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[2006] ZALCJHB 14
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Kloof Gold Mine A Division of Goldfields Mining SA (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR11/05) [2006] ZALCJHB 14 (6 June 2006)
IN
THE LABOUR COURT SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR911/05
In
the matter between:
KLOOF
GOLD MINE A DIVISION
OF
GOLDFIELDS MINING SA (PTY)
LTD
and
COMMISSION
FOR
CONCILIATION FIRST
RESPONDENT
MEDIATION
AND ARBITRATION
AHMED
CACHALIA
NO SECOND
RESPONDENT
UNITED
ASSOCIATION OF
SOUTH THIRD
RESPONDENT
AFRICA
E
DE LA
HARPE FOURTH
RESPONDENT
JA
BOTHMA
FIFTH
RESPONDENT
WJ
VENTER
SIXTH
RESPONDENT
DPJ
VORSTER
SEVENTH
RESPONDENT
DRS
YOUNG EIGTH
RESPONDENT
EG
LARSEN
NINTH
RESPONDENT
CJ
MULLER
TENTH
RESPONDENT
JA
DELECA 11
TH
RESPONDENT
JUDGMENT
SANDI
AJ
[1]
This is a review application in terms of
section 145
of the
Labour
Relations Act, 66 of 1995
. The application is opposed by the fourth
to the eleventh respondents (“the employees”).
[2]
The applicant is Kloof Gold Mine. It is engaged in the business of
gold mining. The first respondent
is the Commission for Conciliation,
Mediation and arbitration (“the CCMA”). The second
respondent is the commissioner
whose award is the subject of these
proceedings. The third respondent is United Association of South
Africa, a registered trade
Union, of which the third to eleventh
respondents (“the employees”) are members.
[3]
The applicant has a clocking policy at its workplace in terms of
which every employee is required to
clock in when he arrives at work,
and clock out when he departs from work. The clocking times would be
reflected on the employees’
clock cards and served as the basis
on which the employees would be remunerated for the work performed by
them. The evidence which
was led at arbitration, and correctly
accepted by the commissioner, was that all the employees knew about
the clocking system and
that at their induction they were taught
about it.
[4]
At about 05h11 on 5 March 2004, a security guard employed by the
applicant noticed an employee carrying
a number of clock cards and
clocking in employees who were not at the clocking machine at that
time. This happened at the machine
where the employees would normally
clock themselves in immediately before they went underground to start
their work. It is common
cause that two of the employees had not yet
arrived at work at the time they were being clocked in. However, the
rest of the employees
were present on the applicant’s premises
though they had not commenced their duties.
[5]
The employees were charged with fraud. They were all convicted and
dismissed from their employment.
Thereafter the employees referred an
unfair dismissal dispute to arbitration.
[6]
After hearing evidence the commissioner found the employees guilty of
contravening the applicant’s
policy relating to clocking.
However, the commissioner found that there was no evidence that the
employees committed fraud. In
the course of the award the
commissioner said the following:
“
As
pointed out earlier, fraud with regard to clocking cannot be equated
with the offence for which the applicants have been found
guilty.
Whilst it is a serious offence I do not believe that it is so serious
that it warrants dismissal.
The
applicants have not received any remuneration that they were not
entitled to. There is no evidence to suggest that they had
clocked in
for one another when one of them was not present at work. In essence
they had not benefited”.
[7]
Thereafter the commissioner reinstated the employees to their
employment positions and each employee
was given a final written
warning valid for 12 months.
[8]
It is this award that the applicant is attacking in these proceedings
[9]
Contrary to the finding made by the commissioner, that there was no
suggestion that the employees clocked
for one another at a time when
one of them was not at work, the evidence led before the commissioner
shows that two of the employees
(Venter and Bothma) had not arrived
at work when they were clocked in.
[10]
The information contained in the clock cards represented to the
applicant that all the employees who had
clocked in had reached their
underground work destination at that time, and that they had
commenced their work. The discovery made
by the security guard showed
that the employees were not at work underground, because at the time
the employees were sitting in
their supervisor’s office. They
had gathered there to receive their instructions from their
supervisor, Mr Venter. Only at
6h00 would the employees go
underground, and it would be at that moment that they would be
required to clock in.
[11]
The employees’ case was that clocking in for one another was a
practice which had been in existence
for sometime and that one Dan
Smith, an engineer, was aware of this practice and had condoned it.
However, Mr Dan Smith gave evidence
denying that he was aware of the
existence of such practice and the evidence tendered by the employees
did not show that Mr Dan
Smith was indeed aware of it.
[12]
The commissioner’s finding that the employees must have
benefited in order for their actions to constitute
fraud is an error
of law which led the commissioner to reach a legal conclusion which
is not supported by the facts of the case.
[13]
In Joubert, the Law of South Africa, vol 6, 2
nd
edition, paragraph 322, fraud is defined as consisting in the
unlawful and intentional making of a misrepresentation which
causes
actual prejudice or which is potentially prejudicial to another.
[14]
The conduct of the employees was potentially prejudicial to the
applicant in that clocking in at the machine
intended for employees
going underground represented to the applicant that the employees
concerned were underground, performing
the duties and that they were
entitled to payment.
[15]
In terms of the applicant’s disciplinary code the following
offences warrant summary dismissals:
“
Clocking
in and out, signing on and off but not arriving at your workplace.
Clocking in and out, signing on and off for another
employee.”
[16]
In my view the conduct of the employees falls within the conduct
described above and that the commissioner
committed a gross
irregularity by interfering with the sanction imposed by the
applicant. There is a good reason why the said policy
is in place:
employees must be remunerated for the time that they actually render
services to their employer. Clocking in for an
employer who does not
turn up for work or arrives late for work would result in financial
loss to the company. In the event that
there is an accident the
employer must be able to establish accurately, with reference to the
clocking machine, as to how many
employees underground need help.
[17]
In County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ
1701 (LAC)
it was held that:
“
Commissioners
must exercise greater caution when they consider the fairness of the
sanction imposed by an employer. They should
not interfere with the
sanction merely because they do not like it. There must be a measure
of deference to the sanction imposed
by the employer subject to the
requirement that the sanction imposed by the employer must be fair.”
[18]
In the light of the above, the commissioner has committed a gross
irregularity. He ignored relevant evidence
and applied a wrong legal
principle. In my view the commissioner’s finding is not
justifiable in relation to the matters
placed before him and falls to
be set aside.
In
the result the following Order is made:
1.
The commissioner’s award is set aside
and replaced with the following:
“
the
dismissal of the 4
th
(fourth) to 11
th
(eleventh) respondents was fair”
2.
The fourth to eleventh respondents are to
pay the costs of this application.
__________________________
SANDI
AJ
COUNSEL
FOR THE APPLICANT :
Adv Van As
ATTORNEYS
FOR THE APPLICANT : Messrs Webber Wentzel
Bowens
RESPONDENTS
REPRESENTATIVE : Ms Welgemoed (United
Association of South Africa)
DATE
OF HEARING
: 26 May 2006
DATE
OF JUDGEMENT :
06 June 2006