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[2002] ZALCJHB 8
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Standerton Butchery v CCMA (JR1150/01) [2002] ZALCJHB 8 (20 November 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 1150/01
DATE:
2002-11-20
In the matter between
STANDERTON
BUTCHERY Applicant
and
CCMA Respondent
J
U D G M E N T
LANDMAN
J:
The Standerton
Butchery dismissed Ms Johanna Tshabalala for stealing meat from
the refrigerator. The dispute
was referred to the CCMA.
The commissioner who heard the evidence and handed down an award
ordering the butchery to
pay her compensation equivalent to 12
months' remuneration.
Mr Khimshener appears to
have justifiably found that Ms Tshabalala was guilty of theft or
attempted theft. The commissioner
interferes with the
sanction and replaces it with the one described above.
The award consists of
four pages, the last sentence on page 3 is incomplete but the pages
are numbered and therefore it must be
accepted that the entire award
is being placed before me.
In any event, the
commissioner was served with the papers and had an opportunity to
point out any deficiencies or omissions had
there been any.
The butchery seeks to
review and set aside the award. The grounds on which the
review is based are set out in paragraph
32 of the founding
affidavit.
I need not set them out
for purposes of this judgment although I do take them into account.
The commissioner
accepts that Ms Tshabalala stole or attempted to steal the meat.
He also accepts that the trust
relationship between the parties had
irretrievably broken down. The commissioner was concerned
that the butchery had
not inconsistent in its
application of the rule against theft and a disciplinary penalty for
theft.
It is true that Mr
Carelse, the proprietor of the butchery, testified that he had not on
a previous occasion when Ms Tshabalala
and others had been involved
and had been accused of stealing knives and meat, dismissed them.
But the butchery had
preferred criminal charges against other
employees although they had been discharged by the criminal court
because it had been
found that the employer's search of their bags
was unconstitutional.
However, the commissioner
overlooked the fact that Ms Tshabalala was most certainly aware
of the consequences of theft.
Indeed, there cannot be an
employee who does not know that theft is morally wrong, that theft is
in breach of contract and that
theft can lead to severe disciplinary
consequences.
Her employer's leniency
to urge her in the past does not constitute condonation of her
actions. It is indeed an aggravating
factor.
There were no grounds to interfere with the employer's sanction.
The commissioner's award
of compensation is therefore not justifiable having regard to the
facts, it constitutes an unwarranted
intervention in the sanction
which was appropriate and fair.
In the circumstances
therefore the award is set aside and replaced with the finding that
the dismissal of the applicant in the arbitration,
Ms Tshabalala, was
substantively and procedurally fair. There will be no
order as to costs.
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[COMMENT1]
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