NOT REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO J4919/2000
[Matter argued and judgment reserved on 2/10/01]
In the matter between:
WESTERN PLATINUM Applicant
and
CCMA & OTHERS Respondents
ON BEHALF OF APPLICANT A SNIDER
ON BEHALF OF RESPONDENT M O MAMABOLO
TRANSCRIBER
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SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
D385/99-SFHJ/T1 - 3 - JUDGMENT
J U D G M E N T
GERING AJ
[1] This is an application to review and set aside the award of an arbitrator, the award
of a commissioner, the second respondent, (Mr E R Mafolo) under section 145 of
the Labour Relations Act 66 of 1995 (the "Act").
[2] The award is dated 11 September 2000 and appears in the paginated bundle of
documents (the "Bundle") at pages 28 to 37. (Page references to the Bundle will
be denoted by "B" followed by the relevant page number).
[3] The employee (the fourth respondent) had been employed for more than ten
years with a clean record. (See B31) It should be noted that the date 1998 given
on B30 is a mistake and should be 1988.
[4] The main charge against the employee was one of corruption and deliberately
using her position for financial gain. [See B176.] There was also a further charge
of failing to comply with the company rules and regulations or established
procedures relating to the filling in of forms.
[5] In terms of section 192 of the Act, as the existence of the dismissal has been
established (which is the position in the present case), the employer must prove
that the dismissal is fair.
[6] The employer called only two witnesses, namely Mr Stephen Trollip, the
employer's Human Research officer (referred to as Trollip) and Myekeni Boy
Dhlamini (referred to as Dhlamini). Trollip testified that it had been reported to
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him that the employee had accepted money from job applicants but this was of
course hearsay evidence. He could not himself give any admissible evidence on
this alleged misconduct. For that the employer relied solely on the evidence of
Dhlamini. He was correctly described as a "key witness". [See B205,206,238.]
[7] The arbitrator found as follows in regard to the evidence of Dhlamini:
"Having regard to the testimony of the employer's key witness, Mr Myekeni
Dhlamini, I find that his testimony should be rejected as false due to
contradictions and his refusal to answer some questions put to him. He was not
reliable at all."
[See B36.]
[8] No other witness was called by the employer to prove the alleged corruption
although Dhlamini stated that there were others. [See B203, B208.]
[9] There is clear evidence in the cross-examination of Dhlamini that there were
material discrepancies and omissions between his evidence at the arbitration
hearing and an earlier statement that he made. It is not necessary to burden this
judgment with extracts from the record and it is sufficient if I mention the
following page references. [B218, B225, B226, B228, B232-233, B242.] The
witness admitted that in regard to his own conduct he knew that what he was
doing was wrong. [See B 240].
[10] Having regard to the significant discrepancies and omissions and his refusal to
answer questions there is ample justification for the view taken by the
commissioner that evidence of this key witness was unreliable and accordingly, in
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D385/99-SFHJ/T1 - 5 - JUDGMENT
the absence of other admissible evidence to establish the alleged misconduct
relating to corruption and deliberately using her position for financial gain by
taking money from job seekers, the employer has failed to discharge the onus of
proof in regard to the main count of misconduct.
[11] As regards the charge of not complying with the employer's procedure in filling in
forms, the following points should be mentioned:
(a) Her evidence was that she was instructed by Trollip to assist one Andrew in
completing forms; Andrew was not however called as a witness. [See B251, B354
and B260.]
(b) The evidence-in-chief of Trollip was part of the transcript that was missing and it is
not clear what particularity was given as to the procedure to be followed by the
employee.
(c) This was the first time that she had been given this task. [See B250 and B259.]
(d) Nowhere on the evidence is it made clear that non-compliance with the procedure
of completing forms could result in dismissal.
(e) The completion of the forms was only a preliminary step towards obtaining
employment. The job seeker had to pass a medical examination. [See B201,
B202, B210.]
[12] As appears from the following extract from the bundle [B202]:
"Her testimony will go further to say that after she received those instructions
from you and after she had completed those medical fitness forms, it is out of her
whether the people passed the fitness test or not. In other words, it is out of her
whether those people succeed in getting employment or not. What will be your
comment? --- Yes, it is up to the hospital to decide whether the person is
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medically fit or not."
And again on B210:
"When a person is found medically fit and he passes his security screening, will he
be denied employment? --- No.
COMMISSIONER: Medically fit? --- Medically fit.
If he is medically fit and he passes the security screening. If a person is found
medically fit and he passes his security screening, will he be denied a post?
COMMISSIONER: What was the answer? --- No, he will not be denied
employment."
[13] It seems clear from this that the mere completion of the form by the employee
would not in itself enable a person to obtain employment. It was still necessary
for the job applicant to be found medically fit before he could obtain employment.
[14] In my view this misconduct, even if proved, (which in my view was not the case)
would not have been a basis for the dismissal of an employee who had worked for
ten years with a clean record and who was doing this particular job for the first
time.
[15] I refer to the judgment in Shoprite Checkers (Pty) Ltd v Ramdaw [2001]9 BLLR
1011 [LAC} 101:
"In my view it is within the contemplation of the dispute resolution system
prescribed by the Act that there will be arbitration awards which are
unsatisfactory in many respects but which nevertheless must be allowed to stand
because they are not so unsatisfactory as to fall foul of the applicable grounds of
review. Without such contemplation, the Act's objective of the expeditious
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D385/99-SFHJ/T1 - 7 - JUDGMENT
resolution of disputes would have no hope of being achieved. In my view the first
respondent's award cannot be said to be unjustifiable when regard is had to all the
circumstances of this case and the material that was before him."
[16] In my view this applies also to this case. There are unsatisfactory features in the
award, such as the mistake of the date on B30 and his statement on B36:
"In order to establish a finding of misconduct it is necessary to establish prejudice.
This requires proof that the employee was selling jobs and had benefitted from
this. In the light of all the evidence and on assessment of all probabilities, it is my
view that this element has not been established with a sufficiently high degree of
proof. The employer has relied on their internal disciplinary hearing to convince
me of the employee's alleged misconduct, forgetting that I cannot rely on hearsay
evidence and the credibility of its key witness did not make matters any better."
[17] The reference to the "necessity to establish prejudice" is not at all clear and the
reference to "a sufficiently high degree of proof" may be misleading because the
requisite degree of proof is simply a preponderance of probabilities.
[18] Nevertheless, it seems to me that there is ample evidence to support the view
that the evidence of the key witness, namely Dhlamini, called by the employer
was so unsatisfactory that it could not be held to discharge the onus of proof in
relation to the misconduct alleged of deliberately using her position for financial
gain by receiving money from job seekers.
[19] In the result, in my view no grounds have been established under section 145 of
the Act to justify the setting aside of the arbitrator's award and I accordingly order
that the application for review and setting aside of the award should be dismissed.
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[20] The award of the arbitrator is set out on B37:
"I, therefore, award as follows:
That the employer reinstate the employee to her former position on the same
terms and conditions that prevailed prior to her services being terminated; that
the employer pay to the employee the amount of R20 600,00, which is equivalent
to the employee's salary for twelve months; that the employer comply with the
terms and conditions of the award within seven days of its receipt and that the
employer comply with section 195 of the Act."
[21] I confirm the arbitrator's award and I order that the application under section 145
be dismissed with costs.
GERING AJ
ACTING JUDGE OF THE LABOUR COURT
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