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[2018] ZALCJHB 314
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ENRC Management (SA) (Pty) Ltd v CCMA and Others (JR1570/15) [2018] ZALCJHB 314 (3 October 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE NO: JR 1570/15
In
the matter between:
ENRC
MANAGEMENT (SA) (PTY)
LTD
Applicant
and
CCMA
First
Respondent
COMMISSIONER
DIALWA ALPHEUS MATHALA N.O.
Second
Respondent
TEBOGO
KHASAKE
Third
Respondent
Heard:
30 November 2017
Delivered:
3 October 2018
JUDGMENT
WHITCHER
J
[1]
This is an application in terms of
section 145(1)
of the
Labour
Relations Act 66 of 1995
(“
the Act
”) to review and
set aside the second respondent’s award that the applicant had
failed to prove that the third respondent
(“Khasake”) was
guilty of the misconduct charges preferred against him.
[2]
The applicant submitted meticulous pleadings of all the evidence led
at the arbitration. I shall only record summaries thereof
in my
analysis of the award.
[3]
The applicant manages mining companies and deals with Compliance in
Procurement, HR and Finance. Mr
Khasake
was employed in 2011 by the applicant as an Expeditor in the
Procurement Department. He was dismissed on 17 September 2014,
after
having been found guilty at a disciplinary enquiry of the following
charges:
`Charge One – Being found in
unauthorised possession of property of the Company, another employee,
client, or any other person(s)
associated with the Company,
regardless of the value of such property;
Thereby contravening a level 3
offence categorised as gross misconduct;
In that on 6 August 2014 the
employee was found in possession of private and confidential
documents of employees and/or the Company
of which the documents fell
outside the scope of the employees normal duties as Expeditor in the
Procurement Department of the
employer, namely:
(a)
Carlo Paxton’s
confirmation of acting position 2014; and/or
(b)
The 2013 annual salary
review and performance bonus process of Marius Krige; and/or
(c)
The 2013 annual
performance record of Marius Krige; and/or
(d)
The 2013 annual
performance record of Johan Jacobs; and/or
(e)
Natasha du Swart’s
acknowledgment of debt.
Charge Two – Failing to
exercise care with the confidential information;
Thereby contravening item 8 of the
ENRC Global Code of Conduct;
In that on 15 July 2014 the
employee, using his official computer and credentials, copied
confidential information which he was
not authorised to possess, from
an internal network drive to an unsafe and unsecured non-ENRC
external drive (serial number na473v3z)
that was connected to the
employee’s computer alternatively failing to use the ENRC’s
information technology system
sensibly, for work purposes, and in
accordance with local laws and workplace customs;
Thereby contravening item 14 of the
ENRC Global Code of Conduct.
In that on 15 July 2014 the
employee, using his official computer and credentials, copied
confidential information that he was not
authorised to possess, from
an internal network drive to an unsafe and unsecured non-ENRC
external hard-drive (serial number na473v3z),
that was connected to
the employee’s computer while the possession and/or copying of
the confidential data was not or could
not reasonably had been for
work purposes.
Charge Three – Conflict of
interest in improperly using ENRC confidential information for
personal benefit and placing personal
interest ahead of the
employee’s duty of loyalty and confidentiality;
Thereby contravening item 4 of the
ENRC Global Code of Conduct;
In that on 15 July 2015 the
employee accessed and/or read a document on his official computer,
which document contained the names,
salaries and bonuses for January
2012, which document was also included in an email message
distributed to the Company employees
on 5 August 2015, from a gmail
account named“
sizwem.mayaba@googlemail.com”
.
Charge Four – Attaching
non-ENRC hardware to ENRC’s systems without permission;
Thereby contravening item 14 of the
ENRC global Code of Conduct;
In that on during or about 14
February 2014 to 15 July 2014 the employee connected a removable
Seagate external device with serial
number na473v3z without obtaining
prior permission from his manager and/or information Technology
officer.’
[4]
At the arbitration the applicant led the following testimony by Morne
Crouse (“
Crouse
”).
[5]
On 5 August 2014 an email was distributed to company employees from a
Gmail account named
sizwem.mayaba@googlemail.com.
The
email contained an attachment comprising sensitive information
pertaining to salary increases and bonuses of the applicant’s
employees.
[6]
Crouse was mandated to investigate the leakage of confidential
information.
[7] When the I.T
department ran network reports, Mr Khasake, based on the logon
details used to gain access to the system and documents,
was
identified as an employee who had transferred such information.
[8]
A query was run for the period of 1 June 2014 to the end of July 2014
on Mr Khasake’s computer. The query request
was put into
the system by the head of IT Clint Adonis. The generated report
revealed that Mr Khasake, based on logon details
used to access the
system, had copied files on 6 June, 1, 3, 7, 15 and 29 July 2014. On
15 July 2014, Mr Khasake copied 144 files
from his computer to a
Seagate removable device. The files that were copied on 15 July 2014
were confidential documents which Mr
Khasake was not authorised to
access. The serial number of the removable device used was recorded
on the system as na473v3z.
[9]
Crouse explained that the “
Seagate expansion USB device”
was a hard drive. A USB cable connects that drive to the
computer. It has to be plugged into the USB port of the
computer
itself. Crouse also explained that the term
“
expansion”
was a term that the manufacturer used
to describe the drive. The word “
removable”
means
that it is a removable drive. It is not a fixed drive which is
part and parcel of the computer itself.
[10]
The report also revealed that on 15 July 2014 at 16:34 Mr Khasake
accessed a document on his official computer containing the
names,
salaries and bonuses for 2012. This document was subsequently
included in an anonymous email that was distributed to company
employees (see Charge 3).
[11]
Crouse testified that the report had to be reprinted on 18 August
2014 because he had made notes on the copy that he had been
given
during his visit to Mr Khasake on 6 August 2014.
]12]
On 6 August 2014, Crouse, Basil the security manager and C. Paxton,
Mr Khasake’s manager, paid an unannounced visit to
Mr Khasake’s
office. Crouse wanted to take a forensic image of Mr Khasake’s
work computer. Mr Khasake gave him permission
to do so and whilst
busy with the task, Basil asked Mr Khasake if they could search his
bag. He consented thereto and a folder
was removed from his bag.
Whilst Basil was paging through it, he came across confidential
documents (cited in charge 1) which Khasake
was not permitted to be
in possession of.
[13]
The confidential documents obtained from Mr Khasake’s bag were
removed from his possession and a list thereof was typed
up and
presented to him for his signature to confirm that the documents had
been found in his possession. Five items were listed
and a notation
was made by Basil to the following effect:
All the above was found
in Tebogo’s bag after he gave permission to search the bag. I
found it.
[14]
A further notation was made by Crouse to the following effect:
Tebogo
refused to sign confirmation of above. Explained to us that he did
not put it in his bag.
[15]
During the office visit, it was also discovered that Mr Khasake was
in possession of a Seagate device. Mr Khasake permitted
Crouse to
check what was on that hard drive, but halfway through the imaging,
Mr Khasake changed his mind. He claimed that there
was personal
information on the device.
[16]
What was of importance to Crouse was that when he connected the
Seagate device it captured the same serial number of the drive
which
coincided with the serial number that was detected by the network. It
was the same device that had been used to copy the
confidential files
on 15 July 2014.
[17]
Furthermore the report generated from the exercise depicted
the
following:
C:\Users\MornayC\Desktop\Tebogo\TebogoExHHD.
It
also depicted:
Tebogo
external HHD.
[18] On my analysis of
the above testimony, the essence of the evidence against Mr Khasake
was that an external hard drive or USB
device with a particular
serial number (na473v3z) and make (Seagate) was found in his
possession on 16 August 2014 and that activity
logs from the
employer’s servers revealed that a device with identical
details had been mounted to the company’s digital
infrastructure on 15 July 2014 by someone using Mr Khasake’s
log-on details to transfer to the external device confidential
company data.
[19] Some of the
information copied to the USB device was later emailed to persons in
the company from what is in all likelihood
a fake email address.
[20] Mr Khasake did not
dispute that he was in possession of a device with serial number
na473v3z on 16 August 2014. He also admitted
that he did not permit
its inspection when he was found with it to verify whether, as
indicated by the company’s server activity
logs, the files in
question had been copied to the external device.
[21] All of the above was
compelling enough evidence to transfer to Mr Khasake the duty to
rebut the clear inference that he was
indeed responsible for the
irregular transfer of the confidential information from the company’s
computer to the USB device
found in his possession.
[22] Mr Khasake attempted
to meet this burden by saying that he was gifted the device by
another employee, one Laeticia, after 15
July 2014, meaning that he
could not have been the person copying the files. Importantly, this
was
his
defense and yet he failed to call Laeticia to
corroborate this claim without supplying any reason for his failure
to provide ready
confirmation of his version.
[23] Mr Khasake however
did not accuse Laeticia of being the person who copied the
confidential information to the USB device. Mr
Khasake raised a
classic and yet vague conspiracy defense. Someone framed him to
secure his dismissal. This conspiracy however
is technically
confused. It relies on the ability of the employer to doctor the
activity logs of its own servers. It also lacks
a motive. An even
more important lack is the cooperation of Mr Khasake, during the
investigation, the internal hearing and the
CCMA arbitration, in
permitting or providing the results of a proper inspection of the USB
device in question which he retained
after it was discovered. If
indeed the activity logs provided by the company falsely showed that
this USB device had been used
to copy the files in question, Mr
Khasake would have, between the inspection of his bags and the two
hearings, have permitted the
inspection of the device.
[24] If we add to this
the fact that the applicant found hard copies in his bag on 16 August
2014 of some of the documents that
were irregularly copied, then Mr
Khasake’s averment that these too were planted on him during
the search becomes even more
implausible.
[25] A reasonable
commissioner owes litigants a rational and serious consideration of
the evidence. The commissioner in this matter,
in my view, failed to
do so when he accepted Mr Khasake’s thin conspiracy theory,
boldly describing the applicant’s
actions during the search of
Mr Khasake’s bag as mafia-like. The commissioner seems to have
fixated on the applicant producing
an inventory of the items found in
Mr Khasake’s bag for him to sign during the encounter on 14
August 2014. Ignoring all
the manifest improbabilities in Mr
Khasake’s version, the commissioner accepted that this meant
that the applicant had indeed
planted the hard copies in Mr Khasake’s
bag to have so speedily had an inventory ready for him to sign. What
this ignores
is that the inspection of the bag and the USB device was
an obviously protracted affair with Mr Khasake at first allowing the
USB
device to be checked for the files in question, only withdrawing
permission, on his own version, when he realized it could take
several hours. A reasonable decision-maker would have preferred the
more plausible explanation that the inventory was a product
of
investigatory efficiency rather than mafia-tendencies on the
applicant’s part.
[26]
A
reasonable
decision-maker could not possibly have arrived at the same result as
the commissioner in this case. The commissioner
made no attempt to
carry out a proper and objective analysis of the evidence. He
uncritically accepted Mr Khasake’s hopelessly
unreliable
evidence which contained a litany of inconsistencies and material
improbabilities. He also failed to consider that material
parts of Mr
Khasake’s version were never put to Crouse for a response and
failed to recognize Mr Khasake’s demonstration
as a meaningless
and designed to confuse.
[27]
I conclude that a proper case has been made out for setting aside the
award of the commissioner in this case and replacing
it with a
finding that the dismissal of Mr Khasake was for a fair reason.
[28]
There is one more matter.
The
record was filed late. I find no reason not to condone such in light
of my findings on the merits of the review and the fact
that the
applicant provided a reasonable explanation for the delay.
Order
[29]
I make the following order:
(1) The award issued by
the second respondent on 2 August 2015 under CCMA case number GAJB
23180-14 is reviewed and set aside, and
substituted with an award
that the dismissal of the third respondent was substantively and
procedurally fair.
________________________________
B
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: Adv
WJ
Hutchinson,
instructed
by Fluxmans Inc
For
the Third Respondent: Adv S Sebola, instructed by Nchupetsang
Attorneys