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[2012] ZALAC 41
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Matsekoleng v Shoprite Checkers (Pty) Ltd (JA 12/10) [2012] ZALAC 41; [2013] 2 BLLR 130 (LAC) (1 November 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case no:JA 12/10
In the matter between:
SUPUDU REUBEN MATSEKOLENG
.............................................................
Appellant
and
SHOPRITE CHECKERS(PTY) LTD
............................................................
Respondent
Heard: 22 February 2012
Judgment: 1 November 2012
Summary: Review test of
‘Reasonableness’ of CCMA awards –
Carephone
and
Sidumo
tests only semantically different. (SCA’s
Edcon
v
Pillemer
restated).Uncertainty/confusion whether
employee’s conductconstituted a punishable transgression as
envisaged in employer’sdisciplinary
code. (Alleged theft of 2
litre milk donated for tea club). Employee not guilty of
misconduct.Therefore, issue of sanction; proportionality
doctrine and
zero tolerance policy - of no relevance.Dismissal substantively
unfair. However, continued employment relationship
intolerable.
Hence, no reinstatement ordered,only compensation awarded.
JUDGMENT
___________________________________________________________________
NDLOVU, JA
Introduction
[1] This appeal is against the
judgment and order of the Labour Court (Cele J) handed down on 18
October 2006 in terms of which
the Court
a quo
dismissed with
costs the review application launched by the appellant, thus
upholding the arbitrator’s award whereby the appellant’s
dismissal was declared to be both procedurally and substantively
fair.On 29 October 2009,the learned Judge
a quo
refused the
appellant leave to appeal which, however, was granted by this Courton
26 May 2010,by way of petition procedure.
Factual Background
[2] The appellant
was employed by the respondent on or about 4 December 1981
1
at its Groblersdal
branch. During the period,which ismaterial to this matter, he
occupied the position of receiving clerk in the
respondent’s
receiving department,which position he had held for eleven years
before he was dismissed on 9 April 2003 for
misconduct. At the time
of his dismissal, he was earning R3989-00
2
per month. The
alleged misconduct arose from the events set out hereunder.
[3] It was common cause that on 24
February 2003 a donation of a 2 litre plastic bottle of milk was
delivered to the respondent
by Schoeman Melkery (Dairy) and was
received by the appellant who signed for it on the receipt/delivery
slip. It was not in dispute
that the appellantthen took the signed
receipt together with the milk to the security guard whom he
requested to “cancel”
the milk (apparently the term used
to mean removal of an item as part of stock) on the basis that the
milk was a donation to the
tea club of the receiving department
staff, of which the appellant was part. It was also common cause that
the donated milk was
duly “cancelled” by the security
guard and, therefore, not entered by the appellant in the store’s
records as
stock for sale. In the normal course, when stock was
received, it would be entered in a “Goods Received Voucher”
(or
commonly the “GRV”) hence the acronym “GRV”
gave rise to the procedure associated therewith being colloquially
referred to in the workplace as (expressed in verb form): “to
grv”, “grv’ing” or “grv’ed”,
depending on the tense applicable. In the present instance, the
appellant was accused of failing to “grv” the donated
milk and this conduct constituted part of the misconduct charges
subsequently preferred against him. After the appellant had shown
the
milk together with the signed receipt to the security guard, he had
then opened the milk, went to the tea room where he used
it for tea
and shared it with his colleagues.
[4] The security guardapproached the
branch manager and reported the incident. The branch manager told the
security guard that donated
milk ought to have been “grv’ed”.
On this basis, the appellant was alleged to have contravened rule 13
of the
respondent’s disciplinary code by not following the
respondent’s receiving or GRV procedure. The value of the milk
in question was about R9-49, being the extent of the financial loss
the respondent allegedly suffered consequent to the appellant’s
action.
[5] On 25 February 2003 the appellant
was served with a notice of suspension with full pay effective
immediately, pending a misconduct
enquiry. The notice to attend the
disciplinary hearing on 3 March 2003 was simultaneously served on the
appellant, in terms of
which the following misconduct charges were
preferred against him:
‘
(a)
Misappropriation of company property in that you opened a plastic
bottle of 2 litre milk intended for sale, causing a financial
or
potential financial loss to the company.
(b)
Serious misconduct in that you misled a company security guard in
cancelling unauthorised company merchandise.
(c)
Serious misconduct in that you did not follow company receiving
procedures causing financial or potential financial loss to
the
company.’
[6] At the conclusion of the
disciplinary enquiry, the appellant was convicted of the misconduct
as charged and summarily dismissed.
He lodged an internal appeal
which was heard on 29 April 2003. However, the appeal was dismissed
and the sanction of dismissal
upheld.
[7] As the appellant was not satisfied
with his dismissal, which he believed was unfair,he referred an
unfairdismissal dispute to
the CCMA for conciliation. The dispute,
however, remained unresolved as at 4 June 2003 and the certificate of
outcome to that effect
was issued accordingly. Following on that, the
matter was referred to arbitration before commissionerThabe Nkadimeng
who, after
hearing and evaluating the evidence, issued the
arbitration award on 9 February 2004, whereby he found the
appellant’s dismissal
to be both procedurally and substantively
fair; and, accordingly, dismissed the appellant’s claim.
[8] The appellant
then took the matter up on review to the Labour Court in terms of
Section 145 of the Labour Relations Act
3
(the
LRA). However, the Court
a
quo
dismissed
the review application with costs. It is against this judgment of the
Court
a
quo
which
the appellant now appeals.
The arbitration proceedings
[9] The arbitration hearing was held
on 8 October 2003 and continued on 19 January 2004. On the former
date, the appellant was represented
by Mr Masutu, the union (SACCAWU)
official but on the latter date he appeared in person. Mr Oosthuizen,
the respondent’s
regional personnel manager, appeared for the
respondent on both occasions.
[10] The witnesses who testified on
behalf of the respondent included the following: Mr Renier Grobbelaar
(regional manager); Mr
Corne Meyer (administration manager); Mr Gert
Strydom (branch manager); Mr Alfred Mahlase (sales manager) and Ms
Lorraine Stammer
(IBI internal security officer). The appellant was
the only witness for his case.
[11] It was the
respondent’s case that the appellant’s conduct rendered
him guilty of the three counts of the misconduct
charged. Mr Meyer
testified that, as the receiving clerk, the appellant’s duties
included primarily to receive and check
all goods or stock that was
delivered to the store in terms of quality and quantity thereof and
to record it, accordingly, in the
GRV. He briefly described the GRV
process thus:
4
‘
[I]t
is one of the steps in the receiving process which the receiving
clerk uses, a GRV voucher itself gets stamp
(sic)
onto
an invoice and thereby the company acknowledge(s) that the goods have
been received through the correct procedure and that
they
accept
the charges on the invoice
to
which it refers to
(sic)
…
he
must ensure that the correct amount of goods and the correct goods
are coming into the shop. If he is not doing his job properly
the
company can lose a lot of money
…
The
truck pulls up at the receiving gate, the invoice gets given to the
receiving clerk, he then checks that it is for the correct
shop, the
goods get offloaded into the cage where the receiving clerk go(es)
and check(s) that it is the correct quantity and the
correct stock.
He then goes out, the I.D.I. company which is our double checkers,
they go in, they double check the stock and they
go out and they are
also (checking?) that the stock is correct, it is G.R.V.ed.” …
Basically I.D.I. is an outside
company that is subcontracted by our
company to double check on the quality and the quantity of goods that
gets (sic) received
at our stores due to the fact that
high
shrinkage or high losses
can
occur at our receiving.’
(underlined for emphasis).
[12] Mr Meyer
further testified that, on 24 February 2003, the appellant received a
delivery from Schoeman Dairy of two litres of
milk, which the
appellant failed to ‘grv’ in terms of the receiving
procedure. According to Mr Meyer, the appellant
had then gone to the
security guard and lied to her, saying that the managerhad authorised
the cancellation of the goods thus delivered
and asked the security
guard to cancel the goods accordingly, which meant the goods could
then be used.
5
The
appellant was in charge of incoming stock and his conduct, coupled
with his poor disciplinary record had destroyed his trust
relationship with the respondent.
[13] Under
cross-examination by Mr Masutu (the union official representing the
appellant), Mr Meyer stated that “the company
policy about
donation is the same as the company policy about any other stock that
gets delivered to the company.”
6
In other words, the
fact that the two litre milk was a donation to the respondent did not
change the position that it was still
the property of the respondent.
[14] Mr Meyer was later re-called to
testify on the procedure which was applied at the disciplinary
enquiry and submitted that it
was a fair procedure.It was put to him
that an unfair procedure was followed at the enquiry. For example,
when the appellant sought
some clarity from Mr Meyer, who was the
enquiry initiator, in relation to counts 1 and 3 of the misconduct
indictment, the chairperson,
Mr Grobbelaar,simply took over and read
the charges to him again. In other words, Mr Meyer was prevented by
the chairperson from
furnishing the information requested. The
appellant alleged that the chairperson also prevented the
cross-examination of Mr Mahlase
by the appellant’s
representative and, instead recalled Mr Meyer to answer those
questions.
[15] The chairperson, Mr Renier
Johannes Grobbelaar, testified as to the procedure he followed when
he conducted the disciplinary
enquiry. Prior to the date of the
enquiry the appellant was placed on suspension with full pay and was
served with the notice to
attend the enquiry which accorded him
sufficient time to prepare for the hearing. At the commencement of
the hearing, he assumed
the responsibility of fully explaining the
charges to the appellant, particularly as to the meaning of the
expression ‘financial
or potential financial loss to the
company’ referred to in counts 1 and 3 which the appellant had
sought to be clarified
to him. Witnesses for the respondent had
testified and the appellant wasgiven the opportunity to cross-examine
them. The appellant
was also granted the opportunity to testify,
which he did. Upon his conviction and dismissal, he was accorded the
right to appeal,
which he duly exercised, albeit unsuccessfully.
[16] In his
testimony Mr Strydom stated, amongst others, that the appellant was
“some kind of a gate keeper at our back door
where all the
stock comes in
which
we pay for
,
if he is a person we cannot trust then we can lose a lot of money in
that position.” (underlined for emphasis). As branch
manager,
he had never authorised the cancellation of the donated milk
delivery, nor had he givenpermission to the appellant to
open and use
the donated milk. He stated that the appellant’s conduct of not
recording the stock had damaged his trust relationship
with the
respondent. Under cross-examination, he stated that free stock and
donation were “exactly the same”, there
was no difference
because both of them were not paid for by the respondent. However, Mr
Strydom could not deny that donated milk
was previously (during 1997
to 2001) used for tea because he had only started working at the
Groblersdal branch in January 2003.
[17] The security
guard, Ms Lorraine Stammer, was the one who confronted the appellant
about the milk which the appellant had not
‘grv’ed’.
She said the appellant told her that he was going to open the milk
and share it with his colleagues.
Ms Stammer then reported the matter
to Mr Strydom who reaffirmed that the milk should have been grv’ed
and be placed on the
shelves. The witness further testified that free
stock and donation were treated as the same thing, “because
both the products
you do not pay for, it is a free gift.”
7
In conclusion,
under cross-examination, Ms Stammer said:
8
‘
As
I.B.I, I report directly to managementand I have to report any
incident that does not seem right to me, that is my work. So it
did
not seem right to me, that is why I go to my supervisor and go and
find out what is the right procedure so we can stop shrinkage.
That
is my job sir. My job is (to) stop shrinkage, we all want a nice
bonus at the end of the day.’
[18] However, it transpired that Ms
Stammer was not the security guard whom the appellant allegedly
requested to cancel the milk
‘invoice’ of the donated
milk. The security guard involved at that stage was Ms Susan Mabala
who was, without explanation,
called by the respondent as a witness
during the arbitration hearing.
[19] Mr Mahlase’s evidence only
sought to confirm that the “free stock” received at the
respondent was handled
in the same way as all other incoming
goods/merchandise for sale.
[20] In support of his case, the
appellant testified that the two litre milk in question was delivered
to the respondent as a donation
to be used at tea by the staff at the
receiving department. It was common practice that he and his
colleagues would use the donated
milk in making their tea and further
that the respondent had provided them with a kettle which was kept in
the receiving merchant
room. He pointed out that one of the
respondent’s employees, Minah Masemola, was called by the
respondent to testify at the
disciplinary enquiry and she had
confirmed that it was indeed not the first time that milk was donated
to the respondent and used
for tea by the workers.
[21] The appellant further sought to
substantiate his claim that the milk was only a donation for tea and,
therefore, did not form
part of the respondent’s stockby
producing an affidavit from Schoeman Dairy attesting to that fact.
However, the respondent’s
representative, Mr Oosthuizen,
objected to the admission of the affidavit on the ground that he
would not be able to cross-examine
the deponent to the affidavit. The
commissioner upheld the objection and disallowed the admission of the
affidavit. In this regard,the
commissioner held as follows:
‘
It
was not in dispute that Schoeman Dairy was delivering donation of
milk to the respondent. The respondent’s rules and procedures
bind the respondent’s employees and not Schoeman Dairy.
Matsekoleng did not testify that he also grv’ed for receipt
of
goods for Schoeman Dairy. The affidavit would not prove that the
donated milk was not supposed to be grv’ed. The respondent
did
(sic)
not
have the right to cross-examine the author of the affidavit. I find
that the affidavit is irrelevant to the issues before me
and
inadmissible.’
[22] The appellant acknowledged that
he was aware of the existence of the rule 13 of the disciplinary
code, but he denied that he
violated the rule, in that a donated item
did not form part of the respondent’s property as it was not
listed as a commodity
of the respondent in terms of the rules.
Further, the fact that he had only signed the acknowledgement of
receipt of the donated
milk but had not grv’ed it meant that
the donation was excluded from the respondent’s ownership.
[23] The commissioner found that
thedonated milk was indeed the property of the respondent and that
the appellant “could not
prove that he had obtained
(management’s) authorisation before he opened the milk for
consumption”. On this basis,the
commissioner also found, that
the appellant had breached the respondent’s receiving rules.
[24] In his concluding remarks, the
commissioner stated:
“
Matsekoleng
did not show any remorse for breaching the respondent’s rule.
He maintained that the milk delivered to the respondent
was not the
respondent’s property. He also alleged that the respondent was
victimising him in order to dismiss him. Matsekoleng
had a poor
disciplinary record. Matsekoleng repeated the same misconduct though
he was warned not to.
Matsekoleng’s
written warnings have all expired. Matsekoleng shows that he has a
discipline problem. All the respondent’s
witnesses testified
that the employer-employee relationship is irretrievably damaged. I
do not think that a healthy environment
and working relationship
would ever be restored between Matsekoleng and the respondent.”
[25] The commissioner,accordingly,
found that the appellant’s dismissal was both procedurally and
substantively fair.
Proceedings in the Labour Court
[26] The appellant’s grounds of
review can briefly be summarised as follows:
26.1. That the commissioner committed
a gross irregularity in the conduct of the arbitration proceedings
by, amongst others, ignoring
the relevant evidence presented before
him or failed to apply his mind to such evidence.
26.2. That the commissioner was
generally grossly biased and, in particular, when he rejected the
evidence on affidavit of Schoeman
Dairies on the ground that the
respondent would not have the right to cross-examine the author of
the affidavit.
26.3. That the award was not
justifiable and/or rational in relation to the evidence brought
before the commissioner.
[27] The Court
a
quo
remarked, in passing, that “[a]n
attempt was made to hand in affidavit in substantiation of his (the
appellant’s) claim
that there was such practice which had been
standing over time on how donated milk had to be dealt with”.
However, the Court
a quo
made
no finding on whether the refusal by the commissioner of the
appellant bringing in such affidavit evidence was proper or not,
alternatively, how the commissioner ought to have dealt with the
situation.
[28]
In the
course of his judgment, the learned Judge
a quo
said the
following, amongst others, the significance of which is alluded to
later in this judgment:
‘
I
got a bit worried, looking at the experience of the applicant, 21
years of experience, being dismissed in a case for misappropriation
of property worth about R9.46 but one has to remember that there is a
bigger picture. He went to a security guard and created an
impression
that he had been authorised to appropriate the milk…’
[29] Then after referring to
authorities in relation to the Labour Court’s powers on review
the learned Judge proceeded:
‘
Can
it be said that in the present case that the award is irrational? I
have not heard Mr Pillay say so. If I look at the papers
and try to
determine the review grounds as distinct from the grounds that would
have been appropriate for appeal purposes, I have
been unable to find
any submissions that make me to arrive to the conclusion that the
application for the review has merits...
Here
I am unable to find, when I look at the award, that the evidence that
served before the commissioner, looking at the reasons
he gave for
the award and also looking at the award itself that the decision he
arrived at is irrational.’
[30] On this basis,the Court
a quo
dismissed the review application. Concerning the issue of costs, the
Court
a quo
further found that this was a case where it would
be fair that costs should follow the result and, accordingly, ordered
that the
appellant must pay the costs of the review application.
The Appeal
[31] It was apparent that most, or
virtually all, of the appellant’s papers were drawn up by
himself personally. As a result,
lack of the requisite professional
knowledge, skill or insight into what was required of him to do in
relation to each procedural
stepalong the way, regrettably reflected
in his papers. They frequently comprised of prolix, repetitive and
generally irrelevant
material, the extent of which was sometimes
stressful reading, to say the least. The appeal record consisted of
some 1266 pages
bound in 13 volumes, excluding the appellant’s
heads of argument which consumed some 67 pages. At the end of the
day, what
was otherwise a run-of-the-mill appeal matter, took
unnecessarily longer to peruse and prepare.
Grounds of appeal
[32] From what I could gather from the
appellant’s papers, his grounds of appeal can briefly be
summarised as including the
following:
32.1. The Court
a quo
erredin
disregarding the material error made by the commissioner in his
award, namely, where the commissioner reflected that the
appellant
was earning R3169-00 per month at the time of his dismissal whereas
it was common cause that he was earning R3989-00
per month.
32.2. The Court
a quo
erred in
not attaching weight to the delivery receipt from Schoeman Dairies
which stated clearly that the two litre milk was a
donation.
32.3. The Court
a quo
erred in
not finding that there was inconsistency in the respondent’s
treatment of its employees in that only the appellant
was charged
with misconduct; whereas the security guard, Ms Mabala, who cancelled
the receipt and the other colleagues who shared
the milk with the
appellant, including Ms Masemola, were not charged.
[33] Mr Malan, who appeared for the
respondent, submitted, firstly, that the delivery slip dated 24
February 2003 from Schoeman
Dairies which accompanied the donated
milk did not reflect that the donation was to be used for tea by
employees. Secondly, in
any event, it was not for Schoeman Dairies to
dictate to the respondent what it had to do with the milk once
donated to, and received
by, the respondent. He pointed out that the
appellant, as a senior employee, was aware of the relevant
respondent’s rule
that, all stock received, whether it be free
stock or donation, had to be ‘grv’ed’, which rule
the appellant
hadviolated.
Analysis and Evaluation
[34] A review court
ought always to remind itself of the fine and subtle distinction
between reviews and appeals when dealing with
review applications
under section 145 of the LRA. In
Shoprite
Checkers (Pty) Ltd v CCMA and Others,
9
the Supreme Court
of Appeal stated thus:
‘
There
may well be a fine line between a review and an appeal, particularly
where – as here – the standard of review
almost
inevitably involves a consideration of the merits. However, whilst at
times it may be difficult to draw the line, the distinction
must not
be blurred. (footnote omitted). The drafters of the LRA were
certainly alive to the distinction. They accordingly sought
to
introduce a cheap, accessible, quick and informal, alternative
dispute resolution process. In doing so, appeals were specifically
excluded.’
[35] Both the award
and the judgment of the Court
a
quo
in
this matterwere issued and delivered prior to the Constitutional
Court decision in
SidumoandAnother
v Rustenburg Platinum Mines Ltd andOthers.
10
Prior
to
Sidumo
,
the standard of review of a commissioner’s award under section
145 of the LRA was whether the award was rationally justifiable
in
relation to the material properly presented before the commissioner
and the reasons given for it.
11
However,
in terms of the
Sidumo
test,
in order to pass muster of judicial review under section 145 a
commissioner’s award must meet the constitutional standard
of
reasonableness.The Constitutional Court formulated the test as
follows:
12
“
To
summarise,
Carephone
((Pty) Ltd v Marcus NO and Others
1999
(3) SA 304
(LAC); (1998) 19 ILJ 1425;
[1998] 11 BLLR 1093)held
that
sect 145 of the LRA was suffused by the then constitutional standard
that the outcome of an administrative decision should
be justifiable
in relation to the reasons given for it. The better approach is that
sect 145 is now suffused by the constitutional
standard of
reasonableness. That standard is the one explained in
Bato
Star (Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004] ZACC 15
;
2004
(4) SA 490
(CC);
(2004 (7) BCLR 687)):
Is the decision reached by the
commissioner one that a reasonable decision-maker could not reach?
Applying it will give effect
not only to the constitutional right to
fair labour practices, but also to the right to administrative action
which is lawful,
reasonable and procedurally fair.”
[36] However, in
Edcon
Ltd v Pillemer NO and Others,
13
the
Supreme Court of Appeal (perMlambo JA, as he then was) reasoned that
the earlier standard of review was essentially and conceptually
no
different from the standard of review expounded in
Sidumo,
when the learned
Judge of Appeal remarked as follows:
14
“
[15]
… Reduced to its bare essentials, the standard of review
articulated by the Constitutional Court (in
Sidumo
)
is whether the award is one that a reasonable decision maker could
arrive at considering the material placed before him. (Inserted)
[16]
It is therefore the reasonableness of the award that becomes the
focal point of the enquiry and in determining this one focuses
not
only on the conclusion arrived at but also on the material that was
before the commissioner when making the award.
It is remarkable
that the constitutional standard of “reasonableness”
propounded by the Constitutional Court in
Sidumo
is
conceptually no different to what the LAC said in
Carephone
.
The only difference is in the semantics – the LAC had preferred
“justifiability” whilst the Constitutional Court
has
preferred the term “reasonableness.”
(underlined for
emphasis)
[37] The issue before the commissioner
was whether or not the dismissal of the appellant was substantively
and/or procedurally fair.
The substantive fairness aspect
[38] The
arbitration procedure is a statutory mechanism conducted in the form
of quasi-judicial proceedings aimed at resolving labour
disputes
fairly and in the most expeditious manner possible. The LRA
provides:
15
“
The
commissioner may conduct the arbitration in a manner that the
commissioner considers appropriate in order to determine the
dispute
fairly and quickly, but must deal with the substantial merits of the
dispute
with the minimum of legal formalities.”
[39] In my view,
the refusal by the commissioner to admit the affidavit of Mr Charles,
the manager of Schoeman Dairies, which the
appellant sought to be
admitted, was not only a procedural issue but it went into the merits
of the dispute between the parties,
in that it impacted on the
substantive aspect of the appellant’s defence. It was the
appellant’s case that the milk
was donated for the tea club
and, as such, was intended to be used for consumption by the
respondent’s staff, which according
to the appellant included
him. However, as stated earlier, no finding was made by the learned
Judge
a
quo
on
whether or not the decision to disallowtheadmission of the affidavit
amounted to a material mistake of law on the part of the
commissioner. I think it did, for the reasons that will become
apparent in due course.
[40]
The learned Judge
a
quo
was correct in not
placing the focus on the value of the milk
per
se
but rather, as he put
it, on the “bigger picture” by which the learned Judge
meant to refer (as I understood the context)
to the alleged conduct
of the appellant going to the security guard andallegedly creating
“an impression that he had been
authorised to appropriate the
milk.” However, with respect, what the learned Judge apparently
lost sight of here was the
fact that the security guard, Ms Susan
Mabala, to whom the appellant allegedly lied or created the false
impression, was not called
as a witness at the arbitration hearing.
Thus, any allegation attributed to Ms Mabala, by implication or
otherwise, in this regard
amounted to inadmissible hearsay, absent
any indication that any of the exceptions to the hearsay rule as
contemplated in section
3(1)(c) of the Law of Evidence Amendment
Act
16
was
invoked.
[41] Section 3(1)(c) of the said
Act
confers a
discretion on a court (or tribunal)in terms ofadmitting hearsay
evidence if, in the opinion of the court (or tribunal),
as the case
may be, it is in the interests of justice to admit such hearsay
evidence.The fact that the respondent’s representative
would
not have been in a position to cross examine the author of, or
deponent to, the affidavit if it was admitted, was not, in
my
opinion, a legally sound ground to have refused admission of the
affidavit, in the light of section 3(1)(c). That aspect of
the matter
would only be relevant on the question of the evidential weight to be
attached to the affidavit evidence concerned.
As the matter stood, i
t
did not appearthat the commissioner properly applied his mind on this
issue, if at all. In my view, the commissioner’s failure
in
this regard constituted a serious misdirection and a gross
irregularity, on the commissioner’s part, in the conduct of
the
arbitration proceedings, which rendered the award reviewable and
liable to be set aside.
[42] In any event, it seemed to me
that, by applying thepre-1988 strict common law rule against hearsay
evidence on the admissionof
theaffidavit, as the commissioner
apparently did, the commissioner did not thereby “deal with the
substantial merits of the
dispute with the minimum of legal
formalities” as required of him by section 138(1) of the LRA.In
Local Road Transportation Board and Another v Durban City Council
and Another
,
17
the Appellate Division (now the Supreme Court of Appeal) (Holmes JA)
stated:
18
“
A
mistake of law
per
se
is not an irregularity but its consequences amount to a gross
irregularity where a judicial officer, although perfectly
well-intentioned
and bona fide, does not direct his mind to the issue
before him and so prevents the aggrieved party from having his case
fully
and fairly determined.”
[43] In my view, therefore, the
failure by the commissioner to apply his mind properly on the issue
of admissibility of Mr Roberts’
affidavit constituted a
material error of law and a gross irregularity on the part of the
commissioner which prejudiced the appellant
in his right to a fair
hearing.
[44] The commissioner noted in his
award that “the affidavit would not prove that the donated milk
was not supposed to be
grv’ed”. Clearly, it was not for
the commissioner to prejudge the evidential value of Mr Roberts’
evidence which
the appellant sought to have admitted by way of
affidavit. It was apparent from the import of the misconduct charges
and the evidence
tendered on the respondent’s behalf that the
respondent was seeking to divert the attentionfrom, or underplay the
fact, of
the milk being a donation from Schoeman Dairy. In this
regard, the respondent was, in my view, giving a misleading
impression as
though we are dealing here with an ordinary commodity
from the respondent’s warehouse or kept on its shelves for
purposes
of sale in the ordinary course of business of the
respondent. Objectively speaking, that was clearly not the position
here. The
affidavit of Mr Roberts would not only confirm that the
milk was delivered as a donation, but it would also confirm the
appellant’s
version that the donation was intended for a tea
club. Indeed, it would further confirm that this apparent gesture of
generosity
from the part of Schoeman Dairytowards the respondent had
been going on for some time, or had occurred for at least some four
years
previously. There was no denial that in the past the donated
milk was used for tea. Whether it was used by management or by the
receiving staff, it is not material, because the appellant was not
charged for using milk that was intended for use by the management.
There was also no evidence or even suggestion that in the past the
donated milk from Schoeman Dairywas ever placed on the store
shelves
and sold to the public. It had never happened even once and, in my
view,the simple and obvious reason was because that
was not the
purpose for which the milk was donated by Schoeman Dairy and received
by the respondent. The information contained
in Mr Roberts’
affidavit was,therefore, clearly relevant to the dispute at hand and,
in particular, to the merits of the
appellant’s defence.
[45] Strangely though, despite the
commissioner’s ruling refusing the admission of the affidavit
of Mr Roberts, the affidavit
still, inexplicably, formed part of the
arbitration record before the commissioner and, subsequently, the
review record before
the Court
a quo
.Indeed, the reasons
proffered by the commissioner for declining to admit the affidavit,
somewhat tend to indicate some insight,
on the part of the
commissioner, into the contents of the affidavit. On this basis, I
see no reason why the affidavit should,after
all,not be considered as
part of the evidentiary material presented to the commissioner.
[46] In his affidavit Mr Roberts did
not only explain why he would not be available on the date of the
arbitration hearing that
he was subpoenaed for, but he went further
and somewhat confirmed the appellant’s averment that the milk
was, indeed, donated
to the ‘tea club’. The affidavit
read, in part, thus:
“
2.
I have received a subpoena to witness
(sic)
in an arbitration hearing scheduled for the 25
th
of September 2003 at 11:00.
3.
In terms of the subpoena, I also have to produce “the whole
bundle of donation receipts to Shoprite Groblersdal from 2001
until
24 March 2003.”
4.
I wish to advise as follows:
4.1
I will not be able to witness
(sic)
at the arbitration hearing
seeing that I will be on annual leave on the 25
th
of
September 2003.
4.2
Schoeman Melkery
donated 1x4 litres of milk per week to the tea
club
of the Respondent during the period stipulated in the
subpoena. (underlined for emphasis)
4.3
All documents related to the donations were however discarded with
and Schoeman Melkery is not in possession of any documents
to confirm
the donations. The only documents which were used were the delivery
documents which had to be signed by the Respondent…
5.
Based on the information contained in the statements (sic) made
above, the commission and the parties are requested to:
5.1
either postpone the hearing to a date on which I will be available,
or
5.2
withdraw the subpoena based on the fact that no supporting documents
are available.”
[47] There could be
no dispute that a two litre bottleof milk had arelatively paltry
value. It was common cause that its value was
approximately R9-49.
However, it has been held, as a general rule,that the dismissal of an
employee who committed a misconduct
involving theft or
misappropriation of a commodity or other property belonging to the
employer, regardless of the value of the
thing stolen (and, indeed,
regardless even of the length of service of the employee),is
substantively fair; and particularly so
in situations where there is
an existing shrinkage or suspected pilferage problem in the
workplace. There is always an element
of dishonestyor gross
dishonesty (depending on the gravity of the situation), inherent
inmisconduct at the workplaceinvolvingtheft
ormisappropriation. This
phenomenon strikes at the root of the trust and employment
relationship.In
Toyota
SA Motors (Pty) Ltd v Radebe and Others
19
this Court (per
Zondo AJP, as he then was) stated:
20
‘
[15]
… Although a long period of service of an employee will
usually be a mitigating factor where such employee is guilty
of
misconduct, the point must be made that there are certain acts of
misconduct which are of such a serious nature that no length
of
service can save an employee who is guilty of them from dismissal. To
my mind one such clear act of misconduct is gross dishonesty.
It
appears to me that the commissioner did not appreciate this
fundamental point.
[16]
…I am not saying that there can be no sufficient mitigating
factors in cases of dishonesty nor am I saying dismissal
is always an
appropriate sanction for misconduct involving dishonesty. In my
judgment the moment dishonesty is accepted in a particular
case as
being of such a serious degree as to be described as gross, then
dismissal is an appropriate and fair sanction.’
[48] In
Shoprite
Checkers (Pty) Ltd v CCMA and Others,
21
this
Court (per Davis JA) reiterated the principle which has been followed
all along by this Court in similar cases:
22
‘
[T]his
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
(LC)
at paragraphs 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.”’
[49]
The facts of the case in
Shoprite
Checkers
,
above, were briefly as follows: Theemployee was captured on ‘CCTV’
videotape on three occasions eating ‘pap’
and bread taken
from the delicatessen of the appellant’s store where the
employee worked. He was found guilty of misconduct
by the appellant
and summarily dismissed. On appeal, the employee’s counsel
conceded that the employee was guilty of the
misconduct, but
contended that the sanction of dismissal was too harsh and
inappropriate. The Court set out the circumstances that
existed in
the workplace in relation to the shrinkage problem, thus:
23
“
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
.”
And, in
upholding the appeal and declaring the dismissal to be substantively
fair, the Court concluded:
24
“
On
11 October 2000, he (the employee) 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…”
[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.For my part, it is
this side of the enquiry with which I have serious concern in the
present case. At this time,
I propose to recall the three counts of
misconduct of which the appellant was convicted and which culminated
in his dismissal:
“
(a)
Misappropriation of company property in that you opened a plastic
bottle of 2 litre milk intended for sale, causing a financial
or
potential financial loss to the company.
(b)
Serious misconduct in that you misled a company security guard in
cancelling unauthorised company merchandise.
(c)
Serious misconduct in that you did not follow company receiving
procedures causing financial or potential financial loss to
the
company.”
[51] Rules 11 and 13 of the
respondent’s Disciplinary Code were the provisions upon which
the respondent primarily sought
to rely in preferring and proving its
case against the appellant. It is apposite to refer to these
provisions, to the extent hereto
relevant:
“
Rule
11 – Buying
Employees
must comply with the specific staff buying procedures in the
workplace. It is the responsibility of employees to declare
all
goods/merchandice which have been purchased in the workplace and to
have such goods/merchandice checked and ‘cancelled’
by
authorised personnel before such goods are consumed in or removed
from the workplace. Employees must provide proof of purchase
of goods
in their possession wherever requested to do so by authorised
personnel.
Employees
must comply with the rules and conditions of the Company Buying Card.
This Card may only be used for the purchase of merchandise
for the
Cardholder and his immediate family. The drawing of cash or any other
misuse of the card is strictly prohibited.
Rule
13 – Dishonesty
Employees
may not be in possession of, or consume or attempt to consume, or
remove from Company premises by any means or in any
manner
whatsoever, any Company, Supplier, Customer or other property of
which the employee is not the lawful owner, including stock,
without
following the correct staff buying procedures or without the specific
authorisation of management.
Employees
may not hold or store any company property, including stock, on the
premises in places which are not recognised or designated
as storage
areas for that company property, without the specific authorisation
of management.”
[52] There was no
dispute that the appellant was aware of the provisions of rules 11
and 13, referred to above. The question, however,
was whether the
donated milk fell within the definition and ambit of the respondent’s
‘property’ or ‘goods’
contemplated in the
rules. The respondent claimed it did, but the appellant contended it
did not.It was submitted on behalf of
the respondent that the
financial loss (presumably annual loss) which the respondent suffered
through shrinkage in the dairy department
was in the region of R460
000-00. On this basis, Mr Grobbelaar submitted that the appellant’s
dismissal was fair, especially,
as he put it, “when you look at
the shrinkage that the company experiences these days. It can
actually cause a company like
ours to close its doors if this sort of
thing is not really dealt with in a very severe manner. A company can
just not afford to
loss
(sic)
the millions that
it does at present.”
25
I
now turn to deal with the misconduct charges
seriatim,
hereunder.
Counts 1 and 3 of the misconduct
indictment
[53] It is apparent that counts 1 and
3 were formulated on the basis that the donated milk was part of the
respondent’s stock-in-trade.
Indeed, this observation is
supported by the qualification in count 1 that the milk in question
was ‘intended for sale’.
[54] Although the respondent’s
witnesses sought to establish that the donated milk was indeed
‘intended for sale’
and that,in terms of the respondent’s
rules, it wassupposed to be ‘grv’ed’ and placed on
the shelves like
any other stock, it had to be inquired, nonetheless,
on the facts of this case and in relation to the appellant’s
defence,
whether or not there was a reasonable probability that the
appellanthad laboured under a sincere and genuine belief and
conception
that the milk was donated to be used for tea by the
respondent’s staff, including himself, as opposed to being
‘intended
for sale’ by the respondent. In dealing with
this inquiry the following observations are, in my view, relevant to
consider:
The evidence by Mr Meyer, the
respondent’s administration manager, referred to earlier in
this judgment, as to how the GRV
system was applied does not appear
to me to lend support that the goods contemplated thereby included
paltry itemssuch as a two
litre bottle of milk donated by a dairy
company specifically for use by the respondent’s tea club. The
GRV system clearly
pertained to goods or merchandise purchased or
acquired by the respondent for the purpose of sale or, in the words
of the respondent,
“intended for sale”; and in respect
of which the respondent incurred cost and expense to acquire. I
refer to some
pertinent parts of Mr Meyer’s evidenceon this
point:
1.1 “[A] GRV voucher itself gets
stamp
(sic)
onto an invoice and thereby the company
acknowledge(s) that the goods have been received through the correct
procedure and that
they accept the charges on the invoice
to
which it refers….”
1.2 “If he is not doing his job
properly
the company can lose a lot of money.
”
1.3 “Basically I.D.I. is an
outside company… subcontracted… to double check…
at our stores due to the
fact that
high shrinkage or high losses
can occur at our receiving.”
In the present instance, there were no
charges on the invoice, no financial loss to the company and no
shrinkage problem was involved.
Similarly, the
evidence of Mr Strydom (the branch manager) added credence to the
proposition that the 2 litre donated milk was
not intended to go
through the GRV system. For instance, at one stage he testifiedthat
the appellant was “some kind of
a gate keeper at our back door
where
all
the stock comes in which we pay for
…”
This assertion
would clearly not have been intended to include a donation of two
litre milk which was not paid for.
The receipt or
delivery slip number 38 dated 24 February 2003 from Schoeman Dairy
stated clearly that the delivered item, namely,
1x2 litres of milk,
was a ‘donation’ which was at no charge (N/C) to the
respondent.
26
The affidavit from Schoeman Dairy
supported the appellant’s version that the milk was donated to
the tea club.
The respondent’s averment that
it was not for Schoeman Dairy to dictate to the respondent how the
milk was to be disposed
of by the respondent would not serve to
detract from the fact of the appellant’s belief and conception
aforesaid being
sincere and genuine.
There was evidence
adduced at the disciplinary enquiry by Ms Minah Masemola, one of the
respondent’s employees, who was
present on 24 February 2003
when the appellant brought the milk to the office where the
receiving staff were having tea. Her
uncontested evidence
constituted part of the material presented to the commissioner.
27
She had testified
that it was not the first time that they had got the donated milk
from Schoeman Dairy - it had previously happened
during 1997 to 2001
and that the milk was used by the management and the receiving staff
for their tea. She had further testified
that on the day in
question, after they had shared the milk, the appellant had then
taken it to the manager. Ironically, in his
credibility finding on
Ms Masemola as a witness, the chairman Mr Grobbelaar remarked: “I
found her evidence trustworthy
and reliable.”
28
The appellant did not discreetly
dispose of the milk, but he overtly opened and shared it with his
receiving department colleagues,
after which he took it to the
management, apparently to let them have their share of it. That was,
in my view,a conduct
contra naturam sui generis
to that of a
conscientious thief.
[55] In the light of these
observations, it appears to me that the appellant sincerely and
genuinely believed that the donated milk
was intended for staff
consumption and not for sale, as alleged by the respondent. To my
mind, on the facts, his belief was also
reasonable in the
circumstances. It was highly improbable, unreasonable and far-fetched
that any right-minded person in the position
of the appellant would
have even suspected that an admittedly donated two litre milk would
be ‘intended for sale’ by
the store of the respondent’s
size and stature.
[56] Further, the ordinary reading of
the respondent’sdisciplinary code, particularly rules 11 and
13, does not seem to lend
support to the respondent’s claim or
suggestion that the definition of ‘property’ referred to
in those specific
rules was intended to include a two litre milk
donated to the respondent’s tea club,such as in this case.
[57] In any event, there was no
evidence adduced on behalf of the respondent to demonstrate that the
respondent suffered any financial
or potential financial loss
consequent upon the donated milk being consumed by the appellant and
his colleagues during their tea
break. On this basis, it appears to
me that the convictions of the appellant on counts 1 and 3 are not
sustainable.
Count 2 of the misconduct
indictment
[58] Ms Lorraine Stammer, the
respondent’s security officer, testified at the arbitration
hearing that she confronted the
appellant after the incident.
However,it transpired that Ms Stammer was not the company security
guard referred to in count 2 whom
the appellant allegedly “misled
in cancelling unauthorised merchandise”by saying that the
cancellation was authorised
by the manager. It was common cause that
the security guard whom the appellant approached for the said
“cancellation”
and who duly effected it was Ms Susan
Mabala who, inexplicably, was not called as a witness at the
arbitration hearing. In other
words, any evidence that was attributed
to Ms Mabala at the arbitration hearing was merely hearsay. There was
no explanation proffered
as to why Ms Mabala was not called as a
witness at the arbitration hearing.
[59] It is significant that, according
to the appellant, he had only explained to Ms Mabala that the
delivery invoice was to be
cancelled because the milk was a donation
intended to be used for tea by the receiving staff. He denied that he
ever said to Ms
Mabala that the manager had authorised the
cancellation of the invoice. It was, therefore, incumbent on the
respondent to have
called Ms Mabala to testify, which did not happen.
Absent any ruling or comment by the commissioner on the admissibility
issue
of Ms Mabala’s hearsay evidence and the reasons thereof,
if any, the hearsay evidence remained inadmissible and ought to have
been excluded from consideration by the commissioner. In my view,
therefore, the commissioner committed yet another material mistake
of
law which constituted a gross irregularity in the conduct of the
arbitration proceedings.Accordingly, the appellant’s
conviction
on count 2 cannot be sustained as well.
Procedural fairness aspect of the
dismissal
[60] I am persuaded, on theevidential
material properly presented to the commissioner, that the procedure
followed by the respondent
which culminated in the dismissal of the
appellant was, indeed, a fair procedure. The evidence before the
commissioner, read with
the uncontested documentary evidence of the
disciplinary proceedings, bear testimony that the appellant indeed
received a fair
hearing.
[61] Despite the appellant’s
protestation that the chairman of the disciplinary enquiry, Mr
Grobbelaar, was grossly biased
against him, I was unable to find any
evidence in support of that allegation. Instead, Mr Grobbelaar
appeared to have conducted
the disciplinary proceedings in a fair and
efficient manner. The record of the disciplinary proceedings stood as
proof thereof.
It was also noted that during 2001the appellant was
convicted of misconduct by the respondent’s disciplinary
tribunal which
imposed a sanction of summary dismissal. However, the
appellant lodged an appeal with the internal appeal structures. The
appeal
proceedings were presided over by the same Mr Grobbelaar who,
on that occasion, found that there was no sufficient evidence to
sustain the appellant’s conviction and he upheld the appeal and
reinstated the appellant into the respondent’s employ.
There
was no evidence to suggest that Mr Grobbelaar had since 2001
developed any personal animosity or hostile attitude towards
the
appellant. He appeared to be a fair and impartial adjudicator in the
conduct of disciplinary proceedings, as mirrored in his
evidence
during the arbitration hearing.
[62]
Accordingly,
for the reasons stated above, I am of the view that the
commissioner’s award, on the substantive fairness aspect,did
not pass muster of judicial review under section 145 of the LRA in
that it did not fall within the range of decisions which a reasonable
decision-maker could have reached. Hence, the award fell to be
reviewed and set aside and substituted with the order that the
appellant’s dismissal was procedurally fair but substantively
unfair.
[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
thusof 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 deviatesfrom
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.
29
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. The discussion on
the issue of sanction follows next.
The appropriate relief
[64] Section 193 of the LRA provides,
in part:
‘
(1)
If
the Labour Court or an arbitrator appointed in terms of this Act
finds that a dismissal is unfair, the court or the arbitrator
may-
(a)
order the employer to reinstate the employee from any date not
earlier than the date of dismissal;
(b)
order the employer to re-employ the employee, either in the work in
which the employee was employed before the dismissal or
in other
reasonably suitable work on any terms and from any date not earlier
than the date of dismissal; or
(c)
order the employer to pay compensation to the employee.
(2)
The Labour Court or the arbitrator must require the employer to
reinstate or re-employ the employee unless-
(a)
the employee does not wish to be reinstated or re-employed;
(b)
the circumstances surrounding the dismissal are such that a continued
employment relationship would be intolerable;
(c)
it is not reasonably practicable for the employer to reinstate or
re-employ the employee; or
(d)
the dismissal is unfair only because the employer did not follow a
fair procedure.’
[65] Therefore, the
primary statutory remedy for a substantively unfair dismissal is
reinstatement of the dismissed employee
30
which,
simply,“… is aimed at placing an employee in the
position he or she would have been but for the unfair dismissal.’
31
An order of reinstatement is only inappropriate where any of the
conditions referred to in section 193(2)(a), (b) or (c) of the
LRA
are present.
32
The enquiry into the appropriateness or otherwise of the
reinstatement order should, as its focal point, consider the
underlying
notion of fairness between both the employer and the
employee which ‘
ought
to be assessed objectively on the facts of each case bearing in mind
that the core value of the LRA is security of employment.’
33
[66] Recently, in
Dunwell
Property Services CC v SibandeandOthers
34
this
Court (per Ndlovu JA) found that an employee who had levelled some
“serious and scandalous allegations against certain
people in
the management level of the (employer)” was, notwithstanding
the Court’s finding that his dismissal was substantively
unfair, not entitled to reinstatement and instead the Court awarded
him compensation, on the basis that any continued employment
relationship with the employer was intolerable and impracticable.
35
[67] In the present instance, it would
appear to me that the relationship of trust and respect between the
appellant and the respondent
has been damaged beyond repair. It was
common cause that the appellant had a poor disciplinary record in
that he had at least four
previous written warnings for misconduct,
but all of which had expired. The respondent claimed that the
previous warnings were
not taken into account when the sanction of
dismissal was imposed because they had expired, but were merely
referred to in order
to demonstrate that the appellant had a poor
disciplinary record.
[68] Whilst the previous written
warnings had expired and, therefore, were not supposed to be taken
into account in determining
the appropriate sanction (I am not
suggesting that the respondent took them into account) it did appear,
from the objective and
pragmatic perspective, that the sour and
strained working relationship between the appellant and the
respondent had simply deteriorated
over time and it was probable that
the appellant’s poor disciplinary record had largely
contributed to this state of affairs.
In other words, whether or not
the previous warnings had expired, the fact of the matter was that
the relationship of trust between
the parties had irretrievably been
damaged. It seemed to me that the appellant was being disingenuous
when he purported to aver
the contrary positionin this regard. The
appellant did not only make serious accusations against certain
management staff of the
respondent, he further appeared to concede
himself that continued working relationship was no longer tolerable.
On this point,
it is apposite to refer to some pertinent remarks
which the appellant made in his heads of argument:
The appellant alleged that the
chairperson (referring to Mr Grobbelaar, the respondent’s
regional manager) ‘
cowed
me into the pleadings of the charges
without being asked if I do understand them.’
36
(underlined for emphasis)
He alleged that the ‘chairperson
was bias and not neutral in this matter…’
37
He further alleged: ‘My plea to
the charges after Mr Grobbelaar had reiterated them was made
under
duress
.’
38
(underlined
for emphasis)
More significantly, he proceeded and
submitted:
‘
I
was shouted in the office by Mr Andre Annandale, the Regional Admin
Manager,
‘
shut
up’, ‘Masepa’, ‘thula, bull-shit’ and
threatened violence
.
Mr Wayne Guest and Mr Andre Annandale were not charged nor dismissed
for breaching Rule 15… Such language by Mr Wayne Guest,
the
Branch Manager and Mr Andre Annandale, the Regional Admin Manager,
makes
a continued employment relationship intolerable, no wonder when the
Commissioner looked at this evidence of previous disciplinary
record
and said: ‘I do not think a healthy environment and working
relationship would ever be restored between Matsekoleng
and the
respondent
.’
39
(underlined
foremphasis).
Therefore, the appellant’s
further submission, in the same paragraph, that the working
relationship could still be restored
if the respondent were ordered
‘to redress my dignity’ appears, in my view, to be
somewhat mutually contradictory.
[69] I am satisfied, accordingly, that
thecontinued employment relationship between the appellant and the
respondent would be intolerable;
hence the only appropriate remedy,
in the circumstances, would be compensation.
40
Given the facts of the case, I
consider that compensation in the amount equivalent to eight months’
remuneration at the rate
applicable to the appellant at the time of
his dismissal would be just and equitable. It is common cause that
the appellant earned
R3989-00 per month at the time of his dismissal.
[70] Concerning the issue of costs,
even if the appellant had lost the case it did not appear to me that
this was the appropriate
instance where the award of a costs order
against him was fair and just. Losing his job was a sanction well
adequate for him to
have further deserved a costs order against him.
In my view, there should have been no order as to costs. Indeed,
there is no reason
why that position should not equally apply on the
issue of costs of the appeal.
[71] In the result, the following
order is made:
The appeal is upheld partly, to the
extent that the order of the Court
a quo
is set aside and
substituted with the following order:
1.1 Thecommissioner’s award
under reference number MP2256-03 dated 9 February 2004 is reviewed
and set aside and for it the
following is substituted:
‘
(a)
The dismissal of the applicant was procedurally fair but
substantively unfair.
(b)
The respondent is ordered to compensate the applicant with the amount
equivalent to the applicant’s eight months’
salary
calculated on the basis of the applicant’s remuneration at the
time of his dismissal (i.e. R3989-00 x 8 = R31 912-00).
(c)
The respondent is ordered to pay to the applicant the amount referred
to in (b) above within 40 (forty) days from the date of
this order.’
There is no order as to costs.
There shall be no order as to costs
of the appeal.
_________________
NDLOVU, JA
Judge of the Labour Appeal Court
Davis JA and Landman AJA concur in the
judgment of Ndlovu JA
Appearances:
For the appellant: In person
For the respondent: Mr ML Malan
Instructed by: Perrot. Van Niekerk.
Woodhouse. Matyolo. Inc.
1
It
was not disputed by the respondent that this is the correct date of
the appellant’s employment with the respondent, despite
the
fact that in the judgment of the Court
a quo
it is stated,
apparently mistakenly, that the appellant commenced employment
‘sometime in 1984’.
2
Although
different amounts appear at different places in the papers, for
example, the amount of R3189,00 was alleged by the appellant
(See
Vol. 7, at 625 para 6.1.3.10.1) and the arbitration award reflected
R3169-00 (See Vol. 7, at 608), I am inclined to
accept that R3989-00 is the correct amount, given the fact that it
was the amount
recorded as
common cause between the parties
at the pre-arbitration meeting
(See Vol. 3, at
242) and was, most importantly, subsequently specifically admitted
by the respondent (See Vol. 13, at 1211 para
60). It is, therefore,
safe to assume that the other amounts were most probably typed as
such in error; and this is supported
by the respondent (See Vol. 13,
at 1211 para 61.2).
3
Act
66 of 1995.
4
Arbitration
record, Vol 3 of the indexed papers, at 258-259.
5
Arbitration
record, Vol 3 of indexed papers, at 267.
6
Arbitration
record, Vol 3 of indexed papers, at 272.
7
Arbitration
record, Vol. 3 of the indexed papers, at 308.
8
Arbitration
record, Vol. 3 of the indexed papers, at 313.
9
2009
(3) SA 493
(SCA) at para 28. See also
Rustenburg
Platinum Mines Ltd (Rustenburg Section) v CCMA and Others
2007 (1) SA 576
(SCA);
(2006) 27
ILJ
2076 (SCA);
[2006] 11 BLLR 1021
(SCA) at para 30.
10
(2007)
28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC).
11
Carephone
(Pty) Ltd v Marcus NO and Others
(1998) 19 ILJ 1425 at para
31-37;
Mzekuand Others v Volkswagen SA (Pty) Ltd and Others
[2001] 8 BLLR 857
(LAC) at para 60
;
(2001) 22 ILJ 1575
(LAC);
Adcock Ingram Critical Care v CCMA and Others
[2001] 9
BLLR 979
(LAC) para 22
;
(2001) 22 ILJ 1799 (LAC);
Waverley
Blankets Ltd v CCMA and Others
(2003) 24 ILJ 388 (LAC);
[2003] 3
BLLR 236
(LAC) at para 41;
Branford v Metrorail Services (Durban)
and Others
(2003) 24 ILJ 2269 (LAC);
[2004] 3 BLLR 199
(LAC) at
para 20;
Toyota SA Motors (Pty) Ltd v Radebe andOthers
(2000)
21 ILJ 340 (LAC) at para 53;
Shoprite Checkers (Pty) Ltd v Ramdaw
NO and Others
(2001) 22 ILJ 1603 (LAC) at paras 7-8.
12
Sidumo
(supra), at para 110.
13
[2010]
1 BLLR 1
(SCA).
14
Ibid,
at paras 15 and 16.
15
Section
138 (1).
16
Act
45 of 1988.
17
1965
(1) SA 586
(A).
18
Ibid
at 598A.
19
(2000)
21 ILJ 340 (LAC).
20
Ibid,
at 344.
21
[2008] ZALAC 9
;
[2008]
9 BLLR 838
(LAC).
22
Ibid,
at para 16. Other decisions cited, with approval, by the Court
included:
Lahee Park Club v Garratt
[1997] 9 BLLR 1137
(LAC)
at 1139;
Metcash Trading Ltd t/a Metro Cash and Carry v Fobband
Others
(1998) 19 ILJ 1516 (LC) at para 17;
Leonard Dingler
(Pty) Ltd v Ngwenya
(1999) 20 ILJ 1171 (LAC) at para 78;
De
Beers Cosolidated Mines Ltd v CCMA and Others
(2000) 21 ILJ 1051
(LAC) at para 22;
Rustenburg Platinum Mines Ltd (Rustenburg
Section) v NUM and Others
(2001) 22 ILJ 658 (LAC) at para 22.
23
Shoprite
Checkers
(supra) a
t para 22.
24
Id
at para25.
25
Arbitration
record, Vol 5 of the indexed papers, at 436.
26
See
indexed papers, at 61.
27
See
the transcribed ‘Outcome of Disciplinary Enquiry’, at
104-112 of the indexed papers, particularly at 106.
28
At
106 of the indexed papers.
29
Shoprite
Checkers
(supra) at para 16 and the decisions
cited therein.
30
Section
193 (1)(a) of the LRA.
31
Equity
Aviation Services (Pty) Ltd v Commission for Conciliation, Mediation
and Arbitration and Others
[2008] 29 ILJ 2507; Also reported as
[2008] 12 BLLR 1129
(CC) at para 36.
32
Mediterranean
Textile Mills v SACTWU and Others
[2012] 2 BLLR 142
(LAC) at
para 28.
33
Equity
Aviation,
above,
at para
39.
See also
Billiton Aluminium SA Ltd v
Khanyile and Others
2010 (5) BCLR 422
(CC) at paras 26-27.
34
(2011)
32 ILJ 2652 (LAC);
[2012] 2 BLLR 131
(LAC).
35
Ibid,
at para 32.
36
Para
10 of the appellant’s heads of argument.See also paras 10.2;
34.1.2 and 34.1.2.2.
37
Para
10.5 of the appellant’s heads of argument.
38
Para
34.1.2 of the appellant’s heads of argument.See also para
34.1.2.3.
39
Para
40.5 of the appellant’s heads of argument.
40
In
terms of section 194 (1) of the LRA.