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[2018] ZALAC 32
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Qalinga v Commission for Conciliation Mediation and Arbitration and Others (PA5/17) [2018] ZALAC 32; [2019] 1 BLLR 40 (LAC) (17 October 2018)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case
no: PA5/17
In
the matter between:
SIPHO
QALINGA
Appellant
and
COMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
First
Respondent
FEIZAL
FATAAR N.
O. Second
Respondent
CADBURY
SA (PTY) LTD
now
known as MONDELEZA SA (PTY)
LTD Third
Respondent
Heard:
30 August 2018
Delivered:
17 October 2018
Summary:
Review of arbitration award – employee dismissed for concealing
products which were found after search located in
several places in
the storeroom managed by employee – probabilities favour
employer’s versions that employee concealed
products for
appropriation in an authorised manner – commissioner’s
outcome reasonable – appeal dismissed.
Coram:
Phatshoane ADJP, Sutherland JA and Kathree-Setiloane AJA
JUDGMENT
SUTHERLAND
JA
Introduction
[1]
The appellant, Sipho Qalinga (Qalinga) was employed by the Third
Respondent (Cadbury). He was dismissed on a charge of unauthorised
possession of goods in that he allegedly concealed in a storeroom
controlled by him full “outers” (full cartons) of
chocolates taken from the production lines; by implication,
preparatory to misappropriation by him. Aggrieved, he referred a
dispute
to the Commission for Conciliation, Mediation and Arbitration
for arbitration. The award upheld the dismissal. A review court
upheld
the award. The appeal lies against that order of the Labour
Court.
[2]
The
question on appeal is therefore whether the award satisfies the test
in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
that
the conclusion was one to which a reasonable arbitrator could not
come.
Common
cause and undisputed facts
[3]
Qalinga worked in a factory producing sweets. A number of the
finished products would be placed into “outers” or
cartons. The system was that samples from each production run were
removed from the production line and reserved.
[4]
Some samples were used for testing in taste trays; about 10 -15 per
day. Once the samples had been tasted and tested, the remainder
of
the contents of these outers were not to be consumed, but rather,
this “waste” from the outers was supposed to be
stripped
of the wrapping, put into red waste bags and dumped in a Wastetec
bin. Qalinga was responsible for doing so.
[5]
Other samples were removed from the production lines by Qalinga for
“retention’. The rationale for the retention
of samples,
albeit temporary, was to enable a check or audit to be carried out if
product from a given run was alleged in the market
place to not be up
to standard. Five retention samples were to be taken per day and put
into drums and be marked with a date. Then,
after a prescribed period
of about a month, they would be discarded in the waste. The drums
were stored in the retention store.
Qalinga was responsible for
collecting the samples, storing them and later discard them.
[6]
In addition to retention samples, at head office, the Research and
Development Department also undertook testing and required
samples to
do so. Qalinga collected these from the production lines for onward
dispatch to head office. These items were also stored
in the
retention store awaiting dispatch every Friday.
[7]
The rest of the production run was distributed to the market for
sale.
[8]
The persons who had keys to this store were Qalinga and Andrew
Klackers, the Security Manager. Qalinga suggested there was a
third
key, but this was an assumption not substantiated.
The
controversy
The
Facts
[9]
According to Marie Wessels, the Quality Control and Laboratory
Manager and Klackers, a tip had been received from an unnamed
person
that Qalinga was stealing chocolates. A meeting in Klacker’s
office was held with Wessels and other management personnel.
It was
decided to inspect the retention store. On 27 January 2010, a snap
inspection of the retention store was carried out by
Wessels and
Klackers, in the absence of Qalinga.
[10]
The store is divided into two parts. The main part was packed with
drums. At the back, there was a smaller room, off the main
space, in
which documents were kept in boxes. The windows had been sealed.
[11]
Wessels stated that there should be a search for outers of chocolates
which, given the procedure alluded to, ought not to be
there. Some
outers were found between the drums. In the back room, at the bottom
of a box of documentation, more outers were found,
concealed. They
found about 20 outers in various places in the store. At a later
time, more outers were unearthed in the store
and it was said by
Wessels to be a total of about 40. Moreover, the stock was in the
condition it was as it came off the production
lines; ie full outers.
A handwritten list alleged to be the stock found was prepared.
[record: 483] Wessels also stated that this
volume of stock could not
have been collected on a single occasion but had to have been
accumulated over time. The list of the
discovered stock included
reference to the products’ expiry dates; these expiry dates
range from one in April 2009 and the
rest ranging from July to
November 2010. The types of products were varied. Qalinga later, when
confronted, denied, unconvincingly,
that more than five outers were
in the store.
[12]
Only after the snap inspection was Qalinga called to the scene and
confronted with what was alleged to have been found. He
was asked by
Wessels why there were outers in the store when she had previously
told him not to keep outers in the store. Qalinga
at first replied
that she, Wessels, had told him to do precisely that. She denied it.
Qalinga then said that there was “something
in writing”
to confirm that he got an instruction to keep outers in the store. He
said the note was in the Quality Department.
They then trooped off to
see Geraldine Rapping, the packing technologist, in the Quality
Department office. In her office, a handwritten
note was produced.
According to Klackers it read: “Please keep these aside for
Sipho”. The note does not substantiate
the claim by Qalinga, as
it related to samples of unused packaging wanted for testing, not the
product itself.
[13]
Qalinga continued to give several different explanations. He claimed
that the outers leftovers were from a taste tray sample
and that
Whitten, the Chocolate shop manager, had told him to take them to the
shop. Further, he professed utter ignorance of how
40 outers could
have found their way into the store.
Analysis
[14]
The arbitrator held that the management version was to be preferred.
In my view this conclusion is unassailable. The probabilities
favour
that outcome, no less than any considerations about individual
credibility. Although there was one other key held by Klackers,
the
probabilities are against him appropriating the stock and concealing
it in the store. Qalinga alone could roam about the factory
with
stock and not arouse suspicion. Thus, for all practical purposes,
Qalinga had sole access. No reason exists to disturb these
findings.
[15]
The real substance of the defence put up on behalf of Qalinga is that
he never was “in possession,” in any legal
sense, of the
stock. This stance was premised on the notion that the storeroom was
not a “personal” space of Qalinga,
hence the company was
always in
de jure
and
de facto
possession.
[16]
This view was correctly rejected by the arbitrator. The truly
significant aspect of the evidence is that not only was stock
in a
place, albeit still on company property, where it ought not to have
been but that it was located within the store concealed
in several
places, as described above. No explanation was offered as to why
stock was secreted under documents in a box, or why
some were tucked
away in between drums of retention stock. In my view, this aspect of
the evidence supports the inference that
Qalinga appropriated the
stock to himself in an unauthorised manner.
[17]
The fact that the search was carried out in the absence of Qalinga
does not present a legal problem
per se
. Having done so in his
absence presents only an evidential issue in that, if denied, as it
has been, credibility becomes a question
for decision. The
arbitrator’s view was appropriate on credibility in this
regard, fortified as it was by the probabilities.
[18]
Lastly, it was argued that in the absence of an express workplace
rule regulating what was allowed to be in the retention store
and
what was forbidden, the culpability of Qalinga cannot be established.
This stance is misconceived. The rule at issue is that
it is
forbidden to be in unauthorised possession of stock. The complaint
about the absence of a rule about “concealment”
is
unsustainable as it is a logical outgrowth of the primary rule
because it is plain that if an employee hides stock on company
premises, that conduct amounts to unauthorised possession. The
“control” of the employer over the stock is compromised
by such conduct. On the facts adduced, it is incorrect to suggest
that the company had unhindered access to the stock simply because
it
was still on company premises. It was established that there was no
business reason for the stock, on that scale, to be in the
store,
moreover, concealed, and as such out of reach.
[19]
The fact that no evidence could be adduced of an attempt to remove
the stock from the factory, eg from footage on the CCTV
cameras, is
irrelevant. The higher threshold of theft was not the gravamen of the
charge. The propriety of a rule against unauthorised
possession has a
long and justifiable pedigree in labour relations.
[20]
The Labour Court upheld the Arbitrator’s findings and its
rationale is unassailable.
[21]
The
outcome, in this case, is consistent with the approach approved by
this Court in
Woolworths
(Pty) Ltd v CCMA and Others
.
[2]
In that matter, an employee secreted garments on her person on two
occasions. That the concealment took place on her body rather
than a
hiding place elsewhere on the premises is the only distinguishing
feature. However, the place of concealment is not itself
critical
but, rather, the explanation of the location of the goods. The nature
of the misconduct is being in possession or exercising
a control over
stock that is not satisfactorily explained. The enquiry is
fact-specific and dictated by rational inferences drawn
from the fact
of possession or control and the plausibility of the explanation.
The
sanction
[22]
The upshot was that Qalinga had been found guilty of persistent acts
of dishonesty. The role he performed was one that required
trust and
confidence because of the need for him to have free and easy access
to the production lines and other areas of the factory.
Stock control
and limitation of stock loss is critical to the business. Wessels,
understandably and justifiably, testified that
she could no longer
trust Qalinga.
[23]
Qalinga had about 25 years’ service. This is a weighty factor
in the consideration of sanction, especially when dismissal
is an
option. However, the perpetration of dishonest acts cuts very deeply
into the employer/employee relationship. In this matter,
there was
also the absence of any remorse. The conduct was not impulsive, nor
an isolated event, but rather a pattern of behaviour
inimical to
Cadbury’s interests.
[24]
The arbitrator properly applied his mind to these considerations and
the decision to uphold the dismissal is indeed one that
is reasonable
in relation to the facts proven before him.
Conclusions
[25]
The appeal must fail.
[26]
No costs are sought by the parties.
The
order
The
Appeal is dismissed.
______________
Sutherland
JA
Sutherland
JA (with whom Phatshoane ADJP and Kathree-Setiloane AJA concur)
APPEARANCES:
FOR
THE APPELLANT: Attorney E Van Staden
of
Legal Aid South Africa.
FOR
THE THIRD RESPONDENT: Adv G Fourie SC
Instructed
by Joubert Galpin and Searle.
[1]
[2007]
12 BLLR 1097 (CC)
[2]
[2011] BLLR 963
(LAC).
At
[esp 38].