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IN THE LABOUR APPEAL COURT OF SOUTH AFRICA HELD …

IN THE LABOUR APPEAL COURT OF SOUTH AFRICAHELD AT JOHANNESBURGCase No: JA 68/99In the matter betweenDE BEERS CONSOLIDATED MINES LIMITEDA ppellantandTHE COMMISSION FOR CONCILIATION, 1st RespondentMEDIATION AND ARBITRATIONCOMMISSIONER E. HAMBRIDGE2nd RespondentNATIONAL UNION OF METAL WORKERS3rd RespondentOF LUTHI4th RespondentA. SENTI5th Respondent_____JUDGEMENT_____ZONDO AJPI ntroduction[1]This is an APPEAL against a judgement of the LABOUR COURT in a review application brought for the purpose of setting aside a certain arbitration award which was issued by a commissioner of the Commission for Conciliation, Mediation and Arbitration in a dispute between the appellant, on the one hand, and, the fourth and fifth respondents, on the other. The appellant carries on the business of exploring, evaluating and mining diamonds. Its head office is situated in Kimberly, Northern Cape Province.

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA HELD AT JOHANNESBURG Case No: JA 68/99 In the matter between DE BEERS CONSOLIDATED MINES LIMITED Appellant and THE COMMISSION FOR CONCILIATION, 1st Respondent MEDIATION AND ARBITRATION COMMISSIONER E. HAMBRIDGE 2nd Respondent NATIONAL UNION OF METAL WORKERS 3rd …

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Transcription of IN THE LABOUR APPEAL COURT OF SOUTH AFRICA HELD …

1 IN THE LABOUR APPEAL COURT OF SOUTH AFRICAHELD AT JOHANNESBURGCase No: JA 68/99In the matter betweenDE BEERS CONSOLIDATED MINES LIMITEDA ppellantandTHE COMMISSION FOR CONCILIATION, 1st RespondentMEDIATION AND ARBITRATIONCOMMISSIONER E. HAMBRIDGE2nd RespondentNATIONAL UNION OF METAL WORKERS3rd RespondentOF LUTHI4th RespondentA. SENTI5th Respondent_____JUDGEMENT_____ZONDO AJPI ntroduction[1]This is an APPEAL against a judgement of the LABOUR COURT in a review application brought for the purpose of setting aside a certain arbitration award which was issued by a commissioner of the Commission for Conciliation, Mediation and Arbitration in a dispute between the appellant, on the one hand, and, the fourth and fifth respondents, on the other. The appellant carries on the business of exploring, evaluating and mining diamonds. Its head office is situated in Kimberly, Northern Cape Province.

2 The commission is the first respondent. The commissioner who issued the award is the second respondent. The third and fifth respondents are former employees of the appellant. The award was issued in September facts.[2]The fourth and fifth respondents were employed by the appellant as truck drivers. They were both dismissed by the appellant in May 1998. The reason for their dismissal was that they had been found guilty of fraud. The fraudulent act was that they had claimed overtime pay for nine hours when in fact they had not worked during that time. They had done this by completing forms to the effect that they were entitled to such overtime and they had received payment from the appellant to meet those claims.[3]The overtime claim arose out of a trip which the fourth and fifth respondents had undertaken on the 9th April 1998 from Kimberly to Kleinzee to transport drilling equipment.

3 The fourth and fifth respondents had arrived in Kleinzee at about 11h00 on the 9th April. They finished off-loading their trucks at about 13h30. At their request, their supervisor, one Mr Bhika, granted a request from them that, on their way back to Kimberly, they could stay overnight at Port Nolloth. It was later discovered that the two had not driven at all on the 10th April as they were supposed to have done in terms of their arrangement with Mr Bhika. Instead they had left for Kimberly on the 11th April 1998. Despite this, they claimed payment for overtime in respect of the 10th April as well.[4]The fourth and fifth respondents (also referred to hereinafter as employee respondents ) were charged with misconduct, found guilty and dismissed. An internal APPEAL that they initiated was unsuccessful. A dispute about the fairness of their dismissal then arose.

4 They referred the dispute to conciliation. When conciliation failed, the dispute was referred to arbitration under the auspices of the CCMA, the first respondent. The second respondent was appointed to arbitrate it which she did. Pursuant to the arbitration proceedings, the second respondent issued an award to the effect that the dismissal was procedurally fair but substantively unfair. Pursuant to this finding, she ordered the appellant to reinstate the employee respondents in its employment with effect from the date of the award. That means that the reinstatement order was not made retrospective. She also ordered that the appellant should record a final warning against them. It is against that award that the appellant subsequently launched a review application in the LABOUR COURT . It is the judgement handed down by the LABOUR COURT in that application which is now appealed of the Commissioner s reasons for the award.

5 [5]In finding that the dismissal was substantively unfair, the second respondent made a positive finding that the employee respondents were guilty of fraud. It was because in effect she found that dismissal was not an appropriate sanction that she concluded that the dismissal was not substantively unfair.[6]It appears from a reading of the commissioner s award that the commissioner perceived the real issue (she refers to it as the most important issue before her) as not only having been whether fraud had been committed, but whether, as a result of such fraud, the trust relationship had broken down to such a degree that it [made] continued employment intolerable. After saying that this was the most important issue to be decided, she then proceeded to say that she found that the trust relationship [had] not broken down to such a degree that it [made] continued employment intolerable.

6 At page 7 up to just before the last paragraph of page 8 of the award she proceeded to give her reasons for that finding.[7]The first reason the commissioner gave for her finding on the extent of the breakdown of the trust relationship is that the fraud was not committed within [the fourth and fifth respondent s] core functions. She reasoned that the employee respondents were employed as drivers and that the completion of claim forms was very much auxiliary to their daily core functions. This reason is, in my view, irrational and makes no sense. If this reasoning is taken to its logical conclusion, any employee could commit an act of dishonesty with impunity as long as he ensured that he committed it outside of his core functions. Immediately after this, she said: Should the truck or the merchandise being transported have been damaged or destroyed or lost, I would have regarded same in a very serious light.

7 This statement by the commissioner seems to suggest, in the context in which it appears, that in that case that would have convinced her that the trust relationship had broken down to such a degree that continued employment would have been intolerable. This is an extension of the reasoning about core functions which I have dealt with.[8]The second ground on which the commissioner based her conclusion on the extent of the breakdown of the trust relationship was that a claim for overtime payment in the appellant company was subject to a verification process involving other people before such a claim could be approved and, that, for that reason, the fourth and fifth respondents did not occupy a position of trust in relation to the completion of their claim forms . Quite frankly I cannot understand what point the commissioner was trying to make in this regard especially if it was intended to be a point which was independent of the point made in the preceding paragraph.

8 The effect of what the commissioner says is either the same as the effect of the preceding paragraph or its effect is that the fact that the appellant had a system for the verification of claims by different officials prevented the trust relationship from breaking down to such a degree as to render continued employment intolerable. This does not make sense and is devoid of any logic. [9]The last ground relied upon by the commissioner was that it was a mitigation factor in this case that the two employees had long service. One had 13 and the other 18 years of service. While I have no doubt that the commissioner s award cannot stand on the basis of the reasons dealt with already above which the commissioner gave, it is her reliance on the employee respondents long years of service that I am unable to hold to be unjustifiable or irrational or as constituting a gross irregularity.

9 Even in cases of dishonesty, the length of service of an employee may be taken into account as a mitigating factor in appropriate cases.[10]In par 15 of the as yet unreported judgement of this COURT in Toyota SA Motors (Pty)Ltd v Radebe & others case no DA2/99, I said: Although a long period of service of any employee will usually be a mitigation factor where 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 who is guilty of them from dismissal. To my mind one such clear act of misconduct is gross dishonesty. I went on to say in par 16 thereof: I am not saying that there can be no sufficient mitigating factors in cases of dishonesty nor am I saying dismissal is always an appropriate sanction for misconduct involving dishonesty.

10 In my judgement the moment dishonesty is accepted in a particular case as being of such a serious degree as to be described as gross, then dismissal inter alia, an appropriate and fair sanction. The appellant relied heavily on the Toyota judgement. I think the difference between Toyota and this case is that having regard to all the circumstances of the case in Toyota the seriousness of the misconduct there was so clear that in my view no reasonable person could in my view have come to the conclusion that the length of service could possibly be sufficient to render the dismissal an unfair sanction. In this case I cannot say the same of this case and in particular about the commissioner s decision to regard the length of service as a mitigating factor.[11]I have noted what my Colleague, Conradie JA, says about length of service. I do not think for purposes of this case it makes any difference whether what one regards as a mitigating factor is length of service or whether what one regards as providing a mitigation is that, because the employee had been with the employer for a long period without any problems, he is unlikely to repeat his misconduct and therefore should not be dismissed.


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