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[2013] ZALCJHB 30
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Continental Oil Mill (Pty) Ltd v Singh NO and Others (JR 2152/2010) [2013] ZALCJHB 30; (2013) 34 ILJ 2573 (LC) (24 January 2013)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable/
Not
Reportable
Case No JR 2152/2010
In the matter between:
CONTINENTAL
OIL MILLS (PTY) LTD
.....................................................................
Applicant
and
COMMISSIONER M SINGH
N.O.
..................................................................
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
............................................................
Second
Respondent
MPHO MOEKETSI
........................................................................................
Third
Respondent
Heard: 11 January 2013
Delivered: 24 January
2013
Summary: A dismissal
for theft was challenged on the grounds that the employee had no
knowledge of the item in her bag and that
she was wrongfully found
guilty of theft. Held that commissioner had failed to consider all
the material facts. Her conduct was
irregular. Award reviewed and set
aside.
JUDGMENT
SEEDAT
AJ
Introduction
[1] Before me is an
application to review and set aside the arbitration award issued by
the first respondent (commissioner) on 8
June 2010 declaring the
dismissal of the third respondent (employee) by the applicant to be
procedurally unfair and without a fair
reason.
[2] It is common cause
that when the employee left the premises of the applicant on the
afternoon of 8 April 2010, a bottle of mayonnaise
was found in her
bag by a security officer. She was suspended and subsequently
dismissed on the charge of ‘Unauthorised possession
of 1 x 740g
Conti Canola Mayonnaise – theft on 08/04/2010’
[3] Effectively, at the
arbitration hearing the employee denied knowledge of the bottle of
mayonnaise in her bag.
Condonation
[4] Both the application
for review and the response to the review application were served out
of time. At this hearing, Mr Boda,
representing the applicant and Mr
Hutchinson, on behalf of the employee, withdrew their respective
opposition to the applications
for condonation. Nonetheless, I still
retain the discretion to grant or refuse the condonation (
Independent
Municipal & Allied Trade Union on behalf of Zungu v SA Government
Local Government Bargaining Council and Others
(2010) 31 ILJ 1413
(LC) at para 11;
SA Post Office Ltd v CCMA
(2011) 32 ILJ 2442
(LAC) at para 17)
[5] The broad principles
that underpin the determination of condonation draw their lineage
from the seminal decision of
Melane v Santam Insurance Co Ltd
1962 (4) SA 531
(A) and have authoritatively been restated by this
court and the appeal court. These principles include the degree of
delay, the
reasons for the delay, the prospects of success, and the
prejudice the parties will suffer if condonation is granted or
refused.
In
NUM v Council for Mineral Technology
[1999] 3 BLLR
209
(LAC) at para 10 the court said that these factors are
interrelated and not individually decisive. What is needed is an
objective
conspectus of all the facts. (see
Melane v Santam
Insurance Co Ltd
1962 (4) SA 531
(A)) A further consideration is
whether it is in the interest of justice to grant the condonation
(
National Education Health and Allied Workers Union on behalf of
Mofokeng and Others v Charlotte Theron Children’s Home
(2004) 25 ILJ 2195 at para 25;
SA Post Office Ltd v CCMA
(2011) 32 ILJ 2442 (LAC) at para 17)
[6] The applicant submits
that on receipt of the award from the second respondent, it was not
legally represented and erroneously
applied for a rescission of the
award. Only on being informed by the second respondent that
rescission was not the appropriate
cause of action for it, did the
applicant instruct attorneys who then launched the application for
review eight days out of time.
The delay is not substantial and the
explanation though not overwhelming, is reasonable and acceptable.
The prospects of success
as will appear from the review application
are favourable. In any event because the employee is not opposing the
condonation application,
the consideration of the prospects is
nugatory. In the circumstances the application for condonation for
the late referral of the
review application is granted.
[7] In her application
for condonation, the employee who too, was unrepresented after her
dismissal, says that she had opposed the
application for rescission
and assumed that she did not have to respond further to the review
application. It was only with subsequent
legal assistance that the
answering affidavit was filed. Though the period of the delay is
lengthy, in the circumstances it is
not unreasonable. The prospects
of success may not be promising, but again in the light of the
withdrawal of the applicant’s
opposition to the condonation,
does not warrant any consideration. However, it would be in the
interest of justice that the employee
be allowed a hearing in the
review application. The late delivery of the answering affidavit is
condoned.
Grounds of review
[8] The review
application is processed in terms of
section 145
of the
Labour
Relations Act 66 of 1995
principally on two grounds. First, that the
‘Arbitrator failed to apply her mind to material evidence
and/or rendered conclusions
which were so unreasonable that no
reasonable Arbitrator would have made’. Secondly, that the
sanction imposed is ‘unbalanced,
reflective of the fact that
the Arbitrator did not appreciate the gravity of the offence and is
so unreasonable that no reasonable
Arbitrator could have made it’.
The legal principles
[9] In
Vodacom (Pty)
Ltd v Byrne NO and Others
(2012) 33 ILJ 2705 (LC) at pages 2709ff
Van Niekerk J canvassed the applicable law pertaining to reviews of
commissioners’
awards and concluded at para 12:
‘
In short: a
commissioner is obliged to arrive at a result that is reasonable in
the sense that it falls within a band of decisions
to which
reasonable decision makers could come on the available evidence. In
doing so, the commissioner must act as a reasonable
decision maker
would, and in particular, must conduct him or herself in a manner
that a reasonable commissioner would, so that
the award is
reasonable. This requires a commissioner to have regard to all of the
relevant and material evidence, and to make
a decision that can be
reasonably justified having regard to the evidence. In relation to
sanction, a commissioner may not substitute
what he or she considers
to be an appropriate sanction for that imposed by the employer. The
commissioner must consider a catalogue
of factors, intended to
achieve a balance between employer and employee interests, and to
which a commissioner must give impartial
consideration.’
[10] In its exposition of
the principles applicable to a review application, the court in
Herholdt v Nedbank Ltd
(2012)
33 ILJ 1789 (LAC) found that an award will be reviewable ‘if it
suffers either from dialectical unreasonableness or
is substantively
unreasonable in its outcome’ (para 33). The former is process
related where the commissioner failed to consider
all the material
evidence while the latter is result based in that having considered
all the material facts the enquiry is directed
at how the
commissioner evaluated the evidence in making the award. Relying on
Fidelity Cash Management Services v CCMA and
Others
(2008) 29 ILJ 964 (LAC) the court
remarked that whether an award is reasonable must be determined
objectively having regard to all
the evidence that was before the
commissioner. It then held at para 39:
‘
One of the
duties of a commissioner is to determine the material facts and then
to apply the provisions of the LRA to those facts
in answering the
question whether the dismissal was for a fair reason. Commissioners
who do not do so do not fairly adjudicate
the issues and the
resulting decision and award will be unreasonable. Whether or not an
arbitration award or decision or finding
of a commissioner is
reasonable must be determined objectively with due regard to all the
evidence that was before him or her and
what the issues were. There
is no requirement that the commissioner must have deprived the
aggrieved party of a fair trial by misconceiving
the whole nature of
enquiry. The threshold for interference is lower than that; it being
sufficient that the commissioner has failed
to apply his mind to
certain of the material facts or issues before him, with such having
potential for prejudice and the possibility
that the result may have
been different. This standard recognizes that dialectical and
substantive reasonableness are intrinsically
interlinked and that
latent process irregularities carry the inherent risk of causing an
unreasonable substantive outcome.’
The
court continued at para 40:
‘
The court by
necessity must scrutinize the reasons of the commissioner not to
determine whether the result is correct; or for that
matter
substantively reasonable, but to determine whether there is a latent
irregularity that has taken place within the mind of
the
commissioner, which will only be ascertainable from his or her
reasons.’
Background
[11] The employee was
employed on the production line of the applicant.
[12] On 8 April 2010,
said the employee to the disciplinary enquiry, she took a bottle of
mayonnaise for testing at the laboratory.
[13] En route she met Ms
Kekana, a laboratory analyst, to whom she was taking the mayonnaise.
However, the two got talking on some
union matter and they slipped
into the change room to continue the discussion.
[14] Ms Kekana who
testified on behalf of the employee at the disciplinary enquiry, saw
her place the bottle of mayonnaise on the
locker. She did not take
the bottle with her when they both left a little while later.
[15] As they exited the
door, the employee saw Mavis, a co-worker, go into the change room.
When she returned shortly the bottle
of mayonnaise was not where she
had left it. She did not report the mayonnaise missing as she was
required to do.
[16] The employee was
therefore very surprised when the security officer, Ms Fourie, found
the bottle in her bag as she was leaving
the applicant’s
premises.
[17] She conceded that
she alone had the key to her locker where her bag was stored.
[18] Mavis Hlongwana,
impliedly accused by the employee of having placed the bottle of
mayonnaise in her bag, was called as a witness
by the applicant at
the disciplinary enquiry. No questions were put to her by the
employee or her representative who instead sought
to distance himself
from the suggestion that she may have put the mayonnaise in the
employee’s bag.
Evaluation
[19] In her analysis of
the evidence, the commissioner identified what she believed to be the
two issues she had to consider. The
first is whether the employee had
put the bottle of mayonnaise in her bag and second, if this amounted
to theft or unauthorized
possession.
[20] At the arbitration,
the evidence of the employee was:
‘…
when
I was with this lady by the name of Mavis, when I washed then I was
that side of the shower and on the other side I do not
know what they
did. Then I washed, then I finished, then I took my bag and left.’
The tenor of her evidence
insinuates that Mavis, a co-worker, had placed the bottle of
mayonnaise in her bag while she was in the
shower just before she
left – a version recounted by the employee for the first time
at the arbitration.
[21] She denied her
previous testimony that she had taken a bottle of mayonnaise from the
production line for testing at the laboratory.
When confronted with
the evidence given at the disciplinary enquiry by Ms Kekana, the
employee’s own witness, that she had
seen her with the bottle
of mayonnaise, the employee claimed that it was only a sample that
she was taking to the laboratory. Ms
Kekana had been emphatic that
she was responsible for fetching the samples for testing from the
factory. She also confirmed that
the employee had placed the bottle
of mayonnaise on top of the locker. The employee then left with Ms
Kekana and when she returned
to the change room the mayonnaise was
not on the locker. The employee did not report this to management.
Nobody could have accessed
her bag in the locker. She continued to
challenge the correctness of the transcript of the disciplinary
enquiry. Neither the employee
nor her representative put any
questions to Mavis Hlongwana at the disciplinary enquiry.
[22] I regard the overt
suggestion of some conspiracy to malign the third respondent by
placing a bottle of mayonnaise in her bag
as lacking credence. In her
evidence at the arbitration, the employee avers that she ‘was
not on good speaking terms’
with Ms Fourie, the security
officer who found the mayonnaise in her bag, ‘and she wanted to
fight with me, and also this
girl is in love with our foreman’.
She then claims that she has enemies in management and other members
of her union. In
her closing arguments she speaks of a shop steward
as being ‘always against me’. The commissioner makes no
reference,
let alone evaluates these contradictory remarks in the
assessment of the employee’s evidence.
[23] The commissioner did
not refer to the testimony of the employee at the disciplinary
enquiry which was put to her in cross-examination
at the arbitration.
Except for the finding of the chairperson of the disciplinary
enquiry, she did not consider the evidence of
the other witnesses
called by the applicant in the arbitration.
[24] The commissioner
also took issue with the charge formulated by the applicant. It may
be useful to quote directly from the award:
‘
5.3. The
[employee] has been charged with unauthorised possession/theft. The
evidence suggests that the [applicant] does not distinguish
the one
from the other. As much as the onus in respect of such conduct is not
as strict as in criminal cases there is clearly a
distinction between
the two. Unauthorized possession is not theft and if found guilty of
the one does not mean [sic] that you are
guilty of the other as
suggested by the evidence of the [applicant]. This approach is highly
irregular.
5.4. The evidence indicates that she
was found in unauthorized possession of a bottle of mayonnaise. It is
inconceivable how the
chair could have arrived at any other
conclusion. As much as he indicates that they are separate charges he
has treated them as
one. Of concern is that he found the [employee]
guilty of theft as well although he did not state it in his finding
or inform the
[employee] of same [sic] and he imposed the sanction of
dismissal as a result. In terms of the code theft is a dismissible
offence
and not unauthorized possession.’
[25] The chairperson of
the hearing, said the commissioner, had treated theft and
unauthorised possession as a single offence, though
the evidence
suggests that she was found in possession of a bottle of mayonnaise
which is not the same as theft and does not justify
a dismissal.
[26] The commissioner was
zealously preoccupied with the way in which the charge was drafted.
Ndlovu JA in
Woolworths (Pty) Ltd v CCMA
(2011) 32 ILJ 2455
(LAC) wrote at para 32:
‘…
the
misconduct charge on and for which the employee was arraigned and
convicted at the disciplinary enquiry did not necessarily
have to be
strictly framed in accordance with the wording of the relevant acts
of misconduct as listed in the appellant’s
disciplinary
codes…It was sufficient that the wording of the misconduct
alleged in the charge-sheet conformed, with sufficient
clarity so as
to be understood by the employee, to the substance and import of any
one or more of the listed offences. After all,
it is to be borne in
mind that misconduct charges in the workplace are generally drafted
by people who are not legally qualified
and trained.’
(See too,
National
Union of Mineworkers and Others v CCMA
and
Others (2011) 32 ILJ 956 (LC))
[27] Generically, theft
and unauthorised possession belong to the same genus of dishonesty.
Both are premised on conduct of an employee
which deprives the
employee of the ownership of a good. While theft has an element of
intention, an employer is not ‘required
to prove charges of
theft with the rigour expected of the state in criminal prosecutions
– proof on a balance of probabilities
suffices’. (John
Grogan
Dismissal
(2010) Juta: Cape Town at 208). Unauthorised
possession, in my view, dispenses with the requirement of intention
and calls on the
consideration of three elements: a good belonging to
the employer which is found in the possession of the employee and for
which
the employee has no authority to possess.
[28] The most probable
inference is that the employee wrongfully concealed the bottle of
mayonnaise in her bag with the object of
depriving the applicant of
its ownership. This could equally constitute theft or unauthorised
possession. The commissioner totally
ignores the assertion by Mr
Swanepoel, the chairperson of the disciplinary hearing, in response
to a question put by the commissioner
herself, that ‘theft was
the major charge’.
[29] Our courts have
placed persistent emphasis on the honesty and integrity of employees.
Theft is so pernicious that it would
annihilate the sustainability of
the employment relationship. (See
Threewaterskloof Municipality v
SA Local Government Bargaining Council (Western Cape Division)
(2010) 31 ILJ 2475 (LC) at para 21)
[30] In
Sappi
Novoboard (Pty) Ltd v Bolleurs
(1998) 19 ILJ 784 (LAC), the court
held:
‘
In
employment law a premium is placed on honesty because conduct
involving moral turpitude by employees damages the trust relationship
on which the contract is founded.’
[31] This is the refrain
in many judgments. In
Hulett Aluminium (Pty) Ltd v Bargaining
Council for the Metal Industry and Others
(2008) 29 ILJ 1180 (LC)
Molahlehi J remarked at para 42:
‘…
whatever
the amount of mitigation, the relationship is unlikely to be restored
once dishonesty has been established in particular
in a case where
the employee shows no remorse. The reason for this is that there is a
high premium placed on honesty because conduct
that involves
corruption by the employees damages the trust relationship which
underpins the essence of the employment relationship.’
[32] And in
Miyambo v
CCMA and Others
(2010) 31 ILJ 2031 (LAC) at para 17 ‘our
courts place a high premium on honesty in the workplace’.
[33] Indeed, I find it
difficult to understand the reasonableness of the grounds on which
the commissioner arrived at the conclusion
that the employee’s
contention that she had no knowledge of the bottle of mayonnaise in
her bag was honest and probable.
[34] In arbitrating a
dispute, a commissioner must evaluate and analyse the evidence
presented at the arbitration. It does not appear
that she did so. I
cannot discern any rational basis by which the commissioner could
find the employee to be an honest and reliable
witness who proffered
a probable explanation for the possession of the bottle of
mayonnaise.
[35] Because the
commissioner arrived at her decision without considering all the
evidence, her conclusion was not justifiable in
relation to the
evidence presented at the arbitration. Her decision was not only
incorrect but unreasonable and one that a reasonable
decision maker
could not have reached.
[36] I am of the view
that no purpose would be served in remitting this matter back to the
second respondent.
[37] This is a matter
where it will not be appropriate to make a cost order.
The application for
condonation for the late delivery of the application for review by
the applicant is granted.
The late service of the
answering affidavit by the employee is condoned.
The commissioner’s
award is reviewed and set aside and substituted with an order that
the dismissal of the employee by the
applicant was not unfair.
There is no order as to
costs.
__________________
SEEDAT AJ
APPEARANCES
APPLICANT: Advocate FA
Boda
Instructed by: Dasoo
Attorneys
.RESPONDENT: Advocate ES
Hutchinson
Instructed by: Moodie &
Robertson