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[2020] ZALAC 39
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Pick n Pay Retailers (Pty) Ltd v Maluleke and Others (JA26/2019) [2020] ZALAC 39; [2020] 12 BLLR 1229 (LAC) (7 September 2020)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
No: JA26/2019
In
the matter between:
PICK
‘N PAY RETAILERS (PTY) LTD
Appellant
And
JAMAFO
OBO YOLISWA MALULEKE
First Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
KHOMOTJO
DANIEL MATJI N.O.
Third respondent
Heard:
19 May 2020
Delivered:
07 September 2020
Summary:
Dismissal for misconduct – the employee flouting company
procedures relating to refunds, returns, exchange, and gifts
- CCMA
finding - dismissal substantively and procedurally fair.
The
Labour Court – finding - dismissal unfair due to the employee’s
long period of service.
On
Appeal – the LAC- restating the test applicable to the review
of the CCMA awards- finding that award fell within the bounds
of
reasonableness - accordingly -the appeal is upheld.
Coram:
Phatshoane ADJP, Davis JA and Murphy AJA
Judgment
PHATSHOANE
ADJP
[1]
This is an appeal by Pick ‘n Pay Retailers (Pty)Ltd, with leave
of this Court,
against the whole of the judgment and order of the
Labour Court (
per
Gush J), handed down on 07 December 2017,
reviewing and setting aside the arbitration award issued on 12 July
2014 by the Commission
for Conciliation Mediation and Arbitration
(“CCMA”), the second respondent, under Case No:
GATW1640-14 and remitting
the matter to the CCMA for a hearing afresh
before a commissioner other than Mr KD Matji, the third respondent
(“the commissioner”).
[2]
The Notice of appeal
was filed 42 days
outside the time limit specified in the Rules of this Court due to
what the appellant says was “the misinterpretation
of the Rules
and the process to follow”. Even though the procedural
oversight is inexcusable, upon discovery of its error,
the appellant
promptly filed the Notice of appeal. Good prospects of success are
extant and this should compensate for the delay.
I can conceive of no
prejudice in granting condonation and it is so ordered.
[3]
Ms Yoliswa Euphemia Maluleke commenced employment with Pick ‘n
Pay on 02 June
1992. She was promoted to the position of an E-service
manager at Pick ‘n Pay Gezina Store on 01 November 2010. This
position
required Ms Maluleke to operate a till and to train other
cashiers on the company policies and procedures including those
relating
to refunds, returns, exchange, and gifts.
[4]
On 07 January 2014, Ms Alleta Magrieta Erasmus, an elderly
longstanding customer of
Pick ‘n Pay, did some grocery shopping
at Gezina Store in the course of which she purchased and presented
three boxes of
milk chocolates valued at R103.98 as gifts to Ms
Maluleke and Mr Saul Maphanga (“Mr Maphanga”), also an
employee of
Pick ‘n Pay who held the position of general
merchandise supervisor. According to Mr Lesiba Elias Masipa (“Mr
Masipa”),
the store manager at Pick ‘n Pay Gezina, goods
purchased by customers for employees in this fashion ought to be
declared.
It did not happen.
[5]
Following Ms Erasmus’s departure Ms Maluleke processed a refund
of the boxes
of chocolates by completing the return/refund book
[1]
in which she identified Mr Maphanga as the customer. She also
processed the refund on her till without authorisation by the store
manager. Mr Masipa says in terms of Pick ‘n Pay Policy Ms
Maluleke was supposed to have called him, prior to processing the
refund, to attach his signature because the items were worth more
than R50.00. The converse occurred. She called Mr Masipa
ex
post facto
,
around
16h50, through the intercom requesting him to authorise the already
processed refund. Mr Masipa enquired where the customer
was, when Ms
Maluleke pointed at Mr Maphanga, Mr Masipa refused to authorise the
transaction because the refund was done contrary
to the policy. In
addition, he was not informed of any items that needed to be returned
on that day. Furthermore, the items were
not purchased by the two
employees but by a Pick ‘n Pay customer which precluded them
from returning the articles.
[6]
Faced with this dilemma, Ms Maluleke cancelled the refund slip and
thereafter rang
back the chocolates thereby reversing the
transaction.
Mr Abram Sehlola, the floor
manager at Pick ‘n Pay Gezina, testified that the reversal
transaction was illicit because Ms
Maluleke attempted to cover up her
misdeeds.
To do this, she used the
password of another cashier, Ms Frieda Manyala, which act is also
prohibited in terms of Pick ‘n
Pay policies. Following this
event, Mr
Maphanga took the three boxes of
chocolates, the refunds book, and three slips to Masipa and requested
him to sign the slips. Masipa
ordered him to leave everything with
him for further investigation.
[7]
On 08 January 2014, Ms Maluleke was issued with a charge sheet which
captured four
counts of misconduct as follows:
7.1
she contravened the company rules by accepting three boxes of milk
chocolates from a customer
without declaring the gifts;
7.2
she attempted to defraud the company in that she tried to return the
gift she received from
the customer;
7.3
she contravened the company procedure by performing a return on her
till without authorisation
from senior management; and lastly
7.4
she breached till procedures in that she performed fraudulent
transactions on her till.
[8]
It was contended for Pick ‘n Pay that these transgressions by
Ms Maluleke were
highly irregular and led to the irretrievable
breakdown in the relationship of trust between the employer and the
employee.
[9]
In her defence
Ms Maluleke testified that
her intention was not to siphon money from Pick ‘n Pay’s
coffers but merely planned to exchange
the boxes of chocolates for
tissue papers whereas Mr Maphanga wanted to swap his gift for a sack
of Maize Meal. Ms Maluleke disputed
having breached or contravened
till procedures. She used another supervisor’s password to
reverse the transaction and intimated
that employees including
supervisors and store managers exchange passwords albeit this is not
a general practice at Pick ‘n
Pay national but a common
practice at Pick ‘n Pay Gezina. She says she requested Mr
Maphanga to ask Ms Frieda Manyala for
her password which she
voluntarily shared.
[10]
On 04 February 2014, pursuant to a disciplinary hearing,
Mr
Brian Knopf, the chairperson of the enquiry,
acquitted
Ms Maluleke on Count 1 (receipt of gifts from a customer without
declaring them) but found her guilty on the other three
charges and
dismissed her from the services of Pick ‘n Pay. Ms Maluleke
filed an unfair dismissal dispute with the CCMA which
went through
the process of conciliation on 20 February 2014 and ultimately the
arbitration before the commissioner.
[11]
In his arbitration award, the commissioner summarised the evidence
led by parties and the applicable
legal principles,
inter alia:
that the onus reposed on the employer to prove that the dismissal was
fair both substantively and procedurally. The commissioner
found that
Ms Maluleke did not deny the allegations that were made against her
but advanced a defence that it had been the practice
within the store
to do things as she described.
[12]
The commissioner rejected the entire evidence adduced on behalf of Ms
Maluleke as highly improbable
and unreliable. In his view, Ms
Maluleke committed fraudulent activities at her till. He held that
she was knowledgeable with the
company policies and procedures but
chose to ignore them and relied on general practices. He further
reasoned that Ms Maluleke
trained cashiers and had to ensure that
they implemented what they had learned. Ms Maluleke should therefore
never have been a
party to any practice that was inconsistent with
the policies and procedure of the company. The commissioner concluded
that she
contravened the workplace rules which she was aware of or
could reasonably be expected to have been aware of. The rules in
issue
were valid and reasonable. As a trainer she was supposed to
have been exemplary but she flouted the policies. In the
commissioner’s
view, the conclusion was inescapable that Pick
‘n Pay discharged the onus that the dismissal of Ms Maluleke
was for a fair
reason related to her conduct. He was of the view that
the gravity of the offences merited the termination of her services
and
found that her dismissal was both procedurally and substantively
fair.
[13]
The dismissal of Ms Maluleke’s claim by the CCMA led to the
launching of an application
to review and set aside the CCMA’s
award in the Labour Court on 12 September 2014 by Joint Affirmative
Management Forum Trade
Union (JAMAFO) on her behalf.
[14]
The Labour Court found it common cause that Ms Maluleke did not
comply with Pick ‘n Pay
rules on the handling of gifts.
However, the Court was of the view, that sight had been lost that Ms
Maluleke had been in the employ
of Pick ‘n Pay for some 24
years with a clean disciplinary record. The Court found that no
attempt had been made during the
disciplinary hearing and the
arbitration to consider Ms Maluleke’s personal circumstances,
her length of service, and untarnished
record. For the most part, the
focus had been on Pick ‘n Pay’s attitude towards its own
rules on refunds/returns, reversing
transactions, and the use of
passwords. The Court held that the misconduct with which Ms Maluleke
had been charged did not imply
that she was dishonest. The Court
found it remarkable that, while the commissioner said that Maluleke
had acknowledged her wrongdoing,
he went ahead and made certain
credibility findings against her.
[15]
The Court found it difficult to assess what the appropriate sanction
would be in the event it
set aside the dismissal because “
The
misconduct is clearly serious
”. The Court could not impose
a sanction such as a demotion absent evidence on the hierarchy or the
ranking of various employees
within Pick ‘n Pay. The Court
held, on the basis of the overall circumstances including the nature
of the misconduct, that
it might well have been appropriate for the
sanction to have included,
inter alia
, some form of training
or a demotion be it on a permanent basis or for a determinate period
of time. In the end, the Court reviewed
and set aside the arbitration
award and remitted the matter to the CCMA for arbitration hearing
de
novo
.
[16]
Stripped to its bare essential, the issue central to this appeal is
whether the Labour Court
properly applied the review test as set out
in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2]
and maintained the distinction between appeals and reviews in the
context of labour disputes. It is further contended for Pick
‘n
Pay that the Labour Court erred in the following respects:
16.1
in concluding that Ms Maluleke was not guilty of attempted fraud;
that her conduct was not dishonest and
merely amounted to breach of
Pick ‘n Pay policies;
16.2
by failing to appreciate that the commissioner was faced with two
mutually destructive versions and had to
make the necessary
credibility findings and the determine probabilities; lastly
16.3
by accentuating that the length of service negated the sanction of a
dismissal. In so holding, it was contended,
the Court conflated the
review and the appeal process.
JAMAFO
on behalf of Ms Maluleke is not opposing the appeal and abides the
decision of this Court.
[17]
During the arbitration process much was made on the issue whether Ms
Maluleke rendered herself
guilty of attempted fraud. In my view, that
is inconsequential because w
here
a disciplinary rule has been contravened and the employee knew
that such conduct could be subjected to discipline and
had not been
significantly prejudiced by the incorrect characterisation of the
offence, discipline commensurate to the offence
found to have
been committed may be imposed.
[3]
[18]
Fraud i
s
constituted by the unlawful and intentional making of a
misrepresentation which causes actual prejudice or which is
potentially
prejudicial to another.
[4]
In my view, t
here
were various elements of deceit on the manner in which the
return/refund transaction was carried out by Ms Maluleke which points
to her nefarious conduct. To demonstrate this:
18.1
She recorded the name of Mr Maphanga, her subordinate, as a customer
on the refund slip when she knew that
Mr Maphanga was not the
customer but a recipient of a gift just like herself.
When
asked why she failed to put both her and Maphanga’s names on
the refund slip she gave less than frank response.
18.2
A cashier is prohibited from serving herself by
performing any transaction of her own on her own till. She did
exactly what is proscribed.
18.3
The store manager intimated that under no circumstances can gifts be
exchanged for the monetary value they
were purchased for. Mr
Masipa
explained that
the customer brought money to the
store by paying for the items whereas the employee attempted to
purloin it for her own pocket.
18.4
Ms Maluleke was untruthful when she alleged that she intended to
exchange the items but
not to be refunded. This is so because
she
failed to disclose her intention to Mr Masipa. The most cogent
inference arising from her conduct is that she ran a refund so
as to
take cash in the place of the gifts as testified by Mr Masipa.
18.5
She did not dispute that she misrepresented to Mr Masipa that Mr
Maphanga was the customer.
When Mr Masipa shook
his head she then revealed that the customer (Ms Erasmus) purchased
the items.
18.6
When Mr Masipa refused to authorise the refund due to its suspicious
nature, Ms Maluleke
reversed the transaction on her till. The
evidence is to the effect that for a proper reversal,
she
needed a supervisor or manager to authorise the transaction. Instead,
contrary to Pick ‘n Pay policies, she used another
supervisor’s password to achieve this.
18.7
Ms Maluleke’s contention that
no
money was taken or a voucher issued by Pick ‘n Pay does not
advance her case because the refusal by the store manager to
authorise the transaction stopped her in her tracks.
[19]
The Court
a quo
questioned that the commissioner made
credibility findings against Ms Maluleke when the commissioner had
already mentioned that
she admitted the misconduct. This criticism
was unjustified because there were certain aspects of the evidence
which had not been
admitted and required factual resolution. To
undertake this form of exercise, the commissioner was bound to assess
the probabilities
and make credibility findings. Failure to do this
by the commissioner would have constituted a misdirection.
[20]
Ms Maluleke was less than frank in her account of the events of 07
January 2014. Her evidence
to the effect that she was permitted to
breach company rules was never put to any of Pick ‘n Pay’s
witnesses. Her mendacity
became patently obvious when she intimated
that everyone in the store, which would include the two senior
managers who testified
in this case, were also engaged in common
practices, an aspect she also never put to them. Mr Maphanga, her
only witness, also
fared badly. He claimed that in the course of the
dubious transaction, Ms Maluleke transferred her goods to him. In the
overall
his version smacked of a rehearsal of Ms Maluleke’s.
[21]
It was also unacceptable for Ms Maluleke to rely on general practices
which were contrary to
the policies and procedures of the store.
One such advanced practice was the exchange of
passwords among the employees. Ms Maluleke alleged that the reason
for this exchange
was to dispense with authorisations when the store
was busy. This claim does not hold water because during the afternoon
of 07
January 2014 the store was not busy. All witnesses called by
Pick ‘n Pay, whom I must add corroborated each other in
material
respects, disputed the existence of such practices.
[22]
A half-hearted attempt was also made at the CCMA and in the Court a
quo
to argue that Pick ‘n Pay was inconsistent in the
application of discipline. It was submitted that the evidence
demonstrated
that both Ms Maluleke and Mr Maphanga intended to
exchanged their gifts; that Mr Maphanga agreed to his name being used
as a customer
when the refund transaction was executed; that he was
at all relevant times at the scene; he also actively participated in
the
transaction. It was further contended that insofar as the
commissioner confirmed the dismissal of Ms Maluleke and the final
written
warning imposed on Mr Maphanga he acted irrationally.
[23]
The question of inconsistency in the application of discipline
can
be resolved with relative ease.
Ms
Maluleke was an E-service manager and well versed in till procedures.
She trained other employees and occupied a position of
trust which
differed materially from that of Mr Maphanga, her subordinate. Mr
Maphanga was not integrally aware of policies and
procedures
pertaining to refunds. He did not operate a till let alone play a
role in processing the refund in question. The t
wo employees’
cases are markedly incomparable. Therefore, there was a rational
basis for the differentiation.
[24]
As demonstrated, Ms Maluleke’s conduct was deceitful. The
Labour Court erred in holding
that she was not dishonest. In any
event, the union in its opening address during the arbitration placed
it on record that it did
not dispute “
that this purported
offence has been committed
”. It merely challenged that it
amounted to fraud and took issue with the appropriateness of the
sanction of dismissal imposed
on Ms Maluleke to which I now turn.
[25]
The Labour Court primarily focused its attention on Ms Maluleke’s
24 years of service and
her unblemished record to show that her
dismissal was unfair. This notwithstanding it
found
her misconduct to have been sufficiently serious not to warrant a
mere warning but some corrective action.
Ms Maluleke was no
ordinary employee. She admitted that she was entrusted with the
responsibility to train other cashiers on the
very policies and
procedures which she not only acted in flagrant disregard of but
flouted.
[26]
Ms Maluleke’s 24 years of service with Pick ‘n Pay,
albeit a weighty factor, must
be assed with other factors. The Court
should
strike a balance between the period of service; the
gravity of the misconduct and its impact on the employment
relationship. The
acts of misconduct committed in this case were
of
a serious nature. The dishonest acts, as testified to by Mr Masipa,
destroyed the relationship of trust. What makes Ms Maluleke’s
transgressions even more unpardonable is her failure to show some
contrition. Her persistence that she acted in terms of common
practices did to redound in her favour. The Labour Court did not have
regard to these pertinent factors which militated against
Ms
Maluleke’s continued employment with Pick ‘n Pay. I am
satisfied that the sanction of dismissal was not grossly
disproportionate to the
nature
and gravity of the misconduc
t. In
any event, the length of service, would not in all cases come to the
aid of an employee. This Court held in T
oyota
SA Motors (Pty) Ltd v Radebe & others
:
‘
Although
a long period of service of an employee will usually be a mitigating
factor where such employee is guilty of misconduct,
the point must be
made that there are certain acts of misconduct which are of such a
serious nature that no length of service can
save an employee who is
guilty of them from dismissal. To my mind one such clear act of
misconduct is gross dishonesty.’
[27]
The test
for the review of CCMA arbitration awards is whether 'the
decision reached by the commissioner is one that
a reasonable
decision-maker could not reach'.
[5]
In
the end, the question which the Labour Court had to grapple with was
whether the material before the commissioner justified his
conclusion
that the dismissal was substantively and procedurally fair. The
Labour Court did not make any finding on whether the
decision by the
commissioner was not one that a reasonable decision-maker could have
come to. The Court also perfunctorily dealt
with the reasoning by the
commissioner on the substantive fairness of the dismissal.
[28]
Based on the analysis above, it can hardly be argued that the award
made by the commissioner
fell outside the bounds of reasonableness.
Consequently, nothing merited the Labour Court’s interference
with the arbitration
award. It follows that the appeal should be
upheld. There is no basis for making any order as to costs.
In
the result, I make the following order.
Order
1.
The appeal is upheld with no order as to costs;
2.
The order of the Labour Court is set aside and
in its stead is
substituted the following:
“
1.
The review application is dismissed.
2.
No order is made as to costs
.”
_____________________
MV
Phatshoane ADJP
Davis
JA and Murphy AJA concur in the judgment of Phatshoane ADJP
APPEARANCES:
FOR
THE APPELLANT:
Adv ZM Navsa
Instructed
by Bowman Gilfillan Inc
[1]
A
book in respect of which all the goods returned by customers are
recorded. Thereafter the customers are refunded for items returned.
[2]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC)
;
(2007)
28
ILJ
2405
(CC)
.
[3]
See
P
A K le Roux & André
van
Niekerk:
The
SA Law of Unfair Dismissal
(Juta
& Co 1994) at 102.
[4]
See
S
v Gardener
2011
(1) SACR 570
(SCA)
par
29;
S
v Prinsloo and others
2016 (2) SACR 25
(SCA) at 65 para 174.
[5]
The
test
has
been authoritatively stated in
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC)
;
(2007)
28
ILJ
2405
(CC)
at 2439 para 110 and restated in several decisions of this Court,
inter
alia
,
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation & Arbitration & others
[2013]
ZALAC 28
;
(2014)
35
ILJ
943
(LAC)
[2007] ZALC 66
; ;
[2014] 1 BLLR 20
(LAC) at paras 14-16 and
Head
of Department of Education v Mofokeng & others
(2015)
36
ILJ
2802
(LAC)
and
the Supreme Court of Appeal
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
2013
(6) SA 224
(SCA)
;
(2013)
34
ILJ
2795
(SCA).