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[2012] ZALCCT 30
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Solid Doors (Pty) Ltd v Hanekom NO and Others (C 151/2012) [2012] ZALCCT 30 (25 July 2012)
Not reportable
Of interest to other judges
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case
no: C 151 / 2012
In the matter between:
SOLID DOORS (PTY) LTD
Applicant
and
COMMISSIONER jp HANEKOM N.O.
First Respondent
CCMA
Second Respondent
ANDRÉ AFRICA
Third Respondent
Heard
:
5 June 2012
Delivered
:
25 July 2012
Summary:
Review – misconduct – LRA s 145 –
reinstatement without backpay – within range of reasonable
outcomes.
JUDGMENT
STEENKAMP J
Introduction
The employee, Mr André Africa (the third respondent) was in
charge of dispatch at the applicant’s Cape Town branch.
He was
dismissed for gross negligence after goods to the value of R135 000
had allegedly been dispatched to a bonus customer.
The arbitrator
(the first respondent) found that the employee had committed
misconduct but that it amounted to negligence, not
gross negligence.
He considered dismissal not to be a fair sanction. He ordered the
applicant to reinstate the employee with
effect from 14 June 2010.
The effect of this award was that the employee had been suspended
without pay for 6 months. The award
was coupled with an order to
issue a final written warning for negligence in the performance of
duties causing financial loss
to the company, effective for 12
months from 14 June 2010.
The applicant submits that the award and conclusion is so
unreasonable that no other arbitrator could have come to the same
conclusion.
1
It seeks to have the award reviewed and set aside in terms of s 145
of the LRA.
2
Background facts
The employee had worked for the applicant, Solid Doors, since
October 2002. He was dismissed on 9 December 2009 for misconduct
comprising “gross negligence – loss of goods”.
At the time of his dismissal, the employee was in charge of dispatch
at the Cape Town office. He had to ensure that all deliveries
for
sales orders are dealt with in accordance with the applicant’s
procedures. The financial manager, situated at the applicant’s
head office in Johannesburg, had to sign off on credit approvals for
sales orders. Once that had been done, the employee would
dispatch
the goods to the delivery address. He did not deliver it himself –
a driver did so.
In the case that led to the employee’s dismissal, a company
called Security and Fire Projects (Pty) Ltd (SPF) applied for
credit
on several occasions. The financial manager granted credit and goods
were either delivered to SPF or the customer collected
it from the
applicant’s premises in Cape Town. However, it transpired
that, although SPF was an existing customer, a fictitious
or bogus
customer applied for credit using SPF’s credentials. The
financial manager granted credit approval for sales orders
to the
value of R135 000. The bogus customer gave the delivery address
as 121 Stock Road, Philippi; it transpired later
that this address
does not exist.
The bogus customer collected goods from the applicant’s Cape
Town branch on 4 November 2009. On 11 November 2009 the truck
driver, S Kume, was dispatched to deliver goods to 121 Stock Road.
He could not find the address and telephoned the employee,
Africa.
The employee phoned the customer, who told him that he would send
someone to show the driver where to deliver the goods.
The customer
did so after telephoning Kume, and told the driver to drop the goods
under a clump of trees next to the Philippi
train station in Stock
Road. Kume did not tell Africa about the unusual place of delivery.
Subsequent to this incident, the bogus
customer collected goods from
the applicant again on five occasions.
The applicant’s case was that Africa was in charge of dispatch
and that he should have made sure that the customer to whom
goods
were delivered, was a legitimate customer at a legitimate address.
His failure to do so amounted to gross negligence and
caused a loss
of R135 000 to the applicant. The employee argued that another
department had granted credit approval; that
he dispatched the goods
on the strength of this approval; and that he had acted on the
information that the customer had given
him with regard to the place
of delivery.
The award
The arbitrator took into account the evidence of Letcher, the
applicant’s regional manager, about the delivery policy.
He
testified that customers should put their stamp on delivery notes to
acknowledge receipt; and that, if the delivery address
could not be
found, the driver should return to the depot.
The driver, Kume, however testified that the employee (Africa) could
authorise delivery at small companies without calling for
a rubber
stamp. He also testified that the customer telephoned him (Kume) and
sent someone to show him where to drop the goods.
The arbitrator came to the conclusion that the applicant had led no
evidence to show that the employee had been involved in any
fraudulent activity or that he had been part of a conspiracy to
steal goods from the applicant. However, he found that the employee
had been negligent in the performance of his duties. He should not
have left it to the driver and the customer to agree to a
delivery
address. He “should have done more” to ensure that the
goods were delivered to the right customer. Nevertheless,
he could
not be held solely responsible for the loss of R135 000; the
department that granted the credit approval should
have ascertained
the address of the customer before it granted credit.
Having considered the evidence as a whole and the employee’s
personal circumstances, as well as his clean disciplinary
record
during seven years’ service with the applicant, the arbitrator
came to the conclusion that dismissal was not a fair
sanction.
However, the employee had been negligent and should not get off scot
free. The arbitrator therefore ordered the applicant
to reinstate
the employee with effect from 14 June 2010 only, coupled with a
final written warning, effective for 12 months from
that date; for
negligence in the performance of his duties causing financial loss
to the company. The upshot is that the employee
was effectively
given a sanction of six months without pay, coupled with a final
written warning.
Review grounds
The applicant raised two grounds of review:
The arbitrator should have found that the employee should have
instructed the driver to return to the depot, and not that the
loss
was also attributable to the department that granted credit
approval.
The failure of the department granting credit approval had no
bearing on the employee’s own responsibility to ascertain
he
correct delivery address.
Evaluation / Analysis
Neither of the two grounds of review raised by the applicant in its
pleadings or in its heads of argument constitutes a proper
review
ground as set out in
Sidumo & Ano V Rustenburg Platinum Mines
Ltd & Ors.
3
I will nevertheless consider the applicant’s argument in the
light of that test, viz whether the arbitrator’s finding
was
so unreasonable that no other arbitrator could have come to the same
conclusion.
It is so that Letcher testified that the driver should have returned
to the depot rather than making the delivery. But the arbitrator
did
not exonerate the employee; he found that he was indeed negligent,
but that dismissal was not a fair sanction. That finding
falls
within a range of reasonable outcomes.
The commissioner conducts an arbitration
de novo.
In the
light of the totality of circumstances, established by the evidence
at arbitration, the commissioner must then decide
whether the
decision to dismiss was fair. In doing so, it is the commissioner’s
own sense of fairness that must prevail.
There can be no deference
to the employer. As Davis JA confirmed in the LAC’s recent
discussion of the
Sidumo
test in
Wasteman Group v SAMWU &
Others
4
:
“
The
commissioner is required to come to an independent decision as to
whether the employer’s decision was fair in the circumstances,
these circumstances being established by the factual matrix
confronting the commissioner.”
That is what the arbitrator did in this case. His conclusion may
have been open to appeal, but not to review.
Costs
With regard to costs, I take into account that the employee had
committed misconduct. He was negligent and was at least partially
responsible for a significant loss to the applicant. Even though he
has been successful, I do not think it appropriate in law
and
fairness to make an order as to costs.
Order
The application for review is dismissed. There is no order as to
costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
Attorney Craig
Berkowitz, Johannesburg.
THIRD RESPONDENT:
Inus Ferreira
Instructed by Africa &
associates, Cape Town.
1
Ie
the test set out in
Sidumo v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405 (CC).
2
Labour
Relations Act 66 of 1995
.
3
(2007)
28
ILJ
2405 (CC).
4
Unreported,
CA 6/2011 (8 March 2011).