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[2019] ZALAC 61
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Khambule v National Union of Mine Workers and Others (JA89/17) [2019] ZALAC 61; (2019) 40 ILJ 2505 (LAC) (24 July 2019)
IN THE LABOUR APPEAL
COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA89/17
MBUYISENI MOSES
KHAMBULE
Appellant
and
NATIONAL UNION OF MINE
WORKERS
First
Respondent
IMPALA PLATINUM
LIMITED
Second Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Third Respondent
LANCE SELLIER
NO
Fourth
Respondent
Heard:
27 November 2018
Delivered:
24 July 2019
Summary: Review of
arbitration award – employee dismissed for uttering to his
supervisor to throw away the bag containing
precious metal –
company rule requesting employee to inform security and management
about any parcel found on its premises-
employee dismissed for
uttering the words to his supervisor- commissioner finding that
employee guilty but that dismissal too harsh
a sanction and evidence
not led about the breakdown in the trust relationship- court finding
that employer need not lead evidence
of the breakdown of the trust
relationship and that such emerges from the facts unless employee
specifically dismissed for breakdown
of the trust relationship.
Further that evidence led by superior insufficient to determine the
breakdown in the trust relationship
as both employee and his superior
continue working together after the words were uttered. Appeal upheld
and Labour Court’s
order set aside and substituted with an
order dismissing the review application.
Coram: Waglay JP,
Phatshoane ADJP and Savage AJA
JUDGMENT
WAGLAY JP
[1]
This is an appeal against the judgment and
order of the Labour Court (Van As AJ) reviewing and setting aside the
award handed down
by the Commission for Conciliation, Mediation and
Arbitration (CCMA) which found that the dismissal of the appellant
(employee)
by the second respondent (employer) too harsh a penalty
and, as such, to be substantively unfair. It also found the dismissal
to
be procedurally unfair and as relief the CCMA ordered the
employee’s reinstatement and limited the back-pay to two
months’
salary as compensation.
[2]
The Labour Court, having set aside the
award, substituted the award with an order that the dismissal was
substantively fair but
procedurally unfair and ordered the employer
to pay the employee five months’ salary as compensation.
[3]
The employee was employed as a Senior
Process Operator at a mining refinery which produced platinum group
metals (PGM). These metals
are of a very high value and susceptible
to theft. The employer has a rule understood and, to the knowledge of
every employee,
that any PGM found at or around the refinery must be
reported immediately to the security or management and must not be
moved,
touched or picked up.
[4]
On 19 September 2012, Steenkamp, the
employee’s superior who was working with the employee in a cab
of an ammonia tanker,
discovered hidden under the “foot-pedal”
a crudely sealed black bag. Steenkamp showed the bag to the employee
who told
Steenkamp not to report the bag to the security but to throw
it away. Steenkamp, of course, paid no heed to his underling and
promptly
reported both the bag and the statement made to him by the
employee to the security.
[5]
An investigation was conducted. It was
established that the bag contained just over 3.25 kg of PGM to the
value of over R450 000.00.
It does not appear that any result was
forthcoming as to how the bag got to be where it was found or who was
responsible for placing
it there or how and who was it directed to or
was to be collected by etc.
[6]
Some six months later, the employee was
charged for gross misconduct. The misconduct was the statement he had
made to his supervisor
Steenkamp that Steenkamp should throw away the
bag discovered.
[7]
In the six months preceding the
disciplinary hearing, both the employee and Steenkamp took their
annual leave and, when not on leave,
they worked together. In
essence, it can be said that a hearing could not take place for about
two of the six months. This is raised
because much is made of the
delay in holding the hearing.
[8]
At the hearing and subsequently at the
arbitration, held at the CCMA, it was found that the employee had
uttered the words ascribed
to him by Steenkamp. He was found guilty
of gross misconduct for violating an essential and fundamental rule
at the workplace by
asking Steenkamp to discard the bag.
[9]
The employee was dismissed after the
disciplinary hearing but reinstated by the CCMA who found that the
dismissal was too harsh
a penalty: It found the dismissal to be
substantively unfair on the basis that it was not satisfied that the
relationship between
the employer and employee had broken down to the
extent that dismissal was the only appropriate sanction. The CCMA did
mete out
a penalty which was that the employee’s reinstatement
was not backdated to the date of dismissal but that he was only to be
paid back-pay of two months. This meant the employee suffered severe
financial penalty.
[10]
The employer reviewed the CCMA’s
award. The Labour Court set aside the award of the CCMA as recorded
earlier. The matter now
comes on appeal with leave of the Labour
Court.
[11]
It needs to be restated that when
considering a review, the reasoning of a commissioner is no guiding
light in determining whether
the decision or more particularly the
“order” handed down is reasonable. Put differently, a
court reviewing an award
need not consider the commissioner’s
reasoning to determine whether or not his/her reasoning justifies the
award. The reviewing
court, as has been repeatedly held, must
consider all the evidence led at the arbitration and in the light of
that evidence determine
whether the award is one which any
commissioner in the position of the commissioner, who determined the
arbitration, could reasonably
make. If the answer is in the positive,
then there must be no interference with the award.
[12]
In this matter, the commissioner decided
that the dismissal was unfair. It was a decision for him to make. He
found that the employee
had committed the misconduct complained of;
that it was gross misconduct; and that dismissal for the misconduct
was not
an
inappropriate penalty, but decided against it.
[13]
It
is correct that the commissioner stated that there was unconvincing
evidence that the relationship between the employer and the
employee
had broken down. Two comments need to be made in this respect:
firstly, an employer is not obliged to lead evidence to
satisfy a
commissioner that the relationship has indeed broken down, the facts
should speak for themselves ( see for instance the
matter of
Impala
Platinum
Ltd
v
Jansen
and
Others
[1]
(Jansen)),
or
if the
employer specifically seeks dismissal on the basis of a breakdown in
the relationship as was the case in
Edcon
Limited v Pillemer NO and Others,
[2]
where
the charge against the employee was that her action had destroyed the
employer/employee relationship then it must lead evidence
to prove
the breakdown; secondly, even if evidence is led of a breakdown in
the relationship, it is the commissioner who must determine
whether
dismissal in the circumstances of the matter before him is the
appropriate sanction as a number of factors may play a role
in coming
to this conclusion and the same factors may apply differently to
different category of employees. See in this regard
the
matter
of
Glencore
Holdings (Pty) Ltd and Another v Gagi Joseph Sibeko and Others
[3]
(
Glencore
)
where the Court properly accepted that functional relationship
between an employee and his superior may play a part in determining
whether abominable behaviour displayed by an employee against his
superior was an obstacle to the continued employment relationship.
Even
extreme
inappropriate behaviour may in an exceptional case not lead to a
dismissal if there is no proximity between the employee
and the
supervisor who he may have undermined.
[14]
Here the employee does not complain that
the finding of misconduct is unfair. He only challenges the Labour
Court’s decision
on the basis that it incorrectly set aside the
relief granted by the CCMA as it was not an award that was
unreasonable or one that
the commissioner could not reasonably make.
[15]
This Court must accept the finding that the
employee said to Steenkamp that he should throw away the parcel.
While Steenkamp and
the employee work together, the employee was not
Steenkamp’s supervisor. He had no control over him nor was he
in standing
senior to Steenkamp or that Steenkamp was beholden to
him; he was Steenkamp’s subordinate and the evidence
demonstrates,
Steenkamp simply fobbed him off and called security.
Steenkamp was not the superior who was going to take an instruction
from this
employee, in such circumstances to elevate the conduct of
the employee
vis-à vis
Steenkamp as if it would undermine the relationship and that
Steenkamp would now have difficulty working with this subordinate
is
not only far-fetched it is simply a gross exaggeration. Furthermore,
Steenkamp’s evidence itself on this issue is in my
view rather
contrived. He says he works and worked happily with the employee
before and after the employee had uttered the words
to him. In fact,
all was fine until some six and a half months after the event when
the employee was found guilty of uttering the
words Steenkamp said he
did at the disciplinary hearing. According to Steenkamp, once the
employee’s guilt was established
pursuant to the disciplinary
hearing, the trust relationship was destroyed! This is
extraordinary. The words were uttered
to Steenkamp he could have had
no doubt about it, why then does he only find the breakdown in the
relationship after the employee
is found to have uttered the words he
said the employee had uttered and not when the employee had actually
uttered them.
[16]
As I stated earlier, the employee was found
to have made a statement which was wrong and improper and to do so
was a serious breach
of the employer’s code especially in an
environment where one is dealing with high value metals which are
susceptible to
theft. It is also appropriate in cases where
misconduct is found to be related to dishonesty that dismissal might
be the only appropriate
sanction. However, is the unchallenged
finding of gross misconduct, in this case, one which amounts to such
gross dishonest conduct
which would justify a dismissal without
question as was the case in the matter of
Jansen.
I believe the words may well have
amounted to such conduct had the roles between Steenkamp and the
employee been reversed with the
employee being the supervisor and not
where the employee could not influence Steenkamp. The nature of the
conduct and its impact
cannot be insulated from the role players
involved.
[17]
I am satisfied after considering the
evidence presented at the arbitration that the award handed down by
the CCMA was not one which
is susceptible to interference. The
commissioner found the employee had committed the misconduct
complained of and decided that
a severe financial penalty was more
appropriate than the employee’s dismissal. On the facts of this
case the commissioner’s
cannot be said to be unreasonable and
as such, the Labour Court erred in interfering with the award.
[18]
In the circumstances, the appeal succeeds.
With regard to costs, I see no reasons why in terms of law and equity
there should be
an order as to costs.
[19]
In the result, I make the following order:
(a)
The appeal succeeds with no order as to
costs.
(b)
The order of the Labour Court is
substituted with the following order:
“
The
application is dismissed.”
______________
Waglay JP
I agree
_______________
Phatshoane ADJP
I agree
______________
Savage AJA
APPEARANCES:
FOR THE
APPELLANT:
Adv Q M Dzimba
Instructed by Mothobi
Attorneys
FOR THE SECOND
RESPONDENT:
Adv R Itzkin
Instructed by ENS Africa
[1]
[2017]
4 BLLR 325 (LAC).
[2]
[2010]
1 BLLR 1 (SCA).
[3]
[2018]
1 BLLR 1
(LAC).