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[2012] ZALCJHB 109
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Chipkins Catering Supplies (Pty) Ltd v FAWU obo Mashiane and Others (JR962/08) [2012] ZALCJHB 109 (8 March 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No: JR962/08
In
the matter between:
CHIPKINS
CATERING SUPPLIES (PTY) LTD
Applicant
and
FAWU
obo MASHIANE PHINEAS
First Respondent
COMMISSIONER
M C MELLO
Second Respondent
COMMISSIONER
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Third Respondent
Heard:
15 December 2011
Delivered:
8 March 2012
______________________________________________________________________
JUDGMENT
______________________________________________________________________
KUMALO
AJ:
[1]
This is an application by the applicant, CHIPKINS CATERING SUPPLIES
(PTY) LTD, for
an order in the following terms:
(a)
That the Arbitration Award dated 8 April 2008, issued by Mehlomelele
Christopher Mello of
the Commission for Conciliation, Mediation and
Arbitration under case number LP 1383-08, and served upon the
applicant on 25 April
2008, be reviewed and set aside;
(b)
Alternatively that this matter be remitted to the third respondent
who shall appoint another
Commissioner.
(c)
Directing the first respondent and any other respondent who wishes to
oppose this application
to pay the applicant
’
s
costs;
(d)
Further and/or alternative relief.
[2]
The founding affidavit of Michael Lockley was used in support of the
application.
A supplementary affidavit served in terms of rule 7 A(8)
was filed after the handwritten notes of the DC Enquiry chairman, and
the documentation handed in by the applicant at the Arbitration
hearing had been delivered by the second respondent.
[3]
The disciplinary hearing was held on 30 January 2008, chaired by
Chris Campbell who
works for the Chipkins Bakery, which is part of
the Bidvest Group. The employee, Phineas Mashiane, was represented by
the Trade
Union FAWU. The employer, by Michael Lockley, Human
Resources Director, of the applicant.
Background
[4]
At the disciplinary hearing the charge against the employee was
misconduct for gross
negligence in that the employer suffered stock
losses of about R96, 000 in January 2008. At that time it was alleged
he was the
only employee who had the key to Sea World store room
where the stock losses occurred. The other employee of the applicant
who
had a key to the store was on leave. He was in Malawi from the
middle of December 2007 to the middle of January 2008.
[5]
The disciplinary hearing was concluded on the 4 February 2008. He was
found guilty
and was dismissed. He appealed against his dismissal;
that appeal was dismissed on 14 February 2008.
[6]
The Arbitration hearing was held on the 27 March 2008 before the
Commissioner Mello,
the matter having been referred to the Commission
for Conciliation, Mediation and Arbitration for
conciliation-arbitration; had
remained unresolved after conciliation.
Applicant’s
Evidence
[7]
The evidence for the employer was given by James Alfred Jeffries
Parmiter, the Operations
Manager. He said in evidence that the charge
was gross negligence where the first respondent was responsible for
ensuring the stock
control of the hardware and liquor storeroom at
Sea World as he was the only person in possession of the storeroom
key at Sea World
and as a result of his actions the company incurred
a stock loss of minus-plus R89, 000 on 18 January 2008.
[8]
He said when the stock arrives at the Chipkins warehouse; a receiving
clerk will receive
the stock, verify the stock on the invoice to the
actual stock, sign the invoices and would put the invoices to the
buying department
where they will read the stock into the system
which is called the GRV (Goods Received Voucher). They will then
print a second
report called the GRN (Goods Received Note). Then the
first respondent in the case of the Sea World stock will check the
stock
from the GRN. He will secondly check the stock to confirm that
it was correctly received into the store.
[9]
Parmiter will then arrange transport for the goods to be taken to the
Sea World warehouse
by the driver and first respondent where they
would unload it and secure it in the storeroom. The reason the first
respondent would
go with the driver is that he was the only person
with the key for the storeroom.
[10]
When stock has to be taken from Sea World to Chipkins the first
respondent would take the picking
slips, pick the stock with the
driver and load it onto the delivery vehicle, off-load it at chipkins
where the stock would be invoiced
for the following day’s
delivery.
[11]
When cross-examined on behalf of the first respondent, Parmiter said
in his answer that he was
appointed as a picker with extra
responsibilities but did not know whether that was in his contract of
employment. He agreed that
Moffard Matika was the other person with a
key to the Sea World storeroom, but that key he kept in the cabinet.
[12]
He said when they load the stock at Chipkins to take to Sea World the
first respondent will check
the stock for any discrepancies and if
there were any, will report them to him. He said after the delivery
vehicle had been loaded
at Chipkins the driver would lock its door,
and agreed that there was a possibility that they might unlock the
door and steal the
stock.
[13]
In re-examination he agreed that Moffard did have access during the
day to the Sea World storeroom
with his own key without the first
respondent being there. He was not sure when he had done that but
thought that it was during
the middle of December 2007 and the middle
of January 2008. He would have a picker
’
s
list which showed, for example, how much Black Label was
needed, and how much castle. He would be doing that with the driver.
First
respondent’s evidence
[14]
The first respondent gave evidence. He said he was a picker and his
duty was to take out the
stock for the customers. At Chipkins he was
not the one checking the stock that was going to Sea World. He would
be in the warehouse
doing another job. He would not know how much
stock was loaded. He would not be given any forms or papers for it.
He had nothing
to do with the Goods Received Voucher (GRV). That was
the responsibility of France and Nomri. At Sea World he and the
driver would
just off-load the stock and take it to the storeroom.
[15]
He said he was given the key by Kerspen in November and was told by
him he was just the keeper
and not the controller. When stock taking,
he would shout how much stock there was, Parmiter would be writing it
down but he would
not check what he wrote down.
[16]
Under cross-examination he said he was not unhappy with the fact that
Campbell was going to be
the chairman nor did he have a problem with
that. He said he was not aware of any managers from outside Chipkins
Catering that
come to chair Disciplinary Committee enquiry.
[17]
He said he did not get the goods received note (GRN) and that was the
truth. It was Nomri
Malatho who is a clerk who did the second check
for stock received. He was not responsible for the hardware store at
Chipkins as
well as the liquor store at Sea World.
[18]
He said he knew that Moffard did go to the Sea World warehouse
without his knowledge, this was
before his dismissal. It was middle
of December 2007 before Moffard went on leave and before the
stocktaking at middle of January
2008.
[19]
The applicant then sets out in paragraphs 5-11 of his supplementary
affidavit what he claims
is ‘…uncontested evidence…’
before the commissioner, and what is ‘…also manifest
from the
record…’
[20]
But an examination of the record of the Disciplinary Committee
enquiry shows that the applicant
merely repeats what he said in his
opening address, the evidence in chief of his only witness, James
Parmiter, the latter’s
cross-examination, the exchanges between
himself and the commissioner when the latter was seeking
clarification of what is being
said and lastly, his concluding
submissions to the commissioner.
[21]
So far from the evidence before the commissioner being uncontested,
it remained fiercely disputed
by the respondent employee. So when the
commissioner drew the conclusion at paragraph 7.5 of the award that,
‘
I therefore do not accept the
Respondent’s contention that the Applicant was the only person
who could have caused the stock
losses. Even if the applicant was
responsible for the safekeeping of the stock, the fact that some
senior officials of the company
had the keys to the warehouse makes
it unfair to single out the applicant as the culprit. On this basis I
find that the dismissal
was substantively unfair because the
Respondent had failed to prove on a balance of probabilities that the
Applicant had committed
the alleged misconduct.’,
he
was not accepting that the respondent was the culprit. He was well
aware of the thrust of the respondent’s defense as set
out in
the above paragraph, in particular that Mr. Matika, the General
Manager, also had a key to the Sea World warehouse and was
found by
the respondent inside the warehouse. This was between mid-December
2007 and mid-January 2008, in any event before the
stock taking on
the 18 January. The Commissioner said:
‘
The Respondent could not
sufficiently challenge this allegation as Mr. Matika was not at the
arbitration hearing to rebut it.’
and
he concluded,
‘
It is therefore clear that not
only the Applicant had access to the warehouse where the stock in
question was kept, but other employees
of the Respondent also had
access.’
[22]
The applicant’s criticism of the decision of the commissioner
in paragraph 7.5 of the award,
and in paragraphs 12 – 16 of his
supplementary affidavit (page 168 index bundle), is on three counts,
namely it suggests
that the commissioner
(1)
concluded that the employee was responsible for the stock.
(2)
did not understand the evidence before him, namely that at the time
of the loss the only
person who had keys was the employee.
(3)
seemed to accept that the employee was indeed a culprit but that
there must have been other
culprits, which was not the evidence
before him.
He
then concludes that the commissioner’s decision is not the
decision a reasonable decision-maker would have reached after
a full
conspectus of the evidence presented at the arbitration.
[23]
In
Pep
Stores (Pty) Ltd v Laka
NO
and Others,
[1]
Mlambo J, as he then was,
said:
‘
Where a commissioner has
considered all the facts of evidence before him and applied relevant
legal principles, his award is not
reviewable simply because someone
else or any court would have come to a different conclusion if seized
with the same matter. The
Act makes no provision for an appeal from
arbitration proceedings of the Commission and this Court cannot
import same into its
power or jurisdiction under the guise of
reviews.’
[24]
I am of the view that the applicant’s criticism, as set out in
paragraph 22 above,
simply amounts to no more than that the award is
reviewable because any commissioner seized with the same matter would
have come
to a different conclusion. This is not the test for the
reason that the learned judge in the above case stated. The applicant
has
not pointed to any serious error of law committed by the
commissioner. It was common cause between the parties at the
disciplinary
enquiry that the first respondent had been dismissed
from his employment and the commissioner correctly stated that, as
the existence
of the dismissal is established, the onus was on the
employer to prove that the dismissal was fair and that this was in
terms of
section 192(2) of the Act, as amended; that in the
circumstances the applicant employer must prove on the balance of
probabilities
that it was the first respondents ‘negligent`
conduct which caused the
alleged stock losses in January 2008. He failed to do this.
[24]
In my view the commissioner weighed up all the relevant facts and
circumstances of the case and
came up with a conclusion of which it
cannot be found that a reasonable decision maker in the position of
the commissioner could
not reach the conclusion which he did. See
Edcon v Pillemer NO and Others
[2007] ZALC 101
;
[2008] 5 BLLR 391
(LAC) at p
398H.
[25]
Accordingly, the application for the review and setting aside of the
arbitration award made by
commissioner MC Mello on 8 April 2008 under
case no LP1383-08 (“the Arbitration Award”) is dismissed
with costs.
__________________
Kumalo
AJ
APPEARANCES:
FOR
THE APPLICANT: Advocate Sarah
Wainwright
[1]
(1998) 9 BLLR 952
(LC) at para 33, at
962. .