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Rustenburg Platinum Mines Ltd (Rustenburg Section) v Commission for Conciliation Mediation and Arbitration and Others (JA28/2002 ) [2003] ZALAC 18 (20 November 2003)
.RTF of original document
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO.
JA28/2002
In the matter between:
Rustenburg Platinum Mines Ltd
(Rustenburg Section)
Appellant
and
Commission for Conciliation,
Mediation and Arbitration
First Respondent
Moropa C.J. NO. Second Respondent
Sidumo Z Third Respondent
JUDGEMENT
ZONDO JP
[1]
The appellant carries on business in platinum mining in Rustenburg. The third respondent was employed
by the appellant as a patrol man grade II in its Protection Services Department. The appellant has a section called the Waterval
Redressing Section. That section provides benefaction services for the appellant in respect of the separation of high grade precious
metals from the lower grade concentrate. The deponent to the appellant’s founding affidavit stated that in essence the metallics
are extracted from the ore concentrate at the Waterval Redressing Section. He said that the high grade metals contain metals such
as platinum, gold, rhodium and others which are extremely valuable. The deponent says that these precious metals are the appellant’s
“livelihood and core business”. He further states that the Waterval Redressing Section is a high security facility.
[2]
Despite various security measures taken the appellant continued to suffer theft of its precious
group metals in its various premises including Waterval Redressing Section. The appellant has a search procedure which must be followed
by its security staff on duty at Waterval Redressing Section. It is not necessary to set that procedure out in full. It is sufficient
to say that the procedure is an elaborate one and includes that every person:-
(a)
leaving the Redressing Section must be searched individually;
(b)
must complete a search register;
(c)
must be searched from hands to feet in the front and in the rear and,
(d)
must be scanned with a metal detector both in the front and rear of the body.
The security staff are required to report all irregularities to the Radio
Operator/Protection officer on duty at the Redressing Section.
[3]
The appellant’s search procedure was distributed to all security
employees including the third respondent. In order to deal with a high
production loss that it was suffering, the appellant had surveillance
equipment installed at the Waterval Redressing Section. Surveillance
was conducted over the period of 27 February 2000 to 27 May 2000.
Over a period of three days it was established from the video surveillance that in
24 searches the third respondent only conducted one search properly
and in accordance with the search procedure. In all the other instances
he either did not search the persons concerned or conducted searches
incompletely or improperly.
[4]
On the 9th June 2000 the third respondent was suspended on full pay. He was subsequently charged with the following acts of misconduct:-
“(1)
negligence – failure to follow established procedures in terms of the Protection Services
Department search procedure which caused prejudice or possible prejudice to the company in terms of production loss.
(2)
failure to follow established procedures in terms of the Protection Services Department search
procedures”.
[5]
In due course the third respondent was found guilty. He was
dismissed. His internal appeal failed. Thereafter he referred a
dispute of unfair dismissal to the first respondent for conciliation.
Attempts at conciliation failed. The dispute was then arbitrated by
the second respondent under the auspices of the first respondent. The
second respondent found that the dismissal was procedurally fair but
substantively unfair. The second respondent found that the third
respondent had breached the search procedures of the appellant but
that the sanction of dismissal was too harsh in the circumstances. His
view was that a final warning was the appropriate sanction.
Accordingly, he ordered the appellant to reinstate the third respondent
with effect from the 1st January 2001 subject to a written warning valid
for 6 months and to pay him compensation in the sum of R6 829, 77 –
which was equal to 3 months pay.
[6]
The appellant was aggrieved by the second respondent’s award. It, therefore, brought an application
in terms of sec 145 of the Labour Relations Act 1995 (Act 66 of 1995) (“the Act”) to have the award reviewed and set aside. That application was dismissed with costs. The appellant then brought an application for
leave to appeal. That application was granted; hence this appeal.
[7]
In one area of the award the second respondent relied on the following for his conclusion that dismissal
was too harsh as a sanction in the circumstances:-
(a)
he said that there had been no losses suffered by the employer;
(b)
the violation of the rule was done “unintentional or a mistake”;
(c)
“the level of honesty is something to consider”
Later in the award he went on to refer to clause 4 of Schedule 8 to the Act, that
is the Code of Good Practice: Dismissal which provides that it is not appropriate to dismiss an employee for a first offence except
if the misconduct is serious and is of such gravity that it makes a continued employment relationship intolerable. He further relied
on the fact that the third respondent had a clean record of service for the previous 14 years. He said that in terms of the Code
of Good Practice the third respondent’s clean record could not be ignored. He said that employee’s behaviour had to be
corrected through a system of “graduated disciplinary measures such as counseling and warning”. He later said that “the type of offense (sic) committed by the employee does not go into the heart of relationship which is trust” and concluded that “the continued employment relationship is still intact”. He said that “to deprive the employee of his employment …….. in (these) circumstances would be wholly unfair”.
[8]
In its founding affidavit the appellant referred to that part of the award where the second respondent
said that in his view dismissal was too harsh in the circumstances. The deponent to the founding affidavit then referred to the three
factors quoted in par 7 of this judgment as supporting his finding. The appellant attacked these factors in its founding affidavit
and submitted that the second respondent had no reasonable grounds whatsoever on which to make these statements.
[9]
The appellant went on to submit that these statements by the second respondent were fundamental
to his award and that, had it not been for them, the second respondent would have upheld the sanction of dismissal. The appellant
contended that “these factual errors justify the inference that the commissioner misconducted himself in relation to his duties as arbitrator,
and hence that the award should be reviewed and set aside”. It also contended that for those reasons the award is simply not justifiable in relation to the reasons given for it in that no rational
link exists between the evidence properly before commissioner and the factual conclusions he reached.
[10]
The appellant also contended that, even if the second respondent was justified in making the statements
complained of, he was unduly and unacceptably concerned with the third respondent’s interests and “that he pushed, unacceptably, the interest of the [appellant] into the background”. The appellant also attacked the statement by the second respondent in his award that the type of offence committed by the third
respondent “does not go into the heart of relationship which is trust”.
[11]
I have no hesitation in finding that the statement that no losses were suffered by the appellant as a
result of the third respondent’s failure to search according to the appellant’s search procedure is indeed wholly unjustifiable.
The third respondent did not search some of the people. Those people might well have left with the appellant’s metals or other
property. Accordingly, there can be no basis for a statement to the effect that the appellant did not suffer any losses as a result
of the third respondent’s conduct. In any event, as Counsel for the appellant correctly submitted, the potential loss as opposed
to actual loss, would be highly relevant.
[12]
It is not clear what the second respondent meant when he said that the violation of the rule by the third
respondent was unintentional or a “mistake”. He might have been referring to the fact that one of the offences that the third respondent was found guilty of was based on negligent
conduct as opposed to intentional conduct. He did not elaborate on this but, even if that were the position, that would have had
to be taken into account in the light of all the circumstances. Quite frankly, how the third factor, namely, honesty, came into the
picture in this case, is baffling. No dishonesty by the third respondent was alleged.
[13]
If those three were the only reasons on which the award was based, I would have had no hesitation in
finding that the award is unjustifiable. However, these were not the only reasons on which the award was based. There were other
reasons. The second respondent also relied on the statement in the Code of Good Practice (Schedule 8) to the effect that it is not
appropriate to dismiss an employee for a first offence except if the misconduct is serious and is of such gravity that it makes a
continued relationship intolerable. The second respondent then went on to say in this connection that on the evidence before him
the third respondent “has had a clean record with the employer for the past 14 (fourteen) years” and that in terms of the Code of Good Practice that factor could not be ignored. In this regard the second respondent also referred
to the system of progressive discipline and said that the “employee behavior is to be corrected through a system of graduated disciplinary measures such as counseling and warning”.
[14]
The appellant did not in its founding affidavit challenge the second respondent’s reliance on these factors. However, in argument Mr Myburgh, who appeared for the appellant, challenged the second respondent’s reliance on the
fact that the third respondent had a clean record of service and a long service period of 14 years. He submitted that the third respondent’s
misconduct was so serious that his length of service and clean record were irrelevant to the determination of an appropriate sanction.
Counsel emphasised that the carrying out of searches in accordance with the appellant’s applicable procedure constituted the
third respondent’s core function. It was, continued counsel, what the third respondent was employed to do and was paid to do.
In this regard he relied on the following dictum by Conradie JA in De Beers Consolidated Mines Ltd v CCMA & others (2000) 21 ILJ 1051 (LAC) at paras 22, 24 and 27.
“Long service is no more than material from which an inference can be drawn regarding the employee’s probable future reliability.
Long service does not lessen the gravity of the misconduct or serve to avoid the appropriate sanction for it…
The employees in casu were not dismissed in order to punish them. They were dismissed because the employer was not prepared to run
the risk of employing them any longer once they had been shown to be [unreliable].
In the circumstances of this case, I consider that it was irrational to have relied on the employees’ long service for having found their dismissal unfair. In my judgment the commissioner has ‘ignored or misapplied legal principles to an extent that is inappropriate or unreasonable’….
By doing so, she failed to make a rational connection between the material available to her and the conclusion she reached”.
(My underling)
[15]
The appellant’s challenge during argument of the second respondent ‘s award on the basis
that the third respondent’s service of 14 years and that during that period he had kept a clean record and on the Code of Good
Practice was not foreshadowed in the founding affidavit. It was not open to the appellant to seek to have the second respondent’s
award set aside on the basis that his reliance on the third respondent’s clean record and long service was unjustifiable or
a constituted reviewable irregularity when this had not been foreshadowed in the founding affidavit. A commissioner is entitled to
know each finding of his that will be attacked on review to show the existence of a reviewable irregularity for the purpose of having
his award set aside. That the third respondent had a clean record and a long service period is capable of sustaining the finding
by the commissioner that the sanction of dismissal was too harsh. Whether or not it would have been enough to sustain the finding
had it been challenged in the founding affidavit is another matter. However, I must say that, although the misconduct of the third
respondent is, indeed, serious, I am not sure that I would not have been in doubt about whether I should interfere with the finding
of the second respondent. And in case of doubt, the court should not interfere.
[16]
Mr Myburgh emphasised that the third respondent’s misconduct was extremely serious and submitted
that the appellant was entitled to have adopted the attitude that the continued employment of the third respondent posed too great
a risk to the employer. He pointed out that the third respondent was the last man in the appellant’s line of defence because,
if anyone had stolen any thing belonging to the appellant, the third respondent would be the last man to search the person before
such person could leave the company premises. Mr Myburgh also urged us to have regard to certain passages in Toyota SA Motors (Pty) Ltd v Radebe & Others (2000) 21 ILJ 340 (LAC) at par 24 De Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051 (LAC) at paras 22, 24 and 27, County Fair Foods (Pty) Ltd v
CCMA & Others (1999) 20 ILJ 1701 (LAC) at par 43, Nampak Corrugated Wadeville v Khoza [1999] 2 BLLR 108 (LAC) at par 35, Metro
Cash & Carry Ltd v Tshihla (1996) 17 ILJ 1126 (LAC) at 1133F-G and par 25 in De Beers case, supra. I do not consider it necessary to deal with each and everyone of those passages. However, I have considered
them in the process of considering judgement in this matter. Despite them I am not able to conclude that they provide justification
for interference by the court with the decision of the commissioner on review.
[17]
In the circumstances I conclude that the Court a quo correctly dismissed the application. The appeal
is dismissed with costs.
Zondo JP
I agree.
Mogoeng JA
I agree.
Comrie AJA
Appearances:
For Appellants:
Adv. A.T. Myburg
Instructed by:
Leepan Beech Attorneys
For Respondents:
Adv. S. Strydom
Instructed by:
Mahlasedi Van Zyl Inc.
Date of Judgement:
20 November 2003
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