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[2013] ZALCD 7
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Dladla v Empangeni Cash and Carry and Others (D135/10) [2013] ZALCD 7 (2 May 2013)
19
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR COURT OF
SOUTH AFRICA, AT DURBAN
JUDGMENT
Not Reportable
Case no: D135/10
In the matter between:-
ZANELE DLADLA
.............................................................................................
Applicant
and
EMPANGENI CASH AND
CARRY
.......................................................
First
Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
..................................................
Second
Respondent
COMMISSIONER S KILLIAN
N.O
......................................................
Third
Respondent
Heard :
28
February 2013
Delivered
:
02 May 2013
Summary :
Condonation for late filing of record – factors considered -
whether explanation for delay on affidavit constitutes an application
for condonation. Delay excessive – not fully explained.
Prospects of success considered – breach of rules –
whether sanction of dismissal too harsh. Application dismissed.
judgment
CHETTY AJ
[1] This is an
application in terms of s 145 of the Labour Relations Act 66 of 1995
(“the Act”) for the reviewing and
setting aside of the
decision of third respondent (‘the commissioner’)
following upon an arbitration award handed down
on 17 December 2009
in terms of which the dismissal of the applicant, Ms Zanele Dladla
(hereinafter referred to as ‘the applicant’)
was found to
be procedurally and substantively fair. The applicant seeks an order
declaring her dismissal from employment to be
unfair and that she be
reinstated with retrospective effect to the date of her dismissal on
8 May 2009.
[2] The applicant was
employed as a cashier at Empangeni Cash and Carry, the first
respondent herein, in August 1995 and earned
R3202 per month at the
time of her dismissal. The applicant was charged with two counts of
misconduct where she was alleged to
have committed fraud on 7 April
2009 when she placed in her till a credit card voucher to the value
of R1240.00 that she received
from Siphiwe Biyela without a valid
transaction having taken place. It was alleged that this was done in
order to ‘cover
up’ a potential shortage in her till. The
second charge was that she breached the company rules in that on 7
April 2009 she
exchanged cash for a credit card voucher.
[3] The applicant was
duly informed of the charges and a disciplinary enquiry was held on
29 April 2009. The chairperson of the
enquiry found that the
applicant had fabricated a version to cover-up for a potential
shortage in her till on the 7 April 2009.
The chairperson further
found that the applicant had acted in breach of the first
respondent’s policy in allowing credit
card vouchers to be
exchanged for cash. She was found guilty of both charges against her.
In mitigation, she pointed out that she
was employed by the first
respondent for 14 years without any form of disciplinary infraction
and pleaded to be given a written
warning as she was the sole bread
winner in her family. The first respondent contended that her conduct
had caused a breakdown
of the trust relationship between the parties,
and that the charges were considered to be very serious. The
chairperson of the
enquiry considered her conduct to be sufficiently
serious to warrant her dismissal.
[4] With the assistance
of her union, the United Chemical Industries Mining Electrical State
Health and Allied Workers Union (‘UCIMESHAWU’),
the
applicant referred her dismissal to the CCMA on 14 May 2009, in which
she challenged the fairness of her dismissal and sought
her
reinstatement. The CCMA was unable to resolve the dispute and the
matter was referred to arbitration before the third respondent,
who
eventually confirmed the dismissal of the applicant as being
substantively and procedurally fair. The arbitration award was
handed
down on 17 December 2009.
[5] In terms of s
145(1)(a) of the Act, the applicant was obliged to bring her review
application within six (6) weeks of the award
being served on her.
Accordingly, the six (6) week period for the filing of a review
application would have expired on 28 January
2010. The application
for review was filed in this Court on 4 March 2010. At the time when
the application was filed, the applicant
was being represented by
Shanta Reddy Attorneys, and an affidavit in respect of proof of
service of the review application was
deposed to by Mr. Geldenhuys,
who now appears for the applicant. He was, at the time of the filing
of the review, in the employ
of Shanta Reddy Attorneys. There is no
application for condonation for the late filing of the review
application. I point out that
the first respondent did not take issue
with the late filing of the review application. That however does not
excuse the applicant
from non-compliance. Accordingly, the applicant
is approximately 35 days late in the filing of the review
application, for which
no explanation is tendered.
[6] That however is not
the end of the applicant’s non-compliance with the time periods
prescribed in the Act and in terms
of the Rules. Upon the filing of
the review application, the second respondent wrote to the
applicant’s then attorneys, Shanta
Reddy Attorneys, advising on
5 March 2010, that in compliance with Rule 7A(3) of the Rules of the
Labour Court, the CCMA had dispatched
a record of the proceedings
before the CCMA to the Registrar of the Labour Court. The CCMA
further drew to the attention of the
applicant’s attorneys that
they were required to make the necessary copies of portions of the
record which they intended
to rely on for the purpose of the review
application.
[7] In terms of Rule
7A(6) the applicant’s attorneys were required to furnish the
Registrar of the Court and the parties to
the review application with
a copy of the record. On 16 March 2010 the CCMA made available to the
Registrar a compact disc containing
a record of proceedings before
the CCMA as well as a bundle of documents. In terms of the Rules, the
applicant is required to ensure
a transcription of the record of
proceedings or handwritten records, or such portions of the records
as may be necessary and relevant
to the review. The applicant,
through her attorneys at the time, was accordingly advised by the
Registrar on 16 March 2010 that
the tapes were available to be
uplifted and transcribed.
[8] A perusal of the file
reflects that a letter was sent by Mr. Geldenhuys of Shanta Reddy
Attorneys on 18 August 2010 to the Registrar
advising that a
transcribing service, Valens Transcripts, had uplifted the tapes from
the Court, but noticed after transcribing
the tapes, that only half
of the proceedings were recorded and that they were endeavouring to
find out the whereabouts of the remainder
of the proceedings. The
aforementioned letter from the applicant’s attorneys came
almost five (5) after the record became
available for collection. At
about the same time, a letter dated 16 August 2010 was sent from the
first respondent’s attorneys
to the applicant’s then
attorneys setting out the following
‘
We have
received a communication from the Labour Court to the effect that you
have not adhered to the Rule 7A(5) Notice dated 6
March 2010.
You will know that we have written to
you on several occasions requesting a progress report with regard to
your obligations.
In the circumstances, we presume that
your client intends to proceed no further in this matter and we would
be grateful if you would
confirm such because you will note that if
outstanding pleadings or procedures have not been completed by the
20
th
August 2010, you will be obliged to show cause as to
why the matter should not be dismissed.
Accordingly, we look forward to
hearing from you by return.’
[9] No further steps were
taken by the applicant’s attorneys. What is apparent though is
that the transcript of the record
had been completed by Valens
Transcripts CC on 4 February 2011, in terms of the transcriber’s
certificate. For reasons which
are not apparent, the record was not
uplifted. The next step in terms of the chronology of events is a
notice of appointment as
attorneys of record on 2 November 2011 by Mr
Gleldenhuys of Tomlinson Mnguni James, the present attorneys for the
applicant. On
5 April 2012, some five (5) months after having been
appointed as attorneys of record for the applicant, the applicant’s
attorneys filed a supplementary affidavit. In an attempt to provide
an explanation for her inaction since the filing of her review
application almost two (2) years ago, the applicant states that her
union UCIMESHAWU had instructed Shanta Reddy to proceed with
the
review application but that the attorneys firm subsequently closed
down and her present attorneys were only appointed in November
2011.
She further states that she did not have the necessary funds to
transcribe the record, which funds she eventually was able
to raise
in mid-2011.
[10] The supplementary
affidavits set out in some detail the basis for the attack against
the third respondent’s decision,
with reference to the
transcript. The first respondent’s attorneys subsequently
pointed out on 18 April 2012 that they were
prejudiced in having to
file a reply to the supplementary affidavit as they had not been
served with a copy of the Record contemplated
in Rule 7A(6), referred
to and relied upon by the applicant in her supplementary affidavit.
This was then served on the first respondent’s
attorneys on 25
April 2012.
[11] On 23 May 2012 the
first respondent’s attorneys again wrote to the applicant’s
attorney’s drawing to their
attention that the record appeared
to be incomplete. According to the applicant’s attorneys, the
transcription prepared and
lodged with this Court is a full record of
all that was furnished by the CCMA. An email from the transcribers to
Mr Geldenhuys
on 18 August 2010 confirmed that the record had been
transcribed and presented the attorneys with the invoice for the
transcript.
The email further records that the evidence of Ms
Ungerer, Ms Dladla, Mr Msane and Ms Biyela’s had been recorded
and transcribed.
When the matter came before me, both parties were in
agreement that although the record was incomplete, it nonetheless
contained
sufficient portions of the evidence that could enable the
Court to deal with the review application. The record in any event
contained
the evidence of witnesses called by both parties as well as
their cross examination. It was never contended by either party that
a deficiency in the record prejudiced their case.
[12] In light of the
‘problems’ with the record, the first respondent filed
its replying affidavit in opposition to
the review application on 1
July 2012. In this affidavit, the first respondent also sought
condonation for the late filing of its
reply, attributable to the
delay in the applicant’s attorneys filing of the record, in the
first instance, followed by the
delay in ascertaining whether the
record was complete. I am satisfied that good cause has been set out
for the delay, which in
any event was only 10 (ten) days late.
[13] The application for
review was opposed, and Ms Smart who appeared for the first
respondent, correctly submitted that before
this Court could
entertain the merits of the review application, it is obliged to deal
with the delay occasioned in the filing
of the records of the
proceedings before the CCMA. It is common cause that the third
respondent handed down the award on 17 December
2009 The application
for review was filed on 4 March 2010. As set out earlier, there is no
explanation for the lateness of 35 days
in the filing of the review
application.
[14] Insofar as the
record is concerned, the notification by the Registrar to the
applicant, issued in terms of Rule 7A(5), was
sent on 16 March 2010.
The transcript of the record had been completed by 4 February 2011.
The applicant concedes that the filing
of the record and her
supplementary affidavit in April 2012 was nineteen (19) months late.
This is an inordinately long period
for the transcription of a record
that was 102 pages in extent. For reasons which are not readily
apparent, the applicant filed
an affidavit setting out an
“
explanation for the late filing of the record
” as
opposed to an application for condonation. This Court has the power
to condone non-compliance with any time periods for
the filing of any
document in terms of s 158(1)(f) of the Act, read with Rule 12. It is
trite that an applicant for condonation
must establish good cause.
[15] Notwithstanding the
absence of an application for condonation I considered her affidavit
in the same light. The explanation
proffered by the applicant for the
delay is that she was unemployed and did not have the necessary funds
to pay for the transcription
of the arbitration proceedings. At the
same time, her affidavit suggests that her union
UCIMESHAWU
was still involved in prosecuting the review application
inasmuch as they informed her in October 2010 that Shanta Reddy
Attorney’s
had closed in August 2010, and that her file had
been handed over to her present attorneys, Tomlinson Mguni James. The
only reasonable
inference to be drawn,
as
contended by the first respondent, is that the union was still
funding the applicant’s review at this stage.
If
that were the case, it does not follow that the delay in transcribing
the record would have been due to lack of funds. There
is also no
mention in any of the letters from her attorneys at the time that the
applicant lacked the necessary funds to diligently
prosecute the
review and to obtain the record timeously.
[16] Accepting for the
moment that the applicant was unemployed and unable to afford the
costs of the transcription of the record,
there is no explanation for
many of the extensive delays that occurred in securing a copy of the
record. On her own version, by
3 May 2010 she reached an agreement
with Shanta Reddy Attorneys regarding payment for the costs of the
record. The Court is not
informed what this arrangement was, but
presumably there was no impediment after May 2010 in securing the
record. Even if the last
portion of the evidence of the arbitration
proceedings had been lost, and the arbitrator’s notes had to be
obtained and transcribed,
this omission became apparent in May 2010.
Shanta Reddy Attorneys wrote to the first respondent’s
attorneys on 5 May 2010
indicating that they would attempt to address
this matter.
[17] Although the
applicant says that she contacted her attorneys to check up on
progress in the matter, she does not say who she
spoke to between May
and August 2010 and what the reason for the delay was. Only after
three (3) months, in August 2010, did she
speak with Mr. Geldenhuys
who informed her that the last portion of the record was missing.
This takes the applicant’s explanation
no further as her
attorneys were aware of this position three (3) months prior thereto.
A perusal of the transcript does not reflect
that the handwritten
notes were used in the reconstruction of the record, and at best for
the applicant, Valens Transcripts were
in possession of all the
evidence available as at 16 August 2010 for the record to be
transcribed.
[18] Bearing in mind that
an applicant seeking condonation is required to give a full and
proper account of the reason for the delay
in respect of the entire
period for which condonation is sought, the applicant’s
explanation for the parts that she does
account for, is unconvincing.
In respect of those parts where no explanation is tendered, the
delays are significant. On her own
version, after the closure of
Shanta Reddy Attorneys in August 2010, her union informed her that
her file, together with a number
of others, had been transferred to
Mr. Geldenhuys who was now practicing under the name of Tomlinson
Mguni James Attorneys. There
is no explanation for why she could not
consult earlier with Mr. Geldenhuys than on 1 November 2010. Again, a
delay of approximately
three (3) months is unexplained. Even at the
time of consulting with Mr. Geldenhuys, she does not say what the
“problems”
that he was facing with her matter, nor does
he depose to an affidavit in this regard. These “problems”
were hardly
likely to fall within the realm of attorney client
privilege but even if they did, that much is not stated.
[19] The arbitration
award of the commissioner reflects that the applicant called two
witnesses to testify on her behalf –
Ms. Biyela and Mr. Mati.
The latter’s evidence is missing from the transcript. His
evidence, as recorded by the arbitrator,
is that he represented the
applicant at the disciplinary enquiry and he contended that he was
not given an opportunity to cross
examine the first respondent’s
witnesses, nor did he know of the rule that credit card vouchers
could not be exchanged for
cash or of the meeting on 25 March 2009
when this rule was apparently brought to the attention of staff at a
meeting. Importantly
in relation to Mr. Mati’s version, the
arbitrator recorded in her award that the witness explained that it
was a cheaper
or cost efficient means for a person to exchange a
credit card voucher for cash rather than to withdraw cash via the
automatic
teller machine from one’s credit card account.
[20] Even if the evidence
of Mr. Mati were not available, the issue arises whether it would not
be possible to determine the review
application without his evidence.
A glance at the founding and supplementary affidavits of the
applicant, places no reliance on
the missing aspect of the record nor
was any reliance placed on this when the matter was argued. The
situation worsens, in that,
despite applicant consulting with Mr.
Geldenhuys in November 2010, the attorney only filed a notice of
appointment as attorney
of record on 9 November 2011, a full year
after being instructed by the applicant. Other than a reference to
“
several enquiries to the CCMA between February 2011 and
July 2011 to locate the missing recordings
” no explanation
for the delay. Other than writing to the CCMA in February 2011 to
locate the missing tapes, there is no evidence
of any other steps
taken by the applicant’s attorneys to prosecute the matter
expeditiously. The applicant refers to correspondence
between her
attorneys and that of the first respondent, and numerous telephone
calls between the two on the issue of the missing
portion of the
evidence. There is no confirmatory affidavit filed by the applicant’s
attorney nor any annexures from which
it can be gleaned what the
extent of the problem was or what prevented the attorney from filing
the record in the form that it
was.
[21] The applicant
however states in her affidavit that the delay in serving and filing
her supplementary affidavit on 5 April 2012
was not due to any fault
of her own. She does not say whom the fault should be attributed to.
Clearly, this is a matter where the
applicant’s attorney,
or the applicant,
was responsible for the
delay. The explanation tendered for parts of the delay are, in my
view, unconvincing and do not come close
to establishing good cause.
The applicant’s current attorney had dealt with the matter when
he was employed by her erstwhile
attorneys. Notwithstanding, her
present attorneys filed a notice of appointment a year after
consulting with the applicant. The
supplementary affidavit was only
filed in April 2012, approximately fourteen (14) months after the
record had been transcribed.
[22] I have considered
the explanatory affidavit of the applicant very much as an
application for condonation, despite there being
no formal
application for condonation. That being so, it is trite that
condonation must be sought as soon as a party is aware that
they have
not been able to comply with a time limit imposed by legislation or
the Court. Again, there is no explanation why the
applicant’s
attorney waited a further six (6) months after the filing of her
supplementary affidavit, to file a further affidavit
explaining the
delay. In
CUSA
v Tao Ying Metal Industries & others
1
Ngcobo J commented on the
rationale for expedition in bringing labour disputes to finality. The
Court stated that
‘
Any delay in
resolving a labour dispute could be detrimental not only to the
workers who may be without a source of income pending
the resolution
of the dispute, but it may, in the long run, have a detrimental
effect on an employer who may have to reinstate
workers after a
number of years.’
2
[23] In determining
whether or not to grant condonation, a good explanation for the
lateness may assist an applicant in compensating
for weak prospects
of success. Similarly strong prospects of success may compensate for
an inadequate explanation and a long delay.
Good cause is established
by the applicant giving an explanation that shows how and why the
delay occurred. In this case, the explanations
provided by the
applicant are for short periods of the overall delay of nineteen (19)
months, and do not articulate any satisfactory
or reasonable
explanation for the excessive delay in filing the record or the
supplementary affidavit. After several months of
delay, occasioned
supposedly because of an incomplete record, nothing of significance
turned on that part of the record that the
transcribers were unable
to locate. No reliance was placed on Mr. Mati’s evidence by the
attorney representing the applicant.
[24]
It
is well established that in the absence of a reasonable and
acceptable explanation for the delay, an enquiry into the prospects
of success is rendered immaterial. In
NUM
v Council for Mineral Technology
3
the Court affirmed the
well established principle that
the
discretion in deciding such applications must be exercised
judicially,
upon
a consideration of all the facts, and in essence it is a matter of
fairness to both sides. The Court went on to add that
‘
A
slight delay and a good explanation may help to compensate for
prospects of success which are not strong. The importance of the
issue and strong prospects of success may tend to compensate for a
long delay. There is a further principle which is applied and
that is
that without a reasonable and acceptable explanation for the delay,
the prospects of success are immaterial, and without
prospects of
success, no matter how good the explanation for the delay, an
application for condonation should be refused.’
4
[25]
The
applicant was not only late in the filing of her review application
(by approximately 35 days), she was also late in the filing
of her
supplementary affidavit and filing of the record (by approximately 19
months) as well as the filing of her heads of argument
outside the
time periods set out in the Practice Directive. In respect of the
last mentioned, the first respondent filed its heads
of argument
without having had sight of the applicant’s heads. It is
therefore not an isolated instance, but a pattern of
lateness, for
which neither the applicant nor her attorneys accept responsibility.
In the context of individual dismissal cases,
the Court in
Queenstown
Fuel Distributors CC v Labuschagne NO and Others
5
held that:
‘
. . .
condonation in the case of disputes of individual dismissals will not
readily be granted. The excuse for non-compliance would
have to be
compelling, the case for attacking a defect in the proceedings would
have to be cogent and the defect would have to
be of a kind which
would result in a miscarriage of justice if it were allowed to
stand.
’
6
[26] The period of delay
is excessive and the applicant’s “explanatory affidavit”
does not establish good cause
for the period of delay. As Miller JA
in
Chetty
v Law Society, Transvaal
7
held that
‘
An
unsatisfactory and unacceptable explanation remains so, whatever the
prospects of success on the merits. In the light of the
finding that
the appellant's explanation is unsatisfactory and unacceptable it is
therefore, strictly speaking, unnecessary to
make findings or to
consider the arguments relating to the appellant’s prospects of
success.’
8
[27] If the applicant was
inadequately represented by her first legal representative then she
fared no better with the second. Steyn
CJ in
Saloojee &
Another v Minister of Community Development
9
held that
‘
In
Regal
v African Superslate (Pty) Ltd.,
1962
(3) SA 18
(AD) . . . this Court came to the conclusion that the delay
was due entirely to neglect of the applicant’s attorney, and
held that the attorney’s neglect should not, in the
circumstances of the case, debar the applicant, who was himself in no
way to blame, from relief. I should point out, however, that it has
not at any time been held that condonation will not in any
circumstances be withheld if the blame lies with the attorney.
There is a limit beyond which a litigant cannot escape the results of
his attorney’s lack of diligence or the insufficiency
of the
explanation tendered
.
To hold otherwise might have a disastrous effect upon the observance
of the Rules of this Court. Considerations
ad
misericordiam
should not be allowed to become an invitation to laxity.’
10
(My emphasis.)
The Labour Appeal Court
in
Superb Meat Supplies CC v Maritz
11
stated that
‘
It
has never been the law that invariably a litigant will be excused if
the blame lies with the attorney. To hold otherwise might
have a
disastrous effect on the observance of the rules of this court and
set a dangerous precedent. It would invite or encourage
laxity on the
part of practitioners.’
12
See too
A
Hardrodt (SA) (Pty) Ltd v Behardien & others
13
where the Labour Appeal Court stated the following in
relation to a delay of four and a half months
‘
The
catalogue of events reveals negligence, incompetence and gross
dilatoriness by the appellant's legal representatives. It is
difficult to see how that constitutes a good cause condonation with
convincing reasons as laid down in the
Queenstown
Fuel Distributors CC
case.’
14
[28] In light of the
facts set out above, I am not satisfied that there has been a
reasonable, adequate or acceptable explanation
for the delay
occasioned in bringing the review application and thereafter in
filing the record and the supplementary affidavit.
In
Moila
v Shai N.O. & others
15
Zondo JP considered the
plight of an applicant who filed a review application a year after
the expiry period of six (6) weeks. The
Court noted
‘
I do not
have the slightest hesitation in concluding that this is a case where
the period of delay is excessive and the appellant's
purported
explanation for the delay is no explanation at all. I accept that the
case is very important to the appellant. However,
the weight to be
attached to this factor is too limited to count for anything where
the period of delay is as excessive as is the
case in this matter and
the explanation advanced is no explanation at all. If ever there was
a case in which one can conclude that
good cause has not been shown
for condonation without even considering the prospects of success,
then this is it. Where, in an
application for condonation, the delay
is excessive and no explanation has been given for that delay or an
“explanation”
has been given but such “explanation”
amounts to no explanation at all, I do not think that it is necessary
to consider
the prospects of success.’
16
[29] Both counsel were in
agreement that I should determine both the issue of condonation and
the merits of the review. I was in
agreement with that approach. The
applicant was dismissed after being found guilty of fraud, in that
she placed a credit card voucher
in the amount of R1240.00 in her
till, which she received from another cashier, Siphiwe Biyela,
without a valid transaction having
taken place. It was contended that
the transaction was effected in order to cover up a shortage on her
till. Secondly, the applicant
was charged with breaking a rule of the
company prohibiting the exchange of a credit card voucher for cash.
It was contended on
behalf of the applicant that the decision of the
third respondent was not a decision which a reasonable decision maker
could come
to as it was not supported by the evidence before him.
[30] Before dealing with
the arbitrator’s finding regarding the events on 7 April 2009,
the arbitrator analysed the evidence
of the witnesses regarding the
meeting on 25 March 2009. The company’s administration manager,
Ms Ungerer testified that
prior to March 2009, cashiers were allowed
to exchange credit card vouchers, which were swiped and produced at
the tills, in exchange
for cash. In effect, without having to
purchase goods from the first respondent, cashiers would be able to
effect a transaction
against the use of a credit card for a supposed
purchase, but in effect the card was being used to obtain cash.
Ungere’s
testimony was that due to fraud, a rule was introduced
that no cash could be issued in exchange for a credit card voucher
without
a valid transaction taking place.
[31] A meeting was held
on 25 March 2009 the version of the company’s witnesses is that
the above mentioned rule was explained
to all staff, including the
applicant. The applicant denies that she was present at the meeting.
Both Ungerer and Msane testified
that the meeting did take place on
25 March 2009 at which all staff were present, including the
applicant. From the record, it
would appear that no attendance
register was kept of the meeting. As to whether the applicant was
present, the applicant’s
version is that this was a meeting for
“front end staff” and she was accordingly not required to
be present. This version
was never put to Ungerer in cross
examination and the arbitrator was correct in concluding that
Ungerer’s version was left
unchallenged. What the applicant’s
representative did contend at the arbitration is simply that no
meeting took place on
25 March 2009, and the change in the rule
regarding the exchange of credit card vouchers for cash was never
conveyed to staff.
[32] The applicant relies
on the absence of a register at the meeting on 25 March 2009 to
support her contention that she was not
present at the meeting or
that the meeting ever took place, and accordingly she had no
knowledge of the rule being broken when
she gave her sister an amount
of R1240.00, and replaced this amount by way of a credit card
transaction. Both Ungerer and Msane
testified that all of the
cashiers, including the applicant, were present at the meeting. It is
not disputed that the applicant
clocked into work at shortly past
07h30. Ungerer’s evidence is that the store opens every
Wednesday at 08h30, as it is customary
for the company to have a
meeting with its staff. There is no evidence of what the applicant
did during this time whilst all other
staff were at the meeting.
[33] In analysing her
evidence, the arbitrator accepted the version of the company’s
witnesses that a meeting on 25 March
2009 did take place. That
conclusion, in my view, is a reasonable decision that could be
reached in the circumstances based on
the evidence before the
arbitrator. The arbitrator found no reason to reject the evidence of
the company’s witnesses. On
the other hand, while the
applicant’s version is that the meeting was for “front-end
staff only”, her witness,
Ms. Biyela, testified that no meeting
took place on 25 March 2009. The arbitrator correctly found, on the
basis of the evidence
before him, that there was a contradiction in
the evidence of the applicant and her witness. Either there was a
meeting, only for
“front end” staff, as the applicant
contended or there was no meeting at all, as contended for by Biyela.
Biyela, it
must be borne in mind, was also charged for the same
misconduct as was the applicant.
[34] Mr. Geldenhuys who
appeared for the applicant, conceded that if I were to accept the
version of the first respondent that the
arbitrator acted reasonably
and rationally in concluding that a meeting was held on 25 March
2009, then the only inference to be
drawn, is that staff were
informed of the change of rules against the exchanging of credit card
vouchers for cash. The inevitable
conclusion is then that the
applicant had knowledge of the rule and acted contrary thereto. Even
if the arbitrator arrived at a
decision that no reasonable decision
maker could have arrived at, regarding the meeting of 25 March 2009,
there is still the evidence
of Ungerer that the knowledge of the new
rule against exchanging credit card vouchers for cash was prohibited
was communicated
personally to the staff, as well as the rule being
printed and placed alongside the credit card machines used by the
cashiers.
Her testimony was that the notice clearly stated that
‘
No person is
allowed to use the credit card machine without any supervisor
assistance. Supervisor assistance only authorize sales
on credit card
machine. Identification required for credit card or debit card
purchases done on the credit card machine.’
[35] The thrust of the
applicant’s attack against the decision of the arbitrator was
that the arbitrator had found the applicant
guilty of fraud when
there had been no loss sustained by the company, nor was there any
basis to prove that there had been a misappropriation
of monies. It
was further submitted that applicant had no intention to commit
fraud, evidenced by her conduct of inserting a credit
card voucher in
her till, and that the decision of the arbitrator was outside the
range of reasonableness, in terms of the outcomes
that could have
been reached. I agree with Mr. Geldenhuys that the award of the third
respondent does not set out in any detail
why she found that the
applicant was guilty of fraud and of breach of the rule. However,
this in itself is no reason to find that
the decision of the
arbitrator should be set aside.
[36]
In
Fidelity
Cash Management
Services
v Commission for Conciliation, Mediation & Arbitration &
others
17
Zondo JP articulated the
test as follows
‘
It seems to
me that, even if there may have been a debate under
Carephone
and prior to
Sidumo
on whether a
commissioner’s decision for which he or she has given bad
reasons could be said to be justifiable if there were
other reasons
based on the record before him or her which he or she did not
articulate but which could sustain the decision which
he or she made,
there can be no doubt now under
Sidumo
that the
reasonableness or otherwise of a commissioner’s decision does
not depend – at least not solely - upon the reasons
that the
commissioner gives for the decision. In many cases the reasons which
the commissioner gives for his decision, finding
or award will play a
role in the subsequent assessment of whether or not such decision or
finding is one that a reasonable decision-maker
could or could not
reach. However, other reasons upon which the commissioner did not
rely to support his or her decision or finding
but which can render
the decision reasonable or unreasonable can be taken into account.
This would clearly be the case where the
commissioner gives reasons
A, B and C in his or her award but, when one looks at the evidence
and other material that was legitimately
before him or her, one finds
that there were reasons D, E and F upon which he did not rely but
could have relied which are enough
to sustain the decision.’
18
[37] On behalf of the
first respondent, Ms Smart pointed to the evidence of Ungerer as the
basis for the foundation that the conduct
of the applicant not only
amounted to a breach of a rule, but also to fraudulent behavior. She
submitted, and correctly with regard
to
Fidelity Cash Management
Services
, that the test as to whether the arbitrator’s
decision is reasonable, must be determined objectively with due
regard to the
facts before him or her. The evidence which was before
the arbitrator was that a meeting was held on 25 March 2009 where the
new
policy regarding credit card vouchers was explained to staff. The
applicant’s version is that she arrived at work that morning
prior to the meeting, but she did not attend, or that she was not
required to attend, must be weighed up against the evidence of
the
company’s witnesses who stated that it was customary to have a
meeting with staff every Wednesday morning.
[38] The company’s
witnesses further testified that the policy of no credit card
vouchers being exchanged for cash was reduced
to writing and cashiers
alerted to its operation in the form a notice placed next to the card
machines. The new policy significantly
changed the past practice
where cashiers could ‘withdraw’ cash from their tills
against a credit card transaction to
the same value, even without a
valid transaction for the purchase of goods. Against this evidence,
the applicant denied that she
knew of the new rule - that she asked
her co-worker Siphiwe Biyela to process a credit card transaction for
R1240.00, which she
placed in her own till and that she gave her
sister the money as she and her family were starving and had no
money.
[39] The applicant denied
that notices were issued drawing her attention (and that of other
cashiers) to the new policy or that
one-on-one cashier meetings were
held where she was informed of the new rule. No other cashiers were
called to testify in supportr
of the appellant’s contention. In
response to the argument of the applicant’s representative that
the first respondent
had failed to establish that fraud had been
committed, Ms Smart responded that irrespective of whether the
misconduct constituted
fraud or the breach of a rule, the sanction of
dismissal was reasonably justifiable for either offence. That may be
an answer to
the reasonableness of the sanction imposed, but is no
answer to the complaint of the applicant that she is not guilty of
fraud
and that the third respondent accordingly misdirected herself
by coming to the conclusion that the applicant was guilty of fraud.
Mr. Geldenhuys submitted that on the facts before the third
respondent, the latter could never have come to the conclusion that
dishonesty or fraud had taken place. The arbitrator provides the
following reasoning for the conclusion she reached
‘
The
applicant on her own admission gave the money to her sister and,
that in
itself constitutes misappropriation of funds. Furthermore, in my view
it was of a fraudulent nature. The harm caused goes
to the heart of
the trust relationship between the applicant and respondent.’
19
[40] The applicant’s
representative criticised the third respondent’s conclusion
that the applicant had perpetrated
fraud. In Ungerer’s
evidence, she articulates the company’s view of why they
considered the conduct of the applicant
to be fraudulent
‘
Due to fraud
that we had in the past, we brought a rule out and it came from the
credit card as well, that no sales are to be done
without a
transaction, a legal transaction. Therefore we couldn’t cash
any credit card slip in the store at all.’
20
Ungerer further testified
that the company experienced occasions in the past where customers
would enter the store and swipe their
credit cards and withdraw cash.
In some instances, fraudulent credit cards were used. She further
indicated that two customers
were imprisoned for fraudulent use of
their credit cards. For these reasons, the credit card companies had
requested that the practice
of swiping credit cards in exchange for
cash be stopped. On 7 April 2009 at about 10h58, Ungerer indicated
that she decided to
carry out a spot check on the applicant’s
till. This was a random check to ascertain that the cashier was
following the rules
and procedures, and particularly that there was
no “rolling over” of cash. When Ungerer reviewed the list
of transactions,
there was no transaction which could be linked to a
purchase of R1240.00, although there was a credit card voucher for
this amount
in the till. A perusal of the credit card slip indicated
that the transaction took place at 08h29 on 7 April 2009, and on
Ungerer’s
version the transaction was processed at Biyela’s
till so that the applicant could get sufficient cash to make good a
cash
shortfall in her till, presumably from the money that she gave
her sister.
[41] Ungerer was unable
to provide a clear definition of what she understood by fraud in
relation to the conduct of the applicant,
but related it to use of
the credit card without a valid transaction taking place.
21
She said that in the past
this type of transaction had been allowed, especially where customers
had “robbed” cashiers,
which I assume related to the
earlier example of fraudulent credit cards being used to access cash
other than via a bank auto teller
machine. This practice of making
good shortfalls and the use of credit cards on tills without any
purchases, was barred by the
first respondent’s Head Office.
According to Ungerer’s investigations at the time of the spot
check, if one tallied
the cash in the applicant’s till and
excluded the credit card voucher, the applicant would have had a
shortfall of R1239.00.
The credit card transaction effected by the
applicant was for the amount of R1240.00. It is perhaps for this
reason that the third
respondent accepted the first respondent’s
witnesses’ evidence that the applicant was guilty of fraud in
that she carried
out the transaction only to mask the cash shortage
in her till.
[42] In my view, the
award of the arbitrator, even though it may be unsatisfactory in
certain respects,
and
perhaps the third respondent could have articulated her views with
more clarity as to why the applicant was guilty of fraud,
the award
when viewed objectively against the evidence, is not so
unsatisfactory as to fall foul of the applicable grounds of review.
The third respondent concluded, and reasonably so, that the conduct
of the applicant did amount to fraud. Even if the applicant
was not
guilty of fraud, Ms Smart submitted that it was clear that the
applicant knowingly breached a rule introduced to stem fraudulent
conduct by customers. For the reasons I have set out above, I am
satisfied that the third respondent’s conclusion that the
applicant knew of the rule and breached it on 7 April 2009, is a
decision that another decision maker, acting reasonably, could
have
arrived at. For that reason, and despite any shortcomings in the
decision, the ultimate conclusion reached by the arbitrator
should be
allowed to stand. Zondo JP in
Fidelity
Cash Management Services
noted
that
‘
Whether or
not an arbitration award or decision or finding of a CCMA
commissioner is reasonable must be determined objectively with
due
regard to all the evidence that was before the commissioner and what
the issues were that were before him or her. There is
no reason why
an arbitration award or a finding or decision that, viewed
objectively, is reasonable should be held to be unreasonable
and set
aside simply because the commissioner failed to identify good reasons
that existed which could demonstrate the reasonableness
of the
decision or finding or arbitration award.’
22
[43] Insofar as the
sanction of dismissal is concerned, Ms Smart argued that the penalty
of dismissal is fair and reasonable,
and
is the penalty applicable to either of the charges of which the
applicant was found guilty. The arbitrator in her award considered
the applicant’s length of service and the impact that a
dismissal would have on her. This was weighted up against the
company’s
“
prerogative
to set rules in regard to what an appropriate sanction should be.
Taking into account all the facts of this matter I
am of the view
that the misconduct renders the dismissal fair
.”
The arbitrator also found the applicant to be dishonest and the
misconduct that she was found guilty of, to be of a serious
nature.
In employment law a
premium is placed on honesty because conduct involving moral
turpitude by employees damages the trust relationship
on which the
contract is founded. See S
appi
Novoboard (Pty) Ltd v Bolleurs
23
.
[44] In this regard, I
should point out that while the applicant attributed the credit card
transaction to her efforts to help out
her sister who was suffering
from not having any food, when she was initially questioned about the
shortfall she said that a customer
came into the store and ordered 15
bags of cement. After she had swiped his card and processed the
transaction, the customer did
not want the goods but rather the cash.
This version was later changed to indicate that the transaction was
done to assist her
starving sister.
[45] Another important
feature ascertained from the record is that the other cashier
involved in this transaction, Ms Biyela, was
also charged with
misconduct for her part in the events on 7 April 2009. There can be
no suggestion that the applicant was singled
out for any selective
prosecution, or that the penalty handed out to her was
disproportionate. The third respondent correctly considered
that the
dismissal fell within the range of reasonable options available to
the chairperson of the enquiry.
[46] I accordingly find
no reason to interfere with the finding of the commissioner on both
the finding on the merits and sanction.
Although this is a case where
costs should follow the result, no purpose would be served by
mulcting the applicant with costs of
this failed review. She is
unemployed and in all likelihood an order of costs against her would
not be recoverable. .
[47] In the result, I
make the following order:
1. The applicant’s
application for condonation for the late filing of her review
Application, condonation
for the late filing of the Rule 7A notice and the record, is
dismissed;
2. The application for
review and setting aside of the decision of the third
respondent, is dismissed.
3. No order as to costs.
_______________________
Chetty, AJ
Acting Judge of the
Labour Court
Appearances:
For the Applicant:
Mr E Geldenhuys.
Instructed by Tomlinson
Mnguni James.
For
the Respondent: Adv CSA Smart.
Instructed
by Goodrickes.
1
[2009]
1 BLLR 1
(CC).
2
Above,
para 63.
3
[1999]
3 BLLR 209
(LAC).
4
Above,
at 211G-I.
5
[2000]
1 BLLR 45
(LAC)
.
6
Above,
at 53
H
-
I.
7
1985
(2) SA 756
(A).
8
Above,
at 768B-768D.
9
1965
(2) SA 135
(A).
10
Above,
141A-D.
11
(2004)
25
ILJ
96 (LAC).
12
Above
100I-J.
13
(2002)
23
ILJ
1229 (LAC).
14
Above,
para 14 (per Nicholson JA); followed in
Arnott v Kunene Solutions
& Services (Pty) Ltd
(2002) 23
ILJ
1367 (LC).
15
(2007)
28 ILJ 1028 (LAC).
16
Above,
at para 34.
17
(2008)
29 ILJ 964 (LAC).
18
Above,
at para 102.
19
Record:
Arbitration award, pages 19-20.
20
Record:
page10, lines 8-11.
21
In
the
South African Criminal Law and
Procedure
by Hunt and Milton (1982,
Juta &Co Ltd, Vol 2, 2
ed
) at p.755 ‘fraud’ is defined as
follows:
“
Fraud consists
in the unlawful making with intent to defraud, a misrepresentation
which causes actual prejudice or which is potentially
prejudice to
another.”
22
Above
17, page 997G-J.
23
(1998)
19 ILJ 784 (LAC).