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[2007] ZALCD 15
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Eshowe Spar v Mkhwanazi and Others (D625/05) [2007] ZALCD 15 (4 December 2007)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
: D625/05
NOT
REPORTABLE
In
the matter between
ESHOWE
SPAR
Applicant
and
E
MKHWANAZI
1
st
Respondent
CHARLES
OAKES N.O.
2
nd
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
3
rd
Respondent
JUDGMENT
PILLAY D, J
[1]
An application for condonation prefaces this application to review
and
set aside the award of the second respondent commissioner.
[2]
The Court deals with the prospects of success on the merits first
before
turning to consider the other elements relevant to an
application for condonation.
[3]
The critical evidence for the applicant employer at the arbitration
was
the minutes of a disciplinary inquiry. The first respondent
employee disputed the minutes and refused to sign for them.
In
the absence of agreement about the minutes, the witness for the
employer, Mr Evans, who chaired the inquiry, was material.
[4]
The witness who had direct evidence of the alleged over-ringing of
the
shaving cream, on the one hand, and the failure to ring the Coke,
on the other hand, was a customer of the applicant. His
whereabouts were apparently unknown to the applicant and, for one
reason or another, he did not testify either at the disciplinary
inquiry or at the arbitration.
[5]
So the exclusive evidence on which the employer relied was the
evidence
of the chairperson about the admissions and denial that the
employee made at the disciplinary inquiry. In this regard there
were two versions – that of Evans, against that of the
employee.
[6]
The probabilities favour the evidence of Mr Evans to the extent that
there
is corroboration for it in the form of the till slip. It
is manifest from at least one till slip that the employee had rung
the till for two shaving creams when the customer had taken only one
shaving cream.
[7]
When giving her evidence-in-chief, the employee did not state that
the
customer had bought two shaving creams. However, her
representative put the following leading question to her:
“
And
then on bundle 3 you stand by that the customer bought two shaving
creams. It is shown here, to your belief?
MS
MKHWANAZI:
Yes.
RESPONDENT
:
Mr Commissioner, I don’t remember I heard her in
evidence-in-chief stating she had two shaving creams, unless
I am
wrong. I don’t believe her giving evidence that two
shaving creams had been bought in her evidence. I could
be
wrong.”
[8]
Her evidence-in-chief in that regard was as follows:
“
MS
MKHWANAZI
: It is not two.
The customer just bought the cakes, the hot cross buns. He paid
with cash and the thing
for shaving he paid with credit card.”
[9]
The customer was unlikely to have objected to not being charged for
the
Coke. However, he would more likely have objected, as he
did, for being double-charged for the shaving cream. The
probabilties
are that she did double ring the shaving cream and not
charge for the Coke. That is not the end of the matter.
The
question is whether the offences for which the employee was
charged amount to dismissable offences.
[10]
Whilst it was common cause that the employee signed an acknowledgment
that such conduct
would be a dismissable offence, each case has to be
assessed on its own merits. In this instance the employee stood
to gain
nothing. On the contrary, the applicant stood to gain
from overcharging the customer. Although the Coke was not
charged
for, the cost of the shaving cream which was R11,99 each was
probably more than the cost of a tin of Coke.
[11]
The first three charges, namely allowing goods to pass through the
tillpoint without
being rung up; double-ringing of customer
goods; and improper performance of duties arise from the same
incident relating
to the customer. The further charges, namely
refusal to obey a lawful instruction resulting in gross
insubordination;
improper behaviour towards the public;
and defiance of authority shown towards an immediate supervisor or
manager relate
to the employee’s conduct after the incident
with the customer.
[12]
Mr
Forster,
for the applicant, submitted that the latter charges arose from the
employee refusing to attend her disciplinary inquiry and refusing
to
plead when she did attend . Mr
Forster
submitted that in conducting herself thus the employee was
insubordinate.
[13]
In the opinion of the Court, an employee may refuse to attend and to
plead at an
inquiry. To hold an inquiry is the obligation of
the employer and to participate in an enquiry is the right of the
employee.
If the employee chooses not to exercise the right,
that is the employee’s perogative. The employer cannot
from that
deduce that the employee is insubordinate. Even if
the employer instructs the employee to attend the inquiry, which in
the
opinion of the Court is not an appropriate instruction, the
employee may refuse to participate. Of course, adjudicators
are
free to draw such inferences as they might from the employee’s
refusal to participate. However, employees
who refuse to
participate in their enquiries do not commit workplace offences.
[14]
Another factor to take into account is that the employee had long
service of about
20 years. The misconduct which the Court has
found proved amounts to no more than negligence and a mistake that
can happen
to any cashier, no matter how long her service.
[15]
However, that is not the reasoning of the commissioner in finding
that the dismissal
of the employee was unfair. The critical
consideration for the arbitrator was the following:
“
As
a critical witness regarding the incident did not testify I am left
with no alternative but to give the benefit of doubt to the
applicant.”
On
that basis the arbitrator found that the applicant had failed to
discharge its
onus
on a balance of probability.
[16]
Although the arbitrator’s reasoning is valid in that the
evidence before him
supports it, there are further considerations
which do not appear from his award. It has been said time and
again that if
an arbitrator’s award does not manifest all the
reasons for his decision, it does not render the award reviewable.
[17]
In the circumstances, on the merits the review must fail.
Furthermore, the
Court’s refusal to condone the late
application for review is fortified by the delay of almost a year in
filing the review.
The explanation for the delay is that the
applicant believed or was allegedly under the reasonable impression
that the matter might
be settled. The applicant had made a
proposal to the trade union at a meeting and followed this with a
letter on 23 November
2004. However, by January 2005 the trade
union had filed an application in terms of section 143 to have the
award made an
order of court. Any reasonable person would have
inferred that the possibilities of settling the matter had
dissipated.
The applicant did nothing about filing the review
until 12 September 2005.
[18]
To assume without more that the matter might still be settled was not
a reasonable
inference for the applicant to draw. In any event,
the applicant was represented by an employer’s organization.
It should have been aware that the clock was ticking, and without an
agreement to delay the review application or to respond to
the
settlement agreement, the applicant could have no reasonable belief
that the matter would be settled.
[19]
In the circumstances, the application for condonation is refused.
The application
for review is refused, the applicant to pay the costs
of both applications.
-
- - - - - - - - - - - - - - - - - - - - - - - -
_______________________
PILLAY
D, J
JUDGE OF THE LABOUR
COURT
DATE
OF JUDGMENT
: 4 DECEMBER
2007
APPEARANCES
:
FOR
THE
APPLICANT
:
MR JAFTA
FOR
THE
RESPONDENT
:
MR J R FORSTER
CONTRACTOR
Sneller Recordings
(Pty) Ltd, Durban : 103 Jan Hofmeyr Road, Westville 3630
Tel 031 2665452 : Fax
031 2665959