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[2009] ZALCJHB 23
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Rustenburg Platinum Mines Limited (Amandelbult Section) v Commission for Conciliation, Mediation and Arbitration and Others (JR1044/08) [2009] ZALCJHB 23 (28 July 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1044/08
In
the matter between:
RUSTENBURG
PLATINUM MINES LIMITED
(AMANDELBULT
SECTION) Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION First
Respondent
MATSEPE,
H, N.O.
Second
Respondent
NATIONAL
UNION OF
MINEWORKERS Third
Respondent
MAPHUNYE,
P.P. Fourth
Respondent
JUDGMENT
FRANCIS
J
Introduction
1.
This is an application in terms of section 145 of the Labour
Relations Act 66 of 1995 (the Act) to review and set aside an
arbitration
award issued by the second respondent (the commissioner),
in which he found that the dismissal of the fourth respondent by the
applicant was substantively unfair and awarded him seven months
salary as compensation. The applicant seeks an order that
the
matter be referred back to the first respondent, the Commission for
Conciliation, Mediation and Arbitration (the CCMA) for
arbitration
de
novo
before another commissioner other
than the second respondent.
2.
The review application was opposed by the third respondent, the
National Union of Mineworkers (NUM) on behalf of the fourth
respondent.
The background
facts
3.
The fourth respondent was employed by the applicant as a miner, which
is a senior supervisory position. The carrying of
cell phones
underground is strictly prohibited, because the signals from a cell
phone can ignite an underground blast. Employees
have been
dismissed in the past for such misconduct.
4.
On 10 May 2006, the fourth respondent was charged with breaching the
company rules in that he had allegedly carried a cell phone
underground during the night shift on 9/10 May 2006. He
appeared at a disciplinary hearing, was found guilty and dismissed
on
16 May 2006.
5.
He referred an unfair dismissal dispute to the CCMA for conciliation
and arbitration. There were various sittings during
2007 and
early 2008. At the arbitration hearing only the substantive
fairness of the fourth respondent’s dismissal
was in dispute.
The applicant commenced adducing evidence and called four witnesses,
namely Sello Marcus Pesha (Pesha), Edwin
Moremi Mafuleke (Mafuleke),
Sebele Pilane (Pilane) and Herman Heirich Bense (Bense). An
inspection
in loco
was undertaken during Pesha’s evidence. The fourth
respondent testified in his defence and the parties submitted written
closing arguments.
6.
In an award dated 10 April 2008, the commissioner found that the
applicant had failed to prove that the fourth respondent was
guilty
as charged, and, accordingly, awarded him seven months’ salary
as compensation.
The arbitration
proceedings
7.
It is not necessary to set out the evidence led in any great detail
since this has been set out in the arbitration award.
It is
clear from the evidence led that on 9 May 2006, two patrol men, Pesha
and Mafuleka conducted an explosive search at 16 chair
stairs between
5h00 and 5h30 in the vicinity of the entrance and to see whether
employees were obeying the rules regarding cellphones
and cigarettes
etc. Cellphones are not allowed to be taken underground for
safety reasons. There is a contraband box
in which employees
going underground should leave their cellphones or matches therein.
The chair lift operator is in possession
of the box keys. When
the fourth respondent came from underground, Pesha asked him for
permission to search him. He
found a Nokia cellphone in his
possession and showed it to Mafuleka. Mafuleka’s role was
to observe employees for explosives’
searches before they could
reach the contraband box to ensure that they had nothing on them that
were disallowed. Pesha searched
employees coming from
underground. The fourth respondent made a statement in which he
stated that the policeman found him
in possession of a cellphone from
nowhere. When he went underground, he left the cellphone at the
chair lift box and found
it when he knocked off. Mafuleka would
have seen the fourth respondent if he went to the contraband to
collect his cellphone.
Pilane who is employed as an employee
relations coordinator testified that he attended the disciplinary
hearing to ensure that
the procedures were followed. The
applicant was consistent in the meeting out of discipline for similar
offences. The
fourth respondent was charged with misconduct,
was found guilty and was dismissed. Bense testified about the
matter relating
to a Mr Ngwato who was charged with the same
misconduct, was found guilty and was dismissed. He chaired his
disciplinary
hearing and substituted the dismissal with a final
warning due to the particular circumstances of the case.
8.
The fourth respondent testified in his own defence. He
testified that before he went underground he gave his cellphone
to a
fellow worker who was in charge of the chairlifts. He knew that
cellphones were not allowed underground. When
he returned from
underground on 10 May 2006 one of the fellow worker, Mfikoe gave him
his cellphone. He believed that Pesha
saw this. When he
approached Pesha, Pesha told him that he wanted to search him.
Pesha searched him and found the cellphone
on him. Mafuleka was
doing observation duties. On 10 May 2006 he was called by the
human resources department and was
told about the incident. He
explained that the cellphone was not in his possession when he went
underground but took it from
Mfikoe when he returned from
underground. Mfikoe made a statement on 12 May 2006. He
attended a disciplinary hearing
with Mfikoe on 15 May 2006. He
was found guilty and was dismissed. He did not want to be
reinstated but sought compensation.
The arbitration
award
9.
The commissioner summarised the evidence led in his award. He
said that the procedural fairness was not an issue and that
the
applicant had to prove the substantive fairness of the fourth
respondent’s dismissal. The only issue that had to
be
determined was whether the fourth respondent had breached the rule.
The existence of the rule was not in dispute.
If the rule was
found not to have been breached, the fourth respondent’s
dismissal would be substantively unfair. If
it was breached,
the next issue would be around the consistency and whether the
sanction imposed was appropriate.
10.
The commissioner said that he had to specifically scrutinise the
versions of the applicant’s witnesses and that of the
fourth
respondent. He then dealt with the evidence led by the
parties. It is not necessary to repeat this save to say
that
Pesha searched the fourth respondent and found the cellphone on him
whilst Mafuleka kept the employees under observation.
The
fourth respondent denied that he had the cellphone on him whilst he
was underground and he had collected it from Mfikoe the
chair lift
operator. The commissioner said that he had to look at the
crucial parts of their testimonies and analyse same
to see whether it
was reasonably probably true. The commissioner proceeded
and dealt with the discrepancies around
the time when the fourth
respondent was searched, the surveillance camera and at what stage
the fourth respondent was searched.
He said that the full
video should have been used to clarify the doubts that existed.
11.
The commissioner said that having considered the totality of the
evidence he could only arrive at the following logical conclusion
that the fourth respondent was indeed searched and found in
possession of the cellphone; that it could not be said that the
fourth
respondent was the person identified on the video footage by
witnesses and that the witnesses possibly searched someone else and
got their facts possibly wrong to say that the said person was the
fourth respondent. The commissioner said that the other
problem
that he had was even the chairlift operators were not appearing on
the edited footage. As they are working around
the cameras, it
is possible they could have been captured. If Mfikoe, the chair
lift operator, was indeed on duty and acted
as alleged by the fourth
respondent, the camera could have captured him. If the
applicant could have shown him the whole
footage of 5h00 to 5h30
without editions, it would have helped him to get a better picture.
By showing only the selected
parts did not help to erase possible
reasonable doubts.
12.
The commissioner said that the fourth respondent’s version was
reasonably probably true. He could have been given
the
cellphone by Mfikoe. Pesha could not have seen this taking
place because of the manner in which he was positioned.
Mafuleka on the other hand who was well placed testified that he
concentrated only on the employees emerging from underground by
means
of chairlifts. There was no evidence that he also concentrated
on events from behind his back at the time. The
applicant did
not succeed to prove that the fourth respondent indeed committed
misconduct for which he was charged. He could
not agree that
there was conclusive or reasonable evidence that the fourth
respondent indeed committed the misconduct with which
he was
charged. Pesha and Mafuleka did not corroborate each other at
all concerning the actual observation and the actual
search of the
fourth respondent. Each of them was not noticed by the other
when carrying out the task they each carried.
They further gave
to some extent contradictory and unconvincing evidence on the issues
of time on which the fourth respondent was
noted and the times on
when he was searched as well as the actual happening of the search
itself. They are single witnesses to
events applicable to the spot
where they were posted. Although the evidence of a single,
uncorroborated witness is also acceptable,
he could not do so when
taking all factors of the case into account. The two witnesses
altered some parts of their versions
once under cross examination and
this placed doubt on the accuracy of their testimony. Although
both went out on a joint
mission of carrying out searches at 16
chairlifts, they however could not see what the other was doing once
the search mission
got underway. The said mission had serious
consequences for an employee who could have been found with a
cellphone in contravention
of the company rule. Such employee
could be dismissed, with disastrous consequences. He would have
expected the security
officers of the applicant to have positioned
themselves in such a manner that they could at least corroborate each
other and give
clear consistent evidence both in evidence in chief
and cross examination. Their answers under cross examination
casted some
doubt on the accuracy of their version. The
commissioner said that he could not therefore reasonably and fairly
arrive at
the conclusion that the applicant succeeded to prove that
the fourth respondent indeed committed the misconduct with which he
was
charged.
13.
The commissioner concluded that the fourth respondent’s
dismissal was procedurally fair but substantively unfair and awarded
him seven months compensation.
The review
application
14.
The applicant has raised several grounds of review. It is not
necessary for purposes of this judgment to deal with all
the grounds
of review. The applicant contended that in finding that the
dismissal was substantively unfair and making the
award in question,
the commissioner committed several reviewable irregularities by
exceeding his powers and/or making findings
that were not rational or
reasonable in relation to the reasons given or the material properly
before him, and/or committed gross
irregularities regarding the
arbitration proceedings. The commissioner used the wrong standard of
proof in assessing the evidence
and in doing so committed a gross
irregularity and thereby produced an award that cannot be said to be
reasonable in the circumstances.
The commissioner’s
finding that the dismissal was substantively unfair is not one that a
reasonable decision maker could
make.
Analysis of the
evidence and arguments raised
15.
It is common cause that the applicant has a policy in the workplace
which prevents employees from taking cellphones under ground
for
safety reasons. The fourth respondent was aware of the rule and
did not dispute the reasonableness and fairness thereof.
His
defence was that he did not breach the rule in that he gave the
cellphone to the chairlift operator before he went under ground
and
received it when he came back to the surface. He was found with
a cellphone in his possession but said that he did not
take it
underground. No video footage recorded that the cellphone was given
back to him by Mfikoe. The applicant called four
witnesses in
support of its case. The applicant’s main witnesses were
the security guards who conducted explosive searches
on 9 May 2006.
The fourth witness testified about the issue of consistency and the
matter relating to Ngwato who was also
found in possession of a
cellphone. He was dismissed but on appeal his dismissal was
overturned and substituted with a final
warning. The issue of
consistency is not an issue in this matter since the fourth
respondent has not filed a counter review.
16.
The commissioner found that the applicant had failed to prove that
the fourth respondent was guilty of the misconduct and that
his
dismissal was therefore substantively unfair. He found that the
fourth respondent’s version was reasonably possibly
true.
17.
As stated above the applicant has raised several grounds of review in
this matter. Since the applicant is seeking an order
to review
and set aside the award and for the dispute to be referred to the
CCMA to be heard by another commissioner other than
the second
respondent, it does not become necessary to consider the merits of
the dismissal. It is also not necessary to
analyse the evidence
given by the parties since this is a matter that another commissioner
would have to do. The position
might have been different had
the applicant sought an order that this Court deal with the matter.
It would also be unfair
to both parties and in particular to the
fourth respondent if this Court was to make any pronouncements on the
evidence led.
18. One ground of review
raised by the applicant is that the commissioner misdirected himself
on the evidentiary test. The
commissioner when analysing the
different versions placed before he said the following:
“
I
had to look at the crucial parts of their testimonies and analyse
same to see whether it was reasonably probably true.
If
the respondent
[applicant]
could
have shown me the whole footage of 5h0 --5h30 without editions it
would have helped me to get a better picture. By showing
only
the selected parts did no help to erase possible reasonable doubts.
The
version of the applicant
[fourth
respondent]
is reasonably probably true.
He could have been given the phone by the said Mfikoe.
For
the reasons given above, in analysis of evidence, I cannot agree that
there is conclusive or reasonable evidence that applicant
[fourth
respondent]
indeed committed the
misconduct which he was charged.”
19.
It is trite that the test to be employed to decide whether an
employee is guilty of the misconduct alleged by the employer at
the
arbitration hearing is on a balance of probabilities. The
commissioner did not apply the civil law standard of proof which
is
on a balance of probabilities but the criminal law standard of proof
which is beyond a reasonable doubt.
20.
This Court has previously held that when a commissioner errs by
applying a standard stricter than proof on a balance of
probabilities,
the award is reviewable. See
Potgietersrus
Platinum Ltd v Commission for Conciliation Mediation &
Arbitration & others
(1999) 20 ILJ
2679 (LC);
Markhams (a Division of
Foschini Retail Group (Pty) Ltd v Matji NO & others
[2003]
11 BLLR 1145
(LC) and
Avril Elizabeth
Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833
(LC).
21.
The commissioner has failed to decide, on the evidence before him,
the preponderance of probabilities given the conflicting
versions
presented by the parties during the arbitration proceedings.
Since the applicant is seeking an order that the matter
be heard
de
novo
by another commissioner other than
the second respondent, it becomes unnecessary for me to
substitute my findings on the
merits.
22.
In these circumstances, it is not necessary for me to consider the
further grounds for review on which the applicant relies
in relation
to the commissioner’s finding of substantive unfairness.
It cannot be said that the commissioner’s
finding is that which
a reasonable decision maker would have made.
23.
The application stands to be granted.
24.
I do not believe that this is a matter where costs should follow the
result.
25.
In the circumstances I make the following order:
25.1
The arbitration award issued by the second respondent under case
number LP2005-06 dated 10 April 2008
is reviewed and set aside.
25.2
The matter is referred to the first respondent for arbitration
de
novo
before a commissioner other than
the second respondent.
25.3
There is no order as to costs.
FRANCIS
J
JUDGE
OF THE LABOUR COURT OF SOUTH AFRICA
FOR
THE APPLICANT
: A T
MYBURGH INSTRUCTED BY LEPPAN BEECH INCORPORATED
FOR
3RD & 4TH RESPONDENTS
:
ATTORNEY E S MAKINTA
DATE
OF HEARING
:
19 JUNE 2009
DATE
OF JUDGMENT
: 28 JULY 2009