Dismissal – Gross negligence
- Jonathan Goldberg
- Apr 14
- 3 min read
In SANDVIK MINING AND CONSTRUCTION V NKUNA JR2548-19 [2024] (ZALCJHB) 22 JULY 2024 the Labour Court dealt with a review application regarding an arbitration award under section 145 of the Labour Relations Act (LRA). The case revolved around the dismissal of an employee, a data clerk, who was responsible for managing stock records at a company that supplied tools and spare parts to mines. Accurate stock recording was crucial for the company's invoicing and payments.
The employee was dismissed for misconduct involving the disappearance of 220 drill bits, valued at R260,000. These bits were initially recorded as excess stock but later went missing. The employee was charged with dishonesty for providing false stock declarations and with gross negligence, resulting in a financial loss to the company. Following a disciplinary hearing, she was dismissed on 19 December 2018.
The employee referred the matter to the Commission for Conciliation, Mediation, and Arbitration (CCMA), arguing that her dismissal was unfair. The Arbitrator ruled in her favour, finding the dismissal substantively unfair and ordering her reinstatement with backpay capped at six months.
The employer applied to the Labour Court to have it reviewed and set aside. The employer argued that the Arbitrator had committed irregularities in how the evidence was handled, particularly focusing on determining who was responsible for the stock discrepancy but neglecting the charge of gross negligence.
The employer presented two witnesses: the Area Manager and the Rock Tools Administrator. They testified about the stock discrepancy, revealing that the 220 bits had been sent underground without the necessary paperwork, leading to their disappearance. It was discovered that the employee had manipulated the Excel spreadsheet used to track stock, resulting in the false declaration of stock levels. The Rock Tools Administrator testified that the discrepancy was discovered when she returned from study leave and noticed that proofs of delivery had not been recorded properly on the system, which contributed to the stock going missing.
The employee admitted during cross-examination that her stock declaration was manually captured and flawed. She also conceded that she had communicated the discrepancy to the site manager, who tried to correct it. However, she argued that the failure to properly process the proof of delivery by the Rock Tools Administrator was the root cause of the issue, and that she should not be held responsible for the stock loss.
The Labour Court found that the Arbitrator had failed to address the gross negligence charge and that the Arbitrator had not considered the employer's evidence adequately, particularly the employee’s admission that the stock had been sent underground without paperwork.
The Court emphasised that failure to cross-examine on disputed evidence is seen as acceptance of that evidence, and in this case, the employer had made a solid case regarding the employee's gross negligence.
The Labour Court set aside the arbitration award, ruling that the employee’s dismissal was substantively fair. No order as to costs was made.
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