Pep Stores v SACCAWU (JA105/97) [1998] ZALAC 5 (2 June 1998)

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[1998] ZALAC 5
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Pep Stores v SACCAWU (JA105/97) [1998] ZALAC 5 (2 June 1998)

16
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JA
105/97
In the matter between:
PEP STORES (PTY) LTD (SILVERTON)
Appellant
AND
SOUTH AFRICAN COMMERCIAL CATERING
AND ALLIED WORKERS UNION
First Respondent
R SEKWATI
Second Respondent
JUDGMENT
Nicholson JA
The parties
[1] The parties in this matter are Pep Stores
(Pty) Ltd (Silverton), the appellant, South African Commercial
Catering and Allied
Workers Union (‘the union’), the first
respondent and R Sekwati, the second respondent. The appellant
operates a retail business
and is involved in the selling of
merchandise, including clothing. The second respondent is a member
of the union. The second
respondent was employed by the appellant
in 1989 as a shop assistant. Her duties included helping customers,
opening boxes, cleaning
the floor and operating the tills.
[2] At a disciplinary hearing held on 4 March
1996 the second respondent was charged with two offences; gross
negligence, consisting
of having rung up goods on a till on 26
January 1996 at a cheaper price than marked on the price tag, i.e.
under-ringing on the
till. The second charge related to giving goods
to a client on 30 January 1996 which were not rung up on the till.
She was found
guilty on both counts and was dismissed by the
appellant on 11 March 1996. An appeal hearing took place on 2 April
1996 and due
to “the nature and complexity of the case” the
chairman of the appeal hearing ordered a re-hearing. On 18 April
1996 the union
rejected the right to a re-hearing.
Industrial court hearing
[3] The second respondent then instituted
proceedings in the industrial court. That court made a
determination, in terms of section
46(9) of the Labour Relations
Act, no 28 of 1956, that second respondent had been unfairly
dismissed, both procedurally and substantively.
The court
re-instated her in the employ of the appellant and ordered that she
be paid six months wages. The appellant was represented
by Mr
Beaton, both in the industrial court and in this court. The
respondent was represented by Miss Mamabolo in the industrial
court
and by Mr van Graan in this court.
Procedural unfairness
[4] The second respondent, who gave evidence
first in the industrial court, made no mention of any procedural
irregularity, nor
was any cross-examination directed at that aspect.
The evidence of Ms Boikanyo, the only other witness called by second
respondent,
also contained no mention of procedural unfairness. The
first mention of procedural unfairness arose during the
cross-examination,
by Miss Mamabolo, of Mr Erasmus, who testified on
behalf of the appellant. Miss Mamabolo put to Erasmus that the
refusal by the
chairman to grant second respondent time to prepare
her case was procedurally unfair. Mr Beaton objected to this
questioning on
the basis that the case was being fought on
substantive unfairness alone. His objection was overruled. There was
further cross-examination
on the fact that the proceedings at the
disciplinary enquiry were recorded in Afrikaans, despite being
conducted in English.
[5] With regard to the issue of procedural
fairness, appellant submitted in this court that this was not
alleged by respondent in
her statement of case. In her opening
address Miss Mamabolo indicated that only the substantive part of
the dismissal would be
contested. By this I understand her to be
excluding any procedural unfairness. The appellant further submitted
that as a result
of this it would be improper for the court to give
relief to the respondent on the basis of procedural unfairness. See
Yskor Bpk v Meyer 1995 (16) ILJ 864 at 875 (LAC)
and
Sentraal Wes (Kooperatief) Bpk v Food & Allied Workers Union &
Others 1990 (11) ILJ 977 (LAC)
.
[6] In the
Sentraal-Wes
case at page 991
E-F the court found that an issue which was not pleaded can be taken
into account providing that such issue was
fully canvassed at the
trial.
[7] The industrial court was of the opinion
that, even though the issue of procedural unfairness was not
specifically pleaded,
the issue was traversed in the disciplinary
hearing, the appeal hearing and at the industrial court hearing.
[8] I am of view that the industrial court was
clearly wrong in overruling the objection to the cross-examination
on procedural
unfairness and in finding for the second respondent on
this ground. As second respondent and Ms Boikanyo gave no evidence
it is
impossible to ascertain what the true nature of the procedural
unfairness was and whether there was any prejudice to second
respondent.The
nature of the procedural unfairness; namely, the
failure to grant a postponement and the recording of the proceedings
in Afrikaans,
when they were conducted in English, are both matters
which would require evidence as to the consequences or prejudice
suffered
by second respondent. It would be manifestly unjust to the
appellant to even consider the question of procedural unfairness
when
it was not foreshadowed in the pleadings and had been expressly
abandoned in the opening address by Miss Mamabolo. Furthermore no
attention had been given by the appellant to this issue in the
preparation of its case. It follows that the only consideration
in
this appeal is whether the industrial court was correct in deciding
that there was substantive unfairness and granting reinstatment.
Substantive unfairness
[9] The appellant’s case depended entirely
on the evidence provided by a video which had been installed without
the knowledge
of the second respondent. The video was shown at the
disciplinary hearing and to the industrial court. What emerges from
the video
tape is that the second respondent was operating a till on
26 January 1996. A customer approached her holding a school shirt,
the
value of which was at least R9.99. Second respondent rang R 1.99
on the till which resulted in what was termed ‘under-ringing’.

This was proved by production of the relevant till slip. There is a
time difference of 5 minutes between the time on the video
and the
time on the till slip. The evidence proved conclusively, however,
that the two records related to the incidents in question.
[10] The video provided the evidence of the
second count which took place on 30 January. It emerges that a
customer brought clothing
to second respondent which the latter did
not process through the till i.e. the customer did not tender any
form of payment.
[11] The second respondent testified as did her
shop steward Boikanyo. With regard to the first charge
(under-ringing) the industrial
court found that deliberate
under-ringing or possible theft was not proved. The court found
that second respondent and Boikanyo
were evasive witnesses and had
contradicted themselves in their evidence. I am of the view that
these strictures were justified.
Both these witnesses were very
uncomfortable when dealing with evidence as to their understanding
of what constituted under-ringing
and also as to whether training
took place.
[12] The till slip and the video provide
unimpeachable evidence that under-ringing did take place. The
question remains whether
such under-ringing was deliberate or
unintentional. The industrial court found that there was no evidence
that a balance was struck
at the end of the day or that there was a
cash surplus at the till. These findings were not challenged before
us. As a result
thereof the court could not say on a balance of
probabilities that the respondent made a deliberate underringing.
[13] Mr Beaton submitted that it had never been
the second respondent’s case that she had made a bona fide error.
She made no
mention of such error at the disciplinary hearing and
her evidence at the industrial court was that she rang up a shirt
which cost
R19.99. The till slips revealed quite clearly that she
could not be correct in so alleging as the only transaction relating
to
the sum of R19.99 related to two items.
[14] The second respondent, despite much
prevarication, did concede that she knew what under-ringing was and
that "the employer
regards persons who do it as a crook".
Erasmus testified that under-ringing is regarded as a serious
offence which warrants
dismissal. He suggested that the end result
of under-ringing is that there is a surplus in the till which is
pocketed by the employee.
When there is shrinkage in a store,
under-ringing is often the cause. Mr Beaton therefore submitted that
it follows that this offence,
even if not done deliberately, carried
with it the penalty of dismissal and that this was known to the
second respondent.
[15] That deliberate under-ringing with the
object of later pocketing the excess in the till is a serious
offence warranting dismissal,
admits of little debate. In proving
such misconduct the employer would be required to prove the
underringing, coupled with the
misappropriation for own benefit,
either by direct or indirect evidence. On the other hand few would
quibble with the principle
that a mistaken under-ringing with no
such intent should not warrant dismissal. The very act of striking
the keys of a till is
a motor skill which is subject to error. If
the correct price of the goods in this matter was indeed R19.99,
then the ringing up
of the amount of R1.99 omits one digit, a nine,
and places the decimal point in the wrong place. This error could
easily have arisen
from faulty striking of the keys on the cash
register. To make erroneous under-ringing, without any dishonest
misappropriation,
a dismissable offence seems to me to be an unfair
labour practice.
[16] The appellant’s case is that the most
plausible inference is that an intentional under-ringing was
committed. In the absence
of proof of any appropriation of the
proceeds to second respondent such inference is difficult to draw.
There is nothing revealed
in the video which justifies such an
inference nor does a rejection of second respondent’s evidence
necessarily implicate her
in a deliberate act. I therefore conclude
that a deliberate underringing was not proved. It was clear,
however, that second respondent
negligently under-rang goods.
[17] In regard to the gross negligence charge
(the exchange) the industrial court found that the respondent’s
evidence and that
of her witness Boikanyo was evasive and that the
two contradicted each other. The court went on to state, however,
that, in the
absence of evidence contradicting that of the second
respondent, the court could not say on a balance of probabilities
that she
committed the offence.
[18] The appellant submitted that the conduct of
giving the items to the customer was clearly established on the
video. The appellant
submitted that this transaction was not an
exchange because the second respondent remembered everything about
it except the one
vital link in the chain, that was, the identity of
the member of staff who told her to do it. The evidence revealed, so
the argument
ran, that there were only four employees, plus possibly
a temporary worker on weekends, and this incident occurred on 26
January
1996, which was a Friday. The second respondent ought to
have remembered this employee and the failure to do so does her no
credit.
[19] Furthermore, second respondent's evidence
at the disciplinary hearing differed from her evidence in the
industrial court, as
her testimony in the former tribunal was that
"it might have been an exchange". The second respondent
was first shown
the video at her disciplinary hearing some 6 weeks
later. This probably accounts for her explanation. It is probable
that she dealt
with upwards of 50 customers a day and it would be
surprising if she remembered each and every one of them. It is
correct that
she had difficulties under cross-examination, more
especially dealing with the timing of her conversation revealed on
the video.
Intially, prompted no doubt by the video, she maintained
that the conversation took place before the customer left and
related
to checking that a genuine exchange had taken place. She
then changed this evidence to reveal that the conversation took
place
after the customer had left the till. This latter version was
clearly false, given what was recorded on the video.
[20] My assessment of her behaviour on the video
is that it is more consistent with innocence than guilt. There is an
absence of
furtiveness which might have been expected were she
involved in defrauding the appellant. While it is not entirely clear
that she
is seeking confirmation that an exchange has taken place, I
have difficulty excluding such a possibility. What is manifest is
that
she did not have the branch manager’s approval for permitting
such an exchange. Although she initially denied in her evidence
that
approval was necessary, she was constrained under cross-examination
to concede that approval was required when the exchange
involved
reimbursement of money to the customer. Her denial is contradicted
by paragraph 5.3 of her application where she states
that the normal
practice is for approval from the manageress. In her disciplinary
enquiry she also said “[Ek] is nie seker of
dit ’n omruil is
nie. As dit was sou [ek] na JB gegaan het”. I am of the view that
she knew that approval was necessary from
a branch manager. She was
therefore clearly guilty of negligence in connection with her
duties. We were informed from the bar by
Mr Beaton that the
disciplinary code provides for such an infraction.
[21] I am of the view that the industrial court
erred in finding that second respondent did not commit the
misconduct complained
of. She was guilty of negligence in connection
with her duties in regard to both counts. Taken together for the
purposes of sanction
I believe that a final written warning, valid
for six months, would have been the appropriate punishment.
[22] The appellant has been partially successful
in this appeal. The result does not effect the reinstatment order
made by the industrial
court. The fairest order in my view is that
there should be no order as to the costs of the appeal.
[23] The order of the industrial court is set
aside. There is substituted the following order:
“
(a) The dismissal of the second applicant by
respondent on 11 March 1996 was substantively unfair;
(b) The second applicant is reinstated in her
former position, provided that,
(i) her disciplinary record reflects the offence
of negligence in connection with her duties,
(ii) a final written warning is imposed for the
offence for the purposes of sanction.
(c) The order set out in (b) above shall be
retrospective for a period of six months prior to 13 October 1997.
The amount payable
to the second applicant in terms of this
sub-paragraph is R 7 800.
(d) There shall be no order as to costs.”
[24] There shall be no order as to the costs of
appeal.
[25] The final written warning referred to in
paragraph 23(b)(ii) is valid for six months from the date of this
judgment.
[26] The second respondent shall present herself
for duty on or before 8 June 1998.
Nicholson J
I agree
Myburgh J P
I agree
Froneman D J P
Date of Hearing :27 May 1998
Date of Judgment :2 June 1998
Counsel for Appellant :R G Beaton
instructed by Rooth and Wessels
Counsel for Respondent :Van Graan instructed
by Lephoko Attorneys