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[2015] ZALAC 10
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National Union of Mineworkers and Another v Commission for Conciliation, Mediation & Arbitration and Others (JA123/2013) [2015] ZALAC 10; (2015) 36 ILJ 2038 (LAC) (29 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Case no:
JA123/2013
DATE: 29 APRIL
2015
In
the matter between:
THE
NATIONAL UNION OF
MINEWORKERS
........................................................
First
Appellant
A
M
MAPHISA
............................................................................................................
Second
Appellant
And
THE
COMMISSION FOR CONCILIATION,
MEDIATION
&
ARBITRATION
...............................................................................
First
Respondent
SINGH,
M
N.O
..........................................................................................................
Second
Respondent
IMPALA
PLATINUM
REFINERY
...........................................................................
Third
Respondent
Heard
: 25 November 2014
Delivered:
29 April 2015
Summary:
Review of arbitration award – employee charged for being an
accomplice to an attempted theft- commissioner finding
employee’s
dismissal substantively unfair- employee failing to provide
reasonable explanation for being connected to the
theft –
employee making contradictory statement about his whereabouts at the
time of the commission of the infraction. Evidence
pointing to the
fact that employee seen in the building and his telephone pin code
used to make calls around the time of the commission
of the theft –
evidence also showing that employee’s uncle car used as a
get-away car. Labour Court’s judgment
upheld - arbitration
award set aside- dismissal of employee substantively fair.
Coram:
Waglay JP, Musi JA
et
Dlodlo AJA
JUDGMENT
DLODLO AJA
Introduction
[1] This is an
appeal against the judgment of the court
a quo
(Snider AJ)
delivered on 10 April 2013 reviewing and setting aside the CCMA
Commissioner’s award and referring the matter
back to the CCMA
(to be presided over by a Commissioner other than the Second
Respondent herein).
[2] On Thursday 18
February 2010, at approximately 12h20, an attempt was made to steal a
quantity of pure precious metals (referred
to as precious group
metals or (PGM) from the refinery operated by the Third Respondent
(Impala Refinery). An employee came to
an upstairs room used as a
supervisor’s office which he found locked. Looking through the
door window he saw two unknown
men wearing orange hard hats standing
inside the office. These unknown men opened the door and left,
walking past the employee.
On entering the office, he noticed that
one of the windows to the office was broken and near it he found a
blue bucket containing
parcels of PGM material. A hammer was lying
nearby.
[3] When the
employee looked outside the window into the road, he saw another man
dragging a white bag along the ground, looking
around and talking on
his cellphone. When the latter man was approached by a security
officer on a motor cycle, he hurriedly jumped
into a green Audi motor
car which sped off. The security officer on the motor cycle gave
chase. One of the occupants of the green
Audi car threw out a parcel.
The parcel was examined and found to contain PGM originating from
theThird Respondent.
[4] Investigations
revealed that Mr Maphisa (the Second Appellant herein) had been seen
on the stairs leading to the supervisor’s
office from where the
material was apparently thrown. Investigation further revealed that
at the time that the attempted theft
was being perpetrated, Mr
Maphisa appeared to have been phoning an external person on their
cellphone and that the green Audi motor
car used as the “get-away
vehicle” belonged to Mr Maphisa’s uncle, with whom he
lived. Mr Maphisa was interviewed
and he gave what the employer’s
investigator believed, were unsatisfactory answers.
[5]
Mr Maphisa was charged with being an accomplice to the theft and the
sanction imposed on him was dismissal. He challenged the
procedural
and substantive fairness of his dismissal in the CCMA. On 2 February
2011, the Commissioner issued an award in which
she found that the
dismissal of Mr Maphisa was substantively, (but not procedurally)
unfair and she ordered the Third Respondent
to reinstate him and pay
him compensation equivalent to three months’ salary as “back
pay”. It must, however,
be mentioned that the court
a
quo
granted
leave to appeal on the basis that it had applied the principles
relating to process or dialectic review which had been disapproved
of
by the Supreme Court of Appeal in
Herholdt
v Nedbank Limited
.
[1]
[6] The Commissioner
made an observation that the charge which Mr Maphisa faced was
“curious” and vague in that it did
not clearly define the
misconduct. In truth, the charge could have been worded more clearly
but it does refer to the allegation
that Mr Maphisa was guilty of.
The allegation was clearly that Mr Maphisa had been an accomplice to
or had an involvement in the
theft or attempted theft which took
place at Impala Refinery on 18 February 2010. It is common cause or
it is at least undisputed
that there was an attempt made on 18
February 2010 to steal valuable minerals and metals from the Third
Respondent. It is not disputed
that unauthorised persons were seen in
an upstairs office where a window had been broken with a hammer to
enable the precious metals
to be thrown out onto the ground below and
that the metals were collected by another accomplice and transported
in a green Audi
motor car. The important issue is whether Mr Maphisa
was sufficiently connected with those events to the extent that an
inference
can be drawn that he made common purpose with those persons
committing the theft.
[7]
We bear in mind that circumstantial evidence depends for its
persuasive power on its cumulative effect and that, at some stage,
many
indiciae
may point to the same conclusion that one may properly say is the
most probable one to be drawn.
[2]
It is quite permissible to draw an inculpatory inference from the
weakness of a Respondent’s evidence.
[3]
The probabilities need balancing. It is also an important principle
to remember that Courts in making inferences in civil cases
often
select a conclusion which seems to be the more natural or plausible
one from amongst several conceivable ones. They do that
even if that
conclusion is not the only one.
[4]
It shall emerge
infra
that
Mr Maphisa failed to provide a reliable or credible explanation in
response to the evidence of De Necker as recorded
infra
.
It is this failure on his part that contributes significantly to the
ultimate inference that he was involved in the attempted
theft.
[8] It is common
cause that within the refinery is a secured building known as Service
Block 1. On 18 February 2010, De Necker entered
the building at
approximately 12h20. He ascended one flight of stairs to the control
room level and while walking past the male
toilets, he looked up and
observed Mr Maphisa ascending a second flight of stairs towards the
supervisor’s office. De Necker
went to fetch paperwork from the
Leach Control Room on the second level and then also ascended the
same stairs on which he had
earlier seen Mr Maphisa to go to the
supervisor’s offices on the top floor. It was there that he
discovered the door was
locked, he was passed by the two unknown men
in the hard hats and saw the broken window and bucket containing
precious metals.
During cross-examination De Necker confirmed that he
knew Mr Maphisa well by sight although the only time that he had
spoken to
him was when he had asked him his name. De Necker testified
that because the technicians’ rooms are usually locked, he
assumed
that Mr Maphisa was on his way to the supervisor’s
offices.
[9] It deserved to
be mentioned that Mr Maphisa had been observed going to the offices
where the misconduct or theft took place.
His presence there was
during the incident of theft. It was certainly not unreasonable for
his employer to investigate his presence
near the scene of the
offence. Importantly, Mr Maphisa was interviewed by one Mr Mokhwane,
the employer’s investigations’
manager following the
incident. Mr Maphisa denied that he could have been noticed going
upstairs towards the supervisor’s
office by De Necker. During a
second interview in the presence of Mr Nel and Mr Kemp, Mr Maphisa
denied going upstairs. At the
disciplinary enquiry, Mr Maphisa gave
several different versions, namely: (a) He disputed that he walked up
the stairs to the supervisor’s
office on the relevant date; (b)
He testified that he went to the supervisor’s room when called
and that if he was seen in
the building it might be that he was
around the stairs, but not on them; (c) When asked where he was
between 11h50 and 16h30, he
replied that he went to lunch that day,
but could not remember when he came back; (d) When asked where he was
at the time of the
attempted theft, he denied having gone up the
stairs, was not aware of the incident and therefore could not reply.
[10] Evidence from
access control system called Softcom revealed that Mr Maphisa used
his card to access the building (Service Block
1) at 12h07. This was
the entrance area where Mr Maphisa was seen by De Necker. There was
no evidence that Mr Maphisa left the
building until the access
control records that at 12h39 he exited the search area to leave the
building. Phone records reveal that
during the approximate time when
the offence was being committed, Mr Maphisa made two telephone calls
to a cellphone outside the
plant. The telephone calls emanated from
telephones within the plant and were made by a person using Mr
Maphisa’s personal
and confidential PIN number. Notably during
the disciplinary enquiry Mr Maphisa was asked who he was calling. His
reply was that
this was private, unless the company had evidence that
it was connected to the crime. He also stated that he does not recall
who
he phoned on that day because it was a long time ago. The
question was asked whether the call at 12h22 related to the crime and
he answered that he did not recognise the number on the printout so
he could not say – he does not know.
[11] By the time Mr
Maphisa had to testify at the arbitration, there was already strong
prima facie
evidence of his presence near the scene of the
offence. There was no innocent or exculpatory explanation for being
there. It was
not Mr Maphisa’s work area, it was not during
lunch time and he initially denied being there at all. He then said
he did
not know why he was there and could not explain why it
appeared that he had made two telephone calls to an outside cellphone
during
the time of the commission of the offence and when he was in
the building where the offence had been committed. The chairman of
the enquiry correctly in my view found Mr Maphisa guilty of aiding
the commission of the offence and dismissed him.
[12] It is important
to mention that at the arbitration, Mr Maphisa (for the first time)
offered an explanation. His explanation
was that he was present in
the building in order to change his overalls which had become dirty.
He denied being seen on the stairs
and contended that De Necker did
not know him well enough to recognise him. He denied that they had
ever spoken. He denied making
telephone calls to the outside
cellphone, contending that it was possible for someone else to have
used his confidential PIN number.
Mr Maphisa could not explain the
following though: (a) Why his version that he had been at the
premises to change his overalls
was not mentioned at the disciplinary
enquiry; (b) Why he had initially denied being in the building; (c)
Why he never challenged
De Necker’s evidence that he saw him on
the stairs during the disciplinary enquiry; (d) How, if he was
responsible for the
safety and security of his PIN number, persons
were using it to phone outside cellphones during the period when the
theft was taking
place.
[13] Clearly Mr
Maphisa’s version at the arbitration conflicted with his
version at the disciplinary enquiry. Mr Maphisa’s
failure to
explain his presence in the building where the offence was committed
gives rise to an inference that he had none. He
was seen on the
stairs – he gave no explanation for this. Indeed, the
reasonable inference consistent with the proven facts
is that Mr
Maphisa was present there for purposes of assisting those who
participated in the theft. The fact that the motor vehicle
of his
uncle with whom he resided was used as the “get-away” car
needed to be explained. It created suspicion even
though on its own
it is not sufficient to implicate Mr Maphisa.
[14]
It remains the duty of the presiding officer to make credibility
findings because he/she is better positioned to do so. Thus,
the
Commissioner made observation that the witnesses for both parties
were credible. However, Mr Maphisa’s evidence in the
arbitration stood in marked contrast to his evidence at the
disciplinary enquiry. No reasonable or rational explanation for this
is found on the record. A Court’s finding on credibility of a
witness ordinarily depends upon a variety of factors such as
the
witness’ candour and demeanour in the witness box, his bias,
latent or blatant, internal contradictions in his evidence,
external
contradictions in what was pleaded or put on his behalf, or with
established facts or with his own statements or actions
outside the
Court; the probability or improbability of particular aspects of his
version; and the caliber and cogency of his performance,
compared to
that of other witnesses testifying about the same incident or
event.
[5]
Courts on a number of
occasions have warned about the risk inherent in relying on the
demeanour of witnesses as a reliable guide
to credibility.
[6]
[15]
It has been suggested (correctly I must point out) that an assessment
of evidence based solely on demeanour without regard
for wider
probabilities constitutes a misdirection. A careful evaluation of the
evidence against underlying probabilities must
be carried out,
otherwise little weight can be attached to the credibility findings
of a judicial officer.
[7]
Apart
from numerous contradictions, Mr Maphisa’s explanations for
aspects of his evidence are improbable. It is improbable
that unknown
persons would be using his PIN to phone outside cellphones without
his knowledge at the time the offence is being
committed and when De
Necker is on his way to the supervisor’s office. A cumulative
look at the evidence and analysis thereof
lead one to the conclusion
(on the balance of probabilities) that Mr Maphisa was indeed involved
in the theft. It is not necessary
to establish the nature and extent
of his involvement. The point is that making common purpose with
persons engaged in a R2 million
theft of your employer’s
produce is a very serious misconduct which ordinarily warrants the
sanction of dismissal.
[16] The Supreme
Court of Appeal in
Herholdt
deprecated the process of
approach (at times referred to as one based upon dialectical
unreasonableness) and emphasised that
the proper approach in such
reviews was to examine the “outcome” of the award and
consider whether the result was unreasonable
or not. The test as
postulated by the Supreme Court of Appeal was summarised as follows:
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one the grounds in section 145 (2) (a) of
the LRA. For a defect in the conduct of the proceedings to have
amounted to a gross irregularity as contemplated by Section 145 (2)
(ii), the arbitrator must have misconceived the nature of the
enquiry
or arrived at an unreasonable result. 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.’
[8]
The
above does not differ from the known test, namely whether the award
is one that a reasonable decision-maker could arrive at
considering
the material placed before him. See
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others;
[9]
Gold Fields Mining South Africa (Pty) (Kloof Gold Mine) v Commission
for Conciliation, Mediation and Arbitration and Others.
[10]
[17] The primary
question for determination in this appeal is thus whether the
commissioner in deciding that Mr Maphisa’s
dismissal was
substantively unfair came to an unreasonable result. A second
question is whether the relief awarded by the Commissioner
was
unreasonable. Admittedly, the Commissioner made errors in her
approach in analysing the facts. The Commissioner found that
the
dismissal of Mr Maphisa was substantively fair but procedurally
unfair. The conclusion reached by the Commissioner was
not a
reasonable one if proper regard is had to all the evidence led at the
arbitration. Evidence points to the involvement of
Mr Maphisa.
Clearly, he had been involved or connected with the theft against his
employer and dismissal was entirely justified.
It would be
fundamentally unfair and unjust to expect an employer to retain in
his workplace an employee who has shown himself
to be dishonest.
[18] The
Commissioner concluded that the evidence that Mr Maphisa was guilty
of misconduct was: “
circumstantial and even on a balance of
probabilities does not establish that the Applicant (Mr Maphisa) was
guilty as charged,
directly involved or linked as the case may be to
the incident.”
The Commissioner found that the witnesses
for both parties were credible. I agree with the court
a quo
that the Commissioner failed to appreciate the significance of the
common cause evidence that Mr Maphisa was (at all material time)
not
at his working place but in a high security area. There was enough
corroborative evidence as shown above that implicated Mr
Maphisa. His
own evidence was full of obvious contradictions and omissions. There
are no merits in this appeal.
[19]
This Court asked Appellant’s counsel why would it be necessary,
(should the Court be inclined to dismiss the appeal)
to refer the
matter back to the Second Respondent (as ordered by the Court
a
quo
)
in circumstances where this Court was in as good a position as the
Second Respondent and/or the court
a
quo
to make a final decision regarding the substantive fairness of Mr
Maphisa’s dismissal. Counsel was given an opportunity to
address this query by way of a note. This he indeed did. The powers
of this Court when hearing appeals are provided for in Section
174 of
the Labour Relations Act.
[11]
Section 174 in part provides that the Labour Appeal Court has the
power-
‘
(a)…
(a)
To confirm, amend or set aside the
judgment or order that is subject to the appeal and to give any
judgment or make any order that
the circumstances may require.’
On the face of the
above, the Appellant’s counsel in his note concedes that this
Court has the power as set out above. In
the ordinary course where
this Court holds that the wrong order was made by a court
a quo,
it may make the correct order itself. But in the instant matter, the
Third Respondent did not launch a cross-appeal in respect
of the
court
a quo’
s order referring the matter back to the
First Respondent for a re-hearing of the arbitration before another
Commissioner. It may
be that the Third Respondent was unconcerned
with an order referring the matter back for a re-hearing. Appellant’s
counsel
is of the view that should this Court make a determination
disposing of this matter without the need for referral back, the
Appellant
will be materially prejudiced. I, however, do not agree
with the above contention. I ask myself a rhetorical question, namely
what
shall another Commissioner decide on a matter that has served
before the First Respondent, the court
a quo
and before this
Court? The same evidence will be placed before the new Commissioner.
He (Commissioner) shall be aware of the pronouncements
by both this
Court and the court
a quo
. Shall this not be a futile exercise
exposing litigants to unnecessary costs?
[20]
As no purpose will be served in the matter being referred back to the
First Respondent to be arbitrated afresh, I believe it
is only
appropriate that my order confirms that the dismissal of the Second
Appellant was fair.
Order
[21]
In the circumstances, I make the following order:
(a)
The Appeal is dismissed with the order of
the court
a quo
amended to read:
“
The
award of the Commissioner dated 2 February 2011 under CCMA case
number AJB15565-10 is reviewed and set aside and replaced with
the
following: ‘The dismissal of the employee was fair’.
b)
There is no order as to costs.
Dlodlo
AJA
I
agree
Waglay
JP
I
agree
Musi
JA
APPEARANCES:
FOR
THE FIRST & SECOND APPELLANTS: Mr Phineas Motaung from
Nomali
Tshabalala Attorneys
FOR
THE RESPONDENTS : Adv A Redding SC
Instructed
by ENS Africa
[1]
Herholdt
v Nedbank
Limited
(2013) 34 ILJ 2795 (SCA).
[2]
SA
Nylon Printers (Pty) Ltd v Davids
[1998]
2 BLLR 135
(LAC) at 136.
[3]
Nylon
Printers
supra
at 137.
[4]
Ocean
Accident and Guarantee Corporation Ltd v Koch
1963
(4) SA 147
(A) at 159.
[5]
Stellenbosch
Farmers Winery Group Ltd and Another v Martell et Cie and Others
2003
(1) SA 11
(SCA) at para 5.
[6]
See
Body
Corporate of Dumbarton Oaks v Faiga
[1998] ZASCA 101
;
1999 (1) SA 975
(SCA) at 979 C to 1;
The
Owners of MV ‘Banglar Mookh’ v Transnet Ltd
2012 (4) SA 300
(SCA) at para 48.
[7]
Medscheme
Holdings (Pty) Ltd and Another v Bhamjee
2005
(5) SA 339
(SCA) at para 14.
[8]
Herholdt
,
at para 25.
[9]
[2007]
12 BLLR 1097
(CC).
[10]
[2014]
1 BLLR 20 (LAC).
[11]
66 of 1995 (LRA).