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[2006] ZALCJHB 15
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Rawu v Anglo Gold Free State (JR939/03) [2006] ZALCJHB 15 (28 February 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT BRAAMFONTEIN
DATE:
2006-02-28
CASE
NO: JR939/03
In
the matter between
ROBERT
RAWU
Applicant
and
ANGLO
GOLD FREE
STATE
Respondent
EX
TEMPORE J U D G M E N T
REVELAS
J
[1]
This is an application for the review of an award made by a
commissioner sitting under the auspices of the Commission for
Conciliation,
Mediation and Arbitration (“the CCMA”).
The commissioner is Mr Lekale who has not been cited as a party in
these
proceedings. The arbitration hearing took place in Welkom
on 19 March 2002 after Mr Rawu, the applicant, had referred a dispute
about an unfair dismissal to the CCMA. There the matter was
eventually arbitrated by Mr Lekale, who made an arbitration award on
26 March 2002 wherein he found that the dismissal of the applicant
was both substantively and procedurally fair. It is this
award
that the applicant now seeks to set aside on review.
[2]
The applicant was charged with breaching the respondent's (the
mine's) rules regarding spillage in trenches and sumps, and the
inference drawn by the mine was that the applicant had removed
certain gold bearing material from a pipe. Evidence hereon was led
orally at the arbitration hearing, and there was also a video
recording apparently showing the applicant conducting himself in
a
manner which supports the view that he, and two other employees, were
involved in a scheme to remove such material.
[3]
The applicant believes that the arbitrator did not apply his mind to
the evidence which was presented to him. Mr Rawu was assisted
by his
trade union when he referred the dispute about his alleged unfair
dismissal to the CCMA on 28 September 2001. The
incident which
led to the applicant's dismissal took place on 11 and 14 June 2001
respectively. The video tapes, according
to the respondent
linked the applicant to illegal activities that took place. The
applicant did not place the video recording
before me as part of the
record in his application to review the conclusions of the
arbitrator.
[4]
Mr Prinsloo, the first witness, was employed as a security officer,
and served as a co-ordinator of the investigation unit of
the mine's
metallurgy department. His work entailed the detection and
investigation of theft of gold amongst other things.
He gave
evidence that during June 2001 he received information from an
undisclosed source about the theft or illegal handling or
removal of
gold from a pump at the crusher section of the Free State No. 2 gold
plant. The information disclosed that gold
material was removed
from the pipe in a certain area of the plant. A camera was then
installed and concealed in that area
to monitor and record the covert
activities over 24 hours. Mr Prinsloo said he received the
video tapes and the people involved
were identified and the applicant
in question was one of the employees identified. During August
2001 all three (including
the applicant) were dismissed.
[5]
On 11 June the video recording reflected that the applicant was
filmed whilst he was looking down into the sump area where two
people
had entered without authority. One was called Petrus Mofokeng
and he was standing guard at the entrance or exit of
the sump area
when the applicant had arrived and looked down into the area.
The applicant then left the area and then, after
some time the two
other employees departed from the area with a bag containing
gold-bearing material. The incident of 14
June 2001 occurred
when the applicant arrived at the sump area whilst two other
employees were already in the area. The applicant
allegedly
looked down into the area and stood in front of the very pipe from
which, according to the information received, the
gold-bearing
material was being removed. As a section supervisor, the
applicant was showing a new foreman around the area
when these
incidents occurred. Therefore it was accepted that he knew about the
illegal activities and was aware of the people
inside the sump area
at all material times. Mr Prinsloo said he came to the
conclusion that the applicant was in fact involved
and therefore he
was charged and subsequently dismissed.
[6]
At the arbitration hearing, the applicant admitted that he was the
person shown on the video in respect of the incidents which
occurred
on 11 and 14 June 2001 respectively. He denied that he ever
spoke to Mr Mofokeng when he got into the sump area,
and he has
denied any knowledge of the two employees in question who were
involved in illegal activities.
[7]
The arbitrator listened to arguments on both sides and concluded that
it was clear from the video recordings that the applicant
had indeed
spoken to Mr Mofokeng and the video recordings were further clear
enough to enable the applicant to identify himself
thereon even
though there was poor lighting. Regarding 14 June 2001, the
video could not have captured the activities so
vividly that the
applicant could have identified himself. The arbitrator held
that the dismissal was procedurally fair as
it was not proved that
there was any unfairness in so far as the appeal hearing was
concerned and there was only one dismissal
and that took place on 4
September and not on the date of the appeal hearing.
[8]
The arbitrator took into account the following facts which were
common cause at the arbitration hearing:
1.
That illegal activities involving theft or the unauthorised removal
of gold-bearing material
took place on 11 and 14 June 2001.
2.
That the applicant had arrived at the relevant area whilst the
perpetrators of the said misconduct
were still inside the area in
question.
3.
In terms of the applicable procedures the employees in question had
no authority or good
reason to be in the area.
4.
The employees entered the area before the applicant had arrived and
further left it after
he had arrived.
5.
The illegal activities concerned warranted dismissal if they were
proved
Then
the arbitrator put what was in dispute and it was:
a.
whether or not the employees spoke to Mofokeng; and
b.
whether or not the applicant was aware and in fact took part in these
activities.
[9]
The arbitrator held that on a balance of probabilities the applicant
spoke to Mofokeng when he arrived at the scene because
it was highly
unlikely that he would ignore Mr Mofokeng, who was equally
responsible for the area in question when they suspected
there was
something wrong in the area. He also found that the applicant's
evidence was not credible and it was illogical.
[10]
The arbitrator analised the probabilities and he found that the
witnesses of the mine made a good impression on him and did
not
contradict themselves as their evidence was credible.
[11]
He once again made mention of the employee not being a credible
witness and described him as evasive and unreliable.
He also
found that in the circumstances dismissal was the appropriate
sanction as the economy of the Lejweleputswa Municipal District
is
dependent largely on the gold mining industry. He also made
mention of the fact that the theft involved dishonesty and
went to
the root of the employer and employee relationship.
[12]
In essence, the arbitrator had made a credibility finding. The
Labour Court and any other court of appeal or review,
should be very
loath to interfere with the credibility findings of an arbitrator, a
judge, or a magistrate, in circumstances where
they heard evidence,
were steeped in the atmosphere of the proceeding and had ample
opportunity to observe the witnesses.
[13]
The applicant has not put any facts before me to con~Ince me to
interfere )n his aaòd. I. fact, what the appnicant
Seeks me to dg is to give him a second chanbe as he does not like the
consequ%nces of the arbitration hearing. He was a man
who
earned R4 000, 00 a(month and he is now probablypeîemployed, so
kne has some sympathy. However, the`sanction that
was imposed
is the"appropriate sa~ction for this khnd of`misconduct ánd,
furth!reore, the eridence before!the arbitrator
was prperly taken
into acCount. Before`a court"ca, ynterfere il any
azbiuration award, it must find that the arbitrator
came to a
conclusion which is not rationally connected to the facts before him
or her. In this matter there is absolutely
no indication that
this was the case and in the circumstances the application is
dismissed.
____________________
Judge
Elna Revelas
Judge
of the Labour Court