Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR63/01
2002-02-.11
In the matter between
RUSTENBURG PLATINUM MINES LIMITED
(RUSTENBURG SECTION) Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1ST Respondent
2ND Respondent
3RD Respondent
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J U D G M E N T
Delivered on 11 February 2002
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REVELAS, J:
1. The third respondent was employed by the applicant as a
Grade II patrolman, based at the applicant's protection
services department until his dismissal for misconduct
relating to his failure to follow the applicant’s
precribed procedures for security searches. He had been
employed for 15 years. His misconduct, which is not in
dispute, was discovered in the course of an
investigation conducted by the applicant with a view to
establish the cause of an alarming drop in production.
2. The applicant decided to monitor its security staff,
particularly with the purpose to evaluate how searches
were conducted at the only access point in its
redressing section, where the third respondent was
employed.
3. To this end surveillance equipment was installed
unbeknown to employees, and amongst those monitored was
the third respondent. The period over which this
surveillance was conducted was 27 February 2002 to 27
May 2002. The surveillance equipment, including video
footage captured by camera, demonstrated that the
redressing section was not performing properly, it was
not properly managed, employees were not efficiently
carrying out their duties, and some were even found
sleeping on duty. A pitiful work performance picture of
employees was observed.
1. 4. At the end of May 2002 the surveillance was
completed, and the applicant started to take
disciplinary action against those employees who were
not performing their duties properly. Criminal charges
were laid against some employees, but not against the
third respondent. The third respondent, as stated
before, worked in the redressing section in question,
and during the period 12 April to 17 April he was on
duty that only access point to the area in question. In
terms of his duties he was required to search all
employees leaving the redressing section, and he had to
follow a particular procedure. It is important to make
reference to those procedures.
5. The applicant's search procedure requires all security
staff of the redressing section to adopt a stringent
search procedure, which involves inter alia searching
all persons leaving the redressing section, one at a
time; an inspection or search of all hand luggage on
the premises; an inspection or examination of the
watches, jewellery, private property and hardhats of
the persons being searched; a frontal body frisk from
hands to feet; a rear body frisk from hands to feet; a
metal detector scan, (both of the rear and front of
body, from head to feet); the scanning of a person's
shoes, as well as underneath both feet, with a metal
detector. This is a rather elaborate procedure, but
there is good reason therefor, and that is because of
theft. A very small quantity of platinum or gold is
worth thousands of rands.
6. The applicant's search procedures were distributed in
writing to all security employees, including the third
respondent, under cover of a Works Instruction document
dated 16 August 1999. The third respondent acknowledged
that the search procedures had been read and explained
to him in detail, and he fully understood all the
different tasks and responsibilities required of him.
All employees were invited to hand in queries or
questions.
1. 7. The third respondent admits that search procedures
were distributed to all security employees, but denied
that the procedures were read and explained to him in
detail. What is clear is that the third respondent knew
what was required of him at a particular search, but he
raised the question that he was not required to search
each and every employee, but that he was permitted to
perform random searches.
8. Since the applicant carries on the business of platinum
mining and the mining of precious metals, security is
of particular importance, and particularly in its
redressing section, where the third respondent was on
duty at the particular time in question. This was not
disputed. The high grade precious metals, which are
extracted from the concentrate, are extremely valuable,
and contains metals such as platinum and gold. These
metals are the livelihood of the business of the
applicant.
9. It is common cause that the specific point controlled
by the third respondent would normal circumstances or
in the ordinary course be controlled by a senior
patrolman, who was more senior to the third respondent.
In my view this fact did not entitle him to be
negligent in his searching as he clearly was. It was
ascertained from the video surveillance that the third
respondent had failed to conduct any search at all in
certain cases, and in other cases did not search in
compliance with the procedures I referred to herein. In
those cases he did not use the metal detector and in
some cases he failed to conduct the required bodily
search. In 24 searches, watched over a period of three
days, he only conducted one search in accordance with
the procedures laid down.
1. 10. The third respondent, as I have said before,
stated that he was only required to do random searches.
Here it is important to note that there was no evidence
that any theft occurred during any of the third
respondent's shifts.
11. The second respondent, the arbitrator who conducted the
arbitration under the auspices of the CCMA following
the referral by the third respondent of his alleged
unfair dismissal dispute, found that his dismissal was
too harsh, and determined that the third respondent be
reinstated with effect from 1 January 2001 ( the date
of the arbitration hearing was 14 November 2000 ) and
the reinstatement was subject to a written warning, and
the third respondent was awarded compensation equal to
three months' salary.
12. The applicant now seeks to review this award in terms
of the provisions of section 145(2)(a) of the Labour
Relations Act, 66 of 1995 ("the Act"). Strong reliance
was placed during the argument advanced on behalf of
the applicant on the dictum of the Labour Appeal Court
in County Fair Foods (Pty) Ltd v CCMA and Others 1999
(20) ILJ at 1707. In this judgment it was indicated to
commissioners that the determination of an appropriate
sanction is largely in the discretion of the employer,
not to be interfered with lightly, and that
commissioners should "show deference to disciplinary
sanctions imposed by employers" (p.1717G).
1. 13. It is of note in this regard, and with reference
to the County Fair case, that in that matter the
commissioner had found that the dismissal of a male
employee who had violently assaulted a female employee
at the workplace, with whom he had a previous
relationship, was unfair. The Labour Appeal Court
disagreed, and were of the view that it was a very
serious matter which, on the facts, deserved dismissal,
and the commissioner held otherwise. The Labour Appeal
Court was of the view that the court a quo should have
interfered with the award of the commissioner on
review.
14. In the matter of Pretoria Heart Hospital v CCMA and
Others 2000 (21) ILJ 624 (LC) a commissioner reinstated
an employee who was dismissed for theft. Dismissal is
the general sanction imposed for instances of theft,
unless the sentence or sanction induces some form of
shock. That was the view of Landman J in that matter,
where he interfered with the award of the commissioner
who reinstated an employee who was found guilty of
theft.
15. In the present case the third respondent, an employee,
had a clean service record of almost 15 years, did not
commit a violent crime, nor did he assault anyone, nor
did he steal from anyone, nor did he commit an offence
which unequivocally demanded dismissal as opposed to
any other sanction.
16. The third respondent did not do his work properly, but
neither did several other employees. Corrective or
progressive discipline in his case does not induce a
sense of shock.
1. 17. On the applicant's case, serious overhauling of
the work performance in certain sections of its
operations was seriously required and directly linked
to the production.The applicant had good reason to take
drastic measures. In essence the applicant was faced,
in several cases, with poor performance or laziness, at
best, which is not the type of misconduct which
justifies dismissal without prior warning for a first
offence after 15 years of service.
18. Finally, the test for review is contained in Shoprite
Checkers (Pty) Ltd v Ramdaw N.O and Others 2001 (22)
ILJ 1603, which did not depart from the leading case on
the test for review, namely Carephone (Pty) Ltd v
Marcus N.O. and Another 1998 (11) BLR 1093 (LAC). To
successfully review a statutory arbitrator it must be
demonstrated that the conclusion arrived at by the
arbitrator must be rationally or reasonably connected
to the facts before the arbitrator.
1. 19. In Metro Cash & Carry Ltd v Tjela 1996 (17) ILJ
1126 (LAC), the LAC was faced with a matter where a
cashier was not present, as he was required to be, when
cash was "dropped", or handed in for depositing. The
court held that the employer in question was entitled
to act severely against those who breached the strict
rule introduced because an employer is entitled to
introduce rules to protect its commercial integrity.
This is so, and I am in respectful agreement thereof,
but the strict rule was introduced in the case of the
Metro Cash matter to combat theft of cash where
employees in a position of trust were required to deal
with large amounts of cash. It is then understandable
that a form of strict liability is coupled to the rule
introduced.
20. In the present case the third respondent did not deal
with money. It was argued that he could have caused, or
did cause, potential loss. If there was an iota of
evidence that theft was committed during the times that
he was on shift, and not performing his duties
properly, that might have a bearing on the matter.
There is no such evidence. It is also very significant
that when he was surveilled, he was performing the
work which a more senior employee usually performed. In
other instances where employees, unbeknown to them,
were watched on a video camera, their surveillance
resulted in their arrest where they had stolen gold or
other precious metals from the applicant. Such
considerations did not apply to the third respondent.
The third respondent was also watched over a long
period. Strict liability is not applicable to this
matter as this is a matter rather relates, as I have
pointed out, to poor performance than misconduct.
Employees who do not perform their duties properly,
where dishonesty was absent, should not, automatically
incur the harsh sanction of dismissal on the basis of
strict liability, even if they work in a gold mine.
21. In this matter the arbitrator held that:
1. "Article 7(b)(iv) asks whether the dismissal was an
appropriate sanction for the contravention of the rule or
standard. While I agree that this conduct was misconduct, I am
not convinced that the dismissal was an appropriate sanction.
In my view dismissal under these circumstances would be too
harsh when taking into account the following: There were no
losses suffered by the employer; the violation of the rule was
done unintentional or 'a mistake', as argued by the employee.
Lastly, the level of the honesty of the employee is something
to consider.”
And;
“Schedule 8 article 4 of the Act provides that it is not
appropriate to dismiss an employee for a first offence, except
if the misconduct is serious and of such gravity that it makes a
continued employment relationship intolerable. Based on the
evidence before me the employee had had a clean record of
service with the employer for the past 14 years. This, in terms
of the code of good practice cannot be ignored. The Labour
Court has endorsed the concept of collective or progressive
discipline. An employee's behaviour is to be corrected through
a system of evaluated disciplinary measures, such as
counselling and warning. It is therefore my view that the type
of offence committed by the employee does not go to the heart
of the relationship, which is trust. I therefore believe that the
continued employment relationship is still intact. To deprive an
employee of his employment in this circumstance would be
wholly unfair."
22. The aforesaid reasoning does not fall foul of the
Carephone or the Shoprite Checkers test, neither does
it fall foul of the provisions of section 145 of the
Act. More closely looked at, the application for review
it is an appeal rather than a review. There is no basis
upon which I can interfere in the award of the
arbitrator in this matter. Parties are often unhappy
with the awards of commissioners because employers
often feel that their own sanctions should not be
ignored. The arbitrator in this matter followed common
sense, followed the code of good practice, followed the
Act, and the reasoning process which he was duty bound
to perform. He also regarded the offence as serious
because he imposed a warning. He did not ignore
accepted labour law principles in doing so. He followed
them.
23. In the circumstances the application for review is
dismissed with costs.
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E. Revelas