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[2015] ZALAC 32
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National Union of Mineworkers and Another v Mogale Gold, A Division of Mintails (SA) (Pty) Ltd (JA11/2014) [2015] ZALAC 32; [2015] 10 BLLR 1016 (LAC); (2015) 36 ILJ 2815 (LAC) (22 July 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 11/2014
In the matter between:
NATIONAL UNION OF
MINEWORKERS
Appellant
GOODMAN MOKOENA
Second Appellant
and
MOGALE GOLD, A
DIVISION OF MINTAILS (SA) (PTY) LTD
Respondent
Heard:
26 May 2015
Delivered:
22 July 2015
Summary: Review of
arbitration award- employee dismissed based on inference drawn from
circumstantial facts – employee dismissed
for collusion of
theft of gold –gold and refinery equipment found at other
dismissed employees’ homes - employer relying
on unqualified
lifestyle audit of employee and suspicious behaviour caught on video
– Labour Court setting aside arbitration
award. Appeal - Labour
Court relying on circumstantial evidence - facts from which
inferences are to be drawn must be true and
proven - primary facts
from which inference of collusion drawn not proven – no
material evidence linking employee to the
theft – video footage
depicting no incriminating action - Labour .Court erring in reviewing
arbitration award – appeal
upheld.
Coram: Tlaletsi
DJP, Landman
et
Sutherland JJA
Neutral citation:
Mokoena
and Another v Mogale Gold, a Division of Mintails (SA) (Pty) Ltd
(LAC: JA 11/2014)
JUDGMENT
LANDMAN JA
[1] The National Union of
Mineworkers and Goodman Mokoena (first and second appellants) appeal
against an order of the Labour Court
(Chenia AJ) reviewing and
setting aside an arbitration award at the instance of Mogale Gold, a
Division of Mintails (SA) (Pty)
Ltd (the respondent). The appeal is
with leave of the court
a quo
.
The facts
[2] The second appellant
worked for four years as a plant attendant in the smelt house of
Mogale Gold. Prior to his dismissal, he
was working with two other
attendants, namely Masemola and Sithole, the foreman and a senior
security officer when he was suspended,
charged with theft, attempted
theft or collusion in the theft of gold.
[3] Employees assigned to
the smelt house where gold is smelted, were screened for these
positions. Their history is checked against
Police records. They also
undergo a polygraph test. Normally, only these persons are permitted
to enter the smelter house but others
also enter under escort.
Employees are searched when they leave the smelt house.
[4] A metallurgical audit
showed that all gold was not accounted for. There was a discrepancy
of 3.5 kg. Jacobs, the Plant Manager,
a metallurgical engineer,
established that there was no process reason which accounted for the
loss and concluded that gold had
been stolen. It is not clear whether
the only avenue for this gold to be misappropriated was the smelt
house.
[5] The smelt house
consists of an entrance hall, furnace room and a storeroom. Jacobs
inspected the smelt house and concluded that
the three plant
attendants, whose names have been mentioned above, were acting
suspiciously. After the three had left the smelt
house that day,
Jacobs and Human, the Senior Security Officer, searched the smelt
house and found in a cabinet, Vaseline, as well
as a gold,
concentrate rich cloth hidden in the wall of the smelt house near the
entrance. The cloth was not supplied by the mine.
[6] A disguised camera
(without a capacity to record sound) was installed in the smelt
house. Later, Jacobs viewed the video and
considered that the body
language of the three attendants was suspicious. Human too thought
their body language suspicious.
[7] The footage shows
that while Mokoena and Masemola stood at the door, Sithole went into
the storeroom and took something from
underneath a pallet and put it
in his right boot. Sithole then left the smelt house and went to the
change room. An extract of
the video was presented at the arbitration
hearing and viewed by the arbitrator, then the court
a quo
and
this Court. The video viewed by this Court does not depict what
happened in the storeroom.
[8] After two days, the
smelt house was again searched. Sithole’s house was searched
and gold and money were found there.
Equipment used to wash and
refine gold was found at Masemola’s house.
[9] Nothing incriminating
was found at the second appellant’s home. Human testified that
expensive furniture and clothing
was found in his house. He testified
that this could not have been acquired on the combined income of the
second appellant and
his wife.
[11] Several employees
including Jacobs, the foreman Coetzee, Human, the security guard and
the plant attendants underwent a polygraph
test. According to
Killian, who did not personally administer the test, he is of the
opinion that the polygraph results showed
deception in the case of
the second appellant.
[12] There has been a
gradual improvement in gold accounted for since the suspension and
dismissal of the three plant assistants.
[13] The second appellant
denied that he had committed theft, or attempted to steal gold or
that he colluded with Sithole and Masemola
or that he knew of their
activities. He failed a polygraph test because he was nervous. He had
bought his furniture while previously
employed and paid it off in
monthly instalments. He said that the conversation captured on the
video was about a disagreement with
his wife. He viewed the video and
did not think that it showed any suspicious behaviour.
[14] The arbitrator
concluded that the employer had not proved its case and therefore
found that the dismissal was substantively
unfair. The arbitrator
accepted that the second appellant’s conduct may have
inadvertently evoked a measure of mistrust but
he found that the
trust relationship had not been broken and therefore he reinstated
the second appellant.
[15] The respondent
launched an application to review and set aside the award.
[16] The court
a quo
held that the arbitrator:
(a)
had
considered the evidence on a piecemeal basis and rejected each piece
of the evidence in a manner that is “not reasonable”;
(b)
failed
to appreciate that the dispute was required to be determined on the
basis of largely circumstantial evidence;
(c)
made
up his mind and attempted to analyse the evidence to justify his
decision; and
(d)
failed
to apply his mind to the video evidence.
[17] The court
a quo
considered that it was not unfair of the employer to have ordered the
second appellant to have undergone a polygraph test. This
is correct
as it was a term of his contract of employment. But the court
a
quo
neglected to inquire into the accuracy and credibility of a
polygraph test. No comment was made on the fact that the expert who
formed an opinion that the second appellant showed deception did not
himself apply the polygraph test.
[18] The court
a quo
viewed the video and found that the arbitrator did not apply his mind
to the evidence and that his conclusions were not justified.
The
court
a quo
found that the video shows that the attendants
were not working. But it is doubtful whether they were required to
perform any duties
at that stage when the foreman was engaged in
firing up the furnace. The court
a quo
also opined that the
attendants were looking around to ensure that no one else was around
when one of them entered the storeroom.
[19] The court
a quo
found that the arbitrator’s conclusion about what Sithole was
doing was speculative but fails to record its own observations
of
Sithole’s behaviour.
[20] The court
a quo
rejected the second appellant’s evidence that the three
attendants were discussing “women problems” saying that
it was improbable that he would do this in the middle of a working
day and have an involved conversation. But the arbitrator saw
the
witness and believed him.
[21] The court remarked
that the arbitrator was naive when he decided that there was no
direct evidence that the second appellant
was guilty. But later found
that it was correct that there was no direct evidence linking the
second appellant to theft or the
illegal removal of gold.
[22]
The court
a
quo
relied on evidence of a “lifestyle audit” that the second
appellant and his spouse could not have financed the family’s
lifestyle. It is true that Human tendered such an opinion and
referred to photographs but no lifestyle audit was done. There was
no
proper attempt to value the clothing and furniture belonging to the
second appellant’s family.
Evaluation
[23]
At the time that the dismissal was considered by the arbitrator, the
issue had been narrowed to collusion although the arbitrator
considered all the charges. There is no direct evidence of collusion.
The respondent presented circumstantial evidence to the arbitrator.
The arbitrator appreciated that this was the case. The approach to be
adopted when an inference is sought to be drawn from other
facts was
summarised in
Cooper
and Another NNO v Merchant Trade Finance Ltd.
[1]
.
Zulman JA observed that:
‘
It
is not incumbent upon the party who bears the
onus
of proving an absence of an intention to prefer to eliminate by
evidence all possible reasons for the making of the disposition
other
than an intention to prefer. This is so because the Court, in drawing
inferences from the proved facts, acts on a preponderance
of
probability. The inference of an intention to prefer is one which is,
on a balance of probabilities, the most probable, although
not
necessarily the only inference to be drawn. In a criminal case, one
of the 'two cardinal rules of logic' referred to by Watermeyer
JA in
R
v Blom
is that the proved facts should be such that they exclude every
reasonable inference from them save the one to be drawn. If they
do
not exclude other reasonable inferences then there must be a doubt
whether the inference sought to be drawn is correct. This
rule is not
applicable in a civil case. If the facts permit of more than one
inference, the Court must select the most 'plausible'
or probable
inference. If this favours the litigant on whom the
onus
rests he is entitled to judgment. If, on the other hand, an inference
in favour of both parties is equally possible, the litigant
will not
have discharged the
onus
of proof.’
[2]
[Footnote
omitted]
[24] The facts from which an inference
of collusion is sought to be drawn are the following:
(a)
One
of the three plant attendants entered the storeroom alone – the
proposed inference is that his co-workers allowed him
to do so in
breach of the respondent’s rule;
(b)
The
second appellant and Masemola are seen standing at the
doorway/entrance to the smelt house – the proposed inference is
that the two were so positioned to watch for the return of the
foreman.
(c)
The
attendants appeared to be talking to each other.
(d)
Plastic
bags and Vaseline were found in the storeroom – proposed
inference is that the gold particles were placed in the bags
for
illicit removal. The Vaseline was used to assist in inserting the
bags of gold anally and that the gold was removed from the
smelt
house in this fashion.
(e)
The
three attendants worked in close proximity – it is to be
inferred that the collection, secretion and removal of the gold
could
not be done without the second appellant noticing this.
(f)
Gold
was recovered from the home of Sithole and refining equipment from
Masemola’s home. These attendants stole the respondent’s
gold.
(g)
Furniture
and clothing was found in the second appellant’s home and Human
testified that the second appellant and his wife
were unable to
afford these items and the inference is that these items were
acquired with illicit income.
(h)
The
second appellant attended the criminal trial of his two co-workers.
(i)
The
second appellant failed a polygraph test and the inference is that he
showed signs of deception.
[25] The facts from which inferences
are to be drawn must be true and proven. Although all the facts must
be considered holistically,
it is necessary to examine the facts to
establish that they are true and proven. Secondly, as the inference
of collusion also involves
drawing an inference from other facts that
are themselves inferences from the primary facts, these initial
inferences must be interrogated.
Only when the proper facts including
the inferences made from those facts have been satisfactorily
established, may the final inference
of collusion be attempted.
[26] It may be accepted that certain
rules were put in place by the respondent that applied to the workers
in the smelt house. But,
it seems that, regardless of the rules,
there was a common practice in the smelt house to ignore some rules.
The storeroom was
not kept locked and the foreman would have observed
it as the video shows. The foreman and the attendants ignored any
rule regarding
the use of cellphones and that no one should enter the
storeroom unaccompanied. The security officer presumably did not
react to
the employees carrying cellphones into the smelt house. The
fact that the second appellant and the other attendants broke the
rules
is therefore not particularly significant.
[27] In drawing an inference from the
facts, it must be borne in mind that we do not know what duties, if
any, the three attendants
were obliged to be performing at the time
reflected on the video. Objectively, it cannot be said that the
second appellant and
Masemola were keeping a lookout.
[28] The plant attendants were talking
either with each other or in groups of two and some were talking to
the foreman. There is
no evidence by the respondent as to what they
were talking about. The second appellant testified about what they
were talking about.
His explanation in the absence of any contrary
suggestion is plausible and he was believed by the arbitrator.
[29] It may be also accepted that
Vaseline and packets together with gold and equipment found at the
homes of Sithole and Masemola
demonstrate that gold could be
illicitly removed using this method and probably was used to do so.
[30] We do not know if other
attendants were also employed in the smelt house. It is hardly
plausible that two attendants could
not do what it is suggested they
did without some knowledge of their activities by the second
appellant.
[31] The furniture and clothing found
in the second appellant’s home was not valued by an expert nor
was any investigation
done as regards when the items were acquired or
how and what was paid for them. It may be accepted that the second
appellant attended
the trial of his co-workers. This is highly
suspicious.
[32] One fact which tends to diminish
to a degree the inference sought to be drawn is the fact that thefts
continued and the loss
gradually diminished after the suspension and
dismissal of the three co-workers.
[33] Finally, the testimony of the
second appellant that he did not know of the theft and did not
collude with his co-workers was
accepted by the commissioner. In
spite of the probabilities, a court or tribunal may believe a witness
and find that the truth
lies in that testimony. This Court has not
had the opportunity of viewing the second appellant giving evidence.
So, although I
am inclined to accept that the most plausible
inference on the respondent’s evidence is that the second
appellant must have
and therefore did have knowledge of the theft of
gold in the smelt house, the primary decision-maker is the arbitrator
and he had
all the advantages of hearing the witnesses. This being an
appeal concerning a review, I am unable to say the arbitrator’s
decision was not one that a reasonable decision-maker would not
reach. In the circumstances, the appeal must be upheld.
[34] Reinstatement is the primary
remedy for an unfair dismissal. The arbitrator formed the impression
that the trust relationship
had not broken down and ordered
reinstatement. There is no cause to interfere with this order.
Order
[35] In the premises, I make the
following order:
1.
The
appeal is upheld with costs.
2.
The
judgment of the Labour Court is set aside. It follows that the award
stands. The award reads:
‘
1.
I find that the dismissal of the applicant was substantively unfair.
3.
The
respondent is to reinstate the applicant on the same terms and
conditions as he enjoyed prior to his dismissal.
4.
The
order of reinstatement shall operate retrospective to the date of the
applicant’s dismissal on 24 April 2009.
5.
The
respondent is to pay the applicant backpay for the period between the
date of dismissal (24 April 2009) and the date he resumes
services
(01 April 2010).
6.
The
respondent must pay the applicant the sum of R36 949.00 (thirty six
thousand nine hundred and forty nine Rands) being the equivalent
of
11 months arrear remuneration. This amount must be paid on or before
31 March 2010.
7.
The
applicant is ordered to report for duty at Mogale Gold (Pty) Ltd,
Krugersdorp and to report to Mr Bryan Willemse, Human Resources
Manager, on 01 April 2010.
8.
Since
no costs were sought by neither party, none is ordered.’
3.
The second appellant is
ordered to report for duty at the Respondent’s premises
within
14 days of delivery of this judgment and the respondent is order to
pay the arrear remuneration (back pay) owing as from
24 April 2009
within 21 days of this order.
__________________
AA Landman JA
Tlaletsi DJP and Sutherland JA concur
in the judgment of Landman JA
APPEARANCES:
FOR THE APPELLANTS: Mr Makinta of E S
Makinta Attorneys
FOR THE RESPONDENT: Adv F A Boda
Instructed by Norton Rose Fulbright
South Africa
[1]
2000 (3) SA 1009
(SCA)
.
[2]
A
t para 7; 1027E –
1028D.