IN THE LABOUR COURT OF SOUTH AFRICA
(Held in Johannesburg)
Case No JR1438/01
In the matter between:
RUSTENBURG PLATINUM MINES LIMITED (RUSTENBURG
SECTION)
Applicant
and
THE COMMISSION FOR CONCILIATION MEDIATION AND
ARBITRATION
1st Respondent
LEBEA J N, NO 2nd Respondent
WORKERS RIGHTS ASSOCIATION 3rd Respondent
RAMOSEPELE L 4th Respondent
BINGLE M 5th Respondent
JUDGMENT
STELZNER AJ
2
This is an application in terms of section 145(2)(a)(i), (ii) and (iii) of the Labour Relations
Act of 1995 (“the Act”) in terms of which the Applicant seeks to review and set aside the
arbitration award of the 1st Respondent. The award was dated 12 July 2001 and came to
the attention of the Applicant on 10 August 2001 on which date it was faxed to the
Applicant. The review was delivered on 28 September 2001, one week outside the time
provided for in section 145 of the Act. There was no opposition to condonation being
granted for this lateness and condonation was accordingly granted, so that the matter
could proceed on the merits as requested by both parties.
The matter concerns the dismissal of the 4 th and 5th Respondents for “falsifying records
and ineffectiveness (poor quality of work)”. The 4 th Respondent had been employed by
the Applicant since January 1978 and the 5th Respondent since 17 August 1984 and they
were both senior surveyors. The dismissals were found by the 2 nd Respondent to be
both procedurally and substantively unfair and the Applicant was ordered to reinstate
them and to pay them compensation in the amount of 10 months salary. Applicant seeks
to review this award on the basis that the 2nd Respondent:
1. failed to apply his mind properly,
2. misconducted himself,
3. committed one or more gross irregularities, and/or
4. exceeded his powers by acting unreasonably and unjustifiably in
4.1 failing to consider relevant and admissible evidence placed before him,
4.2 failing to assess the evidence and argument presented to him, weigh the
probabilities, and have regard to the credibility of the respective
witnesses, and
4.3 finding in the absence of such assessment and evaluation, that 4 th and
5th Respondents had innocently misrepresented the results of their
surveying activities.
In order to understand the offence for which the respondents were charged and the
In order to understand the offence for which the respondents were charged and the
evidence on the issues some background information is required. One of the functions of
the respondents was that they were required to survey ore removed from a mine
underground and, specifically, to measure the quantity of ore that had been removed
3
from the underground workings. This task involves measuring results which have been
plotted on a plan / map with the use of an electronic device known as a plinning metre or
plinometer. The task itself is referred to as ‘plinning’. Plinning is done by taking
measurements on a map on which results of the underground workings have already
been recorded.
The information obtained from plinning is used by the Applicant for various purposes.
For example, the information is used by the sales people as a guide to establish how
much platinum will be available for sale by the Applicant to its overseas customers. The
information is also used to work out payments and bonuses to contractors who perform
the excavation work. It was thus common cause that it was very important to the
Applicant that the plinning was done accurately. An overestimation of the amount of ore
that was being removed from the mine could result in contractors being overpaid and in
wrong estimates being given to customers.
The respondents were senior surveyors, as mentioned previously. It was common cause
that they had worked for the mine for a long time, had been trained, held the necessary
qualifications and were well acquainted with the use of the plinometer, which they used
on a regular basis.
The respondents were called to answer charges at a disciplinary enquiry after a check
was done on their plinning and it was discovered that there were major variances
between the measurements they had recorded and the actual square meters of certain
surveys. It was established that over a 4 month period (which was how far back the re-
plinning was done) the 4th Respondent had over-measured 100% of the time and the 5th
Respondent had over measured 95% of the time. The 4 th Respondent was out by an
overage of 9% and the 5 th Respondent by an overage of 17%. At times the over
measurements went as high as 32%. Other employees were either within the limit of the
measurements went as high as 32%. Other employees were either within the limit of the
standard (see what is said below in this regard) or only out on the odd occasion.
The Applicant’s case against the respondents was clearly that they had deliberately over-
plinned and that this was not simply a case of poor performance or even negligence. The
second charge of ineffectiveness was seen as ancillary to the main charge of falsifying
records. Ineffectiveness, said the Applicant, emanates from the falsification of records.
The Applicant did not contend that ineffectiveness – or poor work performance – on its
own would have justified dismissal. If there had been no intent then Applicant would
have treated the issue as one of incapacity.
The 2nd Respondent found that Applicant failed to prove intent and thus failed to prove
its case. Regarding ineffectiveness in the sense of poor quality of work he held that this
should have been dealt with as incapacity with the correct procedures for incapacity
being followed. As this did not happen the dismissals were found to be substantively
unfair. The 2 nd Respondent also found that the dismissals were procedurally unfair on
two grounds. Firstly, he found that the chairman of the disciplinary hearing had not
4
acted impartially. This conclusion was drawn from the fact that before the hearing
commenced the chairman drew up a set of questions for the initiator to ask the
respondents at the hearing. Secondly, he found that the appeal chairman did not
consider the grounds of appeal (relating to the impartiality of the chairman of the initial
hearing) in making his decision on appeal. There was a third ground raised by the
respondents which the 2 nd Respondent rejected and there is no need to deal with that
ground further.
Applicant takes issue with the 2 nd Respondent’s finding on both procedural and
substantive fairness. I deal hereunder with the detailed concerns of the Applicant
regarding the 2nd Respondent’s award and which form the basis of the grounds of review
in this matter.
In order to understand Applicant’s contentions and to evaluate the 2 nd Respondent’s
reasoning in relation to the evidence before him, it is necessary to consider in more
detail the issue of variance or degree of variance in relation to plinning.
There is a legislative provision which became the subject of much attention in this
matter, namely Regulation 13.5.3 of the Regulations promulgated under the Minerals Act
50 of 1991. This regulation provides as follows:
“In the event of the measurement of the manager’s surveyor, as appearing in the
cost sheet, and the check surveyor, after making an adjustment for the ground
broken in the interval between 2 measurements, differing to the extent of 3%, or
less of the measurements of the check surveyor, the mean of the two
measurements shall be taken to be the correct one and payment shall be made
thereon. In the event of the 2 measurements differing to a greater extent than
3%, if a compromise cannot be arrived at the matter shall be referred for decision
by the Chief Inspector who shall have the right of calling for the production of
by the Chief Inspector who shall have the right of calling for the production of
survey notes, calculations and plans of both the manager’s surveyor, and, if
necessary, of making an independent survey, and whose decision as to the actual
amount of work done and to be paid for shall be final.”
No-one contended that the regulation applied on all fours to the instant case. Applicant’s
case, however, was that the 3% deviance standard as reflected in the regulation was the
acceptable amount of leeway generally applied in the industry and that it had made that
the standard within its own business. In other words, Applicant contended that the 3%
standard had been adopted by it as the standard in the workplace. It contended further
5
that this standard had been communicated to its staff (including the 4 th and 5 th
respondents) in training and in monthly staff meetings. Its witnesses led evidence to this
effect. It also contended that it was ludicrous to suggest that a business of its size and
sort would have been conducted without the imposition of any standard for surveyors to
work to, as contended for by the respondents.
The Applicant’s case was thus that there was a rule or standard in the workplace which
had been consistently breached by the respondents. It further contended that because
these were senior, trained and experienced surveyors, and because of the fact that they
consistently over-plinned and by a large margin for a period of at least 4 months, the
only inference to be drawn was that they were deliberately over-plinning. If there had
been only negligence or a problem with the equipment one would have expected
variance both under and over the norm and also one would not have expected consistent
variances on every piece of work surveyed. Thus, said Applicant, it had proved its case
of intent to falsify on the basis of the probabilities and inferences to be drawn from the
facts that it had proved. There was no evidence that the respondents had benefited in
any way from the regular over measurement by them. Applicant relied simply on making
the point that they could have benefited (for example they could have been getting
kickbacks from the persons who did stand to benefit from over measurement). Thus
Applicant’s case on this leg was simply that there was a possible motive for over-
plinning, not that it had proved anything in this regard.
The 2 nd Respondent found that the regulation itself did not establish a rule for the
Applicant’s workplace, nor did it indicate that it was an offence or misconduct for
surveyors to measure outside of the 3% norm. He also found no reference in the
surveyors to measure outside of the 3% norm. He also found no reference in the
Applicant’s disciplinary code to an offence involving over- or under-plinning with
reference to the 3% norm. He found therefore that the Applicant had failed to prove that
is was an offence or misconduct to exceed the limit of 3% in measuring. He then went
on to consider whether Applicant had made out a case against the respondents for
falsifying records. To do so he held that he would have to find intention to defraud which
implied knowledge that they were falsifying a document. In this regard the 2 nd
Respondent found that merely recording false or incorrect information on a document
does not amount to falsification of the document. The respondents could simply have
been negligent. The 2nd Respondent refers to Applicant’s argument that the intention to
falsify could be inferred from the facts but simply reiterates that the respondents could
simply have been negligent.
Another aspect which weighed heavily with the 2 nd Respondent was the checking of
plinning done by the respondents. The evidence was that Applicant’s system required
that another employee check the plinning done by the surveyors who did the job first and
then that the checker sign to indicate that the checking had been done. In this matter
one Mr Tjale was the checker but it became common cause that he did not check – he
simply signed the documents reflecting that he had done so when he had in fact not. Mr
Tjale’s evidence was that he did not check the surveying of 4 th and 5 th Respondents
6
because they were senior surveyors. The 2 nd Respondent viewed Mr Tjale’s function as
a form of quality control which had failed because Mt Tjale did not do what he was
supposed to do. However, said the 2 nd Respondent, the 4th and 5 th Respondents could
not be blamed for the fact that their work was not checked, in fact this meant that they
were not alerted to their ‘mistakes’. This reasoning fails to have regard to the
Applicant’s case which was that the respondents were deliberately underplinning.
The issue which I am called upon to decide is whether or not in reaching the decision he
did, the 2nd Respondent committed a reviewable irregularity / failed to properly apply his
mind to the issues and evidence before him such that I should set aside his award.
The main thrust of the Applicant’s case in this regard is that the 2nd Respondent
misconstrued the nature of the evidence and the Applicant’s case against the 4 th and
5th respondents. I am of the view that this contention is well founded. The 2 nd
Respondent appears to have become distracted by Regulation 13.5.3 which is clearly in
the form that it is drafted not directly applicable to the issue at hand. However, the 2 nd
Respondent fails to take account of the evidence of Applicant’s witnesses to the effect
that the 3% norm as generally contemplated in the provisions of the Regulation had been
made the norm or standard at the Applicant’s workplace for surveying. The fact that
Applicant did not reword the regulation into an appropriate from or explicitly set out the
details of the rule in its disciplinary code misses the point and ignores all the evidence of
Applicant’s witnesses to the effect that not only was it the standard but it was well known
and well communicated. The reviewable irregularity lies in only asking the question in
terms of the Regulation and whether the respondents were bound by the Regulation.
terms of the Regulation and whether the respondents were bound by the Regulation.
What the 2nd Respondent should have been asking itself was has the Applicant made out
a case that it trained and informed the respondents that they needed to plin within the
3% error margin. There was more than sufficient evidence from the Applicant’s
witnesses to that effect.
The 2nd Respondent also misses the point that the respondents were not charged with
breach of a rule – they were charged with falsification of records. It was common cause
that the records were false / incorrect. While it is correct that intent needed to be proved
in this regard the 2nd Respondent fails to appreciate that the inferential line of reasoning
argued for by the Applicant on the probabilities was entirely sustainable on the facts and
on a balance of probabilities – especially the fact that there was almost 100% consistent
over-plinning by the respondents over a 4 month period when they were both senior and
experienced surveyors and given the absence of any attempt by the 4 th and 5 th
respondents to put up an explanation for the consistent over measurements by them.
Further the 2nd Respondent places undue weight on the failure by Mr Tjale to check the
plinning of the respondents, especially as the evidence was that the rule on checking was
one which was observed mostly in the breach. In any event, the evidence was that it
was the 4 th and 5 th respondents as the main surveyors who had the primary
responsibility not only to plin correctly but to ensure that they were checked. (As an
aside it is worth making the comment here that a rule requiring checking would be
nonsensical in the absence of a standard against which such checking should take place.)
7
What is further missing in the 2 nd Respondent’s award is reference to the credibility of
the 4th and 5th respondents. This is an inexplicable omission since the 2 nd Respondent
on occasions found the respondents to be evasive when giving evidence. See for
example page 496 of the record from line 14 where the 2 nd Respondent says, inter alia,
“I am becoming irritated with his evasiveness, what I regard as evasiveness, I am
becoming concerned”.
On the issue of procedural fairness the only evidence / suggestion of wrongdoing was the
fact that the chairman of the disciplinary hearing wrote out a series of questions which
he handed to the initiator before the hearing. The initiator asked some but not all of the
questions on the document. There is no evidence to suggest that the chairman was in
fact biased or impartial in any way. He could simply have been trying to ensure that all
the relevant issues were properly canvassed at the hearing. There was nothing sinister
or unusual about the questions themselves. Applicant argued, and I agree, that the 2 nd
Respondent elevated this issue to a level which was not justified having regard to the
fact that what was at issue here was the fairness of an internal disciplinary hearing .
The second leg on which the 2 nd Respondent found procedural unfairness was that the
chairman of the appeal hearing did not deal properly with the grounds of appeal
pertaining to the chairman’s pre-involvement in the case. What the appeal chairman did
was to say that in his view the respondents had been provided with a full and proper
opportunity to state their case, call witnesses and cross-examine the complainant.
Furthermore, no irrelevant questions were put. In my view this does not indicate that the
chairman of the appeal failed to address the grounds of appeal. He did and concluded
that the respondents had been given a fair hearing. That is, after all, what the law is
that the respondents had been given a fair hearing. That is, after all, what the law is
designed to ensure. The 2 nd Respondent appears thus to have not taken proper regard
of the evidence before him on this issue.
On the issue of procedural fairness as a whole I am of the view that the 2 nd Respondent
became distracted by technical niceties and thus failed to apply his mind to what is
required by the Act as read with the Code of Good Practice, which is not a formal process
reminiscent of that conducted in a court of law but a fair opportunity for the employee to
state his case.
In the circumstances I am satisfied that a proper case has been made out for review of
the award of the 2nd Respondent. This is not a case where Applicant has argued that the
2nd Respondent was wrong in his decision. Applicant has made out a case to the effect
that large sections of evidence and argument have not been taken into account. Rather
the 2nd respondent has based his decision on a limited apprehension of the evidence
and has in certain instances ignored contrary evidence. This amounts to a gross
irregularity and means that a fair trial was not achieved. The award is also not rationally
connected to the material which was before the 2 nd Respondent in the sense of the test
applied in Carephone (Pty) Ltd v Marcus NO & Others [1998] BLLR 1093 (LAC) especially
in regard to the manner in which the 2 nd Respondent dealt with the connection between
and relevance of Regulation 13.5.3 and the standard applied by the Applicant in the
workplace regarding surveying.
8
This is not a case where I am in a position to substitute a decision for the award of the
2nd Respondent nor is such an order sought.
Both parties agreed in argument that this was a matter in which costs ought to follow the
result.
I therefore make the following order:
1. The arbitration award made by the 2 nd Respondent on or about 12 July 2001 is
reviewed and set aside.
2. The matter is to be referred back to the 1st Respondent for arbitration de novo by
a commissioner other than the 2nd Respondent.
3. The 4 th and 5 th Respondents are ordered to pay the costs of this application
jointly and severally, the one paying the other to be absolved.
……………………………………
STELZNER AJ
Date of hearing: 14 April 2005
Appearance for the Applicant: Mr A Snider instructed by Leppan
BeechAttorneys
Appearance for 4th and 5th
Respondents
Mr instructed by Cheadle
Thompson and Haysom (4th respondent) and
by Erasmus Prokureurs (5th Respondent)
Date of judgment 22 April 2005