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[2011] ZALCJHB 147
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Lewis Stores v Commission for Conciliation Mediation and Arbitration and Others (JR 712/08) [2011] ZALCJHB 147 (13 September 2011)
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
CASE NO.: JR 712/08
In the matter between:
LEWIS STORES
Applicant
and
CCMA
.....................................................................................
First
Respondent
COMMISSIONER M RAMOTSHELA
...............................
Second
Respondent
MATOME SAMUEL RAMOLIFO
.
.........................................
Third
Respondent
Date of application: 11 August 2011
Date of reasons: 13 September 2011
______________________________________________________________
REASONS FOR JUDGMENT
VAN NIEKERK J
Introduction
[1] On 11 August 2011, I granted an order reviewing and setting aside
the an arbitration award made by the second respondent (the
commissioner) on 6 March 2008. In his award, the commissioner found
that the dismissal of the third respondent ("Ramolifo")
was
substantively unfair and ordered the applicant to reinstate him with
full retrospective effect.
[2] The applicant has subsequently drawn to my attention the fact
that in the notice of motion, the applicant sought the substitution
of the award, and requested variation of the order to reflect that
substitution. These are my brief reasons for the order made
on 11
August and its variation.
The arbitration award
[3] Ramolifo had been dismissed for in February 2007 after being
found guilty of dishonesty by failing to issue receipts for money
received, failing to deposit monies received, creating fictitious
transactions and diverting goods from one customer to another.
In his
award, the commissioner first dealt with the issue of Ramolifo's
diverting of the goods to Nkanyani's address. He found
that the
applicant had failed to prove that Ramolifo had committed any
misconduct in this regard. With regard to Ramolifo's failure
to
comply with its policies and procedures relating to sales, the
commissioner found that there was no fictitious deal created
by
Ramolifo and that therefore the applicant had failed to prove that
Ramolifo was guilty of gross misconduct. For these reasons,
the
commissioner found that the applicant had failed to prove that there
existed any valid reason for Ramolifo's dismissal and
that therefore
Ramolifo's dismissal was substantively unfair. He therefore ordered
the applicant to reinstate him with full retrospective
effect.
The test on review
[4] It is now well-established that this court is entitled to set
aside an arbitration award if and only if the commissioner’s
decision falls outside of a band of decisions to which no reasonable
person could come on the available evidence (see
Sidumo &
another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC)). At paragraph 110 of the judgment, the test is set
out thus:
“
To summarise, Carephone held that
section 145 of the LRA was suffused by the then constitutional
standard that the outcome of an
administrative decision should be
justifiable in relation to the reasons given for it. The better
approach is that section 145
is now suffused by the constitutional
standard of reasonableness. That standard is the one explained in
Bato Star: Is the decision
reached by the commissioner one that a
reasonable decision-maker could not reach? Applying it will give
effect not only to the
constitutional right to fair labour practices,
but also to the right to administrative action which is lawful,
reasonable and procedurally
fair
."
[5] At paragraph 268 of the judgment, Ngcobo J (as he then was) goes
on to state:
“
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, in the
words of Ellis, the commissioner’s
conduct 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 proceeding
s."
[6] It follows from this authority that the
Sidumo
test, read
in conjunction with section 145 of the Act, makes provision for the
setting aside on review of arbitration awards for
both result-based
defects, as well as for process-related irregularities. This much has
been confirmed by the Labour Appeal Court
in some of its post-
Sidumo
judgments. Examples in this regard include
Ellerine Holdings Ltd v
CCMA & others
(2008) 29
ILJ
2899 (LAC) and
Maepe v
CCMA & others
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC). In
Ellerine
Holdings
, Davis JA had occasion to expand on the
Sidumo
test
in the following terms at 2903F:
"…When all of the evidence is taken into account, when
there is no irregularity of a material kind in that evidence was
ignored, or improperly rejected or where there was not a full
opportunity for an examination of all aspects of the case, then there
is no gross irregularity…”
[7] In
Maepe
, Zondo JP, also expanding on the
Sidumo
test, confirmed that a reviewable irregularity is committed where a
commissioner fails to have regard to materially relevant factors.
At
paragraph 11 of his judgment, the Judge President states:
"The answer to this argument is that where the law is that a
commissioner must take into account a certain factor in deciding
a
certain question, he is obliged to take that factor into account even
if none of the parties asks him to take it into account.
When he is
obliged to take it into account, it is no defence to say that he was
not asked to take it into account. If the factor
was a critical one
and he did not take it into account, he may well have committed a
gross irregularity justifying the reviewing
and setting aside of his
award."
See
also: Adv A Myburgh SC “Reviewing the Review Test: Recent
Judgments & Developments” paper delivered to SASLAW
Western
Cape 24 May 2011, referring to
Sasol Mining (Pty) Ltd v
Ngeleni & others
[2011] 4 BLLR 404 (LC) and
Southern
Sun Hotel Interests (Pty) Ltd v CCMA & others
[2009]
11 BLLR 1128 (LC).
Grounds
for review
[8] The applicant contends that the commissioner's award is
reviewable in because, on the one hand, his decision is a one which
a
reasonable decision-maker could not have reached, having regard to
the evidence before him and on the other hand, the commissioner
committed numerous gross irregularities in the conduct of the
arbitration proceedings. In particular, the applicant submits that
the commissioner committed a reviewable irregularity in finding that,
as Ramolifo had no authority to instruct Monyela to deliver
the goods
at Nkanyani's house in Joppie Village instead of to Modika in
Marirong Village, the applicant failed to prove that he
had committed
any misconduct in relation to this charge. The applicant contends
that the commissioner's finding clearly demonstrates
that he failed
entirely to objectively determine what the issue before him was, in
that the issue was whether or not Ramolifo had
issued an instruction
to Monyela to deliver the goods to Joppie Village instead of Marirong
Village. Whether Ramolifo had authority
to do so, the applicant
submits, was completely irrelevant. Ramolifo was charged with issuing
the instruction to Monyela, irrespective
of whether or not he was
authorised to do so, and the commissioner was required to make a
finding on that question. Once he made
a finding on that question, he
was required to make a finding on whether that instruction was in
breach of the applicant's policies.
The commissioner failed entirely
to make a finding on either of these questions.
Analysis
[9] A perusal of the record indicates that the commissioner failed
entirely to consider the following:
Leshabane's credible and uncontested evidence that during his
investigation, Monyela had advised him that Ramolifo had approached
him and given him the note with the amended delivery address for the
two items;
Monyelo's credible and consistent evidence that Ramolifo had
approached him and given him written directions to Nkanyani's
address and advised him that he had bought the items as a present
and that they must therefore be delivered to Nkanyani's address
and
not to Modika's address;
Grobler's uncontested and undisputed evidence that it was Ramolifo's
handwriting.;
The fact that at no stage during his evidence on chief or his
cross-examination of Grobler did Ramolifo dispute Grobler's evidence
that it was his handwriting in the note;
When asked under cross-examination why he had not disputed Grobler's
evidence regarding the fact that it was his handwriting
in the
amended delivery note the fact that Ramolifo could not explain,
except to state that the question had not been directed
to him, and
that the Applicant's policy was that deliveries be made on the basis
of printed documents and not handwritten ones;
The fact that Ramolifo had admitted at the disciplinary enquiry that
he had written the amended delivery note for Monyela and
then
changed his version at arbitration by denying any knowledge of the
handwritten note.
The commissioner himself found that the goods had been delivered by
Monyela to Joppie Village. The only plausible explanation
for this
fact is that Ramolifo did indeed persuade Monyela to divert the
goods from Modika's address in Marirong Village to Nkanyani's
address in Joppie Village.
Ramolifo's version that Monyela had lied about the fact that
Ramolifo had given him the amended delivery details as he wanted
to
"
plot
" against him was entirely improbable as
Ramolifo had led no evidence to substantiate this claim.
Monyela had nothing to gain by attending at a stranger's home to
have them (Nkanyani) sign a delivery note and a hand written
note
with their address on it and then approaching Grobler and saying
that Ramolifo had given him an amended address.
Monyela had approached van der Heever and Grobler to advise them
that he was worried about the fact that the goods had been delivered
to a different address to that on the printed delivery note.
Nkanyani's explanation that she had simply signed the delivery
documents for no apparent reason and then did not receive the
goods
in return is simply implausible, as is her version that she had
signed a blank page when she had signed.
Grobler's undisputed evidence that it was against the Applicant's
policy to allow goods to be bought buy one person and delivered
to
another.
[10] Bearing this evidence and these factors in mind, the only
reasonable conclusion that the commissioner could have come to was
that Ramolifo did instruct Monyela to deliver the goods to Nkanyani
in Joppie Village instead of to Modika in Marirong Village.
In
failing to take into account and in ignoring the material evidence
and factors that he was required to take into account, in
my view,
the commissioner committing a gross irregularity in the arbitration
proceedings and reached a conclusion that a reasonable
decision-maker
could not have reached. His award therefore falls to be reviewed and
set aside.
[11] In any event, the award is reviewable on the basis that the
commissioner committed a reviewable irregularity in concluding
that,
as Grobler and Leshabane gave contradicting evidence, that clearly
indicated that the second deal was not fictitious and
that the only
valid complaint regarding the deal was that the sale transaction was
not effected in accordance with the applicant's
policies and
procedures. It was no enough for the commissioner to find that their
evidence was contradictory. He had to assess
their evidence and make
a finding on their credibility. He failed to do so. Furthermore, he
also failed to provide reasons as to
why he concluded that Grobler
and Leshabane gave contradictory evidence which showed that there was
no fictitious deal, and how
their allegedly contradictory evidence
showed that there was no fictitious deal. The inescapable inference
is that he did not apply
his mind to what was a key issue i.e. that
the Applicant's policies and procedures required that the person
buying stock from the
Applicant must be present during the creation
of a deal on the Applicant's system, and that the goods must be
delivered to the
person who buys them. Leshabane lead uncontested and
clear evidence regarding the requirements of the Applicant when a
deal is
created and Grobler confirmed that the Applicant's policy did
not allow one customer to buy goods for another.
[12] Furthermore, the commissioner ignored and/or failed to take into
account the fact that both Modika's and Ramolifo's evidence
relating
to why there were two separate deals on the same day were implausible
and improbable. He ought also to have treated Modika's
evidence with
caution as she was Ramolifo's sister and would have had an interest
on lying on his behalf in an attempt to prevent
him from losing his
job. Under cross-examination, Ramolifo stated that he had created two
different deals for the sale of the sewing
machine, and for the sales
of the computer desk and the dining room suite on the instruction of
the customer (Modika) and the Branch
Manager (Grobler), as Modika had
stated that she did not "
want the two things together and one
thing she want a separate thing so that she can force to pay because
the other thing she want
the.. the um… it before the time
".
Modika testified that before she had been taken to the cashiers, she
had told the salesperson (Gladys) that she must not combine
the two
items in one account (that is, the sewing machine, and the computer
desk and dining room suite).
[13] The balance of probabilities favours the Applicant's version
that the reason which Ramolifo had created two separate deals
was
that Modika had left the store before the first deal for the sewing
machine was completed and Ramolifo had created a second
deal on her
account for the computer desk and dining room suite for Nkanyani
without her knowledge and consent. This version is
borne out by
Grobler's and Mahasha's consistent and credible testimony that when
asked to sign the contract relating to the purchase
of the computer
desk and dining room suite, Modika had refused to do so on the basis
that she had not bought the items.In addition,
Ramolifo himself
admitted under cross-examination that he did not have a signed order
form when he created the second deal, and
that such a form is
required in terms of the Applicant's policy in order for a deal to be
proper. Ramolifo's conduct directly contravened
the terms of the
Applicant's sales policy and in finding that the Applicant failed to
establish clearly what the rule or standard
was that Ramolifo
contravened, the Commissioner failed entirely to consider this
material evidence before him. This constitutes
a reviewable
irregularity.
[14] For the above reasons, I was satisfied that the commissioner
committed a gross irregularity in the conduct of the proceedings
and
that, in the circumstances, his award falls to be reviewed and set
aside. For these reasons, I made the order that I did on
12 August
2011.
[15] Turning to the request for a variation of the order, the
substitution of the commissioner’s award is specifically
contemplated
by the notice of motion. Substitution is a discretionary
remedy, and in terms of s 165 it extends to the variation of an order
to the extent of any ambiguity, obvious error or omission. In the
present circumstances, I take the following into account. The
applicant was dismissed in February 2007, more than 4 years ago. The
record of the arbitration hearing runs into some 200 pages,
and
nothing more, it would appear, needs to be said concerning the
applicant’s dismissal or the circumstances surrounding
the
dismissal. The court is therefore in a position to substitute the
commissioner’s finding and to fail to do so would not
serve the
imperatives of expeditious dispute resolution established by the LRA.
In terms of s 165 of the LRA accordingly vary the order granted on 11
August 2011 to read as follows:
The arbitration award issue by the first respondent under case no LP
1184-07 on 21 February 2008 is reviewed and set aside
The commissioner’s award is substituted by the following:
“
The dismissal of the applicant was
substantively and procedurally unfair.”
The third respondent is to pay the costs of these proceedings.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
Appearances
For the applicant: Ms M Edwards: PVWM Attorneys
For the respondent: No appearance