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[2006] ZALCJHB 13
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR1046/02) [2006] ZALCJHB 13 (25 April 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR 1046/02
In
the matter between:
SHOPRITE
CHECKERS (PTY)
LTD
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
First
Respondent
COMMISSIONER
HLATSHWAYO M
D
Second
Respondent
SACCAWU
obo D
MASEKO
Third
Respondent
JUDGMENT
REVELAS
J
[1]
This is an application for review of an arbitration award reinstating
Dulcie Maseko in the employ of the applicant, who had
dismissed her
for alleged gross misconduct. The gross misconduct is described by
the applicant in the charge sheet as
“
arising
out of the removal of bones from meat on sale at deli on 14/01/02 –
which leads to shrinkage”.
[2]
The applicant, represented in these proceedings by the third
respondent (“the Union”), contended that her dismissal
was both procedurally and substantively unfair. This was also found
to be the case, by the second respondent (“the arbitrator”),
who arbitrated the matter under the auspices of the first respondent.
[3]
The procedural unfairness found by the arbitrator was that Maseko had
not testified at the hearing. She only handed in a written
statement,
wherein she totally denies that she had removed bones from some meat
belonging to the applicant and that she paid only
for the deboned
meat. She gave no oral evidence and was not cross-examined by the
initiator.
[4]
The Union, who also represented Maseko at the disciplinary enquiry,
raised the issue of Maseko’s evidence when the chairperson
of
the disciplinary enquiry requested the Union to put forward
mitigating circumstances in writing.
[5]
The Union was given an opportunity to put forward further evidence or
written submissions so that Maseko could lead oral evidence.
The
chairperson of the hearing, Mr Logan, said he received no response
from the Union in this regard. Even though Maseko did not
give oral
evidence, the Union representative, Mr Rakolle cross-examined all the
witnesses who testified on behalf of the applicant.
They also had
handed in written statements to the chairperson, as Maseko had done.
[6]
In my view, there was no procedural unfairness, and even if the
procedure followed, was less than perfect, no prejudice towards
Maseko emanated therefrom. Most importantly, the chairperson accorded
her the opportunity to rectify any flaw. That was not taken
up. In
such circumstances, there can be no valid complaint about procedural
fairness.
[7]
I will now deal with the substantive unfairness (or otherwise) of the
dismissal.
[8]
The applicant had informed its employees in a memorandum, which was
also read out to all the employees, that it was experiencing
serious
problems with stock losses and would take disciplinary steps aimed at
preventing further stock losses.
[9]
Two independent witnesses observed how the applicant removed the
bones from some meat commonly known as “chuck”,
and which
is, always sold with bones. One of the witnesses, Lettie Moolman,
confronted Maseko about her conduct. Maseko told Moolman
that she
does “not pay for bones”.
[10]
At the disciplinary enquiry and at the arbitration hearing, Maseko
denied that she deboned the meat before she handed it to
the deli
assistant, Grace Nkosi, who weighed them.
[11]
The arbitrator found that Maseko was not guilty of a breach of any
standard rule made by the applicant and took into account
that the
Union denied the existence of such a rule. He found the memorandum
handed to the applicant’s employees to be an
“internal”
memorandum which did not constitute a standard rule. He quite
strangely, (given the aforesaid findings he
had made), found that the
memo constituted (and was apparently implemented as) a collective
written warning and he further took
it upon him, to pronounce on the
repugnancy of such collective warnings. Apart from being
contradictory, the aforesaid reasoning
is patently disconnected to
the facts that were placed before the arbitrator. The memorandum
merely reiterated a standard rule
which exists in every retail
business in the country. Furthermore, there was evidence that Maseko
was present when the memorandum
was explained to all the applicant’s
employees. Finally, the applicant did not regard or implement the
memorandum as a final
or written warning. It was presented in
evidence to prove that a policy which existed. Even without the
memorandum, the applicant
could prove such a rule against the
misappropriation of stock which is a very common one in most
industries.
[12]
The arbitrator also found that because the deli assistant (Nkosi) who
weighed the meat in question, was not disciplined for
the same
misconduct or at least her participation therein, the applicant had
applied unfair and selective discipline. The arbitrator
conceded that
the applicant was entitled to curb stock losses with disciplinary
action, but held that it should be done in a manner
which does not
allow it to make “unnecessary errors”. Grace Nkosi did
not testify before the arbitrator, but only at
the disciplinary
hearing where she gave evidence on Maseko’s behalf. She
confirmed that Maseko indeed removed the bones from
the meat.
[13]
The arbitrator accepted that Maseko removed the bones from the meat.
Therefore, by implication, he found that Maseko had lied
at the
disciplinary hearing and at the arbitration hearing. It does not lie
in the mouth of a party who denies misconduct, to derive
any benefit
from the version which proves his or her denial to be false. It was
further not open to the arbitrator, once he had
rejected Maseko’s
denial, to find that she was selectively disciplined. Such a finding
was unjustifiable, particularly as
no witnesses were led on the
question of selective discipline.
[14]
The bones were worth R1, 00. Many might reason that the
de
minimis non curat lex
principle applies
to this case. Yet it is an established Labour Law principle that the
value of unauthorised stock appropriation
is irrelevant, and
dismissal is the correct sanction. If Maseko and her Union played
open cards from the beginning, so that she
could give evidence in
mitigation (as she was invited to do) or explain the alleged
selective discipline by the chairperson of
the disciplinary enquiry,
perhaps Maseko would not have been dismissed. Unfortunately she chose
to deny the incident. Sadly, it
happens so often that misconduct is
falsely denied, which only further compounds the broken trust of the
employer in the employee.
[15]
In my view, the award of the second respondent should be set aside
and substituted with one reflecting Maseko’s dismissal
as
procedurally and substantively fair. I see no reason why costs should
not follow the result, particularly because of the untruthfulness
of
Maseko’s version.
____________________
Elna
Revelas
Judge
of the Labour Court
Date
of hearing: 20 April 2006
Date
of judgment: 21 April 2006
Typed
reasons: 25 April 2006
On
behalf of the applicant:
Ms
Janine Germanus of Perrot Woodhouse and van Niekerk
On
behalf of the third respondent
:
Ms
Molefe of SACCAWU