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[2012] ZALCCT 31
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New Dodge Waterfront Partnership t/a Dodge Diner v Commission for Conciliation Mediation and Arbitration and Others (C 59/2011) [2012] ZALCCT 31 (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 59/2011
In the matter between:
THE NEW DODGE WATERFRONT PARTNERSHIP t/a DODGE DINER
Applicant
and
CCMA
First Respondent
COMMISSIONER JJ KITSHOFF N.O.
Second Respondent
STEWARD MASHOKO
Third Respondent
Heard
:
29 May 2012
Delivered
:
25 July 2012
Summary:
Review – LRA s 145 – range of reasonable
outcomes – not reviewable.
JUDGMENT
STEENKAMP J
Introduction
This is an application for review in terms of s 145 of the LRA.
1
The employee, Mr Steward Mashoko (third respondent) was dismissed
for misconduct. A CCMA commissioner (second respondent) found
that
his dismissal was not for a fair reason. He ordered the applicant to
reinstate the employee retrospectively. The applicant
employer
submits that the award is reviewable.
The applicant was initially represented by an attorney, Mr Brendan
Guy. Its pleadings were drafted by the attorney. At the hearing
of
argument, though, the applicant was represented by its sole
proprietor, Mr G Aquadro. The employee was represented by an
attorney.
Background facts
The applicant operates a takeaway restaurant at the V&A
Waterfront in Cape Town. The employee worked as an ice cream maker
from July 2007. He was dismissed for misconduct, comprising the
alleged theft of money from a locked safe on 1 June 2010. At
the
time of his dismissal, he had a clear disciplinary record.
On 22 March 2010 the applicant’s manager noticed that some R
20 000 had gone missing from a locked holding safe on the
premises.
Three employees (including Mashoko) were asked to submit to
polygraph tests on 30 March 2010. The results were that
the other
two indicated no deception, whereas Mashoko did.
The employee was criminally charged with theft. The state withdrew
charges on 14 May 2010. He returned to work.
A disciplinary hearing took place on 27 May 2010. The employee was
accused of misconduct in these terms: “Removal of property
without consent – cash”. The chairperson, Ms Zarina
Holmes, found that he had committed the misconduct and he was
dismissed. This finding was confirmed in an internal appeal.
The award
The award under review pertains to a second arbitration. The first
award – in which a different arbitrator came to a similar
finding – was rescinded because the employer party had not
received proper notice.
At the second arbitration, the applicant was represented by its
Labour Relations Manager, Ms Zarina Holmes. The employee represented
himself. Ms Holmes produced a written document comprising eleven
pages of prepared notes, including an opening statement. She
testified and called a further two witnesses, viz Mr Zane Scheepers,
a driver; and Mr Glenn Aquadro, the new partner in the applicant
partnership who is now the sole proprietor and represented the
applicant in these proceedings. The employee testified on his
own
behalf.
The arbitrator came to the conclusion that there was no fair reason
for dismissal. He found that it was common cause that the
employee
arrived at the shop on 22 March 2010 and that he went to the counter
area to retrieve papers that he needed to do his
work. He further
found that it was common cause that the safe and the file shelf are
adjacent to each other and that the CCTV
camera cannot film what
happens below the level of the countertop and that the CCTV footage
did not record the manager, Mohamed,
placing the money bag into the
safe or that the employee opened the safe and extracted the money
bag. He found, therefore, that
it was not necessary for him to view
the CCTV footage on site.
The arbitrator then considered whether the employee had committed
the misconduct on a balance of probability. He found that the
applicant had not provided any proof that the employee had a key to
the safe, or that he opened the safe, or that he had the
missing
money in his possession. The applicant did not subpoena the
employee’s banking account details in an effort to
prove that
he deposited an amount equal to the missing sum into his account.
Without any such proof, the arbitrator could not
arrive at a
determination that the employee had, on a balance of probability,
taken the money.
Having found that the applicant had not discharged its onus to prove
that the employee had removed the money, the arbitrator
found that
there was no fair reason for dismissal and that reinstatement was
the primary remedy.
Review grounds
The applicant raised four grounds of review:
The Commissioner "misapplied himself in respect of this
arbitration award and committed gross irregularities and his
decision is not one that a reasonable decision maker could have
reached."
The Commissioner erred in finding that the applicant's case was
based on supposition and failed to find that the applicant’s
circumstantial evidence was sufficient on a balance of probability
to find the employee guilty on a balance of probability.
The Commissioner did not consider the applicant’s complaint
that it did not receive the employees CCMA form 7.11.
The Commissioner refused the applicant’s request for an
inspection in loco as the Commissioner did not think it was
necessary.
Evaluation / Analysis
I shall consider each of the review grounds in turn.
Ground 1: Reasonable decision?
The first ground of review is clearly based on the test set out in
Sidumo
.
2
The applicant did not set out any reasons in his affidavit why the
finding of the arbitrator was so unreasonable that no other
arbitrator could have come to the same conclusion. It appears from
the record that the arbitrator applied his mind to the evidence
before him and, on a balance of probability, came to the conclusion
that the applicant has not discharged the onus of showing
that the
employee had been dismissed for a fair reason. This finding is
within a range of reasonable outcomes and is not reviewable.
Second ground: circumstantial evidence
The applicant submits that the arbitrator should have found that the
circumstantial evidence was sufficient on a balance of probability
to find that the employee had committed the misconduct.
Specifically, the applicant submits that the employee had no reason
for crouching down in front of safe; and that he was the only person
during the relevant time frame with the opportunity to have
committed the offence.
It is clear from the evidence at arbitration, and the arbitrator
reasonably found, that the safe from which the money was removed
is
not visible on the CCTV footage. It is located under a counter. The
employee kept his work file on a shelf under this counter.
It was
not possible to see whether the employee opened the safe when he
retrieved his file; and there was no evidence that he
had a key to
the safe. It is common cause that he was not entitled to carry a key
to the safe.
The primary reason for the applicant to have eliminated the other
two suspects and to have focused on Mashoko was because his
polygraph test had indicated deception. That does not constitute
evidence of misconduct, as the arbitrator correctly found. The
arbitrator's finding in this regard is not unreasonable.
Third ground: Applicant not served with form 7.11
There is no merit in this ground of review. The employee’s
legal representative served the referral form on the applicant’s
then legal representative in terms of the rules of the CCMA. The
first arbitration award was rescinded. Both parties attended
the
second arbitration. There are no pleadings in the CCMA. It is clear
from the record that the applicant knew exactly what
the nature of
the dispute was.
Fourth ground: refusal to conduct an inspection in loco
In my view, this is the only review ground that may, on the face of
it, have some merit. One is tempted to conclude that the
arbitrator
should have made use of the best evidence available in the form of
CCTV footage; and that the matter should be remitted
for another
arbitrator to make use of this opportunity.
However, on a close reading of the record and the award, it becomes
apparent why the arbitrator did not deem it necessary to
view the
footage on site. He explained that everyone had agreed at the
arbitration hearing that the CCTV footage did not show
the door of
the safe or whether the employee had a key in his hand when he bent
down to retrieve his file. In these circumstances,
it would have
served no purpose for the parties to view the footage again in the
presence of the arbitrator. When the arbitrator
discussed this with
the applicant’s representative, Ms Holmes, in the arbitration
hearing, she did not object.
I am satisfied that the decision of the arbitrator not to review the
CCTV footage or to conduct an inspection in loco was not
unreasonable and that it did not deprive the applicant of a fair
hearing.
Conclusion
The application for review cannot succeed on any of the four grounds
raised by the applicant. With regard to costs, I take into
account
that the employee – who earned R3 900 per month -- has
had to incur legal costs to defend an arbitration award
in his
favour; and that the applicant filed its heads of argument late,
after the employee had filed his heads. I have granted
condonation
for the late filing of the applicant’s heads of argument, but
the applicant should, in law and fairness, be
ordered to pay the
employee’s costs.
Order
The application for review is dismissed with costs.
_______________________
Steenkamp J
APPEARANCES
APPLICANT:
Mr G Aquadro
(employer).
THIRD RESPONDENT:
Ms L Macnab of
Chennels Albertyn attorneys.
1
Labour
Relations Act 66 of 1995
.
2
Sidumo
v Rustenburg Platinum Mines Ltd
(2007) 28
ILJ
2405 (CC).