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[2003] ZALCJHB 20
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Markhams, a division of Foschini Retail Group (Pty) Ltd v Matji NO and Others (JR211/03) [2003] ZALCJHB 20 (28 August 2003)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT
JOHANNESBURG
CASE
NO JR211/03
In
the matter between
MARKHAMS,
a division of
FOSCHINI
RETAIL GROUP (PTY)
LTD
Applicant
and
KOMOTJO
MATJI
N.O.
First
Respondent
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
THANDO
DHLAMINI
Third
Respondent
JUDGMENT
JAMMY
AJ
1.
The Third Respondent, at the time employed
by the Applicant as a sales associate at its Eastgate Store, was
dismissed on 6 December
2001 on a charge, found to have been proved,
of –
“
Serious
misconduct arising out of an incident that took place in Clicks on
18/11/2001 that resulted in your admission of guilt to
theft”.
2.
The fairness of that dismissal was
disputed, the matter was referred for conciliation to the Second
Respondent and, when it remained
unresolved, was referred for
arbitration before the Third Respondent in his capacity as a
Commissioner of the Second Respondent.
3.
In his award, the subject of this
application, the First Respondent records that the Third Respondent’s
version of the events
in the store “was that she had actually
paid for those goods by cheque”. Following a purported
analysis of the
further evidence presented on both sides, he
concludes that –
“
The
burden or onus of proof in this case is upon the Respondent. It
is required that the Respondent must prove on a balance
of
probabilities that the Applicant is guilty of all elements of the
misconduct with which he has been charged. In the event
of any
doubt as in the present case, the Applicant should be entitled to the
benefit of doubt. After careful consideration
and analysis of
the evidence at my disposal, it is my finding that the Respondent has
failed to discharge the onus upon itself
of proving that the
dismissal of the Applicant was for a fair reason related to her
misconduct”.
4.
The essential element of misconduct in the
charge against the Third Respondent was, as I have indicated, one of
theft, sourced in
her wilful attempted removal from the store of
goods for which she had not paid. The First Respondent’s
finding, in
that context, that in the face of her evidence that she
had in fact paid for them, the charge against her had not been proved
is,
as the Applicant submits, untenable on any analysis.
5.
In the first instance, the video evidence,
found by the First Respondent to be “not helpful” is, on
the Applicant’s
analysis as confirmed by its witnesses during a
showing of the film in the course of the arbitration,
incontrovertible in that
context. Secondly, the transcription
of the arbitration record, indicates unambiguously that –
5.1
when confronted by the security guard as
she attempted to exit the store, the Third Respondent attempted to
bribe him;
5.2
when questioned by the company’s
senior area manager she informed her that she had forgotten to pay
for the items in question;
5.3
on her own evidence, when confronted in the
store, the Third Respondent attempted to explain to the manager of
the store that she
had not checked the till slip and thought that she
had paid for everything. She then offered to pay for the items
in question;
5.4
at no stage was it contended or suggested
by the Third Respondent, as the First Respondent records, that the
items in question had
been paid for. The contrary is in fact
the case and, on the evidence, the Third Respondent at no stage
attempted to dispute
the fact that she had not paid for them.
Not only was that the case at the time of the incident but her
acknowledgment of
that fact was confirmed by her in the course of the
hearing of her disciplinary appeal.
6.
When assessed against this evidence, the
First Respondent’s finding of fact that in her evidence in
chief the Third Respondent
contended that she had actually paid for
the goods in question, defies explanation. Equally
incomprehensible, in my view,
is his conclusion that, on a balance of
probabilities, the Respondent had not proved that the Applicant was
“guilty of all
the elements of the misconduct with which she
has been charged” and that she should be “entitled to the
benefit of
doubt”. What he records as his “careful
consideration and analysis of the evidence at my disposal”, if
indeed that is what he properly undertook, could and should have left
him in no doubt that its probative weight indicated an emphatic
discharge by the Respondent of the onus of proof which he
emphasises. In any event, as the Applicant correctly submits,
that is not the test properly to be applied in civil proceedings such
as these and by importing the element of “doubt”
into his
assessment of the probabilities, the First Respondent has manifestly
mistakenly applied the standard of proof applicable
in criminal
matters as opposed to civil litigation, where it has no relevance.
7.
In these circumstances I have no hesitation
in holding that, in the context of the well-established principle
defined in a line
of cases in the Labour Courts, the First
Respondent’s award is not justifiable on the evidence properly
before him.
See
Carephone (Pty) Ltd v Marcus N.O. and Others (1998) 11BLLR 1093
(LAC); Shoprite Checkers (Pty) Ltd v Ramdaw N.O. and Others (2001)
22ILJ 1603 (LAC)
8.
I am further of the view that no good
purpose would be served by the reversion of this matter to the Second
Respondent to be arbitrated
afresh by a Commissioner other than the
First Respondent. I have little doubt were that course to be
followed, with the evidence
in this arbitration being adduced in its
totality once again, the inevitable conclusion would be no different
from that which I
have now myself reached, namely that the adverse
disciplinary finding against the Respondent was justified and that
her dismissal
in the circumstances was warranted.
9.
For these reasons the order that I make is
the following:
9.1
The First Respondent’s award dated 20
January 2003 in the Second Respondent’s case number GA185/02 is
reviewed and set
aside.
9.2
The First Respondent’s order, in the
context of that award, that the dismissal of the Third Respondent was
substantively unfair
and that she was to be re-employed, is
substituted by an order in the following terms:
“
The
dismissal of the Applicant was substantively fair”.
___________________________
B
M JAMMY
Acting
Judge of the Labour Court
Date
of hearing: 13 August 2003
Date
of Judgment: 28 August 2003
Representation:
For
the Applicant:
Attorney
R Moultrie: Bowman Gilfillan Inc.