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[2017] ZALCJHB 45
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Manganese Metal Company (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2088/14) [2017] ZALCJHB 45 (14 February 2017)
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase
no: JR 2088/14
In the
matter between:
MANGANESE METAL COMPANY
(PTY) LTD
First Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER RAYMOND DIBDEN
N.O
Second Respondent
EVANS MABILA
Third Respondent
Heard
:
09 February 2017
Delivered
:
14 February 2017
Summary:
(Review – dismissal for derivative
misconduct - incomplete record – important evidence potentially
missing – inability
to agree on reconstruction of missing
portion)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In this matter, the third respondent Mr
Mabila, who was a long serving employee of the applicant was charged
with derivative misconduct
in the form of a failing to report the
theft of company property in his section which he had either
witnessed or had knowledge
of.
[2]
The theft occurred during a weekend shift
when Mabila was working and the forklift which was assigned to him
was used to load stainless
steel plates on the back of a truck that
was driven into the premises. The quantity and value of the plates
stolen was considerable.
It was common cause that Mabila had been
approached by a cleaner working for a contractor on the premises to
assist in loading
goods onto a vehicle using his forklift.
[3]
According to Mabila, he declined to assist
him because the cleaner could not produce a permit for loading any
goods. In the course
of his testimony in the arbitration, Mabila was
equivocal about whether the goods consisted of the plates which were
subsequently
discovered to have been stolen or whether he had asked
him to load other goods onto a vehicle which was parked outside the
premises.
On one version of what transpired, Mabila admitted seeing
the cleaner and another forklift driver driving off in the forklift
and
he assumed that the cleaner had found the necessary permit. This
was despite acknowledging that permits for removing goods were
not
issued on Saturdays when the incident occurred.
[4]
The arbitrator found that Mabila’s
dismissal had been substantively unfair because there was no evidence
placing him at the
scene when the illicit loading of the vehicle took
place and no evidence to show that he become aware that the plates
had been
loaded by the other forklift driver. Moreover, he had not
been approached for the use of his forklift by the other driver
before
it was used in the commission of the theft. Moreover, Mabila
had refused to assist the cleaner because he could not produce a
permit
which showed that he was honest.
The
review application
[5]
There are two legs to the application.
Alleged
incomplete record
[6]
A distinct ground of review hinges on
alleged missing portions of the record, which the applicant argues
would decisively affect
the strength of its case because they would
reveal serious fault lines in Mabila’s defence. In summary, the
applicant claims
that at one point during his testimony, Mabila
claimed that he had attempted to use the employer’s anonymous
crime hotline
but it was not working. Clearly such evidence would
further impact on the credibility of his version that he was unaware
of any
wrongdoing. However, this did not appear in the transcript of
the record. Nevertheless, in the record reference is made to the
existence of the hotline and it seems reasonable to infer that there
was at least discussion about whether Mabila was aware of the
hotline
at the time or only after the event and whether it was working.
[7]
In the record of the reconstruction meeting
referred to in the applicant’s supplementary affidavit, the
arbitrator agreed
that if Mabila had said that he had attempted to
use the hotline or would have used the hotline if it was working that
would have
been critical evidence tending to show that he was aware
of the need to report to the incident. However, the arbitrator also
claimed
that based on his recollection and his handwritten notes that
the applicant did not give such evidence. In this regard, the entry
dealing with this issue in the arbitrator’s handwritten notes
was brief and simply suggests that Mabila was asked about his
knowledge of the hotline.
[8]
I am aware that a number of witnesses of
the applicant who were present during the arbitration claimed that
they all recalled Mabila
saying that he had attempted to use the
hotline and it was not operational and that a proposed reconstruction
containing such a
statement was put forward to complete the record.
Presumably, part of the reason for the applicant arguing that the
matter ought
to be remitted back for a hearing
de
novo
would simply be to test these
claims in the course of further oral testimony. I am aware in this
regard that the transcriber also
indicated that there were gaps in
the record itself. Nonetheless, the only other contemporaneous record
of what was said are the
arbitrator’s notes. No other
contemporaneous notes were submitted to support the recollection of
the applicant’s witnesses.
It also seems highly implausible
that if Mabila had indeed testified that he had attempted to use the
hotline, that this would
not have been seized upon by the applicant’s
representative and pursued at great length under cross examination.
Moreover,
if that had been the case, then the reference to the
hotline in the respondent’s closing argument would have been
focused
on the impact of such a statement rather than dwelling on
whether the hotline was operational or not.
[9]
In the circumstances, I do not believe that
there is any reason to think that any genuine “gaps” in
the record will
be filled by referring the matter back and that it is
more likely simply to result in fresh evidence being led on the issue
that
was not in fact canvassed at the arbitration.
Material
defects in the award rendering it unreasonable
[10]
The applicant’s alternative grounds
of review are raised on the record as it stands. The applicant
contends that the arbitrator’s
decision could be set aside on
the basis that he simply failed to consider very material issues
arising from the evidence. Some
of these relate to alleged
inconsistencies in Mabila’s various accounts of events on the
day in question as recorded in statements
and given in testimony. The
applicant contends that the arbitrator abjectly failed to deal with
the credibility issues raised by
the various accounts of Mabila’s
version of events. Secondly, it argues that the arbitrator failed to
consider significant
and uncontradicted circumstantial evidence that
it contends showed that Mabila had, in all probability, moved the
forklift to where
the truck was to be loaded himself and that he was
not ignorant of what was afoot.
[11]
In his initial written statement to the
investigator, which Mabila confirmed during his evidence at the
arbitration as being correct,
he stated that he was the only person
who should have operated the forklift, but that it had been operated
by someone else and
was seen approaching the truck but he had no
knowledge of who the driver was. He also said that he simply told the
cleaner that
he was unable “to load the plate”. Later
under cross-examination he was reluctant to even acknowledge that he
knew
about the steel plates that restored on the premises.
[12]
In a statement he made subsequently in July
2013, he stated that the cleaner had asked him to use the forklift to
load his goods
which were “just outside the plant”. He
claimed that he said he couldn’t help him because he did not
have a permit.
A little later he saw the cleaner with another
forklift driver driving the forklift. On this occasion he identified
the other forklift
driver despite originally claimed that he did not
know who was driving it. Secondly, for the first time he mentioned
that he would
not help the cleaner because he did not have a permit.
However, a permit would only have been necessary for removing company
goods
from the premises, whereas the statement claimed that the
cleaner only wanted assistance to load his own, unspecified, goods
which
were already outside the plant. Under cross-examination, he
acknowledged that permits would not be issued for the removal of any
company goods on a Saturday in any event. However, he claimed that he
never thought that something might be wrong about the fact
that the
cleaner was trying to remove goods on a weekend when permits were not
issued.
[13]
In his evidence in chief, he also
dramatically changed his version that he had exclusive access to the
forklift, claiming that it
was a regular occurrence for forklift
drivers to use each other’s forklifts. Under cross-examination,
he claimed that even
though the other forklift driver did not ask to
borrow the forklift before getting onto it and driving off with the
cleaner, he
assumed that the cleaner must have produced the permit
and so he had no problem with him driving the forklift. Later under
re-examination,
Mabila was asked if there was any restriction that a
person could not use a permit obtained during the week on the
weekend. He
started to say that it was “even strange to me that
a person is asking .... “, but his representative cut off his
answer
and asked him if he knew of any restriction on the use of a
permit obtained on a Friday to remove goods on a Saturday and he
confirmed
that he did not know of any and would have loaded the goods
if he had been presented with the permit. This contrasted starkly
with
his earlier evidence under cross-examination that permits were
not presented on the weekends.
[14]
Mabila also had no explanation how is
forklift was driven to the parked truck on which the plates were
loaded about 15 minutes after
the truck entered the premises and at
least another 15 minutes before the cleaner and the other forklift
driver were recorded as
coming into the area. In other words, despite
Mabila’s later explanation that the other forklift driver had
simply taken
the forklift with cleaner without asking if he could
borrow it, the forklift had already been moved to the vicinity of the
vehicle
before they appeared on the scene.
[15]
What emerges from the above is that, there
were serious inconsistencies in Mabila’s account of what
transpired and an inability
on his part to give any plausible
explanation why his suspicions had not been aroused if he knew that
permits to remove goods were
not used on weekends, nor why his
evidence of the other forklift driver taking the forklift could not
be reconciled with the evidence
that the forklift had already been
moved to the truck for loading before the other forklift driver
appeared on the scene. The arbitrator
also failed to consider the
relevance of the evidence that all tended to show that it was highly
improbable that Mabila’s
suspicions would not have been
seriously aroused by a request to remove goods on a weekend in
circumstances where permits were
not presented on weekends and where
the person requesting the assistance had not been able to produce one
in any event. In this
regard, even in his second written statement in
July, Mabila made no mention of the cleaner saying that he had left
the permit
in the shower but simply that he failed to produce a
permit and he told him that he could not assist him because he could
not do
so. Moreover, Mabila had no prior experience of steel plates
being sold as scrap to employees.
[16]
However, in his analysis the arbitrator was
of the view that Mabila’s duty to speak would only have arisen
if he had been
present when the plates were actually loaded onto the
vehicle. Even if the inconsistencies in Mabila’s evidence are
ignored
for a moment, and a favourable interpretation of Mabila’s
evidence is adopted, Mabila was clearly aware that on a day when
permits were never usually presented for the removal of goods, a
contract cleaner who had not been able to present him with a permit
to remove goods, was then seen on Mabila’s own forklift with
another forklift driver, after Mabila had already declined to
use his
forklift to assist him to load goods onto a vehicle. The arbitrator
simply failed to deal with the implausibility of Mabila’s
claim
that he saw nothing suspicious about the situation and just assumed
that the permit had been produced despite the fact that
it would have
been highly unusual to remove goods with a permit on a weekend and
that the cleaner did not simply return to him
and present the permit
if that was all he required to render the requested assistance. The
arbitrator further failed to consider
what to make of the fact that
Mabila’s version evolved and changed over time, such as to
include the new and important detail
that the cleaner had claimed
that he had a permit, but just did not have it on him when he spoke
to Mabila. He also failed to consider
the plausibility of Mabila’s
account of the other forklift driver and the cleaner getting onto the
forklift and driving off
in circumstances where the forklift had
already been moved to the location where the loading was to take
place.
[17]
The applicant contends that because of
these and other material failures of the arbitrator in his evaluation
of the evidence, led
the arbitrator to make findings which no
reasonable arbitrator could have made on the evidence. It is trite
that a mere failure
to consider evidence is not a ground of review,
but in the circumstances of the case all these factors were highly
material to
the question whether Mabila must have had knowledge of
highly suspicious circumstances that tended to show that a theft
might be
in progress. I agree that if the arbitrator had focused on
Mabila’s knowledge of what was happening and not simply on the
question of whether he was present when the plates were loaded onto
the vehicle, he would have been compelled to grapple with the
difficulties in Mabila’s version discussed above. Had he done
so, I do not believe he could have reasonably avoided the inference
that the evidence strongly tends to show that Mabila could not
adequately explain why his suspicions had not been aroused in the
circumstances. Nor could he have avoided making an adverse
credibility finding against Mabila. Consequently, he would have
naturally
been led to the inference that Mabila probably did know
that the theft was in progress but decided to keep his knowledge to
himself.
[18]
It follows that, Mabila’s
trustworthiness in the eyes of the employer could not be sustained
and that dismissal was not inappropriate
as a sanction despite his
service with the applicant.
Order
[19]
In light of the above, the finding of the
second respondent in his arbitration award issued on 9 September 2014
to the effect that
the fourth respondent’s dismissal was not
fair and the relief he awarded in paragraphs 35 to 37 of the award
are reviewed
and set aside.
[20]
The second respondent’s finding that
the fourth respondent’s dismissal was not fair is replaced with
a finding that
his dismissal was substantively fair.
[21]
No order is made as to costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
F
Venter instructed by Cowan
Harper Attorneys
THIRD
RESPONDENT:
P
Mawasha, union official of
NUMSA