Shoprite Checkers (Pty) Ltd v Ramdaw NO and others (DA12/00) [2000] ZALAC 5 (5 April 2000)

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[2000] ZALAC 5
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Shoprite Checkers (Pty) Ltd v Ramdaw NO and others (DA12/00) [2000] ZALAC 5; 2001 (4) SA 1038 (LAC); [2001] 9 BLLR 1011 (LAC); (2001) 22 ILJ 1603 (LAC) (5 April 2000)

75
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT DURBAN)
CASE NO: DA12/00
In
the appeal between
SHOPRITE CHECKERS (PTY)LTD
APPELLANT
AND
A. RAMDAW N.O 1
ST
RESPONDENT
MAVIS ZIQUBU 2
ND
RESPONDENT
SOUTH AFRICAN COMMERCIAL
3
RD
RESPONDENT
CATERING AND ALLIED WORKERS UNION
JUDGEMENT
ZONDO JP
Introduction
[1]
The appellant brought an
application before the Labour Court for the reviewing and setting
aside of an arbitration award which had
been issued by the first
respondent under the auspices of the Commission For Conciliation,
Mediation and Arbitration (“
the CCMA
”) in a dispute
between, on the one hand, the appellant and, on the other, the
second and third respondents. The dispute was about
the fairness or
otherwise of the dismissal of the second respondent by the appellant
from its employment. The Labour Court dismissed
the application
with costs. It subsequently granted leave to appeal to this Court.
The appellant now appeals against that judgement.
Before I proceed
with this judgement, I take this opportunity to acknowledge the help
that, in deciding this matter, we have derived
from the arguments
presented by all Counsel who appeared before us. All their
arguments were of much benefit to us. In particular
this Court
wishes to express its sincere gratitude and appreciation to Mr K.
Tip SC and Mr A.T. Myburg both of whom appeared as
amici curiae at
the request of the Court. Their assistance was invaluable.
[2] There is another matter which I
would like to deal with at this stage. That is the fact that the
record of the arbitration proceedings
filed by the appellant or its
attorney in this matter is of a very poor quality. There are
numerous areas where one is not able
to understand exactly what a
particular witness was saying or what answers he or she gave to
certain questions. There are also
numerous areas where there was
either a break in recording or where the record reflects that what
was said was inaudible. This
will be apparent from the extracts that
are quoted later in this judgement. It appears from the appellant’s
replying affidavit
that this is because the recording device was
faulty. It is hoped that, in order to avoid the injustice that may
result from a
record of such poor quality as the one we have in this
case, the CCMA will take such steps as may be necessary to ensure
that,
when there are review applications in respect of arbitration
proceedings conducted under its auspices, it will be possible for

records of an acceptable quality to be provided to the Labour Court
in respect of such arbitration proceedings.
Legal issues
[3] This appeal raises the question
whether this Court’s decision in
Carephone (Pty) Ltd v Marcus
N.O and others (1998) 19 ILJ 1424 (LAC)
is still good law. The
question that this Court had to decide in that case was whether or
not an arbitration award issued by the
CCMA could only be reviewed
under the grounds of review provided for in sec 145 of the Labour
Relations Act, 1995 (Act NO 66 of
1995) (
“the Act”)
or
whether it could also be reviewed under sec 158(1)(g) of the Act in
which case any ground of review permissible in law could
be used.
That question had raised a great deal of controversy soon after the
Labour Court became operational. I do not propose
to give in this
judgement a detailed background to the controversy. This was done in
Carephone and in judgements of the Labour
Court referred to therein
as well as in the judgement of the Court a quo. It will suffice to
only make such reference to that background
as may be strictly
necessary for the proper understanding of this judgement. In this
regard it is necessary to quote the provisions
of s145 and s158(1)
(g) of the Act.
[4] Sec 145 provides as follows:.
“
145 Review of arbitration
awards
(1) Any party to a dispute who
alleges a defect in any arbitration proceedings under the auspices
of the Commission for Conciliation
Mediation and Arbitration may
apply to the Labour Court for an order setting aside the arbitration
award -
(a) within six weeks of the date
that the award was served on the applicant, unless the alleged
defect involves corruption; or
(b) if the alleged defect
involves corruption, within six weeks of the date that the applicant
discovers the corruption.
(2) A defect referred to in
subsection (1) means -
(a) that the commissioner
(I) committed misconduct in
relation to the duties of the commissioner as an arbitrator;
(ii) committed a gross
irregularity in the conduct of the arbitration proceedings; or
(iii) exceeded the commissioner’s
powers; or
(b) that an award has been
improperly obtained.
(3) The Labour Court may stay the
enforcement of the award pending its decision.
(4) If the award is set aside,
the Labour Court may -
(a) determine the dispute in the
manner it considers appropriate; or
(b) make any order it considers
appropriate about the procedures to be followed to determine the
dispute”.
[5] Sec 158(1)(g) of the Act
provides:
“
The Labour Court may -
............
(g) despite section 145, review
the performance or purported performance of any function provided
for in this Act or any act or
omission of any person or body in
terms of this Act on any grounds that are permissible in law.”
[6] It will have been seen above
that s 145 specifically refers to the review of CCMA awards and says
they may be reviewed on the
grounds there set out. When a CCMA
commissioner issues an arbitration award, that falls within the
ambit of the
“performance or purported performance of [a]
function provided for
” in the Act as contemplated by s 158(1)
(g) which, on the face of it, would mean that such an award could
also be reviewed under
s 158 (1) (g). If that were the position, s
145 would be rendered superfluous. That, of course, is a conclusion
which would not
be arrived at lightly.
[7] Prior to the decision of this
Court in Carephone, there was a view that it would be inconsistent
with the Constitution to hold
that a CCMA award could be reviewed
only on the grounds of review set out in s 145. Accordingly, so the
view went, the position
that had to be taken was one that would be
consistent with the Constitution. Such position was thought to be
one in terms of which
CCMA awards could be reviewed under both s 145
and s 158(1)(g). The one consideration which counted in favour of
the view that
s 145 was the only section under which CCMA awards
could be reviewed was that the grounds of review contained therein
are very
limited and this would enhance the expeditious resolution
of disputes which is one of the primary objects of the Act. This
would
come about because on that view the finality of arbitration
awards would be strengthened whereas the other view would encourage
appeals brought under the guise of reviews. That would operate
against the notion of the finality of such awards. Of course, those
who advocated the view that the review of CCMA awards was competent
under s 158(1)(g) also pointed out that another primary object
of
the Act was to give effect to the Bill of Rights in the Constitution
which contained the administrative justice provisions which,
so it
was argued, meant that such awards had to be justifiable in relation
to reasons given for them failing which they could be
set aside on
review on that ground alone.
[8] In Carephone this Court decided,
per Froneman DJP, with Myburg JP and Cameron JA concurring,
that
CCMA awards could only be reviewed under s 145 and not under s 158
(1)(g). It also held that the ground of review contained
in s
145(2)(a)(iii), namely, that a commissioner exceeded his powers,
incorporated the constitutional requirement that an administrative
action must be “
justifiable in relation to the reasons given
for it”.
This Court held that the issuing of an arbitration
award by a commissioner of the CCMA constituted an administrative
action as
contemplated in s 33 of the Constitution read with item 23
of schedule 6. It held further that the provisions of s 33 read with
those of item 23 introduced
“a requirement of rationality in
the merit or outcome of the administrative action”
which
included an arbitration award. With the decision of this Court in
Carephone, rightly or wrongly it was thought that the controversy
had been buried.
[9] In
Toyota SA Motors (Pty) Ltd
v Radebe & others (2000) 21 ILJ 340
(LAC) this Court
expressed misgivings about the correctness of the decision in
Carephone. This, together with the judgement of
the Constitutional
Court in
Fedsure Life Assurance v Greater Johannesburg
Transitional Metropolitan Council
[1998] ZACC 17
;
1999 (1) SA 374
(CC),
appears to have led the Court a quo to consider it necessary to
examine whether Carephone was still good law and still binding on
it.
The Court a quo came to the conclusion that the judgement
of the Constitutional Court in Fedsure was such as to have removed
the
very basis on which Carephone had been decided and that
Carephone was, therefore, no longer good law and, therefore, no
longer
binding on it.
[10] The Court a quo’s
conclusion that Carephone was no longer binding on it was based on
the conclusion which it reached that
the issuing of an arbitration
award by a CCMA commissioner did not constitute an administrative
action. In Carephone argument
had been presented to this Court that
the administrative justice
provisions of the Constitution did
not apply to the issuing by a CCMA commissioner of an arbitration
award in compulsory arbitration
proceedings under the Act because
that did not constitute an administrative action but was an act of a
judicial nature. The Court
rejected this argument. Froneman DJP
decried the need for the classification of actions into
administrative, judicial and quasi-
judicial actions and said:”[
i]t
would be ironic indeed if [those classifications] are reintroduced
at this stage of the development of our law to limit the
scope of
judicial review of administrative action.”
[11] In Carephone this Court gave
two reasons for its rejection of the contention that the issuing of
an arbitration award did not
constitute an administrative action but
a decision of a judicial nature. It classified the one reason as
constitutional,
the other as substantive. They are to be
found in paragraphs 18 and 19 of that judgement respectively. There
this Court said:-
”
18
The constitutional
answer to this submission is that although the commission or other
organs of state may perform functions of
a judicial nature they are
not courts of law and thus have no judicial authority under the
Constitution (ss 165, 166 and 239 of
the Constitution). Their
judicial functions do not transform them into part of the judicial
arm of the state, nor does it make
them part of the judicial process
(of Bernstein & others v Bester & others NO 1996(2) SA 751
(CC)
[1996] ZACC 2
; ;
1996 (4) BCLR 449
(CC) at paras 95-7).
19 The substantive answer to the
argument is to be found in the purpose of the administrative justice
section of the Bill of Rights.
That purpose is to extend the values
of accountability, responsiveness and openness to institutions of
public power which might
not previously have been subject to those
constraints. Courts of law were in any event always subject to the
kind of requirements
set out in the section. It would simply be
incongruous to free other public institutions exercising judicial
functions from those
constraints. It is not necessary to seek the
origins of those constraints in other provisions of the Bill of
Rights, such as the
access to justice provisions (s34).
Administrative action may take many forms, even if judicial in
nature, but the action remains
administrative. “
[12] The administrative justice
section which this Court had to deal with in Carephone was s 24 of
the interim Constitution. In
Fedsure the Constitutional Court also
had to deal with the same section. However, the provisions of s 33
read with those of item
23 of Schedule 6 to the Constitution are
materially similar to those of s 24 of the interim Constitution. In
Fedure the Constitutional
Court had to consider whether the passing
of resolutions relating to rates by a local council constituted
an administrative action
as contemplated in s 24 of the
interim Constitution.
[13] The Constitutional Court did
not in Fedsure give a definition of an administrative action.
Indeed, it could not have been expected
to do so with any degree of
precision. However, it did make the observation at 391 F-G that,
whilst it might not have served any
useful purpose under the
previous legal order to ask whether or not an action of a public
authority was administrative, under the
new constitutional order
that question had to be asked in order to give effect to the
provisions of s 24 of the interim Constitution
and has to be asked
in order to give effect to the provisions of s 33 read with item 23
of Schedule 6 of the final Constitution.
[14] I agree with the above approach
by the Constitutional Court. In par 18 of the judgement in Carephone
Froneman DJP does not
seem to have appreciated that the
administrative justice section could only apply if the action in
question was an administrative
action and that, because of this,
a court would have no choice but to have to satisfy itself that
such action was an administrative action before it could apply the
provisions of the administrative justice section to it. This means
that, however regrettable or even unpalatable it may be to have
to
classify actions according to whether they are administrative,
judicial or quasi-judicial, courts have no choice but to classify
actions according to such categories in certain circumstances under
the new constitutional order in order to give effect to certain
constitutional provisions.
[15] Subsequent to the judgements of
this Court in Carephone and Toyota, the Constitutional Court handed
down its judgement in
Pharmaceutical Manufacturers of SA: in re
Ex Parte President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC)
. On the basis
of that judgement Mr Gauntlett, who, together with Mr Wade, appeared
for the appellant, submitted that it was no
longer of any
consequence whether or not Froneman DJP was right in concluding that
the issuing of an arbitration award by a CCMA
commissioner
constituted an administrative action. He submitted that this was so
because the Constitutional Court decided in the
Pharmaceutical
Manufacturers’ case that, whenever public power was exercised, it
had to be exercised rationally and, if it was
exercised
irrationally, courts were entitled to intervene.
He
submitted that there could be no doubt that the CCMA exercised
public power when it issued arbitration awards in terms of its
compulsory arbitral functions.
[16] In the Pharmaceutical
Manufacturers’ case the President of the Republic had issued a
proclamation in the Government Gazette
bringing the South African
Medicines and Medical Devices Regulatory Authority Act, 1998 (Act No
132 of 1998) into operation in
circumstances where certain
regulations and schedules which required to have been promulgated
before the Act could come into operation
had not yet been
promulgated. As a result of the President’s decision to bring that
Act into operation in those circumstances,
the entire regulatory
structure relating to medicines and the control of medicines was
rendered unworkable. The first and foremost
question that the
Constitutional Court had to decide was whether a court had
power
to review and set aside a decision of the President of the Republic
bringing an Act of Parliament into operation. In that
case the
Constitutional Court decided that such a decision by the President
of the Republic could be reviewed by the courts. It
held that this
was so because such a decision constituted an exercise of public
power and all exercise of public power, it continued,
was subject to
control by the courts.
[17] In par 84 of the judgement in
the Pharmaceutical Manufacturer’s case, Chaskalson P, who wrote
the judgement for the Constitutional
Court, quoted with apparent
approval, a characterisation of the new constitutional order in our
country by Ackerman J in
S v Makwanyane
1995 (30 SA 391
(CC)
at par 156 as one
“where State action must be such that it is
capable of being analysed and justified.”
In that paragraph
Ackerman J also said that
“(t)he idea of the constitutional
State presupposes a system whose operation can be rationally tested
against or in terms of the
law.
” In paragraphs 85 and 86 of
his judgement in the Pharmaceutical Manufacturers’ case,
Chaskalson P had the following to say
which, I think, is
particularly important:-
“
85 It is a requirement of the
rule of law that the exercise of public power by the Executive and
other functionaries should not
be arbitrary. Decisions must be
rationally related to the purpose for which the power was given,
otherwise they are in effect arbitrary
and inconsistent with this
requirement. It follows that in order to pass constitutional
scrutiny the exercise of public power by
the Executive and other
functionaries must, at least, comply with this requirement. If it
does not, it falls short of the standards
demanded by our
Constitution for such action.
86 The question whether a
decision is rationally related to the purpose for which the power
was given calls for an objective enquiry.
Otherwise a decision that,
viewed objectively, is in fact irrational, might pass muster simply
because the person who took it mistakenly
and in good faith believed
it to be rational. Such a conclusion would place form above
substance and undermine an important constitutional
principle.”
[18] In the course of par 89 of his
judgement Chaskalson P also said:
“What the Constitution
requires is that public power vested in the Executive and other
functionaries be exercised in an objectively
rational manner.”
He
continued thus in par 90:
”
90 Rationality in this sense
is a minimum threshold requirement applicable to the exercise of all
public power by members of the
Executive and other functionaries.
Action that fails to pass this threshold is inconsistent with the
requirements of our Constitution
and therefore unlawful. The setting
of this standard does not mean that the Courts can or should
substitute their opinions as to
what is appropriate for the opinions
of those in whom the power has been vested. As long as the purpose
sought to be achieved by
the exercise of public power is within the
authority of the functionary, and as long as the functionary’s
decision, viewed objectively,
is rational, a Court cannot interfere
with the decision simply because it disagrees with it or considers
that the power was exercised
inappropriately. A decision that is
objectively irrational is likely to be made only rarely but, if this
does occur, a Court has
the power to intervene and set aside the
irrational decision.
”
[19] What is clear from the
judgement of the Constitutional Court is that:
(1) as long as a particular decision
is the result of an exercise of public power, such a decision can be
set aside by a court if
it is irrational;
(2) the bona fides of the person who
made the decision do not by themselves put such a person’s
decision beyond the scrutiny of
the Court;
(3) the rationality of a decision
made in the exercise of public power must be determined objectively;
(4) a court cannot interfere with a
decision simply because it disagrees with it or it considers that
the power was exercised inappropriately;
(5) a decision that is objectively
irrational is likely to be made only rarely;
decisions
[of the Executive and other functionaries] must be rationally
related to the purpose for which the power was given,
otherwise
they are in effect arbitrary and inconsistent with [the requirement
of the rule of law that the exercise of public
power by the
Executive and other functionaries should not be arbitrary].
[20] Having set out above part of what was made clear
by the Constitutional Court in the Pharmaceutical Manufacturers’
case about
the reviewability of decisions made in the exercise of
public power on grounds of irrationality, it seems to me that it
would also
be useful to have regard to what was made clear by this
Court in Carephone about the reviewability of CCMA awards on grounds
of
unjustifiability. In this regard this Court made it clear that:-
(a) the constitutional provision that administrative
action must be justifiable in relation to the reasons given for it
“
introduces a requirement of rationality in the merit or
outcome of the administrative decision - which goes beyond mere
procedural
impropriety as a ground for review or irrationality only
as evidence of procedural impropriety;”
(at par 31 at 1434);
(b)
“it would be wrong to read into the
administrative justice section an attempt to abolish the distinction
between review and appeal
” (par 32 at 1434);
(c)
“whether administrative action is justifiable
in terms of the reason
s
given for it, value judgements will
have to be made which will, almost inevitably, involve the
consideration of the merits of the
matter in some way or another
but, as long as the judge determining this issue is aware that he or
she enters the merits not in
order to substitute his or her own
opinion on the correctness thereof, but to determine whether the
outcome is rationally justifiable,
the process will be in order;”
(d) the question to be asked in order to determine
whether or not a decision is justifiable or rational is:
”is
there 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?”
[21] When one has regard to the decision of this Court
in Carephone and the decision of the Constitutional Court in the
Pharmaceutical
Manufacturers’ case, what is clear is that the
ground of review dealt with in the latter case is that of
irrationality whereas
the ground of review that was dealt with in
the former is that of justifiability. As there can be no doubt that,
when the CCMA
deals with compulsory arbitrations under the Act, it
exercises public power, there can also be no doubt that, in the
light of the
Pharmaceutitical Manufacturers’ case, CCMA
arbitration awards can be reviewed and set aside by the Labour Court
if they are irrational.
This raises the further question of whether
the terms
“justifiable”
and
“rational”
bear
the same meaning. This question arises because, if they bear the
same meaning, then there seems to be no warrant to tamper
with the
decision of this Court in Carephone because the rationality ground
of review emanating from the decision of the Constitutional
Court in
the Pharmaceutical Manufacturers’ case would then be already
accommodated in Carephone. If, however, the two terms do
not bear
the same meaning and they have totally different meanings, then a
need might exist to consider whether Carephone was correctly
decided
and whether it should be departed from.
[22] In Carephone this Court specifically stated in par
31 that the provision of sec 33 read with item 23(b) of the
Constitution
that an administrative action must be justifiable in
relation to the reasons given for it
”introduces a requirement
of rationality in the merit or outcome of the administrative
decision. This goes beyond mere procedural
impropriety as a ground
for review or irrationality only as evidence of procedural
impropriety”.
In par 37 of Carephone this Court once again
referred to rationality. There it was considering such overlap or
synonymity as justifiability
as a test for review might have with
other tests.
[23] In Carephone this Court viewed justifiability in
the context of the administrative justice provisions as a kind of
rationality.
This is apparent from the first part of par 37. That
part of par 37 reads thus:-
“
Many formulations have been suggested for this
kind of substantive rationality required of administrative decision
makers, such
as ‘reasonableness’, ‘rationality’,
‘proportionality’ and the like (of eg Craig Administrative law
at 337 - 49; Schwarze
European Administrative Law (1992) at 677).
Without denying that the application of these formulations in
particular cases may
be instructive, I see no need to stray from the
concept of justifiability itself. To rename it will not make matters
any easier.”
[24] In the second part of par 37 this Court sought to
formulate a test for determining whether or not an arbitration award
could
be said to meet the test of justifiability required by the
provisions of sec 33 read with item 23. In formulating the test this
Court once again brought some form of rationality into the test of
justifiability. It said:-
“
It seems to me that one will never be able to
formulate a more specific test other than, in one way or another,
asking
the question: is there 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 arrived at?”
[25] There can be no doubt that in Carephone this Court
viewed the concept of justifiability as related, at least to some
extent,
to the concept of rationality but emphasised, correctly in
my view, in the context of the fact that it was dealing with sec 33

read with item 23 which expressly use the adjective
“justifiable”
,
that it should stick to the term
“justifiable”
. In the
light of this I am of the view that, although the terms
“justifiable”
and
“rational”
may not, strictly
speaking, be synonymous, they bear a sufficiently similar meaning to
justify the conclusion that rationality
can be said to be
accommodated within the concept of justifiability as used in
Carephone. In this regard I am satisfied that a
decision that is
justifiable cannot be said to be irrational and a decision that is
irrational cannot be said to be justifiable.
[26] In the light of the above it appears to me that
Counsel for the appellant was right in his submission that whether
or not Carephone
was wrongly decided has become largely academic as
a result of the judgement of the Constitutional Court in the
Pharmaceutical
Manufacturers’ case which decided in effect that in
our law rationality has become a constitutional requirement for all
decisions
taken in the exercise of all public power. Irrationality
of such decisions is now a ground of review and, quite clearly, the
issuing
of an arbitration award by a CCMA commissioner under the Act
is an exercise of public power and must, therefore, meet the
constitutional
requirement of rationality. If an award fails to
meet this constitutional requirement, it can be set aside on this
ground.
[27] There is a further reason why it has become
academic whether or not this Court’s decision in Carephone was
right. Sec 33(3)
of the Constitution provides that national
legislation must be enacted to give effect to everyone’s right to
administrative action
that is lawful, reasonable and procedurally
fair. Such legislation has been passed. It is called the Promotion
of Administrative
Justice Act, 2000 (Act No 3 of 2000) (“
the
PAJA”
). Except for sections 4 and 10 of the PAJA, the PAJA
came into operation on the 30
th
November 2000. The
purpose of the PAJA is given in that Act as:
“
(t)o give effect to the right to administrative
action that is lawful, reasonable and procedurally fair and to the
right to written
reasons for administrative action as contemplated
in section 33 of the Constitution of the Republic of South Africa,
1996; and
to provide for matters incidental thereto”.
The PAJA was passed in order to:-
“
(P)romote an efficient administration and good
governance; create a culture of accountability, openness and
transparency in the
public administration or in the exercise of
public power or the performance of a public function, by giving
effect to the right
to just administrative action”.
[28] The definition of
“administrative action”
under the PAJA is very wide. In terms of sec 1 of the PAJA an
“administrative action”
is defined as meaning “
any
decision taken, or any failure to take a decision by-
(
a
) an organ of state, when-
(i) exercising a power in terms of the Constitution
or a provincial constitution; or
(ii) exercising a public power or performing a
public function in terms of any legislation; or
(
b
) a natural or juristic person, other than
an organ of state, when exercising a public power or performing a
public function in
terms of an empowering provision, which adversely
affects the rights of any person and which has a direct, external
legal effect,
but does not include-
(
aa
) the executive powers or functions of the
National Executive, including the powers or functions referred to in
sections 79 (1)
and (4), 84 (2) (a), (b), (c), (d), (f), (g), (h),
(I) and (k), 85 (2) (b), (c), (d) and (e), 91 (2), (3), (4) and (5),
92 (3),
93, 97, 98,99, and 100 of the Constitution;
(
bb
) the executive powers or functions of the
Provincial Executive, including the powers or functions referred to
in sections 121 (1)
and (2), 125 (2) (d), (e) and (f), 126, 127 (2),
132 (2), 133 (3) (b), 137, 138, 139 and 145 (1) of the Constitution;
(
cc
) the executive powers or function of a
municipal council;
(
dd
) the legislative functions of Parliament,
a provincial legislature or a municipal council;
(
ee
) the judicial functions of a judicial
officer of a court referred to in section 166 of the Constitution or
a Special Tribunal established
under section 2 of the Special
Investigation Units and Special Tribunals Act, 1996 (Act No. 74 of
1996), and the judicial functions
of a traditional leader under
customary law or any other law;
(
ff
) a decision to institute or continue a
prosecution;
(
gg
) a decision relating to any aspect
regarding the appointment of a judicial officer, by the Judicial
Service Commission;
(
hh
) any decision taken, or failure to take a
decision, in terms of any provision of the Promotion of Access to
Information Act, 2000;or
(
ii
) any decision taken, or failure to take a
decision, in terms of section 4 (1)”.
[29] A
“decision”
is then defined as meaning
“any decision of an administrative nature made, proposed to be
made, or required to be made, as the case may be, under an
empowering
provision, including a decision relating to”
-
among others,
“
(a) making, suspending, revoking or refusing to
make an order, award or determination?”
Even though the view expressed by this Court
in Carephone that the making of an arbitration award by a CCMA
commissioner constitutes
an administrative action might not be
correct, it seems to me that the definitions of
“administrative
action”
and of
“decision”
in sec 1 of the PAJA may
be wide enough to include it. I say this despite the reference in
the definition of
“decision”
to a decision
“of an
administrative nature”.
It is not necessary to express a final
view on this issue in this matter. It is sufficient, if it appears
that the PAJA may well
be applicable to the making of an arbitration
award by the CCMA because the question that has arisen in this
matter is whether
or not there is a warrant to reconsider the
decision of this Court in Carephone.
[30] If the PAJA applies to the making of arbitration
awards by CCMA commissioners, sec 6 of the PAJA comes into
operation. S 6(2)(c)
of the PAJA provides that an administrative
action may be reviewed if it is
“procedurally unfair”.
S
6(2)(f) provides, inter alia, that an administrative action may be
reviewed if it:-
“
(ii) is not rationally connected to -
(aa) ....
(bb) ....
(cc) the information before the administrator
(dd) the reason given for it by the administrator”
The term
“administrator”
is defined in the
PAJA as meaning an organ of state or any natural or juristic person
taking an administrative action. The grounds
of review covered in
sec 6(2)(c) and (f)(ii) (cc) and (dd) basically relate to what was
said by this Court in Carephone.
[31] It is clear therefore, that, if the position is
that the PAJA applies to the making of CCMA awards, then such awards
would
be required by s 6(2)(F)(ii)(dd) of the PAJA to be rationally
connected to the reasons given for them which is the same as what
this Court said in Carephone. If this Court were to re-examine the
correctness of its decision in Carephone and come to the conclusion
that Carephone was wrongly decided, this would not serve much
purpose because justifiability, in so far as it falls within the
ambit of rationality, would still be applicable to CCMA arbitration
awards. This certainly is because of the decision of the

Constitutional Court in the Pharmaceutical Manufacturers’ case. It
may also be because of the PAJA, if the PAJA applies.
[32] The only importance I can think of as to why it
may be thought that it is necessary for this Court to decide
whether Carephone
was right or wrong may be that in determining that
the ground of review of justifiability fell within s 145 (2)(a)(iii)
of the
Act, Carephone in effect held that the time limit set out in
s 145 for the bringing of review applications against CCMA awards

would apply to that ground of review as well. In this regard it may
be thought that, if the ground of review relied upon is not
under s
145, the period within which a review on such ground must be
launched is a reasonable time from the day of the issuing
of the
award and not six weeks as prescribed by s 145. If Carephone stands,
the question of whether the six weeks period does or
does not apply
will not arise. Although the reasoning on which this conclusion was
based in Carephone is unsatisfactory, there
are, in my view, sound
policy considerations which justify that we leave Carephone as it
is.
[33] The Carephone debate has been going on for a long
time. Nevertheless the labour relations community has for some
time now
organised its lives and activities on the basis of that
judgement of this Court. I accept that some of the criticism
against
Carephone is justified but, having regard to all the
circumstances and in order to bring about certainty and stability
in the
law in this area, I think that that debate must come to
an end. In the light of what has been said above in regard to
Carephone
and the Pharmaceutical Manufacturers’ case and what
was said by the Constitutional Court in the latter case, and in
the
light of the possibility that the PAJA may well be applicable to
arbitration awards issued by the CCMA, I am of the view that it
would not serve much purpose for this Court to consider whether or
not its decision in Carephone was correct and whether or
not such
decision should be departed from. In those circumstances Carephone
stays. This appeal can, therefore, be considered on
the basis
that, as was decided by this Court in Carephone, CCMA awards can be
reviewed and set aside if they are not justifiable
in relation to
the reasons given for them. With this in mind I now turn to the
facts of this appeal.
The facts
[34] The facts in this matter are largely common cause
or are not in dispute. What is in dispute are the conclusions to be
drawn
from those facts and the value judgements that must be made in
the light of those facts. The appellant operates a number of
well-known
retail shops in various parts of the country. One such
shop is situated in Newcastle, Kwa Zulu - Natal. In that shop the
appellant
employed, among others, one Ms Mavis Ziqubu, the second
respondent in this matter, as a part-time cashier. The second
respondent
was so employed from 1993. By 1998 she had been in the
appellant’s employ for more or less five years. The second
respondent
was a member of the South African Commercial Catering and
Allied Workers Union (“
the union”
) which is the third
respondent in this matter.
[35] On the 1
st
October 1998 the appellant
dismissed the second respondent from its employment after a
disciplinary inquiry had found her guilty
of certain misconduct. The
incident which gave rise to the second respondent’s dismissal had
occurred on the 9
th
June 1998 in the appellant’s
Newcastle store. On the afternoon of that day the second respondent
was operating till no 28. A
staff member, one
Ms Cynthia Lawrence, was told by a supervisor in the
store to join the queue leading to the second respondent’s till
and pay there.
Ms Lawrence did as instructed by the supervisor.
[36] Ms Lawrence had six items to pay for. One of these
was an extension cord costing R 20,00. According to the second
respondent’s
undisputed evidence, while she was attending to Ms
Lawrence, a woman came and shouted at her complaining about a parcel
that she
apparently had left on the counter which had gone missing.
In the process of attending to Ms Lawrence, the second respondent
punched
R2,00 instead of R20,00 in her till for the extension cord.
She punched the correct prices for the other five items purchased by
Ms Lawrence. Later on a security guard at the door of the shop
searched Ms Lawrence’
s
parcel
s,
examined the till
slip and found that, although the price of the extension cord was
R20,00, only R2,00 had been charged for it.
This was brought to
the attention of the management. Ms Lawrence paid the difference.
Subsequently the second respondent was
called to a disciplinary
inquiry. The charge framed against her was
“gross misconduct
in that on the 9
th
June 1998 you operated
till no.28 and rung up R2,00 for an extension cord costing R20,00
which resulted to the company having a
loss of R18,00".
The disciplinary inquiry
[37] In the disciplinary inquiry the second respondent
admitted that she had rung R2,00 instead of R20,00 for the extension
cord.
The security guard who had discovered the discrepancy was
called to give evidence. His evidence was that Ms Lawrence came to
the
staff entrance ( where the security guard was posted) and asked
the security guard to
“search her”
. He did and he
discovered the discrepancy between the price of the extension cord
and the price actually paid. He stated that the
rest of the items
purchased had been correctly charged. He testified that he had asked
Ms Lawrence to go back to the till
“to check”
. The
contents of the till slip confirmed the discrepancy. He asked his
immediate superior to help him but he was not available.
He
testified that Ms Lawrence had then asked to pay the difference. He
had then called the till controller. The till controller
had come
and spoken to Ms Lawrence. He did not hear what the two were saying.
Thereafter he had seen Ms Lawrence
“swiping her card”
whereafter she
“come back to our office and she went”
.
[38] Asked what the second respondent’s reaction was
to the discovery of the discrepancy, the security guard testified
that the
second respondent stated that this had been a mistake. When
the second respondent had an opportunity to cross- examine the
security
guard, she asked him whether, if it had been her intention
to steal the extension cord, she would have rung it on the till. The
security guard answered this question by saying:-
“the way I
think sometimes parcels are not checked properly you wouldnt notice
the wrong price and item”.
Another question that the second
respondent asked the security guard was:
“if the security has
to check the parcels one by one or they just look at it”.
The
answer given was:-
“The law says that we must check one by one.
I say this because I see that the item that is not on the slip that
used to happen
like that”.
At this stage the second respondent
asked:
“I would like to ask why is it they dont check one by
one and sometimes they just look”.
The security guard
answered:
“It doesn’t happen because we are not the same. I
check the way I check because of the law”.
[39] The second respondent testified in the
disciplinary inquiry that:-
(a) what had happened was a mistake;
(b) she had rung R2,00 instead of R20,00 for the
extension cord;
(c) there had been a long queue for her to attend to;
(d) while she was attending to Ms Lawrence, a certain
customer came and shouted at her in regard to her lost parcel;
(e) she had no packer and had to do her own packing at
the till in addition to operating her till;
(f) it was not
“my aim to underring the item by me
may be I was confused so I did it”.
The second respondent was asked by her representative
whether she was
“concentrating”
at the time she was
ringing Ms Lawrence’s items
.
She replied:
“I would say
I was but because that customer came she confused me”.
It also
transpired in her evidence that, although she had not watched the
till training video, she had nevertheless received
“lots”
of till training.
[40] Asked whether Ms Lawrence had asked her to ring
R2,00 instead of R20,00, the second respondent answered in the
negative. She
confirmed that she knew that she was required to check
the till screen after ringing a price to see if she had rung the
correct
price. She admitted that she had not followed this procedure
when she rang the extension cord. She blamed this on her being
confused
as a result of the shouting of the customer that came
around looking for her parcel and on being busy because she had a
long queue
to attend to and had no packer to assist her. She said
that she did not notice that she had rung a wrong price. Asked
whether
it had not been her responsibility to check whether she had
rung the correct price, the second respondent replied:
“I told
myself this is one of the staff member we are helping each other. I
told myself Cynthia will check if the price is wrong
or right ....”
[41] The second respondent was asked whether every time
she got confused, she made a mistake. She replied:
“I never had
a mistake it has been my first time”.
Towards the end of her
evidence, the second respondent was again asked to explain why she
had rung R2,00 instead of R20,00. She
explained:
“The lady came
when I was ringing it is whereby I got confused”.
She was
again asked if she had realised that she had rung a wrong price. To
this she replied in the negative. She said that she
had only
realised that she had rung a wrong price when Ms Lawrence
“come
with the security”.
The last question that the second
respondent was asked was how she felt about having rung R2,00
instead of R20,00. She replied:
“I find myself guilty”.
[42] It is appropriate to state that no evidence was
led at the disciplinary inquiry on the importance of the till
procedures that
must be followed by cashiers nor was any evidence
led to show that the appellant had always dealt with acts of
underringing by
dismissing employees found guilty thereof. During
argument presented in the disciplinary inquiry Mr Acker, who was
termed the initiator
( of the disciplinary proceedings), argued that
the second respondent was
“guilty of underringing and
defrauding the company of R18,00 and was in collusion with the staff
member Cynthia Lawrence”.
He stated that he was basing this on
a number of matters. Those matters are reflected in the minutes of
the inquiry. One was that
the second respondent was an experienced
cashier who knew the till procedure. Another was that the second
respondent
“was negligent in her till she did not double check
the amount rung on the till if she said she was confused. This would
have
resolved the problem therefore I believe she done it on
purpose” (
my emphasis
)
. He gave another factor as being
that :
“A mistake of this magnitude cannot happen as only six
items have been purchased”.
[43] After argument the inquiry was adjourned. However,
before the chairman could give his decision, the inquiry resumed
for the
purpose of clarifying certain matters. Among other things
the chairman asked the second respondent to state the till procedure

that she normally followed. The second respondent explained it thus:
“I first look at the items price then I check if the price on
the item is correct then ring it on the till”.
She was asked
if she always did that and she answered in the affirmative. Asked
why she had to do that, she answered that it was
necessary to do
that in order to “
see if I rang the correct price”.
She
was then again asked by the chairperson how it was possible that she
rang R2,00 instead of R 20,00. To this she responded :
“That it
means it was a mistake I thought all the zero buttons was pressed. I
was confused with the customer that was looking
for her parcel”.
[44] A document headed:
“findings”
is to be
found at 40-41 of the record
.
At the end of that document
appears the name N. Acker. That document is prepared as if
reflecting findings. One would assume that
those are the findings
of the chairman of the disciplinary enquiry. However, the chairman
of the disciplinary inquiry was not Mr
Acker but a Mr Mazibuko. Mr
Acker is reflected in the minutes of the disciplinary inquiry as the
initiator of the disciplinary
proceedings. At 42-3 of the record
there is a document which is headed:
“Finding
-
Mavis
Ziqubu OK Newcastle”
. That document appears to contain the
findings and reasons of the chairman of the disciplinary inquiry. I
shall approach the matter
on the basis that the document at 40-41 is
written argument presented at the disciplinary inquiry by the
initiator of the proceedings,
Mr Acker, and that the document at
42-3 is the finding of the chairman of the disciplinary inquiry as
well as his reasons for that
finding.
[45] What is important about the initiator’s written
argument at 40-1 is that it reflects that he argued the case before
the chairman
of the disciplinary inquiry on the basis that this was
not a case of negligent underringing but one of deliberate
underringing.
What is important about the finding of the chairman of
the disciplinary inquiry is that it also reflects that he found the
second
respondent guilty of collusion - which is an act of
misconduct requiring intent as opposed to one based on negligence.
In the third
paragraph in his finding the chairman said: “
In
this particular incident I find a lot of evidence of staff collusion
in that [the second respondent] colluded with the staff
member to
defraud the company by ringing R 2,00 instead of R 20,00 for an
item”.
In the second paragraph of the chairman’s finding,
the chairman said:
“Underringing is a serious offence
especially if it involves collusion between the cashier and the
party purchasing items at till
points”.
[46] What this demonstrates, in my view, is that the
two offences were not placed on the same level of seriousness even
though both
were regarded as serious. It appears that the
appellant’s attitude as reflected in the attitude of one of its
managers, namely,
the chairman of the disciplinary inquiry, was that
underringing was serious but, when it was intentional, it was more
serious.
I emphasise that the chairman of the inquiry did not make
any finding that the second respondent had been negligent. The
chairman
of the inquiry imposed the sanction of dismissal.
The internal appeal
[47] An internal appeal was noted on the 1
st
October 1998 which was the same day on which the chairman of the
disciplinary inquiry gave his decision on sanction. The grounds
of
appeal were that the dismissal was both procedurally and
substantively unfair and that the sanction of dismissal was
inconsistently
applied. The chairman of the appeal was one R.
Cotwal. When the chairman of the appeal hearing gave his finding, he
said:
“The charge of gross misconduct is correct in the
circumstances in that she deliberately rang up a wrong price which
was far less
than the correct price. She rang up R 2,00 instead of R
20,00.
This can never be negligence”
(My
underlining). The internal appeal was dismissed. The finding of the
disciplinary inquiry and the dismissal were confirmed.
[48] A strange feature of both the disciplinary inquiry
and the appeal hearing is that, although in both instances a case of
inconsistency
in the application of discipline was presented on
behalf of the second respondent, neither the chairman of the
disciplinary inquiry
nor the chairman of the appeal hearing dealt
with this issue in findings and reasons. The case of inconsistent
application of
discipline was presented on the basis that another
employee, one Adelaide, who had underrang an item costing R 13,99 by
R10,00
in that she had rung R 3,99, had not been dismissed by the
appellant even though she had been found guilty of underringing.
[49] What the record, therefore, reveals is that:
(a) in the disciplinary inquiry the initiator presented
the appellants case against the second respondent on the basis that
her
conduct had been deliberate;
(b) the chairman of the inquiry made a finding that the
second respondent’s conduct had been deliberate.
(c) the chairman of the appeal hearing made his
findings on the basis that the second respondent’s conduct
was
deliberate and not negligent.
The arbitration proceedings
[50] Subsequent to the outcome of the internal appeal,
the second respondent referred a dispute of unfair dismissal to the
CCMA
for arbitration. The CCMA appointed the first respondent, who
was one of its commissioners, to arbitrate the dispute. In the
arbitration
proceedings the appellant presented its case against the
second respondent on the basis that the second respondent’s
conduct
had been deliberate. When he was given an opportunity to
make an opening statement outlining his case, Mr Khuboni, who
represented
the appellant in those proceedings, is recorded as
having said:
“
Thank you commissioner, we are going to seek to
prove that ... (break in recording) .... company will seek prove
that this was deliberate
.... (break in recording ....(inaudible)
... I would like to call that witness. The first witness will show
that this was not ...
(break in recording) ... witness, the store
manager will show you that .... (intervention)”.
[51] In the arbitration proceedings the second
respondent’s case was that, whilst admitting that she knew the
till procedure that
she was required to follow, on the occasion of
the incident in question, she did not follow the till procedure. She
said that this
was because she was confused as she had a long queue
to attend to, had no packer to help her and, while she was attending
to Ms
Lawrence, a customer had approached her and shouted at her in
regard to that customer’s lost parcel. She said that it was by

mistake that she had underrung the price for the extension cord.
She was emphatic that she had not done this deliberately. She
accepted that she had acted negligently.
[52] The second respondent sought that she be given a
warning for her negligence. She also sought to rely on the
appellant’s previous
handling of cases of undertilling and stated
that her dismissal would constitute an inconsistent application of
discipline. From
the beginning of the arbitration, the appellant
sought to prove that the second respondent did not act negligently
but acted deliberately
with the intention to defraud the appellant.
As already indicated,
that was revealed already from the opening statement of
the appellant’s representative.
[53] The appellant called a witness who testified about
the till procedures. This was Bityawanthe Ramlakan. This witness was
a cash
office supervisor. One of the questions that Mr Khuboni asked
Ramlakan was whether it was possible
“to ring R 2,00 instead of
R 20,00 ... (break in recording) ... following the procedures that
you have just mentioned?”
The answer was that a cashier would
pick up such a mistake if such cashier followed the normal till
procedures.
[54] The appellant’s next witness was Mr Neil Acker,
the store manager. Mr Khuboni asked Mr Acker how often the store had
“cases of this nature”.
The answer appears as
“....
(break in recording ... a few cases that we’ve had in the past ...
(inaudible)”.
Mr Acker testified, among other things, that Ms
Lawrence had been dismissed for collusion. The only person that Ms
Lawrence could
possibly have colluded with in order for her to be
undercharged was the second respondent. It would have been awkward
for the appellant
to pursue any charge against the second respondent
other than one entailing collusion against the second respondent
when it had
already dismissed Ms Lawrence for collusion.
[55] Under cross-examination Mr Acker was asked whether
he believed that there had been collusion between the second
respondent
and Ms Lawrence. Mr Acker answered in the affirmative.
Asked why he thought so, Mr Acker answered:-
“Because, firstly,
why didnt they pick up the mistake immediately and in the ....
(break in recording) ... cashier is responsible
for what is rung up
on the till. The staff member is also responsible to make sure that
they check the till slip before it is re-verified
by the security
before they go out of the store to take off any suspicion of theft
or any albeit that the cashier that has rung
up ...(inaudible)”.
This evidence by Mr Acker presents an interesting feature in
this matter. It seems to corroborate the second respondent’s
evidence
of her having had an expectation that Ms Lawrence would
pick up a mistake as they were
“helping each other”
as
she put it. Mr Acker’s evidence seems to provide a basis for the
second respondent’s expectation because he stated that
a staff
member also had a responsibility to check his/her slip. This can
only mean checking whether the price was correct. It should
go
without saying that, if a staff member making purchases had such a
responsibility, he/she also had a responsibility to disclose
any
discrepancy he/she picked up.
[56] Mr Acker was asked by the first respondent whether
the case could be one of an honest mistake arising out of a cashier
ringing
up 2 instead of 20. His answer was that this could not have
been an honest mistake. Mr Acker was then asked :
“Now if a
worker was aware that if she sells to a colleague, a fellow
employee, and the security is going to check, do you think
the
worker will purposely undertill knowing that this is going to get
picked up by the security?”
Mr Acker answered:”
If theres
collusion at the back door with the security, it would happen and in
this particular case what had happened was that morning
I had put a
new security guard at the staff entrance”.
A little while
later Mr Acker was asked how often the security guards at the store
were changed and he answered;
“We change them on a regular
basis. That’s up to the security company ... (inaudible).
”
No evidence was led to suggest that from morning to the afternoon
when the incident occurred, the second respondent would not
have
become aware that there was a different security guard the door of
the store on that day.
[57] Mr Acker also gave evidence that this incident was
not the first one by the second respondent. This was directly in
conflict
with the evidence that the second respondent had given in
the disciplinary inquiry where she stated that this was her first
offence.
It is not clear why she gave this obviously false evidence
unless the position is that she did not expect the appellant’s
representative
to be able to prove the contrary. It is difficult to
think she could entertain any doubt about this. Mr Acker testified
that the
second respondent had previous warnings which had been
given to her before his time in the store. However, the appellant’s
representative
later conceded that her previous warnings were no
longer
“applicable”
because the maximum period that
previous warnings were allowed to remain on the
file
of
an employee was four months and such period had long expired in
respect of each of the second respondent’s warnings.
[58] Mr Acker was also cross-examined on the sanction
that the appellant had imposed on other employees who, in the
contention of
the second respondent’s representative, had
committed similar offences. Mr Tisheng, the second respondent’s
representative
in the arbitration proceedings, started his cross
examination of Mr Acker thus:
“
Cross-Examination by Mr Tishengs (Inaudible) ....
having some big cases with regard to. ... (break in recording) ...
out of ...
(inaudible) ... five cases you confirmed that its only
one dismissal. What about the ... (break in recording) ...
(inaudible) ...
which were presented by ... (break in recording) ...
when you talk of final written warning and ... (break in recording)
... for
under ringing not the other one which actually was ...
(inaudible) ... underringing? Yes ... yes, there has been
dismissals. How
... (break in recording) ... what was the reason for
the other one to be given a final written warning (break in
recording) ...
said, no, the reason it was the button of ... (break
in recording) ... you say you dont know the reasons for...
(intervention)
... yes, that was one of the reasons because if you
press a button, okay, that button has got a spring and its got a
chipboard
and microchip underneath it. (Break in recording) ... that
button and you press it, it touches the microchip which registers
the
till, okey, and you ... (break in recording) ... press that
button, it doesnt press the plunger on the microchip to make it
register.
Thats one of the reasons why 1" on the till didnt
work and she rung up R3,00. Are you familiar with the operation of
the till,
Sir? ... yes, I am.
If a cashier is operating a till, and doesnt ...
break in recording) ... theres a mistake, what steps should be taken
by the cashier
to ... (inaudible) ... that? ... (Break in recording)
... is to check on the console of the till. So when she rings up an
item,
okay, to find out if she hasnt made a mistake is to check on
the console to confirm what shes rung on that till is the actual
price
of the article because it will ... (break in recording) ...
then after her transaction of whatever numerous amount of articles

shes purchased through, there is a button that tells you the total
transactions. So be it ten articles, it will give you the total
rand
value of what you punched in for those ten articles and if she does
a mental calculation shell be able to check if shes made
a mistake
or not. Theres a till slip as well which she can check on what shes
rung up”.
It is worth noting at this stage that Mr
Acker’s evidence against the second respondent was in
effect that she had acted
dishonestly and that this could
not have been a case of an honest mistake.
[59] The second respondent then gave evidence in her
own defence. She admitted punching R 2,00 instead of R 20,00 for the
extension
cord. She said that this was a mistake which occurred in
the context of her attending to a long queue of customers with no
help
because she had no packer and, while attending to Ms Lawrence,
having to deal with a customer who was shouting at her about her
lost parcel. She testified that she did not underring intentionally.
She said that she called her supervisor to deal with the customer
who was shouting at her and the supervisor solved the customer’s
problem.
[60] In the first page and a half of his
cross-examination of the second respondent, the appellant’s
representative asked questions
clearly calculated to show that the
second respondent could not have made a mistake. The second
respondent insisted that this was
an honest mistake. In the course
of the second respondent’s evidence, Mr Khuboni dealt with the
second respondent’s previous
warnings. He said that the maximum
period that a warning would
“stay on file”
would be four
months.
[61] Mr Khuboni informed the first respondent that one
previous warning had been given during May 1997 for incorrect
counting of
money. He said that another one had been given on the
4
th
June 1996 for till shortage. Another one was for
“incorrect till procedures”
and had been given on the 5
th
May 1997. In respect of the last one, namely,
“incorrect till
procedures”
a final written warning had been given. Then the
transcript reflects that the following transpired between the first
respondent
and Mr Khuboni:-.
“
Commissioner:
It is more than four months,
so its immaterial. Your own submission is that it only stays on
file. Previous things has got nothing
to do with that because she
had a clean record. Mr Khuboni
:
Correct, what Im trying to
show here is the type of person that ... (Inaudible) ... you had
five sorry, you had two final written
warnings and three written
warnings (break in recording) ... to show the arbitrator the type of
person that Ms Ziqubu is”.
[62] It is appropriate to record that in the course of
her evidence before the first respondent, the second respondent lied
about
her previous warnings. She had done the same in the
disciplinary inquiry. She said that she had had no previous
warnings. It is
also important to observe that in the arbitration
proceedings the appellant did not dispute the following evidence of
the second
respondent, namely, that:-
(a) the incident occurred on a busy day;
(b) the second respondent had a long queue of customers
to attend to;
(c) while the second respondent was attending to Ms
Lawrence, a customer who had left a parcel on the counter came and
started arguing
with, and shouting at, her;
(d) she had no packer to assist her;
(e) she had called her supervisor to deal with the
customer who was shouting at her and the supervisor had resolved
that customer’s
problem.
[63] In addition to the above it also transpired in the
arbitration proceedings that the standards set by the appellant were
not
to the effect that undertilling or a failure by a cashier to
follow till procedures always resulted in the dismissal of the
cashier
who was found guilty thereof. The second respondent’s
representative indicated that the second respondent deserved a
written
warning. There was argument presented on behalf of the
second respondent that the appellant had not presented any evidence
to
show that the appellant had counselled the second respondent.
This is true. Mr Khuboni had stated from the bar that the second

respondent had been counselled each time she had been given a
warning before but what Mr Khuboni said from the bar was not
evidence
under oath.
[64] When Mr Khuboni presented his argument, he made
the point that
the evidence presented on the appellant’s behalf was
credible and was
“that
it is not possible to make a
mistake”
. Mr Khuboni never argued that, if the commissioner
rejected the argument that this was deliberate, he should
nevertheless in the
alternative find that the dismissal was fair
because the negligence was gross. That was
never the appellant’s case before the first
respondent. It would appear that the transcript does not reflect the
complete argument
on both sides. It is clear that, where the
transcript ends, for example, Mr Khuboni must have said more than is
reflected in the
transcript. It is recorded in the transcript that
the tape ended there and no further tapes were provided. If the
position is that
during argument, Mr Khuboni did present such
argument which is not contained in the transcript, the appellant
cannot blame anybody
because it did not reconstruct the missing part
of the evidence. After the transcript had been provided, the
appellant must have
realised that there were gaps in the transcript
which had to be filled in one way or another in order for justice to
be done to
its case but nevertheless proceeded with the case without
filling the gaps. I cannot see how the second respondent can be made

to suffer as a result of that omission on the appellant’s side.
[65] In his arbitration award, the first respondent
stated that the appellant
“had
to show on a balance of
probabilities that the employee acted fraudulently and in cohoots
with Cynthia Lawrence to defraud the company
of R 18,00".
He continued:
“I am not satisfied that the employer party
discharged this burden of proof sufficiently and I have found the
dismissal to be
substantively unfair ...”
The first respondent
gave the following as some of the reasons for his findings:-
“
1.
There was no clear evidence to indicate
that Cynthia Lourens and the employee planned that Cynthia would
make her purchases at the
employees till and that the employee will
undertill her purchases. It was co-incidental that Cynthia used the
employees till as
the employer party did not dispute that Cynthia
was in another queue when the supervisor announced that staff could
use the employees
till after 16h00.
2.
.....
9.
R
2,00 instead of R 20,00 can be an honest mistake. The employee
omitted to punch one.
9.
The
employee was distracted and could have acted carelessly in not
checking whether she punched the right buttons before finalizing
the
payment.
9.
...
9.
The
employer party is not consistent in the application of its
disciplinary code and has given final warnings for similar offences.
9.
...
9.
The
employee had a clean disciplinary record with 4-5 years service. She
is still working part time earning R 146,16 per week.
She is married
and breadwinner of her family of 3 children.
9.
She was negligent and this
does not suggest intent to defraud. Discipline has to be progressive
with dismissal being the last resort.
A proper enquiry was held and
the employee kept to her version from the outset that she had made a
mistake and was sorry for the
same”.
The first respondent then ordered
that the appellant reinstate the second respondent retrospectively
to the date of dismissal on
terms and conditions not less favourable
to her than those that governed her employment at the time of her
dismissal.
The review application
[66] The appellant was aggrieved by
the arbitration award issued by the first respondent. It brought an
application in the Labour
Court for an order reviewing and setting
aside the arbitration award. The Court a quo dismissed the
application with costs. The
Court a quo’s consideration of the
merits of the review application was on the basis that the
justifiablity of an arbitration
award was not a ground of review on
which a CCMA award could be reviewed. However, it held that, had
the justifiability of an
arbitration award been one of the grounds
of review, it would have concluded that the award was reviewable on
that ground. Subsequently
the Court granted the appellant leave to
appeal to this Court, hence this appeal.
The appeal
[67] Before us Mr Gauntlett
attacked the first respondent’s award on two grounds. I deal with
the first one now and with the second
one later. The first attack
was that the first respondent committed a gross irregularity in that
he failed to consider part of
the appellant’s case that was put
before him. Mr Gauntlett submitted that that part of the appellant’s
case consisted of the
appellant’s contention that, even if the
second respondent was found not guilty of fraud i.e (deliberate
underringing), her conduct
constituted negligence of such a gross
nature that her dismissal was fair. Mr Gauntlett submitted that the
first respondent only considered
that part of the appellant’s case which was to the effect that the
second respondent’s conduct
constituted fraud and did not consider
the other part. This contention is to be found in various paragraphs
of the appellant’s
founding affidavit. I propose to deal with it
in the context of dealing with various allegations made by the
appellant in the founding
affidavit.
[68] In the founding affidavit the
appellant stated that the first respondent merely skimmed over
certain important issues like
the importance of the need for strict
compliance by cashiers with the appellant’s tilling procedures.
Towards the end of par
10.12 the appellant stated:
“Whether or
not the origins of Ziqubus actions arose from an honest mistake or
from deliberate intent to under-till are irrelevant
to the extent
that her actual conduct in not following proper till procedures when
she was well aware of the procedures and the
importance of them is
the most important element and the element which led to the
[appellant] holding that Ziqubu be dismissed
on the grounds of gross
misconduct”.
From this it seems that the appellant presents
its case as being that the true reason why the appellant dismissed
the second respondent
was her failure to follow proper tilling
procedures when she was well aware of their importance to the
appellant. There are difficulties
with this but I deal with them
later.
[69] In par 10.13 of the founding
affidavit the appellant makes the submission that the first
respondent failed to take into account
the importance of the mistake
to the appellant and the fact that this importance was clearly known
to the second respondent. In
par 10.20 the appellant noted that the
first respondent had found that the second respondent had been
negligent but had taken the
matter no further. The question which
then immediately arises is: what should the first respondent have
said or done further? In
the same paragraph, the appellant states
what it suggests the first respondent should have done further. It
says that the point
which it had attempted to raise during the
arbitration proceedings was that
“negligence of an employee
when working as a cashier amounts to gross misconduct as it is a
crucial area wherein procedures are
strictly adhered to for very
apparent commercial reasons”.
It goes on in the
same paragraph and says:-
“(N)eglecting to adhere to these
procedures amounts to gross misconduct in the broader context of the
nature of the [appellants]
business”.
[70] In par 10.21 of the founding
affidavit the appellant said that its version was that
“(the
second respondent’s) conduct amounted to more than just a mistake
and amounted to collusion with another employee Cynthia
Lawrence,
with intention to defraud. However, in the event of the Court
deeming that Ziqubu’s error was merely a mistake, I
submit that
it makes no material difference to the
[appellant’s] case. It is
clear from the [appellant’s] evidence that mistakes cannot be
tolerated in the cashiering process
due to the nature of the
applicant’s business and the potential losses which may be
incurred”.
[71] The thrust of the appellant’s
case, as set out in its founding affidavit, and as presented by Mr
Gauntlett was that the mere
negligence of the second respondent in
not following till procedures when she knew the importance thereof
constituted gross misconduct
justifying dismissal. In this regard
the appellant stated that whether or not the second respondent had
acted intentionally or
negligently was irrelevant. It complained
that, after the first respondent had found that the second
respondent had not acted intentionally
or deliberately, but had
acted negligently, he did not go further and consider the second leg
of its case, namely, that the negligence
was on its own so gross as
to be sufficient to justify the dismissal. What was the second and
third respondents’ response to
this part of the appellant’s
contentions?
[72] Mr Brassey who, together with
Mr du Plessis, appeared for the second and third respondents,
disputed the correctness of the
appellant’s contention that the
first respondent had been required in the arbitration proceedings to
consider the contention
that, even if the second respondent’s
conduct was not deliberate, it constituted
gross misconduct which rendered the
first respondent’s dismissal fair. He pointed out that the second
and third respondents had
in their answering affidavit disputed
allegations to that effect. Mr Brassey submitted that, upon a proper
reading of such of the
record as we have in this case, it was clear
that the matter had proceeded before the first respondent only on
the basis of whether
or not the second respondent’s conduct had
been deliberate.
[73] A reading of the affidavits in
this matter does, indeed, reveal that in the answering affidavit the
second and third respondents
disputed the allegation that it was
part of the appellant’s case before the first respondent that, if
the second respondent was
not guilty of fraud or deliberate conduct
in underringing the extension cord, she was, nevertheless, guilty of
gross negligence
and that such gross negligence rendered her
dismissal fair. The second and third respondents stated in the
answering affidavit
that the appellant’s case in the arbitration
was simply that the second respondent had acted deliberately in
under-ringing.
[74] This creates a dispute of
fact about what the appellant’s case was before the first
respondent. Unless the second and third
respondents’ version is
wholly untenable or far fetched, their version should prevail in the
absence of a request for oral evidence.
It certainly is not wholly
untennable nor is it far fetched. Accordingly on that basis alone
this matter must, therefore, be decided
on the basis that it was not
the appellant’s case before the first respondent that, even if the
second respondent was not guilty
of fraud, she was guilty of such
gross negligence that the sanction of dismissal was fair.
[75] It appears to me that the
second and third respondents’ version in this regard is supported
by the contents of the minutes
of the disciplinary inquiry, the
findings of the internal appeal hearing as well as the appellant’s
opening statement in the
arbitration proceedings. In this regard the
chairman of the disciplinary enquiry had the following to say in
paragraphs 2 and 3
of his findings:
“
Under ringing is a serious
offence especially if it involves collusion between the cashier and
the party purchasing items at till
points.
In this particular incident I
find a lot of evidence of staff collusion in that [the second
respondent] colluded with the staff
member to defraud the company by
ringing R 2,00 instead of R 20,00 for an item”.
[76] In the internal appeal the
chairperson of the appeal hearing also dealt with the matter on the
basis that the second respondent
“is guilty of collusion as she
rang the goods up”.
There is also a letter in the record from
Mr Niel Acker of the Newcastle Store which he addressed to one Mr Y.
Moola in which he
referred to the second respondent as a “
casual
dismissed due to under-ringing and staff collusion”.
The
chairman of the appeal hearing said the following in his
findings:”
The charge of gross misconduct is correct in the
circumstances in that [the second respondent] deliberately rang up a
wrong price
which was far less than the ----- paid. She rang up R
2,00 instead of R 20,00. This can never be negligence”.
[77] As already indicated above at
the commencement of the arbitration proceedings the appellant’s
representative was given an
opportunity to give his opening address
“as to why you say that the dismissal was fair and whats in
dispute”.
He then said
: “ ... we are going to seek to
prove that ... break in recording) ... company will seek to prove
that this was deliberate ...
(break in recording) ... (inaudible)
... I would like to call that witness”.
During argument in the
arbitration, he appears to have argued the matter on the basis that
the under-ringing was intentional because
he is recorded as having
said at some stage in his argument that
“... it is not possible
to make a mistake ... (break in recording) ... was a credible
witness”.
[78] In his cross-examination of
the second respondent, Mr Khubone sought to prove that what had
occurred was no mistake but that
it was intentional. In the light of
all of the above, I am of the opinion that the appellant’s case in
the arbitration was never
that, should the first respondent not find
that the second respondent had acted fraudulently, he should
nevertheless find that
she had acted negligently and, that her
conduct constituted gross negligence which rendered the dismissal
fair. In those circumstances
I am of the opinion that the appellant
cannot criticise the first respondent for not dealing with a matter
which fell outside the
issues placed before him by the parties for
decision.
[79] Although the first respondent
was not asked to find, in the alternative to the allegation of
fraudulent conduct, that the second
respondent’s conduct
constituted gross negligence rendering her dismissal fair, I am of
the opinion that he nevertheless did
consider whether, if one
accepted that the second respondent’s conduct was not fraudulent
but was negligent, her conduct was
such as to render her dismissal
fair. It is clear from the reasons for his finding that he
considered that there were mitigating
factors. In this regard he
made mention of the customer who came to the second respondent while
the latter was attending to Ms
Lawrence and started shouting at her
in connection with her lost parcel as well as the fact that it was
busy and the second respondent
had a long queue to attend to and had
to do her own packing as she had no packer. Furthermore the first
respondent approached the
matter on the basis that the second
respondent had no previous warnings (or had a clean record). Whether
to approach the matter
on this basis was right or wrong is another
matter. He also considered that the second respondent was sorry
about what she had
done. As he found that fraud had not been
established, there would have been no reason for him to refer to
this factor unless he
was considering its impact on the sanction in
the light of his finding of negligence.
[80] I do not think that there was
sufficient evidence before the first respondent to conclude that the
second respondent acted
fraudulently. Certainly not when the
evidence that a customer came and shouted at her, and hence
distracting her attention while
she was attending to Ms Lawrence was
not disputed by the appellant. There is no reason why the appellant
could not have disputed
this evidence if it wanted to because the
second respondent’s evidence was that she called her supervisor to
solve that customer’s
problem and the supervisor solved the
problem. If this did not happen, why did the appellant not call the
supervisor to the arbitration
to deny that she was ever called by
the second respondent to deal with such a problem on that day? In
this regard it needs to be
pointed out that already in the
disciplinary inquiry the second respondent’s version included a
long queue and a customer that
came asking for her parcel and the
fact that she had no packer. It also included the statement that she
was confused. The inquiry
occurred on the 22
nd
June 1998
whereas the incident had occurred on the 9
th
June. In the
disciplinary inquiry the second respondent specifically said that
the customer who was looking for her parcel confused
her. (See p 31
of record). Later on (p.32 of the record) she was asked again to
explain why she had rung R 2,00 instead of R 20,00
and she
answered:-
“The Lady came when I was ringing it is whereby I
got confused”.
[81] The second ground on which Mr
Gauntlett relied to attack the first respondent’s award was that
the first respondent’s award
was not justifiable in relation to
the reasons given for it. This ground of review is based on the
judgement of this Court in
“Carephone“
. The Court a quo
expressed the view that, if the test were whether the first
respondent’s conclusion was justifiable, it would
have held, in
the light of the deficiencies in the first respondent’s reasoning,
that it was not justifiable.
[82] In considering whether or not
the first respondent’s award falls to be set aside on the ground
that it is not justifiable
in relation to the reasons given for it,
I consider that one must have regard to the material that was
properly available to the
first respondent, the decision he took and
the reasons that he gave for such decision. As one does this, one
must bear in mind
what Chaskalson P said in the Pharmaceutical
Manufacturers’ case, namely, that a decision that is objectively
irrational is likely
to be made only rarely. Of course, I am saying
this in so far as it seems that there is much commonality between
justifiability
and rationality. One must also bear in mind the
importance of maintaining the distinction between appeals and
reviews. It must
also be borne in mind that the Act contemplates
that the disputes that it requires to be referred to arbitration are
meant to be
put to an end by way of arbitration and that, the
dispute resolution dispensation of the Act-which is meant to be
expeditious-would
collapse if every arbitration award could be taken
on review and set aside. In my view it cannot be inconsistent with
the Constitution
to seek to promote an expeditious resolution of
these disputes.
[83] The decision that is sought
to be attacked in this matter is the first respondent’s decision
that the dismissal of the second
respondent by the appellant was
unfair. I have already stated that the appellant presented its case
against the second respondent
before the first respondent on the
basis that the second respondent had deliberately underrung the
price of the extension cord
and not that she had acted negligently.
In fact the first respondent stated in his summary of the appellants
evidence before him
that the store manager, Mr. Acker, was adamant
before the first respondent that the second respondent did not act
negligently but
that she had acted deliberately. The first
respondent found, correctly in my view, that on the evidence
presented to him, it had
not been shown that the second respondent
had acted deliberately. The argument that the first respondent’s
award is not justifiable
in relation to the reasons given for it was
presented on the basis that, even if this was a case of negligence
on the second respondent’s
part, the negligence was so gross that
the award cannot be said to be justifiable. It was also submitted
that the first respondent’s
reasoning was so deficient that the
award could not be said to be justifiable in relation to the reasons
given for it.
[84] I accept that the first
respondent’s award can be criticised in a number of respects.
However, when all is said and done
there are still certain matters
which, in my view, save it from being such as to be described as
irrational or unjustifiable, even
taking into account all that
criticism. They are that the incident occurred in circumstances when
the second respondent had a long
queue to attend to, had no packer
to assist her and was confused by a customer who was shouting at her
in regard to a lost parcel.
The first respondent also took into
account that the second respondent was sorry for what she had done.
I don’t know how much
weight one can place on this factor in this
case but I cannot say it was unreasonable of the first respondent to
take it into account.
[85] There is also the question of
the second respondent’s disciplinary record. In this regard the
evidence presented to the
first respondent was that the second
respondent had previously been issued with written warnings.
However, such warnings had “
expired”
or”
lapsed”
because, according to the appellant’s representative in the
arbitration, warnings “
stayed on file”
for a maximum
period of four months and that period had long lapsed in respect of
the second respondent’s warnings at the time
of the incident. In
the light of this the first respondent approached the matter on the
basis that the second respondent had a
clean record.
[86] The question which arises in
relation to the lapsed warnings issued against the second respondent
is whether the first respondent
should have taken them into account
and, if so, for what purpose they should have been taken into
account. As already stated the
first respondent disregarded the
previous warnings completely and dealt with the second respondent on
the basis that she had a
clean record. Maybe another approach would
have been not to have regard to the lapsed previous warnings but to,
nevertheless,
have limited regard to an employee’s disciplinary
record in the sense that one does not have regard to warnings as
such but has
regard to the fact that in the past such employee has
been found guilty of misconduct. In par 10.19 the appellant stated
that,
although, the second respondent’s previous warnings which
had been given to the second respondent were
“no longer
applicable”,
her poor history of past conduct with regard to
till procedures could not be ignored. No reason was advanced as to
why, if they
were not applicable, such warnings should be taken into
account.
In par 10.22 of the founding affidavit, the
appellant alleged that the second respondent had been subjected to a
number of final
written warnings and contended that, for that
reason, it could not be said that its discipline had not been
progressive. This
may be so, but as it will become clear later in
this judgement, this does not help the appellant’s case much.
[87] In dealing with the first
respondent’s approach to the second respondent’s disciplinary
record, the Court a quo compared
a final warning that has lapsed to
a lapsed suspended sentence in criminal matters. It said that just
as a lapsed suspended sentence
does not extinguish the conviction
from a person’s criminal record, also the lapsing of a previous
warning does not extinguish
prior misconduct by the employee
concerned.
[88] In this case when the issue of
the second respondent’s disciplinary record arose before the first
respondent, the first
respondent put to the appellant’s
representative what he believed was the effect of the lapsing of the
second respondent’s
warnings. This gave the appellant’s
representative an opportunity to indicate to the first respondent
what the correct approach
was that the first respondent should adopt
in this regard.The transcript reveals the following exchange between
the first respondent
and the appellant’s representative on the
relevance or materiality or lack thereof of the
lapsed warnings of the second
respondent:-
“
Commissioner:
It is
more than four months, so it’s immaterial. Your own submission is
that it only stays on file. Previous things has got
nothing to do
with that because she had a clean record.
Mr. Khuboni
: Correct,
what Im trying to show here is the type of person that ...
(inaudible) ... you had five-sorry-you had two final written
warnings and three written warnings ... (break in recording) ... to
show the arbitrator the type of person that Mrs. Ziqubu is.
Commissioner
: But
she wasnt a dishonest person. If she was dishonest, she should have
been fired a long time and see theres in the minutes,
there is some
indication of the date, so Ill take it off the minutes so as ...
(incomplete)”.
Thereafter the transcript shows
that there was a break in recording and when the recording resumed,
the appellant’s representative
was cross-examining the second
respondent on something else.
[89] If one has regard to the
above exchange between the first respondent and the appellant’s
representative during the arbitration,
what is clear is that the
first respondent indicated to the appellant’s representative that
he thought that, as the warnings
had lapsed, the second respondent
should be treated as having a clean disciplinary record and that,
when the appellant’s representative
reacted to that, he said that
that was correct but what he was seeking to do was to show the type
of person that the second respondent
was. It is not clear what was
meant by this. If the intention was to show what type of a person
the second respondent was, the
question that arises is: and so what?
The transcript does not reveal that during argument before the
first respondent the appellant
relied on the second respondent’s
pervious disciplinary record.
[90] In our law there is no
statutory provision that deals with what the duration of a
disciplinary warning is nor is there a statutory
provision that
deals with what the effect is in law of the lapsing of a
disciplinary warning. An employer and an employee may deal
with
these matters in their contract of employment. This may also be
dealt with in a collective agreement between the employer
and a
trade union. These matters may also be governed by an established
practice in a particular workplace. Depending on what
the contract
of employment between the parties, or, the applicable collective
agreement, provides or what the established practice
is in a
particular workplace, the fact that an employee’s previous warning
has lapsed or expired may well mean in a particular
workplace that
such employee must be treated as having a clean record when he is
next found guilty of misconduct. For reasons that
will emerge later
in this judgement I am of the view that there is a basis for
suggesting that, if anything, the regime that applied
to the
appellant’s workplace is that an employee who is on a current
final written warning could be given more final written
warnings
before he could be dismissed. In other words it was a regime of high
tolerance especially in regard to failures by cashiers
to follow
till procedures - probably where there was no fraudulent conduct
involved.
[91] Also it is possible that such
employee is not to be treated as having a clean record but some
other approach must be adopted.
It is for the employer, if he
wishes to rely on an employee’s previous disciplinary record to
prove which regeme applies in
the particular work place. If he
fails to show this, he cannot complain if a commissioner in the CCMA
adopts the approach that,
as the warnings of the employee have
lapsed, the employee must, for all intents and purposes, be treated
as having a clean record.
[92] In this case the appellant
did not place any evidence before the first respondent of what the
practice was in the workplace
where the second respondent was
employed. It also did not show what the contract of employment or
the relevant collective agreement
provided in this regard. In the
light of all of this I do not think that the first respondent can be
criticised for approaching
the matter on the basis that the second
respondent had a
“clean record”
at the time of the
incident in question. It was not unreasonable to do so. Once it is
accepted that the approach adopted by the
first respondent in this
regard was not unreasonable, there is no way, in my view, that one
can describe as unjustifiable his decision
that in this case
dismissal as a sanction was too harsh.
[93] There is another factor
which makes the appellant’s case more difficult in this regard.
That is that in its founding affidavit
the appellant seeks to
portray the attitude that a failure to follow till procedures on the
part of its cashiers is regarded by
it as so serious as on its own
to justify dismissal without an employee being given the benefit of
warnings. That attitude is
not borne out by the material that the
appellant placed before the first respondent in the arbitration
proceedings. That material
revealed a different attitude as will be
shown below. According to par 10.18 of the founding affidavit:-
(a) on the 12
th
March
1996 the second respondent was charged with incorrect counting and
inaccuracy of till shortages and was issued with a written
warning;
(b) on the 14
th
June
1996 the second respondent had a till shortage of R109,00 and she
was issued with a written warning;
(c) on the 13
th
February
1997 the second respondent was charged with
“till negligence”
for ringing under a wrong department and was issued with a final
written warning;
(d) on the 13
th
February
1997 the second respondent was charged with using incorrect till
procedures and was issued with a final written warning;
(e) on the 16
th
May 1997
the second respondent was charged with using incorrect till
procedures and was issued with a final written warning.
In par 10.19 of its founding
affidavit the appellant stated :
“I wish to draw the above
Honourable Court’s attention to the fact that the charges against
[the second respondent] all related
to failing to apply correct till
procedures.”
[94] It will be seen from what has
been set out in the preceding paragraph that the first incident
occurred on the 12
th
March 1996 and that the second
incident occurred on the 4
th
June 1996 which was within a
period of four months and thus before the first written warning
could lapse and yet the appellant
did not dismiss the second
respondent but gave her only a written warning-not even a final
written warning. It will also be seen
that the three incidents
preceding the one that gave rise to this matter occurred on the 13
th
February 1997 and on the 16
th
May 1997. Two occurred on
the 13
th
February 1997 and the other one on the 16
th
May 1997.
[95] It is clear from the above
that the incident of the 16
th
May 1997 occurred within a
period of less than four months from the date of the two incidents
of the 13
th
February 1996. This means that,
when the appellant had to decide
what sanction it had to impose on the second respondent for the
incident of the 16
th
May 1997-which was one of using
incorrect till procedures- the appellant was entitled to deal with
the second respondent on the
basis that there were two final
written warnings against her which had not lapsed. Despite all of
this, the appellant did not
dismiss the second respondent. On this
occasion it imposed a third final written warning.
[96] It is also important to note
that the second incident of the 13
th
February 1997 for
which a final written warning was issued against the second
respondent involved a failure by the second respondent
to follow
correct till procedures. The one of the 16
th
May 1997
also involved a failure by the second respondent to follow correct
till procedures. One would have thought that, since
the second
respondent was already on a final written warning for the same
offence, the appellant would impose the sanction of dismissal.
That
is not what it did but it imposed another final written warning
which raises the question:- when was a final written warning
a final
written warning in the appellant’s workplace in Newcastle?
[97] The appellant did not lead
evidence on how many final written warnings an employee in its
Newcastle store had to have before
he could be dismissed. If the
second respondent’s disciplinary record is anything to go by, the
position is that the appellant’s
standard is certainly not that a
failure to follow till procedures is regarded as so serious that an
employee is dismissed for
a single act. In fact that disciplinary
record reveals that, even when an employee has a current final
written warning for failing
to follow correct till procedures,
dismissal does not necessarily follow if another incident occurs
while the previous final written
warning is current but instead
another final written warning can competently be given. If that is
the standard which the appellant
has set for its employees in
general or its cashiers in particular, then it seems to me that, the
first respondent’s decision
that dismissal was too harsh a
sanction for the second respondent’s failure to follow till
procedures is quite consistent with
the appellant’s own standard
rather than inconsistent with it. If the first respondent’s
decision is consistent with the appellant’s
standard or with how
it has disciplined its employees before, then I cannot see how the
appellant can complain that the first respondent’s
decision is
unjustifiable.
[98] If it is correct that,
generally speaking, an employer is entitled to set its own standards
of what behaviour or conduct it
expects from its employees and that
third parties and courts should not seek to impose their own
standards on the employer, which
is what the appellant has
emphasised in its founding affidavit, then, in my view, an award by
a CCMA commissioner which can be
shown to be consistent with the
employer’s standard cannot, generally speaking, be said to be
unfair or unjustifiable. In my
view that is what happened in this
case and the appellant cannot be heard to complain.
[99] Against the way in which the
appellant seems to have treated acts of failure to follow till
procedures in the past as shown
above, it must be borne in mind that
at the time when the incident in question occurred, the second
respondent had no current
warnings of any nature-not to speak of
final written warnings. A period of more than 12 months had lapsed
since she had last had
to be disciplined.
[100] The first respondent
specifically found that the second respondent was negligent. The
fact that the first respondent did
not impose any sanction eg.
final written warning on the second respondent after having found
that the second respondent was guilty
of negligence does not
preclude the appellant from itself imposing a sanction which is
short of dismissal. The appellant can certainly
impose such
sanction on the second respondent. After all discipline in the
workplace is the prerogative of the employer.
[101] In my view it is within the
contemplation of the dispute resolution system prescribed by the Act
that there will be arbitration
awards which are unsatisfactory in
many respects but which nevertheless must be allowed to stand
because they are not so unsatisfactory
as to fall foul of the
applicable grounds of review. Without such contemplation, the Act’s
objective of the expeditious resolution
of disputes would have no
hope of being achieved. In my view the first respondent’s award
cannot be said to be unjustifiable
when regard is had to all the
circumstances of this case and the material that was before him.
[102] It was argued on behalf of
the appellant that it was competent to bring a review application of
a CCMA award under s 158 (1)
(g) of the Act. This argument was
dealt with in Carephone. There are no sound reasons which justify
that we depart from the decision
taken by this Court in Carephone on
that argument. S 145 provides a specific remedy for the reviewing of
specific awards, namely,
CCMA awards. It could not have been
intended that such awards could also be reviewed under s 158 (1)
(g). S 158 (1) (g) must then
have been intended for the review of
the performance or purported performance of functions under the Act
other than CCMA awards.
Therefore this contention falls to be
rejected. In those circumstances the appeal must fail. In the
result the appeal is dismissed
with costs including the costs of two
Counsel. Such costs will exclude the costs of the second and third
respondents’ second
set of heads of argument.
----------------------
RMM ZONDO
Judge President
I agree. I agree
---------------------- ----------------------
M.M. JOFFE M.T.R. MOGOENG
Acting Judge of Appeal Judge
of Appeal
Appearances
For the Appellant: Adv J.J Gauntlett
SC ( with Adv. Wade)
Instructed by : Deneys Reitz, Durban
For the 1
st
respondent: no appearance
For the 2
nd
and 3
rd
respondents: Adv. M.S.M Brassey SC (with Adv AJP du Plessis)
Instructed by: Preller Maimane Inc
Attorneys
Amici Curiae: Adv K. Tip SC (with
Adv. A.T Myburg)
Date
of argument:
Date
of judgement: