South African Chemical Workers Union and Another v Marble Hall Spar (DA14/00) [2001] ZALAC 24 (29 June 2001)

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[2001] ZALAC 24
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South African Chemical Workers Union and Another v Marble Hall Spar (DA14/00) [2001] ZALAC 24 (29 June 2001)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO:
DA14/00
In the matter
between:-
SOUTH AFRICAN
CHEMICAL WORKERS UNION
First Appellant
SUSAN
MAMAHLODI
Second Appellant
and
MARBLE HALL
SPAR
Respondent
___________________________________________________________________
JUDGMENT
___________________________________________________________________
JOFFE,
AJA
The second
appellant was employed by the respondent as a cashier. On 21 May
1996 the respondent, represented by one Mr Panayiotes,
accused the
second appellant of stealing R 300-00. Second appellant was
immediately suspended from her duties with full remuneration.
A
criminal charge of theft was laid against second appellant. This
resulted in second appellant’s arrest and subsequent arraignment
in the Marble Hall magistrates’ court.
The second
appellant was duly convicted on a charge of theft and was sentenced
on 26 July 1996.
Subsequent to
the finalisation of the criminal trial, the respondent convened a
disciplinary enquiry. The enquiry was held on 29
August 1996. It
was held in the absence of the second appellant and her
representative. At the disciplinary enquiry the second
appellant
was found to have committed the theft. The sanction imposed on her
was one of dismissal.
A conciliation
board was unable to settle the dispute between the appellant’s and
the respondent. The matter was referred to
the Industrial Court.
The appellants sought an order declaring the dismissal of the second
appellant to have been an unfair
labour practice and requiring the
respondent to reinstate the second appellant. It was contended on
behalf of the appellant’s
that her dismissal was both
procedurally and substantively unfair.
In a written
determination the Industrial Court held that the second appellant’s
dismissal was both procedurally and substantively
fair and did not
constitute an unfair labour practice. The application was
accordingly dismissed. The respondent was awarded
costs on the
highest magistrates’ court scale. This appeal is against that
determination.
It is common
cause that the respondent operates a supermarket. Second appellant
was one of the cashiers employed by it. It was
customary for the
cashiers to cash-up their cash registers at approximately 13h30 each
day. For this purpose each cashier would
attend in Panayiotes’s
office. His office was located on a higher floor than the trading
area of the supermarket and access
to it was gained up a flight of
stairs. It is not in dispute that Panayiotes office is extremely
small. It is, at most, some
2 metres by 2 metres. It appears
that there is a working surface in the office which runs the width
of the office. Whilst checking
the cash in the Panayiotes would
sit in front of the working surface. The cashier would stand
alongside Panayiotes.
According to
Panayiotes it was the custom of the cashiers to obtain coinage for
their cash registers whilst in the process of cashing-up
their
registers. To this end bags containing coins in different
denominations were kept on the floor in the office behind
Panayiotes.
Thus there were bags containing R 5 coins, R 2 coins,
R 0.50 coins as well as all smaller denominations of coins. Each
denomination
of coin was packed in individual containers. Thus the
R2-00 coins were contained in bags of 25 coins each, having a total
value
of R 50-00. Whilst Panayoites was in the process of checking
the money in their cash registers, the cashiers would remove from
the aforesaid bags the change they required for their cash registers
and place it, still in its individual container,in their cash
register so that Panayiotes could have account thereof.
According to
Panayoites as at 21 May 1996 he had reason to believe that a member
of his staff was stealing R 2-00 coins. Indeed
the suspicion was
that one of the cashiers employed by respondent was the thief and
that the theft was committed when the cashier
or cashiers came to
Panayiots’s office to cash-up. His suspicion fell particularly on
second appellant as she did not come to
his office on 20 May 1996 to
cash in and on that day no R2-00 coins went missing.
Panayiotes
testified that on 21 May 1996 second appellant came to cash-up. At
that time there were 8 packets of R 2-00 coins in
the R 2-00 coin
bag behind Panayiotes’s back. During the cashing up process
second appellant took one packet of R 2-00 coins
and placed it in
her cash register. When the process of cashing up was completed and
second appellant had left his office, Panayiotes
inspected the R
2-00 coin bag and found only one packet left. He accordingly
assumed
that second appellant had stolen the other six bags
.
Panayiotes
immediately followed second appellant to her till. He enquired from
her how many packets of R 2-00 coins she had removed.
She replied
that she had taken one packet. Panayiotes then requested second
appellant to go to his office. He there explained
to her that 6
packets of R 2-00 coins were missing. Second appellant denied
taking the coins. Panayiotes testified that as
he turned around to
call his father to the office, he saw the second appellant make a
sudden movement. This he saw out of the
corner of his eye. He
testified that when he looked back at the second appellant the cap
that she had been wearing was on the
office flood. Inside the cap
were the missing packets of R 2-00 coins.
It is the
respondent’s case that, when removing the one packet of R 2-00
coins, the second appellant secreted the 6 other packets
on her head
under her cap and removed the coins in that manner from
Panayiotes’s office. In this regard it should be pointed
out that
the cap worn by second appellant was given to her by respondent and
was being worn as part of a business promotion conducted
by second
respondent.
Second
respondent denied Panayiotes’s version and denied having stolen
the coins at all.
Only two
witnesses gave evidence as to the events which occurred in
Panayiotes’s office on the day in question. They were second
appellant and Panayiotes. The presiding officer in the court a quo
correctly points out that there were two conflicting versions
before
him as to what had occurred on 21 May 1996. He makes no finding as
to credibility and proceeds to deal with the matter
on the
probabilities. By implication he rejects second appellant’s
evidence as being improbable and finds Panayiotes’s evidence
probable.
In accepting
Panayiotes evidence the court a quo does not address
the
inheret improbabilities in his version. First, the office in
which the
events
took place is extremely small, yet Panayiotes heard nothing
when
second appellant removed the extra 6 packets of coins. It is not
suggested
that the coins were packed tightly. It is improbable that
whilst
being picked up and placed on second appellant’s head,they
would
not at least have jingled and so alerted Panayiotes. Second, it
is
improbable that second appellant would have been prepared to risk
detection
by stealing the coins in the manner alleged in such close
proximity
to Panayiotes.Third, it is improbable that the bodily
movement
which second appellant must have executed, would not have
attracted
Panayiotes’s attention, particularly in view of the fact that
he
was
suspicious of second appellant. Fourth, it is improbable that
one
or
more of the bags would have fallen off second appellant’s head
despite
the
cap when going up an down the stairs.
15.regard
being had to the aforegoing, the court a quo erred in accepting
Panayiotes’s
evidence.
16.The
onus was on respondent to establish that second appellant stole
the
money. In the absence of discharging that onus, the court a quo
should
have found that the dismissal of the second respondent was
substantively
unfair.
17.In
the circumstances it is not necessary to consider whether the
dismissal
was
procedurally fair.
18.It
was not contented by respondent’s counsel that reistatement
was
not
an appropriate remedy despite the lengthy period of time that was
elapsed
since the second appellant’s dismissal.
19.Second
appellant is also entitled to receipt of remuneration during her
period
of unemployment . The trial in the court a
quo
commenced
on 11 May 1998. It was enrolled for 4 days. Properly
conducted
in that time. What largely precluded the proceedings being
determined
was the lengthy and largely irrelevant cross-examination of
Panayiotes
by appellant’s legal representative. The inordinate duration
of
the cross -examination is apparent form the record. Panayiotes’s
evidence
in chief runs to 29 pages. His cross-examination runs to 239
pages.
20.Had
the matter been properly handled it would have been concluded in
May
1998. Accordingly it would be equitable if respondent is only
ordered
to pay second appellant the remuneration she would have earned
from
termination of her employment to 31 May 1998.
21.As
far as costs are concerned the conduct of the matter in the court a
quo
was such as to preclude the appellant being awarded the costs and
for
a special cost order to be made. In addition to what has already
been
referred to. appellant’s legal representative wasted 4 court days
with
an abortive recusal application. In these circumstances it would
be
just and fair if each party were to pay their own costs in the court
a quo.
22.As
far as the costs of appeal are concerned the respondent ought not
to
bear the cost of the preparation of the record.
23.In
the result the following order is made:
1.
The appeal is upheld. Appellants are awarded the costs of
appearance on appeal and for the
preparation of the heads of
argument. Save as already ordered each
party is to pay
their own costs an appeal.
2.
The order of the court a quo is set aside and substituted
with the following:
2.1 “the second applicant is to be
reinstated on terms and
conditions no less favourable
than those which govern
her employment at the time of her
dismissal.
2.2 the respondent is to pay the
second applicant the
remuneration she would have earned
from the
termination of her employment to
31 May 1998.
2.3 Each party is to pay their own
costs.
-------------------------------
M
M JOFFE
ACTING
JUDGE OF APPEAL
I
agree
-------------------------------
R
M M ZONDO
JUDGE
PRESIDENT
I
agree
----------------------------
J
TRAVERSO
ACTING
JUDGE OF APPEAL
Date
of Judgment: 29 June 2001