About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2018
>>
[2018] ZALCD 27
|
|
Hulamin Limited v Harrimohun and Others (D282/2015) [2018] ZALCD 27 (18 December 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, DURBAN
Not
Reportable
Case
no: D 282/2015
In
the matter between:
HULAMIN
LIMITED Applicant
and
KIRATH
HARRIMOHUN First
Respondent
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL Second
Respondent
MOKGERE
MASIPA
N.O
Third
Respondent
Delivered:
18 December 2018
JUDGMENT
TLHOTLHALEMAJE,
J:
[1]
With this application, the
applicant seeks to review and set aside an arbitration award issued
under the auspices of the second
respondent (MEIBC) by the third
respondent (Commissioner). The application is opposed by the first
respondent (Harrimohun) .
[2]
Harrimohun was previously
employed by the applicant in the position of machine operator. He was
dismissed on 18 March 2014
following a disciplinary enquiry
into allegations of;
1)
Removing/stealing company
property from the maintenance lockers without permission from
management.
2)
Entering a substation which is
a prohibited area without the permission of management.
[3]
The alleged infractions are
alleged to have taken place between 3 and 4 November 2012
at the applicant’s substation
5, which was regarded as being
off limits to Harrimohun and other unauthorised personnel.
[4]
The allegations came about
subsequent to the applicant’s Instrumentation Assistant (Mr
Mncube), having reported that he was
missing the keys to the
maintenance locker substation 5, which were kept in that area in a
concealed place. The lockers in question
as situated in substation 5
are in a restricted area, with access only being granted to
instrumentation employees, electricians
and engineers.
[5]
Substation 5 essentially
consists of cupboards that store equipment and tools. At the entrance
of the area is a clear sign indicating
that unauthorised personnel
are not allowed entry. Harrimohun as an operator worked at shredder
machines, which ordinarily are
maintained and repaired by
instrumentation team. According to the applicant, it was thus not
required of him to repair shredder
machines where the need arose.
[6]
CCTV footage of the area was
viewed with the objective of establishing who might have gained
access to the area and retrieved the
missing keys. On the video
footage, Harrimohun was observed to have entered the restricted area
at about 23h20 on 3 November 2012,
shortly before he
knocked off at 00h00. On the following day at 23h20, Harrimohun was
again observed in the area, opening and closing
the lockers, and
proceeding to take some equipment which included multimedia tester,
drills, a calibrator and other items from
the maintenance lockers. He
was further observed removing the missing bunch of keys from the top
of a locker and placing them in
his pocket as he left the substation.
[7]
Further investigations revealed
that the items that went missing from the substation were valued at
an estimate R78 100.00.
Despite a search of the area upon
viewing the footage, the items could not be found. A further viewing
of a security video footage
at the exit and entrance point of the
applicant revealed that Harrimolun was indeed searched as he exited
the premises. Upon Harrimohun
being interviewed and making a
statement, his contention was that he had not removed any property
from the premises and/or from
substation 5.
[8]
After Harrimohun was suspended
and notified of a disciplinary enquiry to answer to the charges, some
of the missing items were subsequently
found in the plant at
substation 5, either concealed in a book or electrical panels. These
included a multi meter tester,
a 475 Field Communicator
Emerson, Black and Decker drill kit box, Bosch portable drill and
other minor accessories. Missing items
such as Tong Tester and two
others could still not be found. The discoveries came about despite
the fact that immediately upon
it being realised that the keys were
missing, and after video footage was viewed, none of the missing
items could be found despite
a search. The discovery of some of the
missing items was made after an anonymous tip-off. Further discovery
of other items was
made midstream the arbitration proceedings before
the Commissioner, some two years after they had disappeared.
[9]
Following a finding of guilt on
the charges and a dismissal, Harrimohun referred an alleged unfair
dismissal dispute to the MEIBC.
When conciliation failed, the matter
came before the Commissioner for arbitration.
The
arbitration proceedings and the award:
[10]
The evidence led on behalf of
the applicant by its Control Engineer Mr Faizel Rawot, was
essentially that upon the video footage
having been viewed,
Harrimohun was also observed looking up the roof of the area to see
if there were any surveillance cameras
in the area and proceeded to
look through the cupboards. Rawot’s contention was that if
there was no intention to commit
theft, Harrimohum could simply have
requested permission to enter the area. He had further testified that
Harrimohun did not in
the course of his duties, require the tools
from the substation; that only the engineering manager could
authorise employees to
enter the area, and further that a permit was
also required if an employee sought to enter that area.
[11]
Mncube also confirmed having
viewed the video footage. Other than corroborating Rawat’s
testimony, he had added that Harrimohum
would have known at the time
of the commencement of his employment that authorisation was needed
prior to entering substation 5.
[12]
Another witness, Robinson, of
RAP Security which was contracted to the applicant, also viewed the
video footage and had observed
Harrimohun removing the items from the
lockers. He had further testified that although Harrimohun was
searched when he left the
premises on 3 and 4 November 2012,
his bags were however not searched.
[13]
Harrimohun’s contentions
at the arbitration proceedings were that the charges against him were
trumped up as he was a union
(UASA) shop steward and had always
vociferously objected to the manner with which management treated
employees at the workplace.
He had admitted to having removed the
items from the cupboard in the substation, but for the purposes
of using them in the
course of his duties. He contended that he had
left them at the substation when he was done with them and when he
knocked off.
[14]
He testified that he could not
have stolen the items as they were subsequently recovered during his
suspension and after his dismissal.
In regards to the second charge,
his contention was that there was no rule prohibiting him from
entering the substation; that no
permission was required by anyone
prior to entry into the substation; and that its doors were
permanently left opened. He had thus
entered the substation on
numerous occasions, with the full knowledge and authority of his
supervisor.
[15]
Harrimohun’s further
testimony was that it was common practice for any other employee to
enter the substation. On 3 and 4 November 2012,
and as per
the instructions of his supervisor, Mr Chinsamy, he was performing
routine maintenance, replacing and installing pressure
airline
valves, and putting additional airlines for housekeeping purposes.
[16]
In regards to the items
allegedly stolen, he conceded that he had placed some of them
in his jacket pocket, but only to prevent
them from falling. He
contended that the multi meters belonged to his friend; that he
only took the IR gun out of the substation
to play with or test it;
and that he took the Emerson to test it, learn how to use it, and
thereafter left it at the substation
as he had no use for it outside
of the workplace; that he removed piping, clamps and second hand
valves as they were old, and to
fix and return them thereafter.
[17]
Harrimohun’s witness,
Raveen Latchman testified that the substation was easily accessible
to all employees, and it was only
after the incident that a memo was
circulated indicating that entrance thereto was restricted.
[18]
Another witness, Rishie
Ramruthan, testified that on a Sunday on 2 November 2014,
and long after the dismissal of Harrimohun,
he had reported for
standby duty at the premises and recovered/found one of the items
(tong tester) that was reported missing.
The discovery was made a
week prior to the arbitration proceedings taking place. Rumruthan
also testified that the entrance to
the substation was always
accessible to anyone as it was not locked. This was despite his
concession that a ‘no entry’
sign was placed at the
entrance of the substation.
[19]
The Commissioner’s
conclusions are summarised as follows;
19.1
Harrimohun was employed as a
machine operator and was trained and had obtained a certificate in
line maintenance. He had accessed
the substation on 3 and
4 November 2012 as it was near his workstation and removed
the items in question. Having taken
the items, he left them at the
back of the substation. He also took the multi tester as it belonged
to his friend, and it was not
known what happened to the items
thereafter.
19.2
Harrimohun had conceded that
he did not ordinarily use the items in the course of his duties.
There was however no evidence
to prove that he removed the items from
the premises, or removed them at all from the substation other than
the two he had conceded
to.
19.3
His home and vehicle were
searched and none of the items were found. The applicant’s
evidence was however to present two lists
of items collated on 9 and
12 November 2012, which were not the same, and to this end,
although allegations of theft
were made, the applicant could not
state what was stolen.
19.4
Evidence suggested that
although Harrimohun had removed the items from the cupboards before
he knocked off, he had left them behind
as he planned to use them on
the following shift, but had not found them where he had left them
the following day. Since the substation
was never locked and was
readily accessible to other employees, the items could have been
removed by any of the other employees.
19.5
Some of the items were
subsequently found at the premises at the time Harrimohun was on
suspension, and there was no evidence to
suggest that he could have
arranged for them to be returned to the premises. Evidence therefore
suggested that since all of the
items were recovered, they must have
not left the premises in the first place, and the employer had not
led any evidence to show
what measures were taken to establish from
other employees whether they had knowledge of the missing items or
taken them.
19.6
In regards to the second charge
of entering the substation without authorisation, the Commissioner
accepted that entry into the
area was unrestricted even though there
was a sign outside prohibiting entry, and further accepted
nonetheless that authorisation
was needed to gain entry. In this
case, Harrimohun accessed the area without obtaining the necessary
authority.
19.7
Since the applicant had failed
to discharge the onus placed on it to prove that Harrimohun stole
the items, and also in the
light of the finding that Harrimohun had
indeed entered the substation without authority, the Commissioner
concluded that the sanction
of dismissal was too harsh in the light
of his clean disciplinary record and years of service, hence the
award of reinstatement
and backpay.
Grounds
of review and evaluation:
[20]
The applicant contends that the
Commissioner’s award is reviewable on a number of grounds
including that her conduct was grossly
irregular; that she had
committed misconduct on various fronts, and that she made an
unreasonable finding since no reasonable decision-maker
would have
concluded on the facts and the evidence available, that Harrimohun
was not guilty of the allegations of misconduct levelled
against him.
In that regard, it was further submitted that the Commissioner failed
to consider relevant evidence and the applicable
principles; failed
to apply her mind to the different versions presented by the parties
regarding the reasons or purpose of Harrimohun
at the substation and
handling the items in question when they were unrelated to his
duties; or failed to properly consider the
competing and disputed
versions and evidence of the various parties.
[21]
Flowing from the established
review test, it follows that the issue to be determined is whether
the award issued by the Commissioner
is one that a reasonable
decision maker could reach
[1]
.
[22]
On the material presented, the
Commissioner found that Harrimohun had entered the substation without
authority. In the light of
that finding, it was further not placed in
dispute that the items in question were removed from the cupboards in
the substation.
Some of these were later found over a period of time
in odd places where they were not supposed to be. This was despite a
search
immediately after they were discovered to be missing.
[23]
Since Harrimohun was seen on
the video footage entering the area and handling/removing the items
when he had no authority to do
so, it follows that the Commissioner’s
findings and conclusions that the applicant had not discharged the
onus placed on
it to prove the misconduct in question cannot be
deemed reasonable for the following reasons;
23.1
The enquiry into whether
Harrimohun was guilty of the misconduct related to the removal or
theft of the items in question in the
light of the disputed
versions placed before the Commissioner required an examination of
the probabilities of the contending
versions, and a weighing up of
those versions to determine which was the more probable; the
reliability of witnesses and their
versions; and their
credibility
[2]
.
23.2
It having been found by the
Commissioner that Harrimohun had no authority to enter the area,
central to the determination of the
charge of removal or theft was
whether the applicant had established a
prima
facie
case of misconduct.
Thus once the applicant had proved a
prima
facie
case of misconduct on
the part of Harrimohun, the dismissal stood
prima
facie
justified. The
evidentiary burden would then shift to Harrimohun to present such
evidence as would exonerate him from blame in
that regard
[3]
.
23.3
The Commissioner clearly failed
to weigh the probabilities of Harrimohun’s version of events as
opposed to the evidence presented
on behalf of the applicant. On the
facts placed before her, the invariable conclusion to be reached
would have been that such a
version was lacking in honesty and
credibility, and clearly the probabilities favoured a finding that a
prima facie
case of misconduct had been made. The submission made on behalf of
Harrimohun that there was no direct evidence of misconduct on
his
part is clearly misplaced, as that is not the standard of proof
applicable in this Court.
23.4
Harrimohun’s version that
he had merely removed the items to ‘play with’, or ‘learn
how to use them’
was so ridiculous, far-fetched and improbable
that it ought to have been rejected out rightly.
23.5
To the extent that Harrimohun
had alleged that he had removed some of the items as they belonged to
his friend (Naidoo), the issue
is what had prevented the latter from
fetching the items himself; what was so urgent that required of him
to remove the items just
before the end of his shift at 00h00; and if
indeed that was the case, why leave the items on a bench in the
substation, when they
were safely kept in the cupboard. If indeed the
item belonged to Naidoo, the fact that he was not called to the
arbitration proceedings
to corroborate that version creates doubt as
to the credibility or probability of that version.
23.6
The Commissioner clearly failed
to take into account that once Harrimohun had gained access to the
area without authority, axiomatically,
he could not have had any
authority to remove anything in that area. The argument that
Harrimohun had entered the area due to lax
security or that he was
seen on the video footage fiddling or ‘playing’ with the
items is lame in the extreme.
23.7
The mere fact that Harrimohun
had conceded to having entered the area and removed the items was
sufficient, and whether those items
were subsequently recovered is by
all accounts irrelevant. He had no reason in the first place to
remove the items from where they
were. Any suggestion that Harrimohun
may have entered the substation area with noble intentions is belied
by evidence from the
video footage which demonstrated that upon
entering the area, he had acted suspiciously, looked up at the video
surveillance cameras,
locked the door behind him, put the items and
the keys that were placed on top of the cupboards in his pocket, and
exited the area.
23.8
Evidence further placed before
the Commissioner was that it was realised that the keys that were
placed on the cupboards were missing,
and before Harrimohun was
informed of the video footage, he had denied having taken the items
from the substation, and it was only
after he has informed of the
video footage that he had conceded that he had entered the area.
23.9
The Commissioner appears to
have placed more emphasis on the charge of ‘theft’, when
that charge was aligned to a ‘removal’
of the items. Once
the evidence established that Harrimohun had removed the items, that
was the end of the enquiry.
23.10
The fact that Harrimohun sought
to give a concocted explanation as to the reason he had entered the
substation and removed the items
from where they were, and had
continued to give that version throughout the arbitration without
acknowledging any wrong doing in
my view is an aggravating factor,
which was material for the assessment of the appropriateness of the
sanction of dismissal.
23.11
The fact that he had long
service and a clean disciplinary record became secondary to the net
effect of his conduct, which was by
all accounts, dishonest and
serious, thus further breaking any trust relationship between him and
the applicant.
23.12
His contention that he was
‘targeted’ as he was a UASA member and had stood for
employees’ rights is clearly a
smokescreen and a lame attempt
at diverting attention from his misdemeanours. In the end, the gross
nature of the misconduct in
question called for the sanction of
dismissal. It cannot be expected of this court to countenance
arbitration awards requiring
reinstatement in circumstances where the
evidence presented point to serious acts of dishonesty which were
aggravated by concocted
and implausible explanations, coupled with a
lack of show of contrition.
[24]
Based on the evidence and the
material placed before her, it can safely be concluded that the
decision arrived at by the Commissioner
clearly falls outside the
band of reasonableness, and accordingly ought to be set aside.
[25]
I have had regard to the full
record of the proceedings and the material placed before the
Commissioner, and I am satisfied that
in the light of the conclusions
reached in this judgment, no purpose would be served by remitting the
matter back to the MEIBC,
and the Court is placed in a position to
substitute the Commissioner’s finding. I have further had
regard to the question
of costs, and upon a consideration of the
requirements of law and fairness, I am of the view that a costs order
in this case is
not warranted.
[26]
Accordingly, the order of the
Court is as follows;
Order:
1.
The arbitration award issued by
the third respondent under case number MEKN7430 dated 5 March 2015
is reviewed, set aside
and substituted with an order that;
‘
The
dismissal of Mr Kirath Harrimohun by Hulamin Limited was fair’
2.
There is no order as to costs
____________________
E Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: I. Lawrence of Edward Nathan Sonnenbergs
For
the Respondent: S. Moodley
Instructed
by: Narain Naidoo & Associates
[1]
Sidumo and Another v Rustenburg
Platinum Mines Limited
and
Others[2007]
12 BLLR 1097
(CC) at para 110.
[2]
See
Solidarity
obo Van Zyl v KPMG Services (Pty) Ltd
(2014)
35 ILJ 1656 (LC), where it was held that;
“
11. The proper approach of a
court (or arbitrator) which is called upon to determine which of two
mutually destructive versions
should be accepted was related in the
judgment of
Stellenbosch
Farmers Winery Group Limited and other v Martell
et Cie …
12. That judgment emphasises the
interrelationship of credibility of the witnesses, their reliability
and the probabilities. However,
it is be borne in mind that the
ultimate decision which a court, or an arbitrator (as the case may
be) must determine is whether
on the issue in question the party
which bears the onus has discharged it. In cases concerning the
fairness of dismissals under
the LRA, the party which bears the onus
of justifying the dismissal is the employer. The question which the
arbitrator must ask
in discharging its duties as such is where the
probabilities lie. If the probabilities favour the employer, it may
well discharge
the onus of proving the dismissal was fair. If they
do not, the employer may fail.”
[3]
Woolwoths (Pty) Ltd v Commission
for Conciliation Mediation and Arbitration and Others
[2011] 10 BLLR 963
(LAC); (2011) 32 ILJ 2455 (LAC) at para 34