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[2006] ZALCJHB 18
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Matsekoleng v Nkadimeng and Others (JR853/04) [2006] ZALCJHB 18 (18 October 2006)
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
DATE
: 18/10/2006
CASE
NO
: JR853/04
NOT
REPORTABLE
In
the matter between
SUPUDU
REUBEN
MATSEKOLENG Applicant
and
COMMISSIONER
T.L.
NKADIMENG First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION Second
Respondent
SHOPRITE
CHECKERS (PTY)
LTD Third
Respondent
J
U D G M E N T
CELE J
:
This
is an application in terms of
Section 145
of the
Labour
Relations Act 66 of 1995
, hereafter referred to if need be, as the
Act, to review and set aside an arbitration award issued by the first
respondent on 9 February 2004
while he was acting under the
auspices of the second respondent. The third respondent which
was previously the employer of
the applicant and in whose favour the
award was issued opposed the application.
It
is expedient that I should firstly deal with those facts which
constitute the background to the issues which are to be resolved.
Background
Facts
The
applicant commenced employment with the third respondent some time in
1984. At times material to this matter he occupied
the position
of a receiving clerk and was based at Groblersdal store of the third
respondent. The third respondent had stock
receiving procedures
which were prescribed or implemented by the stock receiving staff.
Particulars of stock which had been
delivered to the store had to be
entered into appropriate books and documents for accounting and
balancing purposes. This
was referred to as being the GRVed
being, in the past tense, it would be referred to as the Goods
Received Voucher (GRV).
So the said security guard services
were utilised by the third respondent as part of an exercise in
curbing stock shrinkage.
On
24 February 2003 the applicant was on duty when a milk
delivery was made by Schoeman Dairy or Milkery at Groblersdal
store.
Two litres of milk were donated by Schoeman Dairy, which milk was
handed to and received by the applicant. He
signed a voucher as
acknowledgement of receipt but did not enter the particulars of the
milk in shop records as was done when stock
was to be sold. In
other words he did not GR the milk. He took the two litres of
milk to the security officer and told
him or her that the milk was a
donation to the receiving staff for tea.
Some
investigations took place and some developments occurred, and there
were discussions involving the applicant, but the applicant
then
opened the two litres of milk. He took it to the tearoom.
The security officer took issue with the milk not being
recorded and
reported the incident to one Mr Strydom. This was another
security officer of the IBI, also stationed at
the same shop.
Mr Strydom was a branch manager of the third respondent at
Groblersdal.
The
third respondent issued and handed a notice of suspension, and a
notice to attend a disciplinary enquiry to the applicant on
the same
day. The applicant was charged with the following three acts of
misconduct:
1.
Misappropriation of company property in
that he had opened a plastic bottle of two- litre milk intended for
sale, causing a financial
loss, or potential financial loss to the
company;
2.
Serious misconduct in that he misled a
security guard in cancelling company merchandise without
authorisation; and
3.
Serious misconduct in that he did not
follow the company receiving procedures, causing a financial loss or
potential loss to the
company.
The
third respondent found the applicant to have committed all acts of
misconduct with which he was charged, and dismissed him on
9 April 2003. The applicant lodged an unsuccessful
internal appeal and a dismissal dispute arose between the parties,
which he referred to the second respondent for conciliation.
The dispute was not capable of a resolution and he referred
it to
arbitration, a hearing of which proceeded before the first
respondent. The issue for decision was whether the dismissal
of
the applicant was substantively and procedurally fair.
Five
witnesses were called by the third respondent. The applicant
was the only witness in his case. The case of the
respondent
which was the first to testify at the arbitration, was to the
following effect. The applicant failed to comply
with
procedures prescribed for the receiving of stock when he well knew
the same. According to these procedures he should
have recorded
or GRBed the two litre milk and it should have been put on the
shelves for sale. By failing to follow procedures
he caused
loss of R9.49 to the shop. It was the shop procedure that
donated merchandise was shop property for sale.
The shop had
been consistent with that practice. The applicant misled the
security guard as to how the milk was to be disposed
of.
The
case of the applicant was briefly to the effect that once he signed
the invoice of the milk, by not GRBing it the milk had not
become the
property of the third respondent. The donated milk was, by
practice up until 2003 – used by the staff in
their tearoom.
An attempt was made to hand in Affidavit in substantiation of his
claim that there was such practice which
had been standing over time
on how donated milk had to be dealt with. That in brief were
the issues or evidence tendered
before the commissioner.
I
come then also briefly to the award. In his award the first
respondent found in favour of the third respondent. He
had
looked at the evidence and he said the following on paragraph 31:
“
I
do not see the reason why Grobbelaar would select witnesses for the
respondent and not also for
Matsekoleng in
a disciplinary enquiry. I also do not see any prejudice caused
to Matsekoleng by Grobbelaar’s conduct
of the disciplinary
inquiry. Find that Matsekoleng’s dismissal is procedurally
fair.”
This
was in relation to the complaint about the witness who was called by
third respondent and before he could cross-examine him
the third
respondent removed him from the stand.
He
went on in paragraph 32 and said the following:
“
It
was common cause between the parties that
rule 13
regulates how stock
delivered to respondent should be received. Matsekoleng
testified and argued that he was aware of the
rule.
Matsekoleng, however denied breaching the said rule stating that
donation is not the respondent’s property as
it is not listed
as a commodity of the respondent. Matsekoleng went further and
stated that he did not grv the donated milk
and the milk should not
be considered the respondent’s property. The milk was
donated to the receiving staff of the
respondent. Page 100 of the
respondent’s bundle of documents shows that the milk was
donated to Shoprite Checkers in Groblersdal.
Matsekoleng and
the receiving staff do not have any business deals and they receive
goods on behalf of the respondent. I
find that the milk
belonged to the respondent and was therefore the respondent’s
property.”
I
go to paragraph 33:
“
Matsekoleng
also testified and argued that in the disciplinary inquiry Masemola
and Themba acknowledged that the receiving staff
used donated milk
for tea after specific authorization was obtained from management.
The receiving staff had been consuming
donated milk from Schoeman
Dairy since 1997 to 2001 and that Schoeman stopped donating milk a
year before his disciplinary enquiry.
Matsekoleng received the
milk on the 24
th
February 2003. Matsekoleng could not prove that he had
obtained such authorization before he opened the milk for
consumption.
The respondent has employed new management staff.
Matsekoleng received the milk in the manner he used to before the
donation
of milk was cancelled. Matsekoleng did not endear to
get specifit authorisation or directives from the new management as
to how should the donated milk be received and utilized.
Rule
13
is unambiguous in as far as getting specific authorization from
management before employees possess or attempt to or consume or
remove any company property to mention but few. I find that
Matsekoleng did breach the respondent’s receiving rules.”
The
application for review has been premised firstly on the attack on the
procedure adopted by the chairperson of the hearing.
The main
gripe is that there was a time when the applicant was denied an
opportunity to cross-examination a witness and the second
respondent
dealt with that. There was the attack on the bias on the part
of the chairperson in that he sat in a previous
enquiry at the level
of an appeal where he found in favour of the applicant, I do not want
to waste much time in going into that,
I do not see the merits in the
submissions that were made by Mr Klein in that respect.
I
want to look at the findings by the commissioner, and as I do so I
remind myself of the limits within which I am empowered to
review
this award. So many decisions have been handed down in this
regard, one such is
Total SA Motors
(Pty) Limited v Radebe and others
2000
(21) ILJ 340 (LAC). I refer in particular to the judgment of
Nicholson JA. At paragraph 39 he had this to say:
“
From
Dhlumayo’s
case supra it is clear that the court, in an appeal on fact, will
interfere if there are misdirections of fact including the
overlooking
of other facts and probabilities. This is very
similar to the notion that an award can be set aside if it is not
justifiable
with regard to the reasons given. By referring to
gross irregularity in
s 145
the legislature is clearly contemplating
something far more serious than that. Mistakes of fact and law,
subject to certain
exceptions, are insufficient grounds for
interference.”
Clearly
based on this decision and a number of others such as the
Carephone
decision the powers of a judge on review are limited. Can it be
said in the present case that the award is irrational?
I have
not heard Mr Pillay say so. If I look at the papers and
try to determine the review grounds as distinct from
the grounds that
would have been appropriate for appeal purposes, I have been unable
to find any submissions that make me to arrive
to the conclusion that
the application for the review has merits.
The
commissioner has deferred to the sanction imposed by the employer in
this respect. Obviously as I have indicated to Mr Pillay
I
did not hear him making any attack on that, and therefore even in
that respect my powers are limited. I would have been
– I
have looked at the facts of the case. I got a bit worried,
looking at the experience of the applicant, 21 years
of experience,
being dismissed in a case for misappropriation of property worth
about R9.46 but one has to remember that there
is a bigger picture.
He went to a security guard and created an impression that he had
been authorised to appropriate the
milk, and in any event that is not
really the issue that I have been called upon to decide. But on
those grounds for review
that appear to have been raised by the
applicant I am unable to agree that there are appropriate grounds for
review.
Section
145
of the Act clearly indicates that an award may be reviewed if
there is misconduct on the part of the commissioner or if the
commissioner
has committed a gross irregularity, or where a
commissioner has exceeded his or her powers. There is the
extended ground
as we know it, based on the
Carephone
decision based on irrationality. Here I am unable to find, when
I look at the award, that the evidence that served before
the
commissioner, looking at the reasons he gave for the award and also
looking at the award itself that the decision he arrived
at is
irrational. That being so the application for the review of the
arbitration award issued by the first respondent on
9 February 2004
is dismissed.
That
brings me to the question of the costs. I think it is a case
where it will be fair if the costs order follows the result,
and so
the application is dismissed with costs.
___________
Cele
AJ
Date
of Judgment: 18 October 2006
Date
of Editing: 19 March 2009
Appearances
For
the Applicant:
Mr Pillay –
Shabangu and Pillay Attorneys
For
the Respondent:
Mrs M Kraus –
Perrot, Van Niekerk, Woodhouse, Matyolo Inc