THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case no: JR1208/18
In the matter between:
AEL MINING SERVICES LTD Applicant
and
PATRICK SISHONGA First Respondent
GENERAL INDUSTRIES WORKERS UNION OF SOUTH AFRICA (‘GIWUSA”) Second Respondent
ELIAS KHUTSO MPAI N.O. Third Respondent
NATIONAL BARGAINING COUNCIL FOR THE CHEMICAL INDUSTRY (‘NBCCI ’) Fourth Respondent
Heard: 21 May 2024
Delivered: 04 February 2025
JUDGMENT
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MOLOTSI, AJ
Introduction
[1] This is an application for review in terms of section 145 of the Labour
Relations Act
1 (LRA) . The applicant is, AEL Mining Services Ltd, a company carrying
on business in the explosive industry. The arbitration proceedings took place under
the auspices of the fourth respondent, the National Bargaining Council for Chemical Industry (Council). The third respondent , Elias Khutso Mpai (commissioner) issued
the arbitration award dated 4 June 2017.
[2] The date of the award appears to have been erroneously referred to as 4
June 2017. This is so because the arbitration proceedings took place on 23 April 2018 and 29 May 2018 respectively. Consequently, the date of the award could not
have been on 4 June 2017 which was almost a year prior to the commencement of
the arbitration proceedings. Furthermore, it appears that the commissioner signed
the arbitration award on 7 June 2018.
[3] In the arbitration, the commissioner concluded that the dismissal of the first
respondent, Patrick Lebelo Sishonga (employee) was substantively unfair but procedurally fair. The commissioner ordered the applicant to reinstate the employee
and further ordered payment to the employee an amount of R165 000 for the period
that he was out of employment.
[4] The applicant received the arbitration award 13 June 2018. The review
application was launched on 27 July 2018. The applicant was granted condonation for the late filing of the review. This Court further granted an order, reinstating the review application of the applicant.
The relevant facts
1 Act 66 of 1995, as amended.
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[5] The employee was employed by the applicant on 10 September 2011 as an
Operator . The employee was subjected to a disciplinary enquiry. The employee was
charged with the following misconduct :
‘Theft in that on the 15th June 2017, you allegedly assisted George Masindi in
removing Harness Wire from Mogalakwena Mine Site in a fraudulent manner
for personal gain.’
[6] The applicant alleged that the two boxes of Hannes w ires (blasting wires)
stolen by Masindi are worth approximately R10 000. The employee was found guilty
as charged and the sanction of summary dismissal was imposed.
[7] The employee then referred a dispute of unfair dismissal to the Council. The
matter was eventually resolved by arbitration and the commissioner issued the arbitration award. During the arbitration proceedings, the applicant led the evidence
of Mr. Pheeha Felix Emmanuel Seema and Mr. Frans Thole. The employee testified on his own behalf and Masindi further testified on behalf of the employee.
[8] During the arbitration, the employee denied that he participated in the theft of
harness wires. The employee’s case was that he did not assist Masindi to remove
the Harness wires as he was not ready to do so.
[9] The applicant’s case in the arbitration was that Mr . Frans Thole viewed a
video footage and saw Masindi removing four boxes of Harness wires. Masindi is seen in the video talking to the employee. Later on, Mr . Thole spoke to Masindi.
Masindi confirmed that he took the harness wires. Masindi informed Mr. Thole that
the employee knew everything about the theft of the harness wires. In essence, the
evidence of the applicant was that the employee assisted Masindi to remove the harness wires from the mine site. Masindi was dismissed for theft.
[10] The commissioner concluded that the employee did not commit theft. The
commissioner concluded that there is nothing that linked the employee to the theft of harness wires and that the only area where the employee could have been wrong
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related to his failure to blow the whistle on Masindi ‘s intention to remove the
Harness wire from the mine site.
Grounds for review
[11] The applicant submitted that the commissioner’s award is reviewable on the
following grounds: The arbitration award represents an award to which no
reasonable decision- maker could come to having regard to the material evidence
before him. The approach adopted by the arbitrator in the conduct of the arbitration
proceedings had the effect that he elevated the standard of proof to proof beyond reasonable doubt as opposed to the applicable standard of proof on a balance of probabilities.
[12] The arbitrator failed to identify and then determine the true nature of the
dispute between the parties, it having been whether Sishonga (employee) was guilty of acting in concert with Masindi in the theft of wires. It is submitted that the evidence
established, on the balance of probabilities, that the two had acted with common
intention of appropriating, as well as acted together in planning the appropriation of the wires, until Sishonga got cold feet and decided not to collec t the wires from
where they had been hidden by Masindi.
Submissions by the parties
[13] Mr. Cithi, on behalf of the applicant submitted that the label attached to a
misconduct in a charge sheet is irrelevant . It was submitted that the employee had
knowledge of, and relevant to, misconduct and criminality (i.e. theft of the Harness
Wires from its premises by the employee and Masindi, and the employee failed to inform management. The employee’s failure to inform management about the theft,
enabled Masindi to remove the harness wires from the mine premises for personal
gain. As a result of his conduct, the applicant suffered a financial loss to the value of
R10 000. The employee knew exactly what was the nature of the complaint against
him.
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[14] During the disciplinary hearing, the employee knew that the complaint against
him was that he had knowledge regarding the theft of the h arness wires and he
assisted Masindi to remove the h arness wires. It was made clear to the employee
during the disciplinary hearing that, the applicant ’s case was not that the employee
stole the h arness wires.
[15] Mr. Cithi submitted that irrespective of the label assigned to the misconduct in
the charge sheet, the commissioner was required to determine and assess whether
the misconduct committed by the employee was destructive of the employment
relationship. The commissioner was required to look beyond the charge sheet and look at the nature of the dispute.
[16] It was submitted that if the commissioner concluded that there was no
evidence establishing the charge, then the commissioner was required to determine
the issue on the aspect that he found. In this case, the commissioner concluded that
the evidence does not establish theft, but rather that the employee could have been wrong when he failed to blow the whistle on George Masindi’s intention to remove
the harness wires from the mine site. This was the issue that the commissioner was
required to determine. Therefore, the substantial part of the dispute was not resolved
by the commissioner. [17] Mr. Cithi submitted that the applicant accepted that the employee did not
remove the h arness wires from the mine premises . The issue is that the employee
had knowledge that Masindi intended to commit theft and the employee failed to inform the applicant. The applicant opened a theft case against Masindi. The
definition of theft used by the commissioner in the arbitration award, relates to a criminal definition of theft. This was not theft in the criminal context. T he
commissioner therefore misconstrued the nature of the inquiry.
[18] The commissioner was concerned with the label attached to the misconduct
as contained in the charge sheet and not concerned with the conduct of the
employee.
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[19] Mr. Khomola on behalf of the employee submitted that the applicant
approached this Court on the basis of the statement made in the disciplinary hearing.
The commissioner is not bound by the proceedings in the disciplinary hearing as the
commissioner is required to listen to the evidence afresh. The employee did not take the utterances made by Masindi seriously i.e. Masindi wanted to steal the harness wires. Two boxes of h arness wires were removed by Masindi.
[20] Masindi took the boxes of harness wires and loaded them into a vehicle. He
then drove to the vegetation outside the mine premises. Thereafter, Masindi spoke to
the employee. Masindi committed the theft alone. The employee did not believe that
theft will materialize. Mr. Thole confirmed that in terms of their policy, there is no
charge relating to withholding of information.
Evaluation
[21] The test for review is well known. In Gold Fields Mining SA (P ty) Ltd (Kloof
Gold Mine v CCMA and Others
2, the Labour Appeal Court ( LAC) held that:
‘In short: A reviewing court must ascertain whether the arbitrator considered
the principal issue before him/her: evaluated the facts presented at the hearing and came to a conclusion that is reasonable.’
[22] In Head of Department of Education v Mofokeng and others
3, the Court said:
‘[31] The determination of whether a decision is unreasonable in its result is
an exercise inherently dependent on variable considerations and
circumstantial factors. A finding of unreasonableness usually implies that
some other ground is present, either latently or comprising manifest
unlawfulness. Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination of inter - related questions of
rationality, lawfulness and proportionality, pertaining to the purpose, basis,
2 (2014 ) 35 ILJ 943 (LAC) at para 16.
3 (2015 ) 36 ILJ 2802 (LAC) at para(s) 31 - 32.
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reasoning or defect of the decision, corresponding to the scrutiny envisioned
in the distinctive review grounds developed casuistically at common law, now codified and mostly specified in s 6 of the Promotion of Administrative Justice Act ( PAJA): such as ailing to apply the mind, taking into account irrelevant considerations, ignoring the relevant considerations, acting for an ulterior purpose, in bad faith, arbitrarily or capriciously etc. The court must nonetheless still consider whether, apart from flawed reasons of or any
irregularity by the arbitrator, the result could be reasonably reached in the light
of the issues and the evidence. Moreover, judges of the Labour Court should keep in mind that is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not
misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be fair trial of the issues.
[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, evidence in the failure to apply the mind, reliance on irrelevant considerations or the ignoring of material factors 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.’
[23] During the arbitration proceedings it was not the applicant’s case that the
employee committed theft . The word ‘theft’ referenced in the charge sheet, should
not have been considered by the commissioner in his arbitration award. The issue
which the commissioner had to determine that related to the charge sheet was
whether the employee assisted George Masindi in removing the h arness wires from
Mogwalakwena Mine Site in a fraudulent manner.
[24] In the arbitration award, the commissioner focused on the definition of theft as
referenced in the charge sheet. It is indeed correct that the applicant did not lead evidence that the employee committed theft. This was not the applicant’s case and it
was not the issue that the commissioner had to determine.
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[25] The applicant’s case in both the disciplinary hearing and the arbitration was
that the employee with full knowledge, assisted Masindi to remove the harness wires
and failed to report the theft to the applicant. By failing to report the theft, the
employee assisted Masindi in removing the harness wires. The applicant’s case had nothing to do with the theft that was committed by the employee. As per the opening statement in the arbitration proceedings, the applicant representative stated:
‘The applicant was then charged for allegedly assisting Masindi in removing
those harness wires. So, the charge is very simple, that had he disclosed to
the employer the intentions of Masindi, the wires would not have been
removed. So, what we are going to argue is that there is a known obligation
on employees that if there is any wrongdoing you must report which he had
failed to do
4’.
[26] During the arbitration proceedings, Mr. Thole testified that:
‘He ( employee) said to us he had knowledge , he spoke to George Masindi, he had knowledge about the activity of removing harness wire off site for personal gain, because George Masindi spoke to Patrick, Patrick Sishonga about those harness wires that he is going to remove and he pointed to the area where he is going to hide them and he requested Patrick Sishonga to remove them from site for him, and Patrick Sishonga says he did not remove them on site
5.’
[27] The above evidence of Mr. Thole is consistent with the statement made by the
employee dated 17 June 2017
6. The above evidence of Mr . Thole and the written
statement of the employee were simply ignored by the commissioner. This
constituted gross irregularity on the part of the commissioner. Ignoring material evidence had the effect of rendering unreasonable outcome.
4 Index: record page 129 line(s) 15 - 21.
5 Index: record page 171 line(s) 17 - 23.
6 Index record pages 67 - 69.
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[28] By focusing on the word theft as contained in the charge sheet, the
commissioner misconceived the nature of the enquiry and consequently produced an
unreasonable outcome. The commissioner failed to properly apply his mind to the evidence before him. I agree with the submission of Mr . Cithi, that the commissioner
failed to resolve the substantial part of the dispute between the parties i.e. whether the employee assisted George Masindi to remove the h arness wires from the mine
site and the conduct of the commissioner constituted gross irregularity and rendered
unreasonable outcome.
[29] By focusing on the word ‘theft’ as contained in the charge sheet, the
commissioner took into account irrelevant considerations and ignored the relevant considerations . The commissioner was fully aware of the issue that he needed to
determined. This is illustrated by the following findings in paragraph 68 of the award:
‘There is nothing that linked the Applicant to theft of the Harness wire in this
case , The only area where the Applicant ‘could have been wrong’ to the
Respondent relates to his failure to blow the whistle on George Masindi’s
intended removal of the harness wire from the mine site. That however, is not what he was charged for hence he cannot be found guilty on that.
[30] The commissioner failed to appreciate that the failure of the employee to
report to management the intended theft by Masindi, assisted Masindi in removing
the Harness from the mine site, which assistance was the crux of the charge levelled
against the employee. [31] It is not expected that the employers must craft disciplinary hearing charge
sheets with precision and comprehensiveness akin to a criminal Court indictment.
All what the employer is expected to do is to comply with item 4(1) of schedule 8 of the Code of Good Practice. Item 4 provides that:
‘ Normally, the employer should conduct an investigation to determine
whether there are grounds for dismissal. This does not need to be a formal enquiry. The employer should notify the employee of the allegations using a
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form and language that the employee can reasonably understand. The
employee should be allowed the opportunity to state a case in response to the allegations. The employee should be entitled to a reasonable time to prepare
the response and to the assistance of a trade union representative or fellow
employee… ’
In this case, the employee was reasonably aware of the allegations levelled against
him and he was able to properly defend himself. The employee was not prejudiced
by reference to the word ‘theft ’ in the charge sheet.
[32] The commissioner’s arbitration award was disconnected to the material
evidence which was before him. The employee was clearly aware that he had to report the theft committed by Masindi to management
7. The existence of the rule in
respect of reporting to management any unlawful activity , was a common cause
factor during the arbitration proceedings.
[33] Consequently, given the totality of the evidence before the commissioner, the
outcome reached by the commissioner was unreasonable and the arbitration award must be reviewed and set aside.
[34] In the premises the following order is made:
Order
1. The arbitration award issued by the third respondent under case
number: LPCHEM46- 17/18 is hereby reviewed and set aside.
2. The arbitration is remitted back to the fourth respondent to be heard de
novo before another commissioner other than the third respondent.
3. There is no order as to costs.
H. Molotsi
Acting Judge of the Labour Court of South Africa
7 Index – record page 279 at line(s) 1 - 6.
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Appearances :
For the A pplicant : Mr D Cithi
Instructed by : Tabacks Attorneys Inc
For the Respondent : Adv M khomola
Instructed by : Mohale Incorporated