Woolworths (Pty) Ltd v Mathews and Others (JA62/98) [1999] ZALAC 34 (24 June 1999)

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[1999] ZALAC 34
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Woolworths (Pty) Ltd v Mathews and Others (JA62/98) [1999] ZALAC 34 (24 June 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
Held at Johannesburg
Appeal case no.:JA 62/98
In the matter between:
Woolworths
(Pty) Ltd
Appellant
and
Maria
Mathews
First Respondent
The
Commission for Conciliation,
Mediation
and Arbitration
Second
Respondent
Advocate
Hutchinson
Third Respondent
___________________________________________________________________________
Judgment
___________________________________________________________________________
Ngcobo AJP
[1] Ms
Maria Matthews, first respondent herein, was dismissed by the
appellant, Woolworths (Pty) Ltd, following a disciplinary enquiry
and
an unsuccessful internal appeal. Her dismissal followed upon the
discovery of a cash shortage in the amount of R5000 at appellant’s
Market Street store in Cape Town, where the first respondent was
employed as the trainee department manager. She subsequently referred
the dispute to the Commission for Conciliation, Mediation and
Arbitration, the second respondent herein. When conciliation failed,
the dispute was arbitrated by the third respondent, who found that
the dismissal was fair. The award of the third respondent was
subsequently reviewed and set aside by Landman J. With leave having
been granted by Landman J, the appellant now appeals to this
Court.
[2] The
standard of review of awards of commissioners is set out in
Carephone (Pty) Ltd v Marcus NO and
others
[1998] (11) BLLR 1093
(LAC)
at 1103 B - C. The reviewing court must ask itself whether there is:
”a rational objective basis justifying the
connection made by the administrative decision maker between the
material properly available
to him and the conclusion he or she
eventually arrived at?”
The essential enquiry is whether the award can
be supported by the facts properly before the commissioner and the
applicable law.
If the award is so supported, it is impermissible to
interfere with the award.
[3] In determining
whether the award is supported by the facts and the applicable law,
it is not helpful to consider only the reasons
advanced for the
award, and if they are not convincing or compelling, to conclude that
interference with the award is warranted.
While the reasons advanced
in support of the award may be an indication of whether the
commissioner has applied his or her mind to
the facts before him or
her, they are not decisive. The duty of the reviewing court is to
consider the facts properly before the
commissioner and to ask itself
whether they sustain the award.
[4] In
Carephone
,
supra, the court accepted that in determining whether the award can
be sustained on the facts, the reviewing court will have to
be make
value judgements which will “ almost inevitably, involve the
considerations of the merits of the matter in some way or
another”.
However in doing so, the reviewing court ought to bear in mind that
it is doing so not to substitute its own opinions
on the correctness
of the result but to determine whether the outcome is rationally
justifiable.
Carephone (Pty) Ltd v
Marcus No and others
, supra,
paragraph 36 at 1102.
[5] Although the
commissioner, in this case, kept no record of the proceedings, a
practice which is undesirable, the facts necessary
to decide this
appeal emerge from the papers in the review proceedings. It is true,
there were factual issues, however, the essential
facts are largely
common cause.
[6] On 3 April 1997 the
first respondent withdrew a sum of R18.510,00 from a cashier. This
amount was intended for use as a cash float
in the store. She counted
the money and recorded it on a cash collection and banking work
sheet. This amount was thereafter placed
in a cash bag and sealed.
When the first respondent went on lunch, she handed the bag to Mr
Abel Rambau, her subordinate in the cash
office department. Later
that afternoon when Rambau handed over the cash float back to the
first respondent, he indicated that the
amount of cash float was
R13.510,00. The first respondent and Rambau signed the float count
sheet, which reflected the figure of
R13.510,00 instead of
R18.510,00. The figure recorded on the float count sheet was
R5.000,00 less than the amount the first respondent
had withdrawn
from the till. The first respondent did not enquire from Rambau as to
the reason for the discrepancy between the amount
of R18.500,00 which
she had given to him and the amount of R13.510,00 handed back to her
by Rambau.
[7] Later on when the
first respondent was reconciling her books, she could not find the
balance brought forward book, that is, the
cash transit book. The
practice followed at the appellant’s to determine the correct
balance brought forward figure in the event
the cash transit book
went missing was either to telephone Fidelity Guards to establish the
figure or to calculate the correct figure
by working back to that
figure. According to her she chose the latter method and determined
that the balance brought forward was
a sum of R26.676,00. Using this
figure, the difference between the float on hand and the float per
cash analysis was only eighty
two cents, an insignificant amount.
[8] On 4 April 1997 the
first respondent reported to Mr Govender, her supervisor, that the
balance brought forward book was missing.
According to Govender the
first respondent did not report to him that the cash float figures
may be incorrect or that there may be
a shortfall. On 11 April 1997
the balance brought forward book was discovered. On the same day the
first respondent reported to Govender
that she was unable to balance
her cash float. Upon investigation, it was determined that there was
a shortfall of R5.000,00. It
is common cause that that shortfall
reflected the difference between the sum of R18.510,00 withdrawn from
the till by the first respondent
and the amount of R13.510,00
reflected on the float count sheet.
[9] Both the
commissioner and Landman J found that the first respondent was
negligent in executing her duties. However, the commissioner
went
further and found that the first respondent “created her own false
balance” to balance her cash float. Landman J criticised
this
finding on the basis that it was not supported by the facts. The
question which arises, therefore, is whether the finding by
the
commissioner that the first respondent “created her own false
balance” is borne out by the facts.
[10] The finding by the
commissioner that the first respondent “created her own false
balance” is nothing more than an inference
which the commissioner
drew on the facts. The test for reviewing the inferences drawn by the
commissioner is no different from the
test for reviewing any finding
by the commissioner. When reviewing the inferences drawn by the
commissioner, the proper approach
is to determine whether the
inference drawn may reasonably be drawn from the facts properly
before the commissioner. The enquiry,
in my view, is not whether the
inference drawn is the right one or whether a different inference
would be better supported by the
facts.. It is sufficient if the
inference drawn is supported by the facts and is not inconsistent
with the law.
[11] The first
respondent made two fundamental errors, namely, she entered an
incorrect balance brought forward and an incorrect cash
float. She
did this in circumstances where she could easily have determined the
correct figures. She could easily have determined
the balance brought
forward by making a telephone call to the Fidelity Guards Company.
She allegedly chose not to do so. Instead
she chose to use the method
of calculating backwards in order to determine the balance brought
forward. Having done so she arrived
at an incorrect figure of
R26.676,00. There is no explanation as to how she arrived at this
figure. What is even more puzzling is
how, using an incorrect figure
of the balance brought forward, the first respondent could have
arrived at a figure which was R5000,00
more to balance out the
R5000,00 shortage in the cash float count.
[12] It was common
cause that the first respondent could easily have determined the
correct balance brought forward. There were documents
available to
her from which she could work in order to determine the correct
balance brought forward. It was not in dispute that
had the first
respondent performed the exercise which she claimed to have performed
correctly she would have realised there was a
shortage of R5000,00.
The first respondent did not suggest that she had made any error in
her calculation. In any event even if she
had made such an error, it
is highly unlikely that the error would have been exactly R5000,00
more to balance out the R5000,00 shortage
in the cash count.
[13] In these
circumstances the inference that the first respondent created a false
balance in order to balance out her books is not
unreasonable. It is
justified on the evidence.
[14] Even if it can be
accepted in favour of the first respondent that she did not
deliberately create the false balance brought forward,
she was
nevertheless grossly negligent in making the two fundamental errors.
She knew that earlier on she had withdrawn a sum of
R18.510,00 and
yet she reflected an amount of R13.510,00 on the float count sheet.
She entered the incorrect balance brought forward
figure in
circumstances where with comparative ease she could have established
the correct balance brought forward figure. As a result
of her
negligence the shortage of R5000,00 could not be detected timeously.
She was employed to handle cash for the appellant. She
held a
position of trust. In these circumstances, I am unable to hold that
the commissioner acted irregularly when he upheld the
dismissal of
the first respondent. In all the circumstances interference with the
award made by the commissioner was not warranted.
[15] In the event the
following order is made:
The appeal is upheld with costs, which costs
are to include the costs of the application for leave to appeal;
The order of the court a quo is set aside and
is replaced by the following order: “The application is dismissed
with costs”.
____________________
Ngcobo AJP
I agree
____________________
Conradie JA
I agree
____________________
Nicholson JA
Date of hearing: 2 June
1999
Date of judgment: 24
June 1999
Appearances:
For
appellants: A.E. Franklin
Instructed
by: Perrott, Van Niekerk and Woodhouse
For respondent: Mr
Zondi of Chennels Albertyn & Tanner