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[2011] ZALCJHB 190
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National Union of Mineworkers and Others v Commission for Conciliation Mediation and Arbitration and Others (JR 189/2009) [2011] ZALCJHB 190 (2 December 2011)
REPUBLIC OF SOUTH
AFRICA
Not
Reportable
Of
interest to other judges
LABOUR COURT OF SOUTH AFRICA
(HELD AT BRAAMFONTEIN)
Case:JR
189/2009
In the matter between:
NATIONAL UNION OF MINEWORKERS First
Applicant
MICHAEL MOTEBANG &
ANOTHER Second & Further Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION First Respondent
SHAAM GOVENDER (
N.
O.) Second
Respondent
KLOOF GOLD MINE, A DIVISION OF GFI
MINING SOUTH AFRICA (PTY) LTD Third
Respondent
JUDGMENT ON APPLICATION FOR LEAVE
TO APPEAL
HEAD NOTES: (Leave to appeal –
refused)
LAGRANGE, J:
Introductory remarks
In
the judgment handed down on 3 August 2011, I dismissed the
applicants’ review application of the second respondent’s
review arbitration award. The applicants now wish to appeal against
the judgment.
In
summary, the individual applicants, Mr M Motebang and Mr M Mamba,
were both bonus clerks employed by the third respondent,
Kloof Gold
Mine.In April 2008, they were dismissed for manipulating the bonus
payment system so that certain employees who did
not work
underground would receive bonuses payable to underground workers
which they were not entitled to. According to the mine,
the
applicants should have checked gang cards against the time and
attendance system records and reported any discrepancies between
the
two. The applicants had allegedly changed the designated shifts of
surface workers to reflect that they were working in underground
gangs so that they would qualify for various bonuses payable only to
underground workers. The arbitrator found that the applicants'
dismissal by the mine was both substantively and procedurally fair.
Central
to the charges was that the time and attendance system records could
not be reconciled with the other records and it was
part of the
applicants’ duties to have identified these anomalies and
queried them. There was no material dispute that
they failed to do
so in the case of the workers who were awarded underground bonuses
they did not deserve.
Grounds of Appeal Analysed
The
applicants allege the court erred in that the respondent did not
provide evidence of misconduct on their part. No reasons
are cited
for this statement.
The
applicants claim that Mamba was the only one who processed all the
bonus transactions. In this regard the applicants raised
evidence on
review which was not before the arbitrator (See paragraph 38 of the
judgment) and is not correct in any event (See
pararagraph 23 of the
judgment.
The
applicants persist in arguing that their failure to provide any
evidence of who else might have manipulated the data should
not have
been the basis of drawing an adverse inference because the
applicants did not have the same advantage as the respondent
of
knowing the results of the investigation which might have provided
evidence of other persons’ involvement. This was
not a ground
of review and in any event does not detract from the applicants’
responsibility to show why someone else ought
to be suspected of
manipulating the shift designations on the computer system. The fact
that underground workers were implicated
in the alteration of
original records does not detract from the applicants’ own
role in manipulating shift designations
on the system. There was no
suggestion that the shift workers who might have been party to the
fraud could have done this themselves.
The
applicants allege that the court and arbitrator erred in that there
was no evidence of what the data looked like before it
was
manipulated. Evidence of the audit trail was sufficient to show the
alteration of electronic data by persons using the applicants’
computer access.
Contrary
to the applicants claim, there was evidence of discrepancies between
the records relied on by the applicants in processing
the bonus
payments and the applicants failed to explain why these anomalies
were not dealt with as they should have done.
The
applicants claim that the court erred in characterising their case
as based on an argument that the evidence implicating them
was
insufficient, when in fact they claimed it was non-existent. In so
far as the court did mis-characterise their case, this
does not
alter their prospects of success on appeal: the key question is
whether there was sufficient evidence to support the
arbitrator’s
finding.
Even
if the arbitrator had erred in finding Motebang guilty of all the
charges levelled against Mamba, there was sufficient evidence
to
find him guilty of the charges which were levelled against him, so
the arbitrator’s finding in respect of those charges
was not
reviewable. There is no reason why his dismissal was not justifiable
on that basis alone.
The
evidence of the trail of alterations to the computer records might
not have been confirmed by an expert but the witness had
sufficient
knowledge of the system and bonus methodology to testify on the
issue. The alternative is that the record of alterations
had been
fabricated to falsely implicate the applicants and there was no
evidentiary basis provided to support such an inference.
The
applicants’ claim that the prior fraudulent acts of workers or
some other third party in altering clocking records,
does not
detract from the key evidence which implicate their involvement:
namely that they ignored the anomalies between the
clocking records
and the time and attendance records, thus making the payment of the
fraudulently obtained bonuses possible.
This evidence was not
speculative as the applicants claim. Moreover, the trail of
alterations indicated that their computer
identities had been used
to effect the alteration in the shift designations. In the absence
of being able to identify any other
plausible suspects this evidence
implicated the applicants directly. Accordingly, the tampering of
the computer evidence suggested
it was done at a stage when the
applicants were busy on the system.
It
is not correct that the only fraudulent alteration of information
occurred before the intervention of the applicants. The key
manipulation of primary data was the alteration of clocking records.
There was never any suggestion that the electronically captured
time
and attendance records were inaccurate. In fact, precisely because
they were accurate they did not match with altered gang
cards, which
is what should have alerted the applicants that something was wrong,
even if they had not also been implicated in
actively manipulating
the shift designation of workers so they qualified for the bonus.
The
question of Mamba’s role being confined to signing the bonus
sheet was only in respect of Sinjana’s bonus and
has no
bearing on the other charges he was found guilty of.
The
applicants clearly fail to understand that the evidence of the
manipulated transaction in respect of Mazibuko clearly was
corroborative evidence which strengthened the reliability of the
hearsay evidence in Mazibuko’s affidavit.
The
court found that the applicants’ witness was not without
serious flaws nor was it comprehensive, hence no reliance could
be
placed on it on the question of the manipulation of gang cards.
The
statement in paragraph 35 of the judgment that it was necessary for
the arbitrator to find that other employees participated
in the
scheme is a patent error and it is clear from the sentence which
follows that the word ‘not’ should have been
before the
word ‘necessary’. Accordingly, but perhaps
understandably, this criticism of the judgment is misplaced.
The
absence of the original information provided at the shaft did not
prevent the respondent from implicating the applicants in
dubious
transactions, and was not essential to make out a case against them,
which required an answer. In any event, even if
the original
electronic clocking information had been provided, the applicants
would still have to explain the manipulation of
the shift
designations which was critical to awarding the bonuses.
Conclusion
I
am not persuaded on reviewing the grounds of appeal that another
court might find that the arbitrator’s findings were
unreasonable and should be set aside.
Order
Accordingly,
the application for leave to appeal is dismissed, with costs.
R
LAGRANGE, J
JUDGE
OF THE LABOUR COURT
Date
of judgment: 02 December 2011
(Considered
in chambers)