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[2016] ZALAC 41
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Woolworths (Pty) Ltd v South African Commercial Catering and Allied Workers Union and Others (JA38/15) [2016] ZALAC 41; (2016) 37 ILJ 2831 (LAC); [2017] 2 BLLR 137 (LAC) (27 July 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case no: JA38/15
WOOLWORTHS (PTY) LTD
Appellant
and
SOUTH AFRICAN
COMMERCIAL CATERING
AND ALLIED WORKERS
UNION
First Respondent
K
MOHLAFUNO
Second
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Third Respondent
COMMISSIONER J D SELLO
NO
Fourth Respondent
Heard:
26 May 2016
Delivered:
27 July 2016
Summary:
Review of arbitration award – arbitrator finding that
employee’s dismissal for misconduct
too harsh a sanction –
employer’s disciplinary policy providing dismissal as sanction
for any employee found to have
till discrepancies-. In
casu
employee candidate for dismissal when her till takings was over by a
particular amount. In light of such clear policy arbitrator
committing a reviewable irregularity by interfering with the
employer’s sanction. Labour Court erring in upholding
arbitrator’s
award. Appeal upheld.
Coram:
Tlaletsi AJP, Ndlovu et Sutherland JJA
JUDGMENT
TLALETSI AJP
[1]
This
is an appeal against the judgment of the Labour Court (Snider AJ)
wherein it dismissed the appellant’s review application
to set
aside the arbitration award issued by the fourth respondent, Jacob
Daniel Sello (the arbitrator), a commissioner acting
under the
auspices of the third respondent (the CCMA). The subject of the award
was a dispute of unfair dismissal referred to the
CCMA by the third
respondent (the union) on behalf of its member, the second
respondent
[1]
(the employee)
against her employer, the appellant. The appellant is in this Court
with leave of the court
a
quo
.
[2]
The
facts giving rise to this dispute are largely common cause. The
employee was employed by the appellant as a till operator from
about
August 2009 until her dismissal for misconduct on 7 December 2010. At
the time of her dismissal, she was working at the appellant’s
store at Maponya Mall in Soweto earning a shocking monthly salary of
R2090.21.
[3]
On
02 November 2010, it was found that the employee’s till takings
were in excess by an amount of R628.78. On 15 November
2010, she was
handed a notice to appear at a disciplinary enquiry to answer to a
charge of misconduct that reads:
‘
Misconduct
in that on the 02/11/2010 your till was over with R628.78 in cash
which is against company Policy and Procedure
.’
Following a disciplinary
enquiry held on 25 November 2010, she was found guilty of what the
chairperson described as gross misconduct
and was dismissed.
[4]
After
unsuccessful conciliation, the arbitration was convened on 1 June
2010 and the award was issued on 13 June 2010. Appellant
tendered the
evidence of Ms Puleng Mohale (Store Admin Manager), as well as Ms
Jane Skweyiya (Visual Department Manager). The employee
testified in
her defence.
[5]
Ms
Mohale testified about the procedures for handling cash. The till
operator is allocated her float for the day and will alone,
operate
the till allocated to her for the shift. At the end of the shift, she
has to place her day’s takings in a sealed
bag which she will
drop into a “Drop Save”. A security company contracted
for that purpose collects all the bags and
transports them to
Standard Bank Cash Counter. At the bank, the bags are opened and the
contents counted under surveillance cameras.
The bank would
thereafter issue a Worksheet Control that would indicate whether the
money corresponds with what was collected at
a particular till.
[6]
It
was at this stage that it was discovered that the employee was in
excess by R628.78. In terms of the appellant’s policy,
shortages and excesses that were R500.00 and over attracted an
enquiry accompanied by a sanction of dismissal. Ms Mohale testified
that they were unable to trace what caused the employee to be in
excess. According to the till report she appeared to have followed
all the required procedures and they could not trace any
irregularities.
[7]
Ms
Skweyiya testified that she investigated the employee’s
transactions and did not find any missing transaction. Upon
completion
of her investigations, she called the employee and showed
her all the evidence she had gathered. The employee confirmed that
her
till was in order on the day of incident. She also played the
bank’s CCTV footage for the employee.
[8]
The
employee confirmed all the till and money handling procedures
presented through the appellant’s witnesses. She confirmed
that
her till was functioning well on the day and could not trace what
caused the excess. Although she testified that it was the
first time
she had a till discrepancy, she conceded under cross-examination that
she did have discrepancies before. She confirmed
further that she
never requested to view the appellant’s CCTV footage as she had
claimed in her evidence in chief that she
requested and was denied
the opportunity.
[9]
The
arbitrator found that the dismissal of the employee was substantively
unfair on the basis that the sanction of dismissal was
too harsh
under the circumstances. The arbitrator also found that the
employee’s till takings discrepancy was not the result
of any
negligence on her part because the appellant could not find
irregularities on the transactions of the employee. The arbitrator
further found that there was no evidence that the employee was
dishonest towards the appellant or that she intended benefitting
from
the surplus of the till. He further held that the appellant did not
suffer any loss; that it was the first time that the employee
had an
excess. The arbitrator based this conclusion on his finding that the
appellant did not challenge the employee’s allegation
that she
previously never had any till discrepancy by tendering evidence to
support the concessions extracted from the employee
during
cross-examination about her previous till discrepancies. In addition,
he held, no evidence was presented on the quantum
of such alleged
previous discrepancies or whether the employee was warned for such.
He concluded that a warning would have sufficed
to correct the
employee’s conduct. The arbitrator then ordered the
reinstatement of the employee with back pay amounting
to R14 631.47.
[10] Dissatisfied with
this outcome, the appellant sought the review of the award on the
basis that the arbitrator committed
a gross irregularity in failing
to apply his mind to the totality of the evidence placed before him;
he failed to cumulatively
consider and place relevance in the
employee’s previous till discrepancies; was not entitled to
impose his own views concerning
the appellant’s policies and
measures of applicable discipline; finding that the employee was not
negligent; that these “process-related”
reviewable
defects committed by the arbitrator calls for the award to be set
aside. The appellant contended that the only appropriate
sanction to
be imposed was dismissal.
[11]
The Labour Court found two respects in which the award fell short of
the review test set out by this Court in
Gold
Fields Mining SA (Pty) Limited (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration and Others.
[2]
The first is the failure to find that the discrepancy in the till
takings could not have been committed other than by the negligence
on
the part of the employee; and secondly that the arbitrator
misunderstood the evidence of the appellant that no irregularity
could be found in the transactions of the employee. Having identified
the said discrepancies, the court
a
quo
enquired whether despite these irregularities, the award still met
the reasonableness test standard. It concluded that the award
was one
that a reasonable decision-maker could come to. In the Labour Court’s
view, an arbitrator who found negligence might
nevertheless find that
the sanction of dismissal was too harsh in circumstances where no
dishonesty was shown and a previous incident
of an “under”
does not appear to have attracted a formal sanction. The effect of
the Labour Court’s finding is
that it upheld the appellant’s
review in so far as the complaint concerning the unreasonableness of
the arbitrator’s
finding regarding the absence of negligence on
the part of the employee which had resulted in the “over”,
but did not
uphold the challenges to the reasonableness of the award
concerning the appropriate sanction.
[12] It is this finding
of the court
a quo
that the appellant seeks to overturn on
appeal. Ms Nel who appeared on behalf of the appellant contended that
the Labour Court
erred in finding that the decision of the arbitrator
that the sanction of dismissal was unfair was still within the band
of decisions
a reasonable decision-maker could reach in that this
finding was based on the two aspects the arbitrator had relied on and
which
did not accord with the evidence. She argued that the
arbitrator ignored the evidence that the employee had in fact four
prior
shortages before the fifth infraction for which she was
dismissed. She further submitted that the arbitrator approached the
adjudication
of the fairness of the sanction as one of the review of
the decision of the disciplinary chairperson as opposed to
determining
the fairness of the sanction on the basis of the evidence
before him and as an arbitrator determining the matter
de novo
.
[13] On behalf of the
respondent, Mr Dockrat submitted that the challenge by the appellant
to the findings of the arbitrator is
based primarily on matters that
were not placed before the arbitrator or are in substance, matters
that do not support the allegation
that the award was unreasonable.
He contended that the appellant did not lead any evidence that the
employee was disciplined for
the past till discrepancies other than
what was put to the employee during cross-examination that there were
previous till discrepancies.
Mr Dockrat submitted that it would
appear that the document titled ‘Day-To-Day-Discussion’
was not referred to during
the arbitration proceedings and that it is
dated 15 November 2010, 13 days after the incident for which the
employee was charged
and dismissed; that the record does not reveal
any evidence being led on the consistent imposition of dismissals for
till discrepancies;
and that no evidence was led to show that the
appellant suffered prejudice.
[14]
It is trite that an arbitrator is tasked to objectively, impartially
and fairly determine whether a sanction of dismissal in
the
circumstances of the material placed before her/him is fair. In
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others,
[3]
the Constitutional Court held that:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal.
There
are other factors that will require consideration. For example, the
harm caused by the employee’s conduct, whether additional
training and instruction may result in the employee not repeating the
misconduct, the effect of dismissal on the employee and his
or her
long-service record. This is not an exhaustive list
.’
[4]
[15]
In
this matter, the arbitrator found that the employee’s dismissal
was extremely harsh because of the unchallenged evidence
that it was
the first time that she had an over. The arbitrator also took into
account the fact that the appellant did not lead
evidence that the
shortage or any previous warning were the determining factors when
the sanction of dismissal was considered.
[16]
According
to the appellant’s policy and procedure on progressive
discipline in respect of till related misconduct, till shortages
or
overs per se constituted misconduct. Discrepancies of amounts ranging
from R30.00 to R200.00 attracted informal disciplinary
process.
Discrepancies of over R200.00 to R250.00 per shift for a first
offence required that an informal disciplinary hearing
be held and if
found guilty a written warning valid for six months is to be imposed.
Any subsequent incident of discrepancy regardless
of the amount will
progress to the next level of discipline. The next level is for
amounts ranging from R250.00 to R500.00 which
for the first
misconduct a final written warning valid for 12 months is imposed and
any subsequent incident irrespective of the
amount will progress to
the next level. The next level which is for discrepancy of over
R500.00 dismissal is to be imposed for
the first misconduct.
[17]
It
was common cause at both the disciplinary inquiry and at the
arbitration that the employee contravened the rule by having an
over
in excess of R500.00 and as a result she was a candidate for
dismissal. The reasonableness, fairness and validity of the rule
was
not challenged. In his opening statement, the employee’s
representative acknowledged
inter
alia
,
the existence of the rule and its implications. He, however,
challenged the dismissal as being harsh because it was never the
employee’s intention to defraud the appellant or act
dishonestly, but a mistake on her part and wanted the appellant to
investigate how the mistake happened.
[18]
There
is therefore no dispute that the employee was charged and disciplined
in terms of the appellant’s disciplinary policies
and
procedures. Having an “over” or an “under” is
in itself a misconduct and the rule places an
onus
on the till operator to explain why such a situation occurred when
the till was found to be operating properly and as expected.
Whether
the employee was aware of what the cause of the over or under was is
irrelevant to the determination and adjudication of
the fairness of
the sanction. The employee conceded under cross-examination that it
was her responsibility to know of the till
discrepancy especially
that she had singed that the float issued to her was correct. The
Labour Court was therefore correct in
finding that the arbitrator got
it wrong by not finding that the discrepancy in the till takings
could not have been occasioned
other than by negligence on the part
of the employee; and that he misunderstood the evidence of the
appellant that it did not find
any irregularities on the transactions
of the employee.
[19] In her reasoning why
the sanction of dismissal is unfair, the arbitrator laid much
emphasis on
inter alia
, the fact that it was the first time
that the employee had an over. This finding misses the rationale of
the disciplinary code
that there should be no distinction between a
till over and under. Because of the adverse consequences of either of
the two situations,
they are treated the same. Either the employer or
the customers may become victims of either till discrepancy by
suffering loss.
It was also unreasonable to conclude that the
employee did not act dishonestly or did not intend to benefit herself
from the till
excess when it should only be herself to know what
happened. It was accepted that for as long as the till operated
accurately there
would not be any discrepancies. Any discrepancy
would only be occasioned by human intervention or error.
[20] The arbitrator also
based her conclusion that the sanction of dismissal was unfair on the
incorrect factual finding that the
appellant failed to lead any
evidence on the quantum of the previous shortage and that no evidence
was led on whether the employee
was issued with any warning or
whether it was considered in determining the appropriate sanction. In
the first place, the arbitrator
failed to appreciate that the
disciplinary code decrees that for the first incident of a
discrepancy of over R500.00, the sanction
of dismissal is to be
imposed irrespective of whether there was a prior warning. The
existence of a warning is only relevant to
escalate other incidents
short of dismissal (which would in any case be R500.00 and under) to
the next level of penalty. Since
dismissal is the ultimate penalty it
would be illogical to interpret the code to require a warning in till
discrepancies in excess
of R500.00 for which dismissal is
specifically provided for the first incident to require that there
must always be prior warning.
[21] The conclusion that
the appellant failed to lead evidence on the previous discrepancies
is not supported by the evidence on
record. The record of the
employee’s previous till discrepancies was part of the bundle
of documents which was submitted
to the arbitration by the appellant
and was marked “Annexure A”. The arbitrator recorded that
the respondents did not
submit any document and accepted the
documents of the appellant for what they purported to be. The
respondents further agreed to
use the appellant’s documents. As
pointed out already, the employee had indicated, during the
disciplinary inquiry and at
the arbitration that she did not have
previous till discrepancies. This was obviously false and dishonest
on her part. When confronted
during cross-examination, she conceded
that she had discrepancies of less than R50.00 or R100.00 and not one
similar to the one
that is the subject of this appeal. She conceded
that it was not the first time that she had a till discrepancy of
over. She was
referred to a document titled “TDC Management
Process for Progressive Shorts Under R200.00” which related to
incidents
at Brightwater for 2010, where she worked. She acknowledged
the discrepancy which was later rectified as it was discovered that
it was a mistake. She further agreed to the document containing
further till discrepancies she had in the past. Her representative
intervened and confirmed that she had already accepted previous
discrepancies and that their contention was that she did not have
a
previous discrepancy similar to the one forming the subject of the
inquiry. His intervention was to render further probing of
previous
discrepancies unnecessary.
[21] It can therefore not
be disputed that the employee had five previous till discrepancies
and was on a final written warning
on the last one. The discrepancies
occurred in the months of May, August and September 2010 in the
amounts of R90.13, R35.95 and
R200 respectively and R50 on 2 October
2010. The last one for which she was given a written warning happened
only a month before
the 2
nd
of November 2010. These
infractions were committed in the six months preceding the infraction
for which she was dismissed. She
knew of the existence of these
infractions and she signed for them. She did not challenge them at
the time.
[22] The Labour Court’s
conclusion that the sanction imposed by the arbitrator was one that a
reasonable commissioner could
come to is solely based on the finding
that no dishonesty was found and that the previous incident of
“under” does
not appear to have attracted a formal
sanction. This is a misdirection on the part of the Labour Court. I
have already shown that
the type of misconduct in question does not
require dishonesty to be proven. Neither does it require that there
be a formal sanction
on the previous incidents of discrepancies.
Failure to warn the employee when the cumulative total of the
discrepancies within
a six months period equalled an amount of
R200.00 or more is not a bar to imposing a sanction of dismissal
where the code so provides.
[23] In terms of the Code
of Good Practice: Dismissal, an employer must in addition to the
gravity of the misconduct consider factors
such as the employee’s
circumstances including length of service, previous disciplinary
record and personal circumstances,
the nature of the job and the
circumstances of the infringement itself. In terms of article 5,
employers should keep records for
each employee specifying the nature
of any disciplinary transgressions, the actions taken by the employer
and the reasons for the
actions.
[24]
In
this case, the appellant kept all the records of the previous
transgressions which were brought to the employee’s attention.
She was warned of the discrepancy of 2 October 2010 that should her
behaviour continue she “will be dealt with progressive
discipline. If further discrepancies occurred, the employee will be
disciplined”. The employee was employed on August 7,
2009 and
was dismissed on December 7, 2010, amounting to about 16 month’s
service.
[25]
The
task of an arbitrator, as expounded in
Sidumo
is to determine whether the sanction imposed by the employer is fair
and not to impose a sanction afresh. It is evident that the
arbitrator failed to appreciate the nature and importance of the rule
breached; failed to consider the reason the appellant imposed
the
sanction of dismissal; the basis of the employee’s challenge to
the dismissal; whether the employee was likely to repeat
the
misconduct and the short service record of the employee vis- à-
vis the misconduct and sanction of dismissal.
[26] Mr Dockrat submitted
that the appellant failed to present evidence to show that the
sanction was consistently applied. There
is no merit on this
submission. At no stage during the arbitration and even at the
disciplinary inquiry did the respondents allege
that the sanction of
dismissal for this type of misconduct was not consistently applied by
the appellant. In the absence of such
a challenge, it would be unfair
to expect the appellant to present such evidence. More importantly,
during the opening statement
at the arbitration, the appellant’s
representative indicated, among others, that the appellant will show
that the type of
misconduct committed by the employee was viewed
seriously and that the sanction was consistently applied for similar
transgressions.
In response, the respondents’ representative
indicated that what had been said was not in dispute except that the
employee
was not aware of the discrepancy until it was brought to her
attention the following day when she reported for duty; and that she
never intended to defraud or steal from the appellant.
[27] For the reasons
outlined above, I am of the view that the decision of the arbitrator
is not one that a reasonable decision-maker
could, on the material on
record, arrive at. The appeal should therefore be upheld and the
order of the Labour Court falls to be
set aside. It would be in
accordance with the requirements of the law and fairness that each
party carries its costs both in the
Labour Court and this Court.
[28] In the result, the
following order is made:
1. The
appeal succeeds and the order of the Labour Court is set aside and
substituted with the following:
a)
The award issued by Commissioner JD SELLO under case number
GAJB1648-11 dated 13 June 2011 is reviewed
and set aside.
b)
The dismissal of the employee is found to have been substantively
fair.
c)
Each
party is to carry its costs of the review application.
2.
Each
party is to carry its costs on appeal.
______________
Tlaletsi AJP
Ndlovu
et
Sutherland JJA concur in the judgment of Tlaletsi AJP.
APPEARANCE:
FOR THE
APPELLANT:
C A Nel of Macgregor
Erasmus Attorneys.
FOR
THE RESPONDENTS: Y
Dockrat of Dockrat inc.
[1]
In order to
avoid confusion, t
he
citation of the parties has been rearranged to provide a true
reflection of the real parties involved in the dispute. Although
the
CCMA was cited as the first respondent, as it appears to be the case
in most instances, it neither opposed the review application
nor the
appeal.
[2]
(2014) 35
ILJ 943 (LAC).
[3]
2008 (2) SA
24 (CC).
[4]
At para 78.