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[2002] ZALCJHB 33
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Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation Mediation And Arbitration and Others (JR63/01) [2002] ZALCJHB 33 (11 February 2002)
[COMMENT1]
Sneller
Verbatim/JduP
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR63/01
2002-02-11
In
the matter between
RUSTENBURG
PLATINUM MINES LIMITED
(RUSTENBURG
SECTION) Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION
1
ST
Respondent
MOROPA, T J,
N.O.
2
ND
Respondent
SIDUMO,
Z 3
RD
Respondent
J
U D G M E N T
Delivered
on 11 February 2002
REVELAS,
J
:
1.
The third respondent was employed by the applicant as a Grade II
patrolman, based at the applicant's
protection services department
until his dismissal for misconduct relating to his failure to follow
the applicant’s precribed
procedures for security searches. He
had been employed for 15 years. His misconduct, which is not in
dispute, was discovered in
the course of an investigation conducted
by the applicant with a view to establish the cause of an alarming
drop in production.
2.
The applicant decided to monitor its security staff, particularly
with the purpose to evaluate
how searches were conducted at the only
access point in its redressing section, where the third respondent
was employed.
3.
To this end surveillance equipment was installed unbeknown to
employees, and amongst those monitored
was the third respondent. The
period over which this surveillance was conducted was 27 February
2002 to 27 May 2002. The surveillance
equipment, including video
footage captured by camera, demonstrated that the redressing section
was not performing properly, it
was not properly managed, employees
were not efficiently carrying out their duties, and some were even
found sleeping on duty.
A pitiful work performance picture of
employees was observed.
4.
At the end of May 2002 the surveillance was completed, and the
applicant started to take disciplinary
action against those employees
who were not performing their duties properly. Criminal charges were
laid against some employees,
but not against the third respondent.
The third respondent, as stated before, worked in the redressing
section in question, and
during the period 12 April to 17 April he
was on duty that only access point to the area in question. In terms
of his duties he
was required to search all employees leaving the
redressing section, and he had to follow a particular procedure. It
is important
to make reference to those procedures.
5.
The applicant's search procedure requires all security staff of the
redressing section to adopt
a stringent search procedure, which
involves
inter alia
searching all persons leaving the
redressing section, one at a time; an inspection or search of all
hand luggage on the premises;
an inspection or examination of the
watches, jewellery, private property and hard-hats of the persons
being searched; a frontal
body frisk from hands to feet; a rear body
frisk from hands to feet; a metal detector scan, (both of the rear
and front of body,
from head to feet); the scanning of a person's
shoes, as well as underneath both feet, with a metal detector. This
is a rather
elaborate procedure, but there is good reason therefor,
and that is because of theft. A very small quantity of platinum or
gold
is worth thousands of rands.
6.
The applicant's search procedures were distributed in writing to all
security employees, including
the third respondent, under cover of a
Works Instruction document dated 16 August 1999. The third respondent
acknowledged that
the search procedures had been read and explained
to him in detail, and he fully understood all the different tasks and
responsibilities
required of him. All employees were invited to hand
in queries or questions.
7.
The third respondent admits that search procedures were distributed
to all security employees,
but denied that the procedures were read
and explained to him in detail. What is clear is that the third
respondent knew what was
required of him at a particular search, but
he raised the question that he was not required to search each and
every employee,
but that he was permitted to perform random searches.
8.
Since the applicant carries on the business of platinum mining and
the mining of precious metals,
security is of particular importance,
and particularly in its redressing section, where the third
respondent was on duty
at the particular time in question. This was
not disputed. The high grade precious metals, which are extracted
from the concentrate,
are extremely valuable, and contains metals
such as platinum and gold. These metals are the livelihood of the
business of the applicant.
9.
It is common cause that the specific point controlled by the third
respondent would normal circumstances
or in the ordinary course be
controlled by a senior patrolman, who was more senior to the third
respondent. In my view this fact
did not entitle him to be negligent
in his searching as he clearly was. It was ascertained from the video
surveillance that the
third respondent had failed to conduct any
search at all in certain cases, and in other cases did not search in
compliance with
the procedures I referred to herein. In those cases
he did not use the metal detector and in some cases he failed to
conduct the
required bodily search. In 24 searches, watched over a
period of three days, he only conducted one search in accordance with
the
procedures laid down.
10.
The third respondent, as I have said before, stated that he was only
required to do random searches. Here
it is important to note that
there was no evidence that any theft occurred during any of the third
respondent's shifts.
11.
The second respondent, the arbitrator who conducted the arbitration
under the auspices of the CCMA following
the referral by the third
respondent of his alleged unfair dismissal dispute, found that his
dismissal was too harsh, and determined
that the third respondent be
reinstated with effect from 1 January 2001 (- the date of the
arbitration hearing was 14 November
2000 -) and the reinstatement was
subject to a written warning, and the third respondent was awarded
compensation equal to three
months' salary.
12.
The applicant now seeks to review this award in terms of the
provisions of section 145(2)(a) of the Labour
Relations Act, 66 of
1995 ("the Act"). Strong reliance was placed during the
argument advanced on behalf of the applicant
on the dictum of the
Labour Appeal Court in
County Fair Foods (Pty) Ltd v CCMA and
Others
1999 (20) ILJ at 1707. In this judgment it was indicated
to commissioners that the determination of an appropriate sanction is
largely in the discretion of the employer, not to be interfered with
lightly, and that commissioners should
"show deference to
disciplinary sanctions imposed by employers"
(p.1717G).
13.
It is of note in this regard, and with reference to the
County
Fair
case, that in that matter the commissioner had found that
the dismissal of a male employee who had violently assaulted a female
employee at the workplace, with whom he had a previous relationship,
was unfair. The Labour Appeal Court disagreed, and were of
the view
that it was a very serious matter which, on the facts, deserved
dismissal, and the commissioner held otherwise. The Labour
Appeal
Court was of the view that the court
a quo
should have
interfered with the award of the commissioner on review.
14.
In the matter of
Pretoria Heart Hospital v CCMA and Others
2000 (21) ILJ 624 (LC) a commissioner reinstated an employee who was
dismissed for theft. Dismissal is the general sanction imposed
for
instances of theft, unless the sentence or sanction induces some form
of shock. That was the view of Landman J in that matter,
where he
interfered with the award of the commissioner who reinstated an
employee who was found guilty of theft.
15.
In the present case the third respondent, an employee, had a clean
service record of almost 15 years, did
not commit a violent crime,
nor did he assault anyone, nor did he steal from anyone, nor did he
commit an offence which unequivocally
demanded dismissal as opposed
to any other sanction.
16.
The third respondent did not do his work properly, but neither did
several other employees. Corrective or
progressive discipline in his
case does not induce a sense of shock.
17.
On the applicant's case, serious overhauling of the work performance
in certain sections of its operations
was seriously required and
directly linked to the production.The applicant had good reason to
take drastic measures. In essence
the applicant was faced, in several
cases, with poor performance or laziness, at best, which is not the
type of misconduct which
justifies dismissal without prior warning
for a first offence after 15 years of service.
18.
Finally, the test for review is contained in
Shoprite Checkers
(Pty) Ltd v Ramdaw N.O and Others
2001 (22) ILJ 1603, which did
not depart from the leading case on the test for review, namely
Carephone (Pty) Ltd v Marcus N.O. and Another
1998 (11) BLR
1093
(LAC). To successfully review a statutory arbitrator it must be
demonstrated that the conclusion arrived at by the arbitrator must
be
rationally or reasonably connected to the facts before the
arbitrator.
19.
In
Metro Cash & Carry Ltd v Tjela
1996 (17) ILJ 1126
(LAC), the LAC was faced with a matter where a cashier was not
present, as he was required to be, when cash
was "dropped",
or handed in for depositing. The court held that the employer in
question was entitled to act severely
against those who breached the
strict rule introduced because an employer is entitled to introduce
rules to protect its commercial
integrity. This is so, and I am in
respectful agreement thereof, but the strict rule was
introduced in the case of the
Metro Cash
matter to combat
theft of cash where employees in a position of trust were required to
deal with large amounts of cash. It is then
understandable that a
form of strict liability is coupled to the rule introduced.
20.
In the present case the third respondent did not deal with money. It
was argued that he could have caused,
or did cause, potential loss.
If there was an iota of evidence that theft was committed during the
times that he was on shift,
and not performing his duties properly,
that might have a bearing on the matter. There is no such evidence.
It is also very significant
that when he was surveilled, he was
performing the work which a more senior employee usually performed.
In other instances
where employees, unbeknown to them, were watched
on a video camera, their surveillance resulted in their arrest where
they had
stolen gold or other precious metals from the applicant.
Such considerations did not apply to the third respondent. The third
respondent
was also watched over a long period. Strict liability is
not applicable to this matter as this is a matter rather
relates,
as I have pointed out, to poor performance than misconduct.
Employees who do not perform their duties properly, where dishonesty
was absent, should not, automatically incur the harsh sanction of
dismissal on the basis of strict liability, even if they work
in a
gold mine.
21.
In this matter the arbitrator held that:
"
Article 7(b)(iv)
asks whether the dismissal was an appropriate sanction for the
contravention of the rule or standard. While I agree
that this
conduct was misconduct, I am not convinced that the dismissal was an
appropriate sanction. In my view dismissal under
these circumstances
would be too harsh when taking into account the following: There were
no losses suffered by the employer; the
violation of the rule was
done unintentional or 'a mistake', as argued by the employee. Lastly,
the level of the honesty of the
employee is something to consider
.”
And;
“
Schedule 8
article 4 of the Act provides that it is not appropriate to dismiss
an employee for a first offence, except if the misconduct
is serious
and of such gravity that it makes a continued employment relationship
intolerable. Based on the evidence before me the
employee had had a
clean record of service with the employer for the past 14 years.
This, in terms of the code of good practice
cannot be ignored. The
Labour Court has endorsed the concept of collective or progressive
discipline. An employee's behaviour is
to be corrected through a
system of evaluated disciplinary measures, such as counselling and
warning. It is therefore my view that
the type of offence committed
by the employee does not go to the heart of the relationship, which
is trust. I therefore believe
that the continued employment
relationship is still intact. To deprive an employee of his
employment in this circumstance would
be wholly unfair
."
22.
The aforesaid reasoning does not fall foul of the
Carephone
or
the
Shoprite Checkers
test, neither does it fall foul of the
provisions of section 145 of the Act. More closely looked at, the
application for review
it is an appeal rather than a review. There is
no basis upon which I can interfere in the award of the arbitrator in
this matter.
Parties are often unhappy with the awards of
commissioners because employers often feel that their own sanctions
should not be
ignored. The arbitrator in this matter followed common
sense, followed the code of good practice, followed the Act, and the
reasoning
process which he was duty bound to perform. He also
regarded the offence as serious because he imposed a warning. He did
not ignore
accepted labour law principles in doing so. He followed
them.
23.
In the circumstances the application for review is dismissed with
costs.
_______________
E.
Revelas
[COMMENT1]
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