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[2008] ZALCJHB 25
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Ster Kinekor Films (Pty) Ltd v Maseko NO and Others (JR1068/02) [2008] ZALCJHB 25 (24 January 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
CASE
NUMBER: JR 1068/02
In
the matter between:
STER
KINEKOR FILMS (PTY) LTD
APPLICANT
AND
MASEKO
N.O.
1
ST
RESPONDENT
THE
BARGAINING COUNCIL FOR
THE
ENTERTAINMENT INDUSTRY
2
ND
RESPONDENT
BADI
BETTY
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application in terms of which the Applicant sought an
order to review and set aside the award issued by the First
Respondent (the Commissioner) under EI008/200, dated 6 June
2002. In terms of the award the Commissioner found that the dismissal
of the Third Respondent was substantively and procedurally unfair and
ordered her reinstatement.
Background
facts
[2]
The Third Respondent, Ms Babedi (the employee) who was before her
dismissal employed as a catering cashier by the Applicant
at the
Sandton City branch was charged, disciplined and dismissed for
effecting two sales transactions in a fraudulent and dishonest
manner. The charges arose from failure by the employee to ring
on the cash register certain items which she sold to a customer.
The value of the two transactions in question was R14. 00.
[3]
The transaction in terms of which the employee was accused of failing
to ring was captured on the Applicant’s surveillance
camera.
After failing to ring the two transactions the employee was
apparently seen on a video camera later at the end of her shift
wrapping money with a cloth.
[4]
Mr Taute, the chairperson of the disciplinary hearing, testified on
behalf of the Applicant that failure to ring up the stock
was an act
of dishonesty, serious enough to justify a dismissal. The employee’s
dishonesty according to Taute arose from
the fact that she gave out
stock without ringing it whilst at the end of the day her till
balanced.
[5]
The employee testified that she was employed by the Applicant since
23 June 2000. She further testified during evidence in chief
that on
the day in question and also as shown on the video clip, she in the
first instance gave a customer a coke and packet of
whispers which
were at the value of R14, 00. In the second instance, also shown on
the video clip, she gave out a coke and popcorns
to the value of R14,
00 without ringing up these items. It would seem on her version the
total amount was R28, 00.
The
grounds for review and the award
[6]
The Applicant contended that the Commissioner committed a gross
irregularity in concluding that the employee did not fail to
comply
with the Applicant’s till procedure by failing to ring up the
two transactions on the 20
th
December 2001. The Applicant
further challenges the finding of the Commissioner that the dismissal
of the employee was both substantively
and procedurally unfair.
[7]
It is apparent that the Commissioner in his award found that the
employee did not follow the tilling procedure but however found
that
such failure was justified by the explanation given by the employee.
The explanation was that there was common practice, which
arose from
the suggestion by the credit controller that the sales of items that
follow after an over-rung sales, should not be
rung in order to
balance the sales and the amount in the till at the end of the day.
This practice was introduced after it was
suggested by one of the
credit controller whose identity, the employee never disclosed in her
testimony. It was according to the
employee introduced because
cancellation of sales is prohibited in the retail industry
[8]
The Commissioner further found that had the Applicant conducted a
proper investigation whilst the employee was on suspension,
it would
have emerged that the employee “
had no ‘dolus
malus’ or an ulterior motive, but incorrectly omitted to ring
those items up in order to balanced
out.”
[9]
In dealing with the appropriateness of the dismissal the
Commissioner found the sanction to be “
extremely
harsh”
because according to him the employee:
“…
boasted
an impeccable disciplinary record which spanned over a period of
fourteen years, albeit, broken, if the chairperson had
applied his
mind he would probable (sic) have come to a different sanction that
metered out if warranted.”
[10]
The procedure followed by the Applicant in disciplining the employee
was also found by the Commissioner to be unfair because
according to
him, both the complex and catering managers “
ganged up
against”
the employee. In this regard the Commissioner
found that :
“…
It is
wrong for initiators to co-prosecute. I can see no reason why if both
felt there was something they needed to tell the hearing,
one of them
could not be a witness. This is tantamount to ganging up
against the Applicant (sic) could have the effect of
denying the
Applicant the right to cross-examination, whereas the other initiator
has testified as a witness, the Applicant would
have used the
opportunity to subject the witness to cross-examination in order to
establish her innocence. The process therefore
took away the right,
as she could only (sic) ask question. I find this practice
unprocedural.”
Evaluation
Substantive
fairness
[11]
In my view the Commissioner committed a gross irregularity and a
misconduct in the manner in which he approached the evaluation
of the
evidence before him. See
SA Veterinary Council v Veterinary
Defense Association
2003 (4) SA 546
(SCA). In this regard the
Commissioner accorded undue weight to evidence of the employee. He in
fact misapplied the rules of evidence
in evaluating the evidence of
the employee. He ignored the critical weaknesses in the evidence of
the employee.
[12]
Had the Commissioner applied his mind to the evidence before him and
taken into account the circumstances of the case, he would
have
accorded less or no weight to the evidence of the employee in
particular regard being had to the fact that she testified during
both evidence in chief and cross examination that she could not
remember what happened on the day in question. This includes the
fact
that the employee conceded under cross examination that she failed to
comply with the proper tilling procedure in not ringing
up the two
transactions. She also admitted to failing to raise the issue of the
over-ringing during her evidence in chief and failed
to provide an
explanation for it. If the Commissioner took all these factors
into account in evaluating the evidence of the
employee he would have
arrived at a different conclusion regarding the reasonableness of the
explanation provided by the employee.
[13]
In my view the common cause facts together with the evidence of the
witnesses of the Applicant established a clear
prima facie
case which required the employee to present evidence explaining what
happened. As mentioned earlier, the employee, in her evidence
particularly during cross examination repeatedly stated that she
could not remember what happened on the day in question.
[14]
The explanation which the employee sought to present was inconsistent
in that when questioned during cross examination about
the
over-ringing which, she initially presented as the reason for not
ringing up the till, she suggested that it was because the
machine
did not function properly. It was only later during the
cross-examination that she sought to emphasis the breakdown in
the
functioning of the machine. It is apparent from the record that this
explanation could not be sustained during cross-examination.
[15]
The other difficulty with the employee’s case, which the
Commissioner failed to consider relates to the money which the
employee was seen on the video recording wrapping with a cloth. She
initially claimed to have counted the money in the presence
of the
incoming cashier but could not recall how much it was. However, when
confronted by this version and the one reflected on
the video
recording she changed and said:
“
The situation
is such that this cashier you saw coming in already had a tray with
all her goodies, now what I do with the
money in the cloth is
not exchange with her specifically, but to other cashiers.”
[16]
The other version the employee presented when questioned further
about the money in the cloth was that she took it to the cashier
controller. She answered in the affirmative when asked whether the
cash controller would sign for the money once in receipt thereof.
However, the very next answer when questioned about this was that she
did not give the money to the cashier controller but made
a note that
she had exchanged the money with other cashiers who signed
acknowledgement receipt thereof.
[17]
This version also changed when the employee was questioned further as
to whether the acknowledgement of receipt by the other
cashier was
done on Applicant’s official paper. She initially stated that
it was done on the Applicant’s official paper
known as “pay
in docket.” When asked to point out on the “pay in
docket” where the entry was
made, the employee
replied as follows:
“
It is not
reflected here, but the other person with whom I make the exchange
writes down (sic) at the end in the pay book as her
float or his
float and the person who cashes me up and writes down on my notes
that this is the money that I made in exchange.”
[18]It
is evidently clear from the above that the employee has failed to
provide a plausible explanation as to why she breached
the tilling
procedure and what happened to the money she had wrapped with a
cloth. It is clear from the evidence which was
properly placed
before the Commissioner that the money which was wrapped in the cloth
does not belong to the employee but the Applicant.
The employee has
failed to explain what happened to that money. It is apparent that
had the Commissioner properly applied his mind
to this evidence he
would have come to the conclusion that the reasonable inference to be
drawn was that in the absence of a reasonable
explanation; the
employee had misappropriated the money and was accordingly guilty of
an act of dishonesty. In addition had the
Commissioner applied his
mind he would have found that the employee had failed to provided a
reasonable explanation for failing
to comply with the tilling
procedure.
Procedural
fairness
[19]
As indicated earlier the Commissioner found that the dismissal was
procedurally unfair because the Applicant was during the
arbitration
proceedings represented by two initiators. I have not been able to
find authority that says that it is not permissible
to have two
people representing an employer in a disciplinary hearing. In my view
there is nothing in principle that prohibits
an employer from
appointing two people to represent it. It would seem to me that
even if there was such a prohibition, on
the facts of the present
case it cannot be said that the employee was denied a fair hearing
due to the two representatives. In
fact the record reveals that on
the main one person was actively involved in the representation.
Appropriate
sanction
[20]
A significant factor which the Commissioner would have taken into
account had he applied his mind and appreciated the task
before him
was that the employee committed an act of dishonesty and has not
shown any remorse. To this extent the Commissioner
would have found
that the trust in the relationship between the employee and the
Applicant had broken down to such an extent that
it could not be
mitigated by the length of service and the clean disciplinary record
of the employee.
Conclusion
[21]
In my view the decision reached by the Commissioner is not reasonable
because it is not a decision which a reasonable decision
maker could
have reached. In this regard had the Commissioner applied his mind,
considered all circumstances of this case and appreciated
the task
before him he would have found that; (a) the Applicant had a
established a
prima facie
case of dishonesty on the part of
the employee, (b) the employee had failed to provide a plausible and
reasonable explanation for
his failure to ring up the two transaction
and (d) that the employee was guilty of a misconduct involving an act
of dishonesty.
The Commissioner would also have found that a
dismissal was the most appropriate sanction in the circumstances.
[22]
There is sufficient evidence before this court
upon which a determination of the dispute can be made. There is
therefore no need
to remit this matter back to the CCMA for a hearing
de novo
.
[23]In
the premises the Commissioner’s arbitration award is reviewed
and set aside.
[24]
The Commissioner’s decision is substituted with the following
order:
1.
The dismissal of the employee (Ms Badi) was
both procedurally and substantively fair and the decision of the
Applicant to dismiss
her is upheld.
___________
MOLAHLEHI
J
DATE
OF HEARING: 18 SEPTEMBER 2008
DATE
OF THE ORDER: 11 JANUARY 2008
DATE
OF THE JUDGMENT:24 JANUARY 2008
APPEARANCES
FOR
THE APPLICANT : SEAN SNYMAN OF SNYMAN ATTORNEYS
FOR
THE RESPONDENT: ANDREW GOLBERG OF NOMALI TSHABALALA ATTORNEYS