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[2009] ZALCD 8
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Ngidi v Relyant Trading (Pty) Ltd t/a Bears Stanger and Others (D140/07) [2009] ZALCD 8 (18 May 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN DURBAN
CASE
NO: D140/07
REPORTABLE
In
the matter between:
SIPHIWE
MAKHOSONKE NGIDI
APPLICANT
AND
RELYANT
TRADING (PTY) LTD
t/a
BEARS
STANGER
1
st
RESPONDENT
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
2
ND
RESPONDENT
COMMISSIONER
LOUIS EPSTEIN
3
RD
RESPONDENT
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review an
arbitration award of the Third Respondent (the Commissioner) under
case number KNDB1 1440/06
and dated 29
th
January 2007 (the award). In terms of the award the Commissioner
found that the dismissal of the Applicant (the employee) by the
First
Respondent to have been both procedurally and substantively fair.
[2]
The Applicant applied for condonation for
the late filing of his heads of argument. That application was not
opposed and was accordingly
granted.
[3]
The First Respondent has retail stores
throughout South Africa. These include a chain of furniture and
appliance stores trading
under the name Bears Furnishers. The present
matter involves Bears Stanger located in Stanger in KwaZulu Natal.
The matter in particular
involves the stock that went missing in the
warehouse which is located underneath the store at Stanger.
[4]
The employee, who was prior to his
dismissal employed by the First Respondent as a general assistant
during August 2006, was charged
with the following:
“
Unauthorised
removal and/or assisting with the unauthorised removal of Company
stock to the value of R16, 506.83 from the Stanger
branch warehouse
between 17 February 2006 and 18 July 2006.”
[5]
The employee’s duties, at the time of
his dismissal, included the physical movement of stock, unloading new
stock from delivery
vehicles, assisting with deliveries from time to
time, and assisting with cleaning and displaying goods in the store.
[6]
The disciplinary hearing which was chaired
by Mr Phillip Enoch, the regional administration manager of the First
Respondent’s
KwaZulu Natal region found the employee guilty and
ordered that he be dismissed. It was subsequent to the dismissal that
the employee
referred an alleged unfair dismissal dispute to the
Commission for Conciliation, Mediation and Arbitration (CCMA). The
Commissioner
conducting the arbitration proceedings under the
auspices of the CCMA found the employee guilty as charged and
confirmed the dismissal.
[7]
The charges against the employee related to
the discovery of certain missing stock from the First Respondent’s
warehouse.
The stock that went missing included defy stove, a defy
240 litre fridge, a defy 255 litre fridge, four defy 305 litre
fridges,
two matrix entertainment units, a repair coffee table, a
claudia coffee table, one LG 51cm television and one Tedelex 54cm
television.
[8]
The person who was responsible for the safe
keeping of the warehouse keys was Ms Valen, the store clerk. When
confronted by Ms Mahomed
the store’s branch manager, who came
to know about the missing stock during his leave, Ms Valen stated
that she did not know
how it happened but also indicated that she had
previously and/or more than one occasion given the keys to the
warehouse to the
employee, Sagren Pillay, the store's driver, and
Nicholas Mntambo (“Mntambo”), the general assistant.
[9]
Pursuant to the discovery of the missing
stock Penny Crous (“Crous”), the regional manager,
requested employees to undergo
a polygraph test. A number of
employees underwent the polygraph test including the employee. In
fact the employee underwent two
tests; the first one was conducted in
English and the second one in his mother tongue, IsiZulu. The
employees who agreed to undergo
the test were, Mahomed, the employee,
Velan, Pillay and Mntambo, including Krish Govender (Govender), and
Bishnu Maharaj, both
of whom worked on the shop floor as sales
consultants. The trainee, Jonathan Govender (the trainee), who worked
in the store’s
dispatch office was also subjected to the
polygraph test. The test was conducted by someone from outside.
[10]
Whilst waiting the outcome of the polygraph
test Crous handed over the investigation to Mr Peter West (West), the
regional manager.
He came to the conclusion in his initial
investigation that there had not been a forced entry which could be
blamed for the missing
stock. He arrived at this conclusion on the
basis of the reports which he received from the security company in
charge of the property.
He also concluded that the property must have
disappeared between the 8
th
March 2006, the date of delivery and the date when it was discovered
that the property was missing which is 14 July 2006. The various
printouts obtained from the store’s security company, had not
shown any unauthorized entry into the warehouse after hours
during
this period. It was also for this reason that he concluded that the
stock must have disappeared during the working hours.
[11]
West testified during the arbitration
proceedings that he interviewed and took statements from all relevant
employees who worked
in the store. He eliminated the branch manager
Mahommed because she was away on leave during part of the period when
the stock
went missing. He also excluded her because she receives
incentives based on the profit made by the First Respondent and was
responsible
for the security of the property of the First Respondent
in general. Valen was excluded because she was the custodian of the
keys
and was responsible for the security and accounting of the
stock. He testified that Valen knew that if stock was to go missing
she could lose her job.
[12]
The other person who West excluded from the
suspicion of involvement in the disappearance of the stock was the
general assistance.
He was excluded because according to West, Valen
had told him that she never give the keys to the general assistance.
[13]
The trainee was interviewed because
according to West even though he may not have been given the keys at
any stage, he may have
taken them from Valen’s bag without her
been aware. West further testified that looking at the size of the
stock that went
missing he came to the conclusion that more than one
person must have been involved in the removal of each item. He also
stated
that he did not base his conclusion on the polygraph test but
on his investigation.
[14]
The missing items had been removed over a
period of time and not all at once. In this regard, everyone who had
had access to the
warehouse confirmed that if all the stock had
disappeared at once, they would definitely have noticed as it would
have left a very
noticeable gap in the warehouse.
[15]
At least two employees had been involved in
the unauthorized removal of the stock, as the nature of the items in
question were such
(for example, fridges and entertainment cabinets)
that it would be impossible for one person to remove them unaided.
Similarly,
the items would have had to have been removed by a vehicle
and not by hand.
[16]
At the time the polygraph test results were
released West had already concluded his investigation in terms of
which according to
him, there was overwhelming evidence pointing the
fact that Pillay and the employee were, the two people, responsible
for removing
the stock from the ware house. The result of the test
confirmed the suspicion of West that the employee was responsible for
missing
stock. The results of the polygraph test confirmed that the
employee was lying when he said that he knew nothing about the
missing
property, according to West. It was pursuant to that
investigation that the employee was charged.
Grounds for review and
the arbitration award
[17]
The essence of the employee’s
complaint against the Commissioner’s arbitration award is that
in making the award he
committed gross irregularity, misconduct and
breached the employee’s constitutional right to procedural
administrative action.
The employee further contends that the award
is not justifiable and that the Commissioner placed undue reliance on
the results
of the polygraph tests.
[18]
In dismissing the employee’s claim
the Commissioner accepted that West had conducted a comprehensive
investigation into the
missing stock and that he identified those who
were responsible through the elimination process. He further found
that the suspicion
which West had was confirmed by the polygraph
test.
The test for review
[19]
The broader test for review is set out in
Sidumo v Rustenburg Platinum Mines Ltd
&others
(2007) 12 BLLR 1097
(CC)
,
and it concerns an inquiry into whether or not the arbitration award
is a decision which a reasonable decision maker could not
reach. As
concerning gross irregularity Ngcobo J in
Sidumo
held that:
“
It
follows therefore that where a commissioner fails to have regard to
material facts, the arbitration proceedings cannot in principle
be
said to be fair because the commissioner fails to perform his
mandate. In so doing the commissioner’s action prevents
the
aggrieved party to have its case fully and fairly determined. This
constitutes a gross irregularity in the conduct of the arbitration…
And the ensuing award falls to be set aside not because the result is
wrong but because the commissioner has committed a gross
irregularity
in the conduct of the arbitration proceedings.”
[20]
In the present instance the above test of
determining whether or not there was an irregularity is applied in
the context of determining
the application of the legal principles
relating to circumstantial evidence.
[21]
The legal principles governing reliance on
circumstantial received attention from this Court in the decisions of
National Union of Mine Workers &Others
v Commission for Mediation, Conciliation and Arbitration (2007) 28
ILJ 1614 (LC)
and
National
Union of Metal Workers & Anotherv Kia Motors (2007) 28 ILJ 2283
(LC)
. In those decisions the Court in
relying on the authority of Hoffman & Zeffert, SA Law of Evidence
(5ed) at 93, held that the
inference to be drawn from circumstantial
evidence must be consistent with all the proven facts because if it
is not then the inference
cannot be drawn. In the
Kia
Motor’s case
the Court, held that
a distinction should be drawn between a permissible inference, a mere
conjuncture and speculation. It was
further held in that case that
the onus is discharged if the inference advanced is the most readily
apparent and acceptable from
a number of other possible inferences.
See also
AA Onderlinge Assuransie-
Assosiasie BPK v De Beer
1982 (2) SA 603
(A)
.
Evaluation of the
award
[22]
It is clear that the case which the first
respondent placed before the Commissioner was based on circumstantial
evidence. The Commissioner
drew the inference that the employee was
guilty of theft of the missing stock on the evidence of West which
was essentially based
on his investigation. The question that then
arises is whether the inference drawn that the employee was
responsible for the disappearance
of the stock excluded all other
reasonable inference that could be drawn.
[23]
In my view the inference drawn that the
employee was guilty of theft of the missing stock is nothing but
speculation not supported
by objective facts. It is also my view that
the evidence which was placed before the Commissioner was
insufficient to form a basis
upon which an inference of guilt on the
part of the employee could be based. The web of circumstances in this
case do not support
the conclusion reached by the Commissioner.
[24]
The First Respondent argued that there was
no evidence that Mntambo, the trainee or the standby driver had
unsupervised access to
the ware house. It was the employee Pillay and
Valan who had access to the warehouse. Mohammed was excluded as
indicated earlier
because she was the manager and was on leave during
the period in question. The reason for excluding Valen was because
she is the
one who alerted the branch manager about the missing
stock.
[25]
The Commissioner in my view failed to
appreciate the task before him and accordingly misconceived the
application of the law relating
circumstantial evidence. He relied on
the evidence of West who indicated that he did not rely on the
polygraph test but that it
confirmed his suspicion. The suspicion
which West had regarding the employee was based on what he was told
by Velan. What Velan
told him is that she had given the keys of the
warehouse to a number of people including the employee during the
period when it
is estimated that the stock may have gone missing.
There is no evidence indicating for what period of time the employee
had possession
of the keys. The answer to this question was important
because it would have served as a factor pointing to the fact the
employee
had the opportunity to load the stock.
[26]
The issue of allowing the employee access
to the warehouse does not exclude that other people could not have
had access even though
unauthorized. Had the Commissioner applied his
mind and had he appreciated that he was dealing with circumstantial
evidence he
ought to have weighed the possibility that some one could
have had access to the keys even though he or she may have not
received
them from Valen. In this respect West testified that he did
suspect that the trainee may have taken the keys out of Velan’s
hand bag when she left it unattended. This peace of evidence is
important because not only does it indicate that Velan did not
at all
times make sure that the keys do not land in the hands of other
people but also that the possibility exist that they may
well have
landed in the hands of such people who may have exploited the
slackness on the on part of Velan.
[27]
The exclusion of Valen, Mohamed and others,
in my view, bares no logic and is unsustainable to support a view
that the only reasonable
inference is that the employee was
responsible for the missing of the stock.
[28]
In summary I find the Commissioner’s
inference to be nothing but speculation not supported by objective
facts. Had he applied
his mind and appreciated the task that
confronted him he ought to have realized that the investigation of
West was incomplete because
he stopped investigating other
possibilities as soon as he received the polygraph test which he says
he did not rely on but that
it confirmed his suspicion.
[29]
In the light of the above I am of the view
that the Commissioner’s arbitration award stand to be review. I
do not deem it
necessary to remit the matter back to the CCMA for
reconsideration, as in my view there is sufficient evidence on the
record to
assist this Court to make a determination.
[30]
There is no reason in both law and fairness
why the costs should not follow the results.
[31]
In the premises the following order is
made:
(i)
The dismissal of the employee is
procedurally fair but substantively unfair
(ii)
The arbitration award issued by the
Commissioner is amended to read as follow:
“
The
dismissal of the Applicant, Mr Ngidi was procedurally fair but
substantively unfair.
The First Respondent
is order to reinstate the employee, Mr Ngidi into the position he
occupied prior to his dismissal without loss
of benefits and salary.”
(iii)
The First Respondent is to pay costs of the
Applicant.
_______________
Molahlehi
J
Date
of Hearing :
4
th
November 2008
Date
of Judgment :
18
th
May 2009
Appearances
For
the Applicant :
Mr Jafta of Jafta Incorporated
For
the Respondent: Adv C Nel
Instructed
by :
Calitz Crockart
& Associates/Bowman Gilfillan Incorporated