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[2016] ZALAC 5
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Woolworths (Pty) Ltd v Mabija and Others (PA3/14) [2016] ZALAC 5; [2016] 6 BLLR 568 (LAC); (2016) 37 ILJ 1380 (LAC) (19 February 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case no: PA3/14
In the matter between:-
WOOLWORTHS (PTY) LTD
Appellant
and
KHAYALETHU CHRISTOPHER
MABIJA
First Respondent
(Third
Respondent in the Court
a
quo
)
COMMISSIONER
FOR CONCILLIATION, MEDIATION
AND
ARBITRATION
Second Respondent
(First Respondent in
the Court
a quo
)
COMMISSIONER
SIYABONGA COKILE
Third Respondent
(Second
Respondent in the Court
a quo
)
Heard:
24 November 2015
Delivered
:
19
February 2016
Summary
:
Review
of arbitration award – employee charged with two counts of
misconduct and dismissed – commissioner finding employee
misconducted himself in the exercise of his duties but found that
sanction of dismissal too hash- employee reinstated without back
pay.
Commissioner decision falling within the ban of reasonableness –
Labour court’s judgment upheld. Appeal dismissed
with costs.
Coram: Waglay JP, C J
Musi JA e
t
Savage AJA
JUDGMENT
C J MUSI JA
[1] This appeal, which is
with the leave of this Court, is against the judgment of the Labour
Court (Lallie J), wherein it dismissed,
with costs, the review
application brought by the appellant.
[2] The first respondent
(the employee) was employed by the appellant from February 2007. He
was dismissed on 17 November 2010.
At the time of his dismissal, he
was a controller or what was called a weekend manager at the
appellant’s Greenacres store,
Port Elizabeth. It was common
cause that the stock of the Port Elizabeth stores was ordered from
the appellant’s Cape Town
warehouse. The stock would then be
delivered by truck to the Port Elizabeth stores.
[3] Different container
dollies were used for different products. Cold chain products, which
must immediately be put in the cooler
after being offloaded, were put
on cold chain dollies. The products that do not have to be
refrigerated were put on ambient dollies.
Although the cold chain
dollies and the ambient dollies could not easily be distinguished,
the cold chain dollies were normally
wet.
[4] During the evening of
18 October 2010 the employee and three other employees offloaded a
truck. He was in charge of the offloading
process. When his other
colleagues arrived the next morning, they saw that a dolly with cold
chain products to the value of R3675.00
was left unattended and not
put in the refrigerator.
[5] The employee also
indicated on the official documents, that a pallet of long life
products that was brought by another truck
was offloaded, but the
products were found on the truck the next morning. The cold chain
products were not kept at the required
temperature for a few hours
after being offloaded therefore they had to be destroyed. This
resulted in the loss of R3675.00. The
long life products did not
result in actual loss but potential loss.
[6] The employee was
charged and convicted of gross misconduct in that between 18 and 19
October 2010, he failed to comply with
the appellant’s cold
chain policy and procedure by leaving a dolly with cold chain
products unattended. He was also convicted
of leaving a pallet of
long life products on the delivery truck despite indicating that he
received it. He was dismissed.
[7] Dissatisfied with the
dismissal, he referred a dispute to the Commission for Conciliation
Mediation and Arbitration (CCMA).
Conciliation was unsuccessful and
he referred the dispute for arbitration.
[8] The third respondent
(the Commissioner) found that the employee had committed both acts of
misconduct. He however found that
the sanction of dismissal was too
harsh and made the following award:
‘
The
dismissal of the Applicant, Khayalethu Christopher Mabija, was
substantively unfair.
The Respondent, Woolworths (Pty) Ltd,
must reinstate the Applicant, Khayalethu Christopher Mabija, with no
loss of service and benefits,
into the same or similar position on
the same terms and conditions that existed prior to the dismissal on
17 November 2010.
The Respondent, Woolworths (Pty) Ltd,
must pay back pay to the Applicant, Khayalethu Christopher Mabija, in
the amount of R2 666.66
x 3 months = R7 999.98 (Seven
Thousand Nine Hundred and Ninety Eight Rands) within 14 days from the
date the Respondent is
served with this award.
The Applicant, Khayalethu Christopher
Mabija, must report for duty on 20 June 2011.
The Applicant, Khayalethu Christopher
Mabija, is given a final written warning valid for a period of 12
months from 17 November
2010.
I make no order as to costs.’
[9] The appellant felt
aggrieved by the award and launched review proceedings in the court a
quo
. The court a
quo
found that the Commissioner gave
no less that nine reasons why the sanction was too harsh. On the
ground of review that the Commissioner
failed to consider the fact
that the employee raised a fabricated defence, the court a
quo
said the following:
‘
I am not
convinced that it is permissible to review the award based on the
omission to consider that the third respondent’s
defence was
based on fabrication particularly in view of his reasons for
rejecting his version as it did not cause the commissioner
to reach
an unreasonable decision.’
[10] With regard to the
breakdown of the employment relationship, the court a
quo
said
the following:
‘
No list of
specific acts of misconduct or circumstances which destroy the trust
relationship exists. Further, it is not enough for
an employer to
merely state that the trust relationship has broken down. It is
necessary for evidence to be led to prove the breakdown
of the trust
relationship.’
[11] The court
a quo
also found that the trust relationship does not automatically
breakdown each time an employee commits misconduct.
[12] Ms Nel, on behalf of
the appellant, left no stone unturned in her criticism of the
judgment of the court a
quo
and the award of the Commissioner.
[13] She contended that
the Commissioner misconceived the nature of the inquiry because he
stated that he was called upon to determine
whether the sanction
imposed by the appellant was appropriate as opposed to fair in the
circumstances. She contended that the Commissioner
wrongly embarked
on a fresh determination of an appropriate sanction instead of
determining whether the sanction imposed by the
appellant was fair. A
careful reading of the award repays attention. At paragraph 21 of the
award, the Commissioner states the
following:
‘
In deciding
the fairness of the applicant’s dismissal, I must consider item
7 of the Code of Good Practice on Dismissal. In
this regard the code
states that an arbitrator must consider:
Whether or not the employee
contravened a rule or standard regulating conduct in, or relevant to
the workplace; and if a rule or
standard was contravened, whether or
not…dismissal was an appropriate sanction for the
contravention of the rule or standard.’
[14] The Commissioner
then stated the following:
‘
In
determining whether or not the sanction imposed by the respondent on
the applicant was appropriate, I have considered that the
rules
breached by the applicant were important to the respondent, that the
respondent’s disciplinary code imposed a sanction
of dismissal
for gross negligence, that the respondent suffered a loss in the
amount of R3 675.00, that the respondent’s
disciplinary
code states that the corrective measures or consequences listed
therein should be used as guidelines for fair and
consistent
discipline of employees, that the security of employment is a core
value of the Constitution, the circumstances under
which the acts of
misconduct were committed by the applicant where he was short
staffed, that the applicant had been employed as
an end of day
controller for about two months when these incidents occurred, that
no evidence was led by the respondent as to why
corrective discipline
was not applied in this case and whether additional training and
instruction could still result in the applicant
repeating the
misconduct, that the misconduct committed by the applicant did not
involve an act of dishonesty which could lead
to the intolerability
of the employment relationship, that the applicant had a clean
service record, and the effect of the dismissal
on the applicant.
I therefore find on a balance of probabilities that, the sanction of
dismissal was too harsh in the circumstances
and conclude that the
applicant’s dismissal was substantively unfair’.
[15] It is clear from the
above that the Commissioner was aware that in determining whether the
dismissal of the employee for misconduct
was fair, he should consider
whether the sanction imposed by the employer was appropriate. In my
view, he did not misconceive the
nature of the enquiry.
[16] Ms Nel submitted
that although the Commissioner acknowledged that Snyman had given
evidence on behalf of the appellant that
the trust relationship had
broken down, he however found that there had been no evidentiary
basis laid therefor before him. She
submitted that this finding was
clearly at odds with the evidence before the Commissioner and that no
reasonable decision-maker
could have found as the Commissioner did at
paragraph 28 of the arbitration award; that there was no evidentiary
basis laid by
Snyman for a finding that the trust relationship was
broken.
[17] Paragraph 28 of the
award reads as follows:
‘
On the issue
of sanction imposed by the respondent, I observed in the last
paragraph of paragraph of 54 of the respondent‘s
bundle of
documents that the chairperson’s finding that the respondent
would find it extremely difficult to trust the applicant
was not
supported by evidence and as such the chairperson entered the arena
by making a finding in favour of the respondent without
any
evidentiary basis. Even though, Hein Snyman testified that he
regarded the trust relationship as broken there was no
evidentiary
basis that was laid down by him on what basis the trust relationship
was broken.’
[18] A proper reading of
paragraph 28 reveals that the Commissioner firstly criticized the
chairperson of the disciplinary inquiry’s
finding relating to
the trust relationship in the absence of any evidence in that regard.
It must be remembered that Snyman did
not testify at the disciplinary
hearing; he only testified at the arbitration. Secondly the
Commissioner found that Snyman’s
testimony before him was not
sufficient to make the finding that the trust relationship had broken
down. Snyman was asked how this
incident made him feel and he said
the following:
‘
It upset me
quite a bit; because it wasn’t long before that we decided I’m
taking Khayalethu onto my team. And we had
quite a variety of
options. And we employed then as weekend managers. So
they were in a sense higher than the end of
day controller.
They were end of day manager (sic). And he was responsible for
ensuring that this shouldn’t happen
and it still happened.
So in a sense the trust relationship for me was broken’.
[19] The court a
quo
also found that Snyman’s evidence was insufficient because the
mere fact that misconduct was committed does not
per se
lead
to a break down in the trust relationship. The court a
quo
correctly pointed out that various factors should be considered
before the conclusion that the trust relationship has broken down
is
reached. The court a
quo
then said those factors included “the
industry the appellant operates in; the nature of the misconduct and
its effect on
the parties, and whether training and progressive
discipline cannot prevent a recurrence of the misconduct.”
[20] Snyman did not
testify that the trust relationship had been destroyed. He did not
testify as to what the impact of this specific
incident was on the
trust relationship. He dithered.
[21]
The fact that the employer did not lead evidence as to the breakdown
of the trust relationship does not necessarily mean that
the conduct
of the employee, regardless of its obvious gross seriousness or
dishonestly, cannot be visited with dismissal without
any evidence as
to the impact of the misconduct. In some cases, the outstandingly bad
conduct of the employee would warrant an
inference that the trust
relationship has been destroyed. It is however always better if such
evidence is led by people who are
in a position to testify to such
break down.
[1]
Even if the
relationship of trust is breached, it would be but one of the factors
that should be weighed with others in order to
determine whether the
sanction of dismissal was fair.
[2]
The Commissioner in this case considered this aspect.
[22] Ms Nel further
contended that the Commissioner did not give weight to the fact that
the employee lied and proffered a fabricated
version. She submitted
that the fabrication also led to the breakdown of the trust
relationship. The Commissioner found that the
employee “did not
approach the CCMA with unclear hands.” The Commissioner used
two negatives in this phrase. The question
that arises is; what did
he mean.
[23] Mr Nyondo, on the
one hand, submitted that the one negative is a typographical error.
Ms Nel, on the other hand, submitted
that it means that the employee
approached the CCMA with clean hands because the two negatives cancel
each other out.
[24] Double negatives
ordinarily refer to the situation when two forms of negation are used
in the same phrase. In some languages,
like Afrikaans, the use of
double negatives is acceptable because the second negation
intensifies or emphasised the negativity
of the sentence as a whole.
In English, however, double negatives in a single phrase or clause
cancel each other out to become
a positive. The use of double
negatives in English is unacceptable because of the confusion it
causes. We must consider whether
the use of double negatives in this
case was deliberate or a mistake.
[25] Having regard to the
entire award, the only sensible conclusion is that the use of double
negatives, in this case, was a grammatical
or typographical mistake.
The Commissioner rejected the employee’s version in respect of
both counts. He accepted the appellant’s
version. In simple
terms, it means that he rejected the employee’s version as
false. He rejected the employee’s version
because he found it
to be “unreliable and improbable”. He could therefore not
have found, in the same award, that the
employee approached the CCMA
with clean hands. The Commissioner further ordered the reinstatement
of the employee from the date
of his dismissal; he however found that
he should not be paid back pay from that date. This clearly shows
that he used his discretion
against the employee (by not ordering his
reinstatement with full back pay)
inter alia
because the
employee lied during the proceedings. The Commissioner was alive to
the fact that although an employee’s lies,
during disciplinary
proceedings, may destroy the trust relationship; there are instances
where such inference is not warranted
in the absence of clear
evidence to that effect.
[26]
Ms Nel also contended that the Commissioner did not consider that the
employee was convicted of two counts of misconduct; the
one causing
actual loss whilst the other caused potential loss. In my view, this
submission is without merit. It is clear from
the award that the
Commissioner was alive to the fact that the employee was convicted of
two charges of misconduct. In the award,
the Commissioner states that
“those incidents were isolated incidents” and “I
have considered that the rules
breached by the applicant were
important to the respondent”. He used the plural nouns instead
of singular ones. He might
not have mentioned the potential loss but
that does not mean that he did not consider it. In
Rex
v Dhlumayo,
[3]
Davis AJA remarked that:
‘
It would be
most unsafe invariably to conclude that everything that is not
mentioned has been overlooked…’
[4]
[27] It is ironic that
during the disciplinary hearing, the appellant’s representative
was requested to make written submissions
setting out aggravating
factors. He wrote the following:
‘
I think the
chairperson should impose a harsher penalty because Khayalethu knows
the importance of maintaining cold chain, as he
holds a leadership
position first as on EDD controller and now as a weekend manager.
Also the chairperson should consider
the fact that the business has
lost money in excess of R3675 because those products had to be
written off as waste as they were
outside the cold chain for more
than 4 hours. Also I think by imposing a harsher penalty it will show
other employees that policies
and procedures are there to be followed
hence the reason for our policy’.
Even the employer did not
mention the potential loss.
[28] I agree with the
Court a
quo
that the decision of the Commissioner is one which
a reasonable decision-maker could make. The appeal should therefore
be dismissed.
There is no reason in law or fairness why a costs order
should not be made in this matter.
[29] I make the following
order:
The
appeal is dismissed with costs.
______________
C J Musi JA
Waglay, JP and Savage AJA
concurred in the judgment of C J Musi JA.
APPEARANCES:
FOR THE
APPELLANT:
Adv Nel
Instructed by Macgregor
Erasmus Attorney
Port
Elizabeth
FOR THE FIRST
RESPONDENT: Adv
Nyondo
Instructed by Maci
Incorporated
Port
Elizabeth
[1]
Edcon Ltd v
Pillemer NO and Others
(2009) 30 ILJ (SCA) at para 19
[2]
Sidumo and
Another v Rustenberg Platinum Mines Ltd and Others
2008 (2) SA (CC) at para 116
[3]
1948 (2) SA 677
(A).
[4]
At 702.