About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2015
>>
[2015] ZALAC 78
|
|
Shoprite Checker v Mzolo (JA 49/14) [2015] ZALAC 78 (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:
Mr Doctor Cithi of Mervyn Taback Inc
FOR THE THIRD RESPONDENT:
Adv D Brown
instructed by Kgotleng
Attorneys