About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2013
>>
[2013] ZALCJHB 82
|
|
Edcon (Pty) Ltd t/a Edgars Centurion v Commission for Conciliation Mediation and Arbitration (CCMA) and Others (JR2247/09) [2013] ZALCJHB 82 (12 April 2013)
REPUBLIC OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 2247/09
In the matter between:
EDCON (PTY) LTD T/A EDGARS
CENTURION
......................................................
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION (CCMA)
................................................
First
Respondent
COMMISSIONER ME MOLEFE N O
......................................................
Second
Respondent
BRENDA DIMAKATSO CHEPAPE
............................................................
Third
Respondent
Heard: 10 January 2013
Delivered: 12 April 2013
Summary: Review – unopposed –
respondent dismissed for fraudulent and unprocedural processing of a
credit note - award
found to contain gross irregularities and
findings not founded in logic or evidence – Commissioner’s
finding of substantive
unfairness not justified or justifiable in
terms of the evidence and a gross irregularity – review
justified – award
reviewed and set aside.
______________________________________________________________
JUDGMENT
______________________________________________________________
MARCUS, AJ
Introduction
[1] This is an application in terms of
section 145
(1) and (2) of the
Labour Relations Act 1995
to review
and set aside an award dated 24 June 2009 issued by the Second
Respondent under the auspices of First Respondent under
case number
GATW 5085-09, in terms of which Third Respondent’s dismissal by
the Applicant was found to be procedurally fair
but substantively
unfair. Third Respondent was retrospectively reinstated with back
pay. Applicant also filed an application to
condone the late filing
of the review, which was granted.
Review unopposed
[2] Although a notice of intention to
oppose the review was lodged, no answering affidavit was filed by
third respondent in response
to the founding affidavit of the
Applicant, nor did third respondent appear in Court, either
personally or through a representative,
to oppose the review.
Background
[3] Third Respondent (“the
employee”) was employed by the Applicant (“the employer”)
as a service centre
controller (supervisor) at its branch in
Centurion for some four years prior to her dismissal on 3 April 2009
for fraudulently
processing and authorising a credit note or notes
contrary to Applicant’s credit procedures. At respondent’s
hearing,
the Applicant adduced evidence that the employee had
processed two cash credits contrary to Edgars credit rules which
required
that the customer be present prior to the processing and
authorising of a credit; that the customer’s name, contact
number
and signature be reflected on the credit slip; and the
correctness of the returned merchandise verified. Respondent’s
witness
at the arbitration, Granny Mokhonoane, confirmed that
Applicant, as her supervisor had, in breach of the credit rules,
processed
and authorised a particular credit note for her in the
absence of the customer and the returned merchandise. The
Commissioner alludes
to this testimony in her award, finding that
“the whole irregularity was observed in the video recordings
not disputed by
any witness”.
1
In her evidence at respondent’s
hearing, Granny also confirmed her own awareness of the credit rules
contained in annexure
“B”, and that third respondent had
taught her these rules which required her to check the merchandise
being returned
and obtain the customer’s details and contact
number and signature on the credit slip which, prior to a refund, had
to be
authorised by a supervisor like the respondent (record, 80-81).
[4] Notwithstanding that the testimony
of Respondent’s own witness confirmed third respondent’s
knowledge of the procedures
for authorising credits which Granny
states that she learnt from the respondent as her supervisor to whom
she reported, and the
testimony of the manager Manewyk that
respondent was a supervisor trained in her job and as such fully
aware or expected to be
aware of the procedures associated with the
daily transactions which she is paid to supervise and control, the
Commissioner extraordinarily
accepted respondent’s bald denial
of having knowledge of the applicable rules and procedures for
authorising credits, holding
that she was guilty of negligence rather
than dishonesty, for which offence she ought to have received a
written warning rather
than be dismissed. I agree with applicant’s
attorney that there is no justification for such conclusions, either
in logic
or in the evidence before the Commissioner, including that
of respondent’s own witness Granny. Her finding that dismissal
was not appropriate was not one that a reasonable commissioner could
come to. These findings, among others, are gross irregularities
in
terms of
section 145(2)
, not supported by logic or by the evidence
before the Commissioner, and are subject to review as conclusions
which no reasonable
Commissioner could have come to,
on
the application of the standard of review enunciated by the
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
2
[5] There is no need for me to deal
with the further submissions in the applicant’s heads of
argument. The application for
review is not opposed. I am satisfied a
review of Second Respondent’s award is justified. Nor is there
any need to further
delay the finalisation of this matter by
remitting it to First Respondent to be arbitrated afresh by another
Commissioner. All
the relevant facts necessary to the determination
of the dispute are before me.
[6] I make the following order:
1. The late filing of the application
for review is condoned.
2. The award dated 24 June 2009 issued
by the Second Respondent under the auspices of First Respondent, is
reviewed and set aside
and replaced with a finding that;
(a) Third Respondent `s dismissal by
the Applicant was substantively and procedurally fair.
(b) Third Respondent `s claim for
reinstatement is dismissed.
3. There is no order as to costs.
_______________
Marcus, AJ
Acting Judge of the Labour Court
Appearances:
For the Applicant: Adv P.M.W Botha
Instructed by:
Kgokong Nameng
Tumagole INC
1
Arbitration
award at para 40.
2
(2007)
28ILJ 2405 (CC) at para 110.