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[2008] ZALCJHB 70
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (JA08/2004) [2008] ZALCJHB 70 (29 May 2008)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(HELD
AT JOHANNESBURG)
Case
No.: JA 08/2004
SHOPRITE
CHECKERS (PTY) LTD
Appellant
and
COMMISION
FOR RECONCILIATION,
MEDIATION
& ARBITRATION
First
Respondent
ROMODIKE,
W,
N.O Second
Respondent
SOUTH
AFRICAN COMMERCIAL CATERING
AND
ALLIED WORKERS UNION
Third
Respondent
NKUNA,
S Fourth
Respondent
JUDGMENT:
DAVIS
JA:
Introduction
[1]
On 15 November 2000, appellant charged fourth respondent, an
assistant baker at its store in Louis Trichardt as follows:
1. Dishonesty,
alternatively in breach of company rules in that you consumed company
property without paying;
2. Breach of company
rules in that you consumed food and drink in places not designated
therefore.’
[2]
On 13 December 2000 the fourth respondent was found guilty as charged
at a disciplinary enquiry and subsequently dismissed.
He challenged
both the substantive and procedural fairness of his dismissal at an
arbitration convened by first respondent and
presided over by second
respondent.
[3]
On 11 September 2001 second respondent found that fourth respondent’s
dismissal had been substantively unfair, on the
basis that he was not
guilty of the charges of misconduct brought against him. Accordingly
he ordered his reinstatement.
[4]
On 23 October 2001 appellant launched an application for review to
set aside second respondent’s award in terms
of section
145 of the Labour Relations Act 66 of 1995 (‘The Act’).
On 26 September 2003 Revelas J, in the
Labour Court, handed down a
judgment in which she found that, while second respondent’s
findings on guilt were open to attack
on review, the sanction of
dismissal was unfair in the circumstances. Accordingly,
she substituted second respondent’s
award of reinstatement to
that of a final written warning. With leave of the court
a
quo,
appellant has come before this court on appeal against this
decision.
The
substance of the dismissal
[5]
On appeal, Ms Sikhakhane counsel for fourth respondent, conceded that
the appellant had proved the charges against her client.
Accordingly, the case turned exclusively on the nature of the
appropriate sanction.
[6]
This concession was wisely made. The evidence of Mr van
Staden, the administration manager of appellant and Mr Mthombeni,
the
store manager, confirmed that appellant had installed surveillance
video cameras in the store during October 2000. Fourth
respondent was clearly captured on these video cameras contravening
store policy on two separate occasions. On 7 October
2000
the video shown to second respondent revealed that fourth respondent
had eaten a plate of pap and that, before he consumed
the pap, he had
ensured that the roller door was closed so that no one could see his
actions.
[7]
On 11 October 2000 the video revealed fourth respondent removing a
piece of bread from the preparation table of the deli, a
department
of the store in which he did not work. He consumed the bread after
having opened and looked into the “pap cooker”
in the
deli to see if the pap was ready. Less than an hour
later, having placed a plate of pap on a trolley in the
preparation
area of the bakery, fourth respondent proceeded to eat the pap while
in the process “blocking the whole view
of the food with his
back”, according to the testimony of Mr van Staden which was
uncontested. Further, as Mr
van Staden testified, he was
found “peeping around to see if someone was coming” Mr
van Staden also confirmed that
fourth respondent was careful not to
consume any food when other people passed by him. Two
hours later fourth respondent
sat down at the preparation table and
ate pap from a dish or container, having decanted it from another
container.
[8]
The fourth respondent’s developed a defence to the theft of the
three helpings of pap and the piece of bread as well as
the
prohibited consumption thereof in the preparation areas in the bakery
and the deli. He claimed that he had purchased the pap
from Ms
Mudumela, an informal food trader, who delivered the food to him at
work. Hence he denied that he had stolen
pap from the
store. While the piece of bread that fourth respondent
consumed belonged to appellant and was consumed
without permission
having been obtained, he claimed that he had eaten it in “the
process of testing the bread which had been
baked the previous day
for [the deli staff…] to prepare sandwiches”. He further
testified that Mr Mthombeni had given
employees, such as fourth
respondent in the bakery and deli, permission to drink tea and coffee
and eat at their work places.
Accordingly, he had not
contravened any rule by virtue of his conduct depicted on the video.
[9]
The evidence of Ms Mudumela proved to be of no assistance to fourth
respondent. She was not in a position to confirm whether
fourth
respondent was involved in consuming her pap during the incidents
captured on the video on 7 and 11 October 2000.
She was
not able to confirm that the plate and bowl from which fourth
respondent ate, and which was depicted on the video,
belonged to her.
[10]
Fourth respondent also gave contradictory versions regarding why he
had proceeded to the deli on 11 October 2000, including
that he had
attempted to assist the deli staff in serving customers, that on the
request of the deli supervisor he had tested bread,
that he had to
check the “pap cooker” and that “he had to check
the yeast that was kept in the deli fridge”.
[11]
The finding by second respondent that fourth respondent was not
guilty of eating in the prohibited area and therefore not guilty
of
dishonesty in consuming the pap and bread which belonged to the
appellant was based on an uncritical acceptance of fourth
respondent’s
testimony which, as I already noted, was
unsatisfactory in the extreme. In addition, the evidence
of both Mr Mthombeni
and Mr Van Staden was clear: there was no basis
for the contention that employees in the bakery and deli area, who
were allowed
to drink tea at their workplace, were also entitled to
eat at the same time. Such conduct was contrary to the
clear,
published rules of appellant. None of this evidence was taken
into account by second respondent.
[12]
The inability of Ms Mudumela to provide any substantial support for
the version of fourth respondent was also ignored in the
findings of
second respondent.
[13]
When the matter came before Revelas J, she found:
“
The
arbitrator may be wrong in the conclusion based on the evidence
before her, but it is not necessary for me to make a finding
as to
whether she was incorrect or correct with regard to her findings on
the evidence. I still need to consider whether
the
dismissal was fair and whether it was indeed the appropriate sanction
even if I agree with the applicant’s contentions.
It is quite
trite that employers in a retail business suffer huge financial
losses as a result of shrinkage caused,
inter alia
, by their
staff who steal from them. It is also trite that dismissal would, in
the vast majority of cases, be the only appropriate
sanction. Yet I
believe that this was a case where dismissal should not have been
imposed.”
[14]
In my view, Revelas J erred in adopting this approach. For
the learned judge to deal with the question of a sanction
for
dismissal, the prior question, namely whether the dismissal was fair,
had to be answered. On the basis of the evidence
as I
have outlined it, the dismissal was substantively fair. There
was also no objection to the procedural basis of
the dismissal.
Having so found that the dismissal was fair, Revelas J could then
have properly moved on to deal with
the appropriate sanction.
The
appropriate sanction
[15]
Mr Myburgh, who appeared on behalf of the appellant, produced a
meticulous and carefully researched set of arguments concerning
the
question of the appropriate sanction. He submitted that
the decision by Revelas J not to dismiss fourth respondent
because of
the relatively small value of the items which was stolen and the nine
years of an unblemished service record of fourth
respondent was at
odds with the jurisprudence of this court.
[16]
In brief, this court has consistently followed an approach, laid out
early in the jurisprudence of the Labour Court in
Standard Bank SA
Limited v CCMA and others
[1998] 6 BLLR 622
at paras 38 - 41
where Tip AJ said: “It was one of the fundamentals of the
employment relationship that the employer should
be able to place
trust in the employee… A breach of this trust in the form of
conduct involving dishonesty is one that goes
to the heart of the
employment relationship and is destructive of it.”
[17]
That decision was followed by Mlambo J (as he then was) in
Metcash
Trading Limited t/a Metro Cash and Carry and another v Fobb and
another
(1998) 19 ILJ 1516 (LAC) at para 16 - 17 where the
learned judge found that in relation to the consumption of one 250 ml
bottle
of orange juice “theft is theft and does not become less
because of the size of the article stolen or misappropriated”.
[18]
In
Leonard Dingler (Pty) Ltd v Ngwenya
(1999) 20 ILJ 1171
(LAC) an employee was found guilty of removing a few bale boards from
the premises, each bale board being worth
no more than R8.50.
He was dismissed. When the matter came before this court,
Kroon JA said the following
at para 78: “Was dismissal of the
respondent an unfair sanction? I am persuaded that this
question falls to be
answered in the negative. It is true
that the respondent had a long record of service (7 years 10
months…)
with no previous record of a disciplinary
offence. On the other hand, Oosthuizen testified that the appellant
experienced theft
by its employees on a large scale. It
follows that a measure of deterrence is called for. The
respondent’s
conduct was not only dishonest but was
premeditated, planned and persistent. The overlapping triad of
misconduct, incapacity
and operational necessity … was
present. Moreover, regard may further be had to the
manner in which the respondent
conducted his case in the court
a
quo.
It embraced a false accusation of perjury
against, inter alia, a director, of the appellant and a charge
against him that for ulterior
motives he made a false accusation the
subject of disciplinary proceedings against the respondent. No
viable employer
– employee relationship remained.”
[19]
A similar approach was adopted in
Rustenburg Platinum Mines Ltd
(Rustenburg Section) v National Union of Mine Workers
(2001) 22
ILJ 658 (LAC). In this case an employee had been employed
on the mine as cleaner in the kitchen for some
fifteen years.
She was dismissed for attempting unlawfully to remove meatballs
from the kitchen. The mine had
a strict policy on theft or the
unauthorized possession of company property. All
employees were aware that they were
dismissible offences.
The court confirmed the finding that she was guilty of the theft of
the meatballs and found the
dismissal, in these circumstances, to be
justifiable, commenting: “Particularly is this so in the light
of her working with
or in the proximity of food which can easily be
stolen.” (at para 22.)
[20]
A similar approach was also adopted in
Lahee Park Club v Garratt
[1997] 9 BLLR 1137
(LAC) at 1139 in which this court confirmed the
dismissal of the secretary of the sports club with an unblemished
service record
of seven years for writing off a subscription of a
member valued at R60 as a favour to such member.
[21]
The principle on which these decisions are all based is encapsulated
in a
dictum
of Conradie JA in
De Beers Consolidated Mines
Ltd v Commission for Conciliation. Mediation and Arbitration and
others
(2000) 21 ILJ 1051 (LAC) at para 22: “A dismissal is
not an expression of moral outrage; much less is it an act of
vengeance.
It is, or should be, a sensible operational
response to risk management in the particular enterprise.
That is
why supermarket shelf packers who steal small items are
routinely dismissed. Their dismissal has little to do
with
society’s moral opprobrium of a minor theft; it has
everything to do with the operational requirements of the employer’s
enterprise.”
[22]
In the present case, the uncontested evidence revealed that, during
October 2000, appellant’s store in Louis Trichardt
lost
2.95% of turnover due to shrinkage which equated to a loss of some
R144 000. Mr van Staden’s uncontested evidence
was that
employees were aware of the shrinkage problems and of the company
rules designed to prevent or control such shrinkage.
The
shrinkage problem had been mentioned in several meetings, and after
every stock take results were posted on notice boards.
A
feedback meeting was held with all employees during which the company
rules were discussed. In the canteen notices
were
displayed and the contents thereof routinely reinforced by the Store
Manager. It was precisely because of its
attempt to curb
shrinkage that appellant had installed surveillance video cameras in
the store.
[23]
Mr Myburgh very properly referred this court to an unreported
decision of the court in
Shoprite Checkers (Pty) Ltd v The
Commission of Conciliation, Mediation and Arbitration and 3 others
(unreported decision of the LAC: Case no: JA 46/05). The
approach adopted in this case appears to run counter to the
court’s
jurisprudence as analysed as well as appellant’s submissions.
In this case an employee had been
captured on the store video camera
on three separate occasions eating in areas in which such activity
was prohibited. He
was subsequently charged with
misconduct, found guilty and dismissed. It was
common cause that the monetary value
of that which was consumed was
unknown. When the matter went to arbitration, the
commissioner found that a dismissal
was not required to automatically
follow the conviction of theft. The employee had thirty
years of service and was
a first offender. Accordingly
the commissioner found that the sanction of dismissal was ‘quite
severe’.
On review before this court, Zondo
JP held at para 26:
“
I know that from
the appellant’s point of view this cannot simply be about
monetary value of the food that fourth respondent
ate.
For the appellant, it is probably about a principle and the real
problem of shrinkage that it and other similar
business face every
day. I am not ignoring any of this. I am mindful of
it but, nevertheless, when all the relevant
circumstances are taken
into account, I am of the opinion that a reasonable decision maker
could not, in the circumstances of this
case, have concluded that an
employee who had a clean disciplinary record such as the fourth
respondent and had 30 years of service
should, in addition to getting
a “severe final warning” for this type of conduct, also
forfeit about R 33 000, 00 for
eating food that may well have cost
less than R20,00. I do not think that a reasonable
decision maker could have sought
to impose any penalty in addition to
the “severe final warning”.”
[24]
This decision appears to adopt a different approach to the body of
jurisprudence as analyzed in this judgment.
However, in
that case the employee had 30 years of unblemished service.
While that employee contended that he
had been authorized to taste
food in the areas where the video clip had showed him to have so
eaten, and that, on one of the occasions,
he was eating his own food,
unlike the present case, he had not gone so far as to produce
manufactured evidence that manifestly
was concocted in order to
support his own mendacious account, as was evident in the present
dispute.
[25]
In this case the respondent had engaged in a breach of company rules
on two separate days and on these occasions on one day.
On
11 October 2000 he had consumed three separate bowls of pap.
He had thus acted in flagrant violation of the
company rules which
had been implemented for clear, justifiable operational reasons.
Other employees who had been similarly
found to have so acted had
been dismissed. In unchallenged evidence Mr van Staden
testified about the breakdown in
trust between the two parties:
“
Because he is
actually working or he has been trained to work in a specialty
department where he is busy preparing food, and because
of the
incidents that happened which actually caused the shrinkage and with
the high shrinkage in the store at the moment, we actually
cannot
afford to get him back in the store. (Indistinct) broke
the trust relationship with the company.”
In
this sense, the facts are distinguishable from that of the
Shoprite
Checkers
case
supra
and in keeping with the other
decisions of this Court.
[26]
In the result, the appeal is upheld with costs and the order of the
court
a quo
is replaced with the following order:
1. The review
application is granted with costs.
2. The dismissal of
fourth respondent is declared to be fair.
______________
DAVIS
JA
I
agree
_______________
TLALETSI
AJA
I
agree
________________
NDLOVU
AJA
Date
of Judgment: 20 June 2008
Date
of Hearing: 29 May 2008
Appearances
For
the appellant
Advocate A T Myburgh
Instructed
by
Perrott, Van Niekerk, Woodhouse, Matyolo Inc
For
the respondent
Advocate N Sikhakhane
Instructed
by
Legal Aid Board Louis Trichardt