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[2014] ZALAC 82
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Anglo Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer and Others (JA 65/13) [2014] ZALAC 82; [2015] 4 BLLR 394 (LAC) ; (2015) 36 ILJ 1453 (LAC) (15 December 2014)
REPUBLIC
OF SOUTH AFRICA
INTHE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case no: JA 65/13
DATE: 15 DECEMBER
2014
REPORTABLE
In the matter
between:
ANGLO PLATINUM
(PTY) LTD
(BAFOKENG
RASEMONE
MINE)
....................................................
Appellant
And
PETRUS HERMANUS
DE BEER
...........................................
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
...................................
Second
Respondent
COMMISSIONER L.M.
MATLALA
N.O
.............................
Third
Respondent
Heard: 13
November 2014
Delivered: 15
December 2014
Summary: Review
of arbitration award – employee dismissed for breaching
company’s policy against receiving gifts and
favours from
suppliers and clients – employee embarking on a hunting trip
with an employee of company’s supplier -
employee not
disclosing favour received from employee’s supplier- Employee
disputing any knowledge of the policy –
commissioner finding
employee guilty of the breach- Labour Court setting aside arbitration
award – Appeal – employee
having knowledge of the policy
against accepting gifts, hospitality and favours from suppliers and
knowing that the favour in question
fell within the ambit of the
policy –employee dishonest – failing by employee to
accept any wrongdoing or remorse breaking
the employment relationship
– commissioner award falling within the band of reasonableness
- Labour Court‘s judgment
set aside- review application
dismissed
CORAM:
WAGLAY JP, DLODLO
ET
SETILOANE AJJA
JUDGMENT
SETILOANE AJA
[1]
Anglo Platinum (“the appellant”) appeals against the
judgment of the Labour Court (Bhoola J) in which it set aside
on
review a CCMA arbitration award in which the commissioner found that
the dismissal of Petrus Hermanus De Beer (“the first
respondent”) by the appellant for misconduct was substantively
fair.
[2]
The first respondent was employed by the appellant at the Bafokeng
Rasemone Platinum Mine (“the Mine”) in April
2003 as an
engineering overseer in charge of conveyor belts. The mine had
appointed Zalsplice as its exclusive conveyor belt supplier.
The
Zalsplice representative servicing the mine was Mr N Scheepers
(“Scheepers”), a friend of the first respondent.
Scheepers would submit quotations to the first respondent for
processing. In terms of Zalsplice’s internal policy, Scheepers:
(i) was entitled to make use of his company bakkie within a radius of
200 km of Rustenburg; (ii) had to get permission to undertake
private
excursions with clients; and (iii) was not entitled to do favours for
clients (including transporting clients) without
permission from the
managing director, Mr R Bamberger.
[3]
The appellant had in place a gift and favours policy (“the
original policy”), in terms of which employees were obliged,
inter alia
, to disclose all gifts received by them in a gift
register. On 29 November 2004, the first respondent together with Mr
AC Visagie
(“Visagie), an employee at the mine, made a
declaration in the gift register that they had each received a
T-Shirt from a
supplier. On 1 July 2005 a brief, dated 27 June 2005
from Mr M Farren (“Farren”) the mine manager, dealing
with “gifts,
hospitality and favours” (“the brief”)
was emailed to “ZZG Rasimone Everyone”, which is a
database
of all employees’ email addresses at the mine (‘the
ZZG database’). The brief reads as follows:
‘
Management
wishes to inform you that acceptance of gifts, hospitality or favours
of whatever nature has been terminated with immediate
effect.
Employees are
therefore not allowed to accept any gifts, hospitality or favours
from any supplier of goods and services. These include
match tickets,
hunting trips, lunches, dinners, holiday, or weekend accommodation,
goods or services free of charge or at any artificially
low price, or
any other gift no matter how insignificant it might seem.
The gifts register
is no longer in use until the gifts, hospitality or favours policy
has been revised.
You are hereby
requested to comply with this provision until further notice.
Remember, it is not worth losing your job due to ignorance.’
[4]
During
the period 14 to 16 July 2005, Scheepers and the first respondent
went on a hunting trip, together with a group of people,
to the
Roodewal Farm which is 17 km outside of Rustenburg. Scheepers had
invited the first respondent on the trip which was on
a
“pay-as-you-go” basis (i.e. each member of the hunting
party paid his own way). After the first respondent had shot
a blou
wildebeest during the course of the hunting trip, Scheepers
transported it to the first respondent’s home outside
Rustenburg using his company bakkie (with the total distance
travelled being 56 km). He did this as a favour to the first
respondent,
in circumstances where the first respondent had travelled
to the farm in his wife’s Toyota Tazz which, it can be
accepted,
is not ideally suited to carting a blou wildebeest.
Scheepers disclosed neither the fact of the hunting trip nor the
favour that
he had done for the first respondent to his managing
director, Bamberger. The first respondent, in turn, also made no
disclosure
of the favour to the appellant.
[5]
On 4 August 2005, Bezuidenhout (one of the first respondent’s
supervisors) forwarded the brief to,
inter
alia
,
the first respondent under cover of a note which read:
“
Please
note!!!!!!!!!!!! Don’t’ make yourself guilty.”
The
tracking register reflects the first respondent as having read
Bezuidenhout’s email at 13h09 on 4 August 2005 (a minute
after
it was sent). The first respondent was suspended on 10 August 2005,
and charged on 7 September 2005 with various acts of
misconduct,
including “dishonesty in that [he] accepted and failed to
declare hospitality from a supplier in terms of the
company policy”.
On 14 October 2005, a new “gifts declaration and registration
policy” came into operation. On
16 November 2005, and having
been found guilty of,
inter
alia
,
the dishonesty charge at a disciplinary inquiry, the first respondent
was dismissed.
[6]
Following his dismissal, the first respondent was afforded an
internal appeal inquiry. The minutes of the appeal inquiry reflect
that the first respondent contended that he was of the habit of
deleting all emails sent to the ZZG database, and that he only
became
aware of the brief, on 4 August 2005, when it was sent to him by
Bezuidenhout, this being after the hunting trip. On 15
December 2005,
the first respondent’s appeal was rejected, and his dismissal
upheld. Following his dismissal, the first respondent
referred a
dispute to the CCMA, which culminated in the arbitration before the
commissioner. At the arbitration, the only issue
in dispute was the
substantive fairness of the first respondent’s dismissal.
[7]
Regarding the existence of a rule or standard, the commissioner found
on the evidence that the appellant had a policy (referring
to the
original policy) in place, which prohibited employees from receiving
favours from suppliers without prior approval of senior
management
and required employees who received gifts or favours to declare them,
by recording them in the gift register. He found
the original policy
to be fair and reasonable as it clearly specified the circumstances
under which employees may receive gifts
and favours from suppliers,
and as such prevented the appellant’s employees from exposing
themselves to situations where
they might compromise the appellant’s
ethics and business standards. Regarding the first respondent’s
knowledge of
the original policy, the commissioner found that the
first respondent could reasonably be expected to be aware of it as,
despite
his denial of knowledge thereof, he did not put into dispute,
in cross-examination, the testimonies of Mr K Modisakeng
(“Modisakeng),
Mr GL Martin (“Martin”) and Visagie
respectively, that the original policy had been in existence for a
period in excess
of five years prior to his dismissal, and that it
was communicated to all employees during induction. Similarly, in
relation to
the first respondent’s knowledge of the brief, the
commissioner found that, despite the first respondent’s denial
of
having received the brief on 1 July 2005, he could reasonably be
expected to have been aware of it prior to the hunting trip, because
he failed to put into dispute, in cross-examination, the testimony of
Modisakeng that the brief was emailed to all employees of
the mine
including to himself; that it was discussed in staff meetings; and
that he personally displayed it on noticeboards for
the staff to see.
[8]
Regarding whether the first respondent contravened the policy, the
commissioner found:
‘
It
was common cause that Mr De Beer was invited to a hunting trip by Mr
Scheepers a representative of Zalsplice, a supplier of services
to
the Respondent. De Beer attended the hunting trip on the 17
th
July 2005, where he shot a wildebeest buck. Mr Scheepers of Zalsplice
transported the buck to Mr De Beer’s house’s
(sic) in the
company bakkie, and De Beer did not pay for the transport of the
buck. Mr Scheepers confirmed that he did Mr De Beer
a favour, by
transporting the buck in the company bakkie. De Beer did not have the
prior approval of a senior management to receive
such a favour and he
failed to declare the favour he received from Zalsplice. Mr Bamberger
testified that he did not give permission
for Scheepers to transport
De Beer’s buck for him in the company bakkie. De Beer dealt
with Scheepers regularly in the course
of his employment. Scheepers
submitted quotations to De Beer, who would obtain orders for
business, get the approval of the engineer,
and award business to
Zalsplice. According to the evidence of the section engineer Mr
Ngakane, Zalsplice was the only supplier
of conveyor belt parts, and
the other two suppliers were kicked out by management. De Beer
admitted that he could have influenced
management to use Zalsplice as
the sole supplier of conveyor belts at Bafokeng Rasemone Mine. The
fact that De Beer and Scheepers
were friends from school did not
nullify the fact that De Beer could have used his position as
engineering overseer to influence
management’s decision to
award business to Zalsplice only, and kick out the other contractors.
One of the fiduciary duties
of employees in terms of common law
contract of employment is to act in good faith and in the employer’s
best interests.
See Philips v Fieldstone Africa Ltd (2004) 25 ILJ
1005 (SCA). By acting in a manner that is contrary to his employer’s
policy,
De Beer was in breach of his fiduciary duty. On the balance
of probabilities, I find that Mr De Beer contravened a workplace rule
of standard’
Regarding
whether dismissal was an appropriate sanction, the commissioner found
that the first respondent’s acceptance of
a favour from a
supplier’s employee (Scheepers), without prior approval of
management and without declaring the favour constituted
dishonest
conduct for which the sanction of dismissal was appropriate. In the
result, the commissioner concluded that the first
respondent’s
dismissal was substantively fair, and upheld his dismissal.
[9]
Aggrieved, the first respondent launched an application to review and
set aside the award. The thrust of the Labour Court’s
judgment,
which deals with the commissioner’s findings that the first
respondent contravened the rule, is this:
‘
However,
even if the applicant was found to be aware of the rule, I am in
agreement with the applicant’s submission that no
reasonable
arbitrator could have concluded that his conduct constituted breach
of such a rule. The only and extremely tenuous link
to the supplier
was that Scheepers was an employee of the supplier and had used its
vehicle, which he was entitled to do over weekends.
There was no
evidence that Scheepers had at the time been acting in the course and
scope of his employment with Zalsplice. Instead,
the evidence was
that the incident occurred during private social interaction between
friends and was entirely unrelated to the
employment of either
Scheepers or the applicant, or indeed the relationship between the
first respondent and its supplier. In fact
the evidence was that
Zalsplice was already the sole supplier of the relevant products to
the mine. There was no evidence of any
attempt to influence orders
from the mine (or that the applicant had the power to do so) or any
money changing hands or any sponsoring
or subsidisation of the trip
by any party. The evidence of Visagie was that the aim of the gifts
policy was to warn employees about
the consequences of bribery and
corruption. The arbitrator’s conclusion that the favour
constituted a favour by a “supplier”
and as consent had
not been obtained and the favour was not declared the applicant was
guilty of “acts of dishonesty”
constitutes a reviewable
irregularity. There was no evidence that the applicant attempted to
deceive his employer – instead
he co-operated fully with the
investigation and did not conceal information. Even if he was aware
of the policy there is no reason
for him to have considered a favour
from a friend to fall within its ambit. There was no evidence
whatsoever of dishonesty and
the arbitrator’s finding to that
effect reflects a failure
to
apply his mind and constitutes a gross irregularity.’
[10]
Dealing further with the commissioner’s finding of dishonesty,
the Labour Court found:
‘
The
arbitrator, let alone failing to apply his mind to the fact of
whether the breach of policy (even if the breach had been proved)
constituted “acts of dishonesty”, had no regard to the
effect of the dishonesty on the employment relationship. He
merely
concludes that there is authority for dismissal being an appropriate
sanction for dishonesty but fails to determine whether
it is
appropriate in this instance. This is not a conclusion that could
have been reached by a reasonable arbitrator. There was
no evidence
that the trust relationship had been broken by the applicant’s
conduct. The leap of logic was not one a reasonable
arbitrator could
have made.’
The
Labour Court accordingly set aside the commissioner’s award on
the basis of it being unreasonable, and substituted it
with an order
that the first respondent’s dismissal was substantively unfair
and that he be reinstated.
[11]
The Labour Court, in my view, misapplied the review test as
enunciated by the Constitutional Court in
Sidumo
for determining the substantive fairness of a dismissal i.e. “is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[1]
− as it simply failed to consider whether its finding that the
commissioner’s award was unreasonable was, nevertheless,
capable of justification on all the evidence before the commissioner.
In
Herholdt,
[2]
which
endorsed and clarified the operation of the
Sidumo
test, the SCA emphasised that an award of an arbitrator will only be
set aside on review if both the reasons and the result are
unreasonable. It held that in determining whether the award is
unreasonable, the Labour Court must broadly evaluate the merits
of
the dispute and consider whether, if the arbitrator’s reasoning
is found to be unreasonable, the result is, nevertheless,
capable of
justification on all the material before the arbitrator, including
for reasons not considered by the arbitrator. The
SCA in
Herholdt
further held that the result of an arbitrator’s award will be
unreasonable if it is entirely disconnected with the evidence,
unsupported by any evidence and involves speculation by the
arbitrator.
[3]
It follows from
this that an arbitrator’s award will be reasonable when there
is a material connection between the evidence
and the result, or, put
differently, when the result is supported by some evidence. Thus as
observed by the SCA:
‘
A
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator. Material errors of fact, as well as the weight and
relevance to be attached to particular facts, are not in and
of
themselves sufficient for an award to be set aside, but are only of
any consequence if their effect is to render the outcome
unreasonable.’
[4]
[12]
Endorsing this view, this Court in
Goldfields,
[5]
subsequently
rejected the fragmented or piecemeal approach to reviews by
highlighting that the Labour Court should not engage in
a piecemeal
analysis of each of the arbitrator’s findings, because this
will “assume the form of an appeal” as
opposed to a
review. Instead, the reviewing court must consider the totality of
evidence with a view to determining whether the
result is capable of
justification. Unless the evidence viewed as a whole causes the
result to be unreasonable, errors of fact
and the like are of no
consequence and do not serve as a basis for a review.
[6]
[13]
Counsel for the first respondent, at the hearing of the appeal,
conceded wisely, in my view, the existence of the appellant’s
policy against accepting gifts and favours, and that he was aware of
the policy. As in the review application, however, the first
respondent persists in his denial that he contravened the policy by
accepting a favour from Scheepers, who though a representative
of
Zalsplice, a supplier to the mine, was his friend. In support of this
denial, the Labour Court found that no reasonable commissioner
could
have found that the first respondent breached the relevant rule for
basically two reasons: firstly because the only link
to the supplier
(Zalsplice) was that Scheepers was an employee of the supplier and
made use of its vehicle (which he was entitled
to use), with the
whole incident involving a private social interaction between
friends, unrelated to the relationship between
the company and the
supplier; and secondly, because Zalsplice was already a sole supplier
to the mine, and there was no evidence
of any attempt to influence
orders or of any sponsoring/subsidisation of the hunting trip. While
the Labour Court was clearly of
the view that the commissioner’s
finding that the first respondent breached a disciplinary rule was
erroneous (for the reasons
mentioned by it), it failed to consider
whether such finding was, nevertheless, capable of justification on
all the material before
the commissioner, including for reasons not
considered by the commissioner. That the Labour Court ought to have
done so appears
from both
Heroldt
and
Goldfields
.
[14]
Had the Labour Court undertaken this analysis, it would, in my view,
plausibly have found that the commissioner’s conclusion
that,
the first respondent had breached a disciplinary rule was not
unreasonable for two reasons: firstly because the first respondent
had been aware of the brief before his hunting trip on 16-17 July
2005, and secondly because the case which he advanced, at the
arbitration hearing, that he had not received the brief on 1 July
2005 because he was left off the ZZG database, was entirely in
conflict with the (spurious) case that he advanced in his appeal
inquiry, which was that he was of the habit of deleting all emails
sent to the ZZG database. Modisakeng testified that immediately upon
receiving the brief by email, on 1 July 2005, he pinned copies
on
notice boards around the mine including in the change house and
offices. However, the first respondent’s version that
he had
not read the brief because there was no notice board “on [his]
way, not even in the change house”, was not put
to Modisakeng
under cross-examination. The rule contained in the brief is explicit:
with immediate effect, there was a total ban
on all “favours,
hospitality and gifts” of whatever nature from any supplier, no
matter how insignificant. That the
first respondent himself was
concerned, and rightly so, that the brief covered the cartage of his
buck, is apparent from the lengths
that he went to in attempting to
prove that he did not receive the brief until 4 August 2005. Indeed,
it was a key part of his
defence, that he only saw the brief for the
first time after his hunting trip, on 4 August 2005, when
Bezuidenhout emailed it to
him.
[15]
It was
common cause that the cartage of the buck constituted a favour that
was undertaken by Zalsplice’s representative servicing
the mine
(Scheepers) using Zalsplice’s bakkie. This, in my view, was
sufficient to bring it within the broad terms of the
prohibitions
contained in the brief. What served to strengthen this nexus is that
Scheepers, on the version of his managing director
(Bamberger),
breached Zalsplice’s policy by not obtaining permission to go
on an hunting trip with the first respondent (an
employee of a
client) and do the favour in question for him. The friendship between
the first respondent and Scheepers did not,
as contended for the
first respondent, render the total prohibition of favours covered by
the brief inapplicable to interactions
between them. Therefore, the
fact that the Labour Court held a different view, did not render the
finding of the commissioner on
this aspect unreasonable.
[16]
I am of the view that it was not necessary, as found by the Labour
Court, to demonstrate for purposes of establishing a breach
of the
prohibitions contained in the brief that, the first respondent could
necessarily influence the awarding of work to Zalsplice.
It was
sufficient that the first respondent, by his own admission, gave
input into such decisions, and that Scheepers interacted
with him
over quotations and did not know how the approval process worked. It
was equally unnecessary, for purposes of establishing
a breach of the
prohibition, to establish, as found by the Labour Court, that
Scheepers sought to influence orders, or that Zalsplice
paid in any
way for the hunting trip. In the circumstances, I consider the
commissioner’s finding that the first respondent
was guilty of
having breached the prohibition against accepting favours, contained
in the brief, to be reasonable.
[17]
The Labour Court found the commissioner’s finding on dishonesty
and dismissal to be unreasonable because there was no
deception on
the part of the first respondent and there was no reason for him to
have considered a favour from a friend as falling
within the ambit of
the prohibition. In addition, the Labour Court found that there was
no evidence of dishonesty, and even if
the first respondent was
dishonest, the commissioner did not consider its impact on the
employment relationship. Nor did he consider
whether dismissal was
appropriate in the circumstances; instead he merely concluded that
there is authority for dishonesty warranting
dismissal. Again, it is
clear that the Labour Court disagreed with the commissioner, but it
once again failed to consider whether
the commissioner’s
finding, that the sanction of dismissal was appropriate, was capable
of justification on the totality
of the evidence before him. If the
Labour Court had undertaken this analysis, it would, plausibly, have
come to the conclusion
that the commissioner’s decision on
sanction was not unreasonable − because once it is accepted
that the first respondent’s
version, that he was not aware of
the brief until 4 August 2005, was contrived, and that he was aware
that the prohibition covered
the cartage of his buck, this leaves the
first respondent without a reasonable explanation for failing to
comply with the prohibition
at the time of the hunting trip, and
failing to disclose the favour afterwards. Seen thus, it can
reasonably be inferred that the
first respondent purposefully did not
comply with the brief or purposefully did not disclose the favour
afterwards and therefore
acted deviously and with deception
(dishonestly
[7]
).
[18]
The brief makes it clear that a breach of the prohibition would
result in dismissal. Bezuidenhout’s covering note, of
4 August
2005, which reads “Please note!!!!!!!!!!! Don’t make
yourselves guilty”, is consistent with this. Thus
on the basis
of the zero-tolerance policy of the appellant in relation to the
acceptance of gifts, favours and hospitality from
clients and
suppliers, even if the first respondent was not dishonest, his
dismissal would, nevertheless, be sustainable.
[19]
Turning then to the Labour Court’s findings regarding
dishonesty, I consider it to have erred in finding that there was
no
deception on the first respondent’s part because he co-operated
fully with the investigation and that there was no reason
for him to
have considered a favour from a friend as falling within the ambit of
the prohibition. The appellant had, in this regard,
succeeded in
proving that the first respondent knew full well that the favour in
question fell within the ambit of the brief –
it being for this
reason that he was anxious to establish, at the arbitration hearing,
that he had not received the brief before
the hunting trip –
when it was clear, on the objective facts, that he had received the
brief on 1 July 2005 and, accordingly,
had full knowledge of the
total prohibition against accepting gifts, hospitality and favours
from suppliers before the hunting
trip. Although the only plausible
inference to be drawn from these proved facts is that the first
respondent was dishonest, the
Labour Court simply failed to
comprehend this. Regarding the findings by the Labour Court on
sanction, it is implicit in the commissioner’s
findings that in
view of the nature of the offence, which involved deception and
dishonesty and, in particular, the failure of
the first respondent to
demonstrate any acceptance of wrongdoing or remorse, he considered
the employment relationship to be destroyed
[8]
and dismissal an appropriate sanction. Indeed, the commissioner
determined sanction under the heading: “whether dismissal
was
an appropriate sanction”. The Labour Court accordingly erred in
finding that the commissioner failed to consider whether
dismissal
was appropriate in the circumstances of this matter.
[20]
The commissioner’s decision that the first respondent’s
dismissal was substantively fair, to my mind, clearly passes
the test
for reasonableness as it is supported by the evidence, and falls
within a range of reasonable responses to the first respondent’s
misconduct. I am unable, in the circumstances, to find that the
commissioner’s decision was one that a reasonable
decision-maker
could not make. For these reasons, I consider the
Labour Court to have erred in reviewing and setting aside the award
of the commissioner
on the basis that the outcome was unreasonable.
The appeal must accordingly be upheld. I consider this to be a matter
in which
there should be no costs order.
[21] In the result,
I make the following order:
(1)
The
appeal is upheld with no order as to costs.
(2)
The
order of the Labour Court in the review application is set aside and
replaced with the following order:
“
the
review application is dismissed with costs.”
F
Kathree-Setiloane
I
agree
Waglay
JP
I
agree
Dlodlo
APPEARANCES:
FOR THE
APPELLANT: Adv A Myburgh SC
Instructed by
Edward Nathan Sonnenbergs
FOR THE FIRST
RESPONDENT: Adv G Fourie
Instructed
by Howes Inc Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC) at para 110.
[2]
Herholdt
v Nedbank Ltd (COSATU as amicus curiae)
[2013] 11 BLLR 1074
(SCA).
[3]
Herholdt
at paras 12 and 13.
[4]
Herholdt
at para 25.
[5]
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
[6]
Goldfields
at
paras 18-21.
[7]
Nedcor
Bank Ltd v Frank and Others
[2002] 7 BLLR 600
(LAC) at para 16: ‘Dishonesty entails lack
of integrity or straightforwardness and, in particular, a
willingness to steal,
cheat, lie or act fraudulently …’
As found in
Theewaterkloof
Municipality v Sa Local Government Bargaining Council (Western Cape
Division) and Others
(2010) 31 ILJ 2475 (LC) at para 21, there are different forms and
shades of dishonesty.
[8]
Insofar
as the requirement to lead evidence to establish a breakdown in the
employment relationship is concerned,
Edcon
Ltd v Pillemer NO and Others
[2010] 1 BLLR 1
(SCA) turned on its own facts, and was not the law
when the commissioner’s award in this dispute was handed down.