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[2012] ZALAC 49
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Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA4/11) [2012] ZALAC 49 (29 August 2012)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR APPEAL
COURT OF SOUTH AFRICA, DURBAN
JUDGMENT
REPORTABLE
CASE NO. DA 4/11
In the matter between:
SENZENI MBANJWA
Appellant
and
SHOPRITE CHECKERS
(PTY) LTD
First
Respondent
THE COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
Second
Respondent
JABULANI NGWANE
N.O. Third
Respondent
Summary
:
Appeal: Review of award:
Sidumo
test of constitutional reasonableness restated. Finding of guilt:
Suspicion, however strong or reasonable, does not constitute
misconduct. Distinction between reviews and appeals reiterated.
Appeal allowed and award reinstated.
Heard:
29 August 2012
Delivered:
29 August 2012
Reasons:
7 November 2013
CORAM:
Jappie JA et Ndlovu JA et Zondi AJA
ORDER
1.
The appeal is upheld with costs.
2.
The cross appeal is dismissed.
3.
The order of the Court a quo, save
paragraph 1 thereof, is set aside and substituted with the following
order:
‘
The
review application is dismissed with costs.’
4.
The award issued by the commissioner
on 8 November 2007 under case number KNPM 1647-06 is hereby
reinstated.
JUDGMENT
NDLOVU JA
Introduction
[1]
On 29 August 2012, this appeal was argued before us and the
abovementioned order was handed down forthwith. The Court reserved
its reasons for judgment. I now furnish the reasons.
[2]
The appellant was employed by the first respondent on 28 August 1997
and based at the first respondent’s Cascade supermarket
branch
in Pietermaritzburg where she served as a cashier. On 28 April 2006,
she was summoned to attend a disciplinary hearing scheduled
for 4 May
2006, on a charge of “Gross misconduct, in that on the 28/04/06
whilst operating till 21 [she] attempted to under-ring
items to the
value of R24-97.” She denied the charge. Notwithstanding, she
was convicted as charged and summarily dismissed
with effect from 16
May 2006.
[3]
She referred an unfair dismissal dispute to the CCMA as she was not
satisfied with the fairness of her dismissal. The parties
attempted
to resolve the dispute through conciliation, but were unsuccessful. A
certificate of non-resolution was issued hence
the dispute proceeded
to arbitration before the third respondent (the commissioner).
The arbitration
proceedings
[4]
The issue for determination by the commissioner was whether the
dismissal of the appellant was substantively fair.
[5]
The first respondent’s assistant manager, Ms Vino Pillay,
testified that on the previous day, 27 April 2006, she had seen
the
appellant talking to one Ms Lindiwe Magoso outside the shop around
the area where Magoso worked as a car guard. During the
morning of
the following day (28 April 2006) shortly after the store had opened
(at 08h00), she said she saw Magoso again inside
the shop carrying a
few perishable items in her hand and a few other non-perishables
already packed in a clear plastic roll-on-bag.
The roll-on-bags were
reserved for packaging fruits and vegetables in that department, or
sometimes utilised to package milk at
the till to avoid spillage in
the traditional government carrier bags.
[6]
According to Pillay, on 28 April 2006 there were two other tills open
in the general bank of tills serving as a primary conduit
of exit
from the shop. The appellant was manning the till at the sweets and
cigarettes counter (the kiosk) situated beyond the
bank of tills.
There were two ordinary tills available to serve – one with a
few customers and the other with none. However,
Magoso had proceeded
beyond the bank of tills to the appellant’s kiosk till.
[7]
Pillay further testified that she had then seen the appellant
proceeding to ring the loose items from Magoso’s hands and
then
she moved around the till to the other tills to fetch a government
carrier bag, placed the goods in the bag and completed
the
transaction, taking a R10 note from Magoso to pay for the rung items.
When the appellant noticed that Pillay was watching her,
she looked
startled, at which point she took out the items from the roll-on-bag
and rung them up. However, Magoso apparently did
not have money to
pay for the other items. Magoso then ran out of the store. After
about 10 minutes she returned and paid with
a further R20 note. The
first batch of perishable items amounted to R7,91 whilst the other
non-perishable items in the roll-on-bag
amounted to R24,97.
[8]
According to Pillay, customers that purchased goods in the store
would have to pay at the general bank of till points, but on
busy
days when there were long queues, some customers would be allowed to
go through to the kiosk to pay there, just to get the
queues going.
However, on the day in question it was not busy at all and there were
no long queues. Therefore, Magoso would ordinarily
have had to pay at
the main tills. Further, Magoso should have used a basket or a
trolley provided by the store for customers and
not have items in her
hands to the till points. There was also no problem if a customer
requested that the items be grouped and
paid for separately. As a
checkout controller, the appellant held a senior position in the
store and should have known better.
She had to ring up the total
transaction of the purchased goods and then collect the money
therefor, all at once.
[9]
Under cross-examination, Pillay conceded that the whole case against
the appellant was based on her suspicion in relation to
what she had
seen the appellant doing. She had further taken into account that on
the previous day she had seen the appellant talking
to Magoso. She
further conceded that, at the end of the day, all the items were paid
for.
[10]
The appellant testified that Magoso had asked her to ring the items
separately. The first batch of the items were perishables,
including
a 250 ml milk, an apple and a few chicken portions, which all added
up to R7,91. Magoso had indicated that she would
want to pay for the
perishable items in coins of 5c and 10c pieces and further explained
that she would use the perishable items
for her lunch at work and
would take home in the afternoon the other batch of non-perishables
in the roll-on-bag. Magoso had further
said she did not want to come
back to the store after 17h00 because she was aware that by that time
the store would be busy.
[11]
As stated, the total amount of the perishable items was R7,91 which
Magoso had originally wanted to pay for using 5c and 10c
coins.
However, when she reached for her purse, she took out a R10 note and
tendered same for payment of those items. The appellant
had then rung
the second batch of items which totalled R24,97. Magoso then started
counting her coin money and when she realised
that it was short, she
asked if she could go and collect more money from her bag outside the
shop. She rushed outside and soon
returned with a R20 note which she
tendered. At the end of the day, there was then more money than
required, as a result of which
Magoso got some change back.
[12]
The appellant confirmed that she knew Magoso as a car guard and
frequent customer in the store. She continued with her work
until
about 12h30 when she had to go for lunch. At that stage she was
approached by Pillay who asked her to write a statement explaining
about what had happened earlier that morning. The appellant said she
did not know at the time what Pillay was talking about.
[13]
When asked, during cross-examination, what she had been discussing
with Magoso on the previous day, the appellant stated that
she could
not remember because there were many people she had spoken to. She
did not appear to deny that she might have spoken
to Magoso the
previous day but that, if she did so, she could not remember what it
was that she spoke to her about.
[14]
Magoso had testified for the appellant at the disciplinary hearing,
but she was no longer available during the arbitration
hearing
because she had since passed away.
[15]
After considering the evidential material presented to him, the
commissioner concluded that the first respondent’s case
against
the appellant was weak, and that this was a classic case of dismissal
which was based on nothing but unfair reason. In
part, the
commissioner commented as follows:
‘
6.6
… Her [the appellant’s] evidence was that the shop was
not busy at that time and when Lindiwe [Magoso] ran
out of cash and
asked to run outside to get more money, she [the appellant] waited
for her to come back with more money which she
did, and that was also
not in dispute.
6.7
It was actually corroborated by Vino [Pillay] who testified that it
had also happened to
her in the past that a customer did not have
enough money to pay for items at the till and she had to wait for the
customer to
bring in more money for the items purchased. There was no
rule against that conduct of waiting for the customer whilst getting
more money.
6.8
Coming to the contravention of the employer’s rules by Senzeni
[the appellant], no
evidence was led to show that Senzeni had broken
any workplace rule in this arbitration. The nub of this dispute was
premised on
Vino’s observation of Lindiwe and Senzeni talking
on 27 April 2006 and on Lindiwe approaching Senzeni’s till on
28
April 2006.
6.10
Without the contravention of any rule and without any reprehensible
conduct by Senzeni on 27 April
and 28 April 2006, we are left with
Vino’s substance of her suspicion on which she subjectively
concluded that Senzeni attempted
to under-ring the items brought to
her till by Lindiwe.
6.19
It is my opinion that whereas, there might have been grounds to
suspect Lindiwe’s conduct on
28 April 2006, but to suspect that
Senzeni was implicated in the attempt to under-ring the respondent’s
items was based on
Vino’s figment of imagination.’
[16]
The commissioner accordingly declared that the appellant’s
dismissal was substantively unfair and ordered the first respondent
to reinstate her with retrospective effect from the date of her
dismissal and without any loss to the rights and benefits that
might
have accrued to her during her period of dismissal.
[17]
The first respondent took the matter up by way of review, in terms of
section 145 of the Labour Relations Act
[1]
,
to the Labour Court.
The
Labour Court
[18]
As its grounds of review, the respondent submitted that the
commissioner committed reviewable irregularities in the following
respects:
18.1
The finding that no evidence was led that the appellant had broken
any rule applicable in the first respondent’s
workplace.
18.2 By
finding that the appellant’s conduct did not amount of
misconduct.
18.3 By
finding that the appellant’s dismissal was substantively unfair
and ordering the first respondent
to reinstate the appellant
retrospectively to the date of her dismissal.
[19]
In its analysis and evaluation of the matter, the Court a quo
remarked, in part, as follows
[2]
:
‘
[18]
… It was an important issue that the goods were separated into
two. This is simply because it
might well be that the car guard
intended to pay for the first group and to confuse everybody else who
might have been watching
her and might have wanted to walk away with
the second group of items without paying for them, either in
collaboration with the
third respondent [the appellant] or confusing
the third respondent as well so that she could walk away by stealing
the said goods.
[19]
That then brings us to the second aspect of the evidence, the
discussion on the day before between the third respondent and
the car
guard. According to the commissioner, the third respondent firstly
hesitated about that evidence, but what is clear, and
I have been
taken through the record on this, is that initially the third
respondent denied having spoken to the car guard the
day before. She
was cross-examined on this. She then slowly began to capitulate. She
then gave in to having taken part in a discussion
with the car guard
on the previous day. She then said that she could not remember what
had been said. It is clear on the record
that she had a recollection
of the discussion that she had with the car guard. If she could
recall this discussion during the arbitration
hearing, she must have
known about the discussion during the internal disciplinary hearing.
It must follow that she must have lied
in denying having had this
discussion when the matter was first tried at the internal
disciplinary hearing. The commissioner should
have dealt with this
evidence, because it was crucial, it was important. It affected the
credibility, the belief that he would
accord to the evidence of the
third respondent. The commissioner failed to deal with this evidence
properly. It is a contradiction
that was material.
[22]
… The behaviour of the car guard seen together with how the
third respondent reacted when she saw Mrs Pillay around,
all of this
created some suspicion. It was then incumbent on the first respondent
(the commissioner) to deal with this evidential
material and to draw
necessary conclusions. The commissioner did not actually do this.
This is why the commissioner was not able
to find any infringement of
a rule of the applicant, because the commissioner did not do as was
expected to weigh evidential material
and to find whether or not such
behaviour suggested that the third respondent was acting in cahoots
with the car guard.’
[20]
The Court a quo thus concluded that there had not been a full and
fair trial of the issues that served before the commissioner.
On this
basis, the Court a quo issued an order in the following terms:
‘
1.
I therefore grant condonation for the late filing of the review
application.
2.
The arbitration award dated 8 November 2007 by the first respondent,
in this
matter, is reviewed and set aside.
3.
The matter is remitted to the second respondent for a
de novo
arbitration hearing before another Commissioner.
4.
No costs order is made.’
It is against this order
that the appellant has appealed to this Court, with the leave of the
Court a quo.
The appeal
[21]
The essential attack on the judgment is that the Court a quo erred in
finding that there was sufficient circumstantial evidence
that the
appellant was guilty of the misconduct charged, a finding seemingly
based on the fact that the appellant was seen on 27
April 2006
talking to Magoso (the customer) and the suspicious circumstances in
relation to the shopping transactions between the
appellant and
Magoso on 28 April 2006.
[22]
The first respondent’s cross appeal is a somewhat unusual one.
It seeks this Court to uphold the judgment of the Court
a quo but for
the reasons foreshadowed in the notice of cross appeal and not the
reasons furnished by the Court a quo. I will deal
with this aspect in
due course.
[23]
The grounds of cross appeal relates mainly to factual issues, such as
the fact that the appellant admitted during the arbitration
hearing
that she had spoken to Magoso on the previous day whereas, at the
disciplinary hearing she had denied having done so; the
suspicious
reasons given by Magoso (during her testimony at the disciplinary
hearing) as to why she had split the goods; and the
fact that Magoso
had passed the ordinary bank of tills and proceeded to the kiosk till
which was operated by the appellant.
[24]
The first respondent submitted that the commissioner failed to apply
his mind to these issues which clearly created suspicion
of
wrongdoing and complicity on the part of the appellant. On the other
hand, the Court a quo ought to have found that the commissioner
‘failed to fully and fairly determine the matter, [which] was a
procedural irregularity and resulted in an award which a
reasonable
decision maker would not have made.’’
Analysis and
evaluation
[25]
The issue here is not about whether the dismissal of the appellant
was the appropriate sanction, but rather, whether the appellant
was
guilty of the misconduct charged, in the first place.
[26]
It is trite that an employer bears the onus to prove, on a balance of
probabilities, that the misconduct was indeed committed
by an
employee concerned. Where the employer is suspicious that the
employee, through the latter’s movements or conduct,
may have
some dishonest intentions, the employer cannot justifiably rely on
that suspicion as a ground to dismiss the employee
for misconduct
because suspicion, however, strong or reasonable it may appear to be,
remains a suspicion and does not constitute
misconduct. There needs
to be tangible and admissible evidence to sustain a conviction for
the misconduct in question.
In
Dion
Discount Centres v Rantlo
[3]
the Court (
per
Joffee J) remarked as follows:
‘
It
was argued by appellant’s counsel with reference to
Moletsane
v Ascot Diamonds (Pty) Ltd
(1993) 6 LLC
15 (IC) and
EATWCSA v The Productions
Casting Co (Pty) Ltd
(1988) 9 ILJ 702
(IC) that the termination of respondent’s employment was fair
as there was a strong suspicion that respondent
had participated in
the 4 transactions. The presiding officer in the
Moletsane
matter relied on the judgment in
EATWCSA v The Production Casting Co
(Pty) Ltd
as authority for the finding
that “it was not unfair for the respondent to dismiss the
applicant in the particular circumstances
of this case on a strong
suspicion of diamond swopping”. I do not find support for this
view in the latter judgment. The
test at all times remains one of
balance of probabilities. Reasonable suspicion or strong suspicion is
not adequate to terminate
the employment relationship
.’
[27]
To my mind, whilst the respondent’s so-called zero tolerance
policy may be reasonably justifiable as an operational requirement
and control measure against shrinkage and pilferage in large shopping
businesses such as that of the respondent, the enquiry on
the
sustainability of the guilty finding against an employee dismissed
for misconduct, remains the primary consideration. Recently,
in
Matsekoleng
v Shoprite Checkers (Pty) Ltd
[4]
,
this
Court stated as follows
[5]
:
‘
[50]
I
n all the past decisions of this Court
referred to above, the issue was whether the sanction of dismissal
was fair and appropriate
in the circumstances of each case. However,
the determination of sanction can only follow upon a sustainable
conviction for the
misconduct charged. …
[63]
However, I need to make myself clear on the following: In my view,
this case had absolutely nothing
to do with the shrinkage problem or
the zero tolerance policy that reportedly existed at the respondent’s
workplace. The
issue of sanction or the proportionality doctrine is
thus of no relevance. The critical and crisp issue was the guilt or
otherwise
of the appellant of the misconduct charged, in the light of
the particular facts of the case. In other words, the effect of this
judgment is not intended to create any precedent which deviates from
the established jurisprudence, discussed above, and which
has been
followed by this Court in relation to the issue of sanction where an
employee is properly convicted of misconduct involving
theft or
misappropriation of property belonging to the employer. This Court
understands and has thus far approved of the zero tolerance
policy as
a reasonable measure of eradicating shrinkage and pilferage
experienced by these large shopping businesses such as the
respondent. However, that issue pertains to sanction which can only
be embarked upon after a sustainable conviction.’
[28]
The high water mark in this case is nothing but mere suspicion on the
part of Pillay that the appellant committed the misconduct
charged.
There was simply no shred of evidence to buttress or lend any
credence to the allegation of the misconduct. It is beyond
my
comprehension why the appellant was charged for misconduct at all.
[29]
It seems to me that the Court a quo, in its evaluation of the case as
seen in its remarks, referred to above, tended to blur
the
distinction between reviews and appeals. The test in determining
whether an arbitration award passes muster of judicial review
under
section 145 of the LRA is now trite – it is found in the
question: ‘Is the decision of the commissioner one that
a
reasonable decision-maker could not reach?’
[6]
[30]
On the totality of facts, I am of the view that the commissioner
properly applied his mind to the material issues and evidence
presented to him in this case and that the arbitration award issued
by him constitutes a decision that any reasonable decision-maker
could make in similar circumstances.
[31]
The conclusion that the appellant was guilty of the misconduct
charged was, to my mind, simply not the most probable inference
to be
drawn from the proven facts.
[7]
That being the case, the inference of her guilt for misconduct could
not justifiably be drawn. Therefore, her dismissal was substantively
unfair. The appeal must, therefore, be upheld and the costs to follow
the result.
[32]
The first respondent purports to note a cross appeal against the
reasons for judgment of the Court a quo, in a manner which
is not
permissible. An appeal or cross appeal can be noted only against the
substantive order of a Court and not against the reasons
for the
order. In
Western
Johannesburg Rent Board and Another v Ursula Mansions (Pty) Ltd
[8]
the
Appellate Division stated as follows
[9]
:
‘
[I]t
is clear that an appeal can be noted not against the reasons for
judgment but against the substantive order made by a Court.
For
instance, it is open to a respondent on appeal to contend that the
order appealed against should be supported on grounds which
were
rejected by the trial judge: he cannot note a cross- appeal …
unless he desires a variation of the order.” See
Municipal
Council of Bulawayo v Bulawayo Waterworks, Ltd
.
(1915 Ad 611
at pp. 625, 631, 632)’.
[33]
In any event, the first respondent’s reliance, in its purported
cross appeal, on the appellant’s alleged contradiction
on the
issue of her conversation with Magoso on the previous day, has no
merit. I do not find anything wrong with the manner that
the
appellant explained herself on that issue. In proper context, all
that she was saying was that she did not recall ever speaking
to
Magoso on the previous day because she had spoken to many people. But
that if it was a fact that she did speak to Magoso on
the previous
day, then she would not remember what she spoke to her about, due to
the same reason that she had spoken to many people.
In other words,
she would not remember every single person that she had spoken to on
the previous day, including Magoso, if it
was factually true that she
had spoken to her
[10]
.
[34]
I fail to appreciate the reason why the first respondent attacks the
reasoning of the Court a quo in reviewing and setting
aside the
arbitration award. The reasoning of the Court a quo, in its
conclusion is, in my view, basically or substantially the
same as
what the first respondent submits in its so-called grounds of cross
appeal. All that it shows me, is simply that the first
respondent
might be realising the legal weakness in that reasoning, for the
purpose of judicial review under section 145 of the
LRA in the light
of the
Sidumo
test. Unfortunately, the first respondent’s
grounds of cross appeal do not make its case any better. In my view,
the cross
appeal must, accordingly, be dismissed. As the cross appeal
was not opposed, the issue of costs does not arise.
The order
[35]
Hence the Court, on 29 August 2012, handed down the order referred to
above, namely:
1.
The appeal is upheld with costs.
2.
The cross appeal is dismissed.
3.
The order of the Court a quo, save
paragraph 1 thereof, is set aside and substituted with the following
order:
‘
The
review application is dismissed with costs.’
4.
The award issued by the commissioner on 8
November 2007 under case number KNPM 1647-06 is hereby reinstated.
_______________________
Ndlovu JA
Jappie
JA and Zondi AJA concur in the judgment of Ndlovu JA
APPEARANCES:
FOR THE
APPELLANT:
Advocate M Pillemer SC
INSTRUCTED
BY:
Jafta Incorporated
FOR THE FIRST
RESPONDENT:
Advocate CA
Nel
INSTRUCTED
BY:
Norton Rose SA
[1]
Act
66 of 1995
[2]
At
paras 18, 19 and 22 of the court a quo’s judgment
[3]
[1995]
12 BLLR 16
(LAC) at 19D-F.
[4]
[2013]
2 BLLR 130 (LAC); [2013] JOL 29789 (LAC)
[5]
Ibid,
at paras 50 and 63. See also:
Shoprite
Checkers (Pty) Ltd v CCMA and others
[2008] ZALAC 9
;
[2008] 9 BLLR 838
(LAC) at par 19 (and the decisions cited therein).
[6]
Sidumo
and Another v Rustenburg Platinum Mines Limited
and Others (2007) 28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC) at para
110.
[7]
Cooper
and another NNO v Merchant Trade Finance Ltd
.
2000 (3) SA 1009
(SCA) at para 7;
See
also
Law
Society, Cape of Good Hope v Berrange
2005 (5) SA 160
(C) at 171
;
Macleod v Rens
1997 (3) SA 1039
(E) at 1048D-E;
H
Mohammed
and Associates v Buyeye
2005 (3) SA 122
(C) at 129D.
[8]
1948
(3) SA 353 (A)
[9]
Western
Johannesburg Rent Board
,
at
355
[10]
See
Arbitration record, at 201 and 202 of the indexed papers