About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2010
>>
[2010] ZALAC 12
|
|
National Union of Mineworkers and Another v Grogan N.O. and Another (JA30/08) [2010] ZALAC 12 (1 June 2010)
1
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No: JA30/08
In the matter between:
NATIONAL UNION OF
MINEWORKERS First Appellant
D BESENT AND FOURTEEN OTHERS
Second and Further Appellants
And
J.
GROGAN N.O.
First Respondent
RSA
GEOLOGICAL SERVICES,
DIVISION
OF DE BEERS
CONSOLIDATED MINES LTD.
Second Respondent
JUDGMENT
McCALL
A.J.A.:
INTRODUCTION.
[1] The Second and Further Appellants, (“the employees”)
who were all employees of the Second Respondent (“the
company”)
and members of the First Appellant Union (“the union”),
were dismissed in July 2002 following a disciplinary
enquiry. This
enquiry was chaired by a Mr. Barclay, a Management employee of De
Beers, and he found all of the employees guilty
of misconduct for
which the appropriate sanction was dismissal.
[2] A dispute was declared concerning the substantive and
procedural fairness of the dismissal and it was referred to the CCMA
for conciliation. By agreement between the appellants and the company
the dispute was referred to private arbitration before the
First
Respondent (“the arbitrator”). The parties agreed that
the award would be final and binding on the parties but
that it would
be subject to review on the same grounds on 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 South Africa Act No. 108 of 1996.
[3] In his award the Arbitrator determined:
“1.The dismissal of Applicants Chaka, Besent, Monnedi, Sonaba
and Williams was for a fair reason. They are not entitled to
relief.
2. The dismissal of Applicants Giwu, Lephoto, Mahlangu, Makeleni,
Mashodi, Mahlaba(sic), Molamu, Mpampi, Tokelo and Sekutenyane
was not
for a fair reason. These Applicants must be reinstated on the terms
and conditions that pertained at the time of their
dismissals,
subject to any changes that would have been implemented in the
interim, provided that they report for duty within seven
(7) days of
the date of this award.
3. The Respondent must pay Applicants Giwu, Lephoto, Mahlangu,
Makeleni, Mashodi, Mahlaba(sic), Molamu, Mpampi, Sonaba, Tokelo,
and
Sekutenyane an amount equivalent to the remuneration he or she would
have earned, inclusive of all benefits save for overtime
he/she might
have worked, between the date this arbitration commenced (i.e. 3 June
2003) and the date on which he/she resumes duty
in terms of this
award.
4. Unless the parties agree otherwise, the total amount specified in
paragraph 3 above must be paid within 28 days of the date
of this
award into the trust account of the Respondent’s attorney for
distribution to those individual Applicants to whom
back pay is owed
in terms of this award.
5. Since costs were sought by neither party, none is ordered.”
[4] On 22 December 2003 the company brought an application to review
and set aside the arbitrator’s award. It sought the
setting
aside of the award and the substitution for it of a ruling which the
Court “deems fit” and an order for costs
against any
respondent who opposed the application.
[5] The application for review was opposed by the appellants who
also brought a counter-application for review, which expressly
sought
the re-instatement of the employees referred to in paragraph 2 of the
arbitrator’s award, with retrospective effect
to the date of
their dismissal. They did not specifically ask for the re-instatement
of Chaka, Besent, Sonaba and Williams, but
they did ask for an order
declaring that the dismissal of Monnedi was unfair and re-instating
him retrospectively to the date of
dismissal. They also asked for an
order declaring that the dismissal of all the employees was
procedurally unfair. The counter-application
for review was opposed
by the company.
[6] On 28 September 2007 the Labour Court granted the application by
the company for review, with costs, dismissed the counter-application
with costs and substituted for the arbitrator’s findings, in
relation to the employees he ordered to be re-instated, a finding
that “The dismissal of the remaining 10 employees is also
fair”.
[7] Leave to appeal to this Court was granted on 22 April, 2008.
[8] At the hearing of this appeal, Dr. Cloete, for the appellants,
conceded, quite correctly, that Makeleni was incorrectly included
in
the employees to be re-instated in terms of paragraph 2 of the
arbitrator’s award and should have been included amongst
those
not entitled to relief, in terms of paragraph 1 of the award. He also
correctly conceded that Sonaba was incorrectly included
amongst those
entitled to compensation in terms of paragraph 3 of the award.
Finally, he said, the appellants did not persist in
their contention
that Monnedi should not have been included amongst those not entitled
to relief, in terms of paragraph 1 of the
award.
THE BACKGROUND FACTS.
[9] The facts in this matter are set out in detail in the founding
affidavit of the company in the review proceedings, appear
from the
evidence in the arbitration, are summarised in the Heads of Argument
and are, to a large extent, not in disputed. I do
not, therefore,
intend to repeat them in great detail or to dwell upon the technical
nature of the process of kimberlite analysis
in which the employees
were involved.
[10] The salient facts about the company and the process are:
10.1The company is a diamond mining company which operates globally.
10.2 At the relevant time RSA Geological Services Division operated,
at Kimberley, the Kimberley Micro Diamond Laboratory (‘KMDL”).
10.3 Kimberlite is a type of rock or gravel which may contain
diamonds.
10.4 In order to evaluate the potential of samples of kimberlite for
extracting diamonds, samples of kimberlite were sent to the
laboratory by geologists of the company and other companies,
worldwide, for analysis.
10.5 The process involved the breaking down of large samples of rock
by crushing it and using very potent acids to release the
diamonds
from the crushed material. The number of diamonds in a sample and the
weight thereof are used to determine the total content
of an area of
kimberlite.
10.6 The results of the laboratory analysis are used to estimate the
number of large stones that would be found in a particular
deposit of
kimberlite in order to decide whether to continue prospecting,
whether to exploit the kimberlite and whether to establish
a mine.
The accuracy of the results is accordingly of vital importance.
10.7 The process is complex, dangerous and difficult. In essence it
involved:
10.7.1 The preparation of the sample by crushing, dividing it into
“aliquots” of 20kg each, baggage and storing.
10.7.2 Leaching in hydrochloric acid.
10.7.3 The draining or decanting.
10.7.4 The acid digestion process through boiling in sulphuric and
hydrofloric acid.
10.7.5 The de-sliming process in a reactor to remove smaller matter
than is required.
10.7.6 The analysis.
[11] The employees at KMDL fell broadly into two categories, namely,
those engaged in the processing of the sample and those who
sorted
the recovered diamonds. Both groups reported ultimately to Frankie
Lephoto, the laboratory superintendant, one of the appellants,
who
features prominently in the proceedings. Lephoto reported to Garvie
who was the plant manager at the time and who gave evidence
for the
company.
[12] Of the remaining employees:
Williams was the immediate supervisor of all of the employees except
Lephoto.
Mashodi worked in the laboratory as the tea lady.
Tokelo was responsible for cleaning the safety clothing of the
workers.
The remaining employees were all involved in the sampling process.
[13] In 1999 Garvie asked employees if they were prepared to work
overtime to reduce a backlog of processing samples which had
built
up. Besent, Chaka, Monnedi, Sonaba and Williams volunteered to work
overtime. There was a conflict in Garvie’s evidence
as to
whether or not Makeleni volunteered to, and did, work overtime but
the appellant’s witnesses Lephoto and Monnedi both
said that he
did and, as I mentioned in paragraph [8] of this judgment, it was
conceded that he should have been included in those
employees not
entitled to relief.
[14] In April 2002 Mrs. Ziegler, who was Manager of KMDL at the
time, and who gave evidence at the arbitration, received a report
which led to her meeting with an informer. The informer’s
identity was not disclosed during the hearing ( he/she will be
referred to as “X” in this judgment). X made a report to
the effect that for every 20Kg of kimberlite that was crushed
in the
receiving section, 15Kg was discarded in a number of ways. In
particular some of it was disposed of down two boreholes,
referred to
as boreholes 6 and 7, which were used for the sampling of the water
level below the laboratory site to check acid
levels. An objection to
the reception of the evidence of what was said during this meeting
was raised by Dr.Cloete. The arbitrator
allowed the evidence to be
admitted on a provisional basis and later ruled that Ziegler’s
evidence concerning her conversation
with X was inadmissible, insofar
as it was led to prove that any or all of the applicants were parties
to the disposing of the
kimberlite, whilst leaving intact the
evidence concerning the fact of the conversation. He made a similar
ruling relating to the
evidence of a Mr. Haupt regarding a statement
made by X.
[15] Mrs. Ziegler carried out an investigation of the water quality
monitoring records which revealed that boreholes 6 and 7 could
not be
sampled and that the last time that they were sampled was on 28 March
2000. An inspection of the boreholes revealed that
they had been
blocked with calcrete, or common rock, at the surface.
[16] On 1 May 2002 the two boreholes were drilled and kimberlite was
extracted from both boreholes. In borehole 6 they also discovered
a
plastic sample ticket similar to one at the receiving section of
KMDL. In borehole 7, kimberlite was also found together with
a number
of sample tags on which the original number of the sample could still
be read, and certain metal tags.
[17] Approximately 453 kgs of kimberlite were extracted from the two
boreholes. That was not all that could be extracted because
at 20m
they hit the water table, so that the kimberlite which came out was
very slimy and could not be collected.
[18] As stated by Dr. Cloete in his Heads of Argument, it was common
cause that the kimberlite could only have found its way into
the
boreholes by being “poured down”.
[19] On 2 May 2002 all 15 employees were interviewed. On initial
questioning all 15 denied any knowledge of how the kimberlite
got
down the boreholes. Nine of the employees, including Chaka, made
affidavits to that effect.
[20] Chaka subsequently made two further
statements In the second one he said,
inter
alia
:
“In June, July 2000 Andrew Moremani (who is not an appellant)
and I threw samples in the borehole. It was 3 bags of samples
and I
think it was from Angola.”
In the third statement Chaka said,
inter
alia
:
“1.Approximately July 2000, I remember the date as it was just
before they started building, Andrew Moremani and David Bessent
(sic)
told me that we will only work the samples until we reach our
aliquots. The rest of the samples will be thrown away. Joel
Monedi
(sic) was present during this conversation and he heard Andrew and
David tell me this.
2. I asked them why and they told me that we needed to finish the
samples to reach the target which would give us a bonus that
Garvey
promised.
3……..
4. I personally
discarded 3 bags of samples down the
borehole. This practice continued for 2 months and ceased when the
backlog was cleared. We
did not work overtime after that.
5. It was only in the late afternoon that we threw samples away. …..”
[21] Chaka did not give evidence at the hearing and, although his
statements were hearsay, they were admitted in evidence without
any
objection from the appellants, although, in his answering affidavit
to Ziegler’s founding affidavit, Mr. P. Tlali, the
shop steward
representing the union in the review proceedings, did say that Chaka
was threatened, intimidated and promised certain
benefits by his
interrogators when he made the various statements. However in
response to a submission by Ziegler, in her affidavit,
that the
arbitrator had unjustifiably and/or incorrectly found that only those
individual employees who had worked overtime were
likely to be
involved in the discarding of sample, Mr.Tlali said:
“The findings of the arbitrator were justified as the evidence
was overwhelming that those workers who worked overtime over
weekends
when others were not present discarded sample.”
I shall return later in this judgment to the significance of Chaka’s
statements
[22] All of the employees, (leaving aside Chaka who did undergo a
polygraph test) were given the opportunity to undergo polygraph
tests. Most of them gave their written consent to do so but later
withdrew it after consulting the union. Ziegler also told the
employees that if they withheld information concerning the discarding
of sample, this was regarded as being dishonest and a dismissable
offence. She gave them anonymous telephone numbers through which they
could contact management should they wish to provide information
without revealing their identity, but none of them utilised this
opportunity.
[23] The employees were then suspended and charged.
THE CHARGES
[24] All of the employees were charged, under charge 1, essentially
with acting with common purpose in an unlawful enterprise to
tamper
with samples and/or compromise the integrity of samples treated at
KMDL from the year 1999. There were seven other charges
under which
various employees were charged with matters related to the disposal
of the sample. In the alternative, there was a
charge against all of
the employee for failing to disclose information about the misconduct
of fellow employees relating to the
offences and/or failing to offer
reasonable assistance and information in the detection of those
employees actually responsible
for one or more of the offences.
Finally, there was a charge against Lephoto, only, relating to two
samples, one containing a small
diamond, found in his drawer, but he
was found not guilty on this charge and it is not necessary to deal
with it.
THE AWARD.
[25] With regard to substantive fairness, the arbitrator considered
that the issue to be decided was whether the evidence presented
during the arbitration was sufficient to warrant the inference that,
on a balance of probabilities, any of the employees actually
discarded sample, or that they knew that others had done so and
failed to assist the company in identifying the perpetrators. It
was
not disputed that if an employee was guilty of either actually
disposing of sample or wilfully refusing to assist the respondent
to
identify the culprits, this would constitute serious misconduct
justifying dismissal.
[26] The arbitrator found Chaka guilty of gross misconduct on the
basis of his confession. However, as his admission only accounted
for
a fraction of the kimberlite found in the boreholes, he found it
necessary to consider whether there was sufficient evidence
to
identify any of the other culprits. The only evidence linking any
particular employee to the actual discarding of sample was
Chaka’s
statements implicating Besent, Moremani (who is not an appellant) and
Monnedi. Besent did not give evidence and,
although Monnedi did, it
was not accepted by the arbitrator. Their dismissal was found to be
justified.
[27] Sonaba and Williams were found, by inference, to have
participated in discarding the sample on the basis that they both
worked
overtime during the period in question and hence stood to
benefit from the bonus payable for reducing backlog, that Williams
was
the direct supervisor of the overtime team and that, in the
circumstances, the failure of Sonaba and Williams to testify was
fatal
to their case. The arbitrator said that, if his finding in that
regard was incorrect, the likelihood that they at least possessed
information that would have assisted the company identify the
culprits could also be inferred from their silence. It was conceded
by the appellants, on appeal, that Makeleni should have been included
by the arbitrator in the same category as Sonaba and Willams
and
hence he was excluded from the appeal.
[28] That left three remaining categories to be considered by the
arbitrator and in this appeal, namely:
28.1 Gladys Mashodi, the tea-lady and Virginia Tokelo the cleaner.
28.2 Giwu, Mahlangu, Mhlaba, Molamu, Mpampi and Sekutenyane, all of
whom the arbitrator said were not employed by the company during
the
period when the sample was discarded and none of whom, according to
the evidence, worked overtime during the relevant period.
28.3 Lephoto, the superintendent.
[29] There was no evidence that any of the employees referred to in
paragraph [28] had actually discarded sample and accordingly
the
presiding officer at the disciplinary hearing introduced, and the
company, in the arbitration, relied, on the concept of “derivative
misconduct”.
[30] The concept of “derivative misconduct”
in labour law appears to have originated in the following observation
by
Nugent J (as he then was) in
Food
and Allied Workers Union and others v Amalgamated Beverage Industries
Ltd
. (1994) 15 ILJ 1057 (LAC) at 1063B:
“In the field of industrial relations, it may be that policy
considerations require more of an employee than that he merely
remain
passive in circumstances like the present, and that his failure to
assist in an investigation of this sort may in itself
justify
disciplinary action.”
However, Nugent J. found it unnecessary to deal
with that issue in the case under consideration. In that case a large
group of workers
had assaulted a ‘scab’ driver leaving
him severely injured. The company was unable to prove which of those
present
at the time the assault took place actively participated in
the assault. The Court assumed, for the purposes of the appeal, that
the
onus
of establishing that each of the appellants had associated themselves
with the assault was upon the company and was to be discharged
as a
matter of probability. It found that the evidence was consistent with
the inference that “all those present either participated
in
the assault or lent their support to it” and no alternative
inferences had been advanced which had a foundation in the
evidence.
Nugent J. further said, at 1064D:
“In my view this is pre-eminently a case in which, had one or
more of the appellants had an innocent explanation, they would
have
tendered it, and in my view their failure to do so must be weighed in
the balance against them.”
[31] In
Chauke and
others v Lee Service Centre CC t/a Leeson Motors
(1998)
19 ILJ 1441 (LAC) twenty employees had been dismissed for malicious
damage to property. The employer operated a panel-beating
shop. The
Industrial Court had found that one or more of the company’s
workforce had deliberately perpetrated acts of malicious
damage to
the company and customer property. The question which arose was
whether those acts warranted the dismissal of all twenty
members of
the paint, polishing and cleaning section. After referring to the
passage, reproduced above, from Nugent J’s judgment
in the ABI
case (supra), at 1063B, Cameron J. said, at 1447H:
“This approach involves a derived justification, stemming from
an employee’s failure to offer reasonable assistance
in the
detection of those actually responsible for the misconduct. Though
the dismissal is designed to target the perpetrators
of the original
misconduct, the justification is wide enough to encompass those
innocent of it, but who through their silence make
themselves guilty
of a derivative violation of trust and confidence.” However, he
went on to say at 1448C “The facts
in the present case likewise
make it unnecessary to decide the question of derivative misconduct,
since in my view the company
was warranted in inferring that all 20
dismissed workers themselves shared responsibility for the primary
misconduct.”.
[32] The arbitrator stated the obvious in saying that those
employees who were not employed during the period when the sample
was
discarded could not have actually have discarded sample or “acted
in association” with those who did. He went on
to say:
“Moreover, it is highly improbable that Applicants Mashodi and
Tokelo could have physically associated with the culprits
in the
disposal of sample”, by which I understand him to mean that is
unlikely that they could have physically thrown away
sample together
with those who did.
[33] After considering the ABI and Leeson Motors cases (supra) the
arbitrator accepted that derivative misconduct of the type referred
to in those cases may justify dismissal in appropriate circumstances.
After saying that none of the Applicant employees was expressly
charged with failing or refusing to assist the company in its efforts
to bring the perpetrators to book (which, incidentally, was
not
correct, as appears from my summary of the charges in
para.[24]above), he said that he accepted that wilful non-cooperation
by employees with their employer’s efforts to investigate
serious misconduct “can in the labour context constitute
“association” with the culprits of a type sufficiently
close to be covered by the charges” He added that a refusal
to
disclose information relating to an offence “can in certain
circumstances make a person an accessory” He accordingly
accepted that if any of the individual applicants deliberately
withheld information relating to “the scam” from the
company, he or she would be guilty of residual misconduct.
[34] After considering facts relied upon by the company in support of
its argument that the employees were guilty of residual
misconduct,
such as the quantity of discarded kimberlite, that the process must
have continued for a considerable period of time,
that the conduct of
the culprits must have been observed and discussed among the “team”,
the smallness of the KMDL
staff (about 20),and that the boreholes
were a few metres from and easily visible from the laboratory windows
and doorways, the
arbitrator found that none of those considerations
could possibly apply to those employees who were not working at KMDL
when the
dumping was taking place, unless the employees discussed the
scam later and it became common knowledge among the laboratory staff.
He then considered the employees’ actions after the scam was
discovered, upon which the company relied to prove its contention
that all of the employees had knowledge of it. They were,
essentially, the refusal to undergo polygraph tests and their
generally
un-cooperative attitude, which, he found, “did not
necessarily prove” that they had something to hide.
[35] Whilst the arbitrator accepted that the
failure of most of the employees to give evidence either at the
disciplinary hearing
or at the arbitration had to be weighed in the
balance in deciding whether they possessed information that could
have assisted
the company to identify the perpetrators, he found that
it was a mere possibility that the employees in question were in
possession
of such information and that the evidence led by the
company did not discharge the
onus
upon it to prove its case on a balance of probabilities.
[36] Before us, counsel for the company submitted, quite correctly,
that underlying the entire award made by the arbitrator were
two
interrelated but fundamental considerations, namely:
36.1 His finding that the sample was discarded during the period
between 1999 and early 2000.
36.2 The consideration that the motive of those who discarded the
sample was to earn a financial reward, either through overtime
pay or
potential bonus, or both.
He submitted that the reasoning applied to the reinstated employees
was fatally flawed because the period relied upon by the arbitrator
was incorrect and he failed to take into account a further motive
advanced by the company, namely making the team’s job much
easier.
[37] It emerged during argument before us that there was possibly
another vital factor which was relevant to the arbitrator’s
findings with regard to Giwu, Mahlangu, Mhlaba, Molamu, Mpampi and
Sekutenyane. It was whether it was ever established, either
by
evidence or agreement between the parties, that those employees were
in fact not working in the laboratory during the period
which the
arbitrator regarded as being the period during which the samples were
discarded. As appears from the aforegoing summary
of the arbitrator’s
findings he not only found that those who were not employed during
the relevant time could not have physically
disposed of the samples
but, if they were not employed, that had a bearing on whether the
inference could be drawn that they had
knowledge of the culprits
which they had a duty to disclose to the company. I shall return to
this aspect shortly.
[38] With regard to Lephoto, the arbitrator found that it may be that
had he conducted his supervisory duties capably he would
have
detected the extraordinary rate at which the backlog was being
reduced, but he was not charged with poor work performance,
The
company had alleged, as it did on appeal, that Lephoto must have been
aware that sample was being discarded because he was
probably at the
laboratory after working hours (which, the arbitrator said, had not
been proved) and because he had a surveillance
camera in his office
which monitored the Octagon (where the sampling process was carried
out) . The company further submitted that
Lephoto must have known
that sample was being dumped because it was one of his duties to
“spike” dried sample (a quality
control process) and he
must have known that spikes were not being extracted. The arbitrator
referred to the fact that Lephoto
denied knowledge of anything
untoward happening in the laboratory during 1999/2000 and that no
material concessions were drawn
from him under cross-examination. He
said that in the final analysis the case against Lephoto was based on
his refusal to undergo
a polygraph test. He considered that, as in
the case of the other employees against whom he had found an
inference could not be
drawn, “I cannot accept that this
refusal alone proved that Lephoto necessarily had something to hide”.
[39] With regard to the additional charge against Lephoto relating to
the retaining of a micro diamond in a phial found in a drawer
of his
desk, he accepted Lephoto’s explanation and found that the
breach of procedure was minor and that if there was an
offence it
would not have led to Lephoto’s dismissal had it not coincided
with his conviction on the other charges.
[40] With regard to the Applicants’ allegations of procedural
fairness he found that the only ones pursued in argument related
to
the hearsay evidence concerning the statement of X and the polygraph
test on Charka. He found that neither the reference to
Charka’s
statement nor the polygraph tests on Chaka rendered the hearing
procedurally unfair.
[41] When dealing with the question of relief, the arbitrator found
that the employees whom he reinstated were at least in part
the
architects of their own misfortune because of their un-cooperative
attitude and, for that reason, limited their back pay to
the date on
which the arbitration commenced, as opposed to the date of
dismissal. This is what gave rise to part of the counter-application
for review by the employees.
THE LABOUR COURT JUDGMENT.
[42] The learned Judge in the Court a quo adopted
the company’s contention, which was common cause, that the
arbitrator relied
upon two criteria, namely the period when the
sample was discarded and the motive for discarding it. The company’s
contention
in the Court
a quo
and before us on appeal was that the arbitrator erred in setting the
end of the period during which sample was disposed of as being
March
2000 when in fact there was manifestly further dumping between March
2000 and May 2002 (when the kimberlite was bored out
of the two
boreholes.) In fact the arbitrator did not refer to March 2000, but
said: “It appears, however, that the sample
must have been
thrown down the boreholes during 1999 and
early
2000”. (my emphasis), The
evidence of Ziegler was that the last time the boreholes were sampled
was 28
th
March 2000 whilst the evidence of Hannweg, for the company, was that
they experienced problems “around the second quarter
of
2000”when the two boreholes inexplicably became blocked. The
date May 2002 relied upon by the company’s counsel
arose out of
an exchange between the arbitrator and Hannweg which was to the
effect that:
42.1 The water table where the 2 boreholes were was between 20 and 25
metres.
42.2 When the holes were drilled out on the 1st May 2002, kimberlite
was hit in hole 6 at 8 metres and in hole 7 at 14 metres.
42.3. 12 metres of hole 6 (i.e. 20 minus 8) (and, by analogy, in the
case of hole 7, 6 metres) above the water table must have
been filled
between March 2000 (when the water was last sampled) and May 2002
when the boreholes were drilled and the kimberlite
extracted.
[43] The most that can be said from the evidence regarding the 2
boreholes is that:
43.1 The discarding of the samples must have continued after 28 March
2000 when the water in the boreholes was last capable of
being
sampled.
The discarding could have ceased at any time before May 2002 when
the
boreholes were drilled.
It follows that Dr. Cloete was clearly incorrect in submitting, in
his Heads of Argument, that it was common cause that the boreholes
were already blocked: “at about March 2000”. On the other
hand, the submission by Mr. Redding, for the company, in
his Heads of
Argument, that: “There is nothing to suggest that the dumping
of material could not, therefore have taken place
during the latter
part of 2000 and early 2001” is not strictly accurate, and, in
any event, does not take the matter any
further. I say this because
there is evidence which tends to prove that the dumping took place
only up to about August, 2000, namely
the statement by Chaka and the
evidence as to when overtime was worked and who was not employed in
the laboratory when overtime
was worked to clear the backlog.
[44] However, the learned Judge in the court a quo came to the
conclusion that the fact that the discarding continued after March
2000, coupled with the evidence that the sample recovered exceeded
453 kilograms, and could possibly have been as much as two tons,
meant that that the only reasonable inferences to be drawn were
either that the discarding involved many more than the five dismissed
employees, or that it was carried out over a long time, or both.
[45] With respect, the facts upon which the Judge relied were not the
only facts which were relevant for the purposes of drawing
inferences
and the inferences which she sought to draw were not the only
reasonable inferences to be drawn from the relevant facts.
[46] Other facts and circumstances which should have been taken into
account by the Judge in deciding on the period of discarding
of the
sample and the possible inferences to be drawn were the following:
46.1 According to the evidence of Garvie:
46.1.1 In 1999 they had a backlog of as much as six months.
46.1.2 The only way they could overcome the backlog was to ask
members of the team to put in overtime on a Saturday. The majority
of
the people agreed to work overtime.
46.1.3 A similar process was followed in 2000.
46.1.4. As far as he could recall the people who worked overtime were
Besent, Chaka, Lephoto, Makeleni, Monnedi, Senaba and Williams.
46.1.5. He did not think a bonus was paid out in 1999 but it
certainly was in 2000, after discussions between Garvie and Lephoto.
46.1.6 Although he insisted that the bonus was not guaranteed, he
agreed, in response to a question from the arbitrator that,”it’s
more likely that a person who would ultimately qualify for a bonus
was responsible for the discarding of the material than one
who did
not.”.
46.2 Chaka’s statements containing admissions were admitted in
evidence and used to find those implicated by him guilty of
misconduct. There is a principle of evidence that where an
extra-curial statement containing admissions by a party to a suit is
admitted in evidence against that party, exculpatory portions of that
statement may be rejected by the court but only if it is
satisfied,
after considering the evidence as a whole, that the exculpatory
portions lack cogency.
See the discussion and the cases referred to in
S
v Nieuwoudt en andere {1996] All SA 242 (SE) at 258.
It seems to me, by analogy, that fairness requires that the whole of
Chaka’s three statements should be taken into account
in
deciding upon the guilt or innocence of all of the employees, in that
the contents of the statements are not inconsistent with
the rest of
the evidence and are not inherently improbable. On that basis the
following portions of Chaka’s second and third
statements
should, in my view be taken into account in assessing the evidence:
4.2.1 It was in “June, July 2000” that he and Moremani
threw samples in the borehole.
4.2.2 In approximately July 2000 Moremani and Besent told him that
they would only work the samples until they reached their aliquots.
The rest of the samples would be thrown away.
4.2.3. He asked them why and they told him that they needed to finish
the samples to reach the target which would give them the
bonus that
Garvey promised.
4.2.4 This practice continued for two months and ceased when the
backlog was cleared. They did not work overtime after that.
46.3. Hannweg conceded, in response to questions by the arbitrator
and Dr. Cloete, that it was possible that the dropping of the
material recovered when the boreholes were drilled, could have been
done in one or two drops, or, at least, in a relatively short
period.
46.4. For what it is worth, Mr.Woodhouse, for the company, said, in
the arbitration, that the disposal took place “over
the
1999-2000 period”.
46.5 Paragraph 6 of Zeigler’s letter of 17 May 2002, setting
out the alleged misconduct of certain of the employees states:
“
Fraudulently claimed and or retained
incentive bonuses
for the period 1999
and/or 2000 for work not done,
having
represented that such work that was necessary to qualify for the
bonus had in fact been done” (my underlining).
[47] In my opinion, the most reasonable inferences to be drawn from
these facts are:
47.1 That the disposal of the sample down the two boreholes took
place from some time in 1999 to about July or August 2000.
47.2 That the sample was disposed of only by those who worked
overtime, with a view to reducing the backlog in the hope of earning
a bonus.
47.3 That it was impossible to determine precisely how much sample
was disposed
of or how long it took to dispose of it.
[48] There is, therefore, in my view, no basis for
the finding of the learned Judge in the Court
a
quo
that: “the only reasonable
inferences to be drawn were either that the discarding involved
many
more than the five dismissed employees,
or that it was carried out over a long time, or both.”(my
emphasis).
WERE GIWU, MAHLANGU, MHLABA, MOLAMU, MPAMPI AND SEKUTENYANE
EMPLOYED IN THE LABORATORY WHEN THE DISCARDING OF THE SAMPLE TOOK
PLACE?
[49] In her Judgment the learned Judge in the
Court
a quo
said:
“
Dr. Cloete conceded that the
discarding continued after March 2000 when the employer discovered
the boreholes to be blocked, and
October
2000 when
Giwu,
Molamu and Mpampi were employed.”
(my
emphasis)
That seems to imply that Dr. Cloete conceded that the 3 employees
referred
to were employed in the laboratory when the discarding took place.
She referred, in an annotation, to Dr.Cloete’s Heads of
Argument, Para.7.3. Those Heads of Argument do not form part of the
appeal record. If Dr. Cloete did make that concession it would have
been quite contrary to what Dr. Cloete had submitted on behalf
of the
employees concerned during the arbitration hearing and before us on
appeal. However, the learned Judge went on to say:
“He
nevertheless persisted that these undisputed facts set apart those
employees who were employed in October 2000 and January
2001 from
those who were employed before them.”
That sentence made no sense if Dr.Cloete had indeed made the
concession referred to.
[50] In his Heads of Argument on appeal, (paras. 15 & 16)
Dr.Cloete said:
“
It is common cause that
Giwu,
Molamu
and
Mpampi
entered
the Respondents employ in October 2000.
Mahlangu
and
Sekutenyane
were employed only in January 2001.”
The arbitrator said the same thing in paragraph (7) of the Award.
However, when counsel for the company, Mr. Redding, was asked, when
the matter was argued before us, whether the company did agree
with
the said dates of employment of the employees concerned, he declined
to make that concession. Dr. Cloete was then given and
opportunity,
during the short adjournment, to find the reference in the record to
where the dates of employment became common cause.
He was only able
to refer us to pages 1888 and 1889 where Dr. Cloete, when dealing
with the dates of employment, while leading
the evidence of Lephoto,
said:
“Okay we will submit a list. I think there’s…it’s
common cause when people started. We can determine
that. We will
submit a list of when they started.”
Apparently no such list was ever compiled or submitted.
[51] An examination by me of the record reveals the following:
51.1 Dr. Cloete put it to Ziegler in cross- examination during the
arbitration that the defence of Giwu, Mahlangu, Mhlaba, Molamu,
Mpampi and Sekutanyane was:
“simply that they arrived so late after these events, they
knew nothing whatsoever as to what the charges really…
you
know…what really transpired”, to which Zeigler replied:
“That’s what they said in the initial hearing”.
51.2 Ziegler said that Mhlaba only arrived on the 1st August 2001.
51.3 Garvie said, in cross-examination, at the arbitration, regarding
those who worked overtime in 1999/2000, in order to reduce
the
backlog, that Giwu, Mahlangu, Mhlaba, Molamu, Mpampi and Sekutanyane
were not working there at that time. Lephoto said precisely
the same
thing when giving evidence in chief. He seemed to say ( Record. Vol.
22 p. 2061, line 15) that by August 2000 the backlog
had been
finished.
51.4 At the risk of repetition, Chaka said, in his third statement,
that the discarding took place in approximately July 2000,
and that
the practice continued for 2 months and ceased when the backlog was
cleared.
[52] From this resume of the evidence, it appears that:
52.1 From the inception of the enquiry it has been the contention of
the six employees in question that they were not employed
in the
laboratory when the disposal of the samples took place.
52.2 Such evidence on the issue as there is, tends to support their
contention.
52.3 It appears that the company at no time contested the
contention and certainly did not lead any evidence to contradict it.
52.4 To put it at its lowest, then, it was never proved that Giwu,
Mahlangu, Mhlaba, Molamu, Mpampi and Sekutanyane were employed
in
the laboratory at the time when the discarding of the samples took
place or that they took part in the discarding.
[53] In the circumstances, the learned Judge in
the Court
a quo,
erred,
in finding, firstly, that the company had proved
prima
facie
that all the employees, and, in
particular, the said six employees, participated in the scam and were
aware of it, and, secondly,
that there was an
onus
on the said six employees to rebut
certain facts and inferences.
GLADYS MASHODI AND VIRGINIA TOKELO
[54] Before turning to the question of “derivative misconduct”,
I will deal with the position of these two women
[55] As I have said, the arbitrator simply found
that it was highly improbable that these two could have physically
associated with
the culprits in the disposal of the sample. The
learned Judge in the Court
a quo
seems to have considered that they were guilty of the misconduct
because, by virtue of the proximity of their work-place to the
boreholes and their activities in the laboratory they “
could
”
have seen the samples being discarded and because their defence that
they could not have known about the scam because they
did not work
overtime fell apart once Lephoto acknowledged in cross-examination
that they did work overtime.
[56] Ziegler’s evidence was that the charge against Mashodi was
not that she “was part of the pact” but that
she was
aware of what was happening and was “part of the team”.
Further, given the close proximity of the tea-room
to the boreholes
it was impossible that she was not aware of what was going on.
Zeigler also relied on the fact that Mashodi had
been involved in a
previous disciplinary hearing in which she agreed to take a polygraph
test, as a result of which she released
from further investigation,
but, in this case, she refused to take a polygraph test. Likewise
Ziegler relied on Tokelo being closely
associated with the other
employees and her lack of co-operation.
[57] Garvie did not include the two women amongst those whom he said
worked overtime. Lephoto said they had nothing to do with
the
treatment of samples and, in effect, that they had nothing to gain by
participating in the disposal of the samples. In his
evidence in
chief he said that they did not work overtime. In cross-examination
he conceded that Gladys Mashodi had worked overtime
of 30 hours in
July 2000 but that it was not to reduce the backlog-it was because
Virginia had taken leave and she was required
to do her job as well,
We were not referred to any evidence that Tokelo worked overtime.
[58] The fact of the matter is that there was no
evidence that these two women participated in the actual disposal of
the samples.
It cannot be said that a reasonable arbitrator could not
have come to the conclusion that it was improbable that they did.
There
is no evidence that they would or could have received a bonus
connected to the reduction of the backlog. The other motive suggested
by the company, namely that the disposal would have made the
employees’ work easier, did not apply to them. In the absence
of any clear evidence as to precisely when and at what times the
sample was poured down the boreholes it was not possible to draw
the
inference that either of them
must
have seen the samples being disposed of. In my view, therefore, there
was no
prima facie
evidence that Mashodi and Tokeso either assisted in the disposal of
the samples or associated themselves with those who did.
DERIVATIVE MISCONDUCT.
[59]
In
his award the arbitrator identified the two requirements for proof of
derivative conduct as being:
“
first, that the employee knew or
could
have acquired knowledge
of the
wrongdoing; second that the employee failed without justification to
disclose that knowledge to the employer, or to take
reasonable steps
to help the employer acquire that knowledge”.(my emphasis)
In her judgement in the Court
a
quo
the Judge said:
“
The employer must prove on a balance of
probabilities that the employee knew or
must
have known
about the principal
misconduct and elected without justification not to disclose what
they knew” (my emphasis).
Cameron J in the Leeson Motors case (supra) at 1447 B used the words:
“
Where a worker has or
may
reasonably be supposed to have
information concerning the guilty” (my emphasis).
As I have already mentioned, the arbitrator found
that the facts relied upon by the company in support of its argument
that its
employees were guilty of “residual misconduct”
could not possibly apply to those employees who were not working at
KMDL when the dumping was taking place, unless they discussed it
later and it became common knowledge among the laboratory staff.
The
learned Judge in the Court
a quo
,
on the other hand, found that:
“On the facts the court must infer that all the employees
participated in the principal misconduct in the absence of their
evidence to the contrary”.
She also said:
“Once the employer established the scale of the scam, that it
was perpetrated over a long time and during normal working
hours, the
burden of rebuttal, fell on the employees to explain why they could
not see the sample being discarded, why they could
not have known
about it, but most of all, why they handed back the note with the
telephone number for information and refused to
assist the employer.”
[60] I have already found that it was never
proved that Giwu, Mahlangu, Mhlaba, Molamu, Mpampi and
Sekutanyane took
part in the discarding of the sample and that there
was no
prima facie
evidence
that Mashodi and Tokeso either assisted in the disposal or associated
themselves with it. It is perhaps necessary, however,
to say
something more about the facts to which the Judge referred:
60.1 As far as the “scale” of the scam or the quantity of
the sample proved to have been disposed of is concerned,
the evidence
only established with certainty a quantity of about 453 kilograms.
Assuming that the sample was discarded in aliquots
or bags of 20
kilograms, that would have taken only about 23 trips to the
boreholes. Even if the quantity was 2 tons or approximately
2030
kilograms that would only have taken 101 trips. Over a period of two
months that would have entailed about 13 trips each Saturday.
However, Chaka, who admitted to disposing of 3 bags, did not say they
were bags of 20 kilograms - they could have weighed much
more. Also,
the boreholes were close to the laboratory - 50, maybe, 60 metres,
according to Garvie.
60.2 There was no concrete evidence as to the length of time over
which the disposal took place other than Chaka’s statement
that
the practice continued for two months.
60.3 There is also no evidence that the disposal took place during
normal working hours. Chaka said that it was only in the late
afternoon that they threw samples away and the probability was that
it took place during overtime. It is highly improbable that
those
responsible for such a nefarious and unusual act as throwing samples
down the boreholes would have done it during normal
working or when
it could be observed by any passer-by.
[61] It must be accepted that an employee may, in appropriate
circumstances, have a duty to assist management by bringing forward
information within his knowledge about the wrongdoing of other
employees. It is interesting to note that the
Protected Disclosures
Act No.26 of 2000
refers, in the preamble, to such a responsibility.
The question which arose before the arbitrator was whether, in the
absence
of evidence of such knowledge in the case of those employees
who were not in the employmed in the laboratory at the time, and in
the case of the two female employees, an inference of such knowledge
could be drawn from their actions after the scam was discovered
in
2002.
He referred, in this regard, to the refusal to undergo polygraph
tests and their generally un-cooperative attitude, including the
handing back of the note with a telephone number which could be used
to confidentially convey information to the employer. To this
may be
added the failure of the employees concerned to give evidence, other
than the affidavits made by some of them, including
Molamu, Mpampi
and Tokelo during the investigations.
[62] The arbitrator could not accept that the
employees’ refusal to undergo polygraph tests in itself proved
that they were
guilty of discarding sample, or conspiring with those
who did, or that they had something to hide. He referred to the fact
that
Lephoto’s evidence that he and the other employees
withdrew their consent to take the tests on the advice of the union
went
unchallenged. I agree that the unions’ advice was
misguided, if the employees were indeed innocent, but I cannot but
agree
with the arbitrator that the withdrawal of their consent to
take the tests does not, in the circumstances, necessarily prove that
all of the employees had something to hide. The same can be said of
the failure to take the opportunity to convey confidential
information to the employees. Without
prima
facie
evidence that any of the
employees did have information about the disposal of the samples
acquired, either, in the case of the
six latecomers to the laboratory
after they arrived, or, in the case of the two females during the
course of their everyday contact
with those responsible, one cannot
conclude that their failure to co-operate necessarily meant that they
either did have or must
have had something to hide.
[63] That leaves the question of whether an adverse inference can be
drawn against the employees in question from their failure
to give
evidence. In this regard the arbitrator referred to the following
passage from the judgment of Nugent J in the ABI case
(supra) at
1602H:
“Nevertheless the evidence against him, though not conclusive,
may be such that an explanation would be expected if one was
available. In such cases his failure to provide an explanation may be
placed in the balance against him.”
After weighing up the possibilities and referring
to the fact that the employer had to discharge the general
onus
placed upon it by section 192(2) of the Act, the arbitrator said that
the respondent had to prove more than a mere possibility,
it had to
lead evidence to prove that on a balance of probabilities each and
every one of the applicant employees was in possession
of information
that could have assisted the company in its enquiry, He was unable to
find that the company had discharged that
onus
in the case of the six late-comers and the two women.
[64] Although I find this the most difficult part of the case, I do
not think it can be said that a reasonable arbitrator could
not have
come to that conclusion. Although it was possible that the guilty
parties could have discussed their unlawful conduct
with the six
late-comers after the disposal of the sample had ceased, there seems
to be no reason why they should have done so.
In fact I consider that
it was more probable that they would not have discussed the matter
with anyone else, after having made
every endeavour to conceal their
misconduct, and at the risk of it being exposed by the person or
persons to whom they imparted
the information. The same, in my view,
applies to the two women who had no interest in learning from their
colleagues that they
had been guilty of disposing of sample to
benefit themselves.
[65] In my view, therefore, the arbitrator was correct in finding
that no misconduct on the part of Giwu, Mahlangu, Mhlaba, Molamu,
Mpampi, Sekutenjane, Mashodi and Tokelo had been proved and that
their dismissal was not for a fair reason.
LEPHOTO
[66] The case against Lephoto was on a different
footing to that of any of the others who were re-instated by the
arbitrator. I
have referred, in paragraph [38], above to the
arbitrators findings regarding Lephoto. The learned Judge in the
Court
a quo
,
on the other hand, said that Lephoto lacked credibility. She said:
“As the KMDL superintendent, Lephoto denied that he was at KMDL
when overtime was worked, that he used the surveillance camera
in his
office to supervise the employees and that he walked about KMDL to
supervise the employees. None of these denials have a
ring of truth.”
The Judge then proceeded to amplify her findings and concluded:
“Lephoto had to make these denials, otherwise he could not
explain why he did not know about the scam. He must have known
about
it simply from carrying out his supervisory duties.”
She proceeded to refer to the “spiking
process” and concluded that Lephoto could not have been
recovering all the spikes
as the employees were discarding the
kimberlite and said that he would have known from this that something
was going on. She also
referred to reports, on 3 June 1999 that 29
aliquots were leached, and on Saturday 27 August 1999 when 16 samples
were treated
when overtime was worked, whereas it was impossible to
treat more than 8 aliquots a day when overtime was worked. On several
occasions
more aliquots were treated than was possible. She said that
Lephoto should have deduced that employees were not following
procedures
and referred to his failure to explain the June
discrepancy. The Judge referred to the fact that there were three
systems in place
to enable Lephoto to ensure that sample was not
discarded, namely, the surveillance camera, spiking the samples and
studying the
reports. Lephoto, she said, had to explain why all three
failed him. Finally she said that Lephoto’s “bare denial”
was not an adequate answer to the
prima
facie
evidence adduced by the employer
and that the arbitrator should not have accepted it and exculpated
Lephoto on the basis that he
did not do his job properly.
[67] On appeal before us, Dr. Cloete submitted
that the reasoning of the Court
a quo
regarding Lephoto
“
was
entirely unrelated to the grounds of review”and was at odds
with the differential principle laid down in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097(C).
He set out, what he
considered should have been the findings of fact concerning Lephoto
and referred to the fact that his immediate
superior, Garvie, stated
under cross-examination that he did not have any evidence of
Lephoto’s involvement in the scam..
He also referred to a
passage in Garvie’s evidence which suggests that Williams, the
supervisor was responsible for the sample
treatment from start to
finish.
[68] Council for the company, on the other hand, submitted that the
arbitrator failed to take into account that Lephoto’s
evidence
was improbable and unreliable, particularly his assertion that he
never worked overtime. Furthermore he submitted that
the arbitrator
failed properly to assess the probabilities of the superintendent
being entirely ignorant of the “massive
scam which took place
under his nose.”
[69] On the issue of whether Lephoto worked overtime, Garvie said, in
his evidence, that Lephoto obviously would work some Saturdays
but
could not claim overtime because he was in the upper C band. When
asked in cross-examination whether he knew whether Lephoto
was aware
of the discarding of the samples he said:
“I don’t have any evidence to state that, but as he was
at the laboratory all day, he may well have been aware of
it, but I
don’t have any evidence.”
On the other hand Garvie said that he would
certainly believe that the laboratory supervisor, Williams, would
have known, as he
was working “very, very closely with all
members of his team every day.” and “in fact was
responsible for the
sample treatment, from start to finish”.
Garvie said he had a good working relationship with Lephoto and
believed he was
committed to his job. When dealing with overtime
work, Garvie said they took turns with Williams, Lephoto and himself
so that at
least one of them was there, and sometimes all three.
Garvie, however, insisted that
he
knew nothing about the blocking of the boreholes. He said Lephoto did
receive a bonus for overall performance during the year in
question,
but not specifically for the reduction of the backlog.
[70] Ziegler said, regarding Lephoto’s duties:
“As superintendent of the laboratory one of the requirements
there is that he should look after the quality control system,
and
(sic) meant to check what our efficiencies are.” She went on to
say that the only way to do that was the “spiking
protocol”,
which she described. She said, in response to a question by the
arbitrator as to whether the employees must have
known that this was
being done:
“
Yes because in this particular case he
(referring to Lephoto) was testing the efficiency of the process to
see what can be improved
and
where
sample might be being lost
”. (my
emphasis)
Both Williams and Lephoto, she said, would move around the facility.
The camera monitor was in Lephoto’s office, and
“It was a requirement that he watched the monitor, particularly
when the acid was being pumped in the afternoon when samples
were
being loaded into the reactor.”
Lephoto was one of those who initially signed a form to say he would
consent to doing a polygraph, but, she said, the following
morning
the union explained that they had advised their members not to do the
polygraph test. She went on to elaborate on how she
explained the
implications of the polygraph test and implored the employees to
co-operate. Ziegler also dealt with the records
that showed that on
occasions in March and June 1999 samples were not treated properly,
and indicated that samples were being disposed
of. In 1999 and 2000
the sizes of samples coming out of the fusion process was very small,
which suggested that disposal was “down
the drain”. On
the question as to whether Lephoto worked overtime she said:
“I know Frankie worked overtime when I was definitely at the
lab, and I’m sure he worked before that. He doesn’t
get
paid for overtime, but he did work overtime.”
She referred to an occasion when the Venture broke
down on a Saturday. Lephoto was driving it and they were all working
overtime.
It should be noted however, that this was after
Ziegler
joined the team, which was after the time when the disposal took
place, according to Chaka’s statement.
[71] In his evidence in chief Lephoto said that when people worked
overtime after hours it would only be themselves, unless someone
had
gone there for some reason such as maintenance. Those who worked
overtime frequently worked on Saturdays. In response to a
question as
to whether it would be possible to throw away sample without other
people knowing he said that the only circumstance
he could think of
was when that person was working alone without someone seeing him or
her or was working overtime alone. He maintained
that he was
definitely unaware of people throwing sample away. He said that he
did not know how he could have been aware without
having the means to
detect it. On the question of the contents of reports, he said that
if the reports did not indicate that something
went wrong they would
not be able to know. In cross-examination he admitted that ultimately
he was responsible for the acid laboratory
employees, although he had
Williams as supervisor. He disagreed, however, that he was supposed
to go and physically check that
the employees were doing their jobs.
Although he was not pressed on the use of the monitor he said he
could watch what was going
on in the Octagon if he wanted to or had
time to do so. He was cross-examined at some length as to why he did
not take the polygraph
test and maintained that, after initially
agreeing, they consulted their representative who advised on the
issue, after which he
changed his initial decision. He claimed that
he did not hand back the note giving the “hotline” for
information. When
it was put to him that he did work overtime he
replied:
“Well, I have said in these hearings that I never worked
overtime”
He said that Garvie would definitely be lying if
he said he did. There could not have been a misunderstanding by
Lephoto over the
difference between paid overtime and voluntary
overtime because that difference was put to him. He went on at some
length to justify
his contention that he did not work overtime and
his attempts were not convincing. For example he said that Garvie was
not there
to see him work overtime and that there was no point in him
going there to see if people were doing their job properly-he assumed
that they were. With regard to Chaka’s statement about the
disposal being in July 2000 he pointed out that Chaka was dealing
with the disposal, not overtime, which started in February. It was
put to him that he may or may not have dumped sample himself
but the
fact that he “may and did know about it” was dishonest.
He replied at length, saying that the evidence about
more than 20
samples in a month related to early 1999, before he even joined De
Beer. He said that he did not refuse to give information
- that he
gave Mr. Lemon all the information he knew, and that the information
he received did not contain any suspicious information
that could
have made him aware that something was happening. He pointed out,
perhaps quite rightly, that if there was something
it should have
been picked up by Mr. Garvie. When it was pointed out to him that
with regard to the 26 samples on the 1
st
of June 1999, he
was
there,
as he was employed on the 3
rd
May 1999, he was evasive and did not give a satisfactory explanation.
When it was put to him that it was unlikely for the disposal
not to
be discussed or for people not to know about it, he referred to other
incidents where people stole company property and
not everybody in
the departments was held responsible .In re-examination he insisted
that he did not work on Saturdays. He claimed
that it was never
brought to his attention that if he refused to take a polygraph test
it would be used against him.
[72] I do not entirely agree with the reasons of
the learned Judge
a quo
for rejecting Lephoto’s evidence. The fact that there was a
monitor in his office does not necessarily mean that he must
have
seen the sample being disposed of. He obviously would not have looked
at the monitor all of the time and it is unlikely that
those who did
dispose of the sample would have done so at a time when there was a
possibility of their activities being seen on
the monitor, unless, of
course, they were in league with Lephoto. It is not entirely clear
from the evidence when it was that the
records showed that more
sample was processed than was possible, but such evidence as there
was seemed to indicate they the records
in question related to 1999,
whereas the evidence pointed to the disposal in the boreholes having
taken place in 2000. Certainly
the spiking process was an ongoing
thing and should have shown that something was wrong, as Zeigler
said. Whilst these matters
may be inconclusive, if one adds to them
the fact that Lephoto was the superintendent of a close- knit team
and worked closely
with Williams, the supervisor, who was in charge
of the sampling process, it would, indeed, be strange if he did not
at least suspect
that something untoward was on the go regarding the
sampling and the reduction of the backlog.
[73] In my view, however, there were other factors which proved, on
a balance of probabilities, that Lephoto was not being honest
with
the company or the arbitrator when he claimed to know nothing about
the disposal of the samples. It was Lephoto who discussed
the ways
and means of working- off the backlog with Garvie and he knew that
there was a prospect of those who worked overtime receiving
a bonus
in addition to overtime pay. The question of overtime work became of
prime importance in the investigations concerning
the scam. Firstly,
it was likely that those who disposed of the samples did so after
normal working hours (Chaka said in the late
afternoon) to avoid
being detected. Secondly the prospect of receiving a bonus for
working overtime provided the most likely motive
for the disposing of
the sample. There can be little doubt, in my view, that Lephoto was
not telling the truth when he claimed
that he did not work after
hours, even if his presence in the laboratory was not, strictly
speaking, overtime, because he did not
receive overtime pay. There
was no reason whatsoever why Garvie should have lied in this regard,
as Lephoto accused him of doing.
Having read the whole of Garvie’s
evidence at the arbitration, I am satisfied that Garvie was a fair
and honest witness.
He had no axe to grind with Lephoto and, on the
contrary, spoke well of him and his work. To his evidence that
Lephoto did work
overtime can be added Ziegler’s evidence to
the same effect, although her account of the Venture breaking down
may have related
to a period after the disposal down the boreholes
took place. The only possible explanation for Lephoto’s false
denial that
he worked overtime during the relevant period was that he
wanted to distance himself: (a) from those who did work overtime and
who were the prime suspects; and, (b) from the possibility that he
should have seen what was going on. By denying that he worked
overtime, Lephoto not only tried to deflect suspicion away from
himself but also sought to insulate himself from the possibility
that
he should have been in a position to disclose what his
fellow-employees had done whilst working overtime.
[74] The other factor that weighs against Lephoto is his refusal, in
the circumstances, to take the polygraph test. I accept that
it was
union policy to discourage workers from taking the tests, but Lephoto
was not an ordinary worker- he was second in charge,
under Garvie, of
the laboratory. One would have expected him, because of the suspicion
which fell upon him in the light of his
access to the monitor and the
sample results and his control of the spiking, to be only too ready
the take the polygraph test,
if, indeed, he was not guilty of any
complicity in the scam and knew nothing about it.
[75] The only reasonable inference to be
drawn from all the circumstances and, particularly Lephoto’s
dishonesty about working
overtime, and his refusal to take the
polygraph test, is that Lephoto, even if he did not conspire with the
guilty employees to
actually commit the wrongdoing, must have had
information concerning those who were guilty of the disposal which
would have helped
his employer to bring them too book, but wrongfully
failed to reveal such information to the company. In the
circumstances, on
the principle of derivative misconduct, Lephoto was
guilty of conduct which warranted his dismissal. I am accordingly of
the view
that the arbitrator erred in exonerating Lephoto and that
the learned Judge in the Court
a quo
was correct in including Lephoto amongst those who were guilty of
misconduct and were not entitled to relief
PROCEDURAL UNFAIRNESS
.
[76] The arbitrator found that there was no
procedural unfairness on the sole ground argued before him, namely,
the admission
of hearsay evidence and this issue was not seriously
persisted in before us, on appeal. In my view there is, in this
regard, no
reason to depart from the findings of the arbitrator and
the Court
a quo.
.
THE REMEDY.
[77] It follows from my findings that:
77.1 The appeal is partly successful, in that the arbitrator’s
determination that the dismissal of the applicants Giwu,
Mahlangu,
Mahlaba, Molamu, Mpampi, Sekutenyane, Mashodi and Tokelo was not for
a fair reason must be reinstated.
77.2 To the names of the employees whose dismissal the arbitrator
found to be for a fair reason, namely Chaka, Besent, Monnedi,
Sonaba,
and Williams must be added the names of Makaleni and Lephoto.
[78] The arbitrator ordered the reinstatement of those who he found
had been unfairly dismissed. However, he only awarded compensation
equivalent to remuneration from the date the arbitration commenced
(i.e. 3 June 2003), and not the date of dismissal, to the date
of the
award (i.e. 9 November 3003, that is to say, a little over 5 months’
remuneration. He could have awarded up to 12
months’
remuneration under section 194(1) of the Act. He did not do so
because he considered that the employees concerned
were at least in
part architects of their own misfortune. Assuming they were innocent,
had they taken the polygraph tests, no further
action would have been
taken against them and they would not have been part of these lengthy
proceedings. Although they were advised
by the union not to take the
polygraph tests they must bear any consequences arising out of their
election not to do so. I agree
with the arbitrator’s reasoning
that their un-cooperative conduct, even if, as I have found, it did
not give rise to an inference
of guilt, required, in fairness, a
limitation of the extent to which the reinstatement should be made
retrospective. The counter-application
for review in this regard was
correctly dismissed.
[79] As it happens, we were informed from the Bar, by counsel for
the company, that the laboratory had closed down and all the
employees had been retrenched. He submitted that, in the
circumstances, the only possible relief for those who might otherwise
have been re-instated was compensation. Counsel for the employees did
not dispute the information regarding the closing down of
the
laboratory. In any event, having regard to the length of time which
has elapsed since the dismissals in July 2002, I consider
that it
would not be reasonably practicable to order reinstatement. Having
regard to section 193(2)(c) of the Act which allows
the Labour Court
or an arbitrator not to reinstate in such circumstances and having
regard to the limitation of compensation in
terms of section 194(1)
of the Act to 12 months’ remuneration, I consider that, instead
or re-instatement it would be just
and equitable to award to those
who were unfairly dismissed, compensation equivalent to 12 months’
remuneration calculated
at the company’s rate of remuneration
on the date of dismissal.
COSTS.
[80] No costs were awarded in the arbitration. The review
application was granted with costs and the counter- application for
review was dismissed with costs. As the appeal was only partly
successful and the effect of this Court’ finding is that the
application for review should only have been partly successful whilst
the counter-application for review correctly failed, it seems
to me
that it would be fair and equitable if each party bore its own costs
of the review application, of the counter-application
for review and
of this appeal.
0RDER.
[81] (A) The order granted on review by the Court
a quo
is
set aside and there is substituted for it the following order:
1. The application for review is granted in part, to the extent that
the arbitrator’s award is set aside and the following
order is
substituted for it:
1.1 The dismissal of Applicants Chaka, Besent, Monnedi, Sonaba,
Williams. Makeleni and Lephoto was for a fair reason. They are
not
entitled to relief.
1.2 The dismissal of Applicants Giwu, Mahlangu, Mhlaba, Molamu,
Mpampi, Sekutenyane, Mashodi and Tokelo was not for a fair reason.
They will not be reinstated but are awarded compensation equivalent
to 12 months’ remuneration calculated at the Respondent’s
rate of remuneration on the date of their dismissal.
2. The counter-application for review is dismissed.
(B) Each party shall pay its own costs of the application for review,
of the counter-application for review and of this appeal.
DATED AT JOHANNESBURG THIS DAY OF JUNE, 2010
________________
McCall A.J.A
I agree:
________________
DAVIS J.A
I agree:
_________________
HENDRICKS A.J.A
Attorneys for Appellants: Neville Cloete Attorneys Inc.
Counsel for Second Respondent: A.I.S.Redding S.C.
Attorneys for Second Respondent: Perrott, Van
Niekerk,Woodhouse,Matyolo Inc.
.
1