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[2013] ZALCPE 23
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Maleza v SPAR Distribution Centre (Eastern Cape) and Others (P 390/11) [2013] ZALCPE 23 (3 October 2013)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA,
PORT ELIZABETH
JUDGMENT
Not reportable
case No: p390/11
In the matter between:
SIMPHIWE
NELSON MALEZA
.............................................................................
APPLICANT
and
SPAR DISTRIBUTION CENTRE
(EASTERN CAPE)
.................................................................................
FIRST
RESPONDENT
COMMISION FOR CONCILIATION,
MEDIATION AND ARBITRATION
....................................................
SECOND
RESPONDENT
SIYABONGA COKILE N.O
THE COMMISSIONER OF THE CCMA
................................................
THIRD
RESPONDENT
HEARD: 31 NOVEMBER 2012
DELIVERED: 3 OCTOBER 2013
Summary:
When the
applicant has not proved that an aaward is unreasonable, his
application for review will not succeed.
Review in terms of section 145 of the LRA-Dismissal for misconduct
JUDGMENT
LALLIE, J
This is an application to review and set aside an award issued by
the third respondent (the commissioner) in which he found the
applicant’s dismissal substantively fair.
Factual Background
The first respondent distributes food to Spar retail stores in the
Eastern Cape. It was located at Kurland Street, Perseverance
in Port
Elizabeth. In September 2010 it relocated to Burman Road, Deal Party
in Port Elizabeth. The applicant was employed by
the first
respondent as a manager for perishables. When the first respondent
was taking occupation of Burman Road premises the
applicant was
charged with the responsibility of overseeing the clearing of the
interior of the areas that were vacated at the
Kurland Street
warehouse. Items which the first respondent sought to discard during
the move were sorted and placed in different
bins for scrap metal,
paper and cardboard and general waste. The bins would then be
collected by a third party supplier which
would evaluate the
contents and pay the first respondent. Employees interested in the
items in the bins had to seek the permission
of the head of
department to remove them from the first respondent’s
premises. Employees were required to pay for items
to which value
could be attached. The head of department authorised the removal of
an item by issuing a gate pass.
On 6 September 2010, the first respondent discovered that electric
cables with the value of R70,000.00 were missing. It was discovered
that it had been removed by the applicant who sold it to the Kurland
Street scrap metal dealer and shared the proceeds with junior
employees. He was charged with theft for selling the first
respondent’s property without permission and dismissed.
Aggrieved
by the dismissal he referred an unfair dismissal dispute
to the second respondent (the CCMA) where the commissioner issued
the
award which the applicant seeks this court to review and set
aside.
The award
The award is based on facts, the majority of which the commissioner
found common cause. On 31 August 2010, the applicant was
told by Mr
Daniel (Daniel) of the first respondent’s IT department to
throw computer cables in one of the bins placed at
the Kurland Road
warehouse. The applicant removed the cables from the warehouse
without a gate pass and sold it at Kurland Road
scrap metal dealer
(scrap metal dealer). He received R151.80. On the same day the
applicant gave Mr Blaauw, a forklift driver,
an amount of R40.00 to
give to Messrs Nopho (Nopho) and Zembe (Zembe), casual employees who
assisted in cleaning the warehouse
R20.00 each. On the same day, the
applicant asked Blaauw to assist the two casual employees sell more
cables at the scrap metal
dealer. He received an amount of R105.00
which he gave to the applicant. The following day the applicant
attempted to sell more
cables with the assistance of Nopho and
Zembe. He was interrupted and authorised Blaauw to assist. Blaauw
received R105.00 from
the sale and gave Zembe and Nopho an amount of
R15.00 each. The applicant conceded that he received the R105.00
from Blaauw.
On 6 September 2010, the applicant accompanied by
Blaauw, bought back from the scrap metal dealer the cables sold by
Blaauw and
himself on 31 August and 1 September 2010. The applicant,
Blaauw and Mr Koutsouvelis (Koutsouvelis) the risk and maintenance
manager, went to the scrap metal dealer to look for the missing
cables. Both Blaauw and the applicant did not disclose the presence
of the cables in the boot of the applicant’s car.
The commissioner made a finding that the applicant committed theft
by selling the first respondent’s computer cables without
permission. The finding is based on the evidence that the applicant
authorised the sale of the cable without the necessary permission
or
gate pass. Blaauw never asked the applicant for the cable. The
commissioner rejected the applicant’s version that he
only
assisted Nopho and Zembe who had requested the cables, on the
grounds that the applicant also benefited from the proceeds
of the
sale. The applicant concealed the fact that he had sold and
authorised the sale of the first respondent’s cables
on 31
August and 1 September 2010. When the applicant realised that the
first respondent was looking for missing cables he did
not disclose
the truth but secretly bought it back from the scrap metal dealer
and reported that he had found the cable at the
Burman Road
warehouse. The applicant did not deposit the proceeds of the sale of
the cables in the first respondent’s bank
account as he was
required. The commissioner found that the trust relationship between
the applicant and the first respondent
had been destroyed and found
dismissal an appropriate sanction.
Grounds for review
The applicant submitted that the commissioner’s process of
reasoning was defective leading to the decision he arrived at
being
susceptible to review. The defect manifested itself in a number of
ways. They include the submission that the commissioner
overlooked
the evidence led by Daniel to the effect that he instructed the
applicant to dispose of the cables as the first respondent
did not
need them anymore. The commissioner considered the first
respondent’s waste disposal policy that was not in use
at the
time. Another ground the applicant sought to rely on in proving the
absence of the rule he was accused of having breached
was that he
removed the cables openly and no one asked him for any gate pass.
Not even the security officer insisted on a gate
pass. The
requirement that a gate pass be obtained for every removal of the
first respondent’s property was not popularly
known. Even
Blaauw was not asked for one when taking cables out. The
commissioner failed to consider that the applicant lacked
the intent
to steal as he had been instructed by Daniel to throw the cables
away. The first respondent should have found him
guilty of failure
to adhere to prescribed procedures, misconduct which attracted a
sanction less than dismissal. The commissioner,
so went the
submission, misdirected himself, considered the matter incorrectly
and not on the strength of the material available
to him.
Test for review
Considering the test for review in
Fedelity Cash Management
Services v CCMA and Others
1
,
Zondo JP relied on
Sidumo and Another v Platinum Mines LTD &
Others
2
and found that if a decision is one that a reasonable decision maker
could reach, the decision is reasonable and must stand. In
paragraph
98 the court proceeded to issue the following warning:
‘
It
will often happen that, in assessing the reasonableness or otherwise
of an arbitration award or other decision of a CCMA Commissioner,
the
court feels that it would have arrived at a different decision or
finding to that reached by the commissioner. When that happens,
the
court will need to remind itself that the task of determining the
fairness or otherwise of such a dismissal is in terms of
the Act
primarily given to the Commissioner and that system would never work
if the court would interfere with every decision or
arbitration award
of the CCMA simply because it, that is the court, would have dealt
with the matter differently.’
The test for review is further clarified as follows in Andre
Haroldt
v Nedbank Limited and Congress of South African Trade Union a
decision of the SCA under case number 701/2012
3
,
‘
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)(a) of the
LRA. For a defect in the conduct of the proceedings to amount
to a
gross irregularity as contemplated by s 145(2)(a)(ii), the arbitrator
must have misconceived the nature of the enquiry or
arrived at an
unreasonable result. A result will only be unreasonable if it is one
that a reasonable arbitrator could not reach
on all the material that
was before the arbitrator. Material errors of fact, as well as the
weight and relevance to be attached
to particular facts, are not in
and of themselves sufficient for an award to be set aside, but are
only of any consequence if their
effect is to render the outcome
unreasonable’
.
The applicant submitted that in arriving at his decision, the
commissioner made errors of both law and fact and failed to apply
his mind to material relevant facts thus committing gross
irregularity. The applicant’s main argument is that his
dismissal
was based on a non-existent policy. He removed the cables
openly. Not even the security guard at the gate asked him or Blaauw
for a gate pass for the removal of the cable. He produced his
identity document when selling the cables. He voluntarily purchased
the cables from the scrap metal dealer when it transpired that the
road show cables were missing. He was told by his manager
Mr Darney
(Darney) that the cables could be thrown away and Koutsouvelis
produced no evidence that items of value in the bins
were sold. The
applicant submitted that the commissioner’s failure to
consider the above rendered his award reviewable.
When the applicant’s case is considered against the
arbitration award the record and the submissions on behalf of the
first respondent, the invalidity of the grounds he seeks to rely on
become glaring. The commissioner considered the evidence before
him
and gave reasons for finding that the applicant acted dishonestly
and that contrary to the applicant’s version, he
had the
necessarily intention to steal. The arbitrator’s reasoning and
finding cannot be assailed. He highlighted all the
evidence which
supported the finding that the applicant conducted himself the way
he did out of dishonesty. He did not disclose
that he had sold and
gave authority that the cable be sold. When questions were asked
about missing cables he acted dishonestly
by buying it back secretly
and made a dishonest report that he had found cable at the Burman
Road warehouse. All the applicant’s
dishonest acts pointed to
one conclusion, that he knowingly stole the cables, sold them and
pocketed part the proceeds.
The allegation that the commissioner committed gross irregularity is
unsustainable. The commissioner went to great lengths when
giving
reasons for his decision. He dealt with disputes of fact, the
credibility of witnesses, probabilities and provided valid
reasons
for preffering the first respondent’s version and rejecting
the one presented by the applicant. The commissioner
cannot be
faulted for rejecting the applicant’s version that he sold and
authorised Blaauw to sell the cable to get money
to buy food for
hungry casual workers. The version fails to explain why he benefited
from the proceeds of the sale and why he
did not simply disclose to
the first respondent the noble cause the cables were sold for. The
applicant conceded that the items
discarded in the bins were not
waste which any employee could help himself to as he latter alleged
in an attempt to exculpate
himself.
An analysis of this application proves that the award falls within
bounds of reasonableness in that it is a decision a reasonable
decision-maker could reach on the material before the commissioner.
See
Sidumo (supra).
Even if there was merit in the
applicant’s submission that the commissioner committed errors,
errors on their own do not
constitute grounds to review an award.
They can render an award susceptible to review if they have the
effect of vitiating the
reasonableness of the award see
Herholdt
(Supra
). The applicant failed to prove that the award is
unreasonable.
I could find no reason for cost not to follow the result.
Order
In the premises, the following order is made
The application for review is dismissed with costs.
______________________
LALLIE, J
Judge of the Labour Court of South Africa
Appearances
For the Applicant: Advocate Msizi
Instructed by: Pumeza Bono Attorneys
For the first Respondent: Francois Le Roux for Chris Baker and
Associates
1
[2008]
3 BLLR 197
(LAC) at para 98.
2
[2007]
12 BLLR 1097 (CC)
3
[2013]
ZASCA 97
(5 September 2013) at para 25,