ZIYAMBI JA:
[1] The appellant was employed by the
respondent as the Chief Assayer from 1996.
It was accepted that as Chief Assayer his duty was to keep bullion gold
in a safe in respect of which he was the sole custodian of the key. It is common cause that throughout the period
of his employment there was a missing spare key to the safe, however the appellant
had done nothing to correct that position.
[2] On or about 10 May 2012, the safe was
opened by the appellant in the presence of two of the respondent's officers who
wished to collect certain samples from the safe. It was then discovered that 9 bars of gold
bullion were missing from the safe.
[3]
Despite this discovery, the appellant did not report the matter to his
employers. On 11 May 2012, he attended a Head of Department meeting with his
superiors but failed to report the matter even when asked if he had anything to
report.
[4] After
leaving the meeting, the appellant was called back and asked about the missing
bullion samples. Only then did he
confirm that they were missing and expressed the view that they were probably
stolen.
[5]
The appellant was asked to write a report and was subsequently charged with two
counts of misconduct. The first charge alleged
conduct inconsistent with the fulfilment of the express or implied conditions
of his employment. The second alleged substantial neglect of his duties. He was convicted on both counts and dismissed.
[6]
The matter eventually ended up before an arbitrator who found the dismissal to be
substantively fair.
[7] Aggrieved by this decision the appellant
appealed, again unsuccessfully, to the Labour Court.
[8] In his appeal before us, the appellant
raised two issues. Firstly, the finding that the appellant was guilty on the
first charge was the result of a factual misdirection by the arbitrator and the
Labour Court was wrong to uphold it.
Secondly, the charge of substantial
neglect of duties was improper as the conduct prescribed by the Statutory
Instrument is one of habitual and substantial neglect. Not only was the charge
improper but habitual neglect of duties had not been proved.
Both charges warrant the penalty of
dismissal.
[9] Regarding the first charge it is plain
that the appellant, by failing to secure the gold samples was in breach of a
fundamental term of his contract of employment.
[10] His argument that his sole duty was merely
to keep the key is nonsensical. Indeed it was conceded by Mrs Mabwe that his duty was to keep the gold
samples and that involved checking the safe from time to time. The appellant had last checked the safe in
January 2012, some four months or so before the samples were found missing.
[11] When questioned by the Senior
Security Officer, the appellant admitted to keeping the key in a drawer from
which he suspected it might have been retrieved in order to steal the samples.
[12] As
to the second charge, the spare key had been missing throughout the period of
the appellant's employment which spanned 17 years. The consistent failure by the appellant over
this period to take any measure to secure the safe whether by replacement of
locks or otherwise can only amount to habitual and substantial neglect of his
duties.
[13] Although in formulating the charge
the word “habitual” was not used by the Disciplinary Committee, it is clear
from the established facts that the appellant's conduct amounts to habitual and
substantial neglect of his duties.
[14] Accordingly the appeal is dismissed
with costs.
BHUNU JA: I agree
UCHENA JA: I agree
Matsikidze
& Mucheche, appellant's legal practitioners
Messers Gill, Godlonton & Gerrans, respondents' legal practitioners
