About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2010
>>
[2010] ZALCJHB 11
|
|
Metrotoy (Pty) Ltd t/a Graig v Commissioner (Ntsumela) and Others (JR1372/08) [2010] ZALCJHB 11 (17 November 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN JOHANNESBURG
NOT REPORTABLE
CASE NO: JR 1372/08
In the
matter between:
METROTOY
(PTY) LTD
t/a
JOHN
CRAIG
A
pplicant
and
COMMISSIONER
(K S NTSUMELA)
1
st
Respondent
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
nd
Respondent
EDDIE
MANZINI
3
rd
Respondent
JUDGMENT
Molahlehi
J
Introduction
[1]
05This is
an application to review and set aside the arbitration award issued
by the first respondent (the commissioner) under case
number LP 2515
dated 11 June 2008. In terms of that arbitration award the
commissioner found the dismissal of the third respondent
(the
employee) to have been substantively unfair but procedurally fair.
Background
facts
[2]
The
applicant is involved in the clothing retail business. The employee
was at the time of his dismissal employed as regional manager,
mainly
responsible for turnover and ensuring compliance with the applicant’s
policies and procedures. The applicant proffered
several charges of
misconduct against the employee which were triggered by information
which one of the applicant’s managers
received from someone.
The applicant conducted an audit prior to charging the employee and
it would appear that whilst the
applicant conducts its audits twice a
year, that one was conducted as result of the information received
about the activities which
the employee was alleged to have been
involved in. The employee was charged with eight counts of
misconduct. The following
charges were presented against the
employee:
i.
Gross
breach of company policy and procedure regarding the store keys
ii.
Gross of
breach of company policy and procedure. Dishonest behavior and fraud
by manipulating stock
iii.
Gross
breach of company policy and procedure regarding cash- neglect of
duty.
iv.
Gross
breach of company policy and procedure keep asides –neglect of
duty.
v.
Gross
breach of company policy and procedure on lay byes- neglect of duty.
vi.
Gross
breach of company policy and procedure –manual invoice book-
neglect of duty.
vii.
Falsifying
of company documents and wrongful self enrichment alternatively
theft.
viii.
Falsifying
of company documents and gross breach of company policy and procedure
on banking- neglect of duty.
[3]
The offence
in terms of the first charge is that the applicant allowed one of the
managers to carry a full set of store emergency
keys with him.
He was found guilty of this charge. The employee was not found
guilty on almost all the charges except
for the second. The
third charge concerned the allegation that the employee failed to
check one of the employees’ cash
drawer. The charge also
entailed the allegation that the employee failed to keep proper petty
cash slips some of which were found
without supporting documents.
The other allegation under charge three was that the employee failed
to ensure the reconciliation
of and the proper keeping of the petty
cash supporting documentation. In this respect the applicant was
accused of authorizing
petty cash in the amount of R10.00 whilst on
the other hand the supporting voucher indicated the amount as being
R9.95.00.
The fourth charge concerned the allegation that the
employee failed to ensure that the goods which were kept aside for a
customer
had a “kept aside slip” which was against
company policy. The alleged failure to comply with policy under
charge
five arises from the allegation that the employee failed to
ensure that overdue lay byes in Polokwane store are returned to
stock.
The sixth charge concerns the allegation that a loss in
the amount of R30.00 airtime was incurred due to under ringing
of
two stock items, including an amount of R1679.00 being an amount
not accounted for. In the main the seventh charge concerned the
use
of an outside tailor and authorization of petty cash without
verification. The last charge entails the allegation that the
employee failed to detect the absence of over and under baking in the
Polokwane bank deposits and thus failing to comply with audit
trail.
.
The
grounds for review
[4]
The
applicant contends that the commissioner’s arbitration award
should be reviewed and set aside on several grounds. The
applicant
contends in the first ground of review that the commissioner
committed a gross misconduct in that he misconstrued the
evidence
which was presented, resulting in him arriving at an incorrect
conclusion about the testimony of Mr Fiford.
[5]
In the
second ground of review the applicant accuses the commissioner of
gross irregularity, again on the basis that the commissioner
misconceived the evidence which was placed before him. In terms of
this ground the applicant attacks the arbitration award based
on the
finding of the commissioner regarding the use and payment of the
external tailor and the production of invoice.
[6]
The third
ground of review concerns the complaint about bias on the part of the
commissioner. The complaint is that the commissioner
failed to
appreciate that the same bundle before him was the same bundle used
at the internal disciplinary hearing. The ground
is also based
on the criticism that the conclusion reached by the commissioner was
irrational and unjustifiable in that the commissioner
failed to
appreciate that had the employee not walked out of the disciplinary
hearing he would have been able to defend himself
and for that reason
the commissioner was not entitled to interfere with the decision to
dismiss him.
[7]
Further
grounds of review are raised in the applicant’s supplementary
affidavit. The first ground raised in the supplementary
affidavit
concerns the complaint by the applicant that certain parts of the
transcript show that in certain areas the tapes of
recordings of the
arbitration proceedings are inaudible. The applicant says that should
the reviewing court find that those inaudible
parts are critical and
constitutes material part of the evidence which was presented then
the court should sent the matter back
for a fresh arbitration
hearing.
[8]
The
motivation for the contention that the commissioner failed to apply
his mind to evidence before him can according to the applicant
be
found on what the commissioner recorded in his hand written notes and
what he states in his arbitration award. The applicant
contends in
his heads of argument that prove that the commissioner did not apply
his mind can be found in the fact that in his
hand written notes it
is recorded that the loss was R28 301.00 whereas in the arbitration
award he recorded the amount as R28 000.00.
[9]
In the
heads of argument the applicant argues that the employee had
committed misconducts that pierced into the heart of the trust
of the
employment relationship. In this regard the applicant argued that
because of the nature of the misconduct committed by the
employee it
(the applicant) had no duty to give evidence to prove that the
employer-employee relationship had broken down.
It was also
argued on behalf of the applicant that the commissioner disregarded
the fact that the employee did not challenge its
version at the
disciplinary hearing.
[10]
The
allegation about bias is explained in the applicant’s heads of
argument as arising from the finding of the commissioner
the walking
out of the disciplinary hearing by the employee was irresponsible but
then held that there was no good reason to dismiss
him. In other
words the complaint about bias is based on the contradiction that
arises from the finding that the dismissal was
procedurally fair and
then finding that it was substantively unfair.
[11]
At the
arbitration hearing, Mr Nkosi representing the applicant, in his
opening remark stated, that the applicant’s case focused
mainly
on poor performance, audits which concerned the breach of comparing
policies and procedures. The breach of policies and
procedures
according to Mr Nkosi resulted in stock loss and gross loss of trust
relationship. The financial loss is said to be
in the amount of R 13
745.40.
[12]
The
applicant led two witnesses in support of its case. The first witness
was Mr Fiford, who testified firstly that all policies
and procedures
were well documented suggesting in that regard that there was no
reason for the employee not to comply with them.
He further testified
about several instances where he received telephone calls or sms from
certain people complaining about the
employee. He raised those
complains with the employee and after receiving an explanation from
the employee he accepted the
explanation and felt that there was no
basis to pursue the complaints further.
[13]
The other
complaints which Fiford received were from the managing director who
informed him that she had “received numerous
calls from
customers, the alleged customer questioning our area manager’s
(the employee) integrity.”
[14]
The
employee was accused of selling battery charges outside working
hours. As indicated earlier, Fiford was satisfied with the
explanation tendered by the employee and decided not to take the
matter further.
[15]
The other
complaint came from a former employee of the applicant who alleged
that the employee took a leather jacket from one of
the stores of the
applicant’s where there had been a robbery. It is not clear
from the testimony of Mr Fiford whether the
employee took the jacket
in the process of the robbery or what circumstance is he
alleged to have taken the jscket. Mr Foford,
without giving much
details says that he accepted the explanation given by the employee,
more particularly because the employee
is a trust worthy person. It
does appear from his testimony that he was suspicious of the nature
of the person who made the allegation
because he had recently been
dismissed.
[16]
A week
after the complaint from the ex-employee Mr Fiford received about 4
sms from anonymous people. It would appear, following
receipt
of the sms, Mr Firford received a call from guest house owner alleged
that the employee had been at the guest house and
accused him the
employee of a “whole lot of allegations.”
[17]
After that
complaint from the guest house lodge, Mr Fiford visited other stores
and spoke to other managers seemingly about the
problem of the
employees. At that stage the employee was conducting stork taking at
Mabopane.
[18]
According
to Mr Fiford none of the managers he visited were prepared to
speaking about the details of what was happening in their
areas but
all of them said that there was a problem. After speaking to most of
the managers Mr Fiford went and spoke to the employee.
It was after
this meeting that Mr Fiford decided to institute an audit, starting
with Polokwane, which is the store the employee
was based at. After
the Polokwane audit the applicant proceeded to audit the others
stores.
[19]
During
cross examination, Mr Fiford conceded that the investigation was
triggered by the seriousness of the allegations received
through the
sms, the explicit details of the allegations.
[20]
Mr Fiford
does not in his testimony as set out in the transcript say who the
people are who were smsing him neither does he give
the details of
the allegations contained therein. He does not however dispute that
prior to this audit the employee had indicated
to him that he was
planning on conducting the audit but he (Fiford) stopped him from
doing that.
[21]
It is clear
from the transcript that Mr Fiford evaded the question why he had
stopped the employee from proceeding to conduct the
audit. In
answering the question why he stopped the employee from conduction
the audit Mr Fiford says:
“
Mr Manzini the only
time the instruction was given to you as a regional manager to stop
and just concentrate that the turnover was
done to June 2007 for the
very reason we were on warranties. If you recall the whole system of
checks was changed to a fuller visit,
a (inaudible) and a half day
visit, no instruction was ever given thereafter June 2007 for
regional managers to stop audits.”
[22]
And when
the commissioner clarified to him that the question asked by the
employee was why did he stop the audit, he say:
“
I am just saying there
has never been a time; I have known Mr. Manzini now for the past
fourteen years; there has never ever been
a time where i was
concerned that he did not have the ability to perform the functions
as a regional manager.”
[23]
The second
witness and whose testimony the applicant relied upon in support of
its case is Mr Hanegan, the regional manager. When
asked during
evidence in chief as to whether there was anything found to be
improper and said that there were many he stated that:
“
Yes there were many
one which stands out in particular is the expenses the store
suffered; and as well as petty cash expenses used
by petty cash has
been advanced for example and the slips are R80 and the amount is
R100.00, so there is R 20 different and that
was basically the petty
cash transactions and casuals were being paid without document and
they casuals would be made to work late
hours and from the
documentation available in the store we don’t really understand
this.”
[24]
The
employee was the only witness who testified on his own behalf. He
denied the allegations levelled against him. He complained
that the
allegations which were levelled against him were derogatory.
[25]
It would
appear that the employee does not deny that he went to Tzaneen, on
the occasion when it is alleged that there was an incident
allegedly
involving him. In relation to that complaint the employee testified
that he had done the bookings at the guest house
for Mr Nkosi. At the
end the first day after Mr Nkosi, finished whatever he was doing, the
employee visited him at the guest house
to have drinks with him. He
says whatever the problem that had arisen at the guest house, the
owner assumed that it was him because
he had done the bookings. He
says he received information that one of his colleagues was
assaulted.
[26]
The version
of the employee as concerning what happens to petty cash and how an
amount of R 99.90 in a store may be rounded up to
R100.00, was not
challenged by the applicant. Similarly, the version that the
applicant does not fetch the “money at all”
was not
challenged. The employee was not charged with an offence concerning
walking out of the disciplinary hearing. The commissioner
therefore
at the arbitration hearing investigated the walking out of the
disciplinary hearing and therefore the comment about the
walking out
of the disciplinary hearing which he clearly made in obiter cannot
make him bias.
[27]
In need to
point out that I do not agree with what the applicant is saying that
this finding is not in conflict with the conclusion
that the
dismissal was unfair. The applicant seems to suggest in its
contention that this finding ought to have led to the conclusion
that
the dismissal was fair.
The
arbitration award
[28]
As
indicated earlier the commissioner found that the dismissal of the
employee was procedurally fair. He reasoned that the employee
failed
to attend the disciplinary hearing despite having been given the
opportunity to so. The commissioner says the employee acted
irresponsibly by walking out of the disciplinary hearing.
[29]
In relation
to substantive fairness the commissioner found that the applicant had
failed to show that the dismissal to have been
fair. In arriving at
the conclusion that the dismissal was substantively fair the
commissioner firstly rejected the version of
the applicant. As
concerning the charges relating to poor financial management the
commissioner was again not satisfied with the
quality of the
applicant’s version. In this respect the commissioner found
that the applicant’s version not to have
been substantiated
with supporting evidence such as invoices and was further not
corroborated. The commissioner went further to
say:
[15]
Regarding the unauthorized expenses and abuse of petty cash the
Respondent's witness
failed to provide the total cash amount and the
particulars of the transactions. I accept the Respondent's view that
the Applicant
was aware of his duties. But given the inconclusive
evidence adduced by the Respondent's witnesses, I am inclined to say,
there
was no evidence that linked the Applicant to all charges. The
second witness to be called was Mr, Shawn Henegan. He based his
testimony
entirely on the Audit Report. He said that the Applicant
failed to account to exorbitant expenses incurred in connection with
tailoring
and abused petty cash. In this case he indicated that there
was no documentation to prove the expenses. The said allegation was
also not supported with sufficient proof or at least the supporting
vouchers. Otherwise, most of the allegations contained in the
audit
report were not raised at the hearing. Although one would be forgiven
to suggest that the Applicant's conduct is not entirely
unblemished,
I am not in a position to make such a decision without convincing
reasons from the Respondent.”
Evaluation
[30]
The
determinant issue in the first instance in this matter is whether the
finding that the dismissal was procedurally fair ought
automatically
to have led to the conclusion that the dismissal was also
substantively fair. It is trite that in conducting the
inquiry into
whether the dismissal was fair or otherwise the commissioner has to
enquire into whether the dismissal was both procedurally
and
substantively fair. These enquiries are conducted independent of each
other. The one enquiry does not necessarily have an influence
on the
outcome of the other neither does the conclusion on the one
automatically lead to the same conclusion on the other. The
distinction between the two enquiries can be seen clearly from Item 2
of Schedule 8 of the Code of Good Practice, which provides
as
follows:
“
2
Fair
reasons
for dismissal
(1)
A
dismissal
is
unfair if it is not effected for a fair reason and in accordance with
a fair procedure, even if it complies with any notice period
in a
contract of employment or in legislation governing employment.
Whether or not a
dismissal
is
for a fair reason is determined by the facts of the case, and the
appropriateness of
dismissal
as a
penalty.
Whether or not the procedure is fair is determined by referring to
the guidelines set out below.
(2)
This
Act
recognises
three grounds on which a termination of employment
might be
legitimate. These are: the conduct of the e
mployee,
the
capacity of the
employee,
and
the
operational
requirements
of
the employer's business.”
[31]
Item 4(1)
read with item 7 of the Code demonstrates further that the enquiry
into the procedural fairness of the dismissal is separate
and
different from that of substantive fairness. Item 4 reads as follows:
“
(I)
Normally, the employer should conduct an investigation to determine
whether there
are grounds for dismissal. This does not need to be a
formal enquiry. The employer should notify the employee of the
allegations
using a form and language that the employee can
reasonably understand. The employee should be allowed the opportunity
to state
a case in response to the allegations. The employee should
be entitled to a reasonable time
to
prepare
the response and to the assistance of a trade union representative or
fellow employee. After the enquiry, the employer should
communicate
the decision taken, and preferably furnish fie employee with written
notification of that decision.”
[32]
Item 7 provides that a
person determining the nfairness of the dismissal should consider the
following:
(a)
whether
or not the employee contravened a standard regulating conduct in, or
of relevant workplace; and
(b)
if
a rule or standard was contravened, whether
(i)
the
rule was a valid or reasonable rule
or
stan
dard;
(ii)
the
employee was aware, or could reasonably expected to have been aware,
of the standard;
(iii)
the
rule or standard has been consistently
by
the employer; and
(iv)
dismissal
was an appropriate sanction contravention of the rule or standard.”
[33]
It is
thus clear from the above discussion that the commissioner cannot be
faulted for having conducted two separate inquiries into
the fairness
of the dismissal – the one relating to procedure and the other
to the substance of the dismissal. It also goes
without saying that
the conclusion reached on the one does not mean that the conclusion
on the other should be the same.
[34]
The second
issue is whether the commissioner committed gross irregularity in his
reasoning and in arriving at the conclusion that
the dismissal was
substantively unfair. The court would indeed interfere with the
arbitration award if it was to be found that
the reasoning and the
award of the commissioner to be grossly irregular. The essence of the
test for determining whether or not
the commissioner has committed a
gross irregularity is whether the complaining party has been denied a
fair hearing on the issues
which were placed before the commissioner.
Failure to afford a party to the arbitration hearing a fair hearing
could be as a result
of the commissioner failing to apply his or her
mind to the facts or the issues presented before him or her. It could
also be due
to misconception of the issues or the facts presented
during the arbitration hearing.
[35]
A mistake
of fact or law could also constitute an irregularity. It is
however not every mistake that would lead to the conclusion
that the
complaining party has been denied a fair hearing and accordingly
justifying interference by the court. For a mistake of
fact or law to
constitute gross irregularity, it has to be shown that the mistake is
so material as to amount to the denial of
a fair hearing or failure
to deal with the issues raised by the dispute. It is thus my view,
that assuming the commissioner made
a mistake regarding the figures
of R28 000.00 and R28 301.00, it cannot be said that such a mistake
was so material as to render
the decision grossly irregular.
[36]
As
concerning the substantive fairness of the dismissal the
commissioner evaluated the two versions which the parties had
presented to him and as indicated earlier he rejected the version of
the applicant. In this respect the commissioner weighed the
evidence
of the applicant and correctly in my view, came to the conclusion
that the evidience did not carry sufficient weight to
discharge the
burden placed on the applicant of showing that the dismissal was for
a fair reason.
[37]
The
complaint by the applicant that the record has inaudible and should
for that reason be reviewed and be remitted back to the
CCMA bears no
merit. The delay to ensure that a proper record is placed before the
court in a review application rest with the
applicant. In a case of
defects in the record, the applicant bears a further duty of ensuring
that the record is reconstructed.
There is no evidence that the
applicant performed any of its duties as far as the inaudible in the
record are concerned.
[38]
The
complaint that the commissioner could not have come to the conclusion
as he did because the employer did not attend the disciplinary
hearing also bears no merit. It is trite that the arbitration hearing
is a proceeding
de
nove
.
The disciplinary hearing is relevant to the extent only of the
commissioner having to determine the reason for the dismissal and
whether the procedure followed was fair.
[39]
In the
light of the above discussion, I am of the view that the
commissioner’s arbitration award satisfy the test of
Sidumo v Rustenburg
Platinum Mines Ltd & Others,
2007 (12) BLLR 1097
(CC).
The applicant has thus failed to make out a case justifying
interference with the arbitration award by this court.
[40]
The
applicant’s claim thus stand to fail. In the circumstances of
this case I see no reason why the costs should not in law
and
fairness follow the results.
[41]
Accordingly
the following order is made:
1.
The
application to review and set aside the arbitration award issued
under case number LP 2515 dated the 11
th
June 2008 is dismissed.
2.
The
applicant is to pay the costs of the third respondent.
_______________
Molahlehi
J
Date
of Hearing :
03 June 2010
Date
of Judgment: 17
November 2010
Appearances
For
the Applicant:
Adv R Ralikhuvhana
Instructed
by :
Graham Attorneys
For
the Respondent: Mr S Mabaso of
Mabaso Attorneys