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[2010] ZALAC 30
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Miyambo v Commission for Conciliation Mediation and Arbitration and Others (JA 51/09) [2010] ZALAC 30; 2010] 10 BLLR 1017 (LAC); (2010) 31 ILJ 2031 (LAC) (2 June 2010)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
LAC CASE No.: JA 51 / 09
In
the matter between:
GEORGE
MIYAMBO
…........................................................................
Appellant
and
THE
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
….....................................
First
Respondent
COMMISSIONER TIMOTHY BOYCE N.O.
…....................
Second Respondent
PRETORIA
PORTLAND CEMENT
COMPANY
LIMITED
…...........................................................
Third
Respondent
JUDGMENT
PATEL JA
Introduction
[1] The appellant, Mr George Miyambo
('Miyambo'), with the leave of the court
a
quo,
appeals
against the judgment and order handed down by the Labour Court. Jammy
AJ reviewed and set aside the award made by the Second
Respondent
('the Commissioner') and substituted the award with an order that the
dismissal of Miyambo by the Third Respondent,
Pretoria Portland
Cement Company Limited ('the Company') was procedurally and
substantively justified and fair and ordered Miyambo
to pay the
Company's costs. The Commissioner had found that the dismissal of
Miyambo was unfair because a fair reason for dismissal
had not been
proved by the Company. Accordingly, Miyambo was reinstated to his
former position with the Company.
The Facts
[2] Miyambo was employed by the Company on 30 April 1982
and had at the time of his dismissal a clean record. On 12 October
2007,
whilst Miyambo was on the night shift duty, he found scrap
metal which had been thrown into a skip. He was at all material times
aware that the scrap metal was not going to be thrown away but rather
that it would be sold by the Company. Miyambo decided to
help himself
to the scrap metal with the aim of fixing his stove. After he had
finished his duty a security guard, who was on duty
at the Company's
pedestrian gate, found a few pieces of scrap metal in Miyambo's bag
during a routine search. According to Company
policy, a clearance
permit or 'pass-out' is required for the removal of company property.
This fact was well known to Miyambo because
he had on previous
occasions obtained the permission of the Company when he removed
property belonging to the company.
[3] Miyambo could not produce the necessary pass-out
allowing him to remove the scrap metal. On 16 October he was
suspended from
his duties and handed a notice to attend a
disciplinary enquiry. Miyambo was at a subsequent disciplinary
enquiry charged with
theft of scrap metal and found guilty. A
recommendation of dismissal was made by the chairperson of the
disciplinary enquiry and
the Company adopted the recommendation and
dismissed Miyambo. His subsequent appeal was unsuccessful.
The Arbitration
[4] Miyambo referred an unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration ('CCMA').
Conciliation
was unsuccessful and the dispute was arbitrated before
the Commissioner. The Commissioner found that Miyambo was guilty of
theft
of scrap from the waste bin. The Commissioner, however found
that the sanction of dismissal was unduly harsh and unfair. The
Commissioner
ordered the Company to reinstate Miyambo with
retrospective effect to the date of his dismissal, without forfeiture
of any benefits
that accrued to him had he not been dismissed, save
that he was not to receive any back pay. The Commissioner substituted
the dismissal
with a sanction of a final written warning valid for
one (1) year.
The Labour Court
[5] Subsequent to the award, the
Company approached the court
a
quo to have the
award reviewed and set aside in terms of s145 of the Labour Relations
Act 66 of 1995 ('the Act'). The Labour Court
found that the
conclusions drawn by the Commissioner were not rational because they
were irreconcilable with his factual findings.
The Court did not
refer to
Carephone
(Pty) Ltd v Marcus NO & others
[1998]
11 BLLR 1093
(LAC), which is authority for the proposition that a
commissioner exceeds his or her powers if the arbitration award is
not justifiable
in relation to the reasons given for it.
[6] The court
a
quo
noted that the
Commissioner made two important factual findings. The first is
extracted from the Commissioner's award:
'4.2.1 In the present matter the employee gave 3
contradictory explanations regarding his failure to obtain the
pass-out for the
scrap metal in question, viz:
4.2.1.1 on the day of the incident (12 October 2007) he
told the security guard (Ngcobo) that he had forgotten to get a
pass-out;
4.2.1.2 at his disciplinary hearing, the employee
claimed that he did not get a pass-out since his supervisor was not
present;
4.2.1.3 during the Arbitration he argued that he never
believed that he even required the pass-out for the scrap metal in
question.'
The other finding was that Miyambo knew he had to obtain
a 'pass-out' before he could remove the scrap metal. Consequently,
the
Commissioner was 'satisfied' that Miyambo was guilty of theft.
[7] The court
a
quo
also noted that
despite this finding the Commissioner concluded that dismissal was
inappropriate and that a continued employment
relationship would not
be intolerable. Jammy AJ held that this decision was not one that a
reasonable decision-maker could have
reached.
The Appeal
[8] Before us it was conceded that Miyambo was properly
convicted of theft by the Commissioner and that procedural fairness
was
not an issue. However counsel for Miyambo submitted that although
the Company's Disciplinary Code provided for dismissal for theft,
it
also provided for a final warning. He further contended that the
Company failed to prove that it always imposed the sanction
of
dismissal for theft. It should have imposed a final warning instead
of dismissal in light of his long service and clean record.
[9] It was also submitted that on previous occasions
Miyambo had been allowed to remove the Company's scrap metal and it
was likely
that he would have been permitted to remove the scrap
metal had he requested permission. Counsel proceeded to draw a
distinction
between theft in the 'technical sense', which he defines
as the absence of prior permission or unauthorised possession, and
theft
in the 'strict sense'. According to counsel, Miyambo was guilty
of the former. Counsel also submitted that the present matter was
distinguishable from cases dealing with 'outright theft'.
[10] Counsel acting on behalf of the Company, submitted
that Miyambo's dishonesty destroyed the trust relationship. In this
regard
it was submitted that Miyambo provided contradictory
explanations for unauthorised removal of the scrap metal and made no
attempt
to comply with the Company's rule despite knowing about it. A
reasonable commissioner could not have arrived at the same result
as
the Commissioner.
[11] It was also argued on behalf of the Company that it
applied a consistent zero tolerance policy. In the present matter,
corrective
discipline would have achieved nothing in light of
Miyambo's persistent denial of any wrong doing. Miyambo was adamant
that he
did not need a pass-out despite knowing the rule, which
further militated against a reinstatement. It was argued further that
the
Company was under an obligation to apply the disciplinary rules
consistently.
[12] The leading authority on the
standard of review of arbitration awards is
Sidumo
& Another v Rustenburg Platinum Mines Ltd & others
[2007]
12 BLLR 1097
(CC). At para 79, Navsa AJ explained the duties of a
commissioner as follows:
'In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given the
power
to consider afresh what he or she would do, but simply to
decide whether what the employer did was fair. In arriving at a
decision
a commissioner is not required to defer to the decision of
the employer. What is required is that he or she must consider all
relevant
circumstances.'
Navsa AJ proceeded to frame the question for
determination as follows: 'Is the decision reached by the
commissioner one that a reasonable
decision-maker could not reach?
[13] It is appropriate to pause and
reflect on the role that trust plays in the employment relationship.
Business risk is predominantly
based on the trustworthiness of
company employees. The accumulation of individual breaches of trust
has significant economic repercussions.
A successful business
enterprise operates on the basis of trust. In
De
Beers Consolidated Mines Ltd v CCMA & others
[2000]
9 BLLR 995
(LAC) para 22, the court, per Conradie JA, held the
following regarding risk management:
'Dismissal is not an expression of moral outrage; much
less is it an act of vengeance. It is, or should be, a sensible
operational
response to risk management in the particular enterprise.
That is why supermarket shelf packers who steal small items are
routinely
dismissed. Their dismissal has little to do with society's
moral opprobrium of a minor theft; it has everything to do with the
operational requirements of the employer's enterprise.'
[14] In
Shoprite
Checkers (Pty) Ltd v CCMA & others
[2008] ZALAC 9
;
[2008]
9 BLLR 838
(LAC) para 21 the court quoted this dictum with approval.
In
Shoprite,
the
employee consumed company property without paying for it. The court
held that the employee's dismissal was fair as the company's
rules
had been implemented for justifiable operational reasons.
[15] In
Toyota
SA Motors (Pty) Ltd v Radebe and others
[2000]
3 BLLR 243
(LAC) para15 Zondo AJP (as he then was) stated;
'Although a long period of service of an employee will
usually be a mitigating factor where such employee is guilty of
misconduct,
the point must be made that there are certain acts of
misconduct which are of such a serious nature that no length of
service can
save an employee who is guilty of them from dismissal. To
my mind one such clear act of misconduct is gross dishonesty.'
[16] In
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the MetalIndustry &
others
[2007] ZALC 93
;
[2008] 3
BLLR 241
(LC) the company had a policy allowing its employees to
purchase scrap products from it. The employee did not comply with the
specific
procedure and dispatched a sealed box containing company
property. At para 42 Molahlehi J held:
'.. .the presence of dishonesty tilts the scales to an
extent that even the strongest mitigating factors, like long service
and
a clean record of discipline are likely to have minimal impact on
the sanction to be imposed. In other words whatever the amount
of
mitigation, the relationship is unlikely to be restored once
dishonesty has been established in particular in a case where the
employee shows no remorse. The reason for this is that there is a
high premium placed on honesty because conduct that involves
corruption by the employees damages the trust relationship which
underpins the essence of the employment relationship.'
[17] It is clear from the above
authority that our courts place a high premium on honesty in the
workplace. Miyambo gave three different
versions as to why he was not
in possession of a pass-out. He showed no remorse despite having made
an earlier statement saying
he was sorry and admitting guilt. Before
the arbitrator he did a complete
volte
face
and stated
that he did not need a pass out for the scrap metal. This was
inconsistent with not only what he had said previously
but also with
what he had done previously when taking out the Company's property
which had no commercial value to the Company.
He was aware that the
scrap metal was being sold by the Company and to that extent it had a
commercial value to the Company.
[18] It was also argued on behalf of
Miyambo that he did not really intend to steal the scrap metal since
he was carrying it in
a bag. The guard at the pedestrian gate would
have easily discovered the scrap metal if he had searched Miyambo. In
my view this
is a makeweight argument. The discovery
vel
non
was dependant
on the vigilance of the guard. In any event if Miyambo did not intend
to steal, he
mero
motu,
could have
gone up to the guard and informed him that he had scrap metal without
the necessary pass-out and that he would furnish
one later. Instead
he informed the guard that he had forgotten to get a pass-out.
[19] It is appropriate to return to
the submission made by counsel on behalf of Miyambo that the above
case law, which, in his opinion,
involves 'outright theft and/or
dishonesty', is distinguishable from the present matter which
involves theft in the 'technical
sense' in that there was absence of
prior permission or unauthorised possession. I do not agree with this
argument. It is an artificial
distinction and undermines conceptual
clarity. In
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v NUM & Others
[2001]
3 BLLR 305
(LAC) the employee was charged with theft or unauthorised
possession of company property, namely cooked meatballs, and was
dismissed.
The commissioner in his award held that the dismissal was
fair. The Labour Appeal Court held that it was clear that the
commissioner
had failed to appreciate the difference between theft
and attempted theft in that the latter was "mildly" less
heinous
than theft and set the award aside. On appeal this court paid
short shrift to this distinction and held that it was clear that the
commissioner had found the employee guilty of misconduct and
dismissal was therefore justifiable.
[20] I must add that counsel for Miyambo also equated
theft in the 'technical sense' with negligence, which adds yet
another dimension
to an already complex minefield of distinctions. To
my mind, a disciplinary procedure that draws subtle distinctions
between degrees
of theft, and likens the lesser or 'technical' sort
of theft to negligence, is impractical.
[21] Miyambo undoubtedly breached the relationship of
trust built up over many years of honest service. The Company had a
consistent
policy of zero tolerance for theft and this had been
clearly conveyed to all the employees including Miyambo. I agree with
the
Labour Court's ruling that the Commissioner's award was not
justifiable in relation to the reasons given for it. On the basis of
the factual findings made by the Commissioner, the dismissal of the
Appellant was justified for operational reasons and was fair.
[22] I now turn to the question of
costs. Miyambo was armed with an award in his favour from the
Commissioner. In light of the judgment
in
Sidumo
(supra) it was not
unreasonable for Miyambo to consider that he had prospects of success
on appeal. In my view justice would be
best served if each party was
ordered to pay its own costs on appeal.
Order
[23] I accordingly make the following order:
(i)
The
appeal is dismissed.
(ii)
Each
party is ordered to pay its own costs occasioned by the
appeal
PATEL JA
I agree
McCALL AJA
I agree
HENDRICKS AJA
Appearances:
For
the Appellant/s:
ADV L
M MALAN
Instructed by:
Finger
Phukubje Incorporated
For the Respondent/s:
ADV. W HUTCHINSON
Instructed by :
Fluxmans Incorporated
Date of judgment: 2 June 2010