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[2016] ZALAC 86
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Woolworths (PTY) Limited v Mabija and Others (PA3/14) [2016] ZALAC 86 (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.