About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 5
|
|
Glencore Operations South Africa (Pty) Ltd v Malapane and Others (JR603/2015) [2017] ZALCJHB 5 (5 January 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR603/2015
In the
matter between:
GLENCORE
OPERATIONS SOUTH AFRICA (PTY) LTD
(GOEDGEVONDEN
COLLIERY)
Applicant
and
LETHOKGO
ABRAM
MALAPANE
First Respondent
COMMISSIONER
FOR CONCILATION MEDIATION AND
ARBITRATION
(CCMA)
Second Respondent
COMMISSIONER
MAGAELE ALFRED MASHAGOANA NO
Third Respondent
Date
of hearing: 07 December 2016
Date
of Judgment: 05 January 2017
JUDGMENT
MALINDI
AJ
Introduction
[1]
This is a review application whereby Mr
Lethokgo Abram Malapane (the Applicant seeks a review and setting
aside of the arbitration
award of the Third Respondent dated 10
February 2015 under case number MP9292/14, and substituting the award
with an order of this
court.
[2]
Malapane had been charged with:
“
Misrepresentation
of information (train results) which resulted in –
1.
Loss
of revenue;
2.
Company’s
(GGV) image being dented/brought into disrepute.”
[3]
At the internal disciplinary enquiry
Malapane was found guilty of the following:
1.
He had not checked the sample results
presented to him from his laboratory;
2.
There were errors in the calculations
regarding the samples which compromised the quality of the sample and
the integrity of the
sample sent to Richards Bay terminal; and
3.
He was aware that certain information was
misrepresented and condoned this.
[4]
At the arbitration hearing the Applicant
called Mrs Silindokuhle Sizo Sithole (Sithole) and Malapane testified
on his behalf. The
Commissioner found that the dismissal of Malapane
had been procedurally fair but substantively unfair. The Applicant
was ordered
to pay the Applicant’s compensation in the amount
of R342 000.00 (three hundred and forty two thousand rand)
calculated
at the Applicant’s nett pay of R57 000.00 (fifty
seven thousand rand) for six months.
BACKGROUND
[5]
Malapane was employed by the Applicant
since 24 December 2013 as a laboratory superintendent. He was
dismissed on17 October 2014.
[6]
Malapane occupied a senior position and had
four supervisors reporting to him as well as approximately 26 other
laboratory assistants
or technicians under his supervision.
[7]
A large part of his functions were to
ensure that the tests carried out on coal to be transported to the
Richards Bay Coal Terminal
(RBCT) laboratory are correct and
accurate. Mrs Sithole relied on him for verification of these results
before the coal was transported
to the Richards Bay terminal coal.
[8]
As a result of 40 trains of coal being
rejected by RBCT Malapane was charged as stated above. In his
answering affidavit Malapane
denies that he ever at any point in time
furnished or misrepresented to the Applicant information regarding
the grade of coal that
was to be transported to RBCT or any other
client.
[9]
The Applicant has a disciplinary policy and
procedure. Poor work performance is defined as including but not
limited to, not producing
results according to the said standard,
sloppiness, non-compliance with return dates, incomplete work, etc.
Schedule 1 to the Code
sets out the categories of offences according
to their seriousness. Under “major transgressions” for
which a guideline
of dismissal is suggested are listed as
falsification of records / forgery, dishonest practices (theft,
fraud, forgery, bribery,
etc) and any other serious deviation from
company policy and standards.
[10]
Malapane has been charged with
misrepresentation of information in that he had not checked the
sample results presented to him from
his laboratory and that the
errors in the calculations regarding the samples compromised the
quality of the sample results. It
is alleged that he was aware that
certain information was misrepresented and condoned this. Ms
Sithole’s evidence was that
between May and September 2014 a
total of 40 trains were rejected by RBCT, calculated at 6,3,14,10 and
17 per month, respectively.
The Applicant attacks the Award in
respect of what the Commissioner states at paragraphs 24 to 27 of the
Award which read as follows:
“
24
Besides our cautionary rule on evidence of a single witness. The
respondent has failed to
substantiate in evidence how the applicant
misrepresented the information which led to 40 trains being sent back
from Richards
bay due to poor quality. Misrepresentation must have an
element of intention to deceive the other party. Throughout the
proceeding
it was never the company’s case that the applicant
deliberately attempted to deceive the company with the intention to
benefit.
25.
Mrs Sithole was not a credible witness. I am saying this because she
was selective in answering
questions. While she alleged to have
extensive knowledge in the field of laboratory but she refused to
comment on the comparison
of the equipment within the two
laboratories. This is so despite the applicant’s version that
they are not the same. He repeated
this evidence when he was giving
his evidence and the version was not challenged.
26.
However, even if I were to accept that the 40 trains returned from
Richards Bay was due
to the result from GGV where the applicant was
based. Still this could not be a dismissible offence taking into
account that the
said laboratory in question was not accredited. Even
the systems between the two laboratories were different in that
Richards Bay
was automated and inspected from time to time.
27
I find the applicant to be a credible witness who stuck to his
version that after the
termination of services of ALS construction
the coal were transported via conveyer belt straight to the trains
and sent to customers
without being tested for quality. This version
was not challenged. Again the company failed to challenge his version
that the uncovered
coals would lose the moisture on the way to
Richards Bay Laboratory.”
SUBMISSIONS
[11]
The Applicant submits that the Commissioner
committed a reviewable irregularity:
1.
By taking into account evidence regarding
the difference between the RBT and GGV laboratories which was never
put to Sithole.
2.
By failing to take judicial notice of the
fact that the RBT laboratory is the industry standard used by the
entire coal industry
and externally audited.
3.
By making a credibility finding against
Sithole on the basis that she was allegedly selective in answering
questions.
4.
By taking into account and/or placing
relevance on the fact that the GGV laboratory was not accredited. The
Commissioner concluding
that the fact that the GGV laboratory was not
accredited on its own undermined the integrity of the results that
came out of it.
5.
By making the assertion/finding that “the
systems between the two laboratories were different.”
6.
By failing to take into account that it was
common cause that the reports which Malapane forwarded to Sithole
amounted to a misrepresentation
because the information contained
therein was incorrect as to the quality of the coal.
7.
By placing relevance to Malapane’s
version that the quality of the coal could have been affected because
it could have gotten
wet when it was transported on the conveyor belt
to be loaded on the trains when this version was not tested with
Sithole.
[12]
On the other hand the First Respondent
submits that:
1.
the question concerning the difference
between the two laboratories was properly put to Sithole.
2.
the Applicant had an opportunity to
challenge Malapane’s version during his cross examination even
if the version was not
put to Sithole.
3.
credibility findings cannot easily be
overturned as the trier of facts is the one best placed to make such
a finding.
4.
it is significant that the GGV laboratory
is not accredited as opposed to the RBCT one which is.
5.
Malapane’s evidence that the two
laboratories use different sampling methods was not challenged.
6.
no evidence of misrepresentation was
produced at the hearing.
ANALYSIS
[13]
It is easy to dispose of the Commissioner’s
finding that GGV test results would be unreliable merely because the
laboratory
is not accredited. The issue is whether GGV, even if it is
not accredited, produced results that are credible. There was no
pleading
or evidence by the Respondent that the GGV results are
invalid. In fact, in his evidence, Malapane was challenging why the
RBCT
results were preferred over the results produced by him at GGV.
The Commissioner erred in this regard because the question was not
about an accredited laboratory versus an unaccredited laboratory.
[14]
The Commissioner erred also in accepting
Malapane’s evidence that the two laboratories were different in
that they used different
methods. First, Malapane’s version in
this regard was not put to Sithole in cross examination. Secondly,
while under cross
examination by Malapane, Sithole had positively
testified that both RBCT and GGV use the same method of sampling.
This evidence
was not challenged.
[15]
The Commissioner further erred by making a
credibility finding against Sithole on the basis that she was
selective in answering
questions. Besides the fact that it is not
stated in the Award which questions she chose not to answer and
whether they would have
elicited answers adverse to the Applicant’s
case, the record shows that Sithole answered questions fairly
including questions
where her representative had objected to on the
basis that the questions were not relevant to her. It was not put to
her during
cross examination that this would be argued at the end of
the matter nor was she given a chance to comment on any suggestion
that
she was evasive or refused to answer questions whose answers
would be damaging to the Applicant’s case. It is a requirement
that a witness be confronted with what will be argued so that they
have an opportunity to comment thereon.
[16]
The Commissioner committed an error by
placing relevance to Malapane’s version that the quality of the
coal could have been
affected because it could have got wet when it
was transported on the conveyor belt to be loaded on the trains. This
version was
not put to Sithole and she could therefore not comment on
it. The evidence was that GGV, like RBCT, used an automated method of
sampling and that the sampling was happening automatically every 15
minutes. This case is not about the difference in the sampling
tests
(repeatability) done at the GGV laboratory, but is about the
certified quality of coal at GGV not being confirmed at RBCT
(reproducibility). In other words, the failures in the quality of the
coal delivered to RBCT was not as a result of discrepancies
between
the test samples at GGV but between the differences of quality
between the certified qualities by GGV compared to the results
at
RBCT. I might add that there is no evidence as to whether, according
to Malapane, the pre-getting wet or post getting wet samples
were
relied on for certifying the quality of the coal.
[17]
Having disposed of the above issues, in my
view the Applicant’s difficulty lies more in the finding at
paragraph 24 of the
Award that the Applicant failed to substantiate
in evidence how Malapane misrepresented the information which led to
40 trains
being sent back from RBCT due to quality falling below the
specifications. The Commissioner held that misrepresentation must
have
an element of intention to deceive the other party. The
Commissioner said that throughout the proceedings it was never the
Applicant’s
case that Malapane deliberately deceived or
attempted to deceive the Applicant.
[18]
The
First Respondent defended the finding of the Commissioner in this
regard and referred me to
Gilbey
Distillers and Vintners (Pty) Ltd v Morris N.O.
[1]
for the proposition that misrepresentation is not easily inferred,
and that for an act to qualify as misrepresentation the presenter
must know that the presentation is false and that must be proved.
[2]
[19]
On the other hand the Applicant submitted
that in disciplinary proceedings misconduct that an employee has been
charged with must
not be given or interpreted in the strict criminal
offence context. I was urged to recognise the fact that these charges
are drawn
by Human Resources officials who are not necessarily
trained in law and that charges must be interpreted in the context of
labour
law.
[20]
Asked why she had complained against
Malapane, Sithole stated that as senior metallurgist she relies on
the communication she gets
or receives from Malapane’s
laboratory that the quality of the coal met the required
specifications and that she can send
it to the designated customers.
Sithole went on to testify that in respect of the 40 trains that are
a subject of this case results
were reported to her indicating that
the coal met the specifications for the designated customer. She felt
that the Applicant was
at risk as a result of “misrepresentation
of information from the period of 1 May to 15 September.”
[21]
Sithole was later asked by her
representative whether the Applicant lost money on the basis of the
misrepresented information. She
confirmed this.
[22]
Sithole testified at length about the
processes that were put in place within the laboratory system
regarding sampling, preparation
and analysis in an endeavour to
correct what was proving to be a deterioration in the standards for
obtaining accurate samplings
in the GGV laboratory. At a later stage
the reproducibility was at 30%, which means that only 30% of the
trains despatched to RBCT
were found to meet the quality that had
been declared by GGV. This was despite the fact that Malapane was
regarded as an expert
and skilled as a laboratory superintendent.
Malapane stated that when recruited by the Applicant he considered
himself the perfect
person for the job. In response under cross
examination Sithole testified as follows:
“
No.
The company did not charge you for causing 40 rejections, the company
charged you for the misrepresentation of information from
1 May to 15
September. That is what the complaint and charge is.
It
is based on misrepresentation of information where GGV laboratories
said their quality is suitable for customer A. when it gets
to
customer A, it is not actually suitable for that customer, based on
these results produced from the laboratory.”
[23]
The question therefore turns on whether the
charge of misrepresentation of information sufficiently defines the
charge that Malapane
is facing. The standard set by the Applicant was
that GGV must meet a target of 70% of accuracy in the specifications.
However,
over the relevant period it could only achieve a 54% level
and was at 30% in the latter part of their relevant period.
[24]
In the category of major transgressions for
which a sanction of dismissal is stipulated, annexure 1 to the
disciplinary code lists
falsification of records/forgery, gross
negligence, dishonest practices (theft, fraud, forgery, bribery, etc)
and any other serious
deviation from company policy and standards.
[25]
On
the analysis of the evidence presented it is clear that Malapane had
committed a serious deviation from the standard that has
been set.
The question remains therefore whether that constituted a
misrepresentation of information upon which Sithole despatched
the 40
trains which turned out to fail the specifications that Malapane had
represented to her. In
Police
and Prisons Civil Rights Union v Minister of Correctional Services
and Others
[3]
the
principle was stated that the charge sheet should contain factual
information as to the nature of an allegation against the
employee
“sufficient for an employee to know the case he is expected to
meet.”
[26]
In this case it is clear that sufficient
information had been provided to Malapane and he was able to deal
with every aspect of
the allegation that he had provided incorrect or
inaccurate information to Sithole which she relied on.
[27]
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA and Others
[4]
Van Niekerk J said:
“
[17]
In summary, section
145
requires that the outcome of CCMA arbitration proceedings (as
represented by the commissioner’s decision) must fall within
a
band of reasonableness, but this does not preclude this court from
scrutinising the process in terms of which the decision was
made. If
a commissioner fails to take material evidence into account, or has
regard to evidence that is irrelevant, or the commissioner
commits
some other misconduct or a gross irregularity during the proceedings
under review and a party is likely to be prejudiced
as a consequence,
the commissioner’s decision is liable to be set aside
regardless of the result of the proceedings or whether
on the basis
of the record of the proceedings, that result is nonetheless capable
of justification.”
[28]
In this case the Commissioner misapplied a
number of legal principles as stated above, especially in applying
the criminal standard
requirement that misrepresentation must have an
element of intention to deceive the other party. In disciplinary
proceedings in
the labour law context, the employer is required to
charge an employee with, and to provide evidence that there had been
a deviation
from a standard that has been communicated and is known
to the employee. In my view, the misrepresentation of the nature
complained
about by the Applicant, is not one requiring an intention
necessarily on the part of Malapane to have presented false or
manipulated
information to Sithole with the intention to mislead her.
It is sufficient that the complaint is that over a period, and
despite
endeavours to correct the situation, he represented to
Sithole that the 40 trains contained coal that met the specifications
for
the categories of quality that he communicated to Sithole. This
information was found not to be correct when the RBCT rejected the
trains on the basis that there was a significant disparity from the
required specifications.
[29]
In the circumstances, the award stands to
be reviewed and set aside.
Order
I
therefore make the following order.
1.
The arbitration award of the Third
Respondent dated 10 February 2015 under case number MP9292/14 is
reviewed and set aside.
2.
The matter is remitted to the Second
Respondent, the Commission for Conciliation, Mediation and
Arbitration, for arbitration before
a Commissioner other than the
Third Respondent.
3.
There is no order as to costs.
____________________________
G MALINDI
Acting Judge of the
Labour Court
Appearances
:
For
Applicants:
Mr D. Cithi of Mervyn Taback Inc
Tel: (011) 358-7700
Fax: 0867712628
e-mail: dc@tabacks.com
For
Respondent:
Me Sello Seepamore of Mohlaba & Moshoana Inc
Tel: (011) 262-0406/9 / 0735655500
Fax: (011) 262-0404
e-mail:sseepamore@mmlawine.co.za
[1]
1990 (2) SA
217
(SE) at 226 A
[2]
Ruto flower
meals (Pty) Ltd v Moriates 1957 (3) ALLSA 28 (T)
[3]
[1999] 20
ILJ 2416 (LC) at 2425, par [33]
[4]
[2009] 11
BLLR 1128
(LC) at par 17