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[2013] ZALAC 29
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Mbanjwa v Shoprite Checkers (Pty) Ltd and Others (DA 4/11) [2013] ZALAC 29 (7 November 2013)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, DURBAN
JUDGMENT
Not 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 by
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 commission 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:
The appeal is upheld with costs.
The cross appeal is dismissed.
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.’
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