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[2014] ZALCJHB 130
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Shoprite Checkers (Pty) Ltd v CCMA and Others (JR1484/12) [2014] ZALCJHB 130 (22 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: JR 1484/12
In
the matter between:
SHOPRITE CHECKERS
(PTY) LTD
Applicant
And
CCMA
First Respondent
D K NKADIMENG N.O.
Second Respondent
M Q NGOVENI
Third Respondent
Heard
:
20 March 2014
Delivered
:
22 April 2014
Summary:
Review – misconduct – breach
of company policy – award unreasonable – reviewed and
remitted.
JUDGMENT
STEENKAMP
J
Introduction
[1]
The third respondent, Ms Mwamasilani Queen
Ngoveni (Ngoveni or “the employee”) was dismissed for
misconduct.
[2]
The employee referred an unfair dismissal
dispute to the CCMA (the first respondent). The second respondent
(“the commissioner”)
found that the dismissal was not for
a fair reason and ordered the applicant to reinstate her. The
applicant seeks to review that
award.
Background
facts
[3]
The employee was the branch front end
manager at the applicant’s Musina store. She was called to a
disciplinary hearing to
face the following allegation:
“
Serious
misconduct in that on the 05/06/2011 and on the but not limited
thereto [
sic
],
you failed to follow company policies and procedure on cashing up by
allowing/instructing cashiers to pay in the amount short
on their
daily takings.”
[4]
The allegation flowed from an incident on 5
June 2011 when Ms Rinah Lithole, a money market clerk, was short in
her daily takings
by the amount of R1 400, 00. She was dismissed
for an unrelated incident of shortage. Lithole referred an unfair
dismissal
dispute to the CCMA. At conciliation she alleged that the
employee, Ngoveni, had allowed cashiers to pay shortages from their
own
pocket.
[5]
At the arbitration relating to Ngoveni’s
dismissal, Lithole testified that, on 5 June 2011, the cash office
controller, Ms
Anneline Matsila, told her that her cash was short by
R1 400. Matsila called Ngoveni, who was the manager on duty on
that
day, and asked her about it. Ngoveni tried to trace the
missing cash in the scanning room but couldn’t. Ngoveni then
gave Lithole her (Ngoveni’s) bank card and told her to withdraw
R1 400 from Ngoveni’s bank account to make up
the
shortfall. Lithole did so.
[6]
Another witness, Ms Selaelo Mariba,
testified that she was the cashier on 8 June 2011 and had had a till
shortage of R 233, 81.
Ngoveni told her to pay the amount in to the
cash office. She went to withdraw R200 to do so. The money she paid
in was recorded
as a “pick-up”.
[7]
These actions were in breach of the
applicant’s policies contained in its “Front End
Administration Manual”.
[8]
Ngoveni initially denied lending Lithole
R1 400. However, after she had been challenged to produce her
bank statement, she
conceded that she did. It is clear from Ngoveni’s
bank statement that R1 400 was withdrawn from it on 5 June 2011.
Ngoveni
testified that she did not know that Lithole was going to use
the money to cover the shortage. With regard to Mariba, Ngoveni
denied
signing her performance record; yet her signature clearly
appears in a column that reflects that she (Ngoveni) had investigated
the cause of the shortage. Ngoveni did not take any action against
Mariba or Lithole, but did subsequently initiate disciplinary
steps
against Lithole for another shortage of R700.
The
arbitration award
[9]
The arbitrator based his conclusion that
Ngoveni’s dismissal was unfair on the following findings:
9.1
The only direct evidence relating to
Ngoveni’s alleged permission or instruction to cashiers to
conceal their shortages by
using their own cash came from Lithole and
Mariba. Lithole’s evidence must “be approached with
caution” because
she was a single witness and for the following
reasons:
9.1.1
She was “close to” Ngoveni and
assisted her with domestic charges when Ngoveni was pregnant. Lithole
was in a position
to abuse this relationship.
9.1.2
She did not report Ngoveni for advancing
the R1400 to her until she was at the CCMA for her own unfair
dismissal dispute. “This
defines Rinah as a dishonest person”.
9.1.3
She still owed Ngoveni R1400 at the time
she was dismissed. The arbitrator concluded: “I find the
evidence of Rinah [Lithole]
unreliable and in the absence of
corroboration thereof by independent testimony or evidence, I reject
it”.
9.2
Mariba’s evidence was also not
corroborated by “independent external evidence”. She gave
evidence because otherwise
she would be “in trouble”. She
had previously been given a warning by the applicant for a shortage
of R800 “and
had an additional motive to lie”. The
arbitrator rejected Mariba’s evidence.
9.3
The arbitrator found that the employer had
failed to prove, on a balance of probabilities, that Ngoveni had
allowed or instructed
Lithole or Mariba to pay in their own cash to
balance the books.
Review
grounds
[10]
With
reference to the SCA decision in
Herholdt
v Nedbank Ltd
[1]
the applicant argues that the arbitrator committed a gross
irregularity that led to an unreasonable result. It argues that the
arbitrator committed a gross irregularity in failing to resolve the
factual dispute that existed between Ngoveni and the company’s
witnesses. That led to an unreasonable result.
Evaluation
/ Analysis
[11]
There was a clear factual dispute between
the evidence of Lithole and that of Ngoveni regarding the events of 5
June 2011.
[12]
Lithole testified that:
12.1
She was short with R1400;
12.2
Ngoveni gave her (Lithole) her (Ngoveni’s)
bank card to withdraw R1400 to make up the shortfall;
12.3
Ngoveni told her that it was a secret
between them as it was not allowed in terms of the company procedure;
12.4
She gave the money to Ngoveni; and
12.5
Ngoveni gave it to Matsile.
[13]
Ngoveni initially denied giving Lithole her
bank card or the money. She only conceded it after she was challenged
to produce her
bank statement. Then she said that it was a loan. The
statement shows that R1400 was withdrawn on the day. The “loan”
was never repaid.
[14]
The commissioner accepted Ngoveni’s
version (despite it being inherently improbable) without resolving
the obvious factual
dispute between the two witnesses. He dismissed
Lithole’s evidence out of hand because she was a “single
witness”
and he declared her to be dishonest because she did
not disclose Ngoveni’s actions before she went to the CCMA.
[15]
The
commissioner made no attempt to resolve the factual dispute through a
balanced assessment of the reliability, credibility and
probabilities
of the conflicting versions put forward by the witnesses, as set out
in
Stellenbosch
Farmers Winery Group Ltd v Martell et cie.
[2]
In
Lukhanji
Municipality v Nonxuba N.O.
[3]
it was held that, where a commissioner purports to resolve a factual
dispute with reference only to the credibility of a witness,
and
without an assessment of the probabilities and surrounding facts, it
constitutes a reviewable defect. I do not think that the
Herholdt
decision changes that principle in circumstances where, as in this
case, that failure led to a different conclusion.
[16]
The commissioner also did not resolve the
conflicting versions offered by Mariba and Ngoveni with regard to the
events of 8 June
2011. He simply rejected Mariba’s evidence on
the basis that it was not independently corroborated. In doing so, he
ignored
the following evidence:
16.1
Mariba’s bank statement showing that
she withdrew R200 on the day;
16.2
The fact that the money was recorded as a
“pick-up”, corroborating Mariba’s version;
16.3
Ngoveni signed Mariba’s performance
record that showed that she was short by R233, 81;
16.4
Ngoveni did not discipline Mariba;
16.5
Botha’s undisputed testimony that the
employment relationship had irretrievably broken down.
[17]
The failure by the commissioner to have
regard to this material evidence and to resolve the different
versions before him on the
probabilities led to an unreasonable
result.
Conclusion
[18]
I am of the view that the commissioner
committed an error of law in rejecting the evidence of Mariba and
Lithole because they were
“single witnesses”; and that he
failed to weigh up the conflicting versions before him in order to
consider which was
the more probable. That led to an unreasonable
result that is open to review.
[19]
However, this is not a case where the Court
is in a position to substitute its decision for that of the
commissioner. The interests
of justice will best be served if the
matter is remitted for another commissioner to apply his or her mind
properly to the evidence
and to make a fresh decision.
[20]
In law and fairness, the individual
employee should not have to carry the applicant’s costs in
circumstances where she had
to incur her own legal costs to defend
the commissioner’s decision. The dispute is also not at an end.
A costs order is not
appropriate.
Order
The
arbitration award of the second respondent dated 4 June 2012 under
case number LP 6989-11 is reviewed and set aside. The dispute
is
remitted to the first respondent (the CCMA) for an arbitration
de
novo
before a commissioner other than
the second respondent.
__
_____________________
Steenkamp J
APPEARANCES
APPLICANT:
D
Chiti of Mervyn Taback Inc.
THIRD
RESPONDENT:
G
J Scheepers
Instructed
by Venter attorneys.
[1]
[2013] 11 BLLR 1074 (SCA).
[2]
2003 (1) SA 11 (SCA).
[3]
[2007] 2 BLLR 130
(LC).