About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 43
|
|
SATAWU obo Kigaoto and Others v Commission for Conciliation Mediation And Arbitration and Others (JR953/06) [2010] ZALCJHB 43 (14 June 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
CASE
NO: JR 953/06
In
the matter between:
SATAWU
obo SERGENT KIGAOTO & TWO
OTHERS APPLICANT
and
COMMISSION
FOR CONDILIATION, MEDIATION
AND
ARBTIRATION FIRST
RESPONDENT
SIPHO
RADEBE N.O
SECOND
RESPONDENT
GROUP
4 SECURICO (PTY)
LTD THIRD
RESPONDENT
JUDGMENT
AC
BASSON, J
[1]
On 14 May 2010, this Court gave the following order:
“
1.
The applications for condonation for the late filing of the review
application and
the answering affidavit are granted.
2.
The application to review is dismissed with costs.”
[2]
This was an application in terms of section 145 of the LRA to review
and set aside the award by the second respondent (hereinafter
referred to as “the commissioner” in terms of which the
commissioner held that the dismissal of the applicants was
substantively fair but procedurally unfair. For the procedural
unfairness the applicants were awarded compensation in the amount
of
R 4 161.00 each.
[3]
Before I deal with the merits I will briefly deal with the two
condonation applications. The one application was for the late
filing
of the review application and the other was for the late filing of
the answering affidavit. The parties indicated at the
commencement of
the proceedings that neither of these two applications are opposed. I
have nonetheless considered both applications
and have decided to
grant both.
Merits
of the review
[4]
In terms of
Sidumo & Another v Rustenburg Platinum Mines Ltd &
Others
(2007) 28 ILJ 2405 (CC) this Court must review the award
of a commissioner and determine whether or not the decision reached
by
the commissioner is one that a reasonable decision maker could not
reach.
[5]
The three applicants were employed as security guards by the 3
rd
Respondent (Group 4 Securico (Pty) Ltd – hereinafter referred
to as “the respondent”). They were charged with:
“
1.
Gross negligence with regard to the performance of duties. 2.
Behaviour damaging the Group’s image. 3. Conduct to the
prejudice to good order and discipline.”
[6]
According to the evidence a theft occurred at the premises of a
client PG Bison in Germiston where the three applicants were
on duty
as security officers. The events that gave rise to the charges were
investigated by a certain Mr. Van der Watt (hereinafter
referred to
as “Van der Watt”) who is the 3
rd
respondent’s
Investigations Manager. According to the evidence Van der Watt was
called to the client’s premises. He
was informed that a theft
of approximately 400 laminated sheets with the value of approximately
R 3000.000.00 had taken place over
the weekend of 25 October –
28 October 2002. It was not disputed that the applicants were on duty
as security guards over
that period. Also not in dispute was the fact
that the theft took place. This is supported by the fact that
Bison instituted
a civil claim against the respondent for the losses
that it had incurred as a result of the theft.
[7]
According to the evidence Van der Watt met with Mr. Van der
Westhuizen (hereinafter referred to as “Van der Westhuizen”)
who is the Distribution Centre Manager of the client. Van der
Westhuizen showed Van der Watt that his office door was forced open
and that the VCR which was connected to the surveillance system was
removed. The alarm keypad was also removed from the office
wall in
the hall. The investigation further showed that there was no forced
entry to the warehouse where the laminated sheets were
held. Because
of the weight of the laminated sheets, a forklift must have been used
to move and load the sheets. The forklift key
holder situated in the
pay office was also forced open.
[8]
Van der Westhuisen and Van der Watt also investigated the alarm
report sheet for the weekend. The report revealed that the alarm
was
deactivated and again rearmed in certain areas and from time to time.
The
award
[9]
The commissioner gave a brief summary of the evidence that was led at
the arbitration. It is clear from the award that the commissioner
took into account the totality of evidence that was placed before the
arbitration and that he was alive to all the issues that
were placed
before him. It was the applicants’ case that the alarm system
was defective and that they did not detect anything
wrong. The
evidence on behalf of the respondent was that the three employees
were on duty on the day the theft took place. Despite
them being
there the occurrence book entries recorded that everything was in
order.
[10]
It was common cause that the guardhouse was located next to the only
entrance for vehicles and that there was a boom. It was
also common
cause that this was the only entrance to the property. It was also
common cause that there was no evidence of a break-in
through any of
the walls surrounding the property. The laminated sheets (of about
four tons) must therefore have left the property
throught the main
gate which was situated next to the guardhouse. The commissioner,
confronted with this evidence, concluded as
follows:
“
Their version
as testified to by Letsoalo is improbable. It does not explain how
stock of about 4 tons could leave the premises
of the client without
them being aware thereof. It is a fact that the alarm was activated
many time during the day and the applicants
could not explain why the
failed to detect that. The respondent had testified that the alarm
was in good order on the day in question
and this was not contested
by the applicants. There was only one exit on the premises and the
applicants were placed there throughout.
In the circumstances I
find that the applicants were dismissed for a fair reason. And that
the sanction meted out to the applicants
was appropriate.”
[11]
Although I have considered the nine grounds for review listed in the
founding affidavit, I intend only to make a few comments
about some
of the grounds. On behalf of the applicants it was argued that the
commissioner unreasonably refused a request by the
applicant for an
inspection
in loco
. There is no merit in the argument,
particularly in light of the fact that the outlay of the premises was
not seriously disputed
and more in particular, in light of the
crucial common cause fact that the gate (the only entrance to the
property) is situated
next to the guard house. The fact remains: a
theft took place at the time the applicants were on duty. As a result
the client instituted
civil proceedings against the respondent. I can
find no reason to review the award on this basis. The applicants also
sought to
review the award on the basis that the commissioner
“
Misbehaved himself in ruling in favour of the respondent in
it’s assumptions evidence that the incident occurred on the
26
th
October 2002 whilst first it was
submitted that it occurred between 25
th
&
26
th
and not tangible evidence was presented
to advance this theory except the contested print out of the alleged
alarm activation”
. There is simply no merit in this
argument. It is clear from the transcript that the applicants’
representative had agreed
that the events in question took place on
the 26
th
. The applicants’ also disputed the
accuracies in the alarm system. I am not persuaded that the
commissioner was unreasonable
in accepting that the alarm was
activated and deactivated many times during the day. Firstly,
the alarm was tested and was
found to be in proper order. Secondly,
whether or not the alarm worked or not still does not explain how 4
tons of material loaded
on a truck (by a forklift that was stored on
the premises) left the premises through a boom gate right next to the
guard house.
Thirdly, it was only on the 26
th
of October –
the day on which the theft occurred – that the alarm
activations and deactivations took place. Fourthly,
there was no
evidence before the commissioner to suggest that Van der Westhuizen
had fabricated the alarm report.
[12]
In light of the aforegoing I therefore do not accept the submission
that the commissioner did not apply his mind to the issues
or that he
did not get to grips with the true issue. I am also not persuaded
that the commissioner had failed to apply his mind
to the evidence.
In the event I am persuaded that the commissioner arrived at a
reasonable conclusion: Briefly: The applicants
were on duty during
the weekend that the theft took place. The alarm system was
deactivated and activated some six times on the
day the theft took
place. When the alarm was tested after the incident, the technician
found it to be in proper working order.
The laminated sheets that
were removed from the premises weighed approximately 4 tons and the
suspects must have in all probability
have utilised a four ton truck
to remove the material. There is only one entrance to the property
which is situated next to the
guard house. The suspects must
therefore have left the premises through the boom gate next to the
guard house. At the very least
the conclusion reached by the
commissioner that it was improbable that the applicants were not
aware of a theft on such a large
scale (stock of about 4 tons) is
rational.
[13]
In the event the application to review is dismissed and I can find no
reason not to award costs against the applicant. Lastly,
the
respondent did file a counter-review. In light of the fact that it
was abandend I do not intend to deal with the merits thereof.
_______________________
AC
BASSON, J
DATE
OF THE PROCEEDINGS:
14 May 2010
DATE
OF THE JUDGMENT:
14 JUNE 2010
For
the applicant
: Mr Baloy of MM Baloy Attorneys
For
the respondent:
Mr. W Hutchinson instructed by Moodie &
Robertson Attorneys