IN THE LABOUR COURT OF LESOTHO LC/REV/18/13
HELD AT MASERU
In the matter between:
MOTLOKOA CHEELI 1st APPLICANT
MOIPONE TS’OLO 2nd APPLICANT
`MAMOTS’ELISI THOO 3rd APPLICANT
`MATSEKO LEPONESA 4th APPLICANT
QHOSHUOE DABEZWA 5th APPLICANT
and
CIRCUIT BREAKERS INDUSTRIES (PTY) LTD 1st RESPONDENT
DIRECTORATE OF DISPUTE PREVENTION 2nd RESPONDENT
AND RESOLUTION
JUDGMENT
__________________________________________________
DATE: 26/02/15
Review of an arbitral award - Employees alleging that the Arbitrator relied on confessions from the police for their dismissal without conducting independent investigations when such confessions had even been exacted through torture - Further, that the Arbitrator made conclusions that were not supported by evidence - Court found the Arbitrator to have properly applied her mind to the case that was before her - Review application is therefore dismissed.
INTRODUCTION
1. This is an application for the review of the award of the Directorate of Dispute Prevention and Resolution (DDPR) in Referral No. C 029/12 wherein the applicants’ case in which they had challenged the substantive and procedural fairness of their dismissal, was unsuccessful.
2. Applicants are all former employees of the 1st respondent. They were dismissed following disciplinary hearings held on different dates in which they were accused of theft of company property, viz., circuit breakers on 8th November, 2011. They were found guilty and dismissed. Upon being alerted of the alleged theft, the employer initially called in the Police who investigated the theft, and all the applicants confessed thereto. Applicants allege that the confessions were obtained through torture inflicted on them. They challenged their dismissals on both substantive and procedural grounds. Substantively, that there was no evidence that linked the applicants to the alleged theft, and procedurally, that the 1st respondent used the confessions made to the Police and exacted through torture without conducting its own independent investigations. Having lost at the DDPR and aggrieved by its decision, the applicants instituted the present review application to have the DDPR award reviewed and set aside.
GROUNDS FOR REVIEW
3. Applicants have basically raised three grounds for review. They contended that the learned Arbitrator erred and misdirected herself by:-
4. In reaction, 1st respondent’s representative argued that there was no misdirection on the part of the learned Arbitrator. He submitted that a disciplinary hearing is investigative by nature, and pointed out that he did not understand what independent report the applicants were talking about. On the question of onus of proof, he conceded that the onus in unfair dismissal claims lies with the employer, and as far as he was concerned, the 1st respondent duly discharged the said onus. He indicated that the fact that the applicants voluntarily pleaded guilty and failed to challenge the evidence that was adduced against them by 1st respondent’s witnesses worked against them. In a nutshell, he submitted that there was a lot of incriminating evidence against the applicants.
EVIDENCE
5. i) Motlokoa Cheeli
Relating her ordeal, she averred that the Police were called to the company on 08th November, 2011 to conduct investigations relating to a theft that had allegedly occurred. She testified that she denied during questioning that she had stolen company property; that she was subsequently handcuffed and taken to the ladies’ toilets where she was tortured by a policewoman to the point of having to confess to the theft to avoid further torture. A disciplinary hearing was subsequently held in which she said that she was not afforded an opportunity to defend herself against the allegations of theft levelled against her. She further testified that during the hearing, Mr Shadrack Mofokeng, 1st respondent’s Production Manager, tendered in a statement from the Police, which she persuaded her to agree to its contents and threatened her that otherwise he would call the Police to torture her once more. She also indicated that she felt strongly that Police ought to have been called in to give evidence at the disciplinary hearing.
Her evidence was essentially similar to that of Cheeli.
She testified that she was not tortured but confessed to the theft because when she denied having stolen the circuit breakers she was threatened that she would be tortured like her colleagues. She indicated that having witnessed the bad state in which her colleagues were, she felt she had no option but to confess. She also averred that she was not afforded a hearing at the disciplinary enquiry and further that Mofokeng submitted a document which he said she should agree to its contents.
She stated that she saw a Policewoman handcuff the applicants and take them to the ladies’ toilets from where she heard screams, and upon their return they were wet in the upper parts of their bodies. She could not say what happened in the toilets.
She attested that applicants were her colleagues and members of her trade union. According to her, on the 08th November, 2011, she was approached by the Manager, who she just referred to as Peter, who informed her that some of the members of her union were involved in the theft of the circuit breakers. He requested her to summon the applicants to the training room, and upon arrival they were questioned by Police about the circuit breakers. When they denied knowing anything about them, they were handcuffed and taken to the ladies’ toilets. She pointed out that she heard the applicants crying and when they emerged their upper bodies were wet, and they confessed to the theft of the circuit breakers.
1st RESPONDENT’S CASE
As aforesaid, Mofokeng is 1st respondent’s Production Manager. He testified that on 08th November, 2011, some employees were reported by one of the security guards to have been found in possession of Company property. He confirmed that disciplinary hearings were held on different dates where applicants were all charged with dishonesty, pleaded guilty, found guilty as charged and dismissed.
She testified on behalf of the 1st respondent that her and some fellow employees were found in possession of circuit breakers. She stated that she was charged, asked to plead and pleaded guilty; following which she was asked to plead in mitigation of sentence. She stated that she was never asked about Police statements. She related that `Matseko persuaded her to steal the circuit breakers and told her that they would make a lot of money from them. She ultimately agreed and gave them to her and she in turn gave them to `Mamots’elisi Thoo, 3rd applicant herein.
His evidence was that he worked in the Stores Department and was dismissed after having been found in possession of circuit breakers. He testified that he got the circuit breakers from Motlokoa Cheeli, Qoshuoe Dabezwa and `Mamots’elisi Thoo as his job did not involve handling of circuit breakers. He stated that he had also connived with `Malibuseng, `Mamatoba and Thakane (one of 1st respondent’s witnesses) in the theft. He indicated that he was subsequently charged criminally by the Police, found guilty and sentenced to six (6) years’ imprisonment or to a fine of Six Thousand Maloti (M6, 000. 00).
She testified that she was involved in the theft of circuit breakers and was dismissed. She said she had previously been warned by `Maliteboho Shale to desist from stealing the circuit breakers because they had already been incriminated by `Mamots’elisi. She stated that they sold them to, among others, employees of the Lesotho Electricity Company (LEC), and shared the proceeds amongst themselves. She pointed out that she was charged and attended a disciplinary hearing whereat the charge was read to her and she was asked to plead. She pleaded guilty and was asked to plead in mitigation of sentence.
Her testimony was to the effect that she served as an interpreter during the disciplinary proceedings. According to her, charges were duly read out to all the accused and they were all asked to plead. She indicated that they pleaded guilty as charged and were given an opportunity to plead in mitigation. All these, she pointed out, happened in the presence of `Maliteboho Shale, the Shop Steward who represented all the applicants.
THE COURT’S ANALYSIS
ONUS OF PROOF
7. As a general rule, the onus in civil cases rests with the applicant or plaintiff. It is a trite rule of the law of evidence that “he who asserts must prove.” It implies that if a person claims something from another in a Court of law, then he or she has to satisfy the Court that he or she is entitled to it - see Pillay v Krishna and Another 1946 AD 946. This common law position was, however, changed by statute in respect of unfair dismissal cases where the onus was shifted to the employer - Section 66 (1) of the Labour Code Order, 1992 provides that “an employee shall not be dismissed, whether adequate notice is given or not, unless there is a valid reason for termination of employment.” which to the extent relevant to this case is “connected with the conduct of the employee at the workplace.” The Code specifically provides in Subsection (2) thereof that:-
Any other dismissal will be unfair unless, having regard to all the circumstances, the employer can sustain the burden of proof to show that he or she acted reasonably in treating the reason[s] for dismissal as sufficient grounds for terminating employment.
The central question would then be whether the 1st respondent had discharged the onus of proving that it had dismissed the applicants for a valid reason. The learned Arbitrator ruled that it had.
8. Applicants’ Counsel submitted that the learned Arbitrator wrongly concluded that the onus rested on the applicants to prove that their dismissal was unfair. A closer look at the statement reveals otherwise. The statement seems to refer to the onus relating to proving the existence of a dismissal as opposed to its fairness. The statement read “in the case of unfair dismissal, applicant bears the onus of proving that there was a dismissal.” This related to whether or not there was a dismissal and not to prove the fairness or otherwise of the dismissal. She aptly stated in the same paragraph that “proof that the dismissal was fair requires the employer to prove that there was a fair and valid reason (substantive fairness) to dismiss the employee and also to prove that it followed [a] proper procedure (procedural fairness).” Counsel appears to have not read the statement properly. His argument in this respect therefore falls off.
CONFESSIONS
9. Generally, statements obtained through threats or by duress are not admissible as part of evidence. In the Criminal Law context, Section 228 (1) of the Criminal Procedure and Evidence Act, 1981 provides in respect of confessions that:-
any confession of the commission of any offences shall, if such confession is proved by competent evidence to have been made by any person accused of such offence … be admissible in evidence against such person provided the confession is proved to have been freely and voluntarily made by such person in his sound and sober senses and without having been unduly influenced thereto.
10. This principle is equally relevant to the employment arena. It was one of applicants’ complaints that the 1st respondent relied in dismissing them on statements obtained from the Police which were exacted by duress without conducting its own independent investigations. It is common cause that the applicants not only confessed before the Police but during the disciplinary enquiry. One wonders why they had to confess when there were no police to torture them as alleged. It was also not shown that the employer solely relied on Police investigations to find the applicants guilty of dishonesty.
11. Besides their plea of guilty, they were seriously implicated by the evidence of Thakane Tsunyane, Mike Mothepu and `Malibuseng Makibi. This evidence was never challenged by the applicants. It even emerged that `Mateboho Shale, their Shop Steward, had warned them against continuing to perpetrate the theft. This evidence was also not controverted by the applicants. All in all, there was sufficient evidence to link the applicants to the alleged act of misconduct. They clearly acted in concert in committing the alleged theft, confessed thereto, and some unfortunately turned 1st respondent’s witnesses.
DECISION UNSUPPORTED BY EVIDENCE
12. It is trite that it is irregular for a decision-maker to make a decision that is not supported by evidence - see Standard Bank of Bophuthatswana Ltd v Reynolds NO and Others 1995 (3) SA 74 B.G which was cited with approval in `Mabatho Tenene v Checkout Supermarket (Pty) Ltd LC/REV/17/10 (reported in Lesotholii). In the latter case the applicant had complained firstly, that in reaching his decision, the learned Arbitrator had relied on a confession the applicant had purportedly made without such a confession having been tendered as evidence before the DDPR, and secondly, that the learned Arbitrator ignored the fact that the said confession was made under duress. The Court found that the learned Arbitrator had not based his finding on the confession but had properly analysed the viva voc`e evidence that was tendered before him. The Court found the decision to have been supported by sufficient evidence.
13. In casu, the 1st respondent invoked two processes in the investigation of the alleged theft. As it is, it initially engaged the Police to investigate the alleged theft, and subsequently held a disciplinary enquiry. These are two distinct processes. The State has a duty to prevent crime, to investigate suspected criminal activities and to bring perpetrators of crime to book. This differs from a disciplinary hearing which is an internal enquiry and, as rightly observed by the 1st respondent’s representative, is investigative in nature.
14. The torture they are complaining about is that allegedly inflicted on them by Police, and not during disciplinary enquiries. Confessions exacted by torture are not admissible, and in the criminal setting, the applicants have recourse to other Courts of law and not the Labour Court whose jurisdiction is confined to resolution of disputes between employers and employees. In our view, the 1st respondent did not solely rely on applicants’ statements before the Police in finding them guilty of the alleged theft of circuit breakers. Assuming, without conceding that Mofokeng threatened them as alleged that if they did not agree to the statements he would call in the Police to torture them, there, however, appears to be a lot of incriminating evidence against them. Indeed, if the employer had relied on police investigations, it would not be proper but here evidence was led from both sides.
PLEA OF GUILTY
15. Applicants’ Counsel argued further that it was irregular for the 1st respondent to have not warned the applicants of the repercussions of a plea of guilty before it could admit it in evidence. We wish to point out that these were disciplinary proceedings and not criminal proceedings. Disciplinary proceedings are more of an enquiry and should not under any circumstances be equated with criminal proceedings. This was rightly observed by my late brother Lethobane P., in National Union of Retail & Allied Workers v Pep Stores LC 25/98 at p. 3 (reported in Lesotholii).There was therefore no obligation on the part of the 1st respondent to caution the applicants about their plea of guilty.
DETERMINATION
16. Having read papers filed of record and heard both parties’ submissions, the Court comes to the following conclusion that:-
THUS DONE AND DATED AT MASERU THIS 26TH DAY OF FEBRUARY, 2015
F.M KHABO
PRESIDENT OF THE LABOUR COURT (a.i)
P. LEBITSA I CONCUR
ASSESSOR
L. RAMASHAMOLE I CONCUR
FOR THE APPLICANTS: ADV., M.J RAMPAI - PHOOFOLO CHAMBERS
FOR THE 1st RESPONDENT: MR M.J MOTLERE - LESOTHO PRIVATE SECTOR EMPLOYERS’ ASSOCIATION
