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[2002] ZALCJHB 23
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Shoprite Checkers v CCMA (JR375/00) [2002] ZALCJHB 23 (20 November 2002)
[COMMENT1]
Sneller
Verbatim/MLS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR 375/00
2002-11-20
In
the matter between
SHOPRITE
CHECKERS Applicant
and
CCMA Respondent
J
U D G M E N T
LANDMAN
J
:
Shoprite Checkers (Pty) Limited has applied to review and set aside
the award of a commissioner of the CCMA handed down during
February
2002.
Ms Shioma, the employee,
attended court yesterday and I noted that she is present in court
this morning. She said that
she came to court because her
trade union representative, Ms Josephine Ledwaba, was unable to
attend court.
The application had been
served on her union, the Rule 7(a)(8) notice had also been served by
registered post sent on 17 May.
No opposition has been
filed and Ms Shioma says that she has not signed any documents
regarding this case. The
last document that she signed
related to the CCMA proceedings, she is not sure whether or not they
were affidavits.
In the absence of an
explanation as to why there was no opposition it was necessary to
proceed and hear the application on an unopposed
basis.
Ms Shioma was employed as
a receiving clerk in Shoprite Checkers' Louis Trichardt store.
A receiving clerk is an important
position within the store and is a
position of trust which also requires the person to be reliable.
The receiving clerk is
responsible for ensuring that the goods received by the store are
properly recorded and checked.
In addition to this
the receiving clerk must ensure that when he or she signed invoices
reflecting what the company has received,
that they have in fact
received those goods. He or she is also responsible for
ensuring that all goods that leave the
store through the receiving
department, are properly accounted for.
On 10 July 2000 the store
manager, Mr Van der Walt, was doing a spot check and he noticed
approximately seven apple boxes in the
receiving department.
These boxes had been placed in front of Ms Shioma's desk at the
receiving department earlier
for her to perform her duties.
He noticed that the
employee of the company that was collecting the boxes had only two
claim forms in hand and this appeared to
be wrong. As a
consequence he investigated the situation and found out that the
large number of products in the boxes
were not recorded on any
documentation. Had the products left the store, Checkers
would have suffered a loss of approximately
R684.
As a result of this
discovery Ms Shioma was issued with a notice to attend a disciplinary
inquiry, the complaint against her
was "serious misconduct
in that she did not follow company return procedures on
10 July, resulting in a potential
loss to the company of
R684."
Ms Shioma attended the
disciplinary inquiry on 13 July where she pleaded guilty and
admitted her mistake. She was
found guilty and
dismissed. An appeal was unsuccessful.
She referred a dispute to
the CCMA and the only issue which was relevant at the ensuing
arbitration was whether her negligent misconduct
was sufficient to
warrant dismissal.
The commissioner made the
following finding in his award:
"In this case I find
the following strong mitigating factors favourable to the employee.
The employer suffered no
financial loss as a result of the employee's negligent conduct.
The employee by pleading guilty
to the charge demonstrated a remorse
for the wrongdoing.
I am also in total
agreement with the employee that by the time she committed this
misconduct she was working under pressure after
the dismissal of her
co-worker, Ms Khunwana. She was virtually doing the work
of two employees single-handedly.
My considered opinion is
that the employee's circumstances at the commission of the misconduct
falls squarely into the provision
of the code of good practice of the
Labour Relations Act i.e. Schedule 8(3)(5), which provide that when
deciding whether or not
to impose a penalty of dismissal the employer
should in addition to the gravity of the misconduct, consider factors
such as employee's
circumstances (including length of service,
previous disciplinary record and personal circumstances) the nature
of the job in the
circumstances has been infringement itself.
This provision in my
further opinion, implies that the company should not behave like an
armchair critic advisor after the event.
The company
should place itself in the position of the employee who was doing the
work of two employees.
The
visa versa
is
not the case, no evidence was led at the hearing as to what prevented
the company to acquire the services of someone to replace
Ms Khunwana.
I agree with Mr ... (inaudible)
only called
for a corrective progressive action short of dismissal.
An outright dismissal in this case is completely
disproportionate and
similar to an act of crushing a fly with a sledgehammer.
I am also at complete
variance with the company's contention that the employee's
conduct resulted in breaching the trust relationship
between her and
the company beyond repair, especially for reasons already mentioned
above in the form of mitigating factors, particularly
lack of
financial loss to the company and the fact that the employee was
doing the work of two employees.
I find that the dismissal
of Hilda Naletshani Shioma on 24 July 2001 by the employer party was
substantively unfair.
I order the employer
party to reinstate the employee with full back pay and all her
service benefits. the award comes
into operation as soon
as the employee receives it."
The general rule relating
to interference by an arbitrator or a court with the sanction imposed
by an employer is well known.
An arbitrator may only
intervene if the sanction is unfair. An arbitrator may
therefore only intervene if the sanction
is so disproportional in the
circumstances as to induce a sense of shock.
It is also a fundamental
rule that a court or tribunal is not permitted to award an applicant
more relief than the applicant sees.
If one does this, one commits a gross irregularity.
In this matter the union
representing Ms Shioma sought reinstatement without back pay.
Notwithstanding this, the commissioner
awarded her reinstatement with
back pay and with all her benefits.
This constitutes a
reviewable defect. The award must be reviewed and set
aside on this basis.
The question is as to
whether I should make the order which the commissioner should have
made or whether I should refer it back
to the commissioner or to
another commissioner.
There is no reason for
this matter to be sent back, the record is complete and I might add
that despite my finding that the award
is defective the commissioner
conducted the proceedings in an even handed manner.
The following
considerations need to be considered in judging whether the
employer's sanction of dismissal for gross misconduct,
that is gross
negligence, is so inappropriate that it calls for intervention.
1.
Ms Shioma was employed as a receiving clerk, a position of trust and
was entirely responsible
for all stock which was dispatched and
received through the receiving area.
2.
Her gross negligence was only discovered by means of a spot
check. Had
the spot check not taken place it is unlikely
that it would have been discovered.
3.
Had it not been for the store manager's alertness Checkers would have
suffered financial
loss.
4.
A counselling session with both receiving clerks, which
includes Ms Shioma, had
been held and it was emphasised
during the counselling session that no mistakes in the receiving area
would be tolerated.
5.
Checkers has a serious problem regarding shrinkage which causes it to
suffer heavy losses.
Having regard to the limited profit
which is made one can understand that an employer such as Checkers
has an interest in combatting
shrinkage.
6.
Ms Shioma's conduct although not pointing on these facts to
dishonesty, could have contributed
to further shrinkage.
Ms Shioma had been
employed for approximately 11 years.
7.
At the time of her dismissal she was employed as a receiving clerk.
8.
She did not dispute that she had not properly checked the boxes at
her table and she admitted
her guilt. This is also
indicative of remorse.
9.
Ms Shioma was under pressure due to the fact that one of her
colleagues had left the employment
of Checkers and had not been
replaced and that she was effectively doing the work of two
persons. It is true that in
the record at one stage when
heavily pressed, she said that she was not under pressure in
doing her job but all the facts
which were put to her before and
after show that there was pressure on her.
10.
Ms Shioma's conduct had breached the trust relationship insofar as
this refers to her reliability in
looking after the goods of her
employer.
11.
The evidence presented to the arbitrator was to the effect that no
other position would be suitable
for her given the lack of trust and
reliability.
This is not a case of
dishonesty or theft but one of serious negligence with the potential
for serious losses which would be untraceable
and irrecoverable.
This sort of gross
negligence can of itself lead to dishonesty as Mr Van der Walt
pointed out at page 120 of the bundle.
Taking all the factors
into account I am unable to say that the employer's
sanction warrants interference.
It is proper, I
think, to apply the test which this court uses to examine an
award of a commissioner, namely
to determine whether it is
justifiable in relation to the material facts which were placed
before the commissioner.
This test, I think, is
applicable to the employer's decision regarding sanction.
The question is was the employer's
sanction justifiable.
It need not be justified.
I doubt whether I would
have come to the same conclusion, particularly as the employer had
worked for 11 years and I would thought
that it would have been
possible to transfer her to another position within the store.
However, I must come to
the conclusion upon all the facts which I have set out above, that
the employer's sanction was justifiable
and that it was not proper
for the commissioner to have intervened, even had he not committed
the gross irregularity to which I
have referred. It also means that
this court cannot interfere with the employer's sanction.
In the premises the award
of the second respondent, the commissioner, dated 15 January 2002
under case number MP1921/01, is
reviewed and set aside and
replaced with an award that the dismissal was fair.
The third respondent,
that is the union, is to pay the cost of this application.
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[COMMENT1]
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