THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Not Reportable Case no: JR 2558/13 In the matter between: BHP BILLITON ENERGY COAL SOUTH AFRICA PTY LTD Applicant and COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION HAWYES N.O GUNTHER CFJ First Respondent Second Respondent Third Respondent Heard: 8 October 2015 Delivered: 10 March 2016 Summary: Review application. JUDGMENT

2 MOLAHLEHI, J Introduction [1] This is an application to review and set aside the arbitration award made by the second respondent under case number MP 3559/13 in terms of which the dismissal of the fourth respondent, Mr Gunther was found to have been unfair. [2] The Mr Gunther, who is hereinafter for ease of reference referred to as the employee, opposed the application. Background facts [3] At the time of his dismissal, the employee had been in the employ of the applicant for a period of 31 years and had a clean disciplinary record. He was prior to his dismissal employed by the applicant as safety superintendent. He was charged and dismissed for various counts of alleged misconduct by the applicant. The charges proffered against him reads as follows: Dishonesty: In that during the period of September 2012 to October 2012 you are alleged to have made a false representation to the Company in that the MERT team at Wolvekrans Colliery required 4 (four) set of diving equipment valued at the amount of R 30,000.00 and acting on this representation the company procured the said equipment which you appropriated to the persons as follows: (a) (b) one said to Ms Gunther, your spouse, is neither an employee of the company nor a member of the aforesaid MERT team. One said to Ms Bekker, your subordinate s spouse is neither an employee of the company nor a member of the aforesaid MERT team.

3 Allocated a set of diving equipment for personal use to Ms Rebecca Ward, an employee of the company, is not a member of the MERT team. In that during the period of November 2012 you are alleged to have made a false representation to the Company that the MERT team at Wolvekraans Colliery was attending 3 (three) days diving course at Sodwana Bay, which to was used as a social gathering for your farewell function attended by some of the MERT team members and their spouses. Acting on this representation the company procured the following: (c) A training course to the value of R 40,903, 20. (d) Beverages to the value of R 4808.30 which you personally collected and was never used. In that during the period of October 2012 you are alleged to have made a false representation to the Company that the MERT team at Wolvekrans Colliery was going to hold a team building session, which session was never held. Acting on this representation the company procured beverages to the value of R 5896. 40. It is alleged that between 2009/2010 you took 8 small Sony cameras including a Nikon which cannot be accounted for. Gross negligence In that, during the period of September 2012 to January 2013 you are alleged to have Neglected or failed to keep proper records of the diving equipment procured by the company at your instance. Non-compliance with Company procedure In that during October/November 2012, you are alleged to have failed to comply with the company s policies and procedures when you acted without your manager s permission or knowledge authorising the remover of 142 canisters of Fire Fighting Liquid Foam from Wolvekrans Colliery, at the cost of R364 230. 00, to be given to Middlesbrough Firefighting Department for their use.

4 In that, during October/November 2012, you are alleged to have failed to comply with the company s policies and procedures when you acted without your manager s permission or knowledge by removing 4 (four) Jerry Cans from Wolvekrans Colliery, for yourself and Shaun Bekker s private use. In that, during October/November 2012, you are alleged to have failed to comply with the company s policies and procedures when you acted without manager s permission or knowledge by removing the following items from the company s premises: 18 (eighteen) Boxes of sugar testing sticks, for your private use. Improper conduct: In that, during October 2012, you are alleged to have used company funds to procure 4 (four) Maltese cross axes with the ribbons to the value of R17,455. 65 with intention (sic) that they be given to yourself, Shaun Bakker and two Middleburg Firefighting Department officials for all private use. [4] In support of its case that the dismissal based on the above charges was fair, the applicant presented the testimony of three witnesses. The first witness, Mr Mochiriri, 1 the HSC manager testified that the allegations against the employee came to his attention through a whistle-blower. [5] In relation to the diving suits, Mr Mochiriri testified that the employee procured them without his knowledge as his supervisor, each at the cost of R30 000.00. After purchasing them, he distributed them to three employees of the applicant. One of the employees did not qualify to receive the suit because she was not a member of the diving team commonly known as MERT. The other two who received the diving suites who are not employees of the applicant are wives of the two employees. 1 In the transcript the name is incorrectly spelt as Motjeledi.

5 [6] He further testified that in giving the diving suits away, the employee did not follow the necessary procedure of the applicant which was known to him. According to him, the diving suits were returned as soon as management started investigating the matter. [7] In relation to the diving course at Sodwana Bay, Mr Mochiriri testified that it did not have his approval and that it only came to his attention through the whistle-blower. The training course was according to him approved by the employee which was not in compliance with the applicant s policy. He further testified that the training course was a disguise for the farewell party of the employee. [8] The other problem with the training concerned the risk which the employee exposed the applicant to by allowing people who were not employees of the applicant to participate in the swimming course and those were the wives of the two employees. [9] The other allegation made against the employee in relation to the training course was that the employee secured beverages and braai pack which was never used. [10] According to Mr Mochiriri, the employee also purchased beverages for a team building which never took place and that those beverages were not accounted for. [11] As concerning non-compliance with the applicant s procedure relating to donations, Mr Muchiriri testified that the employee donated to the department of fire services of the Middleburg Town Council (MFS) tins of liquid foam to the value of R360 000.00. [12] Mr Mochiriri testified that the charge of improper conduct relates to the alleged purchase of the Maltese cross axes which the employee purchased without his knowledge. The axes were also improperly distributed to the employees and others. [13] The second witness of the applicant was Mr Bekker, who at the time was safety and CM specialist responsible for coordinating emergency

6 services. In relation to the purchase of the diving suits and their distribution, he confirmed the testimony of Mr Mochiriri. He also confirmed the purchase of axes by the employee. He approached the employee when he heard about the investigation and suggested that they be given to people who were involved in a rescue at an accident at the mine. The axes were purchased before the accident. [14] He also testified that the employee was aware that his wife would benefit from the diving suit given to her. He testified that his wife who was not an employee of the applicant participated in the training course, paid for by the applicant. [15] In testifying about the 142 canisters of the liquid foam which were donated to the MFS, Mr Bekker indicated that he was not aware that the employee did not have authority to donate the items and that is why he requested him to confirm the instruction for him to remove them in writing. [16] The third witness of the applicant was Ms Ward who was the PA to the employee and testified that she received the diving equipment including a diving suit from the employee during 2012. She returned the equipment after the commencement of the disciplinary hearing of the employee. The grounds of review [17] The applicant contends that the Commissioner s arbitration award is reviewable for the following reasons: (a) the findings made in the arbitration award are entirely disconnected to the evidence which was presented during the proceedings and thus is unreasonable; (b) incorrect application of the law of evidence including the assessment of the probabilities; and (c) conducting himself in a biased manner during the proceedings.

7 The arbitration award [18] After weighing the testimony of the witnesses, the Commissioner made the following findings: a. The evidence of Mr Mochiriri and that of Mr Bekker to be of an extremely circumstantial nature. b. The evidence of Mr Bekker had to be treated with caution because he was an accomplice and a single witness. c. Mr Bekker was incentivised to testify against the employee. [19] In weighing the balance of probabilities in relation to the versions before him, the Commissioner rejected that of the applicant for the following reasons: The procurement and appropriation of the diving suit: a. There was insufficient evidence to show that the employee acquired the diving suits through misrepresentation and that the suits were used for any other purpose other than for the purpose they were intended. b. There was no evidence that the applicant conducted an investigation that involved searching both the houses of the employee and that of Mr Bekker. c. The acquired by the employee were found in the applicant s storeroom. d. That he could not determine whether the diving suit given to Ms Ward was one of those purchased by the employee because there were no proper records. Diving trip to Sodwana Bay e. The trip was a refresher course which included the qualifying dive for one of the members of the MERT.

8 f. The employee acted responsibly in not permitting those who went on the course from claiming travelling costs. g. That mixing business and pleasure is not indicative of fraudulent or misrepresentation. Failure to keep proper records h. Mr Bekker was responsible for record keeping and therefore it was wrong to hold the employee responsible in that regard. Donation of the 142 canister of firefighting foam i. The explanation for the removal of the canisters was reasonable and in that regard the employee acted responsibly in the interest of safety at the workplace. j. That the foam was temporarily placed at the firefighting department and that the department wrongly regarded the placing of the foam with them to be donation. k. That the evidence pointed to Mr Bekker as the one who did not comply with the company procedures. The decorative axes l. That the purchase of purchase of the axes did not constitute improper conduct. [20] It was for the above reasons that the Commissioner found the dismissal of the employee to have been unfair. Evaluation/Analysis [21] The test to apply in determining a review application, such as the present, is that of a reasonable decision maker which was enunciated Sidumo and Another v Rustenburg Platinum Mine Ltd. 2 The test entails an inquiry into whether the decision made by the arbitrator is one that a reasonable decision maker could not reach? 2 (2007) 28 ILJ 2405 (CC).

9 [22] It is trite that s 145 of the Labour Relations Act of1965 (the LRA) is suffused by the reasonable decision maker test. 3 In Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v The Commission for Conciliation, Mediation and Arbitration, 4 the Labour Appeal Court per Waglay, JP, in explaining the reasonable decision maker test, had the following to say: [14] Sidumo does not postulate a test that requires a simple evaluation of the evidence presented to the arbitrator and based on that evaluation, a determination of the reasonableness of the decision arrived at by the arbitrator. The court in Sidumo was at pains to state that arbitration awards made under the Labour Relations Act (LRA) continue to be determined in terms of s 145 of the LRA but that the constitutional standard of reasonableness is suffused in the application of s 145 of the LRA. This implies that an application for review sought on the grounds of misconduct, gross irregularity in the conduct of the arbitration proceedings, and/or excess of powers will not lead automatically to a setting aside of the award if any of the above grounds are found to be present. In other words, in a case such as the present, where a gross irregularity in the proceedings is alleged, the enquiry is not confined to whether the arbitrator misconceived the nature of the proceedings, but extends to whether the result was unreasonable, or put another way, whether the decision that the arbitrator arrived at is one that falls in a band of decisions to which a reasonable decision-maker could come on the available material. (References omitted) [23] And later, at paragraph 16, the Court held that: [16] In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at. 3 Ibid at para 110. 4 (2014) 35 ILJ 943 (LAC) at para 14.

10 [24] In essence, the decision of the LAC in Gold Fields is that the review court must necessarily consider the totality of the evidence and then decide whether the decision made by the arbitrator is one that a reasonable decision-maker could make. [25] In Herholdt v Nedbank Ltd, 5 the Supreme Court of Appeal in summery the approach to review by the Labour Court held that: [25]... A review of a CCMA award is permissible if the defect in the proceedings falls within one of the grounds in s 145(2)(a) of the LRA. For a defect in the conduct of the proceedings to amount to a gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator must have misconceived the nature of the inquiry or arrived at an unreasonable result. A result will only be unreasonable if it is one that a reasonable arbitrator could not reach on all the material that was before the arbitrator. Material errors of fact, as well as the weight and relevance to be attached to particular facts, are not in and of themselves sufficient for an award to be set aside, but are only of any consequence if their effect is to render the outcome unreasonable. [26] Turning to the facts of this case, I deal first with allegation of bias raised by the applicant. It is apparent from the reading of the transcript of the arbitration proceedings in the Commissioner had shown bias towards the employee. It is also apparent that the Commissioner prejudged some of the issues in dispute. [27] I do not intend overburdening this judgment with quotations from the record of those instances where the Commissioner descended the arena and interfered with applicant s representative s cross examination. Those instances appears on the record. The one instance where the Commission descended the arena was when the applicant s representatives was questioning why Ms Ward was part of the trip that went to the diving course when she was not part of the MERT team. 5 (2013) 34 ILJ 2795 (SCA) at para 25.

11 [28] It is apparent that the question was pertinent to the case of the applicant which was that the training course was a disguise for a social function which was the farewell of the employee. After the employee conceded that Ms Ward was on the social trip and that was mixing social and business, the Commissioner intervened and asked applicant s representative what was wrong with that. When it was indicated that it was a business trip the Commissioner used an analogy and questioned what would be wrong if he was to go away for business and take my girlfriend or wife with. [29] The one example of the Commissioner prejudging the issues before him relates to the issue of the canisters of liquid foam which had been donated to the MFS. During the debate, the applicant s representatives indicated that he did not understand what was it that the Commissioner did not understand in relation to the issue of the alleged donation of the foam. The Commissioner respondent in the following manner: You will understand, you will understand very well when the award comes out, do not worry. If you do not understand the way I am thinking now, that is not my problem. [30] In the course of debating about whether the removal of the canisters of liquid foam had been donated to the MFS, the Commissioner observed: Well that is your interpretation. Mine might be a little different. That might be one situation, I agree. But this situation may be another. [31] The Commissioner further observed: With respect, it never went missing. If this situation come to life and it needed to be located, which it came to light and there it was. There is no doubt about it. There is no conflict about the fact where it went to and why it went there. I mean it is not a secret, it was not withheld. [32] Another questionable intervention of the Commissioner was when he asked the employee the following question:

12 Sorry can I just ask, Mr Gunther in hindsight would you have done things differently if you had to do it again? [33] In light of the above, I find that there is a reasonable basis for the applicant to hold a perception of bias on the part of the Commissioner. I further find that the Commissioner committed gross irregularity in the manner in which he conducted himself during the arbitration proceedings. Accordingly, the arbitration award stands to be reviewed on this ground alone. [34] The question that arises from the above finding is whether the matter should be remitted to the CCMA for a hearing afresh or whether the decision should be substituted. [35] In my view, remitting the matter for rehearing would be prejudicial to both parties in that that would lead to a further delay in the finalisation of the matter. The court is, in my view, able to make a substitution in light of material on the record. [36] Turning to the merits of the matter, I have already pointed out that the Commissioner prejudged the dispute. In this respect, it is clear from the reading of the record he had made up his mind as to the outcome of the proceedings even before their completion. He had for instances decided that he did not agree with issue on the interpretation of agreement between the applicant and MFS in relation to the handling of the liquid foam by the employee. Of significance is that he does not inform the applicant s representative what his interpretation so as to afford him the opportunity to deal with that prior to the conclusion of the proceedings. [37] In addition, the Commissioner irrationally and unreasonably decided a number of several others issues which are discussed below. [38] In my view had the Commissioner properly applied his mind before him and had he properly appreciated the nature of the dispute he ought to have found that the dismissal of employee for non-compliance with company procedure was fair. This relate to the donation of the 142

13 canister of foam to MFS. The reasoning that the canisters were not donated is in the face of clear evidence and the probabilities irrational. [39] The evidence from Mr Bekker was that he was instructed by the employee to donate the canisters to MFS. The waybill to have the canisters removed was signed by the employee. [40] The evidence of Mr Bekker was not in any material way challenged during cross examination. The evidence was further corroborated by the letter from MFS thanking the applicant for the donation. The contents of this letter which formed part of the employee s bundle of documents was not challenged. The employee provided no satisfactory explanation as to why he never questioned MFS for the contents of the letter if indeed the canisters were not donated. [41] The other important aspect of the case which the Commissioner failed to apply his mind to, relates to the unchallenged evidence of Mr Mochiriri. The three main features of his evidence which stood unchallenged was that the canisters of the liquid foam was at the cost of R360,000,00, that the employee did not have authority to donate the canisters and was aware of the rule governing donations which he never complied with. [42] In the circumstances, it ought to have been apparent to the Commissioner that the probabilities did not support the version of the employee that he simply instructed that the canisters of the liquid foam be removed to MFS and that he instructed that only 20 canisters be removed. [43] The Commissioner also ought to have found that the agreement between applicant and MFS did not support the vision of the employee. It is clear from the reading of the agreement that it relates to the cooperation between the parties in relation to the provisions of services to the community and makes no provision for dealing with donations. [44] In addition to the above, I could not, from the reading of the record, find any basis upon which the Commissioner rejected evidence of Mr

14 Bekker. Mr Bekker was never cross-examined as to the motive for testifying against the employee nor was it ever put to him that he testified against the employee in exchange of leniency for himself. [45] The finding made in relation to the charge concerning the decorative axes is also irrational when regard is had to the material which was properly placed before the Commissioner. The probabilities, when the evidence is properly analysed, is that the axes were purchased by the employee for personal use for himself and Mr Bekker and others. [46] The defence of the employee was that the axes were purchased for the people who were involved in the drilling accident. His version was also that he was suspended before he could hand them over to the people who they were intended for. It was not disputed that in purchasing the axes, the employee did not follow the anticorruption policy of the applicant. There seems to be no doubt that this was an improper conduct on the part of the employee. The Commissioner misconceived the issue and found that the employee was not guilty because the axes were found in the storeroom. The version of Mr Bekker that the axes were returned to the premises of the applicant on the commencement of the investigation into this matter was not challenged by the employee. The returning of the axes was an obvious act of misrepresentation as to the true facts of how these items were purchased and for what purpose. The alleged motive of purchasing them was also deceitful and was also an afterthought which was intended to disguise the real motive for purchasing them. [47] The same applies to the Jerry cans which were given to Mr Bekker for his personal use. They were also returned to the applicant s premises upon the commencement of the investigation. The employee did not challenge Mr Bekker s evidence in this regard and, therefore, there was no basis for the Commissioner to reject his version. [48] I now turn to the principle governing the inconsistent application of discipline. It is trite that disciplinary inconsistency is not a rule but rather part of the principle of fairness, whose purpose is to ensure

employees are measured by the same standard and that discipline is not capricious. 6 15 [49] In NUM and Another v Amcoal Colliery t/a Arnot Colliery and Another, 7 in dealing with the issue of the alleged inconsistency of discipline, the court said the following: The parity principle was designed to prevent unjustified selective punishment or dismissal and to ensure that like cases are treated alike. It was not intended to force an employer to mete out the same punishment to employees with different personal circumstances just because they are guilty of the same offence. [50] In testifying as to why Mr Bekker and Ms Ward were not dismissed after they had been charged with the same offences as those committed by the employee, Mr Mochiriri stated that it was because of the extenuating circumstances that applied to the respective cases. This was also never challenged by the employee. [51] In my view, in the circumstances and in the absence of the challenge to Mr Mochiriri s evidence concerning the issue of the alleged inconsistency, there was no basis for the Commissioner to reject his vision. The other distinguishing feature between Mr Bekker s case and that of the employee was that he (Mr Bekker) did not make any decision with regard to the issues that he was ultimately charged with without the approval of the employee as his senior. [52] Turning to the issue of mitigating factors it is apparent that the Commissioner s decision was significantly influenced by years of service which the employee had with the applicant. In arriving at this conclusion, the Commissioner failed to apply his mind properly to the issue and also failed to take into account what was said by the Labour 6 See Gcwensha v CCMA and Others (2006) 3 BLLR 234 (LAC) and SACCAWU and Others v Irvin Johnson Ltd (1999) 20 ILJ 2302 (LAC). 7 [2000] 8 BLLR 869 (LAC) at para 19.

appeal Court in the case of Toyota SA Motors (Pty) Ltd v Radebe and Others, 8 wherein it stated that: 16 [15] Although a long period of service of an employee will usually be a mitigating factor was such employee is guilty of misconduct, the point must be made that there are certain acts of misconduct which are of such a serious nature that no length of service can save an employee is guilty of them from dismissal. To my mind one such act of misconduct is gross dishonesty. [53] In light of the above, I agree with the applicant that the Commissioner s findings are entirely disconnected to the evidence which was presented. The findings are not supported by the probabilities. In this respect, had the Commissioner properly applied his mind to the facts before him, he ought to have found that the dismissal of the employee was fair. In other words, the Commissioner s arbitration award has failed the constitutional standard of reasonableness. Order [54] In the circumstances, the following order made: 1. The arbitration award made by the second respondent under case number MP 3559/13 is reviewed and set aside. 2. The arbitration award is substituted with an order to the effect that the dismissal of the individual applicant, Mr Gunther, was fair and accordingly his unfair dismissal claim is dismissed. 3. There is no order as to costs. Molahlehi, J Judge of the Labour Court 8 (2000) 21 ILJ 340 (LAC).

17 Appearances: For the Applicant: Instructed by: For the Respondent: Adv. L Hollander Webber Wentzel Attorneys Union Official