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[2013] ZALCJHB 121
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (JR 3449/10) [2013] ZALCJHB 121 (12 June 2013)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR 3449/10
In the matter between:
SHOPRITE CHECKERS
(PTY) LIMITED
.........................................................
Applicant
and
COMMISSION FOR
CONCILIATION MEDIATION,
AND ARBITRATION
...........................................................................
First
Respondent
COMMISSIONER N.C.
MALUMBETE
N.O
.
...................................
Second Respondent
SOUTH AFRICAN
COMMERCIAL CATERING AND
ALLIED WORKERS UNION
..............................................................
Third
Respondent
JANE MOTAU
..................................................................................
Fourth
Respondent
Heard: 17 January 2013
Delivered: 12 June
1013
Summary: CCMA
Arbitration Proceedings – Review of Arbitration Award –
gross irregularity – whether the Commissioner
failing to have
regard to material facts
JUDGMENT
GAIBIE, AJ
Introduction
This is an application
for the review of an arbitration award dated 8 November 2010. In his
award, the commissioner found that
the dismissal of the fourth
respondent, Jane Motau (“Motau”) by the applicant
(“Shoprite Checkers”) was
procedurally and substantively
unfair on account of her being not guilty of misconduct, and
accordingly reinstating her with
full back pay.
Relevant background
Motau was employed by
the applicant since 9 October 1999 and she held the position of
administration manager since 1 July 2005.
On 14 December 2009 Motau
was served with a notice to attend a disciplinary hearing on 15
December 2009. She was charged with
the following:
“
Serious
misconduct in that you did not follow the correct dropping and
banking procedure by not ensuring that the correct amount
of money
were made up as per Fidelity banking bag. You were accountable and
responsible for the money and thereafter caused the
company to suffer
a financial loss to the amount of R9707.17”.
Motau was unable to
secure representation at the disciplinary hearing at such short
notice, and pursuant to a request from her,
the disciplinary hearing
was postponed for three hours from 9 am to 12 pm. When it was
evident that she required further time
to do so, the hearing was
postponed for a further two hours from 12 pm to 2 pm that day. At
2pm Motau explained that she was
still unable to secure the presence
of her representative at the hearing at such short notice. At this
point the chairperson
of the hearing, Ms Isabel Kirchner
(“Kirchner”), an employee of Shoprite Checkers,
postponed the disciplinary hearing
to 12 January 2010 on condition
that Motau accepted that she would be suspended during this period
without pay. Pursuant to the
hearing held on 12 January 2010, Motau
was found guilty of the charge of misconduct and dismissed.
Much of the evidence
presented in this matter centred around the procedures at Shoprite
Checkers that had to be complied with
for the purposes of counting,
recording, safely securing and ensuring delivery of monies to ABSA
Bank.
In summary, Petro Wilmi
Enslin (“Enslin”), on behalf of Shoprite Checkers,
indicated that this process involved the
following:
a) The money from the
cash tills must be transferred by the cashiers to the cash office.
Upon receipt of the money at the cash office,
the cash office clerk
must ensure that the cash-up slips from a particular cashier
corresponds to the physical money in hand and
that the details
thereof are recorded in a deposit book.
b) Thereafter, the cash
office clerk must record the details of such monies in the drop-safe
control records. Once that process
is complete, the cash office clerk
must request the administration manager - in this case it was Motau -
to verify that the details
on the deposit slip corresponds with the
physical money on hand.
c) There must be one
deposit slip in a money bag. The deposit slip must reflect the amount
of R50 000, a deposit slip number,
the date and the signature of
both the cash office clerk and the administration manager. It goes
without saying that the bag must
also contain the cash amount of
R50 000.
d) Once the cash office
clerk and the administration manager agree that the money balances
with what is recorded on the deposit
slip, the administration manager
must sign off on that deposit slip and the money bag, and together
they must open the drop-safe
and drop the money bag into the safe.
e) Keys to the drop-safe
are kept in a float bag which gets sealed with a unique seal. Both of
them must sign for it, open the safe,
drop the money bag into the
drop-safe and then put the keys back into a float bag. When the float
bag is sealed with the key, a
new number is recorded.
f) When the money is
placed in the drop safe, arrangements are made for guards from
‘Fidelity Guards’ to come to the
store to collect the
money bags and to deliver them to ABSA bank. The relevant guard will
have his or her own key which is also
sealed in a float bag with a
unique seal and its own number.
g) Then the three
parties, the cash offer clerk, the administration manager and the
relevant security guard must open the drop-safe
simultaneously. The
safe cannot be opened if they don’t have the Fidelity key and
the applicant’s key. In other words,
all three parties are
present when the safe is opened and the bags are removed by the
guard. When the money bag is taken out, the
bag number must
correspond with the number recorded in the drop-safe control records.
The guard will also record the bag numbers
in the Fidelity control
sheet. Once that is done, the administration manager must confirm
that the details are reflected correctly
in the Fidelity control
sheet. The administration manager must sign off on that information
and the guard must give the administration
manager one copy as proof
that he or she has taken the bags listed in that control sheet to the
bank.
For the purposes of the
charge of misconduct, the disciplinary enquiry was aimed at
determining whether Motau had or had not followed
the correct
counting, dropping and banking procedures, and in particular whether
she had:
a) concluded or signed
off on two deposit slips in the amount of R50 000 each and
placed both deposit slips in one money bag
with R50 000 in cash
(“the first money bag”); and
b) in relation to the
second deposit slip (found in the first money bag), simply arranged
for the delivery of a further amount of
R40 292.83 (without a
further deposit slip) to ABSA Bank (“the second money bag”).
Shoprite Checkers
presented its evidence through five witnesses. These included 2
witnesses from the Norkem branch of ABSA bank,
Mr Andre Du Toit (“Du
Toit”) the Branch Manager, and Thuso Moatshe (“Moatshe”)
a teller who reported
to Du Toit. The applicant also led: Enslin,
the Regional Administration Manager for Shoprite Checkers Waterberg
region, and the
person who was responsible for investigating this
matter; Mr Werner Venter (“Venter”), the Branch Manager
of Shoprite
Checkers; and Kirchner, the chairperson of the
disciplinary hearing.
The first person at ABSA
bank who dealt with the first money bag was the teller, Moatshe. He
indicated that on 29 November 2009
he received the first money bag,
that there was no money inside the bag only a deposit slip that
reflected the amount of R50 000.
According to him, the first
money bag was effectively empty. As a result, he telephoned Motau
and she informed him that the money
would be delivered to ABSA bank
the next day without a deposit slip. He said that on 30 October
2009, he received the second
money bag which had no deposit slip but
the amount of “R40 000.00 plus”. He also indicated
that he had an amount
of R292 which was not accounted for, but he
was clear that the amount was not from Shoprite Checkers.
Moatshe said that at
some stage, Venter came to the bank and completed a deposit slip for
the amount of R40 292.83 in respect
of the second money bag.
When he was asked why he proceeded to process this transaction in
the amount of R40 292.83 in light
of his earlier evidence, he
stated the following:
“
Because
the slip came to me having this amount and I don’t make those
kind of decisions that I cannot do this and this and
this. I do as
I’m told”.
It is common cause that
Moatshe’s activities as a teller would have been recorded and
was recorded on a video recording.
I will return to this matter
later in the judgment.
The next person who
dealt with the money bags was Du Toit. In essence, he stated that
once the discrepancy in relation to the
first money bag had been
reported to him, and after he had counted the money, he concluded
that the amount of money did not correlate
with the deposit slip.
His evidence was equivocal to say the least and he ultimately relied
on a letter that he had drafted several
months after the event
1
which recorded the
following:
a) Upon his investigation
of the matter he found that they had received the first money bag
from Shoprite Checkers with two deposit
slips (numbers 926759 and
926774) which reflected the amount of R50 000 each and the cash
amount of R50 000.
b) The bank informed
Motau about the first money bag and she told them that she would send
the outstanding amount on Friday (the
next day).
c) On Friday ABSA
received the second money bag from Shoprite Checkers with the cash
amount of R40 292,83 and no deposit slip.
He contacted Venter
about the money. Pursuant to that call Venter and Enslin went to the
bank and watched the video and agreed
that they had only received the
amount of R40 292.83 in the bag.
Du Toit’s evidence
was fundamentally different from Moatshe’s evidence in this
regard. According to Moatshe, the first
money bag only had a deposit
slip which reflected the amount of R50 000 and the second money
bag had a cash amount of R40 000.
According to Du Toit, the
first money bag had two deposit slips indicating a total value of
R100 000 and the cash amount
of R50 000; and the second
money bag had the cash amount of R40 292.83. Du Toit’s
evidence accordingly indicated
that they had received R50 000
more in cash than Moatshe had indicated.
The applicant’s
third witness was Enslin. Issues relating to any shortages or
discrepancies with the deposit of monies with
ABSA Bank fall within
matters that she is authorised to deal with. She was notified of a
shortage by Venter. She investigated
the matter and pursuant thereto
she gave evidence at the disciplinary hearing as well as the
arbitration proceedings in this
matter. She gave undisputed evidence
about the process involved with the collection of monies from the
cashiers and to their
ultimate collation, counting as well as
deposit with ABSA Bank.
Thereafter Enslin
proceeded to deal with the relevant facts associated with this
matter. Unfortunately, Enslin had no less than
four versions about
the number of bags and deposit slips and the amounts involved in
this matter. Her versions included the following.
a) First, she indicated
that the deposit slip indicated an amount of R50 000 but that
the money bag contained the amount of
R40 292.83.
b) Second, she indicated
that Motau had sent two money bags to the bank with only one deposit
slip.
c) Third, she stated that
there were two deposit slips with one money bag and there was
R40 292.85 in cash.
d) Her fourth version was
a refinement of the third version in which she indicated that there
were two deposit slips amounting to
R100 000 (each slip
indicating R50 000) and the physical amount at hand was
R40 292.85.
These versions were
given by Enslin on the assumption that she had conducted an
investigation of the matter. At some stage, after
her fourth
version, the commissioner pointed out to her the contradictions and
the confusion created by her various versions.
At that point, she
attempted to clarify her evidence, and it was clear that her
knowledge as to what occurred in relation to
this matter was not
premised on any investigation but was reliant on the information
provided to her by Du Toit, the Branch Manager
of ABSA. In this
regard she indicated that:
a) Motau had sent two
deposit slips in one money bag to ABSA and each deposit slip had
R50 000 written on it;
b) Du Toit informed Motau
that there was one deposit slip extra with no money;
c) Motau had informed the
bank that she would send the balance of the money the next day;
d) On the 31
st
of October 2009, Motau had sent another bag to the bank not with
R50 000 but with R40 292.
It was apparent from her
evidence, that Motau’s involvement in the second money bag
that was sent to the bank on 31 October
2009 could be verified by
the control records kept at Shoprite Checkers. However, it was
patently clear that she relied on the
information conveyed to her by
Du Toit in so far as she alleged that Motau was responsible for
sending the second money bag with
the amount of R40 292.
Against the background
of the contradictory evidence presented by the applicant’s
witnesses, the applicant did not produce
the following relevant and
objective evidence that would have clarified Motau’s
involvement, if any, in relation to the
two money bags. The
allegations could have been verified by the following evidence:
a) On the applicant’s
version (presented by Du Toit and Enslin), Motau had sent two deposit
slips in the first money bag with
deposit slip numbers 926759 and
926774. Notwithstanding the applicant’s evidence that four
copies of the deposit slip are
produced in relation to each deposit,
that a copy is kept at the applicant’s premises and that three
copies are sent to the
bank, it was unable to produce a copy of
deposit slip number 926774 to verify its contention that Motau had
completed this slip
and included it with slip number 926759 in the
first money bag that was sent to the Bank. On its version, the
deposit slip could
not be produced because the relevant ABSA Branch
had burnt down.
b) The video footage. It
appears from the record that Venter and Enslin had gone to the bank
to go view the video footage regarding
the money bags that were
allegedly sent by Motau. Motau attempted, unsuccessfully, to see the
video recordings prior to the disciplinary
hearing and was informed
that it was not available. The footage was also not produced during
the arbitration proceedings.
c) There was no evidence
regarding the detail as to how the second money bag was allegedly
sent by Motau with the amount of approximately
R40 292.00 to the
bank on 31 October 2009.
d) Enslin did not
consider it relevant or necessary to interview the cash office clerk,
Grace Ramoroki, about her involvement in
respect of first and or the
second money bag. What was pertinent about her evidence, was her
contention that the first money bag
could not have included deposit
slip numbers 926759 and 926774 because the deposit slips were
contained in one book and would therefore
have had consecutive
numbers. Her evidence was not disputed and no counter evidence to
this effect was given by the applicant.
It is also unclear from the
evidence of the applicant as to why a deposit slip for the amount of
R40 292 was only completed
by Venter on 20 November 2009.
In the context of the
contradictions in the evidence of the witnesses on behalf of the
applicant, and Motau’s denial of
the charge of misconduct, it
is clear that objective verifying information which would have
cleared up any of the contradictions
and referred to in the
preceding paragraphs was not produced.
In the circumstances, it
is my view that the applicant had not discharged its onus in respect
of the charge of misconduct against
Motau.
Procedural Unfairness
It was common cause
between the parties that the matter was initially set down on 14
December 2009 for it to be heard the next
day at 09h00. When Motau
was unable to secure representivity at such notice, the disciplinary
hearing was initially postponed
to 12 pm, and thereafter to 2 pm
that day. Thereafter, the chairperson of the disciplinary hearing
insisted that Motau sign an
agreement in terms of which she would be
suspended without pay until January 2010 when the matter was heard,
and Motau was ultimately
dismissed. The chairperson’s
involvement in discussions with Motau about the postponement of the
hearing as well as her
achievement of an agreement from Motau that
she would not be paid during the period of the postponement reeked
of unfairness.
It was extremely unbecoming of a chairperson who was
meant to be independent and impartial to be involved in such an
arrangement.
The crisp issue that
arises for decision in respect of this matter is whether the
chairperson’s conduct in the postponement
of this matter from
15 December 2009 to 10 January 2010 on the basis of an unpaid period
of suspension was unfair. The chairperson
was an employee of the
applicant. Her involvement in securing such an agreement from Motau
demonstrated a confusion in her role
as an employee on the one hand
and as an impartial and independent chairperson for the purposes of
the hearing, on the other
hand. What the chairperson should have
done in this matter was to determine the application for
postponement and to make a ruling
in respect thereof. Insofar as she
sought an agreement for the benefit of the applicant in this matter,
she acted pro-actively
as the employer rather than the chairperson,
and in so doing created the impression that the matter was
pre-determined. To that
extent and notwithstanding the fact that
Motau was given a reasonable opportunity of time between the period
15 December and
10 January to prepare for the matter, the perception
that the process was one sided had already been created as at 15
December
2009 and to that extent the process was clearly unfair
2
.
Grounds of Review
The applicant contends
that the commissioner’s award is reviewable on the ground that
his decision is one which no reasonable
decision maker could have
reached, having regard to the evidence before him and alternatively
or on the other hand, the applicant
contends that the commissioner
ignored material evidence and that his conduct aforesaid constitutes
a latent gross irregularity.
In this regard, the
applicant takes issue with the findings made by the commissioner in
paragraphs 6.7 to 6.12 of the award wherein
the commissioner found
as follows:
“
6.7
As already indicated the witnesses of the respondent contradicted
themselves in all material respects. It is not clear whether
a bag
was sent with the deposit slip without money as alleged by Mr Thuso
Moatshe or whether a bag was received with two deposit
slips of
R50 000.00 each but only with R50 000.00 cash inside, as
alleged by the other witnesses.
6.8. I am confronted with
two different versions of the respondent and the version of the
applicant. The version of the applicant
is however plausible and as
such I admit her version and reject that of the respondent.
6.9. I find that the
applicant’s dismissal was substantively unfair.
6.10. It is not in
dispute that the disciplinary hearing which was to take place on the
15
th
December 2009 was postponed until 12 January 2010.
This was however done after the applicant agreed to be suspended
without pay.
6.11. The condition for a
postponed was very unfair, taking into consideration the fact that
the applicant was only given the notice
on the 14
th
December 2009 to attend the hearing on the 15
th
December
2009. She was within her right to ask for postponement as the time
given to her was not enough for her to prepare her
case.
6.12 I find that the
pre-dismissal procedure was unfair”.
The Review Test and
Latent Gross Irregularities
The test on review in
Sidumo
and Congress of South African Trade Unions v Rustenburg Platinum
Mines Limited & Others
3
is the following
“
Is
the decision reached by the Commissioner one that a reasonable
decision maker could not reach”
Insofar as the test for
latent gross irregularities is concerned, it is fairly wide
knowledge that the Labour Court together with
the Labour Appeal
Court have developed a test for such irregularities. An assessment
of the jurisprudence in this regard indicates
that reliance is
placed on the minority judgment of Ngcobo J in
Sidumo
4
about the meaning of
such an irregularity in terms of section 145 of the LRA, in which he
stated that:
“
It
follows, therefore, that were a Commissioner fails to have regard to
material facts, the arbitration proceedings cannot, in principle,
be
said to be fair because the Commissioner fails to perform his or her
mandate. In so doing….the Commissioner’s action
prevents
the aggrieved party from having its case fully and fairly determined.
This constitutes a gross irregularity in the conduct
of the
arbitration proceedings, as contemplated in section 145(2)(a)(ii) of
the LRA. And the ensuing award falls to be set aside
not because the
result is wrong but because the Commissioner has committed a gross
irregularity in the conduct of the arbitration
proceedings
5
.
Since this minority
dictum, various judgments of this Court and the Labour Appeal Court
have refined and extended the nature of
this ground of review. In
essence, a commissioner’s award can be reviewed on the basis
that the commissioner may not have
considered material facts or
considered materially irrelevant ones, but also on the basis that
the commissioner might have placed
erroneous constraints on the
process of the evaluation of evidence which may have caused him not
to consider material facts or
issues.
Examples of such gross
irregularities will include the wrong evidentiary test
6
or for instance if the
commissioner narrows the nature of the enquiry by misconstruing or
misunderstanding the nature of an applicable
rule
7
.
In these circumstances, the error applied by the commissioner
results in material facts or issues being ignored and the matter
being determined on the wrong basis resulting in a wrong finding.
This test relating to latent gross irregularities has received
wide
spread approval by the Labour Appeal Court in various judgments
8
.
It is perhaps necessary at this stage to indicate that the Herholdt
judgment
9
,
the LAC’s test for interference in the case of a latent
irregularity has been taken on appeal to the Supreme Court of
Appeal
and is yet to be determined in that Court.
Given my assessment of
the evidence in this matter, it is clear that the issue in this
matter is ultimately one that must be determined
in terms of the
Sidumo test.
Application of the
Facts
It is evident from the
Arbitration Award that the commissioner in this matter was alive to
all the material facts in this matter.
These facts included the
details as to whether there was one or two money bags, whether there
was one or two deposit slips, the
details as to how and when the
money bags were received by ABSA Bank and whether there was evidence
that established that Motau
either sent monies short on the first
day or indeed sent another money bag without a deposit slip on the
second day. In the circumstances,
the decision reached by the
Commissioner is one that a reasonable decision maker could have
reached.
In the premises I make
the following order:
The application for
review is dismissed with costs.
_______________
GAIBIE AJ
Acting Judge of the
Labour Court
Appearance:
For the Applicant: Mr. D
Cithi
Instructed by:
MervynTabacks Inc.
For the Fourth
Respondent: CJA Lourens Prokeus
1
The
events in question occurred on the 29
th
and 30
th
October 2009 and the letter is dated 24 February 2010
2
See
in this regard issues relevant to bias and perceptions of unfairness
in the judgment of Van Niekerk J in
Protech Khuthele (Pty)
Limited & Another v Wabile N.O. & Others 2013 34 I:J 1246
3
2008
(Volume
2) SA 24
(CC); (2007) 28 ILJ 2405 (CC);
[2007] 12 BLLR 1097
(CC)
4
See
footnote 2 above
5
At
para 268
6
Avril
Elizabeth Home for the Mentally Handicapped v CCMA & Others
[2006] 9 BLLR 833
(LC) at 837 e to f
7
S.A.
Custodial Management (Pty) Limited v Commission for Conciliation
Mediation & Arbitration & Others (2013) 34 ILJ
1255 LC
8
Including
Ellerine Holdings Limited v CCMA & Others (2008) 29 ILJ
2899 (LAC) at 2905 g to I; SAMWU v Platinum Ltd & Others (2012)
33 ILJ 329 (LAC); Afrox Healthcare v CCMA & Others (2012) 33 ILJ
1381 (LAC); Gaga v Anglo Platinum Ltd & Others (2012)
33 ILJ 329
(LAC)l; Herholdt v Nedbank Limited (2012) 23 ILJ 1789 (LAC) at para
38
9
See
footnote 7 above