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[2015] ZALAC 23
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Shoprite Checkers (Pty) Ltd v Tokiso Dispute Settlement and Others (JA49/14) [2015] ZALAC 23; [2015] 9 BLLR 887 (LAC) ; (2015) 36 ILJ 2273 (LAC) (24 June 2015)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA 49/14
In the matter between:
SHOPRITE CHECKERS
(PTY)
LTD
Appellant
and
TOKISO DISPUTE
SETTLEMENT
First Respondent
SHAAM GOVENDER
NO
Second Respondent
NOTOMBENHLE
MZOLO
Third Respondent
Heard:
14 May 2015
Delivered:
24 June 2015
Summary: Review of
arbitration award – appropriateness of sanction –
employee dismissed for failing to declare personal
goods –
employer applying its zero tolerance policy and dismissed employee
for first time offence for her failure to declare
her goods –
commissioners having wide power to assess the fairness of dismissal –
application of zero tolerance policy
depending on each circumstance –
employer blurring the rule to declare any property to theft –
employer’s policy
providing for mitigation of sanction upon
production of a receipt that the property belonging to employee –
employee’s
dismissal disproportionate – commissioner’s
award unreasonable – Labour Court’s judgment upheld –
appeal dismissed.
Coram: Davis JA,
Ndlovu JA
et
Landman JA
Neutral citation:
Shoprite Checkers (Pty) Ltd v Mzolo (LAC 49/14)
JUDGMENT
LANDMAN JA
Introduction
[1]
Shoprite Checkers, the appellant, appeals against the whole judgment
of the Labour Court (Cele J) delivered on 12 September
2013, which
set aside an award by Shaam Govender NO, a commissioner of the
Commission for Conciliation, Mediation and Arbitration
(the CCMA),
and replaced it with an order that the dismissal of Ms Ntombenhle
Mzolo, the third respondent, was substantively unfair.
The appeal is
with the leave of this Court.
The
facts
[2]
The third respondent commenced her employment with the appellant in
June 2002. She progressed to the position of a supervisor.
On 10
November 2009 when she left the store, she was found in possession of
uncancelled/unpaid “Shield for Men”, a
roll-on deodorant,
in her handbag. On 7 December 2009,,she pleaded guilty at a
disciplinary hearing to the offence of being in
possession of
uncancelled/unpaid goods when leaving work. She gave evidence in
mitigation of the sanction. The third respondent
told the hearing
that she had gone to see her doctor on 10 November and that the
doctor had asked her not to apply deodorant when
she came for an
appointment. She put the deodorant in her handbag and forgot to clear
it before coming into the store. She did
not use deodorant every day
and this is why she forgot to declare it. She was under the
impression that the company would give
her a warning for the first
offence of this nature and that she would only be dismissed if she
transgressed for the third time.
[3]
Under cross-examination, the third respondent admitted that she did
not have a doctor’s appointment for 10 November 2009.
But she
nevertheless decided to visit the doctor on that date. The doctor’s
note that instructed her not to use deodorant
when she came for an
appointment was dated 30 March 2009. She was dismissed from her
employment with the appellant.
The
arbitration
[4]
The third respondent referred a dispute about her dismissal to the
CCMA. The dispute was subsequently enrolled for arbitration.
She was
not permitted legal representation at the arbitration. The appellant
was represented at the arbitration by its regional
personnel manager.
It is common cause that the only issue that the commissioner had to
decide was whether dismissal was an appropriate
sanction in the
circumstances.
[5]
The third respondent told the commissioner that she went to the
doctor on the day in question. She was worried that she had
cancer.
On leaving the doctor, she used the deodorant and put it in her bag
and forgot about it. It was discovered by a security
guard when she
left work that afternoon. She maintained that she had not yet been
diagnosed as at 20 April 2010 and therefore did
not know whether she
had cancer. She had not gone for an X-ray. She produced the doctor’s
note referred to above.
[6]
The third respondent insisted that the deodorant had been used and
did not belong to the appellant. She said that if it was
brought to
the arbitration, this would be established.
[7]
Under cross-examination, she conceded that the doctor’s note
was dated 30 March 2009. She was asked whether she knew that
she had
a doctor’s appointment on 10 November 2009. She replied that
she knew this, but she did not go to the doctor. Then
she changed her
version and said that she did in fact go to the doctor on that date.
Later, she again stated that she did not have
an appointment with the
doctor for that day.
[8]
The third respondent acknowledged that she knew that the company
rules, designed to counter shrinkage, required her to have
items
cancelled at the security office. She said she forgot to declare it.
She said she would not steal a deodorant which is valued
at R11.99.
She has two children to support. It was put to her that the appellant
did not allege that she stole the goods and she
was given several
weeks to bring proof of purchase of the deodorant and show it to the
appellant.
[9]
Mr Percy Molaodi testified at the arbitration that he was a fresh
sales manager. He chaired the disciplinary hearing. He described
the
company policy about personal belongings. He said that if an employee
is found with uncancelled goods, the penalty is dismissal.
This
penalty had also been applied at other branches. The third respondent
was given an opportunity to bring proof of purchase,
but she did not
do so. He saw the deodorant. It was new and had not been used because
he opened the roll-on to check this. He confirmed
that he dismissed
the third respondent.
[10]
The commissioner was satisfied that as a supervisor, the third
respondent was aware of the rule that she was required to declare
goods in her possession. The commissioner did not accept her version
that she had forgotten to declare the deodorant to the security
staff
when she arrived at work. The commissioner was satisfied that the
appellant acted consistently and that employees who were
found guilty
of this offence were dismissed. The commissioner noted that this
evidence was not challenged. The commissioner found
that the sanction
of dismissal was appropriate and therefore the dismissal was
substantively fair.
The
review
[11]
The third respondent applied to the Labour court to review and set
aside the award of the commissioner. The court
a quo
, noted
that the third respondent pleaded guilty on the understanding that
she would receive a warning. The court
a quo
found that the
commissioner had not assisted the third respondent when it became
necessary for her to challenge the version of
Mr Molaodi. The court
a
quo
regarded this as a very material omission on the part of the
commissioner and that it was unfair to turn around and blame the
third
respondent for her failure to contest this evidence.
[12]
It would seem that in addition to this irregularity, the court
a
quo
disapproved of the reasoning and the conclusion reached by
the commissioner in her award. The court
a quo
said:
‘
[21] In
my view this application is meritorious. I am not satisfied with the
fact that the third respondent proved the fairness
of the dismissal.
During the arbitration hearing, there was clearly a higher
probability of the commissioner having to find here
that dismissal
was too harsh and the commissioner misdirected itself in the face of
the evidence that was on record. The commissioner
was dealing with an
employee who had pleaded guilty, who clearly would have showed
remorse in the circumstances and who clearly
had been to a doctor at
some stage in the morning of the day in question. To say her version
was not reliable and was not probable
because she had not taken the
medical test is also a misdirection in that on her undisputed version
she had been to a doctor that
morning.
[22] As to the aspect of the
applicant carrying a deodorant that she was not used to using, and
that she had not used on that on
the day, that is immaterial as she
did undisputedly carry that deodorant. She did fail to cancel it.
That is why she is guilty.
We are not dealing with the issue whether
she is guilty or not we are moving from the premise that she is
guilty and we cannot
use the material for returning the guilty
verdict in determining the fairness of the sanction.
[23] The evidence on record
satisfies me that the commissioner ought to have found that the
dismissal was not a fair sanction. She
ought to have found on the
contrary, that in the circumstances, a fair sanction would have been
one of either a written warning
or a final written warning, but not
sanction of dismissal.’
Evaluation
[13]
Before evaluating whether the court
a quo
correctly set aside
the award, it is necessary to place the nature of the offence in
context and to make some general observations.
In this case, the
charge brought by appellant was not theft, but rather was based on a
failure to account for the deodorant; that
is a failure to cancel. It
is important not to blur the distinction between the charge brought
by appellant and a charge of theft.
[14]
It is common knowledge that retailers are faced with what is termed
shrinkage that is partly attributable to misappropriation
of stock by
their employees. Shrinkage has significant financial implications for
retailers. One of the steps taken to counter
shrinkage is to require
employees, on entering the store, to declare (the terminology used is
“cancel”) their property
unless it is obviously not
company stock. A failure to do so constitutes a disciplinary offence.
This rule also assists in countering
a defence, if an employee is
found in possession of stock
and
charged with theft, that the
stock is the lawful property of the employee.
[15]
Although the failure to declare the property takes place as a measure
to counter theft, the offence created is not one of theft.
A repeated
breach of this rule may be made a dismissible offence, not because a
breach of the rule constitutes theft, although
it may lend support to
a suspicion of theft, but because a repetition goes to show that the
offender wilfully refuses to co-operate
with this rule in countering
shrinkage and is untrustworthy.
[16]
It is difficult to appreciate how a single transgression of this
rule, except as regards high value goods, is sufficient to
warrant
dismissal and all the unfortunate consequences that it embraces. In
fact, the nature of the mischief which the rule is
aimed at seems to
only come to the fore once there has been a previous transgression.
[17]
It is also necessary to make some further remarks as regards
dismissal for a first offence ie a “zero tolerance”
policy. A dismissal will only be fair if it is procedurally and
substantively fair. A commissioner of the CCMA or other arbitrator
is
the initial and primary judge of whether a decision is fair. As the
code of good practice enjoins, commissioners will accept
a zero
tolerance if the circumstances of the case warrant the employer
adopting such an approach.
[18]
But the law does not allow an employer to adopt a zero tolerance
approach for all infractions, regardless of its appropriateness
or
proportionality to the offence, and then expect a commissioner to
fall in line with such an approach. The touchstone of the
law of
dismissal is fairness and an employer cannot contract out of it or
fashion, as if it were, a “no go area” for
commissioners.
A zero tolerance policy would be appropriate where, for example, the
stock is gold but it would not necessarily
be appropriate where an
employee of the same employer removes a crust of bread otherwise
designed for the refuse bin. See the incisive
contribution by André
van Niekerk “Dismissal for Misconduct – Ghosts of
Justice, Past, Present and Future”
in Le Roux R and A J Rycroft
(eds)
Reinventing Labour Law: Reflecting on the First 15 Years of
the Labour Relations Act and Future Challenges
(Juta 2012)
102-119. Commissioners should be vigilant and examine the
circumstances of each case to ensure that the constitutional
right to
fair labour practices, more particularly to a dismissal that is fair,
is afforded to employees.
[19]
I now turn to the facts and circumstances of the dismissal of the
third respondent. The evidence of the manager is that the
appellant
applies a strict policy and regards dismissal as the appropriate
sanction for a single infringement of the rule relating
to
“cancellation” of goods. There is no evidence that this
approach or policy is known to employees of the appellant.
Secondly
it is contrary to the appellant’s code of conduct, handed in at
the arbitration, which mentions the offence and
then states that
it
may
lead to a disciplinary sanction including dismissal.
[20]
In this instance, although the manager says that dismissal is the
sanction for a single transgression, he also says that on
production
of a receipt, showing that the goods were purchased, the sanction
would be a final written warning. Leaving aside for
the moment the
import of proof of purchase, dismissal is not the only remedy that
the appellant applies for a single transgression.
[21]
I return to the appellant’s approach to grant leniency if the
offender produces a receipt ie proof of purchase of the
stock either
from the employer or another vendor. As the offence is not theft, the
receipt goes only to prove a genuine lapse in
compliance with the
rule that is relevant as regards the appropriate sanction (if any).
In this case, the approach of the manager
seems to betray a view that
failing to cancel the goods created the offence of theft which can
only be mitigated by proving that
there was no misappropriation of
company property as the receipt shows that the possession and removal
of the goods is lawful.
The offence of failing to cancel goods is not
tantamount to theft, although it is a useful countermeasure to theft.
[22]
Even assuming that the appellant was pursuing a zero tolerance
policy, it was not one that is appropriate for an infringement
of
this rule without further evidence from appellant for the
justification of such an inflexible policy. In any event, the
commissioner
is required to consider whether the circumstances of the
case warrant dismissal. If it does not, then irrespective of the
company’s
policy, the commissioner is at large to set the
dismissal aside and replace it with an appropriate sanction.
[23]
Although the employee was not a good and truthful witness she pleaded
guilty to infringing the rule. This is a mitigating circumstance.
Her
other circumstances indicates that a final written warning is called
for as opposed to dismissal. Her dismissal for a single
transgression
was, in these circumstances, unfair. The award of the commissioner is
not one that a reasonable commissioner would
have made. The
commissioner should have replaced the sanction with a final written
warning.
[24]
I have reached the same conclusion as the court
a quo
, albeit
for slightly different reasons and consequently the appeal must be
dismissed.
The
order
[25]
I make the following order:
1.
The
appeal is dismissed.
2.
There
is no order as regards the costs of the appeal.
_________________
Landman
JA
Davis and Ndlovu JJA
concur in the judgment of Landman JA
APPEARANCES:
FOR THE APPELLANT:
Ms Mairead Edwards of Mervyn Taback Inc
FOR THE THIRD RESPONDENT:
Adv D Brown
instructed by Kgotleng
Attorneys