About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2011
>>
[2011] ZALCJHB 126
|
|
Mr Price Group Ltd v Malefetse and Others (JR1245/10) [2011] ZALCJHB 126 (1 January 2011)
13
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR
COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Of
interest to other Judges
Case
no:
JR1245/10
In the matter between:
MR PRICE GROUP LTD
..............................................................................
Applicant
and
MARTHA MALEFETSE
..................................................................
First
Respondent
JACKSON
MTHUKWANE N.O
.................................................
Second
Respondent
CCMA
............................................................................................
Third
Respondent
REASONS FOR JUDGMENT & ORDER
LENGANE AJ
Introduction
[1] This is an unopposed application
in terms of section 145 of the Labour Relations Act, 66 of 1996 (“the
LRA”), to
review and set aside the award issued by the second
respondent (“Commissioner”) on or about 30 April 2010 and
under
the auspices of the third respondent (“the CCMA”).
The applicant delivered its heads of argument and also delivered
an
affidavit of service in respect of them. There is an annexure which
is attached to that affidavit, marked “
WVDV3
”
, which is a
letter addressed to the applicant’s attorneys by the first
respondent’s attorneys, Van Den Berg and Meintjies
Attorneys,
to the effect that the first respondent would abide the decision of
this court.
The
following relief is sought:
‘
(a)
that the arbitration award handed down under case Number: GATW
14895-09 dated 30
th
April 2010 be
reviewed and set aside and replaced with an order upholding the First
Respondent’s dismissal;
(b) costs jointly and severally
in the event of any of the respondents opposing this application; and
Further
and/or alternative relief.’
[2] The application came before me on 21 December 2011.
On 23 December 2011, I made an order dismissing it and undertook to
furnish
my reasons at a later stage. My reasons follow below. But,
before I turn to dealing therewith, it will, in my view, be necessary
first to summarise the evidence which was produced by the parties
before the Commissioner at arbitration. I have gleaned that evidence
and other relevant facts from the transcript of the oral evidence as
well as from the Commissioner’s impugned award. I also
had
regard to the applicant’s founding affidavit, more particularly
where it contains allegations which seek to summarise
that evidence.
I hasten, though, to mention that the purpose of the summary of the
evidence in this judgment is not to assess its
veracity, credibility
or reliability. That was the function of the Commissioner. I
summarise it solely and purely for the purpose
of assessing the
viability or lack thereof of the first five of the six grounds of
review upon which the applicant relies in these
proceedings - to
contend that the Commissioner either ignored, misunderstood or
misrepresented relevant evidence in making the
award that he did.
Factual Background
[3] The first respondent was employed by the applicant,
a business conducting a chain of clothing retail stores, as a “store
associate”. She commenced her employment as such on 3 February
2003 at one of the applicant’s stores known as ‘Gift
Acres’ in Pretoria North. She remained employed, as a store
associate at Gift Acres until she was dismissed on 30 November
2009,
after having been found guilty for misconduct by the applicant’s
internal disciplinary tribunal. The charge of misconduct
was coined
thus by the applicant in the notification to attend a disciplinary
hearing:
The Gift
Acres store where you are employed has been experiencing stock losses
(
sic
)
that the company considers unacceptable. The results of previous
stocktakes (
sic
)
were as follows:
18 October 2009 1.51%
08 October 2009 2.19%
You are aware that it is your
responsibility, in your capacity of
store associate
to take
steps to prevent further stock losses, or to report on the cause of
the stock losses to the company. The company has compiled
an action
plan, in consultation with you, to combat stock losses in your store,
which you were aware of. Despite all of this, the
stock losses have
continued to increase.
The last stock take, conducted
on 10 November a result of 2.5. %. This is completely unacceptable.”
[4] The notification is dated 23 November 2009 and the
hearing “was to take place on 27 November 2009. It took place
and the
first respondent pleaded “not guilty” –
despite, according to her evidence, the fact that the chairperson of
the disciplinary tribunal had attempted to cajole her into pleading
guilty. The outcome of the disciplinary hearing was issued on
30
November 2009 and the first respondent was found guilty and dismissed
with immediate effect.
[5] The first respondent, aggrieved by the outcome,
referred a dispute of unfair dismissal to the CCMA, contending,
according to
Part B of LRA Form 7.1.1 that:
‘
There
was no good reason to dismiss me. The employer did not want to
properly assist me.’
[6] At the commencement of the
arbitration, it was established as a common cause fact that the first
respondent had been dismissed.
The applicant was represented by its
“
People’s
Facilitator
”
,
Mr. Shawn Naidoo (“Naidoo”). Naidoo had been the
applicant’s initiator during the internal disciplinary hearing.
He called three witnesses, Messrs J.D. Kunneke (applicant’s
area manager for Pretoria North), Dingaan Jeremiah Zuma (applicant’s
store manager in Soshanguve) and Jacques Ball (chairperson of the
internal disciplinary hearing). After the applicant had closed
its
case, the first respondent’s representative called two
witnesses, namely, the first respondent and her erstwhile colleague
at Gift Acres, Ms Letta Mphaka.
I now turn to summarising the various witnesses’
evidence. I shall attempt to capture only those parts of it which
are, in
my view, relevant for the purposes of the review application
and this judgment.
J.D. Kunneke’s evidence (“Kunneke”)
[7] Kunneke, was employed by the applicant in the
position of area manager: Pretoria North for a period of two to three
years, at
the time of the dismissal of the first respondent. Gift
Acres store falls under the Pretoria North area. He testified that
the
applicant had a Group Disciplinary and Incapacity Code, in terms
of which, to the extent relevant for the present purposes, excessive
stock losses were deemed to constitute team misconduct. A stock loss
management process must be started when the extent of stock
loss in
any store has been exceeded. In this regard, he was referring to, and
relying on, a two-page document in the Bundle of
documents, at the
foot of which is written:
‘
Mr.
Price Group Disciplinary and Incapacity Code June 2008.’
[8] When, during his examination-in-chief, he was asked
if the applicant had any rule regarding what percentage of stock loss
would
the applicant expect? (I read that question to mean what was
the upper limit beyond which stock loss would not be tolerated by the
applicant). He said that the company standard was 1%. He then
explained the procedure which the applicant would follow to identify
a particular store as a “stock loss or shrinkage problem”.
He also explained the stock management procedure which is
followed if
a stock loss in a store exceeded 1%. His explanation was briefly to
the effect that the stock loss management process
must start when a
particular store’s stock loss was in excess of 1% and, in such
circumstances, the applicant would consider
all the employees of that
store, including management, to be collectively responsible in the
same way.
[9] However, in cross-examination, Kunneke failed to
point out in the Disciplinary and Incapacity Code where it is stated
that the
threshold for stock loss which would be deemed as team
misconduct was 1%. He conceded that there was no such provision in
the Code.
As to the next logical question, how would the employees
then know of the existence of such a rule, he referred to a letter
which
he described as a standard warning letter, which would be given
to all the employees and management of the affected store and which
indicated the existence of the 1% threshold.
[10] In addition to this letter, his
testimony proceeded, employees would be given an action plan designed
to reduce further stock
losses. This procedure is implemented on the
occasion of every successive stock loss in a store. He said that that
the implementation
of the procedure was the responsibility of an area
manager. He further testified that where there was no improvement in
the rate
of stock loss after three successive stock takes “
all
associates and managers will be notify
(sic
- notified)
to
attend a hearing and may be dismissed
”
.
[11] He testified that this procedure was followed at
Gift Acres because the stock take which was conducted there on 18
August 2009
showed a loss of 1.5%, which is “totally
unacceptable”. He continued to say that that meant that store
‘associates
are either behaving in a gross and negligent manner
by allowing stock to go missing or unaccounted for. Or it means that
the stock
is going missing because of deliberate dishonesty.’
[12] Each employee was expected to append his or her
signature to the action plan and thereby signify his or her
acceptance of it,
but even if an employee refuses to sign it, he or
she is, nonetheless, still required to implement the plan.
[13] The action plan did not accompany the first warning
letter which was issued on 3 September 2009. It accompanied the
second
warning letter which was issued to the first respondent and
all her fellow store associates on 22 October 2009. The store
associates,
including the first respondent, refused to sign it and it
was posted on the notice board in the staff canteen.
[14] A follow-up action plan dated 29 September 2009 was
issued. On the face of the document which Kunneke described as this
follow-up
action plan, there is an inscription to the effect that the
first respondent and all other associates agreed to the first and
second
letters as well as to the action plan. In fact, Kunneke
confirmed in examination-in-chief that the first respondent agreed to
the
plan and that resolved the matter.
[15] The exact quantification of the
extent of the stock losses suffered by Gift Acres was summarised by
Kunneke, with the aid of
a document headed: ‘
Gift
Acres 434 - Stock loss History
’
.
It summarises the stock loss history of the Gift Acres store for the
periods 10 February 2009, 18 August 2009, 8October 2009,
10 November
2009 and 25 January 2010 as follows:
- 10 Feb 2009 (1.14%, Rand Value = R33 864.00);
- 18 August 2009 (1.51%, Rand Value =R55 777.00);
- 8 October 2009 (2.19%, Rand Value = R15 591.42);
- 10 November 2009 (2.56%, Rand Value = R9 423.73); and
- 25 January 2010 (084%, RAND Value = 9 O40.00).
[16] Kunneke testified further that
he did not follow the aforementioned stock loss management procedures
in respect of the losses
recorded on the stock take of 10 February
2009. That is, he neither issued any warning letters nor an action
plan in respect thereof.
He said that he decided not to do so but,
instead to “
start
up nice and fresh
”
by
explaining the stock loss management process to everyone in the
store. In that process, he asked the employees present, including
the
first respondent, for their suggestions as to what action or measures
could be taken to avoid future stock losses. He said
that two major
suggestions which the store associates raised were that the applicant
should employ/deploy a security guard at,
and install cameras in, the
store.
[17] He considered these suggestions but decided not to
employ/deploy a security guard or to install cameras because that
would
have occasioned too big a cost on the applicant. However, he
did not know how much it would have cost the applicant if it had
acceded
to the suggestion to employ a security guard and/or install
cameras in the store. He further said that installation of cameras
would, in any event, not have made a difference in abating the extent
of the stock losses.
[18] The warning letters which were each also
accompanied by an action plan were those which he issued in respect
of the stock losses
reflected against 18 August 2009, 8 October 2009
and 10 November 2009.
[19] On 17 November 2009, the first respondent and
“everyone in the store were suspended. They were subsequently
summoned
to a disciplinary enquiry.
[20] During their suspension the applicant employed
casual employees and they were supervised by an acting manager.
During this
period, according to Kunneke, the stock loss results went
down to 0.84%. It is convenient for me to pause at this point and
mention
that under the cross-examination it emerged that there was a
certain fellow store associate, Reneiwe Mogamogani (“Reneilwe”),
who was neither suspended nor dismissed together with the first
respondent and the other store associates. At the time of the
arbitration proceedings, she was still in the employ of the
applicant. I shall return to this point later, when I deal with the
principle of parity in the context of team misconduct. Suffice it to
say, for now, that Kunneke’s explanation for the exclusion
of
Reneiwe from the disciplinary action taken against the rest of her
fellow associates was that she was not part of team because
she had
been employed at Gift Acres as an associate for about three months
only when the decision to discipline the others was
made; whereas the
stock loss problem that precipitated the process of discipline had
spun a period of over six months prior.
This
is how I understand the testimony of Kunneke and, in my view, the
Commissioner understood, and summarised, it similarly in
his award.
Dingaan Jeremiah Zuma’s evidence (“Zuma”)
[21] Zuma, at the time of the arbitration proceedings,
was the applicant’s store manager: Soshanguve.
[22] He started working as store manager at the Gift
Acres store on 17 November 2009. On this date the first respondent
and her
fellow store associates had already been on suspension
although not yet dismissed. He remained in this position until 28
January
2010.
[23] The only stock-take that was conducted at the Gift
Acres whilst he was employed there was on 25 January 2009, which
recorded
a stock loss of 0.84%. During December 2009, there was a
security guard at the Gift Acres store. He did not know why the
security
guard had been placed there. He surmised that it must have
been because that was the applicant’s practice so to do every
December.
[24] In my view, the Commissioner summarised the
evidence of this witness correctly. In any event it was, in my view,
an exercise
in futility for the applicant, in an attempt to show that
there was a good reason to dismiss the first respondent, to call a
witness
to testify about a the extent of stock loss (recorded on 25
January 2010) covering a period during which the first respondent had
already been dismissed and which did not play any role in influencing
the decision to dismiss her.
Jacques Ball’s evidence
[25] Ball was the presiding officer during the
disciplinary hearing of the first respondent as well as the separate
disciplinary
hearing of her colleagues. He testified that he had been
playing such a role on behalf of the applicant for a period of six to
seven years.
He denied that he had attempted to coerce the first
respondent to plead guilty.
He said that the only appropriate sanction for the sort
of charges which the first respondent faced was dismissal.
[26] Ball was the respondent’s third and last
witness.
Martha Malefetse’s evidence (First Respondent)
(a) She was employed by the applicant at the Gift Acres
store as a store associate since 3 February 2003 until her dismissal
on
30 November 2009.
(b)
Her duties as a store associate entailed cleaning, working at the
till as cashier, fitting room, markdowns and mark-ups, opening
boxes
and merchandising.
(c)
She denied having had any sight or knowledge of the applicant’s
Disciplinary and Incapacity Code as she had never been
provided with
one.
(d) She was aware of the existence of the first warning
letter dated 3 September 2009 as she had received it and she
understood
its contents.
(e)
She said she knew about the 1% stock loss threshold because she and
her colleagues had been told about it at a meeting in 2009,
which
taken place in 2009 after the stocktaking and after the first warning
letter of 3 September 2009.
[27] Prior to Kunneke becoming area manager: Pretoria
North, no disciplinary action had been taken against her by the
applicant.
There had been stock losses before Kunneke became the area
manager, but they were less than 1%. She testified that she would
surmise
that stock losses would have been less than 1% because they
(store associates) used to get incentives then. Store associates only
became aware of the existence of the 1% threshold rule after Kunneke
had informed them so at the meeting which took place in 2009
after
the issue of the warning letter of 3 September 2009.
[28] She further testified that she
was aware that shoplifting used to take place at the Gift Acres
store. They, as employees of
the store, would try and apprehend these
shoplifters and oftentimes would fail because mostly shoplifters were
men and the store
associates were women. Sometimes they would succeed
in apprehending a shoplifter but “
the
cases would not go any further
”
.
Previously, there used to be cameras that had been installed in the
store. This was during the time when the area manager was
‘Enthias’
and the store manager was Pauline. The cameras were placed around the
shop and one could see on the screen
placed on the cash desk what was
happening in the shop.
[29] She was aware of the action plan (which was
introduced by Kunneke after the stock loss experienced during the
stock take of
18 August 2009) and she followed the action plan.
[30] She and other store associates were suspended and
later charged with misconduct arising from stock losses and two of
her colleagues
pleaded guilty.
[31] She knows Reneiwe, as they used to work together as
store associates. She felt aggrieved by the fact that Reneiwe was not
also
charged for the same misconduct as her and the other store
associates, whereas she (Reneiwe) had also been part of the group of
store associates throughout the periods from the stock take of 18
August 2009.
[32] Lastly she denied Ball’s evidence that she
stated in her mitigation of sanction in the disciplinary hearing that
she
was sorry for what she had done as she had not done anything
wrong and would, therefore, not have apologised.
She
feels that her dismissal was unfair and she seeks reinstatement.
Letta Mphaka
[33] She was employed by the applicant at the Gift Acres
store as a store associate. She was charged for the same misconduct
as
the first respondent and she was also dismissed.
[34] She had expected that she and the first respondent
would have been charged together as a group but they were called
individually.
She was forced by the chairperson, Jacques Ball to
plead guilty. She pleaded not guilty.
The Grounds of Review
[35] I have already mentioned that the applicant relies
on six grounds of review.
[36] The first five all boil down to the contention that
the Commissioner ignored, or failed to apply his mind properly to,
relevant
evidence that was placed before him.
[37] The sixth ground is that the Commissioner committed
a reviewable irregularity by disregarding the “
judicial
precedents cited to him by the applicant (respondent at arbitration)
in its closing argument but relied instead solely
on CCMA arbitration
awards and, in addition, applied incorrect legal principles in coming
to the conclusion that the first respondent’s
dismissal was
substantively unfair
”.
Are these grounds sustainable?
The Test on Review
[38] In order for the application to
succeed, the court must be satisfied that no other reasonable
Commissioner placed in the same
position as the second respondent
was, would have reached the same conclusion.
1
‘
Same
conclusion
’
,
in the sense that the phrase is used here, encompasses a band or
range of reasonable conclusions or outcomes. If, in the opinion
of
the court, the impugned conclusion or outcome falls within such a
band or range, the application must fail.
2
[39] The issue which the Commissioner was called upon to
determine was whether the first respondent had been properly found
guilty
of group misconduct by her failure to address the question of
stock loss in the Gift Acres store and whether her dismissal was
substantively fair or not. In my view, the Commissioner’s award
shows that he understood and appreciated this. That is made
clear by
his consistent, if not persistent, reference to arbitration cases
that dealt with the issue of collective misconduct.
[40] What it is that I have to determine in this matter
is whether the Commissioner failed correctly to apply the law
relating to
collective misconduct such that, as a result, the
applicant was denied a fair trial.
[41] I accept that it is settled law
that the concept of collective liability is part of our labour law.
This arises in circumstances
where the employer is unable to identify
a particular employee or particular employees who are guilty of
misconduct because the
other employees refuse to disclose the
identity of that particular culprit or culprits among them. In such a
case, the employer’s
rationale is that it has sufficient
grounds for
inferring
that the whole group of employees is
responsible for, or is involved in, the misconduct.
3
The employer’s entitlement to
make such an inference arises from the trust and confidence
relationship which an employment
relationship gives rise to
ex
naturalia
contractus
.
4
[42] However, the evidentiary
principles applicable to inferential reasoning still apply in matters
involving group misconduct or
collective liability. It is a cardinal
rule of logic when reasoning by inference that the inference sought
to be drawn must be
consistent with all the proved facts.
5
Facts are to be proved on a balance
of probabilities. Thus, facts proved by inference must still be
proved on a balance of probabilities.
The mere feasibility of proving
misconduct by inferential reasoning does not disturb the requirement
of proof on the basis of a
balance of probalities. If this standard
of proof is not met the inference cannot, and, I might add, must not,
be drawn.
[43] In this matter, the doctrine of collective
liability ceased to be of applicability immediately after the two
store associates
had pleaded guilty because the applicant thereafter
could no longer be heard to say that it was unable to identify the
particular
employee or employees who had been responsible for causing
the problem of stock loss. As articulated by Cameron JA (as he then
was), in the
Chauke
matter, the doctrine of collective
liability is applicable
only
when the employer is unable to
identify the culprit(s) of misconduct.
[44] I find that the conclusion which the Commissioner
reached, to the effect that the applicant had failed to prove that
the first
respondent was guilty of causing stock loss was a
conclusion which any other reasonable Commissioner could have
reached.
[45] Even if I am wrong in coming to
this finding on the foregoing bases, I would still find that the
conclusion to which the Commissioner
came was not one outside the
band or range of reasonable conclusions to which another reasonable
commissioner could have. I have
in mind the principle of parity
which, according to Mlambo J (as he then was), means that like cases
must be treated alike.
6
Mlambo J said that in terms of the
parity principle, it would be unfair to impose a more severe penalty
on one employee than on
the other in circumstances where both were
guilty of the same misconduct. I would add that it would be even more
injurious to fairness
to select some and not others to be charged
collectively in circumstances where all of them were part of the same
group of employees
who all equally qualified to be charged
collectively. Reneiwe was not charged at all although she was one of
the store associates,
having the same job responsibilities as the
first respondent and the rest of the other store associates.
[46] Furthermore, there is no evidence whatsoever that
the managers of the store were charged, in spite of the existence of
the
so-called Disciplinary and Incapacity Code of the applicant which
states that managers would also be deemed guilty of causing stock
losses if those losses exceeded the threshold of 1%.
[47] In the circumstances, I find that there is no basis
to interfere with the finding of the Commissioner on the bases of the
first
to fifth grounds of review.
[48] The sixth ground of review is that the Commissioner
committed a reviewable irregularity in that he unjustifiably
disregarded
the judicial precedents upon which the applicant had
relied in its closing argument but relied, instead, upon CCMA awards
and thereby
applied legal principles incorrectly. Ms Lapham, who
appeared on behalf of the applicant, submitted that the judicial
precedent
which the Commissioner failed to follow was the one
established by the Labour Appeal Court in the Chauke matter. I
disagree. In
the Chauke matter, the employer was unable to identify
the culprits.
CONCLUSION
[49] In the premises, the application must be dismissed.
I
make the following order:
(1)
The application is dismissed.
(2)
The second respondent’s award stands.
(3)
The registrar of this court must make this order known to the first
respondent.
Each
party is to pay its own costs of the application.
_______________
LENGANE AJ
ACTING
JUDGE OF THE LABOUR COURT OF SOUTH AFRICA
APPEARANCES:
For the Applicants: K LAPHAM
For the
Third Respondent: None Appearance
1
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ 2405 at para 110.
2
Id
at para119 See also
Transnet Freight Rail v Transnet Freight
Bargaining Council and Others
(2011) 32 ILJ 1766 (LC) at [8].
3
Chauke
and Others v Lee Service Centre t/a Leeson Motors
(1998) 19 ILJ
1441 (LAC) at para 29.
4
Council
for Scientific and Industrial Research v Fijen
(1996) 17 ILJ 18
(A) at 26D-E
5
Food
and Allied Workers Union and Others v Amalgamated Beverage
Industries Ltd
(1994) 15 ILJ 1057 (LAC) at 1063C - D.
6
SACTWU
and Others v Novel Spinners (Pty) Ltd
[1999] 11 BLLR 1157
(LC)
at para 28.