Boxer Superstores (Pty) Limited v Zuma and Others (DA6/2007) [2008] ZALAC 7; [2008] 9 BLLR 823 (LAC); (2008) 29 ILJ 2680 (LAC) (9 May 2008)

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[2008] ZALAC 7
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Boxer Superstores (Pty) Limited v Zuma and Others (DA6/2007) [2008] ZALAC 7; [2008] 9 BLLR 823 (LAC); (2008) 29 ILJ 2680 (LAC) (9 May 2008)

DA6/2007-DKDJ
6
JUDGMENT
LOM Business Solutions t/a Set LK Transcribers
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
DURBAN
CASE NO
: DA6/2007
2008-05-09
In the
matter between
BOXER SUPERSTORES (PTY) LIMITED Appellant
And
NOKUTHULA GRACE ZUMA & OTHERS Respondent
_________________________________________________________
J U D G M
E N T
_________________________________________________________
DAVIS JA
:
[1] This is an appeal against a judgment of Pillay J,
7 February 2007 in which she granted an application for
review
of an order of the third respondent.
Briefly, the matter involved allegations of dishonesty which the
appellant lodged against the first respondent. The first respondent
had been charged with misconduct for allegedly removing cash when
loading an ATM machine in a shop situated in Eshowe. According
to
the appellant there were three such incidents and an amount of R9 400
was, in appellant’s view, stolen by the first respondent.
[2]
When the case came before the third respondent on arbitration, the
questions which confronted third respondent were whether
the first
respondent had been dismissed fairly, both procedurally and
substantively. The third respondent concluded that the appellant
had
complied fully with the statutory requirements of procedural
fairness.
[3]
In evaluating the substantive reasons for the dismissal and
whether there had been compliance with substantive fairness,
third
respondent found thus: “The standard approve applicable
in
arbitration
is the civil law standard which is on a balance of probabilities.
The arbitrator must weigh up the probabilities as presented
in
evidence and decide whose version is the more probable”.
[4] In
this case, the arbitrator was unable to decide the issue on a balance
of probabilities: “Both parties’ versions seemed
equally probable
and because the employer bared (sic) the onus, they will lose the
case. A minor compensation award will however
be applicable.” The
third respondent then ordered the appellant to pay compensation in
the amount of R7 605 which amounted
to the value of three
month’s remuneration.
[5] On
review, Pillay J, found that this award was wholly irrational.
She concluded, “the proper approach if the arbitrator
found, as he
did in the case, that the versions were equally probable, was to
grant absolution from the instance, but the employer
had failed to
discharge the onus of proving the substantive and procedural fairness
of the dismissal. The award of compensation
was wholly incongruent
with the finding that the employer had not discharged the onus”.
[6] The
learned judge then concluded, “In the absence of any finding that
the employee was in fact guilty of misconduct, the only
appropriate
remedy was to reinstate the employee fully and substantively on the
same terms and conditions of her employment, as at
the date of
dismissal, i.e. 27 September 2004”.
[7] On
appeal, Mr Smithers who appeared on behalf of appellant, raised three
separate arguments against the finding of Pillay J.
In the
first place, he referred to the answering affidavit which had been
deposed to in the proceedings before the court
a quo
by the
appellant (the affidavit was deposed to by Mr Vusi Zuke) in which the
following was stated as to the basis for the review:
“The
applicant has not requested that this honourable court substitute its
own finding in place of the order made by the arbitrator
in the
award. The applicant has merely asked that the award be reviewed and
set aside. In the circumstances, I believe that if
the applicant
succeeds in this review application, she will request that the CCMA
sets the matter down for arbitration again.
If the
third respondent was not successful in its condonation application,
it is likely the applicant will succeed in the review application
and
the matter will be referred back to the CCMA for arbitration”.
[8] That
is the only evidence dealing with the basis of the application for
review brought by third respondent before Pillay J.

Accordingly, Mr Smithers submitted that there was, in fact no basis
on the review application for Pillay J to have substituted
the
decision of the third respondent and reinstated the first respondent
without more. In short, Smithers submitted that the relief
granted
by Pillay J was beyond the scope of the relief sought. The
proper approach which Pillay J should have adopted
would have
been to refer the matter back to third respondent.
[9] Secondly,
in attacking the conclusion reached by the court
a quo
that
“the only appropriate remedy was to reinstate the employee fully”.
Mr Smithers correctly referred to the architecture
of the
Labour Relations Act 66 of 1995 (‘the Act’) and particularly to
section 193(2) thereof. In a case, as in the present
dispute, where
it is found that an employer has not discharged the onus of proving
that a dismissal was fair, the competent remedy
is that of
reinstatement. Reinstatement is in effect, the default position.
Section 193(2) sets out alternative remedies that the
Labour Court
or an arbitrator may utilise other than reinstatement. These include
reemployment or compensation.
In
Volkswagen SA (Pty) Ltd v Brand NO & Others
,
2001 (5) BLLR 558 (LC) 582, Landman J found that is was not
open to an arbitrator, if the circumstances surrounding the
dismissal
were that a continually employment relationship would be intolerable,
nevertheless to order reinstatement. In these circumstances,
an
arbitrator would have no discretion she could only award compensation
and not reinstatement. In short, section 193(2) mandates
the
arbitrator or the court, where applicable, to examine the factors set
out in the section, in order to craft the remedy. If the
evidence
indicates, for example, that a continued employment relationship is
intolerable, the arbitrator cannot reinstate but must
employ an
alternative remedy, in this case compensation. Mr Smithers correctly
noted that Pillay J had not engaged with the
requirements of
section 193(2) but simply concluded that the only appropriate remedy
was to reinstate. The only appropriate remedy
may well have been to
reinstate but that could not simply be concluded without more. The
enquiry required an engagement with the
requirements of section
193(2) and the evidence before the court as to the nature of the
relationship between the parties.
[10] Thirdly,
Mr Smithers referred to the nature of the review and in particular
Section 145(4) of the Act. Briefly, in
South Africa Fibre Yarn
Rugs Ltd v CCMA & Others
, 2005 (6) BLLR 608 (LC)
at para 20, the court said, “Section 145 of the LRA obliges this
Court to scrutinise
the legality and regularity of CCMA arbitration
awards on review and not to substitute a decision by the Labour Court
in place of
the CCMA Commissioner. The section grants a power of
review not appeal. As a general principle therefore, this court
should be
reluctant to substitute its own decision for that of the
CCMA. However in exceptional circumstances and in the interests of
speedy
resolution of disputes, this principle may be departed from.
The Court has a discretion to exercise judicially upon a
consideration
of the facts of each case … In this regard, the
court will have regard to whether a fresh consideration would lead to
a result,
which is a foregone conclusion; the importance of time
considerations; the willingness and likelihood of the body being able
to reapply
its mind to the issues at stake; whether any indications
of bias or incompetence cannot be remedied and whether the court is
in as
good a position as the functionary under review to make the
decision itself”.
In this
particular case, it is uncertain as whether the court was in a better
or in the same position as third respondent to make
the decision that
it did. This Court has no evidence as to the nature of the
relationship between the two parties and whether it
was so
intolerable to justify a movement away from the default position,
that is of reinstatement.
[11] The
third respondent’s award was manifestly irrational and to that
extent the judgment of Pillay J is correct. It is irrational
because
the third respondent gave no reasons for awarding compensation after
having found that the appellant had failed to discharge
the onus in
relation to substantive dismissal. What third respondent should have
done was to have said in effect: I have examined
the evidence. It
appears to me that, given the grave nature of the charges levelled
against first respondent that is of dishonesty,
it is clear that the
relationship between the two parties is at the level where they
cannot longer work together. Reinstatement
would therefore be
inappropriate, reemployment would be inappropriate because of the
conclusions reached by the appellant as set
out in my award.
Accordingly in terms of the powers that, I have under Section 193(2),
I make a small award of compensation.
[12] Third
respondent did not adopt this approach. There is thus no evidence
before this court or before the court
a quo
, which would
justify a court to substitute a decision taken by the third
respondent and replace it with its own. For these reasons
I am
satisfied that the judgment of Pillay J, stands to be set aside
and that the appeal should succeed.
There was
considerable debate in court regarding the appropriate course of
further conduct of this dispute. It appears that it would
be unfair
to the first respondent to have this matter reheard afresh. She has
been found to have been dismissed unfairly, that finding
must stand.
One cannot allow the appellant another bite of the proverbial ‘legal
cherry’ in relation to that particular question.
What remains for
determination is, on the appropriate evidence: what is the
appropriate remedy given the finding of substantive
unfairness in
this case?
For these
reasons therefore, the following order is made:
The appeal against the judgment of the court
a quo
is upheld;
The matter is remitted to third respondent, who is directed to:
record his reasons for the remedy which he granted on 31 March
2005;
hear such evidence as the parties are in a position to lead before
him on the following issues:
the sanction which falls to be imposed in consequence of the
unfair dismissal of the applicant, including the question of

whether or not is competent to order the applicant’s
reinstatement to her former employment with Boxer Superstores
(Pty)
Ltd;
If so, whether or not reinstatement should be ordered;
If so, should the reinstatement be retrospective and for what
period.
Insofar as costs are concerned, I propose that no order of costs
should be made, that both parties should pay their own costs.
This
case is unfortunate because the third respondent failed to adopt the
proper course of action and that has been perpetrated
further,
compelling an appeal to be lodged by the appellant. I consider that
it would only be fair that there is no order as to
costs.
LEEUW JA AND NDLOVU AJA
: Concurred.
---oOo---
Appearances
For the appellant Mr MDC Smithers
Instructed
by Deneys Reitz Inc
For the
first respondent Mr I J Manickum
Instructed
by Durban Justice Centre