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[2017] ZALCJHB 357
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NUM obo Mogorosi v CCMA and Others (JR1967/15) [2017] ZALCJHB 357 (19 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
C
ase
no: JR 1967/15
In
the matter between:
NUM
obo J MOGOROSI
Applicant
and
CCMA
First Respondent
JW
THEE
N.O
Second Respondent
ERGO
MINING (PTY)
LTD
Third Respondent
Heard
:
23 August 2017
Delivered
:
19 September 2017
JUDGMENT
VAN
NIEKERK J
[1]
The applicant seeks to have an arbitration award issued by the second
respondent (‘the arbitrator’) reviewed and
set aside. In
his award, the arbitrator found that the applicant’s dismissal
by the third respondent for collusion in the
attempted theft of
gold-bearing material was fair.
[2]
The material facts are recorded in the arbitrator’s award, and
I do not intend to repeat them here. It is sufficient for
present
purposes to record that the applicant was employed as a general
assistant in the third respondent’s smelt house,
where
gold-bearing material is heated and liquid gold poured into moulds.
The normal operating procedure is for the moulds to be
tipped onto a
steel plate. The gold ingot is recovered and the slag (which contains
a high concentrate of gold) is deposited onto
a slag tray, which is
kept in a safe, with the gold ingots.
[3]
The third respondent’s senior security officer, Jenner,
testified that on 12 March 2015 he conducted a surprise inspection
at
the gold smelting house. He discovered pieces of gold hidden in a
wash basin in the bathroom. After CCTV footage was viewed,
the
applicant was identified as having colluded with other employees in
the smelt house (in particular Carlos Neyara) to remove
and conceal
the gold. He was dismissed on 8 April 2015. The applicant disputed
the fairness of the dismissal, a dispute that was
referred to an
arbitration hearing by the arbitrator under the auspices of the first
respondent, the CCMA.
[4]
In his award, the arbitrator identified four issues at stake. The
first was the applicable rule relating to the methodology
in the
smelting process. That is not in issue in these proceedings, and I
need say no more about it. The second and third issues,
which are
contested in these proceedings, respectively relate to whether the
applicant could be said to have colluded in the attempt
to steal gold
and whether the gold discovered could be attributed to the
applicant’s behaviour. Fourthly, the role of security
(and in
particular an assertion that the gold had been ‘planted’)
was the subject of a dispute in the proceedings under
review, but was
not pursued in the present proceedings.
[5]
After a review of the evidence, the arbitrator came to the following
conclusion:
43. The respondent only relied
on the evidence of Andre, its only witness. I find him to be a
credible witness as he led evidence
as what transpired and on his
findings following the discovery of the gold in the kitchen. He was
consistent as he testified on
the practices in the work place and
consistently pointed out the deviations from existing practices. Let
me turn to the question
of the steel plate versus the cement
platform. I have heard both parties’ arguments during the
hearing. I am not persuaded
by the applicant’s version that any
area could be used. The video footage shows by demonstrating how the
job was performed
in the past in particular 31 January 2015. It
clearly shows the link between the smelt pot, steel plate and the
snag tray. Logic
in the first place suggests that it makes absolute
no sense to have the processes separated. Whether a work procedure
was in place
is a technical argument. On the evidence before me and
my observations on the video a practice was established. In my view
the
methodology chosen on the day by the applicant and the
co-employees were of their own making. I will deal with this in more
detail.
44. Turning to the second
question whether the applicant is guilty if the allegation, I
carefully studied the movements
of both the applicant and Carlos. On
my observation something was clearly abnormal. To start with Carlos
who is not charged in
this case his demeanour is highly questionable.
The video shows how he sweeps and kicks and throws something in an
opposite direction
of the tray. It further demonstrates how his
movements and focus changes and how he and the applicant disappear
from the work station
and walked to the tea room. During the footage
it shows how the security faces in the complete opposite direction
whilst all activities
were at play…
[6]
The arbitrator went on to find that on a balance of probabilities,
the applicant had committed the misconduct with which he
was charged
and that dismissal was an appropriate sanction.
[7]
The grounds for review articulated in the founding affidavit relate
to the evidence that served before the arbitrator and the
arbitrator’s assessment of it. In particular, the applicant
contends that the evidence failed to establish any nexus between
the
evidence and the misconduct alleged.
[8]
The relevant legal principles are well-established. This court is
entitled to interfere with an award made by a commissioner
if and
only if the commissioner misconceived the nature of the enquiry (and
thus denied the parties a fair hearing) or committed
a reviewable
irregularity which had the consequence of an unreasonable result. The
failure by an arbitrator to attach particular
weight to evidence or
attachment of weight to the relevant evidence and the like is not in
itself a basis for review; the resultant
decision must fall outside
of a band of decisions to which reasonable decision-makers could come
on the same material (see
Herholdt v Nedbank Ltd
[2013] 11
BLLR 1074
(SCA)). In other words, the test is two-staged. First, the
applicant must establish a misconception of the nature of the enquiry
or some misconduct or misdirection on the part of the arbitrator. If
that is established, whether a decision is unreasonable in
its result
ultimately requires this court to consider whether apart from the
flawed reasons of or any irregularity by the arbitrator,
the result
could still be reasonably reached in the light of the issues and the
evidence.
[9]
In the present instance, I am not persuaded that the applicant clears
the first hurdle, i.e. that the arbitrator committed any
reviewable
irregularity in his assessment of the evidence. Even if he did, in my
view, the outcome meets the reasonableness threshold.
The charge
against the applicant was collusion in gold theft. The applicant’s
defence was that he was not party to any collusion;
he simply denied
any knowledge of the concealed gold. Against that, is the evidence of
Jenner. Jenner reviewed the video recording
taken by the CCTV camera
in the smelter. What it disclosed was that on the morning of 12 March
2015, Neyara cleaned the moulds,
on the concrete floor. In terms of
the applicable operatring procedure, the moulds were supposed to be
cleaned over a designated
steel plate. Neyara cleaned a second mould,
looked at the contents of the slag, and then threw an object toward
the bunting wall.
Neyara then took a spade with slag to the tray.
Neyara and the applicant swept the area around the slag tray and
appeared to be
communicating while doing so. Neyara gestured with his
broom in the direction in which he earlier threw an object. Neyara
continued
to pick through the slag, picked up an object with his
right hand and picked up his broom. Neyara then moved the drum of the
bunting
wall where he threw the object earlier and took an object
from behind a steel beam. He then proceeded to the kitchen, followed
by the applicant. In essence, as disclosed by the quote from the
award recorded above, the arbitrator took the view that the movements
of Neyara and the applicant was suspicious or, as he put it,
‘something was clearly abnormal’. The nature of the
applicant’s
engagement with Neyara in circumstances where the
security official present had turned his back, and the fact that the
applicant
accompanied Neyara to tea room, demonstrated the
applicant’s collaboration with Neyara.
[10]
The arbitrator rejected the applicant’s evidence as improbable,
give the deviation from established work practices demonstrated
by
the CCTV footage and behaviour by Neyara and the applicant that he
(the commissioner) regarded as suspicious. The arbitrator
further
took into account the credibility of the witnesses who had testified,
and for the reasons that he advanced, made a credibility
finding in
favour of Jenner. As the pieces of gold were discovered a few hours
later, the arbitrator found that the compelling
inference was that
Neyara retrieved the pieces of gold and hid them with the applicant’s
collusion.
[11]
The arbitrator was acutely aware of the manner in which that dispute
should be determined, and aware of the fact that Jenner
was the sole
witness for the third respondent. Put another way, he was aware of
the nature of the enquiry, and aware of the manner
in which he was to
resolve the dispute of fact that served before him. He did so having
regard to the proper test, and proffered
reasons that are rational
and capable of justification having regard to the evidence as a
whole. In these circumstances, I fail
to appreciate on what basis it
can be contended that there is no nexus between the evidence that
served before the arbitrator and
the finding of misconduct that he
made. The applicant had failed to present a plausible version to the
arbitrator and the evidence
of his witnesses was of limited if any
value.
[12]
In short, and bearing in mind the clear distinction between a review
and an appeal, I am satisfied that the arbitrator identified
the
issue in dispute, understood the nature of the issue in dispute,
dealt with the substantive merits of the dispute, and reached
a
decision that another decision-maker could reasonably have arrived at
based on the evidence (see
Gold Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)). In particular, am not persuaded that
the arbitrator committed any irregularity or misdirection in his
assessment
of the evidence and in coming to the conclusion that he
did. The application accordingly stands to be dismissed.
[13]
Finally, in relation to costs, the court has a discretion to makes
orders for costs according to the requirements of the law
and
fairness. In a seminal judgment in a dispute between the same parties
more than 25 years ago, what was then the Appellate Division
of the
Supreme Court held that a fact of an ongoing collective bargaining
relationship between parties was a relevant factor, as
was the extent
of any prejudice that might be caused to that relationship by any
costs order (see
National Union of Mineworkers v East Rand Gold
and Uranium Ltd
(1991) 12
ILJ
1221 (A)). That approach
continues to be adopted by this court in the exercise of the
discretion conferred on it by s 162 of the
LRA. On that basis, I do
not intend to make any order for costs.
I
make the following order:
1. The application
is dismissed.
2. There is no order
as to costs
_________________
André
van Niekerk
Judge
REPRESENTATION
FOR
THE APPLICANT: Adv QM Dzimba, instructed by Mothobi Attorneys
FOR
THE THIRD RESPONDENT: Adv E Rudolph, instructed by Mendelow Jacobs