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[2007] ZALCD 7
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Edcon Ltd v Sithole (D522/04) [2007] ZALCD 7 (20 March 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
SITTING
IN DURBAN
CASE
NO:
D522/04
DATE
:
2007/03/20
In
the matter between
EDCON
LIMITED
Applicant
and
1
st
Respondent
2
nd
Respondent
N
B
SITHOLE
3
rd
Respondent
JUDGMENT
DELIVERED BY
THE
HONOURABLE MADAM JUSTICE PILLAY
ON
20 MARCH 2007
ON
BEHALF OF THE APPLICANT:
MR
VENTER
ON
BEHALF OF THE 3
rd
RESPONDENT:
MR JAFTA
JUDGMENT
20
MARCH 2007
PILLAY D, J
[1] The applicant was
charged as follows:
“
Failure
to be honest and act with integrity:
(a)
In that over the period of 19
April 2002 to 20 October 2002,
you processed cash sale transactions onto your cash card account No
7009559550013955359 to the
total value of R13 536,29 for the
purposes of self-gain of the benefit of the cash vouchers; and
(b)
On 22 April 2003 you altered records on
your account No […................] using your subordinate’s
user I.D. by changing
the following:
(1)
Title, name and I.D. number, Mrs to
Nombheka Beatrice, to Mr Mbhulele and
[….............................] to [….....................],
this has resulted in a breach of the trust relationship between
yourself and the Company.”
[2]
The employer had an incentive scheme in terms of which customers
received a R50 voucher for every R700 spent on their cash cards.
The applicant was one of three staff members who had a cash card.
The rule was established that employees were not allowed
to use their
cash cards to process customer’s purchases. A scam was
uncovered when an employee, Nokuzula from the Kokstad
branch, where
the applicant was employed, used 21 vouchers in the Pietermaritzburg
branch of the employer. The employer was
alerted to the
incident and Nokuzula, was identified. Other than counselling
Nokuzula about not using cash cards, no other
disciplinary action was
taken against her.
[3]
Following that incident, the applicant changed the names and identity
numbers on her cash card to her husband’s.
She told the
head cashier, Yandisa, that she should change the name on her cash
card to her mother as she was not married.
The applicant
informed her supervisor, Marie Dickens, that she had effected these
changes.
[4]
The applicant admitted that her cash card was used to effect the
transactions referred to in the charge sheet. Her case
was that
she did not use it herself. Evidence was led by the applicant,
and corroborated by Nokuzula, that other members
of staff had used
her cash card. This seems, at first blush, to be strange
considering that the beneficiary of the transactions
would have been
the applicant. However, the reason advanced by Nokuzula was
that the employer set a target of 10 new cash
cards to be opened per
day. Ultimately this was interpreted to mean the number of cash
card purchases made per day.
In order to meet their target,
other employees could have used the applicant’s card without
her knowing because they had
the number of her card.
[5]
It was submitted for the employer that the award is reviewable on the
grounds that the arbitrator committed a gross irregularity,
firstly
by ignoring the employee’s admission that she changed the name
and the ID numbers on her card the day after the Pietermaritzburg
incident.
[6]
On this ground the evidence is well-established that the applicant
did change her cash card details. Whether her conduct
could
reasonably have resulted in a breach of trust depended on whether
there was an explanation for making the changes.
The
explanation was that by changing the details on her card she
prevented others from using it. As it turned out, her card,
now
in the name of her husband, had not been used by other members of
staff after the changes had been effected. Furthermore, the
change
was effected openly.
[7]
By drawing an adverse inference against the employer for not calling
Dickson, the arbitrator did not render the award reviewable.
It
was open to both parties to call Dickson – the applicant to
corroborate her rebuttal and the employer to discharge its
onus
.
In the circumstances, the employer did not discharge its
onus
on both charges. The applicant’s version was not refuted.
[8]
A further ground on which the award was criticised is that the
arbitrator allowed hearsay evidence to be led on behalf of the
employee but not in respect of the employer. Even if that did
occur, on the material evidence the applicant’s evidence
was
corroborated and constituted the basis of the arbitrator’s
decision. In other words, if the hearsay evidence led
by the
applicant is ignored altogether the result would not change.
[9] In the circumstances,
the application for review is dismissed with costs.
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_________________________
PILLAY
D, J