Mr Thabo Sono a father of 3 children, was employed by the Somnono Platinum mine in

December 2000 as part of the mine's security services. In January 2010, Mr Thabo was

transferred to the Redressing Section, where he was responsible for access control,

whereby he controlled the metals which were valuable and constituted the core business

of Somnono Platinum Mines. Thabo's main duty was to safeguard the precious metals of

the mine through detailed compulsory search procedures for all persons leaving the

section. His duties entailed an individual search of each person in a private cubicle

involving a close personal inspection plus a metal detector scan.

As a consequence of a decline in its production, the employer had over three days in April

2010, resorted to video surveillance at various points which revealed that of 24 specifically

monitored instances, Thabo had conducted only one search in accordance with the

established procedures.

On eight occasions Thabo had conducted no search at all and on 15 other searches he

allowed persons to sign the search register without conducting any search at all. The

employer charged Thabo with the following misconduct:

(1) Negligence by not following established procedures in terms of the Protection

Services Department search procedure. This caused prejudice or possible

prejudice to the Company in terms of production loss.

(2) Failure to follow established procedures in terms of the Protection Services

Department search procedures. Thabo was found guilty of negligence, not

following laid down procedures, and dishonesty by the employer and dismissed on

26 June 2010.

Mitigating factors were considered and Thabo's internal appeal were unsuccessful and

he then referred an unfair dismissal dispute to the CCMA

1. Using the Dominant Impression test, determine if the contract of employment

existed. Substantiate your answer.

2. According to the Basic Conditions of Employment Act (BCEA), what leave

provisions would Thabo qualify for?

3. Dealing with the disciplinary process, what procedure would you follow in ensuring

that the process is fair?

4. As the matter has been referred to CCMA, What should the person determining

whether dismissal in this case is the appropriate sanction, consider?