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[2017] ZALCJHB 67
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Harmony Gold Mining Company Ltd v CCMA and Others (JR2202/11) [2017] ZALCJHB 67 (22 February 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
Number: JR 2202/11
In the
matter between:
HARMONY GOLD MINING COMPANY
LTD
Applicant
And
CCMA
First
Respondent
COMMISSIONER JOHN MASHIKA
N.O.
Second Respondent
DANIEL
MTINTO
Fourth Respondent
Date
heard: 4 February 2016
Delivered:
This judgment was prepared in April 2016 but only delivered on 22
February 2017 due to an administrative error.
JUDGMENT
RABKIN-NAICKER
J
[1] This
matter involves an application to review an arbitration award and a
cross- application which was filed one year and nine
months late for
which condonation is sought.
[2] I
decline to condone the late filing of the cross- application on the
usual principles. The delay is substantial. The explanation
therefore
is unreasonable. It amounts to the following:
“
Mitinto’s
explanation for not instituting the cross-review in time is that,
since he had been reinstated even though he had
been unfairly found
guilty of the misconduct, taking the guilty verdict on review would
spoil the prospects of continued good employment
relationship with
Harmony.
Hence,
he only instituted the cross-review proceedings when it was confirmed
to him that the Applicant was not willing to reinstate
him in terms
of the award, was not willing to settle it out of court, and was
continuing with the review Award.”
[3] In
addition to the above, the ‘cross- review’ is
ill-conceived in that it is not specifically brought against the
outcome of the award but against a finding contained in it. I
therefore deal with the application to review the award below.
[4] In
his award, The Commissioner pronounced as follows:
“
AWARD
44.
I find that the guilty
verdict meted out against the Applicant is fair. I however
find that
the sanction of dismissal is harsh under the circumstances.
45.
The dismissal sanction is
therefore set aside and replaced with the sanction of Severe
Written
Warning effective from the date of dismissal.
46.
The Respondent is ordered
to reinstate the Applicant retrospectively to the same
or similar
position he occupied as at the date of dismissal I have taken the
importance of the rule for the respondent and also
the applicant’s
involvement into this and I therefore do not believe that this is a
case where back pay should be ordered.
47.
The Applicant must report
for duty on 12 September 2011 at Evander Gold Mine in Evander.”
[5] The
fourth respondent (Mtinto) was employed by the applicant in 1999. On
the 24 January 2011 his car was found at the mine’s
number 3
boom. His fifteen year old son was in the passenger seat. The car was
searched by mine security officials and two train
track rails were
found in the rear of the vehicle, covered in blankets. Mtinto’s
son indicated that the car had run out of
petrol and that his father,
the Fourth Respondent, had walked to the nearest petrol station to
purchase fuel. As to the rails he
indicated that they were loaded by
his father and himself that morning at the applicant’s premises
and that they intended
take the rails to sell in a scrap yard. The
son further explained that the rails had been in the yard of their
house at the marital
quarters owned by the mine. The car had no keys
in it and the son explained that the fourth respondent had taken them
with to the
petrol station.
[6]
Mtinto was contacted and gave a statement in Zulu to a security
officer Mr Makhungu, who translated it into English and which
Mtinto
signed. He was then charged with being “found in possession of
mine property (piece of rail) without authorisation
nor waybill.”
Before the disciplinary hearing he changed his statement and made a
different statement relating to the events
of the day. After a
disciplinary hearing and an appeal he was dismissed.
[7]
Whereas Mtinto’s first statement corroborated what his son had
told the mine security and recorded that he did not realise
it was an
offence to take the rail that had been lying in his garden, the
second statement essentially put the blame on his son.
It included
the following:
“
On
arrival I’ve confirm to the security the boy is indeed my son.
I explain the whole story with regard to the piece of rail
that last
year February on my arrival to Skomplaas I found the very rail at the
yard, so I don’t know why my son take it
to Embalenhle and why
not reported it to me? The security told me that my son had reported
everything to them and also they went
to the place where the rail was
placed so as your son is not the employee of the company they will
release him but I have to sign
his statement on his behalf.”
[8]
In other words Mtinto claimed the first statement was in fact his
son’s that he signed. However the content of the first
statement as recorded by Mahkungu states inter alia that
“…
I
loaded a piece of rail steel in my car that has been lying in my yard
and drove with my son towards Embalenhle scrap yard ….”
[9]
Mtinto’s evidence at the arbitration is recorded as follows:
“
He
testified that he was in Embalenhle on the 24
th
of January and had left his car at home. When he came back he found
his car at Boom 3 and was informed that his son and one unknown
person had taken his car from his place.
He
did not give a statement to the security officer, but was in fact
told that to secure the release of his son; he had to sign
a
statement which was already prepared. Indeed after signing such
statement, his son was released.
He
confirmed that he did prepare another statement for the hearing as
the statement that was prepared on the 24
th
its contents
were not made known to him. This statement of the 24
th
was
not even interpreted to him. He denied the contents of this
statement.
In
re-examination he gave indication that he had left his car keys at
home and upon his return home, such keys were still at home.”
[10] The
Commissioner cannot be faulted for finding that Mtinto was not a
credible witness and he did not believe his testimony
that someone
was with his son. The Commissioner states that: “The
applicant’s testimony that someone was with his son
cannot be
believed. He did not even bother to ask about this other person. He
did not bring his son to corroborate his version.
The applicant was
not a credible witness himself.”
[11] The
following findings and omissions by the Commissioner are highlighted
by the applicant in the review when it submits that
the result of the
Award is unreasonable based on all the material before the
Commissioner, as well as the Commissioner’s
own finding of
guilt on the alleged misconduct:
11.1
That he recorded that the rails according to the company witnesses
were going to fetch
R117.00 at the salvage yard;
11.2
That he nonetheless found that no evidence was led that these rails
had any economic value;
11.3
That despite the disciplinary charges laid by it the company could
not have viewed the
offence as serious as it did not refer the case
to SAPS;
11.4
That having found that Mtinto had
misappropriated the rails with the intention to sell them
and that he
lied at the arbitration, he nonetheless considered that corrective
discipline was appropriate.
[12]
I am in agreement with the applicant’s submissions and reliance
on
inter
alia
the
law as set out in
Sidumo
[1]
that
this Award stands to be reviewed. As was stated in that case:
“
[110]
To summarize, Carephone held that s 145 of the LRA
was suffused by the then constitutional standard that
the outcome of
an administrative decision should be justifiable in relation to the
reasons given for it. The better approach
is that s 145 is now
suffused by the constitutional standard of reasonableness. That
standard is the one explained in Bato Star
: Is the decision reached
by the commissioner one that a reasonable decision maker could not
reach? Applying it will give effect
not only to the constitutional
right to fair labour practices, but also to the right to
administrative action which is lawful,
reasonable and procedurally
fair.”
[13]
In
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
[2]
the SCA stated that:
“
...a
result will only be unreasonable if it is one that a reasonable
arbitrator could not reach on all the material that was before
the
arbitrator.”
[14] The
outcome of this Award is entirely disconnected from the evidence
before the Commissioner and his own findings on the facts
before him
as well as on the credibility of the fourth respondent. I see no
purpose in remitting the matter and make the following
order:
Order:
1.
The application for condonation for the late filing of the cross
–review is dismissed.
2.
The award under case number MP3154-11 is reviewed and set aside and
substituted by the following:
“
The
dismissal of the fourth respondent Mr Daniel Mtinto was substantively
fair.”
3.
There is no order as to costs.
________________
H.
Rabkin-Naicker
Judge of the Labour
Court of South Africa
Appearances:
Applicant:
Webber Wentzel Attorneys
Respondent:
M.E.S. Makinta Attorneys
[1]
[2007] 12
BLLR 1097
(CC)
[2]
(2013) 34
ILJ 2795 (SCA)