Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA46/05) [2007] ZALAC 24; [2008] 12 BLLR 1211 (LAC) (21 December 2007)

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Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JA46/05) [2007] ZALAC 24; [2008] 12 BLLR 1211 (LAC) (21 December 2007)

22
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA46/05
In the matter between
Shoprite Checkers (Pty)Ltd
Appellant
And
The Commission for Conciliation 1st respondent
Mediation and Arbitration
Commissioner B Mbha NO 2
nd
respondent
Retail and Allied Workers Union 3
rd
respondent
J Maake 4
th
respondent
JUDGMENT
ZONDO JP
Introduction
[1] This is an appeal against an order made by Waglay J
sitting in the Labour Court in an application brought by the
appellant to
have an arbitration award issued by the second
respondent reviewed and set aside. The second respondent had issued
that arbitration
award in a dispute between the appellant, on the one
hand, and, the third and fourth respondents, on the other, about the
fairness
of the fourth respondent’s dismissal by the appellant
from its employ on 2 December 2000. The order that was made by the
Labour Court reviewed and set aside the second respondent’s
arbitration award and remitted the matter to the Commission for

Conciliation, Mediation and Arbitration (“
the CCMA
”),
the first respondent in this appeal to be arbitrated afresh by a
commissioner other than the second respondent. The third
and fourth
respondents had also brought a counter review application against
part of the arbitration award. The second respondent’s

arbitration award was to the effect that the appellant reinstate the
fourth respondent and impose what the commissioner called
a “
severe
final warning
” on him for the misconduct of which he had
been found guilty. However, the commissioner had decided that the
fourth respondent
was not to be paid any compensation. He also did
not make the reinstatement order retrospective in its own operation.
The facts
[2] I now propose to set out the facts of this case as
they emerge in the affidavits and the notes of the commissioner. In
doing
this I am quite alive to the fact that I do not have the
benefit of the transcript of the arbitration proceedings but have to
make
do with the commissioners’ notes.
[3] The facts of this case are very brief. The fourth
respondent was employed by the appellant in 1972. There was some
disagreement
about the position in which he was employed in
September/October 2000. The appellant says that he was employed as a
deli supervisor
whereas he says that he was employed as a “
perishable
controller/manager, promoted on/or about 1972
”.
[4] As a result of its concern about the problem of
shrinkage in its Silverton Store –which is where the fourth
respondent
was employed – the appellant had video cameras
installed inside the store so that it could establish the identify of
those
responsible for shrinkage in the store. It is common cause that
the appellant’s rules prohibited any eating by its employees

“in the selling areas, meat markets, prep rooms, service
departments, stockrooms of stores or in any area in view of the

customers in any other designated restricted area at their workplace.
Smoking or eating was permitted only in canteens and offices
or areas
designated as such by the manager. In this regard Rules 8 and 13 of
the appellant’s rules are the relevant rules.
[5] It was common cause that during the period 4
September 2000 to 21 October 2000 the video cameras had captured
three occasions
when the appellant could be seen eating in areas in
which eating was prohibited. For this he was subsequently charged
with misconduct,
was found guilty and was dismissed. It is common
cause that the monetary value of what the fourth respondent ate on
those occasions
is unknown. In the first incident the fourth
respondent could be seen in the video clip picking up something and
putting it in
his mouth. This was in the deli area. Thereafter, he
could be seen leaving the deli area while busy chewing. In the second
incident
he could be seen in the video clip walking towards the exit
of the deli area and he picked something from a plate and put it into

his mouth. In the third incident the fourth respondent could be seen
entering the deli area through the back entrance. He then
sits down
and starts to eat. He was the only person in that area. He then
stands up and throws away a paper and wipes his mouth
and hands. It
is common cause that shrinkage in this particular store of the
appellant had risen from 1.5% to 4%. It is also common
cause that the
fourth respondent had served the appellant for about 30 years and had
a clean disciplinary record.
Disciplinary inquiry
[6] As a result of the fact that the fourth respondent
had been captured in the video cameras eating what the appellant
believed
were its products and that he was captured on the camera
doing so in areas of the appellant’s premises in which staff
were
prohibited from eating, the appellant instituted a disciplinary
inquiry in which the fourth respondent was charged with three
allegations of misconduct of eating the appellant’s food
without authorisation in areas where doing so was prohibited. The

fourth respondent was found guilty of all the allegations of
misconduct that he had faced and was dismissed. He did not appeal

against the decision of the disciplinary inquiry.
Conciliation and first arbitration
[7] The fourth respondent was aggrieved by his dismissal
which he regarded as unfair. The appellant regarded the dismissal as
fair.
A dispute arose between the parties about the fairness or
otherwise of the dismissal. The fourth respondent referred the
dispute
to the
CCMA, initially for conciliation, and later,
for arbitration. This was to later turn out to have been the first
arbitration because
later there was another arbitration. I shall
refer to this arbitration as the first arbitration. These arbitration
proceedings
were under case no GA 12118 in the CCMA.
[8] The hearing of the first arbitration was apparently
set down for the 3
rd
April 2001. It was heard by a Mr
Mathee, a commissioner of the CCMA, under the auspices of the CCMA.
On the 3
rd
April 2001 the commissioner in the first
arbitration issued an arbitration award. In terms of that arbitration
award the commissioner
in the first arbitration found that the
appellant’s dismissal had been both substantively and
procedurally unfair and ordered
the appellant to reinstate the fourth
respondent with full retrospective effect from the date of dismissal.
At the time of the
issuing of the arbitration award only a period of
just over four months had elapsed from the date of the fourth
respondent’s
dismissal.
The first review application
[9] On the 10
th
May 2001 the appellant,
aggrieved by the first arbitration award, launched a review
application in the Labour Court to have the
first arbitration award
reviewed and set aside. That review application came before Waglay J
in the Labour Court. The Labour Court
found that the commissioner in
the first arbitration had committed “
gross misconduct in
relation to her duties as arbitrator
”. It set the first
arbitration award aside. The Labour Court decided to remit the
dispute to the CCMA to be heard afresh
by a commissioner other than
the one who had arbitrated the dispute in the first arbitration. The
order of the Labour Court was
issued on the 10
th
May 2002.
That review application was under case no JR 808/01 in the Labour
Court, Johannesburg.
The second arbitration
[10] In due course the dispute was assigned by the CCMA
to the second respondent, Mr B Mbha, a commissioner of the CCMA, to
arbitrate
the dispute afresh. I shall refer to this arbitration as
the second arbitration. The second arbitration took place on the 13
th
September 2002 and 10 July 2003. On or about 5 August 2002 the
commissioner issued an arbitration award in terms of which he found

the fourth respondent’s dismissal to have been both
substantively and procedurally unfair. This does not mean that he
found
the fourth respondent to have been innocent of the allegations
of misconduct for which he had been dismissed. In fact he rejected

both that part of the fourth respondent’s defence that he had
been authorised to taste food and to taste it in the areas
where the
video clips showed him to have eaten it and that part of his defence
which was to the effect that on one of the three
occasions shown on
the video clips he was eating his own food.
[11] It may well be that the commissioner did not have
enough evidence before him to conclude that on that one occasion the
fourth
respondent was not eating his food. But on the facts of this
case this makes a small difference as the commissioner’s
findings
in regard to the other two incidents appear to be justified
or justifiable and reasonable. If the fourth respondent was
justifiably
or reasonably found guilty of two of the three acts of
eating in a wrong area or eating the employer’s products
without permission,
it is really neither here nor there and will not
affect anything of substance that in regard to one incident of eating
he was innocent.
The commissioner found that in terms of the
appellant’s disciplinary code, dismissal was not required to
automatically follow
when an employee had been found guilty of acting
in breach of the rule that the fourth respondent was guilty of
breaching. He then
pointed out that discipline had to be progressive.
He took into account that the fourth respondent had thirty years of
service
and was a “
first offender”
. He said that
in the circumstances he felt that the sanction of dismissal was
“
severe
”. He then made an award in the following
terms:
“
1.
The applicant is given a severe (sic) final
warning which shall be valid for six months.
The company is ordered to reinstate the applicant.
No compensation is payable to the applicant due to
the fact that he consumed company products without any permission.
The effect of this award must be put into operation
within fifteen days of its despatch to the parties
.”
The award was said to be dated on the 5
th
August 2003 but, according to the writing of the commissioner just
below his signature in the last page of the award, the award
was
‘signed and submitted [on] 07 August 2003”. It is not
apparent from the arbitration award when the award was despatched
to
the parties but it would be reasonable to think that the fourteen
days from the date of the despatch of the award to the parties
would
have expired at some stage before the end of August 2003. This means
that in terms of the commissioner’s arbitration
award the
fourth respondent was to have been reinstated at some stage late in
August 2003.
The second review application
[12] The appellant was aggrieved by the arbitration
award of the first respondent. It then brought a second application
in the Labour
Court to have the award reviewed and set aside in terms
of sec 145 of the Act. The fourth respondent was aggrieved by the
finding
of the fourth respondent that he was guilty of misconduct and
the decision denying him any compensation or retrospectivity in the

operation of the reinstatement order and the decision that he be
given a “
severe
” final warning. Accordingly, he
launched a counter-review application to effectively set aside the
finding that he was guilty
of misconduct and the order that he should
not be paid compensation.
[13] In the first review application the matter had come
before Waglay J. The second review application also came before
Waglay
J. The whole review application brought by the appellant was
directed at attacking the commissioner’s finding that the
sanction
of dismissal imposed by the appellant on the fourth
respondent was severe and at the order that the fourth respondent be
reinstated.
[14] The record of the arbitration proceedings that was
filed by the appellant with the Registrar did not include the
transcript
of the oral evidence that was led in the arbitration
proceedings. A senior commissioner of the CCMA who was responsible
for the
safe keeping of relevant tapes had filed a notice to the
effect that the tapes were missing. The handwritten notes which had
been
taken by the commissioner who had arbitrated the dispute were
transcribed and the transcript was filed as part of the record of
the
arbitration proceedings. The arbitration award that the commissioner
had issued seemed on the face of it to have dealt with
the evidence
in quite some detail. It was common cause between the parties that
the acts of alleged misconduct for which the fourth
respondent had
been dismissed consisted of the fourth respondent eating in parts of
the appellant’s premises in which staff
were not allowed to eat
and the only questions were whether the fourth respondent had been
authorised to eat in those areas. In
respect of one instance the
fourth respondent had said that he had eaten his own food.
[15] Both the appellant and the third and fourth
respondents agreed that the commissioner’s notes constituted a
fair summary
of the arbitration proceedings pursuant to which the
arbitration award that was sought to be reviewed in the Labour Court
was issued.
Accordingly, they were prepared to have the review
application decided on the basis of the record that was before the
Labour Court.
There is no indication that the commissioner, that is
the first respondent, was consulted to establish what his attitude
was to
the review application being decided without a transcript of
the evidence led in the arbitration but with the benefit of only his

notes which both parties agreed constituted a fair summary of the
evidence led in the arbitration.
[16] The Labour Court, per Waglay J, expressed the view
that on what was before it, no basis existed to justify an
interference
with the commissioner’s arbitration award. He said
in part:
“
In this matter having regard to the summary of
the evidence I am satisfied that the decision of the second
respondent was not one
which is open to be reviewed.”
However, he then said:
“
However, I am mindful of the fact that there
is discontent on the part of both parties, one with regard to the
finding of guilt,
the other with the imposition of the appropriate
penalty. Because of this unhappiness compounded by the absence of a
proper record
I believe that the best course to follow is to refer
the matter to the first respondent for the matter to be arbitrated
afresh
before a commissioner other than the second respondent.”
He then went on to review and set the arbitration award
aside. He said that this was “
based on the allegations made
by the parties and the fact that the summarised transcript does not
afford me sufficient details to
categorically find in favour of one
or the other and I believe that in the circumstances it would be
inappropriate to allow the
award to stand or to grant the relief as
sought by either of the parties
.” He made no order as to
costs and remitted the dispute back to the CCMA to be arbitrated by a
commissioner other than the
first respondent.
[17] If that order given by Waglay J in the second
review application was given effect to, the new commissioner who
would arbitrate
the dispute this time around would have been the
third commissioner and the parties and the witnesses who had already
testified
in the previous two arbitrations before different
arbitrators would be called to testify in the third arbitration about
the events
which had given rise to the fourth respondent’s
dismissal. If those witnesses had given evidence in the disciplinary
hearing
which preceded the fourth respondent’s dismissal and
had been cross-examined there, the third arbitration would have
subjected
them to cross-examination for the fourth time on the same
events.
[18] The order of the Labour Court in the second review
application was issued on the 13
th
August 2004. That would
have been over three and a half years since the fourth respondent’s
dismissal. What would happen
if some important witnesses who had
given evidence in the earlier two arbitrations were, for some or
other reason, no longer available
to give evidence? What would happen
if the unavailability of some or other important witness who had
testified in the earlier arbitrations
led to a result which could not
have ensued if he had been available and had given evidence? Of
course, the result could well be
a miscarriage of justice.
The appeal
[19] The appellant’s case is based on the
proposition that the sanction of dismissal was appropriate for the
acts of misconduct
of which the fourth respondent was guilty and that
the commissioner’s conclusion that it was not fair was
unjustifiable and
should be reviewed and set aside. The decision of
the commissioner that dismissal was too harsh as a sanction is,
broadly speaking,
reasonably reasoned. Even if one were to test it on
the basis of whether it is justifiable in relation to the reasons
given for
it, it would, without the slightest doubt, survive the
test. If one tests it against the test of unreasonableness in
accordance
with the decision of the Constitutional Court in
Sidumo
& another v Rustenburg Platinum Mines Ltd and others, case no
CCT85/0
6, as yet unreported, which was handed down on the 5
th
October 2007, there is no doubt, that it is reasonable because it
cannot be said that a reasonable decision-maker could not reach
the
same conclusion. In fact I would go so far as to say that there is no
prospect that a reasonable decision – maker –
including a
CCMA commissioner – could, on the facts of this case, find that
dismissal was a fair sanction. Any attempt by
the appellant to seek a
forum that will make such a finding is, in my view, an exercise in
futility. Two commissioners of the CCMA
– acting separately and
independently of each other - have already found that the sanction of
dismissal was excessive in
this case. Waglay J, sitting the Labour
Court, already expressed the view that there was no basis to
interfere with the finding
of the second commissioner. Now three
Judges of this Court have come to that conclusion without any
hesitation. There is, in our
view, no justification for the appellant
to continue to delay the final reinstatement of the fourth
respondent.
Cross-appeal
[20] The third and fourth respondents had brought a
counter – review application to set aside the commissioner’s
decision
that the fourth respondent was guilty of misconduct, that he
should be given a “
severe final warning
” and that
he should not be paid any compensation or to set aside the decision
not to make the operation of his reinstatement
retrospective. I have
already said above that one of the incidents of the fourth
respondent’s eating that was shown in the
video clips was one
in respect of which he said that he was eating his own food. This
evidence does not appear to have been controverted
but, even if it
was his own food, it seems that eating it where he was shown to have
been eating it would still have been a breach
of the relevant rule of
the appellant prohibiting eating in certain areas in the premises.
But even if the matter could be dealt
with on the basis that he was
guilty of eating on two rather than three occasions this would not
make any material difference to
the sanction.
[21] The third and fourth respondents contended in their
counter – review application that the commissioner’s
decision
to impose a “
severe final warning
” on him
was unjustifiable and irrational. It was not the third and fourth
respondents’ case that, if the fourth respondent
was, indeed,
guilty of misconduct, the so-called “
severe final warning
”
imposed by the commissioner was excessive. Their complaint about it
seems to have been based on the contention that the
fourth respondent
was not guilty of any misconduct at all. In my view there is no
proper basis to interfere with the sanction of
a “
final
warning, severe or not
. The fourth respondent was guilty of
either three or at least two acts of misconduct. He should be
disciplined for that. The commissioner
deemed a final warning that is
severe as appropriate. No proper basis to interfere with the
commissioner’s decision in this
regard has been shown.
[22] The third and fourth respondents also contended in
their counter-review application that the commissioner’s
decision
not to make his reinstatement retrospective or that he
should not be paid any compensation was unjustifiable and irrational
and
should be set aside. In this regard it is interesting to remember
that the commissioner who conducted the first arbitration had
ordered
that the fourth respondent’s reinstatement be with full
retrospective effect from the date of his dismissal on the
2
nd
December 2000. That arbitration award had been handed down on the 3
rd
April 2001. The arbitration award that is now the subject of these
proceedings was issued in August 2003 – that is about
a year
and a half later.
[23] The only reason that the commissioner advanced in
his arbitration award for his decision that the fourth respondent
should
not be paid compensation was that “[the fourth
respondent had] consumed company products without any permission. In
other
words it was part of the penalty or sanction that the
commissioner imposed upon the fourth respondent for the same
misconduct for
which he also imposed the “
severe final
warning
”. Was it justifiable, rational or reasonable for
the commissioner to impose this sanction or penalty in addition to
the “
severe final warning
”. I turn to deal with
this question below.
[24] The conduct of the fourth respondent for which the
commissioner sought to punish the fourth respondent by way of denying
him
compensation or backpay or the retrospectivity of the operation
the reinstatement order was conduct for which he had already
punished
him by way of a “
severe final warning
”.
The fourth respondent had 30 years of service in the company. He had
never been found guilty of any misconduct in his 30
years of service
in the appellant. In other words he had a clean disciplinary record.
As a result of the appellant’s conduct
in dismissing him (when
he should not have dismissed him), the fourth respondent had already
been out of employment for about two
and a half years at the time
that the commissioner issued the award denying him compensation and
not making his reinstatement retrospective.
[25] The fourth respondent had been working for the
previous 30 years and suddenly he was without employment for two and
a half
years. Living without income must be very difficult for
anybody. It would even be more difficult for a person who for 30
years
had always had a job. The suffering that the fourth respondent
must have gone through for that period of two and a half years when

he had to live without income is suffering which could not and cannot
be undone by any compensation that he could have been or
can be
awarded or any retrospective operation of the order of reinstatement
that could have been made in his favour. What had happened
had
happened. In other words, even if the commissioner had ordered that
the fourth respondent be paid compensation as well or that
his
reinstatement should operate retrospectively, the fact would remain
that he had been subjected to that suffering and indignity
for two
and a half years. The effect of the commissioner’s decision
that the fourth respondent should not be paid any compensation
or
that the order of reinstatement should not operate retrospectively
was that it was not only fair that the fourth respondent
should be
given the so called “
severe final warning
” but it
was also fair that he should have gone without income for that length
of time and that, furthermore, when he had
been successful, he should
not be compensated at all for any of that period. In my view such a
decision was not justified or rational
nor was it reasonable. How do
you say on the one hand that an employee should not have been
dismissed and, therefore, should have
been working and earning income
for the period that he was waiting for the arbitration and litigation
to come to finality but still
say that it was fair that he should
not
have received income. In addition to all that I have said,
it must be remembered that the neither the appellant nor anybody was

able to say what the value was of the company food that the fourth
respondent ate – in so far as it was company food. It
could
have been worth R 10,00 or R 20,00. If one has regard to the evidence
it seems that on at least two of the occasions which
the appellant
relied upon the fourth respondent was very much like a customer who,
while shopping in a shop such as Shoprite Checkers,
picks up a grape
here or a grape there and eats it. If one were to assume that the
company food that the fourth respondent ate
could be valued at R
10,00 – which is possible and that the fourth respondent’s
monthly salary was R 1000,00, the effect
of the commissioner’s
decision that he should not be paid compensation and that the order
of reinstatement should not operate
retrospectively is that the
appellant does not have to pay him about 33 months salary (from 2
December 2000 – August 2003)
– an amount of R 33 000,00
at R 1 000,00 per month. This – in addition to a “
severe
final warning
”?
[26] In my view this can simply not be right. Indeed, it
can neither be justifiable nor reasonable. I know that from the
appellant’s
point of view this cannot simply be about the
monetary value of the food that the fourth respondent ate. For the
appellant, it
is probably about a principle and the real problem of
shrinkage that it and other similar businesses face every day. I am
not ignoring
any of this. I am mindful of it but, nevertheless, when
all the relevant circumstances are taken into account I am of the
opinion
that a reasonable decision-maker could not, in the
circumstances, of this case, have concluded that an employee who had
a clean
disciplinary record such as the fourth respondent and had 30
years of service should, in addition to getting a “
severe
final warning
” for this type of conduct, also forfeit about
R 33 000,00 for eating food that could well have cost less than
R20,00. I do
not think that a reasonable decision maker could have
sought to impose any penalty in addition to the “
severe
final warning
”. If he did, and its effect was that the
fourth respondent should forfeit back pay – it probably would
not have been
more than three months. The commissioner who arbitrated
the dispute in the first arbitration had ordered that the
reinstatement
of the fourth respondent be fully retrospective to the
date of his dismissal. At that time the fourth respondent had been
out of
work for only five or so months. Had the matter ended there,
the fourth respondent would have received his full back pay. Instead

what happened is that the appellant took that award on review. It
succeeded and the matter was referred back to the CCMA to be

arbitrated afresh by another commissioner. It was arbitrated by the
commissioner. The fourth respondent was once again successful
but was
not awarded compensation nor was his reinstatement made retrospective
in its operation. The appellant once again took the
award on review.
The Labour Court once again sought to remit the matter to the CCMA to
be arbitrated afresh by another commissioner
and then there was this
appeal.
[27] It seems to me, having regard to all of the above,
that this Court should interfere with that part of the commissioner’s

award which ensured that the fourth respondent did not get paid any
compensation or back pay. I propose to make an order the effect
of
which would be that he gets paid full back pay unless that is not
competent.
[28] As the third respondent had been dismissed on the
2
nd
December 2000, the reinstatement would have occurred
in August 2003 – two and a half years after his dismissal. Of
course
he was not reinstated because the appellant then brought a
review application in the Labour Court and he brought a counter
review
application. The judgment of the Labour Court which set aside
the commissioner’s award and sought to remit the dispute to
the
CCMA for arbitration by another commissioner appears to have been
handed down in August 2004. That was just over three and
a half years
from the date of dismissal. If that order was implemented, the third
arbitration of the dispute would have probably
occurred at some stage
towards the end of 2004 or early in 2005. If the outcome of that
arbitration award was the same as the previous
two arbitrations in
that the fourth respondent’s dismissal was found to have been
substantively unfair and the appellant
might well have instituted a
third review application in the Labour Court because it seems to feel
very strongly that, despite
everything else in this case, including
the fourth respondent’s clean disciplinary record over 30 years
of service, he should
be dismissed, then the litigation in this
matter could have gone completely out of control.
[29] The Supreme Court of Appeal has now said that the
right to reinstatement of an employee who has been dismissed for no
fair
reason – for in terms of the Labour Relations Act –
no other employee can competently be reinstated – is eroded

with each year that he awaits reinstatement. If this view is correct
– and I refrain from expressing my view on this principle
–
then if the matter was referred back to the CCMA and later there was
a review application in the Labour Court, an appeal
to this Court and
further, then by the time that the litigation came to an end this
employee’s right to reinstatement would
probably have become
completely eroded and it would be said that an order reinstating him
would be “
impractical
”. In this regard I use
“
impractical
” in the sense as used in the SCA’s
judgment in Republican Press matter. I must stress that when I say
this I am not
saying that in my view it would be impractical to
reinstate the fourth respondent at such a stage. All I am saying is
that it is
conceivable that, on the approach taken by the SCA in the
Republican Press case, it might be said that a reinstatement at that
stage would be impractical.
[30] In the light of the above history and the facts of
this case, I am of the view that, even though the commissioner was
not given
an opportunity to state what his attitude was to the review
application in this matter being decided without the transcript of
the proceedings before him, the matter can be decided without such
transcript and this will not result in any injustice to either
party
and to the commissioner. In this regard I emphasise that the employer
and employee are happy that the record before the Court
represents a
fair summary of the proceedings that took place before the
commissioner. I am of also influenced in this regard by
the fact that
exactly what the fourth respondent did which the appellant contends
is misconduct but which the fourth respondent
contends is not
misconduct is common cause. If what the fourth respondent did
constituted misconduct, the question whether dismissal
was a fair
sanction does not require evidence. The evidence that is relevant is
before the Court. That is that previous cases where
employees were
found guilty of the same misconduct alleged against the fourth
respondent were all dismissed and that the fourth
respondent had 30
years of service with the appellant had a clean disciplinary record.
We also know that commissioner decided that
for the two and a half
years after his dismissal – that is before the arbitration
award was issued – the fourth respondent
should receive no
compensation. For what the fourth respondent was found guilty of –
and I accept that shrinkage is a problem
in shops such as the
appellant’s shops and in similar businesses – to say that
an employee who has worked for you for
over 30 years and has a clean
disciplinary record should be dismissed is, quite frankly, difficult
to understand.
[31] To say that the employee should not have been
dismissed but now that he was dismissed, he should be in the same
position as
someone who deserved to be dismissed in the first place
and should not be compensated for all the two and a half years during
which
he was waiting for the outcome of litigation is in my view,
unreasonable.
[32] In conclusion I am of the view that the absence of
the transcript of the arbitration proceedings in this case should not
on
the facts of this case, preclude the consideration of the review
application by the Labour Court. There had been a lengthy delay
in
the finalisation of the matter. This was a second review application.
There had been two arbitrations in regard to the same
dispute. The
employer and employee were happy that the commissioner’s notes
constituted a fair summary of the evidence led
in the CCMA. Most of
the facts were common cause. Two arbitrators of the Labour Court had
expressed the view that dismissal was
not an appropriate sanction. A
Judge of the Labour Court had expressed the view that there was no
basis to interfere with the commissioner’s
decision on
sanction. This Court was unanimously of view that there were no
reasonable prospects that any reasonable decision-maker
could reach a
decision that dismissal was a fair sanction for the misconduct of the
fourth respondent. Litigation had to come to
end at some stage. It is
not in the interests of justice that the matter should not be dealt
with on the merits.
[33] With regard to costs I am of the opinion that each
party should pay its own costs. In the result I make the following
order:
1. The appeal is dismissed and the cross-appeal is
upheld in part.
2. Each party is to pay its own costs in regard to the
appeal and cross-appeal.
3. The order of the Labour Court is set aside and
replaced with the following order:
“(a)
The review application is dismissed.
There is to be no order as to costs.
The counter-review application is granted in part.
The commissioner’s decision not to make the
operation of the order reinstatement retrospective to the date of
dismissal
is hereby reviewed and set aside.
There is to be no order as to costs.
The commissioner’s arbitration award is
amended by the addition of the following order thereto:
“
(i) The order reinstating the applicant is to
operate with retrospective effect to the date of the applicant’s
dismissal.”
Zondo JP
I agree.
R Pillay AJA
I agree.
Kruger AJA
Appearances
For the Appellant : Adv GA Fourie
Instructed by : Perrott, Van Niekerk Woodhouse
For the Respondent : Union official
Instructed by : Retail And Allied Workers Union
Date of judgment : 21 December 2007