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[2011] ZALCJHB 97
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Value Furnishers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 2019/08) [2011] ZALCJHB 97 (10 November 2011)
REPUBLIC OF SOUTH AFRICA
Reportable
THE LABOUR COURT OF SOUTH AFRICA, johannesburg
JUDGMENT
case
no: JR 2019/08
In the matter between:
value
furnishers (PTY) LTD
…...................................................................
Applicant
and
commission
for conciliation,
mediation
and arbitration
…..........................................................
First
Respondent
DLAMINI S N.O
…......................................................................
Second
Respondent
LABOUR EQUITY GENERAL WORKERS OF
SOUTH AFRICA
….........................................................................
Third
Respondent
MAKALENI J
…............................................................................
Fourth
Respondent
Heard
:
20 October 2011
Delivered: 10
November 2011
judgment
BHOOLA J
Introduction
This is an application in terms of section 145 of the Labour
Relations Act, 66 of 1995 (the Act), for the review and setting
aside of the award issued by the second respondent (the arbitrator)
on 3 August 2008 in which the dismissal of the fourth respondent
(the employee) was found to have been substantively unfair and the
applicant was ordered to reinstate her.
Condonation is sought for the late filing of the applicant’s
heads of argument and is granted. Although a notice of opposition
was entered, there was no answering affidavit filed by the fourth
respondent and the matter was enrolled as unopposed.
Background facts
The employee was a stock clerk who was transferred from the
Germiston to the Alberton branch of the applicant on 19 July 2007.
She was responsible for all aspects of stock control including
incoming and outgoing stock as well as tracking the movement of
stock and conducting stock takes.
On 8 October 2007, she was subjected to a disciplinary enquiry on
charges of poor work performance and / or negligence in the
performance of her duties. She was found guilty and on 15 October
2007 was issued with a final written warning valid for six
months.
On 30 October, 9 and 16 November 2007, the employee undertook
sectional stock-takes at the branch, and reported to the applicant’s
head office that there were no shortages or ‘overs’ (in
the applicant’s parlance ‘nil deviations’).
The
branch manager, of the Alberton branch, Van der Merwe, resigned on
short notice on 4 December 2007 and a full stock-take
was conducted
by head office at the branch. This was undertaken by the employee
together with Van Zyl (from head office) and
Symes (the new branch
manager). The stock-take revealed a stock loss of some R27 000,
which was adjusted to R20 000 after a reconciliation
exercise.
On 7 December 2007, the employee was charged with gross negligence
in the performance of her duties as a stock clerk at the Alberton
branch and was suspended pending the outcome of a disciplinary
enquiry. Following a disciplinary enquiry, she was dismissed on
20
December 2007.
Grounds of review
The principal ground of review is that the arbitrator, in reaching
the conclusion that the employee was not guilty of the misconduct
for which she was dismissed, failed to apply his mind to the
evidence led, to the extent of committing a gross irregularity.
In support of this ground of review, counsel for the applicant
submitted that the arbitrator did not consider all the reasons
advanced for the dismissal. He failed to apply his mind to the
balance of the ‘discrepancies’ for the dismissal
identified in the disciplinary enquiry as indicators of the
employee’s negligence. The discrepancies were listed as
including
(i) free gifts, (ii) theft of stock by others (iii)
outstanding debit notes for repairs (iv) eight base sets missing (v)
delivery
note file (vi) sectional stock takes (vii) items not marked
and (viii) repairs register. None of these are dealt with in the
arbitrator’s evaluation of evidence and argument, and although
he dealt briefly with the sectional stock-take issue he paid
no
regard to the issue of free gifts or the other issues, on which
extensive evidence was led.
In addition, the arbitrator was preoccupied with irrelevant and
extraneous issues. Despite finding that it was common cause that
the
employee was required to conduct three sectional stock takes per
month, and that she conducted only one in October and two
in
November following which she reported a ‘nil deviation’,
and that losses occurred which were only identified by
the branch
stock-take conducted on 5 December, the arbitrator did not focus on
the misconduct but instead applied his mind to
irrelevant issues.
These included what he identified as a ‘critical’
question regarding the absence of Van der Merwe
in the disciplinary
enquiry of 8 October. He proceeded to question the absence of Symes,
the new branch manager from the enquiry
of 18 December, and the
value of the evidence of the regional manager (Gordon) who ‘got
involved intimately with the issues
of the branch when there was a
branch manager at any given time’. Needless to say, these
issues have no bearing on the
charges against the employee. Without
attempting however to explain this conclusion he instead returns to
questioning Gordon’s
role and the existing reporting lines in
minute detail. He concluded as follows :
‘
Gordon
is a problematic witness
1
because
he did not explain why he took the responsibilities of branch
manager, even becoming the “complainant” when
the branch
manager was still there. He is the regional manager...[he] mentioned
that he has open communication with the employees,
but this cannot be
used to undermine established structures like reporting lines between
respective managers and subordinates’.
The arbitrator paid scant regard to the sectional stock-take issue,
which was key to determining the substantive fairness of
the
dismissal. His finding in this regard, which is quoted below, is
indicative of a complete failure to apply his mind to the
issue he
was required to determine.
‘
..
[The employee] submitted that after two..weeks of the last sectional
stock-take having taken place, the shortage could result
after this
time. She stated that two weeks is a long time. The [applicant] never
responded to this, and I have no option but to
agree with [the
employee] in this regard’.
[11] This version of the employee was accepted by the arbitrator
despite the fact that it was not put to Gordon in cross-examination.
Indeed, he was not cross-examined much on the substantive merits of
the employee’s dismissal. In finding in the employee’s
favour on this aspect, the arbitrator committed a gross irregularity.
[12] The arbitrator failed to have regard to the fact that the
employee was not charged with causing the stock loss of R20 000
per
se
but with gross negligence in performing her duties as a stock
clerk. The fact therefore than if the stock went missing in the
period
between 16 November 2007 (when the last proven stock take was
undertaken by her) and 5 December 2007 (the date of the head office
stock take), the employee was by no means innocent of any wrong doing
because
inter alia
the 16 November stock take had only been a
sectional one not a complete one, with the result that its reflecting
a ‘nil deviation’
did not mean that stock was not missing
from other sections (which she had not counted since 16 November). In
any event, he disregarded
evidence that she failed to undertake the
third sectional stock take at the end of November, which according to
the evidence may
well have resulted in early detection or may well
have deterred malfeasance. The fact that the employee was in overall
control
of stock at the branch and could not provide any tenable
explanation for what was a considerable stock loss at the branch was
not
at all considered.
[13] Lastly, the relief ordered by the arbitrator indicates that,
contrary to his conclusion on the merits, he nevertheless considered
her to be guilty of the offence. She was deprived of back pay of
three and half months which can hardly be reconciled with a finding
that there was no substantive fairness for her dismissal. In the
result, as was submitted by Mr Myburgh, the award is mutually
contradictory, which reaffirms the fundamental failure by the
arbitrator to apply his mind to the evidence before him.
Conclusion
[14] As was submitted by Mr Myburgh, the Labour Appeal Court has on a
number of occasions upheld the setting aside of awards on
this
ground
2
.
An alternative ground for the review is that the arbitrator acted
unreasonably (in the process-related sense in which the term
was
explained by Van Niekerk J in
Southern Sun Hotel Interests (Pty)
Ltd v CCMA and Others
[2009] 11 BLLR 1128
(LC) at paras 14, 17).
[15] For the reasons submitted by the applicant as set out above, the
review must succeed on the main ground. It is therefore not
necessary
to consider whether the award is also reviewable on the alternative
ground.
[16] The employee was on a final written warning at the time and
failed to undertake the required stock takes. She was therefore
guilty of gross negligence in the performance of her duties. Had the
arbitrator applied his mind properly to the determination
of this
issue, as well as to all the evidence before him, and refrained from
a focus on irrelevant and extraneous issues, the outcome
would in all
likelihood have been different. The record clearly sets out the
evidence and issues for determination and no purpose
would be served
by remitting the matter for determination
de novo
[17]
Order
In the premises, I make the following order :
The award is reviewed and set aside.
The arbitrator’s decision is substituted with an order that
the dismissal of the employee was substantively fair.
There is no order as to costs.
_______________________
U Bhoola
Judge
APPEARANCES
APPLICANT: A T Myburgh SC instructed by Tabacks .
RESPONDENT: No appearance
1
Counsel’s
underlining.
2
See
inter alia
County Fair Foods (Pty) Ltd v CCMA and Others
(1999) 20 ILJ 1701 (LAC) at paras 18,19,38 and 40;
Stocks Civil
Engineering (Pty) Ltd v Rip NO and Another
[2002] 3 BLLR 189
(LAC) at paras 91-92;
Crown Chickens (Pty) Ltd t/a Rocklands
Poultry v Kapp and Others
[2002] 6 BLLR 493
(LAC) at paras
60-64;
Miladys, a division of Mr Price Group Ltd v Naidoo and
Others
[2002] 9 BLLR 808
(LAC) at paras 31-33 and
Maepe v
CCMA and Another
[2008] ZALAC 2
;
[2008] 8 BLLR 723
(LAC) at paras 8, 22.