C.T.L. GROUP (PTY) LTD. Appellant
And
GIJIMANI FELIX MEMELA 1st Respondent
MR G A CORMACK in his Capacity as
COMMISSIONER of the COMMISSION FOR
CONCILIATION MEDIATION AND ARBITRATION. 2nd Respondent
CCMA 3rd Respondent
JUDGMENT
DAVIS AJA
[1] First respondent, who was employed by the appellant, was charged with the refusal to open and reveal the contents of a bag which
led appellant to suspect that he was in the unauthorised possession of products belonging to appellant. A disciplinary enquiry was
held on 9 April 1999. First respondent was found guilty as charged and it was determined that he be dismissed from the employment
of appellant. The matter was then referred to third respondent who concluded that the dismissal was both substantively and procedurally
unfair and ordered that first respondent be reinstated with compensation.
[2] This decision of third respondent was taken on review before the Labour Court. Ngcamu A J, who heard the review application, found that there was no evidence to prove that first respondent=s refusal to be searched was a dismissable offence. Accordingly, he found that there was no evidence to prove that the dismissal of
first respondent was justified. On appeal Mr Ross, who appeared on behalf of appellant, submitted that appellant had led evidence
in the arbitration to show that the employee had refused to be searched. Furthermore upon such refusal he had run away and had to
be apprehended by security guards. As a result of this behaviour, first respondent had been charged with the refusal to open and
reveal the contents of the bag which caused suspicion that he was in possession of appellant=s property. For this reason Mr Ross submitted that first respondent=s conduct justified the formation of a reasonable suspicion that he had removed property without authorisation and thus constituted
a sound basis for dismissal.
[3] At the arbitration appellant relied on the evidence of one witness, Mr Zinyanga of Shield Security. He testified that he had worked
at the gate of appellant=σπρεμισεσσεαρχηινγχαρσανδεμπλοψεεσΗεσαωφιρστρεσπονδενταππροαχητηεγατεωιτηαβαγΦιρστρεσπονδεντρεφυσεδτοαλλοωΜρΖινψανγατοεξαμινετηεβαγΑττηεαρβιτρατιονηεαρινγΜρΖινψανγατεστιφιεδτηατφιρστρεσπονδεντηαδτηενρυντοωαρδστηεταξιρανκΩηενχροσσεξαμινεδαβουτφιρστρεσπονδεντ=σϖερσιοντηατηεηαδρυντοτηεραιλωαψστατιονινορδερτοχατχηατραινΜρΖινψανγαχονχεδεδτηατηεηαδπρεϖιουσλψωριττεναστατεμεντινωηιχηηεηαδσαιδτηατφιρστρεσπονδεντηαδπροχεεδεδτοτηεραιλωαψστατιονΗεωασυναβλετοεξπλαιντηεδισχρεπανχιεσβετωεενηισοραλτεστιμονψαττηεαρβιτρατιονηεαρινγανδτηεστατεμεντΡεσπονδενττεστιφιεδτηατηεηαδνοτρεφυσεδτοοπενανδρεϖεαλτηεχοντεντσοφτηεβαγΗετεστιφιεδτηατΜρΖινψανγαηαδεξαμινεδτηεβαγωηενιτηαδβεενοπενεδΤηερεαφτερηεηαδχλοσεδηισβαγανδρυνσπεεδιλψτοωαρδστηεραιλωαψστατιονινορδερτοχατχηατραινωηιχηηαδαλρεαδψαρριϖεδαττηεστατιον
[4] The arbitrator concluded that Mr Zinyanga had contradicted his own statement and this reflected upon his credibility. Accordingly
third respondent preferred the evidence of first respondent to that of Mr Zinyanga.
ANALYSIS.
[5] Of particular importance to the review of the decision of third respondent was the question whether any offence had been proved
against first respondent. Mr Ross submitted that evidence had been provided to the third respondent by Mr Sibusiso Lunga, an industrial
relations consultant employed by appellant. However Mr Lunga=s own version as contained in an affidavit to which he deposed before the court a quo reads as follows:
?It is respectfully brought to the attention of this honourable court that the applicant led evidence to show that first respondent=s refusal to be searched and subsequent running away was tainted with gross dishonesty. In all probabilities (sic) conduct involving
gross dishonesty amounts to a contravention of a valid or reasonable and well-known rule governing conduct in the work place. As
is evident from the arbitrator=s award it was applicant=s argument that dismissal was an appropriate sanction for the breach of trust by first respondent. It is therefore respectfully submitted
that second respondent=s error of judgment in this regard, particularly in view of the material properly brought before him warrants a review of this award.=
[6] An examination of this passage reveals an absence of any clear evidence that there was an express rule of conduct which governed
the conduct of appellant=s employees that been properly approved before the arbitrator and which had been contravened by first respondent. All that Mr Lunga
suggests is that there is >a well known rule governing conduct in the work place=, which prohibits gross dishonesty. That however is insufficient for the purposes of this case. The question arises as to whether
there was a rule properly proved which authorised the search of employees bags in circumstances described by appellant=s witness Mr Zinyanga.
[7] Given the absence of any rule so properly proved, whichever of the versions of Mr Zinyanga or first respondent is to be preferred,
as to what happened at the gate is irrelevant. The fact remains that it was incumbent upon appellant to prove the existence of a
rule, the contravention of which would have justified the dismissal. Absent such proof, there is no basis upon which appellant could
have been dismissed.
For these reasons there is no justification for interfering with the award made by third respondent and confirmed by the court a quo. The appeal is dismissed with costs.
_______________
DAVIS AJA
I agree ______________
ZONDO DP
.RTF of original document