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[2020] ZALCJHB 46
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Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR2099/16
In
the matter between:
ANGLOGOLD
ASHANTI LIMITED Applicant
And
ASSOCIATION
OF MINEWORKERS AND CONSTRUCTION UNION OBO M DLUNGANE
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
Second Respondent
COLLINS
LENKWASI MAKAMA
N.O
Third
Respondent
Heard:
06 February 2020
Delivered:
20 February 2020
Summary:
Review application –
prima facie
circumstantial evidence shifts the evidentiary burden – the
employee must give cogent explanation in rebuttal –
when
charged with theft, the employee may be convicted of a competent
verdict of unauthorised possession.
JUDGMENT
NKUTHA-NKONTWANA,
J
Introduction
[1]
This is an
application brought in terms of section 145 of the Labour Relations
Act
[1]
(LRA) by the applicant,
AngloGold Ashanti Limited (AngloGold), to review and set aside
the arbitration award issued on 12
September 2016 by the third
respondent, Mr Collins Lenkwasi Makama (commissioner), under the
auspices of the second respondent,
the Commission for Conciliation,
Mediation and Arbitration (CCMA), under case number NWKD2034-16. The
commissioner found that the
dismissal of Mr Matopane Dlungane (Mr
Dlungane), a member of the first respondent, Association of
Mineworkers and Construction
Union (AMCU), was substantively unfair.
He reinstated Mr Dlungane retrospectively with back pay amount of
R48 509.76.
[2]
AngloGold’s main impugned is that the commissioner
misconstrued
the nature of the enquiry and, consequently, there was no fair trial
of issues. The application is opposed only by
AMCU.
Background
facts:
[3]
AngloGold is a mining company with a national footprint.
Mr Dlungane
was in its employ as a Loco Operator. He was dismissed for misconduct
on 26 April 2016 subsequent to the verdict of
guilty on, firstly, a
charge of theft of gold bearing material and, secondly, a charge of
illegal possession of gold bearing material.
[4]
It is common cause that Mr Dlungane gave permission to
the personnel
from AngloGold’s Security Department,
inter alia
, to
conduct a search for traditional weapons in his hostel room. Mr
Johannes Pottas (Mr Pottas), an AngloGold’s security
officer,
testified that he was part of the personnel that conducted the search
in the presence of Mr Dlungane. Mr Dlungane unlocked
the door of his
hostel room in order to allow them entry.
[5]
During the search, they found rocks suspected to be from
the
underground reef which were gold bearing, sjamboks and knobkerries.
The rocks were put in a bag and sealed in the presence
of Mr
Dlungane. The subsequent test confirmed that the rocks had gold
valued at 58 cents. This evidence was corroborated by Mr
Jacques
Liebenberg (Mr Liebenberg), a Senior Technical Officer, who was
present during the search.
[6]
AngloGold laid a criminal charge against Mr Dlungane
with the South
African Police Service (SAPS) for illegal possession of gold bearing
material.
[7]
Mr Dlungane denied any knowledge of the gold bearing
material. He was
adamant that he only became aware of the allegation that some gold
bearing material had been found in his hostel
room during his
Magistrate Court appearance in relation to a charge of sjambok and
knobkerries. However, this version was challenged
as it is
irreconcilable with his version during the disciplinary enquiry that
someone placed the gold bearing material in his hostel
room in order
to frame him.
Arbitration
award
[8]
The commissioner conclusively ruled that the gold bearing
material
was found inside Mr Dlungane’s hostel room. He was also
satisfied that it belonged to AngloGold since the kind of
material
could only be found in the mining vicinity or the underground reef
and contained gold, though of negligible value.
[9]
On the first charge of theft, the commissioner found
that AngloGold
failed to prove that Mr Dlungane was guilty of theft simply because
it failed to lead evidence to show where, when,
how and by whom was
the gold bearing material stolen. He opined that AngloGold would have
succeeded if it had charged Mr Dlungane
with unauthorised possession
of gold bearing material as opposed to theft.
[10]
On the second charge, the commissioner criticised AngloGold for
charging
Mr Dlungane with illegal possession of gold bearing material
because it presupposed that he had committed some illegal activity
when the instrument breached was not specifically mentioned in the
charge sheet. He concluded his analysis with the following tangle:
‘…
Similarly
with the first charge, the respondent has failed to show any
illegality on the part of the applicant. As I said before,
the
respondent was able to show via evidence that the stones worth 58
cents we found in the room of the applicant, but would not
show any
illegal aspect of the charge. Also, strictly speaking, the applicant
was not in possession of those GBM, but those items
were found inside
his room. Can we then say that by virtue that they were found in his
room to mean that he was in possession of
those items? It is open to
a number of interpretation and some doubtful ones.’
[2]
[11]
AngloGold submitted that the commissioner committed serious errors of
law and fact. He was oblivious to the law on circumstantial evidence
and evidentiary burdens and as a result he applied an incorrect
burden of proof. Also, he adapted an inflexible approach in
interpreting the ambit of disciplinary charges.
Review
test and application
[12]
It is trite
that mere errors of fact or law may not be enough to vitiate an
award.
Notwithstanding,
if errors material to the determination of the dispute constitute a
misconception of the nature of the enquiry
which consequently affect
the fair trial of the issues, an award may be set aside on that
ground alone.
The authoritative pronouncement in this regard remains the Labour
Appeal Court’s (LAC) decision in
Head
of the Department of Education v Mofokeng,
[3]
where it was stated that:
‘
[30]
The failure by an arbitrator to apply his or her
mind to issues which are material to the determination
of a case will
usually be an irregularity. However, the Supreme Court of Appeal
(“the SCA”) in
Herholdt v
Nedbank Ltd
and this court in
Goldfields Mining South Africa (Pty) Ltd
(Kloof Gold Mine) v CCMA and others
have held that before such an irregularity will result in the setting
aside of the award, it must in addition reveal a misconception
of the
true enquiry or result in an unreasonable outcome…
[32]
…Mere errors of fact or law may not be enough to vitiate
the award. Something more is required. To repeat: flaws in the
reasoning
of the arbitrator, evidenced in the failure to apply the
mind, reliance on irrelevant considerations or the ignoring of
material
factors etc. must be assessed with the purpose of
establishing whether the arbitrator has undertaken the wrong enquiry,
undertaken
the enquiry in the wrong manner or arrived at an
unreasonable result.
Lapses in lawfulness, latent or patent
irregularities and instances of dialectical unreasonableness should
be of such an order (singularly
or cumulatively) as to result in a
misconceived inquiry or a decision which no reasonable decision-maker
could reach on all the
material that was before him or her.
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce
an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the inquiry.
In the final analysis, it will depend on the materiality of the
error or irregularity and its relation to the result. Whether the
irregularity or error is material must be assessed and determined
with reference to the distorting effect it may or may not have
had
upon the arbitrator’s conception of the inquiry, the
delimitation of the issues to be determined and the ultimate outcome.
If but for an error or irregularity a different outcome would have
resulted, it will
ex hypothesi
be material to
the determination of the dispute. A material error of this order
would point to at least a
prima facie
unreasonable result. The reviewing judge must then have regard to the
general nature of the decision in issue; the range of relevant
factors informing the decision; the nature of the competing interests
impacted upon by the decision; and then ask whether a reasonable
equilibrium has been struck in accordance with the objects of the
LRA. Provided the right question was asked and answered by the
arbitrator, a wrong answer will not necessarily be unreasonable. By
the same token, if an irregularity or error material to the
determination of the dispute may constitute a misconception of the
nature of the enquiry so as to lead to no fair trial of the
issues,
with the result that the award may be set aside on that ground alone.
The arbitrator however must be shown to have diverted
from the
correct path in the conduct of the arbitration and as a result failed
to address the question raised for determination
.’
(Emphasis added)
[13]
Turning to
the matter at hand, the commissioner clearly failed to address the
question raised for determination. Fairness is the
hallmark of the
law of dismissal.
[4]
In
National
Battery (Pty) Ltd v Matshoba and Others
,
[5]
the court pointed out that the labels assigned to the misconduct are
irrelevant – the point is whether the evidence demonstrates
a
case of wrongdoing. This thesis was recently buttressed by the LAC in
EOH
Abantu (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others,
[6]
pertinently stating that:
‘
[15]
One of the key elements of fairness is
that an employee must be made aware of the charges against him
.
It is always best for the charges to be precisely formulated and
given to the employee in advance of the hearing in order to afford
a
fair opportunity for preparation. The charges must be specific enough
for the employee to be able to answer them. The employer
ordinarily
cannot change the charge, or add new charges, after the commencement
of the hearing where it would be prejudicial to
do so
. However,
by the same token, courts and arbitrators must not adopt too
formalistic or technical an approach. It normally will
be sufficient
if the employee has adequate notice and information to ascertain what
act of misconduct he is alleged to have committed.
The categorisation
by the employer of the alleged misconduct is of less importance
.
[16]
Employers embarking on disciplinary proceedings, not being skilled
legal practitioners, sometimes define or restrict the alleged
misconduct too narrowly or incorrectly. For example, it is not
uncommon for an employee to be charged with theft and for the
evidence
at the disciplinary enquiry or arbitration to establish the
offence of unauthorised possession or use of company property
.
The principle in such cases is that provided a workplace standard has
been contravened, which the employee knew (or reasonably
should have
known) could form the basis for discipline, and no significant
prejudice flowed from the incorrect characterisation,
an appropriate
disciplinary sanction may be imposed.
It will be enough if
the employee is informed that the disciplinary enquiry arose out of
the fact that on a certain date, time and
place he is alleged to have
acted wrongfully or in breach of applicable rules or standards
.
(Emphasis added)
[14]
In this instance, it is clear that the Commissioner failed to
comprehend
that AngloGold had established a
prima facie
case
of theft through circumstantial evidence. Mr Dlungane was the Loco
Operator at the mine, the gold bearing material belonging
to
AngloGold was found in his hostel room. The evidentiary burden
shifted to Mr Dlungane to provide a credible explanation as to
how
the gold bearing material ended up in his hostel room but to no
avail. The commissioner immersed himself with unhelpful questions
and
ultimately misconstrued what constitutes theft.
[15]
Also, even if AngloGold failed to prove a charge of theft,
unauthorised
possession is a competent verdict in the circumstances.
Despite having opined so initially, the commissioner’s parting
short
seems to cast doubt as to whether Mr Ndlungane was indeed in
possession of the gold bearing material found in his room. Clearly,
the commissioner confused possession as only referring to having an
object in your hand or physically. The test is, however, whether
a
person has control intentionally exercised toward a thing. In this
instance, the gold bearing material was found in Mr Dlungane’s
hostel room which meant that he had exclusive and intentional control
over same.
[16]
On the
second charge, the commissioner’s findings are not supported by
evidence. Mr Pottas testified that it is illegal to
be in possession
of gold bearing material in terms of the Precious Metals Act.
[7]
He was also adamant that Mr Dlungane was aware that it is illegal to
be found in possession of the gold bearing material. This
evidence
was not disputed. Clearly, as stated in
EOH
Abantu
[8]
dictum, failure to refer to the said prescript in the charge sheet
was not fatal to the case of AngloGold given the fact that Mr
Dlungane was aware or ought to have been aware that being in
possession of gold bearing material is prohibited.
[17]
I also note that in terms of AngloGold Disciplinary
Code, theft and
unauthorised possession of gold bearing material are dismissible
offences. Even though it is not a given in every
instance, in the
circumstances of this case, Mr Dlungane’s actions rendered the
employment relationship intolerable so as
to justify a sanction of
dismissal.
Conclusion
[18]
In all the circumstances, I am satisfied that the
commissioner
misconceived the nature of the enquiry and consequently there was no
fair trial of the issues. Put otherwise, he diverted
from the correct
path in the conduct of the arbitration and as a result failed to
address the question raised for determination.
Based on this ground
alone, the award stands to be reviewed and set aside.
[19]
I deem it expedient
not
to remit this matter back to the CCMA in the interest of justice. The
issues were properly ventilated during the arbitration
proceedings
and the adequacy of the record of those proceedings is not placed in
issue. I am, accordingly, in a position to determine
the matter to
its finality.
[20]
In the light of
the findings I have arrived
at above, it is clear that the dismissal of Mr Dlungane was
substantively fair.
Costs
[21]
Tritely, costs do not follow the result in this Court; but the
requirements
of the law and fairness are a main consideration. It
therefore accords the requirements of law and fairness that each
party should
bear its own costs.
[22]
In the circumstances, I make the following
order.
Order
1. The
arbitration award
dated
12 September 2016
under case number
NWKD3034-16 is reviewed
and set aside and substituted with the following order:
1.1
The dismissal of Mr Dlungane is substantively fair.
2.
There is no order as to costs.
___________________
P
Nkutha-Nkontwana
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants: Mr L Frahm-Arp from Fasken,
incorporated in South Africa as Bell Dewar Inc.
For
the Respondent: Advocate C Malan
Instructed
by:
Larry Dave Incorporated
[1]
Act 66 of 1995, as Amended.
[2]
See: Arbitration Award, page 6 at para 26
.
[3]
[2015] 1 BLLR 50
(LAC) at paras 30-33; see also
Goldfields
Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and Others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074 (SCA).
[4]
See:
Shoprite
Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others
[2015] 9 BLLR 887
(LAC); (2015) 36 ILJ 2273 (LAC) at para 18.
[5]
(2010) 5 BLLR 534 (LC).
[6]
(2019) 40 ILJ 2477 (LAC);
[2019] 12 BLLR 1304
(LAC) at paras 14 -16.
[7]
Act 37 of 2005.
[8]
Supra
n
5.