Aquarius Platinum (SA)(Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JA96/2018) [2020] ZALAC 23 (18 May 2020)
The crime of theft takes place when a person deliberately deprives another person of the latter's property permanently. The deliberate retaining of property which an employee is not entitled to retain is not distinguishable, conceptually, from theft. An inference can be drawn that there is theft where an employee who borrows the employer's property does not return it and, in the absence of other evidence, the probabilities lend weight to such an inference.
Facts:
A senior employee, a shaft engineer, needed metal scaffolding poles to mount a TV aerial at home. He was aware that there were metal scaffolding poles in the discard yard at the shaft. He telephoned the mine manager who, at that time, was on leave. He said he wanted to borrow the poles. The mine manager's answer was that if he did so, he should comply with the waybill procedure which required the removal of any company property to be documented and authorised. A practice existed in terms of which company equipment could be borrowed by employees from time to time.
The employee then instructed an artisan to cut 600mm lengths from the metal poles taken from the discard yard. These lengths were then loaded onto his bakkie and removed by him. This exercise interrupted other duties that the artisan was busy on.
The employee authorised himself to remove the material in an 'internal waybill'. He did not prepare an 'external waybill' to take the material off the mine.
The material was never returned. It was estimated to have a value of R1000 if sold as scrap. No acceptable evidence was given by the employee to explain why at any time after the removal had occurred, the poles were not returned, or could not be returned, as was his logical obligation in terms of the borrowing of the equipment.
The employee was charged with several charges including "Misappropriation of company assets", "Damage to company property", "Failure to comply with company rules and procedure", "Theft / Unauthorised removal of company property". He was dismissed.
The matter was referred to arbitration. He was found guilty of not complying with the waybill procedure but that this misconduct was "not grave and wilful". The arbitrator concluded that there was no dishonesty by the employee. The arbitrator also relied on inconsistent application of discipline by the employer. The arbitrator found the dismissal to be unfair and ordered the employee's reinstatement.
On review the Labour Court, approved the finding of guilt on the abuse of managerial authority, and on the failure to follow waybill procedure. On the other charges, the Labour Court was not persuaded that there was any dishonesty. The court said that the employee could not be found guilty of theft, but he could be guilty of some misconduct, of taking company property and not returning it. There was no evidence that suggested that this was an act of dishonesty. The court said that he was not acting secretly nor was he acting to the prejudice of the company, and confirmed the arbitrator's finding that the dismissal was unfair.
On appeal the Labour Appeal Court strongly rejected the Labour Court's views. The LAC said that the crime of theft takes place when a person deliberately deprives another person of the latter's property permanently. The deliberate retaining of property which an employee is not entitled to retain is not distinguishable, conceptually, from theft. The fact that the employee removed the property openly after getting permission to borrow it, does not mean that theft could not occur. An inference can be drawn that there is theft where an employee who borrows the employer's property does not return it and, in the absence of other evidence, the probabilities lend weight to such an inference.
The LAC granted the appeal and found the employee's dismissal to be fair.
Extract from the judgment:
Sutherland JA:
[17] I disagree with this perspective of the conduct of Ngorima as articulated by the Labour Court and it cannot be endorsed. The idea that theft or dishonesty requires furtiveness or concealment is misplaced. It is true that, often, to either conceal the fact of the theft or to conceal the identity of the thief, the deed is done clandestinely. However, that is not an element of the crime. The crime of theft is based on the common sense of the ages: all that is required is that a person deliberately deprives another person of the latter's property permanently. In industrial relations parlance, theft is frequently described as misappropriation of the employer's property. Conceptually there is no useful distinction. The frequent resort to the lesser offence of being in 'unauthorised possession' of the employer's property, an act of misconduct listed in many disciplinary codes, caters for cases where a thieving intention is suspected and requires of employees to ensure that they do not place themselves under suspicion, relieving an employer from having to prove a specific intent.
[18] To articulate the notion of a misappropriation of property that is free of dishonesty is a contradiction in terms. In my view, to describe the deliberate retaining of property which the employee is not entitled to retain is not distinguishable, conceptually, from theft. Naturally, a proper appreciation of the dimension of the requisite intention in regard to misappropriation is not wholly free from difficulty. It is conceivable that a person, bona fide, intends to return an item at the time of borrowing but later changes that intention. If circumstances, where the probabilities are equally poised that at the outset, the "borrower" had an intention to return the item, how is the existence of the fact of a change of intention to be determined? Self-evidently, except in rare cases, that change of intention would have to inferred from the evidence. In such a case, the explanation proffered by the borrower would be of central importance. Where a borrower gives no explanation, can the inference indeed be drawn that the intention not to return the goods be made? In my view, such an inference can be drawn if, in the absence of other evidence, the probabilities lend weight to such an inference. This does not result from any onus on an employee to prove the absence of guilt; rather, it is a straightforward example of inferential reasoning to determine the probabilities on the available evidence.
[19] Moreover, to return to the idea that furtiveness is a necessary attribute of theft or dishonesty, such a perspective overlooks that sometimes theft takes place quite brazenly. One example where this is common is where senior employees, often managers, abuse their standing and authority to take possession of company property for private use. The workforce looks on impotent to intervene. The facts of this case illustrate exactly that scenario.
[20] Moreover, even were I to be wrong about the establishment of guilt of theft by Ngorima on this body of evidence, and, thus, a finding of theft per se, on these facts, were to be unsafe, there is another significant dimension to the conduct of Ngorimato be weighed which renders him culpable of serious misconduct. That conduct is, as alluded to above, the brazen abuse of his status and seniority to appropriate the labour of Jansen for private purposes, something for which there is no hint that he had the authorisation to do, and the causing of the cutting up of company property. This is an example of an abuse of his managerial position for which the disciplinary code provides dismissal as an appropriate sanction. In the context of large businesses, such as a Mine, where vast quantities of company property are continually in the possession of a large number of employees, a strict standard of conduct is usually and appropriately applied to everyone. Ngorima as a senior employee was obliged to set a good example: he did not. Ngorima was, in the circumstances, indeed guilty of serious misconduct in this regard and dismissal is appropriate.
The Order
- The appeal is upheld.
- The Award is reviewed and set aside.
- The judgment of the Court a quo is set aside.
- The sanction of dismissal is declared not to be unfair.