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[2010] ZALCJHB 26
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Edcon Group Pty (Ltd) v Commission for Conciliation Mediation And Arbitration and Others (JR1238/09) [2010] ZALCJHB 26 (4 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
REPORTABLE
CASE NO: JR 1238/09
In
the matter between:
EDCON
GROUP PTY (LTD)
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
JACKSON MTHUKWANE N.O
Second
Respondent
ANNA
THLOALE
Third
Respondent
JUDGMENT
BHOOLA
J:
Introduction
[1]
This
i
s an
application in terms of section 145 (1
)
of the Labour Relation
s
Act, 66 of 1995 (
"
the
LRA
"
),
to re
v
ie
w
and set aside th
e
arbitration a
w
ard
issued by the Second Respondent ("the Commissioner") dated
7 April 2009.
Factual
background
[2]
The third respondent (“the employee”) was employed by the
applicant as a Retail Associate at its store in Pretoria
North. On 17
June 2008 a security officer at the store, Emelda Tshikovhi, removed
a jacket from among other staff clothes after
noticing that the price
tag was still affixed to it. The employee identified the jacket
as hers. Tshikovhi removed the jacket
and informed the manager, Dudu
Dlamini. She told the employee it would only be returned to her if
she could produce proof of purchase.
The employee contacted her
husband to confirm that he had purchased the jacket, and when he
arrived they proceeded to Dlamini’s
office. The employee asked
Dlamini to use her staff card to verify the purchase on the system
and explained that she had purchased
it from the Wonderpark branch of
the applicant. An altercation arose following which the employee and
her husband left the store.
[3]
The employee was charged with five counts of misconduct as follows:
F
ailure
in your duty to demonstrate acceptable conduct in that:
1.
On the 17
th
of June 2008 at Edgars PTA North, you failed to adhere to company
search procedure when you left the store without being searched.
2.
On the 17
th
June 2008 at Edgars PTA North, you opened the backdoor to allow an
outsider (husband) to enter the store whilst the store was closed
without the permission of the Security Officers/Management.
3.
On the 17
th
of June at 2008 at Edgars PTA North, you failed to adhere to Company
Workplace Rules by not declaring merchandise that you brought
into
the store.
Failure
in your duty to demonstrate acceptable conduct in that:
4.
On the 17
th
of June 2008 at Edgars PTA North, you conducted yourself in an
improper and disgraceful manner when you and your husband
intimidated,
harassed and attempted to assault the Security Officer.
5.
On the 17
th
of June 2008 at Edgars PTA North, you removed merchandise from the
store without authorization whilst in the presence of an outsider
(husband).
[4]
Following a disciplinary enquiry she was found guilty and a sanction
of dismissal was imposed for charges 2 and 4. She challenged
only the
substantive fairness of her dismissal in a referral to the first
respondent. An arbitration was held pursuant to which
the
Commissioner found her dismissal to have been substantively unfair
and ordered the applicant to reinstate her with no loss
of benefits
and back pay.
Grounds
of review
[5]
The applicant relies on the following submissions to support of its
application:
Finding
in regard to “tacit permission”
[6] The Commissioner
misdirected himself and committed a gross irregularity:
(a) when he found that
the security officers in fact gave tacit permission to the employee
to open the door and allow her husband
in;
(b) by
holding that the security officers failed to show their disapproval
of the employee’s breach of the security procedure.
[7]
This finding is not supported by the evidence. The testimony tendered
on behalf of the applicant’s witness, Tshikovhi,
was that she
did not open the door to the employee’s husband as she did not
know him. Her evidence was that only persons
whose identity is known
to the security officers or who had an appointment were allowed to
enter and that the breach occurred at
closing time when the store was
particularly vulnerable. Tshikovhi’s evidence was corroborated
by Marriam Dubezane, another
security officer, who testified that
they were not afforded the opportunity to search the employee’s
husband, and that she
would not have opened the door to him.
[8]
More importantly, it was not even the employee’s version that
her husband was granted tacit permission to enter without
being
subjected to a search. This moreover contradicts her version that the
security officers opened the door to her husband at
around 18:00. The
undisputed evidence of all three security officers who testified at
the arbitration was that the husband entered
the store before closing
time. This contradicted the employee’s evidence that he arrived
at 18:00. All three testified that
they were at the door when he
entered and did not open the door to him nor did they search him. The
applicant’s evidence
on the issue was not contradicted whilst
further contradictions were apparent in the evidence of the employee
and her husband regarding
the details of his entry into the store.
Failure
to provide reasons
[9]
The Commissioner failed to provide reasons for his finding. This
renders the award fatally defective and means that the applicant
was
denied a fair hearing.
[10]
The Labour Court has deemed a review in such circumstances to be
justified. In
Vodacom
Service Provider Co (Pty) Ltd v Phala and others
it
was held:
[1]
“
This
brings me to the other grounds of review which are about how the
Commissioner dealt with the evidence etc. It is trite law
that the
Commissioner is required to give brief reasons for the award that he
or she has made. In giving those reasons a
Commissioner must
deal with the issues that arose and where there are conflicting
versions, the Commissioner must deal with them
and indicate in the
award which version is acceptable and which version is rejected. The
Commissioner must also give reasons for
arriving at a specific
conclusion…”
[11]
Similarly, in
Greater
Letaba Local Municipality v Mankgabe NO & others
[2]
the Labour Court held:
“
The
striking feature of the award …..is that virtually no reasons
were given to underpin the decision reached. The conclusion
was
derived from a vacuum. The arbitrator merely and briefly recited the
argument presented to him. He did not at all apply his
mind to the
argument in order to take the consumers of his arbitration award down
the avenue of his reasoning process to the ultimate
outcome of his
mental digestion of the material available to him. There is no
objectively rational connection between the award
he made and the
legal argument presented to him. Stepping on the huge crack between
the two extremes was no stroll in the park.
Accordingly an award
which cannot be rationally justified cannot be allowed to stand on
review. In my view the Commissioner committed
a gross reviewable
irregularity”.
[12] Taking the above
principles into account Mr Kgokong, appearing for the applicant,
submitted that the Commissioner had committed
a gross irregularity in
his analysis of the evidence and that the award stood to be set aside
on this ground alone. In this
regard he submitted that whilst
the security officers did not request the employee’s husband to
subject himself to a search,
they tendered an explanation for their
conduct and this cannot be faulted. Dlamini’s evidence on this
issue was that the
employee and her husband could not be searched for
the following reasons:
“
It
is because they were in fighting mode. The security could not stop
them because
they
wanted to hit the same security officers and they are ladies and it
was a man wanting to hit the ladies, so what the ladies
were supposed
to do because those were ladies and he was a man”.
[3]
[13]
In these circumstances it was not possible for the security officers
to conduct a search, but the Commissioner disregarded
this evidence.
Finding
in regard to “threatening behaviour”
[14]
The Commissioner’s finding on this charge is not rational and
cannot be justified on the material before him. His award
is based on
the ill-informed basis that Dlamini only witnessed the husband, Mr
Thloale’s attempted assault on Tshikovhi,
although under
cross-examination she confirmed that she had witnessed both the
employee and her husband attempting to assault Tshikovhi.
Her
testimony was corroborated by Tshikovhi. Moreover, the attempt
to distinguish between the conduct of the employee and
her husband
was immaterial in that they acted with a common purpose.
[15]
The Commissioner’s approach in this regard constitutes a
misdirection. He should have had regard to the employee’s
admission in cross-examination that she and her husband argued with
Tshikovhi after she insisted that the employee produces proof
of
purchase.
Reinstatement
not appropriate
[16]
The remedy of reinstatement was not justified on the material before
the Commissioner. In exercising his discretion he should
have taken
into account the undisputed evidence regarding the employee’s
conduct threatening the safety and security of other
employees at the
store but instead he downplayed the seriousness of this conduct.
The employee conceded in cross-examination
that an argument ensued
between her and Tshikovhi, and evidence was led that she had uttered
verbal insults against the latter,
in particular calling her a Venda,
which was considered derogatory.
[17]
The Commissioner failed to take into account that the harmonious
working relationship between the parties was destroyed by
the
employee’s conduct. He failed to attach any weight to the
evidence led by the applicant that the employee and her husband
were
in a violent mood, and downplayed the seriousness of the misconduct,
thereby committing a gross irregularity in the proceedings.
The
Commissioner committed misconduct in his duties in failing to apply
his mind to the evidence, and no reasonable decision maker
presented
with the uncontested evidence would have reached the conclusion he
did. He attached no weight to the fact that the policy
regarding
proof of purchase was well known to the employee, who had been
employed by the applicant for seven years. On the contrary,
he
attached too much weight to the fact that the terminals were offline
and the employee’s request that the sale of the jacket
could be
verified from the transactions on her staff card was not addressed.
[18]
Mr Kgokong, in amplification of his heads submitted in oral argument
that the Commissioner further misdirected himself in putting
leading
questions to the employee during her testimony when he should have
remained neutral as an adjudicator. It was also submitted
that he
failed to apply his mind to the contradiction in the evidence of the
employee that she left the store first and her husband
followed while
his evidence was that he was not searched as he left the store and
was not aware of whether his wife had been searched
because she was
behind him.
Analysis and
evaluation
[19]
It is by now trite that the test on review is not whether the
Commissioner was wrong or made an irrational decision, but whether
his decision was so unreasonable that it could not have been made by
a reasonable decision maker:
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others.
[4]
Reasonableness is pertinent to both the outcome and process of the
arbitration. In essence a review under section 145 (1)
and (2)
of the LRA requires that the outcome of arbitration proceedings must
fall within a band of reasonableness, but if the process
is tainted
(for instance by the arbitrator failing to take material evidence
into account, or having regard to irrelevant or inadmissible
material, or commits another gross irregularity during the
proceedings such as an error of law), the decision can be set aside
regardless of the fact that the outcome is reasonable.
[20] In
Sidumo
Ngcobo
J emphasized the role of reasonableness in relation to the process,
and its impact on the outcome, in the following terms:
“
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 or her
mandate. In so doing…the Commissioner’s action
prevents
the aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct
of the
arbitration proceedings as contemplated in section 145 (2)(a) (ii) of
the LRA. 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”.
[5]
[21]
The Commissioner’s finding on the first charge in respect of
which the sanction of dismissal was imposed was that they
were
expecting Mr Thloaele; that the security officers failed to exercise
their powers and authority to stop him from entering;
and that their
failure to do so was tantamount to granting tacit permission for him
to enter. In reaching this conclusion he relied
on the evidence of
one of the officers, Dubezane, who testified that “
the
applicant had told them that her husband was coming to the store. She
stated that when Mr Thloaele entered the store she knew
it was the
applicant’s husband”.
They
did not show their disapproval of the employee’s alleged
conduct in opening the door by confronting her about the breach
of
security procedure. Indeed if the breach was as serious as was
alleged they would have done so. Therefore, on the applicant’s
own evidence, the store was already closed and he was not a stranger.
[22]
The Commissioner correctly was justified in accepting the employee’s
evidence that she saw her husband in the store immediately
after
18:00 when the store was closed and after “
they
were opening the door for him
”.
Dlamini’s evidence was that when she confronted the security
officers about who had let Mr Thloaele in they blamed
the employee.
However, on Dlamini’s own evidence only security officers were
authorised to open the back door and when the
employee and her
husband left they did not refuse to be searched nor did the security
officers subject them to a search. Insofar
as this conflicts with the
version of the security officers, it is apparent from the award that
the Commissioner rejected their
evidence and accepted that of the
employee and her husband on the probabilities. Mr Thloaele’s
evidence was that when he
arrived at the store after his wife had
called him to verify the purchase of the jacket, a security officer
opened the door for
him. The Commissioner cannot in the circumstances
be said to have acted improperly or made a finding that could not
have been made
by a reasonable decision maker in the circumstances.
[23]
In my view, based on the evidence before him, the Commissioner was
justified in making the finding that the security officers
“
want
to pile all the blame for their dereliction of duty on the applicant
when they did nothing to prevent the violation of security
procedures”.
This was based
on the admission by Tshikovhi and Dubezane that they did not request
Mr Thloaele to sign the attendance register
when he came in, and that
they did not inform him when he left that he needed to be searched.
He was further similarly justified
in rejecting the evidence of
Dlamini that they failed to act because they were women and were
afraid. Indeed if they seriously
felt under threat this would have
justified decisive action, including seeking police intervention, and
in the circumstances it
can only mean that there was not anything
sufficiently threatening to warrant such action. Insofar as evidence
was led about the
“
fighting mood
”
that prevailed there was no evidence that circumstances were so tense
or violent that the employee and her husband could
not have been
subjected to a search or that their conduct was violent, intimidatory
or threatening. It can hardly be disputed that
the security officers
as is implicit in their job descriptions had an obligation to act in
the circumstances and cannot seek to
blame the employee for their
failure to do so. In my view therefore the finding on this
issue was justified and cannot be
said to have arisen as a result of
a reviewable irregularity.
[24]
In any event, even if the employee’s misconduct in this regard
is accepted, I agree with Mr Lekala, appearing for the
third
respondent, that in the circumstances (i.e. that the husband was not
an employee; the employee had an unblemished service
record of seven
years; the applicant had an opportunity to confirm that the jacket
had been purchased but refused to do so; and
the employee
subsequently proved ownership), dismissal was too severe a sanction.
[25]
In regard to the second charge for which dismissal was held to be
justified, the Commissioner had regard to the finding of
the
disciplinary enquiry that the applicant was only found guilty of
attempted assault on
one
of the security officers. In fact, Dlamini’s testimony was that
she followed the employee and her husband to the back door
as they
left and she saw
him
attempting to assault Tshikovhi and heard the employee swearing.
Tshikovhi’s testimony was that the employee tried
to slap
her but she grabbed her hand, and thereafter another security officer
grabbed her from behind in order to restrain her.
Dubezane, in cross
examination also admitted that the employee and Tshikovhi just argued
but “
did not engage in any
physical fighting”
. Daphney Nkwe
testified that she was present when Mr Thloaele entered the store and
that at around 18:00 she heard people arguing
and went to the back of
the store. She saw Mr Thloaele carrying a jacket and followed by the
employee and Dlamini. She heard the
employee calling Tshikovhi a
Venda and Mr Thloaele attempted to assault Tshikovhi but she pulled
her out of his reach. The finding
by the Commissioner in the light of
these facts that Tshikovhi’s version about the attempted
assault was not corroborated
by Dlamini, Nkwe or Dubezane was
reasonable and justified and did not arise from a failure to apply
his mind or any other gross
irregularity. In these circumstances
(even if Mr Kgokong is correct in submitting that the Commissioner
erroneously referred to
“corroboration” when the three
witnesses were not at the incident simultaneously and could not have
been expected to
have corroborated one another’s versions),
there was no basis on which Tshikovhi’s evidence should
have been
preferred. The Commissioner was justified in
preferring the version of the employee and her husband to that of
Tshikovhi
and did not commit any irregularity or misconduct in doing
so.
[26]
The Commissioner appears moreover to have applied his mind to the
fact that Dlamini had the opportunity to prevent the incident
from
escalating. She could have verified the purchase on the system but
declined to do so. Even if it was not possible at the time
she could
have undertaken to do so the following day. In circumstances where it
was common cause that the jacket in question was
not available in the
Pretoria North store and the employee explained that she purchased it
at another store, Dlamini’s conduct
was inexplicable and
exacerbated the conflict. In fact it appeared from the
employee’s evidence (although this was
not referred to
explicitly by the Commissioner) that a previous misunderstanding had
arisen between the employee and Dlamini following
which her husband
had telephoned Dlamini to ask her to apologise. His evidence at the
arbitration was that when he asked Dlamini
to assist in verifying the
purchase of the jacket from the system or calling a senior manager,
she did nothing, prompting him to
take the jacket and walk out of the
store. His frustration as well as that of the employee must have been
apparent to the Commissioner
from the drama that unfolded and which
could easily have been prevented by Dlamini had she been prepared to
co-operate.
[27]
In regard to the derogatory utterances, the Commissioner had regard
to both versions which he found to be equally balanced.
This finding
is unassailable.
[28]
Having regard to the record the submission that the Commissioner led
the witness and so influenced the proceedings in my view
cannot be
sustained on the facts. His approach reflected an attempt to clarify
the facts and cannot constitute an irregularity.
[29]
The applicant submitted that dismissal was appropriate for serious
misconduct in the form of breach of its security procedures
notwithstanding that this was the first offence. Moreover, the
Commissioner paid no regard to the employee’s lack of remorse
in ordering her reinstatement. In evaluating the evidence on balance
of probabilities a reasonable decision maker would have concluded
that the employee committed serious misconduct and that her dismissal
was therefore appropriate. I do not agree. In my view the
Commissioner properly applied his mind to the evidence and
submissions before him in reaching the conclusion that the dismissal
was substantively unfair. In the circumstances it cannot be said that
the decision to reinstate with back pay was so unreasonable
that it
could not have been made by a reasonable decision maker on the
evidence presented to him.
[30]
In applying the
Sidumo
test as set out above to the facts it is apparent from the award that
the Commissioner applied his mind to all the material facts
and
cannot be said to have committed misconduct in the exercise of his
duties or any gross irregularity that would have tainted
the outcome
or the process by which he reached his conclusion. He rendered a
carefully considered and reasoned award in which he
dealt with all
the evidence presented to him, conducted a balancing exercise on the
probabilities, and exercised his discretion
to determine the outcome
in a manner exemplified by fairness and the delivery of justice in
line with his duties and obligations
as a Commissioner. His
award must therefore stand.
[31]
In the premises, I make the following order:
The
review application is dismissed with costs
______________
Bhoola
J
Judge
of the Labour Court of South Africa
Date
of hearing: 28 October 2010
Date
of judgment: 4 November 2010
Appearance:
For
the Applicant: Mr M Kgokong, Kgokong Nameng Tumagole Inc.
For
the Third Respondent: Mr N Lekala, Union Official.
[1]
(2007)
28 ILJ 1335 (LC) at para 20.
[2]
[2007] ZALC 74
;
[2008]
3 BLLR 229
(LC) at para 20.
[3]
Applicant’s
emphasis.
[4]
(2007)
28
ILJ
2405
(CC).
[5]
Supra
at para 268.