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[2011] ZALAC 30
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Minerals Technologies South Africa (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA87/09) [2011] ZALAC 30 (17 February 2011)
14
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
Case No.: JA87/09
Minerals Technologies South Africa (Pty) Ltd
Appellant
and
Commission for Conciliation, First
Respondent
Mediation and Arbitration
Advocate R. Bracks N.O. Second Respondent
Harvey S. Radebe Third Respondent
JUDGMENT
WAGLAY DJP
Introduction
[1] This is an appeal against the judgment of the Labour
Court (Molahlehi J) dismissing the application to review and set
aside
an award handed down by the commissioner ( the second
respondent) of the Commission for Conciliation Mediation and
Arbitration
(the CCMA). The commissioner had found that the dismissal
of the third respondent was substantively unfair and ordered the
appellant
to reinstate the third respondent retrospectively to the
date of his dismissal to the position he held prior to his dismissal
on
conditions no different to that which governed his employment on
the date of his dismissal. The commissioner also ordered that the
appellant pay the third respondent back pay from the date of his
dismissal to the date of his reinstatement.
Background
[2] The appellant company provided services to ISCOR an
iron producing company. The exact nature of the services is not set
out
in the review papers nor was it set out at the arbitration
hearing, save that the services provided by the appellant to ISCOR
included
servicing and operating ISCOR’s machinery and
operating a scanner linked to its furnaces.
[3] In providing the services to ISCOR, the appellant’s
employees had to observe the rules binding on ISCOR’s
personnel.
One of the rules was that any private property brought
onto ISCOR’s premises had to be declared on a prescribed form
known
as a “B2100 form”. This form serves as a security
clearance when an item brought into ISCOR’s premises is removed
from the premises. In the absence of a “B2100 form” an
employee must obtain a “gate release note” that
is issued
by his or her manager to remove any item out of the ISCOR premises.
[4] The third respondent carried out the duties of a
servicer and machine operator for the appellant at ISCOR. On 11
February 2005,
while approaching his motor vehicle, he was stopped by
ISCOR’s security officer and was found to be in possession of a
box
labelled “Dysan 100 discs”. This box contained what
was commonly referred to as “floppy discs”. The “floppy
discs” (Discs) are today’s equivalent of computer discs
which contain information that can normally be read on a computer.
The third respondent admitted that he was taking the Discs to his
motor vehicle. As a result of the admission, the third respondent
was
prohibited from entering ISCOR’s premises.
[5] On the day of the incident ISCOR wrote a letter to
the appellant and advised it that the third respondent “
was
found in possession of goods ... which he wanted to remove from the
premises without a gate release note or authorization”
and
consequently the third respondent would not
“be allowed to
enter the premises anymore.”
[6] The appellant then charged the third respondent with
misconduct alleging that he was in
“unauthorized possession
of company property on 11/2/2005”;
and, for
“bringing
the company into disrepute”
.
[7] A disciplinary hearing was held on 7 March 2005. The
third respondent was found to be in unauthorised possession of
company
property and was dismissed.
[8] The third respondent did not utilise the internal
appeal process and referred the matter as an unfair dismissal dispute
to the
CCMA first for conciliation and then when conciliation failed
to resolve the dispute, to arbitration.
The arbitration proceedings
The evidence
[9] At the arbitration hearing one, W.J. Van Waveren
(Van Waveran), gave evidence on behalf of the appellant and the third
respondent
testified on his own behalf. A transcript of the internal
disciplinary hearing was also handed in at the arbitration. The
evidence
of Van Waveren was that the third respondent was aware of
the rule that he was not allowed to take any private property into
ISCOR
premises without completing the “B2100 form” and in
the absence of the form nothing could be removed from the ISCOR
premises without a “gate release note”.
[10] Van Waveren’s testimony was further to the
effect that the Discs found in the third respondent’s
possession were
the property of ISCOR. According to him, at least
four of the Discs were marked “LR2000”. These markings
indicated
that those Discs contained software to the scanner which
was operated by him (Van Waveren) and only accessible to him and the
ISCOR
engineering staff. Another Disc was marked “blokwerf”
which is a name of a specific plant within ISCOR premises and
yet
another Disc was marked “skrotwerf” which is a name of
the scrapyard within ISCOR.
[11] The third respondent’s evidence was to the
effect that he had found the Discs outside the ISCOR premises, more
particular
in a rubbish bin near to where he resides. Because he did
not own a computer, he handed the Discs to his friend Mr Thomas
Delihlazo,
a co-employee, who has access to a friend’s
computer, to inspect them as he thought the Discs might contain
games. Mr Delihlazo
was, however, unable to inspect the Discs because
the computer, to which he may have had access, was in a state of
disrepair. Mr
Delihlazo, according to the third respondent, returned
the Discs to him and did so at the work place (ISCOR). After
receiving the
Discs the third respondent was on his way, taking the
Discs to his motor vehicle, and doing so openly when he was stopped
by the
security guard.
[12] The above evidence notwithstanding, the
commissioner records the following as being part of the evidence led
by the third
respondent:
“A friend of his
[the third
respondent’s]
had found these discs outside ISCOR premises
among some magazines in a bin and asked the Applicant
[the third
respondent]
to check what was on it...”
[13] Additionally, and from the transcript of the
arbitration hearing it appears that after the two witnesses
testified, the commissioner
stated that before he hears closing
arguments he would like to view the Discs. The transcript also
indicates that the Discs could
only be viewed at ISCOR premises
because the Discs would only work
“on the machine itself.”
The transcripts also reflect that the commissioner did not view the
Discs and that no objection thereto was raised in the closing
argument that was presented at a later date.
The commissioner’s findings
[14] The commissioner found that the third respondent
was aware of the rule that no person was entitled to take any private
property
into ISCOR’s premises without completing the “B2100
form” or, in its absence, remove anything from ISCOR’s
premises without a “gate release note”. He then found
that the third respondent had breached the rule but said that
the
rule was not breached wilfully because the third respondent had
openly carried the box with the Discs to his motor vehicle.
The
commissioner concluded that he was not satisfied that the breach of
the rule justified the dismissal of the third respondent
and thus
found the dismissal substantively unfair. The dismissal was found to
be procedurally fair as no challenge was raised in
that respect at
the arbitration and the transcript did, on the face of it, evince a
procedurally fair hearing.
[15] With regard to the ownership of the Discs or
whether or not the third respondent’s possession was
“unauthorised”
the commissioner states that
because the third respondent walked openly with the Discs in his hand
it
“could hardly be the actions of a person trying to steal
company information”
and that
“the Respondent has
failed to convince me that the discs contained confidential
information relating to the client’s
operations.”
[16] Having found that the third respondent had
unintentionally breached a rule, the commissioner then stated that
“in deciding whether or not the Applicant [the third
respondent] should be dismissed, the following factors need to be
taken
into account: the Applicant’s length of service, in this
case 16 years; his disciplinary record which is clean and most
importantly,
the circumstances under which the conduct was
committed.”
The commissioner went on to state that
dismissal was reserved for serious transgressions like theft,
dishonesty, physical assault
and endangering the safety of others and
concluded that a final warning would have been the appropriate
sanction. The commissioner
however, failed to impose any sanction and
ordered reinstatement as recorded earlier in this judgment.
The Labour Court
[17] The appellant sought to review and set aside the
award of the commissioner on a number of grounds. One of the grounds
which
was emphasised by the appellant was the commissioner’s
failure to view the Discs and to nevertheless find that the
respondent
had failed to prove that the Discs contained confidential
information. However, the two critical grounds upon which it sought
to
set aside the award were: (i) the commissioner’s failure to
consider all of the evidence before arriving at his decision;
and
(ii) that the award was not justified in relation to the evidence
presented at the arbitration.
[18] The Labour Court took the view that the
“commissioner gave the parties a fair trial”
and
that his failure to view the Discs did not result in either party
being prejudiced, more particularly neither party appeared
to object
to the commissioner’s failure to view the Discs at the time
that closing arguments were presented. The Labour Court
also said
that an incorrect recordal of evidence did not
per se
render
an arbitration award reviewable and after surveying the evidence took
the view that the incorrect recordal of the third
respondent’s
evidence did not materially affect the conclusion reached by him
because the third respondent was found
“guilty as charged”
.
The Labour Court then went on to consider the appropriateness of the
sanction with respect to the breach of the rule which the
commissioner had found the third respondent to have committed and
found that the commissioner could not be faulted in finding that
there was no dishonesty involved in the misconduct committed by the
third respondent and therefore concluded that the decision
of the
commissioner was not one that a “reasonable decision maker in
the position of the commissioner could not reach”.
[19] The Labour Court thus dismissed the application
with costs. The matter is now before us with the leave of that court.
The Appeal
[20] The appellant argued that the commissioner
committed a gross irregularity in that he recorded “evidence”
that was
not presented at the arbitration hearing and drew a
conclusion based thereon. The appellant
inter alia
also argued
that the only justifiable finding based on the evidence presented at
the arbitration hearing would be that the third
respondent had
committed the misconduct alleged by the appellant and dismissal was
the only appropriate sanction for that misconduct.
[21] Firstly, it is clear to me that the Labour Court
erred in finding that the third respondent was found
“guilty
as charged”
. What the commissioner found was that the third
respondent failed to comply with a rule that required him to have
proper authorisation
to remove items from the company premises. The
findings of the commissioner pre-supposed that the items being
removed were his,
whereas the charge was a slightly watered down
version of theft.
[22] From the testimony presented at the arbitration, it
is evident that the third respondent was found in possession of a box
of
Discs, at least six of which were the property of ISCOR, the
employer of his employer and that he intended removing this box from
ISCOR. The crucial question is whether or not the third respondent
was in lawful possession of these Discs, and not what was contained
in the Discs. In this regard the evidence led by the appellant was
that the Discs were the property of ISCOR: two of the Discs
dealt
with ISCOR departments and four others dealt with measuring and
maintaining the furnaces; that only the appellant’s
witness and
ISCOR engineers were entitled to be in possession of those Discs;
and, that the Discs could only be viewed on the ISCOR
computer. The
next issue was how did the third respondent come to be in possession
thereof? According to the third respondent’s
evidence he found
the Discs in a bin. What he was doing scavenging in a bin is beyond
comprehension. Secondly, the bin in which
he claims to have found the
box of Discs was the one near to a shop in the vicinity of where he
resides and not at the ISCOR premises.
It takes a leap of faith to
believe that Discs under the control of one’s employer would
find its way to a rubbish bin nearby
a shop near one’s
residence.
[23] If the third respondent is to be
believed, not only does he then take possession of these Discs from
the bin, he asks Mr Delihlazo
to inspect the Discs on a computer
owned by his friend (Mr Delihlazo’s) to ascertain if there were
any games on the Discs.
To what end did he want to establish this
when he did not own a computer to operate the games is not known.
According to him, because
Mr Delihlazo could not get access to a
computer, he brought the Discs back to work. Everyone knew that if
private property is brought
into ISCOR a form needed to be completed.
Why did Mr Delihlazo not fill in the form, or if he did why was it
not produced at the
hearing. Mr Delihlazo was not called to testify
at the arbitration
1
.
In any event, if the possession by the third respondent of the Discs
was as innocent as he claimed why did he not seek to view
them at
work to ascertain if they contained any games.
[24] The version of the third respondent was clearly so
farfetched that the only reasonable conclusion that can be drawn from
it
is that he had lied at the arbitration hearing. Consequently, the
only logical deduction that can be made from the evidence presented
at the arbitration was that the third respondent was at the very
least guilty of being in unauthorised possession of ISCOR’s
property, that is, he was guilty of the charge preferred against him.
[25] In the matter of
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
2
it was held that a
court would only review and set aside the decision of a commissioner
if it is found that the award is “one
that a reasonable
decision maker could not reach” but, in arriving at that
conclusion the court must determine whether or
not the commissioner
had due regard to all of the evidence that was properly placed before
him or her. Where a commissioner records
the evidence led before him
totally incorrect and the evidence is material to the determination
of the misconduct, then clearly
the commissioner has committed a
gross irregularity which renders his decision liable to be set aside.
How the third respondent
came to be in possession of the Discs was a
material issue to the misconduct charge levelled against him and the
commissioner got
it totally incorrect, what he records as being the
evidence led by the third respondent was not led at the arbitration
hearing
but at the disciplinary hearing. This error on his part
evinces a failure to consider the evidence properly before him and
thus
renders his award liable to be set aside.
[26] An evaluation of the evidence,
as I have said earlier can lead to only one conclusion and that is,
that the third respondent
had committed the misconduct of being in
unauthorised possession of the property of ISCOR as found by the
Disciplinary Hearing.
[27] Turning then to the issue of
sanction, it is so that the sanction should be that of the
commissioner. In this matter the commissioner
correctly indicated
that dismissal is a drastic measure and must be reserved for serious
transgressions. There can be no doubt
that, had he properly
considered the evidence and came to the only conclusion that I
believe he should have come to, with respect
to the misconduct, then
he would have found the transgression committed by the third
respondent extremely serious compounded by
the giving of false
testimony. Not only did the third respondent lie about where he found
the Discs, but continued to maintain
his innocence; he was in
possession of property that was not owned by his employer but ISCOR
that had contracted his employer to
provide a service, thus
potentially risking the possible continuation of his employer’s
contract with ISCOR with the possible
prejudicial consequences to his
fellow workers. The third respondent was clearly dishonest. His 17
years of service and clean record
cannot, in my view, serve to lessen
the seriousness of his misconduct and save his employment,
particularly where ISCOR has indicated
that it will not allow him to
return to its premises.
[28] In the circumstances dismissal
is the only appropriate sanction for the misconduct committed by the
third respondent and as
such I am of the view that because the
evidence presented at the arbitration hearing could also only lead to
the finding that the
dismissal of the third respondent was for a fair
reason.
[29] While I am cognizant of the fact
that the Labour Court or the Labour Appeal Court should not
substitute its decision for that
of the commissioner, I am the view
that it may do so where the factors as set out in Baxter:
Administrative Law
3
are present, these include:
(i) where the end result is any event a foregone
conclusion and it would merely be a waste of time to order the
tribunal or functionary
to reconsider the matter;
(ii) where further delay would cause unjustifiable
prejudice to the applicant; or,
(iii) where the court is in a good position to make the
decision itself.
[30] In this matter all of the factors listed in the
above paragraph are present and it would thus serve no purpose to
refer the
matter back to the CCMA for a rehearing
albeit
by a
commissioner other than the second respondent.
[31] Finally with regard to costs in terms of law and
equity I believe this is a matter in which there should be no order
as to
costs.
Order
[32] In the result I make the following order:
(i) The appeal is upheld
(ii) The order of the Labour Court is amended to read
as follows:
“
(a) The arbitration award dated 20 May 2006
issued by the Commission for Conciliation, Mediation and Arbitration
under its case
no GAJB 8996-05 is hereby reviewed and set aside and
replaced with the following:
‘
The dismissal of the employee party was both
substantively and procedurally fair.’
(b) There is no order as to costs.”
(iii) There is no order as to costs in the appeal.
______________________
Waglay DJP
I agree.
______________________
Zondi AJA
I agree.
_____________________
Molemela AJA
Date of Hearing:
23 November 2011
Date of Judgment:
17 February 2011
Appearance for the Appellant: Adv. S
Du T Maritz
Instructed by:
D J Greyling Inc
for the Third Respondent:
N.F. Masenamela Inc
1
Mr.Delihlazo did testify on behalf of the third
respondent at the internal disciplinary hearing but his evidence
differed from
that of the third respondent in crucial respects.
2
2008 (2) SA 24
(CC)
3
Baxter: Administrative Law 3
rd
Edition at pages 682 to 685 and the authorities therein cited.