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[2008] ZALCD 17
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Lewis Stores (Pty) Ltd v Commission for Conciliation Mediation And Arbitration and Others (D669/09) [2008] ZALCD 17 (17 October 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Not
Reportable
CASE
NR: D669/09
In
the matter between
LEWIS
STORES (PTY)
LTD
APPLICANT
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
FIRST
RESPONDENT
COMMISSIONER
A ZWANE
SECOND RESPONDENT
MUNTU
JOHANNES
MTHIYANE
THIRD RESPONDENT
JUDGMENT
17
October 2008
PILLAY
D, J
In this review the
applicant employer dismissed the third respondent/employee on the
following charge:
“
Misconduct
in that you demonstrated gross insubordination with action to
institute a group grievance against the Regional Controller
without
verifying the facts of the allegation of a situation where you were
not present. The grievance was instigated on
3 February 2006.
Through your action of involving a customer in an internal dispute,
you have brought the Company name in
ill repute referring to the
incident/s on 3 February 2006.”
The
background to the charge was that an irate customer came into the
employer’s store. In the course of his conversation
with
the customer Charles van Wyk, the regional controller, allegedly
uttered words to the effect that the staff were thieves.
The
employee was not at work when this incident occurred. On
returning to work he found that the staff had gathered together.
Someone spoke about a letter. Petro de Villiers had the letter with
her.
[1]
She read the
letter. Ursula July was interpreting the letter. The letter
recorded the grievance of the staff relating
to the allegation that
they were thieves.
On
the employee’s version, Elizabeth Mitchelson gave the employees
the telephone number of the customer. He called the
customer to
confirm the allegation attributed to Van Wyk. He introduced the
subject with the customer by discussing whether her
purchases had
been delivered and whether she was satisfied with her goods.
[2]
This action, according to the employer, “brought the name of
the company in ill repute”.
In
the opinion of the Court, even before the employee called the
customer, the employer did not enjoy a good name because it had
failed to deliver the customer’s goods. There was no
evidence that the customer reacted negatively to the employee.
The employee gave several evasive explanations for not asking van Wyk
whether he had alleged that the staff were thieves. However,
if the
submission by Mr Jorges, the employer’s representative, that
tensions were running high and that the relationship
was acrimonious,
is accepted, the employee would hardly have accepted Mr van
Wyk’s denial that he did not make the allegation.
The
employee wanted to establish the truth before pursuing a grievance.
The employee was entitled to call the customer to
investigate a staff
grievance. The charge that he brought the company into ill repute is
therefore unfounded and unreasonable in
the circumstances.
With
regard to the first charge, the employee did not “instigate”
a group grievance. In any case that can hardly be
misconduct. The
unchallenged evidence of the employee and of his witnesses was that
the grievance letter was already available
for signing before the
employee arrived at work. None of the witnesses could tell who
drew up the letter except the employee’s
witness, Gladman
Msomi, who said under cross-examination that Petro de Villiers had
drawn it up. That evidence stood unchallenged.
All
three witnesses for the employer testified that they felt
intimidated, but none said that the employee intimidated them.
Mitchelson
said that she was not compelled to sign the grievance
letter, and that she signed it on her own free will.
[3]
She explained that she was intimidated because she was not the first
person to sign the letter. Petro de Villiers testified
that she
did not fear the employee.
[4]
Ursula July said that she “trusted” the employee when he
told her what the contents of the letter was and asked
her to
sign.
[5]
According
to the employee’s witnesses, John Nxumalo and Goodman Nyawu, de
Villiers approached them to sign the letter.
[6]
The employee’s witness, Goodman Msomi, testified that Ursula
July informed him about signing the letter.
The
employer attacked the award on the grounds that the second respondent
commissioner did not weigh the probabilities properly
in the context
where the employee did not cross-examine on material issues and
contradicted his evidence at the disciplinary enquiry.
Mr
Jorges submitted that the employee should have challenged the
evidence and the circumstances in which the employee’s
witnesses signed the letter.
Whether
the employee took the letter to the employer’s witnesses or
they came to him to sign is insignificant once the employer’s
witnesses did not point to the employee as the person who intimidated
them. Asking a colleague to sign a grievance letter
is hardly a
basis to discipline an employee.
Furthermore,
at the arbitration, the employee did not materially contradict his
evidence given at the disciplinary hearing.
His evidence at the
arbitration was that he telephoned the customer as a courtesy and the
customer continued to discuss the grievance.
Whether he raised
the grievance or the customer did is immaterial because the Court has
found that he was entitled to pursue the
investigation into the
grievance in a manner that did not offend the customer. There is no
evidence that he did offend the customer.
Whether he lied or was
mistaken about how the issue arose in the discussion with the
customer is hard to tell as the employee is
old and he could have
forgotten. The incident occurred five months before the arbitration.
The difference in his version at the
arbitration and the disciplinary
enquiry was so subtle that he might not have been aware of its
significance. Even if he
had lied because he knew he was
breaking a workplace rule, the enforcement of the rule was in the
circumstances unfair. His
dishonesty to escape penalty for
breaking a rule
that
was applied unreasonably is therefore excusable.
In
the circumstances the application for review is
DISMISSED
WITH COSTS
.
_____________
Pillay
D, J
Date
of hearing: 15 October 2008
Date
of Judgment: 17 October 2008
Date
of Editing: 22 May 2009
Appearances:
For
the Applicant:
Jose Jorge- Perrott, Van
Niekerk, Woodhouse & Matyolo Inc
For
the Respondent
: In
person
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO
:
D699/06
DATE
:
17 OCTOBER 2008
LEWIS
STORES (PTY) LIMITED
versus
M
J MTHIYANE
BEFORE
THE HONOURABLE MS JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
MR JAFTA
ON
BEHALF OF RESPONDENT
:
NOT ON RECORD
JUDGMENT
REPORT ON
RECORDING
Clear recording.
CERTIFICATE
OF VERACITY
This
is, to the best abilities of the transcriber, a true and correct
transcript of the proceedings,
where
audible
, recorded by means of a
mechanical recorder in the matter:
LEWIS
STORES (PTY) LIMITED v M J MTHIYANE
CASE
NO
:
D699/06
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
JENNY CRAIG
DATE
COMPLETED
:
23 MARCH 2009
NO
OF CDS
:
1
NO
OF PAGES
:
6
[1]
Page
72, line 22-25 of transcript; Page 83, line 17-18 of the transcript
[2]
Page
76, line 1-4 of transcript
[3]
Page
43
[4]
Page
51, line 8 of the transcript
[5]
Page
61 of the transcript
[6]
Page
99 of transcript