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[2011] ZALCJHB 132
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Mohlake v Shadlow NO and Others (JR 1282/09) [2011] ZALCJHB 132 (23 June 2011)
MOHLAKE
NANCY v JOHN SHADLOW N.O., CCMA, PICK ‘N PAY CASE NO: JR
1282/09-Review Application Dismissal for misconduct. Dishonesty,
consumption of company property, breaking of company rules and
regulations. June 2011
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No JR 1282/09
In the matter between:
MOHLAKE NANCY
.....................................................................
Applicant
And
JOHN SHADLOW N.O.
........................................................
1
st
Respondent
CCMA
......................................................................................
2
nd
Respondent
PICK
n’ PAY
...........................................................................
3
rd
Respondent
REASONS
FOR ORDER
CAWE AJ
Introduction
[1] On the 29
th
April 2011, after having heard argument by both parties,
I made the following order:
1)
The point in limine as raised by the respondent is dismissed.
2) The review application is dismissed
3) There is no order as to costs.
[2]
The applicant has now requested reasons for the order made. These are
the reasons for the order made:
The
applicant is Nancy Mohlake, an adult erstwhile employee of the third
respondent at its supermarket situated in Faerie Glen,
Pretoria.
During September 2001 she was charged with two counts of misconduct.
[3]
The first count related to`“dishonesty”:
a)
Unauthorised consumption of company property on the 7
th
September 2001, at about 10:00, to the value of R4-10.
[4]
The second$Count,$“breaking of kompany ruler and regulations,”
flows from the first count. The@applicant admitted
2
guilt
au the disciplinary hearing she, by way of explaining her conduct,
submitted that she jad merely forgotten to pay gor the@coffee
that
she had consumed. The sa.ctao. of dismissal Was!im0oseD, on both
countsl on tHe 13
th
October
2001.
[5]
Q(e then
2
referred
her dismissal to the CCMA. The matter was not resolved at
conciliation. The matter was arbitrated by the 1
st
Respondent (“the commissioner”) on the 30
th
June 2009. The commissioner upheld the applicant’s
dismissal.
[6]
The evidence placed before the Commissioner consisted of the record
of the disciplinary proceedings and the disciplinary hearing
outcome
of two co-employees of the applicant, namely Ms Thipe and Ms Dabete,
who were charged with misconduct. Ms Thipe was not
dismissed. She was
given a final written warning. Ms Dabete was dismissed.
[7]
It is common cause that the Applicant’s case before the
commissioner was limited to the inconsistency in the disciplining
of
employees of the third Respondent and the question whether or not the
sanction imposed on the Applicant was harsh and/or excessive.
[8]
At the beginning of the review proceedings the Respondent raised a
point
in limine
citing
the Applicant’s unreasonable delay in preparing and lodging the
record in the instant matter. The Respondent relied
on the notion
“
vigilantibus non domientibus lex
subvernint”
as enuciated in
Sishuba
v National Commmissioner of the SAPS (2007) 28 ILJ 2073(LC).
I
entertained the point
in limine
and
was satisfied with the applicant’s explanation. I dismissed the
point
in limine
and
proceeded to hear the main application.
[9]
In its Heads of Argument the Applicant (at 6.1.1-6.2) argues that:
6.1
With regard to inconsistence(sic)
,
it is common cause that the Applicant contended and argued that she
was charged and dismissed for misconduct of unauthorised consumption
of company property on 07/09/2001 at about 10h00 to the value of
R4-10; Breaking of company rules and regulations and handed the
sanction of dismissal.
6.1.1However
(sic), her colleague one Ms Thipe, who was charged and found guilty
with similar if not more serious charges. However,
she was given the
sanction of final written warning:
“
consuming
company property namely cake and also sharing it with customers
without paying for it on 3/9/01 at 11h31 am and at 12h48
am
respectively” was given the sanction of final written warning.
6.1.2With
regard to the sanction
, it is further
common cause that the Applicant contended and argued that the
sanction of dismissal imposed to her was too harsh
in that she had
been employed for [a] period of 16 years with clean[a] record of
service. She was honest at all times as evident
in that she did not
dispute the action and pleaded guilty, and gave justifiable reason
for the incident as it was not intentionally
done. Taking into
account the totality of the matter, dismissal was too harsh and an
inappropriate sanction.
[10]
It is for the aforegoing reasons that the Applicant submits that the
First Respondent’s award falls to be reviewed and
set aside in
terms of section 145 and/or 158 of the Labour Relations Act 66 0f
1995.
[11]
The Applicant concedes that she broke a rule that was known to her.
This is reflected in the Arbitration proceedings transcript.
[12]
She, however, feels that she should have been given the same sanction
as Ms Thipe, that is, a final written warning.
[13]
Miss Thipe had been charged with consuming cake and sharing it with
customers, yet she was not dismissed.
[14]
The arbitrator, in his analysis of evidence and argument, states
that:
“
At
first blush this does appear to suggest that the respondent had
applied the rule in an inconsistent way, however the evidence
led by
the respondent showed that although this employee had been charged
with consuming and sharing cake, she had actually been
found guilty
of consuming the left-over crumbs. This makes her offence less
egregious than the applicant’s misconduct and
would have
justified the imposition of a lesser penalty”.
[15]
I tend to agree with the arbitrator’s assertion that the
offence by Miss Thipe was less serious than that committed by
the
Applicant herein.
[16]
The arbitrator further states that;
“
Although
item 7(b) (iii) of the Code of Good Practice: Dismissal requires
consistency in the application of the rule this should
not be
assessed in a mechanistic manner. In
SACCAWU
& Others v Irvin & Johnson LTD
[1999] 8 BLLR 741
(LAC
)
the Labour Appeal Court stated:
“
In
my view too great an emphasis is quite frequently sought to be placed
on to the ‘principle’ of disciplinary consistency,
also
called the ‘parity principle’…There is really no
separate ‘principle’ involved. Consistency
is simply an
element of disciplinary fairness…Every employee must be
measured by the same standards…Discipline must
not be
capricious. It is really the perception of bias inherent in selective
discipline which makes it unfair. Where, however,
one is faced with a
large number of offending employees, the best that one can hope for
is reasonable consistency. Some inconsistency
is the price to be paid
for flexibility and requires the exercise of discretion in each
individual case.”
He
concludes thus;
“
Given
the difference in degree of seriousness between the applicant’s
offence and that of Dabete, it is my view that no inconsistency
took
place, especially as Thipe, who had committed the same offence as the
applicant, was dismissed. Even if I am incorrect the
views expressed
in
SACCAWU &
OTHERS (Supra)
mean
that the degree of any inconsistency in this matter is not sufficient
to render the applicant’s dismissal procedurally
unfair.
It
is my view that the dismissal of the applicant was entirely
appropriate and fair, and I concur with the respondent’s
argument
that she has, through her actions, rightly forfeited the
right to continue employment with the respondent”.
[17]
It is noteworthy that the Commissioner makes a fundamental mistake of
fact in that Ms Thipe was not dismissed but given a final
written
warning. It was Ms Dabete who was, in fact, dismissed. This however
does not detract from the fact that the Applicant committed
a serious
offence that is punishable, according to the Rules and Regulations of
the Respondent, by dismissal.
[18]
The consideration of consistency or equality of treatment is an
element of disciplinary fairness. Conradie JA, in
SA
Commercial and Catering and Allied Workers union & other v Irvine
& Johnson Ltd [1999] 20 ILJ at 231
stated
that the principle of consistency should not be applied rigidly.
[19]
Prima facie
the
evidence that was placed before the Commissioner does not point to
inconsistency on the part of the third Respondent. Ms Thipe
was
caught eating cake crumbs and sharing them with customers. The
Applicant deliberately did not pay for the coffee she had consumed.
[20]
When one looks at the case of Ms Dabete, who also did not pay for
goods she had consumed and was dismissed one sees clearly
that the
third Respondent was consistent in its sanction for a similar
offence. I accordingly find no fault in the Commissioner’s
reasoning regarding consistency in the instant matter.
[21] Having found
the imposition of the sanction of dismissal to be fair, the
commissioner upheld it.
[22]
The Applicant now seeks to review and set aside the arbitration
award. The Applicant’s grounds of review are that the
arbitrator misdirected himself by failing to apply his mind to the
facts placed before him and further of having committed an
irregularity in the conduct of the proceedings by ignoring or
misinterpreting the facts.
[23]
To answer the question whether the decision of the Commissioner, to
uphold the Third Respondent’s decision, is reviewable
one has
to have regard to what Willis JA, in
De
Beers Consolidated mines Ltd v CCMA and others (2000) 21 ILJ
1051(LAC) states at 1062G-1063A
,
“
The
arbitrator’s function is to decide whether the dismissal is
unfair and not to impose what he or she viewed as the correct
sanction.
The
arbitrator is therefore not exercising an independent discretion. His
function is limited to assessing the reasonableness and
fairness of
the decision to dismiss and can only interfere with the employer’s
decision if it is “found to fall outside
a band of
reasonableness”, the parameters of which are determined by
general principles of fairness”.
[24]
The Applicant was charged after she was observed by the third
Respondent’s security personnel minding the store’s
CCTV
at the time. This is according to MR Wimpie du Plessis, the third
Respondent’s sole witness at the arbitration. At the
time of
the incident the applicant had been on duty in the Market Café.
The applicant had been recorded on camera making
and drinking a cup
of coffee. This had occurred just after the café had opened at
09h00. Prior to leaving work he had approached
the applicant and
asked why she had not paid for the coffee.
[25]
Du Plessis explained that it had been necessary to install cameras in
the café because of the high level of ‘shrinkage’.
Employees were consuming food that was for sale to the public. He
further stated that the café had not been busy at the
time, it
had been just after opening time; the applicant had sat in the café
and consumed a cup of coffee for which she
did not pay. Du Plessis
stated it was against the rules for the employees to consume the
respondent’s goods, and employees
were dismissed for consuming
food that had not been purchased.
[26]
The applicant does not deny that she broke a rule that was known to
her. All that she seeks to challenge is the harshness of
the sanction
meted against her. If one considers Du Plessis’s testimony one
cannot find fault with the third Respondent’s
sanction against
the Applicant. Du Plessis clearly stated that other employees were
dismissed for similar offences.
[27]
The function of the arbitrating Commissioner is not to usurp the role
of management by exceeding the mandate given to him by
the statute
even though the arbitration process is a hearing
de
novo
.
[28]
In light of the aforegoing the submissions in the Applicant’s
Heads of argument, are superfluous. This is especially
so since it is
common cause that the Applicant did consume Respondent’s
property without paying for same. In fact paragraph
7.5 of the said
Heads of Arguments contradicts Applicant’s own version and is
totally confusing. It does not enhance Applicant’s
grounds for
review.
[29]
It was for these reasons that I made the order referred to in
paragraph 1 above.
___________________
CAWE N
Acting Judge of the Labour Court
Appearances
For the Applicant: W. Khoza
For
the Respondent: Simon Dodd
Instructed
by: Bowman Gilfillan
Date of Hearing: 28 April 2011
Date of Judgment: 23 June 2011
2