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[2013] ZALCJHB 32
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JDG Trading (Pty) Ltd t/a Electric Express v Osler NO and Another (JR 1387/09) [2013] ZALCJHB 32 (20 March 2013)
Reportable
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
JUDGMENT
case
no: JR 1387/09
In the matter between:
JDG TRADING (PTY) LTD t/a ELECTRIC EXPRESS
Applicant
And
OSLER, A N.O (CITED IN HIS CAPACITY AS PRIVATE ARBITRATOR)
First Respondent
SACCAWU OBO N JUGAR
Second Respondent
Heard
:
30January 2013
Delivered
:
20 March 2013
JUDGMENT
BHOOLA J
Introduction
This is an application in terms of section 158(1)(g)of the Labour
Relations Act, 66 of 1995 (“the Act”) to review
and set
aside the ruling issued by the second respondent (“the
arbitrator”) in his capacity as a private arbitrator.
Mr
Sebotsa appeared to oppose the matter on behalf of the third
respondent, although he had not filed an answering affidavit
norhad
he prepared heads of argument. He did not seek a postponement and
the matter proceeded on an unopposed basis.
Background facts
MsNomsaJugar, referred to hereinafter as the employee, was employed
by the applicant as Branch Manager at its store in Botshabelo,
Free
State. She was charged at a disciplinary enquiry held on 31 July
2008 with four counts of misconduct, and was dismissed
on 15 August
2008 following a finding of guilty on all four charges. The dispute
was referred to private arbitration and her
dismissal was found to
have been substantively unfair. Procedural fairness was not in issue
and the arbitrator was required to
determine only substantive
fairness with regard to the guilt of the employee and the fairness
of the sanction.
Grounds of review
The applicant submits that the arbitrator misconstrued the evidence
on the first charge in its entirety. He simply ignored material
evidence and failed to properly determine the probabilities. In this
regard it is apparent from the award that the arbitrator
went out of
his way to try and establish some or other basis for acceptance of
the evidence led by the employee, when there was
simply no
justification to do so. His own findings in fact were that the
employee’s version “had a number of problems”,
that her version was not put to the applicant’s witnesses, and
that material aspects of the applicant’s case was
not
disputed. In this context the arbitrator should have accepted the
applicant’s version as uncontested. Despite this
however, he
simply concluded that he was “satisfied with her testimony”
and her “demeanour”. The applicant
submits that this is
not the conduct of a reasonable decision maker on the applicable
review test established in
Sidumo & Another v Rustenberg
Platinum Mines Ltd & others,
1
as
it reflects a gross irregularity in the proceedings which resulted
in the applicant being denied a fair trial.
Analysis
The legal principles applicable to a review in terms of section
33(1) of the Arbitration Act were dealt with extensively in
Stocks
Civil Engineering (Pty) Ltd v Rip NO & another
(2002) 23
ILJ
358 (LAC).
In assessing the award in the context of the grounds of review it is
significant to note that the charge was one of fraud, and
the
arbitrator found that the employee had not acted dishonestly and had
not committed fraud. The applicant submitted however
that once a
finding is made that a version was not put to the applicant’s
witnesses, such a version must on the applicable
legal principles be
rejected. By relying on such a version in circumstances where the
applicant did not get a chance to respond,
the applicant was denied
a fair hearing. The arbitrator was therefore duty bound to have
rejected the employee’s version
and his failure to do so
constitutes a gross irregularity and renders the award reviewable.
The applicant further submitted that the onus was on the employee to
call witnesses in rebuttal of the
prima facie
case against
her in respect of charge one. Instead, he simply accepts the say-so
that none of them was available. The arbitrator
should have drawn a
negative inference from the failure to call any witnesses in support
of her version (particularly to the
effect that that the customer
and Motswere resided in the same household, which is crucial to her
defence, as well as whether
she had received the necessary training
on the National Credit Act and the regulations). Furthermore, the
reliance on the employee’s
credibility, in circumstances where
the probabilities clearly favour the applicant, was manifestly
irregular. In this regard
the applicant submitted that this court
has reviewed an award in similar circumstances, in
Network Field
Marketing (Pty) Ltd v Mngenzana NO & others
(2011) 32
ILJ
1705 (LC) at [16] and [17].
Furthermore, it was submitted that the employee’s explanation
that no identity document was used in the transaction clearly
fell
to be rejected on the probabilities. The evidence was that
Motswere’s identity document was used and Motswere testified
that her identity document was lost and she did not know either the
employee or Kilimanjaro and in fact did not even own a television.
This is material evidence which was never contradicted in cross
examination and in fact, had it been considered by the arbitrator,
would have resulted in the employee’s version on this issue
being rejected. The arbitrator also failed to have regard to
the
evidence of Salemane to the effect that she informed the employee
that the customer could not purchase the television without
an
identity document, and that although the employee then took over the
transaction, Salemane’s employee number was used
to process
the sale. This in itself implies dishonesty on the part of the
employee. The employee was branch manager and a greater
standard of
care is required in such an instance. Moreover, the existence of the
standing rule that a television set may not
be sold to someone who
does not possess a licence was not disputed and as the head of the
branch it was incumbent on the employee
to establish what the rule
was and to ensure that the conduct was in compliance. Given the
arbitrator’s conclusions it
is clear that he failed to apply
his mind to the material facts and circumstances, thus rendering the
award reviewable on the
grounds of both unreasonableness and a
latent procedural irregularity.
The applicant submitted therefore that the conduct of the arbitrator
constitutes a gross irregularity and that this justifies
the review.
Insofar as the applicant relies on the commissioner ignoring
material evidence such as that led by Motswere in relation to her
identity document, it is clear from the record that much of this
evidence was immaterial. The gist of her testimony was that
her
identity document was misplaced after it had been used by her
mentally disabled son, and that when she went to home affairs
she
discovered that her identity document had been used to purchase a
television at Electric Express. The obvious inference the
commissioner was required to draw from this evidence was the
Kilimanjaro was dishonest in presenting her identity document as
a
co-resident of his household. The commissioner in my view correctly
treated this evidence as suspect in that it is not relevant
to the
alleged fraud with which the employee was charged. There was no
evidence that she acted in concert with Kilimanjaro nor
was she
charged with failing to investigate the circumstances relating to
his possession of the identity document. Motswere was
moreover never
called to give evidence at the disciplinary enquiry and was unable
to explain why this was the case. It was moreover
not disputed that
she had been taken to a police station to sign her evidence by the
applicant’s representative but she
was illiterate. The
evidence of the sales person was that when the employee was told
that Kilimanjaro wanted to purchase a television
but did not have an
identity document her attitude was that no customer should be
allowed to leave the store without receiving
assistance whether they
were in possession of an identity document or not. The sales
person’s evidence was not of much
value in that she denied
having signed her statement made to the disciplinary enquiry.
Kilimanjaro was not called to testify
by the applicant and the
applicant’s version in relation to the alleged fraudulent
conduct of the employee was not proven.
The commissioner in this
regard was correct in circumventing evidence in regard to whether
there was a standing directive to
the effect that foreigners could
purchase televisions by producing their passport or travel permits.
He correctly identified
the issue as being whether the employee had
fraudulently used an identity number to approve the purchase and on
the evidence
presented cannot be faulted for determining that there
was no evidence led by the applicant to prove this charge.
The arbitrator set out the charges against the employee, as follows
:
“
1. It
is alleged that on 15 March 2008 the applicant fraudulently used a
customer’s ID number to invoice a tectronic 74cm
TV for Mr M
Kilimanjaro on account number 18553-4”.
2. It is alleged that the
applicant made customers sign incomplete and blank agreements in ten
instances (details not necessary
here) in a total estimated credit
advance of R37974.01, in breach of the National Credit Act.
3. It is alleged that the
applicant failed to conduct an affordability exercise on account
18910-02 in breach of the National Credit
Act requirements.
4. It is alleged that the
applicant failed to give duplicate copies of the credit agreement to
seven customers (details not necessary
here) in breach of the
National Credit Act”.
The arbitrator found the employee not guilty on the first count and
guilty of the second, third and fourth counts of misconduct.
The arbitrator recorded the evidence of JamesMkhumla, the Regional
Finance Manager of the applicant, to the effect that in terms
of the
applicable regulations since 1994 any person purchasing a television
set was required to show that he had a television
licence. He said
that a store or business unit that sold a television without a
television licence could be held liable for a
fine in terms of the
regulations. Furthermore, the applicant’s policy (the standing
instructions) made it compulsory for
employees to comply with the
applicable legislation and stated that any falsification or attempts
to change any company documents
was serious misconduct and
constituted a dismissible offence. His further evidence, as recorded
by the arbitrator, was that it
was clear from his investigations
that the identity number used for MashiriKilimanjaro’s
television purchase was not his
own nor was there any link between
him and the person (PoppieAlinaMotswere) whose identity number had
eventually been used to
approve the transaction.He discovered that
the Credit Manager, AlinaNqai, refused to process the transaction
but it went through
after it had been transferred to the employee.
He was informed that Kilimanjaro was not a South African citizen,
but in his view
this made no difference in his case since the rule
that permitted temporary foreigners to purchase television sets
provided they
were in possession of a passport did not apply at the
Botshabelo store. At Botshabelo no customer was allowed to buy a
television
set without a licence and the employee did not show him
any document indicating that Kilimanjaro had produced his passport
or
any other permit. He testified further that the employee knew she
could not use another customer’s identity number for the
purchase and she did not denyusing Motswere’s identity number
for Kilimanjaro’s purchase. Instead, her explanation
was that
she was only helping a customer as she was obliged to do.
Mkhumla’s evidence was further that the employee had received
the necessary training in the National Credit Act and the
FAIS Act,
and had facilitated training on the FAIS Act for her staff. She had
never expressed any dissatisfaction about the comprehensiveness
of
the training she received until the disciplinary enquiry.
The arbitrator recorded the employee’s version as follows :
“
The
applicant said that she had only received FAIS training. She said her
training of store staff consisted of reading of modules
from the
computer each morning, according to the standard practice in the
respondent business. Her ‘NCA Compliance’
competency form
was signed after Mr Mkhumla had phoned her and asked her to sign it
but she did not want to do so, she phoned a
colleague by the name of
‘Celeste’ and told her that she had not done any NCA
training and didn’t want to sign
the form and Celeste told her
she need not sign so she did not sign. Later Celeste told Mkhumla
what she (the applicant) had said
and Mkhumla phoned the applicant
and forced her to sign it and send it to him – he was rude and
even told her she was talking
nonsense when she claimed not to have
attended any training”.
In reaching his conclusions the arbitrator further had regard to the
fact that the employee had previously worked at a store
in Lesotho
where there were no similar requirements for television licences and
she had only been employed at the applicant for
a few months prior
to the issue arising. With regard to the first charge the employee
testified that Pauline Salemanewas the
sales person who attended to
the customer and completed the pro forma order form. Because the
customer was buying on cash the
credit manager refused to assist
herwith finalising the sale and she complained to the employee.The
employee asked what the problem
was since licence requirements were
new to her, and Salemane informed her there was no need for a
licence if the customer lived
in a household where a licensed
television existed. She then asked Salemane what the procedure was
with foreigners and the latter
replied that they “often bought
on someone else’s name but this customer wanted to buy in his
own name”.The
employee wanted to make the sale because times
were difficult and was aware that other stores had no similar
restrictions on
foreigners making purchases. She made enquiries from
a manager at another store in the JD Group, aRussells store in
Ladybrand,
which was near the Lesotho border, and wasinformed that
the store did sell to foreigners. On this basis she tried to print
the
delivery note but the computersystem would not allow her to sign
out the television. She then contacted the applicant’s acting
Regional Manager for the Natal region , Roy van Tonder, and he tried
to help her through the process on the system but the computer
would
still not print the invoice.After a number of attempts to obtain
assistance from another staff member as well as the help
desk she
again contacted Van Tonder and in the end was advised that the
correct procedure was the one referred to by Salemane,
i.e. to use
the licence of a person in the customer’s household. She
approached the store clerk, Eugene, and informed him
to contact the
customer and ask him to bring in a licence of one of the members of
his household. He brought it in the following
day and left it with
Eugene and when the employee arrived she was able to process the
delivery note in the system to confirm
the sale. She testified that
she was not given an identity document but only the television
licencecard, and she made enquiries
to confirm that it was a valid
licence.The customer was therefore not charged the R225.00 licence
fee.
In cross examination she confirmed that she did not make enquiries
higher up the management hierarchy and thought that there
was no
need to approach anyone higher than the acting Regional Manager. It
had not been put to her at the disciplinary enquiry
that she must
have known that the person whose name the licence was issued in and
the customer were two different people, one
was male the other
female and their identity numbers differed, and she explained that
she had been told that the standing instruction
authorised a
transaction in circumstances where they lived in the same household.
She disagreed with the proposition that she
must have known at the
time that the licence of one person could not be used for another
person’s transaction and explained
that she had joined the
applicant a few months prior to this incident and had not by then
managed to learn everything about the
applicant’s systems. Her
explanation was as follows :
“
I
don’t agree … because I didn’t know the procedure
and what has been happening with the branches (sic) the JD
branches
across the border I believed I genuinely believed that it was the
same as the JD company especially in those branches
where we are
working, uh managers fight for sales, managers and sales people fight
for sales while the credit manager declines
the sales without good
reason and the fact that the sales person herself came to me
complaining about the credit manager not showing
her willingness to
help the customer, what was I supposed to do.”
In any event the employee denied that her conduct was fraudulent in
that she knew the licence did not belong to the customer.
This was
her version in her disciplinary enquiry as well and she testified
that the system accepted the transaction on this basis
and she had
been satisfied by her enquiries as to the procedure to be followed
as per the standing instruction.The finding therefore
of the
arbitrator, based on this evidence, that the employee had innocently
used the television licence of another person in
the belief that it
was permissible if the customer and the licence holder were part of
the same household, cannot be faulted
as being unreasonable or based
on a gross irregularity in the proceedings. There was simply no
evidence of fraud for the employee
to rebut, as was submitted by the
applicant.
The applicant submitted that the arbitrator found that a number of
problems existed with the manner in which the employee’s
evidence was led (i.e. crucial aspects of her version were not put
the applicant’s witnesses for comment, nor were these
aspects
disputed) but despite this he found that her version was consistent
with the one she presented in her disciplinary enquiry.
He also
found that the employee’s failure to call witnesses had been
explained both informally and also in written argument
by the
employee’s representative as being due to their
unavailability, and didnot find it strange that there was no
colleague
led in evidence nor document presented to support the
employee’s case that the practice was to permit multiple
occupants
of a household to purchase televisions on the basis of a
single licence. The arbitrator further noted that when the employee
had been unable to obtain advice from senior colleagues, she did not
make any attempt to contact the applicant’s head office,
but
failed to have regard to this in assessing her guilt.
I am not satisfied that these are valid grounds for review. On an
overall assessment of the evidence, and based on both the
probabilities and the credibility of witnesses, it cannot be said
that the arbitrator committed a gross irregularity in the
proceedings or made an unreasonable award.
The arbitratorfound that although there were difficulties with the
probabilities“
[h]owever
that may be, I am satisfied with the demeanour of the applicant as a
witness and the content of her testimony in respect
of this charge.
Although there are problems with her version, it is credible, it was
raised previously which deals with the accusation
of recent
fabrication, her senior colleagues did not inform her otherwise and
the computer system allowed the transaction to go
through. And this
is against the background of an employee who transferred from Lesotho
some months previously and who underwent
what appears to be a crash
course in South African procedures during a busy time of year. All
this adds up to the probability that,
although the applicant may have
been negligent in a number of respects, the core of dishonesty
underlying the charge has not been
proved on a balance of
probabilities”.
The applicant relied on the additional ground of review based on the
arbitrator’s lack of reasoning as to the appropriateness
of a
sanction of dismissal in circumstances where the employee was found
guilty at the arbitration of three charges of misconduct.
In regard
to this ground I similarly cannot find that the award is reviewable.
The arbitrator properly applied his mind to the
relevant factors in
Sidumo & Another v Rustenberg Platinum Mines Ltd &
others
2
,
as is apparent from his reasoning. He finds that although the
employee was clearly guilty of a breach of legal compliance and of
negligence and that there were honesty issues in respect of her
responses to certain questions and her case related to training
was
based on blaming others, certain mitigating factors existed. These
were that she “had been employed relatively briefly
before the
incidents in question, that she had come from another country where
different rules applied in at least the first
count, there is no
prior disciplinary record, the respondent suffered no actual
prejudice or loss, and that there may have been
some gaps in her
training. And, while she may have contravened the legal requirements
in various respects and potentially prejudiced
her employer, her
fault was that of over-enthusiasm rather than dishonesty.”
Having regard to all these factors the arbitrator
concluded that the
sanction of dismissal was not fair or appropriate in the
circumstances. The arbitrator further mitigated the
loss to the
applicant in fashioning a remedy that took into account the
employee’s laxness, which could have caused prejudice
to her
employer in ordering that she be reinstated but not paid any arrear
wages up to May 2009. I cannot find fault with his
conclusion or
reasoning on the
Sidumo
test or otherwise. This is a
well-reasoned award that weighs the probabilities and credibility
issues in a balanced, justifiable
and reasonable manner and the
submission that the applicant was denied a fair trial as a result of
gross irregularities or that
the decision was not one that could be
made by a reasonable decision maker cannot be sustained.
Order
In the premises, I make the following order :
The application is dismissed. There is no order for costs.
_______________________
BHOOLA J
Judge of the Labour Court of South Africa
APPEARANCES
APPLICANT
A J POSTHUMA, SNYMAN
ATTORNEYS
THIRDRESPONDENT:
P SEBOTSA, SACCAWU
1
[2007]
12 BLLR 1097
(CC).
2
[2007]
12 BLLR 1097
(CC).