Shoprite Checkers (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JA 08/2004) [2008] ZALAC 9; [2008] 9 BLLR 838 (LAC); (2008) 29 ILJ 2581 (LAC) (20 June 2008)

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Shoprite Checkers (Pty) Ltd v Commission For Conciliation, Mediation and Arbitration and Others (JA 08/2004) [2008] ZALAC 9; [2008] 9 BLLR 838 (LAC); (2008) 29 ILJ 2581 (LAC) (20 June 2008)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD AT
JOHANNESBURG)
Case No.: JA 08/2004
SHOPRITE
CHECKERS (PTY) LTD Appellant
and
COMMISION FOR
RECONCILIATION,
MEDIATION &
ARBITRATION First Respondent
ROMODIKE, W,
N.O Second Respondent
SOUTH AFRICAN
COMMERCIAL CATERING
AND ALLIED WORKERS
UNION Third Respondent
NKUNA,
S Fourth Respondent
JUDGMENT:
DAVIS
JA:
Introduction
[1] On 15 November 2000, appellant charged fourth respondent, an
assistant baker at its store in Louis Trichardt as follows:
‘1. Dishonesty,
alternatively in breach of company rules in that you consumed
company
property without paying;
2. Breach of company
rules in that you consumed food and drink in places not
designated therefore.’
[2] On 13 December 2000
the fourth respondent was found guilty as charged at a disciplinary
enquiry and subsequently dismissed. He
challenged both the
substantive and procedural fairness of his dismissal at an
arbitration convened by first respondent and presided
over by second
respondent.
[3] On 11 September
2001 second respondent found that fourth respondent’s dismissal had
been substantively unfair, on the basis
that he was not guilty of the
charges of misconduct brought against him. Accordingly he ordered his
reinstatement.
[4] On 23 October 2001
appellant launched an application for review to set aside second
respondent’s award in terms of section
145 of the Labour Relations
Act 66 of 1995 (‘The Act’). On 26 September 2003 Revelas J, in
the Labour Court, handed down a
judgment in which she found that,
while second respondent’s findings on guilt were open to attack on
review, the sanction of dismissal
was unfair in the circumstances.
Accordingly, she substituted second respondent’s award of
reinstatement to that of a final written
warning. With leave of the
court
a quo,
appellant has come before this court on appeal
against this decision.
The substance of
the dismissal
[5] On appeal, Ms
Sikhakhane counsel for fourth respondent, conceded that the appellant
had proved the charges against her client.
Accordingly, the case
turned exclusively on the nature of the appropriate sanction.
[6] This concession was wisely made. The evidence of Mr van Staden,
the
administration manager of appellant and Mr Mthombeni, the store
manager, confirmed that appellant had installed surveillance video
cameras in the store during October 2000. Fourth respondent was
clearly captured on these video cameras contravening store policy
on
two separate occasions. On 7 October 2000 the video shown to second
respondent revealed that fourth respondent had eaten a plate
of pap
and that, before he consumed the pap, he had ensured that the roller
door was closed so that no one could see his actions.
[7] On 11 October 2000
the video revealed fourth respondent removing a piece of
bread from the preparation table of the deli, a department of the
store in which he did not work. He consumed the bread after having
opened and looked into the “pap cooker” in the deli to see if the
pap was ready. Less than an hour later, having placed a plate
of
pap on a trolley in the preparation area of the bakery, fourth
respondent proceeded to eat the pap while in the process “blocking
the whole view of the food with his back”, according to the
testimony of Mr van Staden which was uncontested. Further, as Mr
van Staden testified, he was found “peeping around to see if
someone was coming” Mr van Staden also confirmed that fourth
respondent
was careful not to consume any food when other people
passed by him. Two hours later fourth respondent sat down at the
preparation
table and ate pap from a dish or container, having
decanted it from another container.
[8] The fourth respondent’s developed a defence to the theft of the
three helpings of pap and the piece of bread as well as the
prohibited consumption thereof in the preparation areas in the bakery
and the deli. He claimed that he had purchased the pap from
Ms
Mudumela, an informal food trader, who delivered the food to him at
work. Hence he denied that he had stolen pap from the store.

While the piece of bread that fourth respondent consumed belonged to
appellant and was consumed without permission having been
obtained,
he claimed that he had eaten it in “the process of testing the
bread which had been baked the previous day for [the deli
staff…]
to prepare sandwiches”. He further testified that Mr Mthombeni had
given employees, such as fourth respondent in the
bakery and deli,
permission to drink tea and coffee and eat at their work places.
Accordingly, he had not contravened any rule
by virtue of his conduct
depicted on the video.
[9] The evidence of Ms Mudumela proved to be of no assistance to
fourth respondent. She was not in a position to confirm whether
fourth respondent was involved in consuming her pap during the
incidents captured on the video on 7 and 11 October 2000. She was
not able to confirm that the plate and bowl from which fourth
respondent ate, and which was depicted on the video, belonged to her.
[10] Fourth respondent
also gave contradictory versions regarding why he had proceeded to
the deli on 11 October 2000, including that
he had attempted to
assist the deli staff in serving customers, that on the request of
the deli supervisor he had tested bread, that
he had to check the
“pap cooker” and that “he had to check the yeast that was kept
in the deli fridge”.
[11] The finding by
second respondent that fourth respondent was not guilty of eating in
the prohibited area and therefore not guilty
of dishonesty in
consuming the pap and bread which belonged to the appellant was based
on an uncritical acceptance of fourth respondent’s
testimony which,
as I already noted, was unsatisfactory in the extreme. In addition,
the evidence of both Mr Mthombeni and Mr Van
Staden was clear: there
was no basis for the contention that employees in the bakery and deli
area, who were allowed to drink tea
at their workplace, were also
entitled to eat at the same time. Such conduct was contrary to the
clear, published rules of appellant.
None of this evidence was taken
into account by second respondent.
[12] The inability of
Ms Mudumela to provide any substantial support for the version of
fourth respondent was also ignored in the
findings of second
respondent.
[13] When the matter
came before Revelas J, she found:
“The arbitrator may be wrong in the conclusion based on the
evidence before her, but it is not necessary for me to make a finding
as to whether she was incorrect or correct with regard to her
findings on the evidence. I still need to consider whether the
dismissal
was fair and whether it was indeed the appropriate sanction
even if I agree with the applicant’s contentions. It is quite trite
that employers in a retail business suffer huge financial losses as a
result of shrinkage caused,
inter alia
, by their staff who
steal from them. It is also trite that dismissal would, in the vast
majority of cases, be the only appropriate
sanction. Yet I believe
that this was a case where dismissal should not have been imposed.”
[14] In my view,
Revelas J erred in adopting this approach. For the learned judge to
deal with the question of a sanction for dismissal,
the prior
question, namely whether the dismissal was fair, had to be answered.
On the basis of the evidence as I have outlined
it, the dismissal
was substantively fair. There was also no objection to the
procedural basis of the dismissal. Having so found
that the
dismissal was fair, Revelas J could then have properly moved on to
deal with the appropriate sanction.
The appropriate sanction
[15] Mr Myburgh, who
appeared on behalf of the appellant, produced a meticulous and
carefully researched set of arguments concerning
the question of the
appropriate sanction. He submitted that the decision by Revelas J
not to dismiss fourth respondent because
of the relatively small
value of the items which was stolen and the nine years of an
unblemished service record of fourth respondent
was at odds with the
jurisprudence of this court.
[16] In brief, this
court has consistently followed an approach, laid out early in the
jurisprudence of the Labour Court in
Standard Bank SA Limited v
CCMA and others
[1998] 6 BLLR 622
at paras 38 - 41 where Tip AJ
said: “It was one of the fundamentals of the employment
relationship that the employer should be
able to place trust in the
employee… A breach of this trust in the form of conduct involving
dishonesty is one that goes to the
heart of the employment
relationship and is destructive of it.”
[17] That decision was
followed by Mlambo J (as he then was) in
Metcash Trading Limited
t/a Metro Cash and Carry and another v Fobb and another
(1998) 19
ILJ 1516 (LAC) at para 16 - 17 where the learned judge found that in
relation to the consumption of one 250 ml bottle of
orange juice
“theft is theft and does not become less because of the size of the
article stolen or misappropriated”.
[18] In
Leonard
Dingler (Pty) Ltd v Ngwenya
(1999) 20 ILJ 1171 (LAC) an employee
was found guilty of removing a few bale boards from the premises,
each bale board being worth
no more than R8.50. He was dismissed.
When the matter came before this court, Kroon JA said the following
at para 78: “Was
dismissal of the respondent an unfair sanction?
I am persuaded that this question falls to be answered in the
negative. It is
true that the respondent had a long record of
service (7 years 10 months…) with no previous record of a
disciplinary offence.
On the other hand, Oosthuizen testified that
the appellant experienced theft by its employees on a large scale.
It follows that
a measure of deterrence is called for. The
respondent’s conduct was not only dishonest but was premeditated,
planned and persistent.
The overlapping triad of misconduct,
incapacity and operational necessity … was present. Moreover,
regard may further be had
to the manner in which the respondent
conducted his case in the court
a quo.
It embraced a false
accusation of perjury against, inter alia, a director, of the
appellant and a charge against him that for ulterior
motives he made
a false accusation the subject of disciplinary proceedings against
the respondent. No viable employer – employee
relationship
remained.”
[19] A similar approach
was adopted in
Rustenburg Platinum Mines Ltd (Rustenburg Section)
v National Union of Mine Workers
(2001) 22 ILJ 658 (LAC). In
this case an employee had been employed on the mine as cleaner in the
kitchen for some fifteen years.
She was dismissed for attempting
unlawfully to remove meatballs from the kitchen. The mine had a
strict policy on theft or the
unauthorized possession of company
property. All employees were aware that they were dismissible
offences. The court confirmed
the finding that she was guilty of
the theft of the meatballs and found the dismissal, in these
circumstances, to be justifiable,
commenting: “Particularly is this
so in the light of her working with or in the proximity of food which
can easily be stolen.”
(at para 22.)
[20] A similar approach
was also adopted in
Lahee Park Club v Garratt
[1997] 9 BLLR
1137
(LAC) at 1139 in which this court confirmed the dismissal of the
secretary of the sports club with an unblemished service record
of
seven years for writing off a subscription of a member valued at R60
as a favour to such member.
[21] The principle on
which these decisions are all based is encapsulated in a
dictum
of Conradie JA in
De Beers Consolidated Mines Ltd v Commission for
Conciliation. Mediation and Arbitration and others
(2000) 21 ILJ
1051 (LAC) at para 22: “A dismissal is not an expression of moral
outrage; much less is it an act of vengeance.
It is, or should be,
a sensible operational response to risk management in the particular
enterprise. That is why supermarket
shelf packers who steal small
items are routinely dismissed. Their dismissal has little to do
with society’s moral opprobrium
of a minor theft; it has everything
to do with the operational requirements of the employer’s
enterprise.”
[22] In the present
case, the uncontested evidence revealed that, during October 2000,
appellant’s store in Louis Trichardt lost
2.95% of turnover due to
shrinkage which equated to a loss of some R144 000. Mr van Staden’s
uncontested evidence was that employees
were aware of the shrinkage
problems and of the company rules designed to prevent or control such
shrinkage. The shrinkage problem
had been mentioned in several
meetings, and after every stock take results were posted on notice
boards. A feedback meeting was
held with all employees during which
the company rules were discussed. In the canteen notices were
displayed and the contents thereof
routinely reinforced by the Store
Manager. It was precisely because of its attempt to curb shrinkage
that appellant had installed
surveillance video cameras in the store.
[23] Mr Myburgh very
properly referred this court to an unreported decision of the court
in
Shoprite Checkers (Pty) Ltd v The Commission of Conciliation,
Mediation and Arbitration and 3 others
(unreported decision of
the LAC: Case no: JA 46/05). The approach adopted in this case
appears to run counter to the court’s
jurisprudence as analysed as
well as appellant’s submissions. In this case an employee had
been captured on the store video camera
on three separate occasions
eating in areas in which such activity was prohibited. He was
subsequently charged with misconduct,
found guilty and dismissed.
It was common cause that the monetary value of that which was
consumed was unknown. When the matter
went to arbitration, the
commissioner found that a dismissal was not required to automatically
follow the conviction of theft.
The employee had thirty years of
service and was a first offender. Accordingly the commissioner
found that the sanction of dismissal
was ‘quite severe’. On
review before this court, Zondo JP held at para 26:
“I know that from the appellant’s point of view this cannot
simply be about monetary value of the food that fourth respondent
ate. For the appellant, it is probably about a principle and the
real problem of shrinkage that it and other similar business 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 may 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”.”
[24] This decision appears to adopt a different approach to the body
of jurisprudence as analyzed in this judgment. However, in
that
case the employee had 30 years of unblemished service. While that
employee contended that he had been authorized to taste
food in the
areas where the video clip had showed him to have so eaten, and that,
on one of the occasions, he was eating his own
food, unlike the
present case, he had not gone so far as to produce manufactured
evidence that manifestly was concocted in order
to support his own
mendacious account, as was evident in the present dispute.
[25] In this case the
respondent had engaged in a breach of company rules on two separate
days and on these occasions on one day.
On 11 October 2000 he had
consumed three separate bowls of pap. He had thus acted in flagrant
violation of the company rules
which had been implemented for clear,
justifiable operational reasons. Other employees who had been
similarly found to have so
acted had been dismissed. In
unchallenged evidence Mr van Staden testified about the breakdown in
trust between the two parties:
“Because he is actually working or he has been trained to work in a
specialty department where he is busy preparing food, and because
of
the incidents that happened which actually caused the shrinkage and
with the high shrinkage in the store at the moment, we actually
cannot afford to get him back in the store. (Indistinct) broke the
trust relationship with the company.”
In this sense, the facts are distinguishable from that of the
Shoprite Checkers
case
supra
and in keeping with the
other decisions of this Court.
[26] In the result, the
appeal is upheld with costs and the order of the court
a quo
is replaced with the following order:
1. The review
application is granted with costs.
2. The dismissal of
fourth respondent is declared to be fair.
______________
DAVIS
JA
I
agree
_______________
TLALETSI
AJA
I
agree
________________
NDLOVU
AJA
Date
of Judgment: 20 June 2008
Date
of Hearing: 29 May 2008
Appearances
For
the appellant Advocate A T Myburgh
Instructed
by Perrott, Van Niekerk, Woodhouse, Matyolo Inc
For
the respondent Advocate N Sikhakhane
Instructed
by Legal Aid Board Louis Trichardt