
for sorting and removing
the magnetic illmenites from the samples. All those samples were from
Canada;
16.7 they experienced
problems with the Canada samples in that the condition of the plastic
containing the samples was of inferior
quality; it caused the samples
to leak and the packets were not properly sealed. The sorting staff
had reported this to supervisors
and the managers but nothing was
done about their complaints;
16.8 the weight of the
sample was usually reduced into half its original weight when it was
re-weighed, especially when the grains
were coated and dirty, as was
always the position with samples from Canada. The rewashing and the
acidisation were done at the Sample
Treatment Centre laboratory;
16.9 spillage of the
grains was also caused by the fact that the sample was overfilled in
the packet from Canada and when they opened
it, the grains would be
spilled especially in view of the fact that the plastic had some
holes; those grains that were split on a
clean surface (like on the
table) would be recovered and put back in plastic; she also stated
that spillage could also occur accidentally
and, when it did happen a
sticker would be put on the sample and a report made to the
supervisor;
16.10 Martha Duschovny
and one Frieda, who were supervisors, came to their laboratory in
1999 and conducted an investigation for
three months. They inspected
the sorters’ personal bins looking for discarded magnetic grains
but did not find anything;
16.11 Barbara van der
Westhuizen came to the Kimberley laboratory in April 2001 and was
there until October 2001, when she was transferred
to the Kimberley
Laboratory; prior to the audit, she had “swapped” grains which
were discovered through the green slide to be
Kimberlitic; she (Ms
Kariem) complained to Mr Carr about what Barbara van der Westhuizen
did and she cautioned that, if Barbara van
der Westhuizen were to be
allowed to do that, then everyone else ought to be allowed to do
likewise. Since that incident, Barbara
van der Westhuizen accused
her and other sorters, including Ms Kariem, of being biased against
her and she accused them of having
a negative attitude towards her.
Barbara van der Westhuizen did not confront her directly about this
but she asserted that she,
Barbara Van der Westhuizen, could not be
trusted because of her “dishonest” conduct of “swapping”
grains on a green slide;
16.12 that she had not
discarded any grains and that it would not be possible for other
sorters working with her in the same room
to notice any grains being
discarded because of the sitting arrangement at the laboratory;
16.13 the audit results
were not correct and said that they could not be relied upon because
the employees (sorters) did not participate
in the tests conducted
for audit purpose; she also stated that the weight reflected on the
samples from Canada was incorrect and
unreliable;
16.14 that the
supervisors put the samples on the table when they were brought to
the sorting laboratory and the grains or concentrate
usually spilled
on the table and those grains would not be identified to a particular
or specific sample; the surface would then
be wiped clean and those
grains would be discarded; she never told Mr Carr about the leakages
because it was the responsibility of
the management to report these
incidents.
[17]
Shareen
Kader
(Ms Kader) testified that:
17.1 she started working
for the second respondent in February 1989 as a trainee sorter and
was permanently employed as a sorter three
months thereafter. At the
time of her dismissal, she occupied a position of sorting supervisor
at the Kimberley laboratory;
17.2 she was taken to
Canada in 1997 with six (6) other ladies and they were working in the
sample processing section. She realized
that the plastic used by
Canada for packaging was of lower quality and that, after heat
sealing, there would be holes in the packets
which caused the grains
to leak;
17.3 when the samples
were brought to the Kimberley laboratory, they had to transfer the
sample into their plastic packets which were
durable and were
available at the Kimberley laboratory; it was usually during the
sorting that some grains would be spilled because
of the poor
packaging;
17.4 that it did happen
that grains would be spilled to the floor and that those would not be
retrieved because they would be contaminated,
but this had to be
reported to the supervisor;
17.5 she did attend the
workshops which were organized by the second respondent; the sealing
of packets and the problems of leaking
packets were discussed but
there were no discussions on the magnetic illmenites; they did not
receive any report back from the management
about the concerns
raised;
17.6 with regard to the
audit conducted by Dr Robey, she was also subjected to the
interrogation during the investigations conducted
at the instance of
the second respondent. She was made to sign a document or
questionnaire that she had completed. She intimated
that the
interrogation procedure was unfair as they were not properly informed
about its purpose.
[18]
Heidi
Holthousen
(
Ms Holthousen)
testified
that:
18.1 she started working
at the second respondent in 1997 as a sorter. She underwent training
for a year or more on how to sort samples
and on how to identify the
different kinds of minerals contained in the samples. She was trained
with 20 other sorters by Mercia
Delport;
18.2 her training
entailed identification of different kinds of grains, Illmenites,
spines, garnets and chromes. She received training
on how to open the
packet containing the sample, how to take it out from the packet, how
to do the sorting and thereafter take it
back into the packet and
capture the information in the computer. They were given tests in
order to assist them in grasping more
knowledge on how to identify
the minerals;
18.3 they were not
trained on magnetic grains save for stating that the magnetic grains
can never be Kimberlitic. She used a magnetic
plunger to separate
the magnetic grains from the non-magnetic ones, and thereafter put
them back into the packet;
18.4 the magnetic grains
were usually minimal (less than 10 grams) and she used to throw them
away. She first placed them on the petree
dish for sorting and
whenever there were magnetic grains in the concentrate, she would
throw them away; but, if she found a substantial
amount of magnetic
grains in a sample, she would put all the concentrate back into the
packet for the checkers to sort as they were
more experienced than
the sorters;
18.5 the supervisor was
not aware of the fact that she was throwing magnetic grains away;
she threw magnetic grains away as she was
sure about the fact that
the magnetic grains were less than 10 grams, and that kimberlitic
grains would not be found therein; she
intimated that she was taught
that kimberlitic grains were worthless and she was never told that
she could not throw them away.(“….ek
is geleer Kimberlitic is
absoluut niks werd nie en niemand het ooit vir my gese ek mag dit nie
weggooi”);
18.6 the Canada packaging
was not of good quality which resulted in the concentrate or grains
being spilled;
18.7 even during the time
when they were working with Ms Ziegler, they did receive torn packets
from Canada and had to replace them
with their packets in Kimberley
and they kept tubes in their rooms, in order to reseal the packets;
18.8 the concentrate
itself was very soiled and was given to the supervisor to have it
cleaned. The cleaning process had the effect
of reducing the weight
of the sample. The soiled sample could only be detected through a
microscope and not through the naked eye;
18.9 with regard to the
interviews or interrogations conducted by Mr Lemmer during the second
respondent’s investigations on the
discarded concentrate, she
expressed her dissatisfaction with the manner in which they were
conducted. According to her, they were
harassed and intimidated by
the second respondent. They were not informed of the purpose of the
interrogation and were coerced to
disclose names of people who
allegedly deliberately discarded grains from the samples. She only
came to know about the purpose of
the interrogations when she was
served with a notice to appear at a disciplinary hearing for
misconduct;
18.10 the interrogations
took place on three different occasions. When she signed the
questionnaire which she had completed, she
was not aware of the fact
that it was a sworn declaration;
18.11 some of the
responses to the questionnaire did not correctly reflect what she had
said, but she admitted that in one of her
responses she had stated
that the magnetic grains were important and that it was a normal
practice at work to throw away or discard
the magnetic grains because
the other sorters also discarded sample, and secondly that discarding
magnetic samples made checking
easier. She later changed her version
and said that the magnetic plunger was used by all the sorters and
that she mistakenly believed
that they were throwing the magnetic
grains away and that is why she had also discarded the magnetic
grains. She went further to
say that what they were actually
discarding were staples and mica removed from the packets;
18.12 Rashida Suleiman,
a sorter who was not charged with misconduct, had, on one occasion,
discarded the magnetic grains into a
bin; she said that she had seen
her do it because she was working next to her at the table; she had
also made enquiries from Ursula
Weyers about discarding grains and
the latter had confirmed that she (i.e. Holthouzen) could do it
because the magnetic grains were
worthless; she explained that she
had stated in the questionnaire that she was not aware of any
irregularities because she did not
know that it was wrong to throw
away magnetic grains; she said that she only discovered at a later
stage that the use of the magnetic
plunger was discontinued during
December 2001 when she was on leave;
18.13 Ms Mercier Delport
never trained her to separate the magnetic grains from non-magnetic
ones; she said that she learnt it from
her co-workers and just did
like wise; she stated that she used a magnetic tweezer to sort out
the grains, which tweezer she used
with one Emma.
[19]
Vivienne
Paulse
(Ms Paulse) testified that:
19.1 she started working
at second respondent in May 1975 as a sorter; she received two months
training at the laboratory; at the
time of her dismissal, she was a
sorting supervisor; she was appointed to this position in 1991. She
trained sorters and was not
confined to one room when supervising the
sorters;
19.2 with regard to the
plastic containing the Canada concentrate, it was very soft and not
durable and thus caused leakage of the
samples; the packets were also
too small, and this caused the sorters to turn the plastic twice
around at the top and this also resulted
in the loss of sample. The
packets were sometimes not properly heat-sealed;
19.3 60% of grains leaked
into the boxes containing the samples which she received from the
dispatch room. The sorters would also
bring the leaking packets to
her attention. According to her, the spillages were minuscule.
Arbitration
[20] The arbitrator dealt
fully with the evidence presented by the parties and the issues
raised by them in argument and came to the
conclusion that the
dismissal of the employees’ was appropriate and reasonable in the
circumstances of this case and consequently
held that the employees
dismissals were both substantively and procedurally fair. I will
deal fully with his analysis of the evidence
and the reasons for his
findings at a later stage in this judgment.
Labour Court
[21] The appellant took
the decision of the arbitrator on review in the Labour Court which
was said to be in terms of
“
section
145
of the
Labour Relations Act, No. 66 of 1995
, read with section 23
(1) and 33 (1) of the Constitution of the Republic of South Africa,
1996”.
[22] The grounds of
review, as stated in the founding affidavit of Phillip Tlali, a shop
steward of the appellant (the union), were
as follows:
22.1 the arbitrator
granted an arbitration award which “was not constitutionally
justifiable/reasonable in relation to the evidential
material before
him”;
22.2 the arbitrator
committed gross irregularities during the proceedings in that:
22.2.1 he erred in
accepting the results of the audit as being accurate and reliable as
well as treating Dr Robey’s evidence as
that of an expert witness,
despite the fact that it was hearsay in view of the fact that he was
not physically present, in certain
instances when the audit was
conducted;
22.2.2 he erred in
accepting the Canadian weight of the Canada samples which were
indicated on the packages as accurate, even though
Shereen Kader had
testified that the Canadian sample process was unreliable;
22.2.3 he made a finding
that the employees deliberately discarded sample and failed to take
into account or give due weight to the
fact that a significant amount
of spillage or leakage of the sample occurred during the
transportation of the sample from Canada
as well as during the
sorting process at the Kimberley laboratory;
22.2.4 he erroneously
found that the sorters failed to report the spillage or leakage of
the sample which occurred during the transportation
from Canada to
Kimberley laboratory to their supervisors and erroneously held that
Viviene Paulse failed to properly perform her
duties as supervisor;
22.2.5 he accepted the
evidence of the second respondent’s witnesses as being reliable
even though they had contradicted themselves;
22.2.6 he erred in
finding that there was a standard rule which allowed employees who
had lost less than 2 grams of sample not to
be disciplined and
overlooked the fact that the second respondent arbitrarily decided to
apply this rule only after the audit was
completed;
22.2.7 he made a finding
that the relationship between the employees and the second respondent
had irretrievably broken down whereas
such breach of trust in
relationship could not be found in respect of those employees who
were still employed and had lost less than
2 grams of sample during
sorting;
Judgment of the Labour
Court and its reasons
[23] The Labour Court
dismissed the application for review and gave the following reasons
in its analysis of the issues:
23.1 that there is a
distinction between the standard to be applied on review in relation
to private arbitration awards as against
the test applied in reviews
based on Section 145 of Labour Relations Act No 66 of 1995 (LRA)
which the Court stated, was
“Whether
there is rational objective basis justifying the connection made by
the decision maker between the material properly available
to him and
the conclusion he or she eventually arrived at,
Carephone
(Pty) v Marcus NO
(1998)
19 ILJ 1625 (LAC)”;
The
Court further stated that the grounds of review referred to in
paragraphs 22.2.2 and 22.2.3 above were grounds of appeal and not
of
review;
23.2 with regard to the
Court’s powers of review as prescribed in the LRA and the
Arbitration Act, the
Court stated: “
The
rationality review requirement in relation to CCMA arbitration awards
arises by virtue of such arbitration being compulsory.
The
arbitration award in this case, though, is not one to which the
parties have been compelled. They agreed to the process. The
difficulty though is that the arbitration agreement sought to bestow
on the Labour Court a rationality review standard. The powers
of the
Labour Court are established and circumscribed by statute and no
party in litigation can confer additional powers on the court
or add,
vary or amend the power given to the court by legislation…..I am of
the view that I am limited to reviewing the arbitrator’s
award in
accordance with the provisions of
section 33
of the
Arbitration Act.
Therefore
the question to be asked and answered is whether in
reaching his conclusion that the dismissals were substantively fair,
the arbitrator
committed misconduct or was guilty of
gross-irregularity in the conduct of the arbitration
”;
23.3 the Court went
further to analyse the evidence presented at the arbitration
proceedings and the findings made by the arbitrator
and concluded
that the
“rationality
review standard”
was not applicable in this review;
23.4 with regard to the
audit conducted by Dr Robey regarding the loss of samples, the Court
held that Dr Robey’s audit findings
were not seriously challenged
during the arbitration proceedings because the appellant’s defence
mainly sought to explain how the
spillage occurred whilst denying
responsibility, but did not dispute the fact that there was in fact
loss of sample or concentrate;
23.5 regarding the
leakage of the packets from Canada, in which the arbitrator made a
finding that the evidence of the appellant’s
witnesses in that
regard was unsatisfactory, as well as his finding on the quantity of
the spillage of the concentrate, and the employees’
failure to
report same to the supervisors, the Court decided that the
arbitrator’s conclusions and his reasons were unassailable.
The
Court consequently dismissed the application with costs.
The Appeal
[24] The appellant
approached this Court on appeal on the same grounds relied upon in
the Labour Court
.
In
addition,
the
appellant contended that the Labour Court erred by:
(1) holding that the
justifiability/reasonableness/rationality test pertaining to CCMA
arbitration awards did not apply to the arbitration
award in this
case, which is a voluntary as opposed to a compulsory arbitration;
(2) concluding that the
arbitration agreement merely specified the terms of reference of the
arbitrator but that it was not within
the powers of the parties to
confer jurisdiction on the Labour Court by giving the Labour Court a
ground of review which it otherwise
does not have in terms of the
statute.
Submissions:
[25] Counsel for the
appellant argued that the fact that the arbitration was held in terms
of the
Arbitration Act did
not mean that the test which required
“reasonableness”
or
“justifiability”
did not apply to the review under consideration.
[26] He further submitted
that the Court
a quo
erred and misdirected itself in confining itself to the grounds of
review stipulated in
section 33
of the
Arbitration Act and
nothing
further despite the fact that:
(a) Section 23 (1) of the
Constitution provides that:
“(1)
Every one has a right to fair labour practices”
;
(b) Section 157 (3) of
the LRA, grants exclusive jurisdiction to the Labour Court “in
respect of all matters that elsewhere in terms
of this Act or in
terms of any other law are to be determined by the Labour Court,”
which provision, so continued the submission,
has the effect of
ousting the jurisdiction of the Civil Courts from reviewing labour
related arbitration awards, even though such
arbitrations were
conducted in terms of the
Arbitration Act, and
that where the Labour
Court performs its review jurisdiction in terms of
section 157
(3),
it does so either directly on the basis of
section 145
of the LRA or
indirectly in terms of
section 33
of the
Arbitration Act;
(c
) since the wording of
the provisions relating to the grounds of review in
section 33
of the
Arbitration Act and
those in
section 145
of the LRA were similar,
there was no “acceptable rationale for dealing with labour reviews
in terms of the
Arbitration Act on
a more exacting basis than LRA
reviews;” that reasonableness was the test to be applied in such
reviews;
(d) by agreeing that the
resultant arbitration award could be reviewed on the grounds set out
in
section 145
of the LRA, the parties incorporated those grounds of
review into their arbitration agreement.
[27] Mr Redding, for the
respondent, argued that arbitration awards issued pursuant to private
arbitrations in cases of labour disputes
may only be reviewed by the
Labour Court in the exercise of its powers and grounds laid down in
section 33
of the
Arbitration Act.
>
[28] Mr Redding further
submitted that, if parties, as in this case, were to be allowed to
incorporate in their agreement what the
grounds of review should be,
it would amount to a dictation to the reviewing court (the Labour
Court) to exercise powers of review
not granted to it by statute,
especially because, on Mr Redding’s submission, the Labour Court
has no common law powers of review.
He referred to
Telcordia
Technologies Inc v Telkom SA Limited
2007 (3)
SA 266 at 292 A-C, where Harms JA (as he then was) held that parties
“… by agreeing to arbitration …. (they) limit
interference by
the courts to the ground of procedural irregularities set out in s 33
(1) of the Act. By necessary implication
they waive the right to
rely on any further ground of review, “Common Law” or otherwise.
If they wish to extend the grounds,
they may do so by agreement but
then they have to agree on an appeal panel because they cannot by
agreement impose jurisdiction on
the court.
”
Mr Redding further
submitted that it is trite law that the interpretation of
section 33
of the
Arbitration Act remains
unaffected by section 33 (1) of the
Constitution. In support of this he referred to
Total
Support Management (Pty)Ltd v Diversified Health System (SA) (Pty)
Ltd and Another
[2002] ZASCA 14
;
2002
(4) SA 661
(SCA) at 674 A. Section 31 (1) provides that:
“
Persons belonging to a cultural,
religious or linguistic community may not be denied the right, with
other members of that community
–
to enjoy their culture, practise
their religion and use their language; and
to form, join and maintain cultural,
religious and linguistic associations and other organs of civil
society.”
[29] He submitted that
the appellant, confined itself to the ground that the arbitrator
committed gross irregularities and that this
should be the only issue
to be argued in this Court.
[30] Mr Redding, however,
submitted that in the present matter regardless of which standard of
review was applied, the result would
be the same on appeal, namely
that the arbitration award is not susceptible to review.
Consideration of the
appeal
[31] The issues which
arose before us were:
(a) firstly, whether the
grounds of review applicable to CCMA arbitration awards under section
145 of the LRA applied to this case
or whether it was only the
grounds of review set out in section 33 of the Arbitration Act that
applied.
(b) secondly, whether it
can be said that, based on the material presented before the
arbitrator, his “conclusion was one that a
reasonable
decision-maker could not reach”. (See in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2008 (2)
SA 24
(CC) at 61 par [119]
.)
Is it the grounds
of review contained in sec 33 of the Private
Arbitration Act or
those
contained in
sec 145
of the LRA which apply in this case?
[32] As indicated above,
the parties differ on whether it is the grounds of review set out in
sec 33
of the
Arbitration Act or
those set out in
sec 145
of the LRA
which apply in this case. This issue arises simply because in their
arbitration agreement the parties included a provision
to the effect
that the resultant arbitration award could be reviewed under
sec 145
of the LRA which is a section of the LRA applicable to CCMA
arbitration awards. The grounds of review set out in
sec 145
of the
LRA are the same as the grounds of review set in
sec 33
of the
Arbitration Act. The
only difference is that there are Court
decisions which have interpreted some of the grounds of review set
out in
sec 145
of the LRA to include certain grounds of review taken
from the Constitution whereas, as far as I know, there is no decision
of any
court which has interpreted
sec 33
of the
Arbitration Act to
include any grounds of review that are not explicitly expressed in
sec 33
of the
Arbitration Act. Of course
, I am, in this regard,
referring to the grounds of review of unjustifiability of CCMA awards
articulated by this Court in
Carephone
(Pty) v Marcus NO
supra
of the irrationality of CCMA awards as articulated by the Court in
Shoprite Checkers (PTY) Limited v
Ramdaw NO
[2001] 22 ILJ 1603 (LAC) as well as that of the unreasonableness of
CCMA awards imputed to
sec 145
of the LRA by the Constitutional Court
in
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
supra
.
[33] I am inclined to
agree with Counsel for the first respondent that, on the facts of
this case, it would not matter whether one
used the standard of
review applicable to CCMA awards as stipulated in
sec 145
of the LRA
or one used the standard of review contained in
sec 33
of the
Arbitration Act as
the result would be the same. However, in so far
as it may be necessary to decide the issue, I am of the view that the
respondent’s
Counsel is correct that, since this is a review of a
private arbitration award, it can only be reviewed on the grounds set
out in
sec 33
of the
Arbitration Act and
not in terms of the grounds
set out in
sec 145
of the LRA as extended by the judgments of this
Court in Carephone and Shoprite Checkers and by the judgment of the
Constitutional
Court in Sidumo. In my view, while parties to a
dispute are able to give an arbitrator powers which he otherwise does
not have in
resolving their dispute, they cannot do the same with
regard to a court such as the Labour Court which has statutory power
to review
arbitration award issued by such arbitrator. Parties to a
dispute such as the parties in this case cannot confer on the Labour
Court
powers to review a private arbitrator’s award on grounds
which it otherwise has no power to rely upon to review such an award.
It would be different if there was a provision of the LRA which
conferred upon the Labour Court the power to review such an award
on
any grounds upon which the parties to a dispute may agree. That is
not the case here. Accordingly, I hold that the grounds of
review
applicable in this case are only those grounds set out in
sec 33
of
the
Arbitration Act on
which the appellant has relied in its papers.
In this regard the appellant relied upon gross irregularity.
[34] It is appropriate at
this stage to deal with the merits and the challenge of the
arbitrator’s award on review with reference
to the reasons provided
by the arbitrator.
34.1 The arbitrator held
that, when one has regard to the method applied by Dr Robey in
collecting data and the interviews conducted
as well as the
questionnaires completed by the employees during the investigation,
the results of the audit conducted by him concerning
the loss of
concentrate at the Kimberley laboratory were reliable;
34.2 The arbitrator
further found, with regard to the electronic scale used in weighing
the samples during the audit, that Dr Robey
had satisfied himself
that the calibre of the scale used for the audit was synchronous with
that used at the Canadian laboratory.
He further stated that the
only basis on which it could be said that there was a weight loss of
the concentrate from Canada could
either be occasioned by the Canada
laboratory having recorded an incorrect weight or that the aliquots
were incorrectly weighed in
Canada. This would however not enhance
the appellant’s case since most of the weights recorded by the
audit at the Kimberley and
Centurion laboratories correlated with the
weights recorded in Canada;
34.3 Dr Robey’s
concession that some samples from Canada had increased in weight,
which gain in weight was inexplicable, would also
not affect the
reliability of the audit, because the tables in which the percentage
losses or gains of the various sorters’ samples
were recorded, were
below 1%;
34.4 With regard to the
possibility of the loss of concentrate being caused by the poor
packaging of the plastic prior to the handing
over of the aliquots to
the sorting laboratory, the arbitrator found the evidence of Ms
Ziegler more probable and accepted her version
that there was no
significant spillage of concentrate when the consignment was
delivered from Canada during 2001;
34.5 The arbitrator
rejected the appellant’s assertions regarding the loss of sample
which, according to the dismissed employees,
was due to poor
packaging of the Canada consignment. He made a finding that the
dismissed employees contradicted themselves with
regard to the
quality of the Canada plastic containing the samples as well as the
volume of concentrate lost;
34.6 He treated the
appellant’s evidence with caution because, appellant did not
present any convincing evidence to prove that the
spillage was
reported to the supervisors or the sorters’ line management. He
found that both Ms Ziegler and Ms Ellemers corroborated
each other
with regard to the fact that the Canada plastics were of good quality
and further that the evidence of Ms Ellemers, which
remained
unchallenged, was that a single consignment from Canada which was
found to have had a leakage during 2002, was immediately
reported to
the Toronto STC. He further found that Ms Paulse, who was a
supervisor, did not confirm receiving the report of leakage
or
spillage on a regular basis from the sorters. He decided that there
was no significant spillage of the concentrate;
34.7 The arbitrator
stated that although it was admitted by Ms Ziegler and Dr Robey that
loss of weight of sample would usually occur
during bromoforming,
they nevertheless stated that the aliquots would be re-weighed and
the weight recorded at the laboratory, which
evidence was not
challenged by the appellant. He accepted Dr Robey’s evidence that
concentrate which was detected in the boxes
was minimal. He took the
view that the appellant had the opportunity of calling its own expert
to gainsay Dr Robey’s audit. He
concluded that the loss of
concentrate occurred in the laboratory sorting rooms when the samples
were in the possession of the sorters;
34.8 He held that the
second respondent was entitled to conduct an investigation or audit
into the irregularities which were brought
to its attention by Ms Van
der Westhuizen, who was the informer, and that the nature of the
misconduct necessitated the kind of audit
conducted by Dr Robey,
which audit was of a scientific nature wherein a mathematical process
was applied and that the employer was
entitled to embark on this
exercise without involving the dismissed employees. He further
stated that the appellant’s counsel
was allowed to cross-examine Dr
Robey on his audit report and that the appellant was not denied
access to the audited material for
re-auditing. He further held that
failure by the second respondent to include the employees’
representative in the audit process
in itself did not constitute a
violation of the
audi alteram partem
principle, as was had argued by counsel for the appellant.
[35] Counsel for the
appellant attacked the audit that has been referred to above on the
basis that since it was conducted in secret
without the appellant or
dismissed employees being represented there, the subsequent dismissal
was procedurally unfair and the arbitrator’s
failure to so hold was
unjustifiable and/or unreasonable. In my view there is no basis for
this attack on the audit. The audit
was part of an investigation
that the employer conducted before it could take a decision whether
or not there were reasonable grounds
to initiate disciplinary charges
against the relevant employees. The
audi
alteram partem
rule had no application at that stage. The employees would be given
an opportunity to be heard in subsequent disciplinary inquiries.
At
that stage the affected employees would have an opportunity to do
their own audit in order to be able effectively to challenge
at the
disciplinary inquiries the findings made pursuant to the employer’s
secret audit. In the light of this I reject the appellant’s
contention that the arbitrator’s failure to find that the employees
were entitled to attend the audit was unjustifiable or unreasonable
or constituted a gross irregularity.
[36] Counsel for the
appellant also attacked the finding made by the arbitrator that the
audit procedure and results had “the requisite
integrity and
reliability.” He submitted that such finding was not one that
could reasonably have been reached. In support of
this Counsel
pointed out that Dr Robey was the sole witness of the employer on how
the audit was conducted and that he did not conduct
the entire audit
himself, that Dr Robey and Mr Brown contradicted each other as to who
collected the data on which the audit was
based and when it was
collected. Counsel for the appellant also submitted that during Dr
Robey’s demonstration in the arbitration
proceedings of how the
secret audit had been conducted, Dr Robey spilled eight grains even
though he said that he had spilled three
grains. Counsel for the
appellant submitted that, if the way in which the secret audit was
conducted resulted in a spillage of eight
grains right before the
arbitrator and the parties to the dispute in the arbitration, there
must have been a lot of spillage of grains
that occurred during the
secret audit when the employees were not represented. I have
considered what the arbitrator said about
this in the relevant
paragraphs of his award and I am not persuaded that on review his
finding falls to be reviewed and set aside.
On the contrary it seems
to me that the fact that eight grains were spilled during the
demonstration in the arbitration is no indication
that a sufficient
spillage occurred during the secret audit to undermine the integrity
or reliability of the audit.
[37] Counsel for the
appellant submitted that it was unfair to the dismissed employees
that when the second respondents’ witnesses
gave evidence in the
disciplinary enquiries, they did so in the presence of all the
employees whereas when each of the employees
gave evidence, the other
employees were not allowed to be present inside the room where
proceedings were conducted. The arbitrator
found nothing wrong with
the procedure followed and held the view that the employees’
representative did not object to the procedure
during the
disciplinary hearing. He found no merit in the submission. This
issue was not persued by Mr Cloete in this Court and
I find no merit
in this allegation.
[38] It was further
submitted by Mr Cloete that the involvement of Mr Brown, who
questioned the witnesses after he had testified at
the disciplinary
hearing, was an interference with the independence of the
chairperson. The arbitrator held that none of the witnesses
or their
union’s representatives had indicated that any of the employees
concerned felt intimidated by Mr Brown’s conduct. He
however, said
that the chairperson of the disciplinary inquiry did indicate to Mr
Brown during the proceedings, that he was not supposed
to interfere
with the hearing in the manner he did. I find no merit in this
submission because Mr Brown was not the chairperson
of the enquiry
and had no power to make any finding against the employees.
Sanction
[39] Mr Cloete submitted
that the chairperson of the disciplinary hearing had already made up
his mind about the sanction of dismissal
despite the fact that Mr.
Carr had recommended that any sanction other than dismissal could be
imposed. The arbitrator held that
the fact that the chairperson of
the disciplinary hearing disregarded some of the submissions made by
the initiator, especially the
one on dismissal, in itself indicated
that the chairperson was impartial and independent in adjudicating
over the matter. In my
view there is no evidential basis for Mr
Cloete’s submission in this regard.
[40] He further submitted
that the dismissal was unfair in that the employees who had admitted
to discarding magnetic samples were
not dismissed, whereas the
appellants were dismissed for the same misconduct, which disparate
sanction is unfair to the dismissed
employees. Mr Cloete further
submitted that there was no existing standard rule which prescribed a
sanction other than dismissal
in respect of those employees who
discarded less than 2% of the magnetic sample.
The arbitrator held on
these issues:
40.1 that the intentional
disposal of samples by the sorters or employees demonstrated a gross
disregard of the
“fundamental
aspect of their work and the interest of their employer and
colleagues”
.
He further stated that the sorters’ conduct, including that of Ms
Middleton, Mr Ruawerda, Ms Holthousen and Ms Le Grange, who
had
admitted to have discarded magnetic sample, caused the second
respondent incalculable harm;
40.2 he further indicated
that with regard to the rest of the sorters, the dismissed employees
in this case, it would not be possible
to determine with certainty as
to who amongst them failed to follow the laboratory procedures
prescribed for sorting mineral samples,
but he held that
distinguishing between the two categories would be academic because
the evidence indicated that
“they
either threw away sample or consciously neglected to report
spillage”.
He
further indicated that in this case, when the discarding of sample
was discovered, the losses had escalated so considerably over
a year
prior to the discovery that the integrity of the second respondent’s
laboratory findings was in jeopardy;
40.3 he further held that
the dismissed employees gave dishonest explanations to the second
respondent as the employer, for the repeated
loss of a substantial
percentage of sample attributed to them, which conduct resulted in
the employment relationship between the
employees and the second
respondent becoming
“irreparably
compromised”.
Mr
Cloete’s submission with regard to this finding was that if,
indeed, there was a breakdown of the employment relationship between
the employer and the dismissed employees, such breakdown should also
apply to the other employees who admitted that they had discarded
the
magnetic portion of the sample but were not dismissed for such
misconduct.
[41] In my view, none of
Mr Cloete’s criticizms of the award established a gross
irregularity which is a ground of review that he
had to show in order
to succeed in this matter. Indeed no misconduct on the part of the
arbitrators has been shown either. I am
satisfied that the appellant
failed to show that Labour Court erred in any way. In those
circumstances, the appeal stands to be
dismissed.
In the premises I make
the following order:
[a] The appeal is
dismissed.
[b] There is no order as
to costs.
___________________
M M LEEUW JA
____________________
ZONDO JP
____________________
DAVIS JA
APPEARANCES:
FOR THE APPLICANT:
Advocate: ADV G MALINDI
Attorneys: MASERUMULE INC
43 Oxford Road, Forest Town,
JOHANNESBURG, 2193
TEL: 011 – 486 3081 FAX: 011 –
486 4013/3697
REF: Ms O Mamabolo/Ms M
Maenetje/ns/NUM420
FOR THE RESPONDENT:
Advocate: ADV A N SNIDER
Attorneys: LEPPAN BEECH INC
Lower Ground Floor, Building 13 “The
Woodlands”, Woodland Drive, Woodmead TEL: 011 – 236 4900 FAX: 011
– 236 4909 REF: Mrs
F E Leppan/ANG22
Date of hearing : 19 June 2009
Date of judgment :
24
February 2010