South Africa: Labour Appeal Court

You are here:  SAFLII >> Databases >> South Africa: Labour Appeal Court >> 2002 >> [2002] ZALAC 24

| Noteup | LawCite

---

CTL Group (Pty) Ltd v Memela and Others (DA 21/01) [2002] ZALAC 24 (6 December 2002)

Download original files PDF format RTF format

[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.

THE FACTS .

[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’s premises searching cars and employees. He saw first respondent approach the gate with a bag. First respondent refused to allow Mr Zinyanga to examine the bag. At the arbitration hearing Mr Zinyanga testified that first respondent had then run towards the taxi rank. When cross examined about first respondent’s version that he had run to the railway station in order to catch a train, Mr Zinyanga conceded that he had previously written a statement in which he had said that first respondent had proceeded to the railway station. He was unable to explain the discrepancies between his oral testimony at the arbitration hearing and the statement. Respondent testified that he had not refused to open and reveal the contents of the bag. He testified that Mr Zinyanga had examined the bag when it had been opened. Thereafter he had closed his bag and run speedily towards the railway station in order to catch a train, which had already arrived at the station.

[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

I agree ______________

DU PLESSIS AJA

Appearance:

For the Appellant: Mr D. Ross

Instructed by: CLT Management Forum

For the Respondent: Mr Jafta

Instructed by: Jafta & Company

Date of Hearing: 13 September 2002

Date of Judgement: 6 December 2002