About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2013
>>
[2013] ZALCD 6
|
|
Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (D787/10) [2013] ZALCD 6 (23 April 2013)
REPUBLIC OF SOUTH AFRICA
IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
Reportable
Case no: D787/10
In
the matter between
WOOLWORTHS
(PTY) LTD
...........................................................................
Applicant
and
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
.....................................................
First
Respondent
COMMISSIONER
LESTER SULLIVAN
.........................................
Second
Respondent
YOGAMAGENDRIE
PILLAY
............................................................
Third
Respondent
Heard:
19 April 2013
Delivered:
23 April 2013
Summary:
Review of award – Test for review - Court to recognise that
scrutiny of a decision based on reasonableness introduces a
substantive
ingredient into review proceedings - In judging a
decision for reasonableness, it is often impossible to separate the
merits from
scrutiny - However, the distinction between appeals and
reviews continues to be significant.
JUDGMENT
CELE, J
Introduction
[1]
This is an application in terms of section 145 of the Act
1
to review and set aside the
arbitration award dated 26 July 2010, in this matter issued by the
second respondent as a commissioner
of the first respondent. The
award was issued in favour of the third respondent as an erstwhile
employee of the applicant. She
did not oppose this application. The
application was filed timeously.
Factual background
[2]
At the times material to this matter the third respondent, Ms Pillay,
had been in the employment of the applicant for a period
of 18 years.
She was posted at the Bluff Branch of the applicant but was
transferred to the Musgrave Branch. Her first day at the
Musgrave
Branch was on 5 October 2009. She arrived at work carrying a bag, as
ladies often do, in which she had her personal belongings.
According
to her version, these included four eyeliner pencils, two lip liner
pencils, one pencil gel and a lipstick. The eyeliner,
lip liner and
gel pencils were all the size of a pencil and the lipstick was its
normal size. In terms of a well known rule of
the applicant, Ms
Pillay was supposed to declare the contents of her bag to the
security personnel at the shop. A tag would then
be placed on the bag
or goods as a means of showing that such goods were brought into the
shop and were examined upon entry and
before the commencement of
work. Ms Pillay failed to declare her belongings in that morning of
her first reporting at the Musgrave
Branch.
[3] At the end of her working day, she
presented her bag to the security personnel for inspection, as
usually done at the applicant’s
shops. The four eyeliner
pencils, two lip liner pencils, one pencil gel and a lipstick were
found in her bag with no sign that
they had been declared in the
morning inspection. As would normally be done, these items were
seized from her and the matter was
reported to the Store Manager on
duty, Ms Andrews.
[4]
On the following day, Ms Pillay reported for duty. She then
approached the security personnel and asked for the seized items,
requested that an inspection tag be affixed on them. The security
officer she approached duly complied. In the afternoon of that
day,
after taking her lunch break and while attending to her duties at
work, Ms Andrews called her in and asked her about the seized
items.
She then explained to Ms Andrews that she had forgotten to declare
the items. She explained that while she was to come to
work on her
first day at Musgrave, her father, who was terminally ill with cancer
had a relapse. She had also had difficulty with
her 16 year old son
who did not want to go to school on that morning. She had an eleven
year old daughter who might have removed
the Bluff stickers when
playing with the new bag with the items in issue. As a single parent,
she had to deal with those problems
herself.
[5] In addition, she said that while
travelling to her new employment she had missed the turnoff and was
in a rush when she arrived
at work. All these factors militated
against her remembering to declare her items to the security
personnel. She said that she
had obtained all those items from the
Woolworths Bluff Store six months earlier and that some of the items
were so called “testers”
and were not normally sold. She
said that she was anxious about meeting new staff and about her new
position but she knew that
she would be searched and that everyone’s
bag would normally be searched when leaving.
[6] She had also to account for her
claiming of the items back with a sticker and her failure to approach
the manager on her own
to explain the whole situation. Her
explanation was that she understood that she was required to take the
items and explain the
situation to Ms Andrews and so she collected
the items from the security officer and attempted to see Ms Andrews
on two or three
occasions during the morning. She learnt that Ms
Andrews was away in the morning and so Ms Pillay was not successful
to report
the incident. The matter was investigated upon and the
applicant decided to charge Ms Pillay with gross misconduct which was
described
as:
‘
1.
On the 5
th
October 2009 you failed to declare 8 Woolworths branded makeup
products (eye/eyebrows pencils and lipstick) when entering the store
thereby breaching company policy and procedures. In addition you were
unable to produce proof of purchase when requested to do
so.
On
the 6
th
October 2009 you then requesting security guard to
declare the items and return them to you even though you had been
informed that
these items were being retained as part of an
investigation.’
[7]
A disciplinary hearing was first set down for 15 October 2009 but was
postponed on or rescheduled for several occasions, as
on 28 October
2009, 9 November 2009, and 2 December 2009, due to the absence of Ms
Pillay who was reportedly unwell. Medical reports
were submitted from
a specialist psychiatrist advising that the applicant was unable to
attend the disciplinary hearing because
of a major depressive
disorder. In those reports, the psychiatrist extended an invitation
to anyone who might seek clarification
from him to indicate so.
[8]
At the disciplinary hearing scheduled for 2 December 2009, Ms Pillay
was again not in attendance and a medical certificate issued
by a
general practitioner was handed in stating that she would be fit for
work on 7 December 2009. The earlier report of the psychiatrist
indicated that she would be fit for work on 1 December 2009. Evidence
of Ms Pillay was that she attempted to see her specialist
psychiatrist but he was unavailable, as a result of which the
applicant was obliged to be seen by her general practitioner who
provided the medical certificate. The applicant decided to continue
with the hearing in her absence as the certificate was not
provided
by the specialist psychiatrist. She was found guilty of the charges
and on the next date of hearing a dismissal sanction
was imposed on
her.
[9]
She referred an unfair dismissal dispute to the first respondent for
conciliation and later for arbitration. The second respondent
was
appointed to arbitrate it. He issued an award in the following terms:
‘
32
The applicant was dismissed without a fair hearing and without a fair
reason.
33
Woolworths (Pty) Limited is ordered to reinstate Yogamagendrie Pillay
in its employment with retrospective effect as from the
14
th
December 2009, such employment to be on the same terms and conditions
as the applicant was employed prior to her dismissal.
34
Woolworths (Pty) Limited is ordered to pay Yogamagendrie Pillay the
sum of R92 109.66 in cash or by cheque and at Durban within
two weeks
of the date of receipt of this award.
35
Yogamagendrie Pillay is directed to return to work for the respondent
within 3 days of receipt of this Award.’
[10] The chief findings of the second
respondent in support of the award are that:
‘
1.
Although the applicant was charged with gross misconduct in failing
to declare the cosmetic goods and in obtaining the cosmetic
goods
from security after they had been held for investigation, it was
relatively clear the respondent considered the applicant
was
dishonest in some form or another.
2.
In particular the respondent considered the applicant was not honest
in her version as to how she had originally obtained the
items. It
also considered she was dishonest in respect of the reason given by
her as to why she had obtained the items from security
after they had
been confiscated from her.
3.
Clearly if the applicant had not obtained the items honestly from the
Bluff Store dismissal was a fair sanction. And equally
clearly if she
had attempted to deceive the respondent by obtaining the goods from
Security after they had been confiscated dismissal
would also be a
fair sanction.
4.
However, I find that on a balance of probabilities the evidence
shows:
the
applicant genuinely forgot to declare the items on the 5
th
December
she
had obtained the items honestly
and
she
had no intention to deceive the respondent when taking the goods
from Security.’
[11]
Various reasons were proffered by the second respondent in paragraph
21 for the findings that he made. He, further, found that
in respect
of the first charge against Ms Pillay, that of failing to declare
eight Woolworths branded makeup products, there was
sufficient
evidence to show that she had made an honest mistake. He found that
dismissal was not a fair sanction. In respect of
the second charge,
he was satisfied that Ms Pillay acted honestly in every respect and
was not guilty of any misconduct. He found
that no fair hearing was
held when a disciplinary hearing was conducted after the production
of a valid medical certificate since
that was clearly in breach of
the respondent’s duty to hold a fair hearing. He considered
re-instatement and found that the
distrust that Ms Andrew said she
had of Ms Pillay was due to a misconception of what had occurred and
that once Ms Andrew accepted
the correct version of events there
would have to be no trust issue. If it persisted, it would not be of
Ms Pillay’s making.
[12]
In support of the review application, the applicant outlined a number
of grounds for review both in the founding and supplementary
affidavits. The submission was that the second respondent’s
decision to allow legal representation for Ms Pillay was unreasonable
and reviewable as the matter was simple and Ms Pillay, as was the
representative of the applicant, was a manager. She had no reason
to
feel intimidated by the proceedings.
[13]
In respect of the first charge, it was contended that Ms Pillay’s
evidence was contradictory in many respects when the
charge was
simply that she failed to declare the items in her bag and had no
reason to feel anxious on that day. It was contended
that the second
respondent failed to apply his mind to material evidence such as that
of the security officer when confiscating
the items from her told her
that the items would be kept as exhibits and the matter would be
reported to the Store Manager. In
respect of the second charge, it
was said that Ms Pillay, well knowing what the security officer had
told her on the previous day,
she pretended to the other officer who
had not been present on the previous day that she had just forgotten
to take her things
and attempted to remove the items from the shop
without an explanation, when Ms Andrew had been at the shop from
about 12h00 to
16h00. The second respondent was said to have
therefore committed a gross irregularity.
Evaluation
[14]
In setting out the standard of review court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Other
s,
2
stated that:
‘
The
standard of review
‘
[105]
....
[106]
The
Carephone
test, which was substantive and involved greater
scrutiny that the rationality test set out in
Pharmaceutical
Manufacturers
, was formulated on the basis of the wording of the
administrative justice provisions of the Constitution at the time,
more particularly,
that an award must be justifiable in relation to
the reasons given for it. Section 33(1) of the Constitution presently
states that
everyone has the right to administrative action that is
lawful, reasonable and procedurally fair. The reasonableness standard
should
now suffuse section 145 of the LRA.
[107]
The reasonableness standard was dealt with in
Bato Star
. In
the context of section 6(2) (h) of PAJA 3 of 2000, O`Regan J said the
following: “(A) n administrative decision will
be reviewable
if, in Lord Cooke`s words, it is one that a reasonable decision-maker
could not reach”.
[108]
This Court recognised that scrutiny of a decision based on
reasonableness introduced a substantive ingredient into review
proceedings. In judging a decision for reasonableness, it is often
impossible to separate the merits from scrutiny. However, the
distinction between appeals and reviews continues to be significant.
[109]
Review for reasonableness, as explained by Professor Hoexter, does
threaten the distinction between review and appeal. The
Labour Court
in reviewing the awards of commissioners inevitably deals with the
merits of the matter. This does tend to blur the
distinction between
appeal and review. She points out that it does so in the limited
sense that it necessarily entails scrutiny
of the merits of
administrative decisions. She states that the danger lies, not in
careful scrutiny, but in “judicial overzealousness
in setting
aside administrative decisions that do not coincide with the judge`s
own opinions.”This court in
Bato Star
recognised that
danger. A judge`s task is to ensure that the decisions taken by
administrative agencies fall within the bounds of
reasonableness as
required by the Constitution.’
[15]
Section 145 of the Act, has now been suffused by the constitutional
standard of reasonableness. That standard is whether the
decision
reached by the commissioner is one that a reasonable decision maker
could not reach.
3
In judging the decision of the second
respondent for reasonableness, it will be impossible to separate the
merits from scrutiny.
However, the distinction between an appeal and
a review will continue to be of significance.
[16]
As regards the sufficiency of the evidence on the basis of which
legal representation was granted, the supplementary affidavit
of the
applicant, clearly, shows, in my view, that the second respondent was
entitled to the decision he took. In this case, granting
legal
representation was premised on the belief of the second respondent
that the scales would tip against an anxious litigant
who later in
the evidence turned out to have been severely traumatised to the
point of having had to be hospitalised for some days
due to
challenges in her life at the time. The applicant has cast doubt on
the veracity of Ms Pillay’s family problems by
alleging that no
proof of the assertions was produced. The second respondent was
deeply involved in the trial and had an opportunity
to assess
witnesses. The applicant has failed to demonstrate how the second
respondent, who had the authority to conduct the arbitration
in a
manner that the commissioner considered appropriate in order to
determine the dispute fairly and quickly,
4
committed any defect in this regard.
In my view, the decision he reached is among those which a reasonable
decision maker could
reach.
[17]
In respect of the applicant’s challenge to the findings of the
second respondent, the applicant seems to want to create
doubt as to
the ownership of the items, apart from a failure to declare them to
the security officer. Yet it appeared common cause
that the goods did
not belong to the Musgrave branch. The applicant said that the items
were new but did not say they had identification
tags of Musgrave
store. Some of the items were so called “testers” and
were said to be not normally sold. If the ownership
of the goods is
not in dispute, and it appears not to have been, whether the items
were not sticky, as a sign that no Bluff tagging
was done on them,
becomes irrelevant and the second respondent was entitled not to
waste time on irrelevant evidential material.
[18]
Witnesses of the applicant, who testified about the events on the
first count, were calm and collected on the day. They probably
heard
well what the security officer said when he confiscated the items. Ms
Pillay was however, probably not as calm and collected,
when
considering her health status and the status of her family. To say
that she had no reason to be anxious because she had been
told before
where to park her car, is rather speculative. The second respondent
was faced with two versions, that of the applicant’s
witnesses
and that of Ms Pillay. He applied his mind to the two versions and
accepted that of Ms Pillay. Whether he was correct
in doing so cannot
be the probe of this application, which is a review and not an
appeal. This ground must accordingly also fail.
[19]
The next probe turns on the second charge. The removal of the goods
and an instruction that they be tagged is subject to at
least two
interpretations. One is that she was attempting to eliminate the
evidence against her as the security officer told her
he would report
the matter, in which case she was dishonest. The other is her version
that she took them to present them to the
Store Manager when she
would be offering her explanation of what had happened. She said that
she tried twice to find Ms Andrews
but it was at the time she was not
yet back to the office. An allegation was made that the decision
reached by the second respondent
was unreasonable, without a
demonstration of what makes the decision unreasonable. The applicant
simply wanted its version to be
upheld because of the superiority on
the number of witnesses it called. The second respondent applied his
mind to this evidence
and he sustained a version he considered to be
favoured by the probabilities of the matter. Again, whether in doing
so he was right
or wrong has nothing to do with a review application
as it relates to an appeal.
[20]
The next consideration pertains to procedural fairness of the
dismissal. The applicant appears to have taken the position that
the
credible medical report was that of the psychiatrist and not of the
general practitioner. It is true that the applicant was
faced with a
dilemma when on numerous occasions the disciplinary hearing of Ms
Pillay could not proceed. It remains the prerogative
of an employer
to discipline its employees when doing so becomes necessary. The
applicant has not suggested why it could not lend
credence to the
medical report of the general practitioner, who was a qualified
doctor and was within his right to issue the medical
certificate. Ms
Pillay explained at arbitration why she had to consult a general
practitioner. The psychiatrist was not available
at the time. No
reason was advanced by the applicant why this version was not
probable. Accordingly, this ground suffers the same
fate as others.
[21] In the circumstances, the
following order shall issue:
The review application in the matter
is dismissed.
No costs order is made.
_________
Cele, J
Judge of the Labour Court.
APPEARANCES:
For
the applicant: Mr B Macgregor of Macgregor Erasmus Attorneys, Durban.
For
the respondent: No appearance
1
The
Labour Relations Act Number 66 of 1995.
2
[2007]
12 BLLR 1097
(CC); (2007) 28 ILJ 2405 (CC
)
at paras 106 to 109.
3
Id
at para 110.
4
See
section 138 (1) of the Act.