BHP Biliton Energy Coal SA (Khuthala Colliery) v Commission for Conciliation, Mediation and Arbitration and Others (JR1301/2011) [2016] ZALCJHB 189 (20 May 2016)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case Number: JR1301/2011

In the matter between:

BHP BILITON ENERGY COAL SA (KHUTHALA COLLIERY) Applicant And COMMISSION FOR CONCILIATION MEDIATION AND ARBITRATION First Respondent MASHEGOANE A., N.O Second Respondent THWALA, H.G Third Respondent

Date heard: 25 February 2016

Delivered: 20 May 2016

RABKIN-NAICKER J

[1] This is an opposed application to review an arbitration award under case number MP8868/10.

[2] The third respondent was dismissed on 22 November 2010 following a disciplinary hearing. The charge for which he was dismissed was as follows:

“it was brought to the attention of Management that from the BHP Billiton August 2010 monthly report, it was established that Mr. Happy Twala had abused the e-mail internet to the extent of 549MB of which 74,53% had to do with pornography/nudity”.

[3] The third respondent put both procedural and substantive fairness of his dismissal in dispute at the arbitration proceedings. The second respondent (the Commissioner) found as follows in his assessment of the evidence before him:

“[20] Finally, having duly applied my mind to the facts and merits of the case before me, I conclude on the balance of probabilities that, the dismissal of the Applicant was substantively unfair based on the following reasons. The Respondent’s case was based on the report from PricewaterhouseCoopers Advisory Services (Pty) Ltd. Mr. Tshepo Moleko from the above mentioned company testified during the arbitration process. He led evidence on the contents of Bundle A, the report from his team in Australia. The report from which the disciplinary hearing of the applicant and his subsequent dismissal were generated from.

[21] Under cross examination, he disowned the document that he gave evidence from and said the document from which he generated his report was not part of the bundle of documents submitted to the Commission. It was for the first time he saw the bundle of documents in the hearing, and he was not sure if they were the same documents and where the respondent got it from. It is worth noting that this was the person whose report resulted in the dismissal of the Applicant, who gave evidence from the same documents in particular page 8, up to page 53 of bundle A. What is meant then was that the evidence of the first witness was not corroborated because the evidence was based on the same documents. He confirmed that the IT (information & technology) people are capable of bypassing username and password to work on the PC. He also worked on the Applicant’s PC without a password.

[22] He personally analysed the computer that was given to the Applicant by the Respondent while still employed and nothing was found in the PC, including on the deleted items. It was the Applicant’s contention that he never accessed the porn website, and some of the dates at which the websites were allegedly visited included Sundays. The documents that indicated the website visits are now disowned by the key witness. I reject the Applicant’s evidence that seeks to suggest that there was no working relationship between himself and Mr. Pieter Lange because the version was not put to him during his evidence in chief.

[23] I find that the Respondent’s disciplinary code and procedure provide for a written warning for the charge brought against the Applicant, and find that the Respondent acted inconsistently when dismissing the Applicant due to the fact that Mr. Lange was unable to refute the evidence of inconsistency. He was not able to recall a name of a person dismissed for the same offence. I therefore agree that the dismissal was too harsh a sanction.

[24] The Applicant’s years of service with the Respondent with clean record is also persuasive in this matter. I have taken into account the decided cases submitted by the Respondent in their closing arguments, and I hold a different view that those cited case in my view are relevant in Mr. Phillip De Bruyn’s situation in which the Respondent allegedly failed to take disciplinary action. Section 193(2) of the LRA 66 of 1995 as amended provides that: The Labour Court or the arbitrator must require the employer to reinstate or re employ the employee unless, the employee does not wish to be reinstated or re employed. I am also guided by the Constitutional Court decision in Equity Aviation Services Pty Ltd v CCMA & Other [2008] 12 BLLR 1129 (CC) in relation to retrospective reinstatement.”

[4] In submitting that the Award is reviewable much emphasis was given to the fact that the Commissioner should have accepted the evidence of the company’s witnesses, Moleko and Lange, that third respondent had in fact accessed the internet using BECSA’s

server and in particular that that he had accessed pornographic sites on the internet.

[5] The applicant submits that its second witness, a Price Waterhouse Consultant, Mr Moleko (Moleko) did not “disown”, reject, dispute or challenge the authenticity of the reports contained in the record before the Commissioner, being the internet usage report and the other reports (the internet logs). In his affidavit report contained in the record before the Commissioner, Moleko averred inter alia as follows:

“Findings : Pornographic material

The file and folder analysis of the content of the HDD revealed that there were no picture files of a pornographic or explicit nature

stored on the HDD. Further, no instances were identified where pornographic material was received or distributed from this HDD via email correspondence.

Findings: Internet History Analysis

The internet usage reports provided by the PwC team in Australia which were extracted from the BHP Billiton server revealed that user ID Thwahg accessed websites containing pornographic material on the following dates:

· 23 August 2010;

· 24 August 2010

· 25 August 2010

· 26 August 2010

· 27 August 2010; and

· 30 August 2010.

The table below details websites visited on the above mentioned dates and the number of times these websites were accessed……………

(Table)

According to the internet usage report, 20% of the total number of times the user accessed the internet during August 2010 was to access pornographic material. The time spent on the pornographic websites amounts to 308.2 minutes (5.14 hours). The internet usage reports did not reveal any websites of a pornographic nature being visited during June and July 2010.”

[6] The transcript of the arbitration reveals that Moleko was cross examined as to the basis on which he created the table in his

affidavit report. He confirmed that the logs contained in the respondents bundle were not in the report that he based his finding

on, stating: “I would have to then look at the content that I analysed compared to these reports because I am not sure of this content.” Molekwa was asked by the Commissioner what he based his finding on. Molekwa replied as follows:

“MR TSEPHO MOLEKO: I based my findings on two factors I first conducted analysis on the hard drive that was provided by Mr Mike Sithole and then as well as the BHP server logs, our usage report that was generated from the BHP Billiton Server by the PWC Australia team.

COMMISSIONER: Is that document where you based your findings on part of the bundle of documents that is presented before me?

MR. TSEPO MOLEKO: No I did not submit that document.”

[7] Essentially then the applicant’s key witness in relation to the evidential material which sought to establish the pornographic

internet usage was not able to speak to the log reports as contained in the bundle of documents. Perhaps the use of the word ‘disowned’

in relation to these reports was not the most apt, but the Commissioner correctly took into account this problem with the presentation of the company’s case.

[8] However, it must be noted that in coming to his ultimate conclusion the Commissioner also took into consideration the third respondent’s long service and clean disciplinary record. He further considered the issue of the recommended sanction in the company’s disciplinary code (being a final written warning for a first office) and the evidence on inconsistency which the respondent’s witness Mr Lange, a senior HR manager, was unable to comment on.

[9] This court must decide whether the following questions can be answered in the affirmative:

“'…… (i) In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the arbitrator employed give the parties a full opportunity to have their say in respect of the dispute? (ii) Did the arbitrator identify the dispute he or she was required to arbitrate? (This may in certain cases only become clear after both parties have led their evidence.) (iii) Did the arbitrator understand the nature of the dispute he or she was required to arbitrate? (iv) Did he or she deal with the substantial merits of the dispute? (v) Is the arbitrator's decision one that another decision maker could reasonably have arrived at based on the evidence?' [1]

[10] The LAC has also stated in Head of Department of Education v Mofokeng & Others[2] that Labour Court judges should also bear in mind:

“..that it is not only the reasonableness of the outcome which is subject to scrutiny. As the SCA held in Herholdt, the arbitrator must not misconceive the enquiry or undertake the enquiry in a misconceived manner. There must be a fair trial of the issues. “ [3]

[11] I find on the basis of the above principles, on the record before me and the reasoning of the Commissioner as captured above, that the outcome of this award is not susceptible to review. I see no reason why costs should not follow the result. I therefore make the following order:

Order

1. The review application is dismissed with costs.

________________

H. Rabkin-Naicker

Judge of the Labour Court of South Africa

Appearances:

Applicant:

L. Hollander

Instructed by: Webber Wentzel Attorneys

Third Respondent: H. Bucksteg

Instructed by : Carel J Shoeman Attorneys

[1] Gold Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation, Mediation & Arbitration & others (2014) 35 ILJ 943 (LAC) at paragraph 20

[2] (2015) 36 ILJ 2802 (LAC)

[3] At paragraph 31