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[2008] ZALCD 20
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Freshmark (Pty) Ltd v SACCAWU and Others (D550/2006) [2008] ZALCD 20 (10 July 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO : D550/2006
In
the matter between:
FRESHMARK
(PTY)
LIMITED
Applicant
and
SACCAWU
First Respondent
FRANCIS
SEEKOEI
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
&
ARBITRATION
Third Respondent
COMMISSIONER
ANTHONY OSLER
Fourth Respondent
JUDGMENT
PILLEMER,
AJ:
[1]
The Applicant in this review application employed the Second
Respondent as a driver for its fresh produce distribution business.
Applicant supplied fresh produce to supermarkets from a central
warehouse. One of its smaller trucks was driven by the Second
Respondent. The incident that gave rise to the Second Respondent’s
dismissal began when a manager of the Applicant, a Mr Booysen,
noticed that the truck to be driven by the Second Respondent appeared
to have a full load. He knew that only eight pallets ought
to have
been loaded on the truck that takes ten pallets. It should not have
looked fully loaded and, suspecting that there was
something sinister
afoot, instead of investigating at that stage, Booysen decided to let
events play themselves out. He made
contact with the Chief of
Security, a Mr Van Rensburg, and together the two of them decided to
follow the truck to see whether
the suspicion that produce was being
misappropriated was justified. With Booysen and van Rensburg on his
tail, but blissfully unaware
that he was being followed, Second
Respondent deviated from his set route and drove the truck into a
local township. He passed
a fruit and vegetable stall that was
selling produce in crates that bore the Applicant’s logo and
which it used in its business
and never sold. Second Respondent was
seen in what appeared to be an attempt to reverse his truck into the
driveway of a little
brown house, change his mind and then approach
the brown house from the other side. The Chief of Security had come
armed with his
camera and captured some of this on film. The two in
the following car did not want to stop at the stall or near the truck
for
fear that this would draw attention to themselves so they drove
past the stall and around the block. They must have been noticed
and
identified because, when they came around the corner, the fruit and
vegetables in the crates magically disappeared and someone
was
running away. All that remained was a pallet and an empty cardboard
box that had once contained pineapples. The box had attached
to it a
piece of reddish plastic that was easily identified as being of the
kind used by the Applicant as part of a colour code
to identify the
destination of its loads. A photograph was taken of the empty lonely
box and its piece of plastic. Second Respondent
and his truck did not
linger either and after a short stop the truck went on its way.
Questions posed to bystanders by Booysen
and Van Rensburg did not
elicit any helpful response and so they decided to go and meet the
truck at its first legitimate destination,
a Shoprite store in
Maitland. The truck had beaten them to it and before any goods
were removed they were able to inspect
the contents, discovering that
Booysen’s assessment had been correct namely that extra produce
had been loaded onto the truck.
The second scheduled delivery was
effected with the car following behind the truck and on the return of
the convoy to the warehouse
the extra produce was receipted. Second
Respondent denied that he had any knowledge of the extra produce on
his truck, contending,
as is common cause, that it was not his job to
load the truck. He did not however dispute the evidence that it is
not unusual for
a driver to assist in loading the truck and on this
occasion he had been seen doing so. He said that he thought that ten
pallets
had to be delivered and it is not his job to check. He gave a
reason for the deviation from his scheduled route. He wanted to
enquire
about the progress of a repair to a CD or DVD machine and
decided to do that on route, which is what he said he did at the
house
where his truck stopped. He denied any connection with the
stallholder who later when Second Respondent testified he claimed to
have identified as someone with the name of Gift and someone he said
who had regularly purchased returned merchandise from the
Applicant
and sold it in the township.
[2]
Not surprisingly after the day’s events Second Respondent found
himself on the wrong side of a disciplinary hearing. He
was found
guilty of “allegedly misappropriating product and/or deviating
from his route” and dismissed. He contended
that the dismissal
was unfair and referred a dispute to the CCMA. It was eventually
arbitrated by the Fourth Respondent, who found
that the misconduct of
“allegedly misappropriating product” which he understood
to be misappropriation or attempted
misappropriation not to have been
proved on the evidence before him. He found that the Second
Respondent was guilty of misconduct
in having deviated from his
route, found that this carried with it an element of dishonesty but
found that this kind of misconduct
did not in itself justify
dismissal. In the result Fourth Respondent found dismissal
inappropriate as a sanction, rendering the
dismissal substantively
unfair. He reinstated the Second Respondent without backpay.
[3]
The arbitration was conducted over a single day. Booysen testified
and the events described above were not put in issue. The
defence in
essence was that the Second Respondent had not attempted to
misappropriate and was not involved in the misappropriation
of
produce because he had no idea extra goods had been loaded on the
truck. He claimed to have deviated from his route to ask about
the
repair to his CD player and then gone on to the scheduled
destination. Nothing had been misappropriated because the extra
produce was returned. Second Respondent called the repairman to
testify to corroborate his reason for deviating and relied on the
evidence of a picker to prove that it was not a driver’s job to
load the truck.
[4]
The Fourth Respondent’s award deals with the two counts
separately. In relation to the first count he says the following
“
The
employee was charged firstly with misappropriation of company
property on 10 February 2006. The employer’s case was
essentially
that the detour of the employee plus the suspicious
events in the township rendered misappropriation probable.
I have
looked at the evidence closely….There are certainly some
suspicious aspects of the employee’s case, such as
the
deviation itself, the extra stock and the incidents at the corner
stall. On the other hand the evidence as to the link between
this and
the alleged misappropriation is tenuous. For instance the connection
between the employee and the behaviour of the persons
at the corner
stall can be interpreted in various ways; the evidence of Mr Ishmael
the repair man was – despite certain questionable
aspects –
not shown to be untruthful; it has not been adequately established
who should be held responsible for the extra
items packed in the
packing house before leaving the premises; and there was no proof of
stock losses or broken seals on the truck.
Each of the incidents
which led to the suspicions of the employer were dealt with by the
union – the stall on the street
corner was explained, the stop
on the road at a private house was explained and there were no other
pieces of evidence to establish
convincingly any dishonesty by the
employee with regard to the employer’s property.”
[5]
Ms Nel, who appeared for the Applicant, contended that the award of
the Fourth Respondent had fallen short of what is required
of a
reasonable arbitrator because he had misdirected himself in relation
to the way he assessed the evidence before him and for
that reason
incorrectly found that the Second Respondent was not guilty on the
first count of misappropriation of property. She
submitted that at
the moment the truck left the premises the theft occurred and that is
the finding that ought to have been made
on the evidence before the
arbitrator. She submitted that the award reveals that the arbitrator
weighed the evidence of Booysen
against the evidence of Second
Respondent even though much of Second Respondent’ version had
not been put to Booysen when
he was cross examined. She pointed out
that this was not the correct approach. The arbitrator also examined
each element piecemeal
and tested each against the explanation, but
did not examine the evidence as a whole to assess the overall
probabilities and, in
particular, misdirected himself in failing to
have regard to the improbability of the sequence of coincidences that
pointed to
guilt with the result, she argued, his approach fell short
of what was expected of a reasonable arbitrator. Mr Grobier for the
Second Respondent on the other hand submitted that the misconduct
that had formed the basis of the first charge was “misappropriation
of the produce” and on the evidence misappropriation as such
had not been proven. The finding that the Second Respondent
was not
guilty of the first count was accordingly in his submission the
correct finding and one to which a reasonable arbitrator
could have
come. Relying on the
Sidumo
test (
Sidumo & another v
Rustenberg Platinum Mines Ltd & aontother
[2007] 12 BLLR 1097
(CC) at paragraph [110] – “Is the
decision reached by the commissioner one that a reasonable
decision-maker could not
reach?”) he contended that there is no
basis for upsetting the award on the first count because the
Applicant’s own
evidence showed that there had been no
misappropriation. I agree with Ms Nel that the arbitrator did not
approach the evidence
correctly in looking at it piecemeal and
ignoring the impact of the improbability of the combination of
coincidences of a deviation
taking place on the very day when the
truck had excess stock and the alleged CD repairman having a house
that was adjacent to a
market stall that was displaying the
Applicant’s products in its crates that it does not sell and
who reacted like criminals
in breaking up the stall and disappearing
when the Applicant’s management arrived. However even with that
misdirection, I
am not satisfied that the evidence goes far enough to
establish an actual misappropriation, which is the charge Second
Respondent
faced. There is a reasonable suspicion that no
appropriation took place because Second Respondent realised that the
game was up
before he could give effect to the plan, but
misappropriation was the charge the Second Respondent faced and the
finding that he
was not shown to be guilty of misappropriation, in my
view, cannot be upset on review.
[6]
The arbitrator found Second Respondent guilty on the second count of
deviation from his route. He assessed what this meant in
relation to
the fairness of the sanction of dismissal. He deal with it thus in
his award;
“
Despite
the lingering suspicion there is no proof that the employee acted
dishonestly in the normal sense of appropriating or attempting
to
appropriate his employer’s property; his misconduct consists in
taking his employers truck on an unauthorised joyride
to attend to
his personal business. Although this is dishonest to a certain
extent, I do not believe that such misconduct justifies
dismissal in
the absence of any loss to the employer and in the absence of any
relevant previous disciplinary record.”
[7]
Ms Nel, relied heavily on the passage in
Sidumo
that emphasises the duty of a commissioner to take into account the
totality of circumstances to decide whether the decision to
dismiss
was fair. She stressed that the commissioner has to consider all
relevant circumstances (paragraphs [78] and[79] of
Sidumo
).
She pointed out that the arbitrator did not take into account the
nature of the business and the effect on the trust necessary
in the
employment relationship, having regard to the Second Respondent’s
duties, of the reasonable suspicion that had been
generated by the
events of the day which meant, in this context, that the trust
relationship had been totally and utterly destroyed
by Second
Respondent’s decision to dishonestly deviate from the
designated route. She also emphasised that there had been
dishonesty
not only in diverting from the route but also in the way in which the
Second Respondent had denied when he testified
that he had known that
he was not permitted to deviate from his route without prior
permission. The arbitrator described this untruthful
evidence as
nonsensical in his award. In essence what she argued was that the
arbitrator had to ask himself was whether the dismissal
was fair
having regard to the destruction of the trust relationship that
followed the deviation from the route on the day in question.
She
contended that he had erred in not asking this question and finding
instead that he had to “look afresh at the question
of
sanction” which is precisely what the judgment in
Sidumo
said an arbitrator should not do (Paragraph [79] – “A
Commissioner is not given the power to consider afresh what he
or she
would do, but simply to decide whether what the employer did was
fair.”)
[6]
I find it impossible to agree with the assessment of the arbitrator
that the suspicion plays no part and after finding that
misappropriation was not proved that all that one is left with is to
decide whether the offence of taking the truck for a joyride
justifies dismissal. Sidumo makes it plain that all the relevant
factors have to be taken into account. This includes the events
giving rise to the suspicion and it follows that the misconduct has
to be judged in context to decide whether it can fairly
be said
that it was such as to destroy the element of trust essential for the
employment relationship to continue. I consider that
what occurred
was not simply a deviation from the route, a joyride. It was a
deviation on a day when the truck had extra unauthorised
goods loaded
on it, it was a day in which the truck stopped near a fruit and
vegetable stall where the persons at the stall behaved
like persons
who had something to hide and it was a day when the deviation from
the route carried with it sinister connotations.
Like any form of
dishonest misconduct, if in the particular context it has an impact
on the employment relationship that is greater
than it might have
been had circumstances been different, the guilty employee can hardly
claim it is unfair for him to have to
bear those consequences.
Misconduct carries with it consequences and if one such consequence
is the actual and reasonable destruction
of trust then dismissal is
the appropriate sanction. I do not consider that a reasonable
commissioner could come to any other conclusion
on the facts of this
case than that the trust relationship had been completely destroyed.
I find that the approach adopted by the
commissioner in treating the
two counts as entirely independent of each other and, having found
the first count as not being proved
of then largely ignoring the
impact of the extra load and peculiar conduct of the market stall
holders on the breakdown of trust
in assessing the impact of the
misconduct that was proved to be artificial and erroneous. In my
assessment the only answer to the
question “Was it fair to
dismiss the Second Respondent from deviating from his route in the
circumstances in which it occurred
on the day in question?” is
yes. That is the question the arbitrator should have asked himself
and not whether deviating
from the route in a vacuum is a dismissible
offence. In the result I find that the review should succeed.
[7]
The Order I make therefore is the following:-
[7.1]
The award of the Fourth Respondent under case no 1401-06FS is
reviewed and set aside
and replaced with an award reading ”the
application is dismissed”.
[7.2]
The First and Fourth Respondents are ordered to pay the Applicant’s
costs
occasioned by their opposition to the review.
_____________________
M
PILLEMER
ACTING
JUDGE OF THE LABOUR COURT
Date
of Judgment: 10 July 2008.
APPEARANCES
For
the Applicant:
Adv C A Nel
instructed by Deneys Reitz
For
the Respondent:
Adv S Grobier
instructed by J Nortje-Kramer Weihmann and Joubert Attorneys