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[2009] ZALCJHB 33
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Edgars Consolidated Stores Ltd v Commission for Conciliation Mediation And Arbitration and Others (JR819/08) [2009] ZALCJHB 33 (10 July 2009)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN
THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
NOT
REPORTABLE
DATE:
10 JULY 2009
CASE
NO: JR819/08
In the
matter between
EDGARS
CONSOLIDATED STORES
LIMITED
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
First
Respondent
RAYMOND
DIBDEN N
O
Second
Respondent
MUHRCCHAW
Third
Respondent
MARY
JANE
MAHLANGU
Fourth
Respondent
J U
D G M E N T
DE
SWARDT, A J
:
This
is an application for the review of an arbitration award made by the
second respondent, a commissioner who acted under the
auspices of the
first respondent, in hearing the arbitration between the current
applicant and the fourth respondent. The
award by the
commissioner, i.e. the second respondent, was handed down on 24 March
2008.
The
applicant in this matter has applied to have the arbitration award
reviewed and set aside, together with certain other relief.
The
criteria which have to be satisfied when an application for review is
brought, have now been authoritatively set out in the
matter of
Sidumo and Another v Rustenburg Platinum
Mines Limited and Others
2008 (2) SA 24
(CC).
In
terms of that decision, it is clear that the essential matter for
determination is whether or not the award is one which no reasonable
commissioner would have made on the evidence which was adduced during
the proceedings.
I have
had a close look at the arbitration award and I have had regard to
the record of the proceedings before the commissioner.
In this
regard, it must be pointed out that a portion of the transcript of
the evidence appears to be missing. In particular,
the evidence
in chief of Mr Khumalo, who testified on behalf of the applicant,
i.e. the employer, at the proceedings before the
commissioner, have
not been transcribed inasmuch as the tape containing that evidence
has apparently gone astray.
Both
of the parties were happy to proceed with the matter on the basis
that such evidence is not on record. The evidence of
the
security guard, Mr Khumalo, was in fact on record as far as his
cross-examination is concerned.
The
commissioner in this matter was faced with two essentially
conflicting versions of the events. Mr Khumalo, who was a […..]
year old security guard in the employ of the applicant, testified
that he had had a dream the night before the incident occurred
to the
effect that he was going to have trouble with the fourth respondent
employee. He testified that on the day in question,
he saw the
applicant approaching the door on her way out to knock off. He
stopped her and said that he wanted to search her.
She was
quite amenable to a search being conducted and he took her across to
one of the cubicles where people try on garments.
He instructed
her to wait there while he went in search of a female security
officer to body search her.
Mr
Khumalo said that while he was walking away to find the female
security officer, he kept looking back over his shoulder to where
the
fourth respondent was supposed to be sitting. He saw her get up
and run across the room towards the stock room.
He appears to
have abandoned his idea of finding a female security officer, because
he decided to pursue the fourth respondent.
He found her in the
stock room where she was allegedly fiddling around near some boxes.
He went there and found a piece of
ladies’ underwear, to wit a
panty. He confronted her with the item and said that she was
intending to misappropriate
it.
The
fourth respondent’s version of events is slightly different.
She says that she was going to knock off early on the
day in
question, because she had a doctor’s appointment. As she
was coming out of the door, or was approaching the
door to go, Mr
Khumalo said to her that he wanted to search her. She agreed
and while he went off to find the female security
officer, she was
instructed to wait near the cubicle. However, she wanted to buy
some shoes for her children, in particular,
a pair of tackies which
had been marked down. The tackies in question had previously
costs R59,99 and these were now marked
down to R5,00. She says
that she was left standing between the fitting room and the stock
room. She was facing the
tackies. She went and put them
down next to a Mr Nkosi and said that she wanted to take them later.
The
fourth respondent explained in her evidence that the queue was quite
long and she could not really afford to wait until everybody
else had
been served, because she would otherwise be running late for her
doctor’s appointment, so she put the tackies in
what she
thought was a safe place. While she was in this room, she saw
Mr Khumalo come past her. She said he ran past
her. He
went into what they call the hanging room, and when he came out, he
had a piece of ladies’ underwear, i.e.
the panty, in his hands
and accused her of having wanted to misappropriate it.
A
disciplinary enquiry was held, in the course whereof the fourth
respondent was found guilty and she was summarily dismissed.
When the matter came before the commissioner, he found in favour of
the fourth respondent, made an award declaring her dismissal
to be
substantively unfair and ordered that she be reinstated.
The
commissioner summarised the evidence and it is apparent that he was
fully aware of the fact that there were essentially two
conflicting
versions of the events on the day in question. The
commissioner, however, was mindful of the fact that on the
evidence
before him which was common cause between Mr Khumalo and the fourth
respondent, there had been a measure of bad blood
between the two.
The fourth respondent had apparently complained to management that Mr
Khumalo had been harassing her and
Mr Khumalo acknowledged that he
was not on good terms with the fourth respondent.
On a
conspectus of all of the evidence before him and having seen and
heard the witnesses who testified before him, the second respondent
came to the conclusion that the applicant had not proved its case.
He found in favour of the fourth respondent because he
accepted her
evidence. In essence, he made a credibility finding in her
favour. In particular, at page 21 of the record
the
commissioner stated the following in his award:
‘
There
was a suspicion of dishonesty but no hard evidentiary facts to
support a conclusion that the applicant’s actions were
an act
of misconduct related to misappropriation of company property.’
Further
down the page the commissioner says ‘
The
evidence, when assessed on the balance of probability, favours the
applicant.’
(And I pause to
mention that when he refers to the applicant, obviously the applicant
before him was the fourth respondent
in the matter now before me.)
He carries on to say:
‘
And
the respondent fails to carry the burden to show that the dismissal
of the applicant satisfied the relevant factors set out
in Schedule 8
as listed above in respect of substantive fairness. The
respondent’s submission of the applicant being
the guilty party
is not sustainable as the only probable version of how the item of
underwear could have found its way into the
room in question and did
not show how other staff and/or Ginger could have been discounted
from the probabilities.’
(Ginger is apparently Mr Khumalo’s first name)
As
long ago as in 1948 the then Appellate Division of the High Court of
South Africa in the matter of R v Dhlumayo
(1948 (2) SA 678
(A) at
705) referred to the fact that a trial court has advantages which a
court of second instance can never have, in seeing and
hearing
witnesses who testify in a matter. The trial court is steeped
in the atmosphere of the trial, as his lordship Mr
Justice Davis
said, and is in a far superior position when it comes to making a
credibility finding than a court of second instance
can ever be.
It is for that reason that credibility findings made a presiding
officer in a matter are very seldom disturbed.
There has to be
clear and cogent evidence on the record that the credibility finding
was wrong and unsustainable before it will
be interfered with.
I have
scrutinised the record of this case carefully and I can find no
indication that the commissioner’s credibility finding
is
unsustainable. I can also find no misdirection or irregularity
in the proceedings and indeed no misdirection or irregularity
has
been referred to by either of the parties. In the
circumstances, I am satisfied that the application brought by the
applicant for the review of the matter cannot succeed.
Accordingly I make the
following Order:
1.
The applicant’s application for the review of the arbitration
award issued
by the second respondent under case number MP5551-07 is
dismissed, with costs.
2.
The aforesaid arbitration award issued by the second respondent is
confirmed.