Anglogold Ashanti Limited v Association of Mineworkers and Construction Union obo Dlungane and Others (JR2099/16) [2020] ZALCJHB 46 (20 February 2020)
It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct s/he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.
Even if the employer fails to prove a charge of theft, unauthorised possession is a competent verdict in the circumstances.
Facts:
A loco operator employed by AngloGold was dismissed for theft and illegal possession of gold bearing material. The employee had given permission to personnel from AngloGold's Security Department to conduct a search for traditional weapons in his hostel room in his presence. During the search gold bearing rocks, sjamboks and knobkerries were found. AngloGold laid criminal charges against the employee and instituted disciplinary proceedings against him.
The employee denied any knowledge of the gold bearing material, saying he only became aware that it had been found in his hostel room during his Magistrate Court appearance in relation to charges over the sjamboks and knobkerries. However, this version was challenged as it was irreconcilable with his version during the disciplinary enquiry that someone placed the gold bearing material in his hostel room to frame him.
At the CCMA the commissioner accepted that the gold bearing material was found inside the employee's hostel room and that it belonged to AngloGold. However, on the charge of theft, the commissioner found that AngloGold failed to prove that the employee was guilty of theft simply because it failed to lead evidence to show where, when, how and by whom the gold bearing material was stolen. On the charge of illegal possession of gold bearing material, the commissioner criticised AngloGold for not specifically mentioning in the charge sheet why possession was illegal. The commissioner also tried to distinguish between physically possessing an object, and an object being found in one's room. The commissioner found the employee's dismissal to have been unfair and awarded him retrospective reinstatement with R48,509 backpay.
On review at the Labour Court it was held that the evidence had established that the gold bearing material belonging to AngloGold was found in the employee's hostel room. The evidentiary burden at that point shifted to the employee to provide a credible explanation as to how the gold bearing material ended up there. In this case the court said that this burden was not discharged by the employee.
The Labour Court was critical that the commissioner misconstrued what constitutes theft. Even if AngloGold failed to prove a charge of theft, the court said that unauthorised possession is a competent verdict in the circumstances. The commissioner had confused possession as only referring to having an object in your hand or physical possession. The test is, however, whether a person has intentionally exercised control over a thing, which the employee did because the rock was found in his room.
The court said that it will normally be sufficient if the employee has adequate notice and information to ascertain what act of misconduct s/he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.
Extract from the judgment:
Nkutha-Nkontwana J:
[13] Turning to the matter at hand, the commissioner clearly failed to address the question raised for determination. Fairness is the hallmark of the law of dismissal. In National Battery (Pty) Ltd v Matshoba and Others, the court pointed out that the labels assigned to the misconduct are irrelevant - the point is whether the evidence demonstrates a case of wrongdoing. This thesis was recently buttressed by the LAC in EOH Abantu (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others, pertinently stating that:
'[15] One of the key elements of fairness is that an employee must be made aware of the charges against him. It is always best for the charges to be precisely formulated and given to the employee in advance of the hearing in order to afford a fair opportunity for preparation. The charges must be specific enough for the employee to be able to answer them. The employer ordinarily cannot change the charge, or add new charges, after the commencement of the hearing where it would be prejudicial to do so. However, by the same token, courts and arbitrators must not adopt too formalistic or technical an approach. It normally will be sufficient if the employee has adequate notice and information to ascertain what act of misconduct he is alleged to have committed. The categorisation by the employer of the alleged misconduct is of less importance.[14] In this instance, it is clear that the Commissioner failed to comprehend that AngloGold had established a prima facie case of theft through circumstantial evidence. Mr Dlungane was the Loco Operator at the mine, the gold bearing material belonging to AngloGold was found in his hostel room. The evidentiary burden shifted to Mr Dlungane to provide a credible explanation as to how the gold bearing material ended up in his hostel room but to no avail. The commissioner immersed himself with unhelpful questions and ultimately misconstrued what constitutes theft.
[16] Employers embarking on disciplinary proceedings, not being skilled legal practitioners, sometimes define or restrict the alleged misconduct too narrowly or incorrectly. For example, it is not uncommon for an employee to be charged with theft and for the evidence at the disciplinary enquiry or arbitration to establish the offence of unauthorised possession or use of company property. The principle in such cases is that provided a workplace standard has been contravened, which the employee knew (or reasonably should have known) could form the basis for discipline, and no significant prejudice flowed from the incorrect characterisation, an appropriate disciplinary sanction may be imposed. It will be enough if the employee is informed that the disciplinary enquiry arose out of the fact that on a certain date, time and place he is alleged to have acted wrongfully or in breach of applicable rules or standards. (Emphasis added)
[15] Also, even if AngloGold failed to prove a charge of theft, unauthorised possession is a competent verdict in the circumstances. Despite having opined so initially, the commissioner's parting short seems to cast doubt as to whether Mr Dlungane was indeed in possession of the gold bearing material found in his room. Clearly, the commissioner confused possession as only referring to having an object in your hand or physically. The test is, however, whether a person has control intentionally exercised toward a thing. In this instance, the gold bearing material was found in Mr Dlungane's hostel room which meant that he had exclusive and intentional control over same.
[16] On the second charge, the commissioner's findings are not supported by evidence. Mr Pottas testified that it is illegal to be in possession of gold bearing material in terms of the Precious Metals Act. He was also adamant that Mr Dlungane was aware that it is illegal to be found in possession of the gold bearing material. This evidence was not disputed. Clearly, as stated in EOH Abantu dictum, failure to refer to the said prescript in the charge sheet was not fatal to the case of AngloGold given the fact that Mr Dlungane was aware or ought to have been aware that being in possession of gold bearing material is prohibited.
[17] I also note that in terms of AngloGold Disciplinary Code, theft and unauthorised possession of gold bearing material are dismissible offences. Even though it is not a given in every instance, in the circumstances of this case, Mr Dlungane's actions rendered the employment relationship intolerable so as to justify a sanction of dismissal.
Conclusion
[18] In all the circumstances, I am satisfied that the commissioner misconceived the nature of the enquiry and consequently there was no fair trial of the issues. Put otherwise, he diverted from the correct path in the conduct of the arbitration and as a result failed to address the question raised for determination. Based on this ground alone, the award stands to be reviewed and set aside.
[19] I deem it expedient not to remit this matter back to the CCMA in the interest of justice. The issues were properly ventilated during the arbitration proceedings and the adequacy of the record of those proceedings is not placed in issue. I am, accordingly, in a position to determine the matter to its finality.
[20] In the light of the findings I have arrived at above, it is clear that the dismissal of MrDlungane was substantively fair.
Costs
[21] Tritely, costs do not follow the result in this Court; but the requirements of the law and fairness are a main consideration. It therefore accords the requirements of law and fairness that each party should bear its own costs.
[22] In the circumstances, I make the following order.
Order
-
The arbitration award dated 12 September 2016 under case number NWKD3034-16 is reviewed and set aside and substituted with the following order:
1.1. The dismissal of Mr Dlungane is substantively fair.
- There is no order as to costs.