About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2014
>>
[2014] ZALCJHB 176
|
|
Woolworths (Pty) Ltd v Commission For Conciliation, Mediation And Arbitration and Others (JR1611/11) [2014] ZALCJHB 176 (20 May 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT
NOT REPORTABLE
CASE NO: JR1611/11
In
the matter between:
WOOLWORTHS
(PTY)
LIMITED Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
J D SELLO
N. Second
Respondent
SACCAWU Third
Respondent
K
MOHLAFUNO Fourth
Respondent
Heard:
14 January 2014
Delivered:
20 May 2014
Summary:
Review Application, dismissal of Till operator for having excess
funds in her till at the end of a given day.
Commissioner
misapprehending a central aspect of the evidence relating to the
negligence of the employee and finding her to have
not been negligent
when she clearly had been. Notwithstanding this the
Commissioner’s finding that the dismissal was
unfair on the
basis that the sanction was too harsh still within the band of
reasonableness referred to in the relevant jurisprudence
as set out
in the judgment.
JUDGMENT
SNIDER
AJ
[1]
This is a review application in terms of which the Applicant seeks an
order
1.1.
settling aside the arbitration award dated 13 June
2011 which was issued by the Second Respondent under case number
GAJB1648/11;
and
1.2.
that this court substitute the arbitration award
with the Second Respondent with one which the above Honourable Court
deems fit.
[2]
The background to this matter is, briefly, that the Fourth Respondent
(“the Employee”) was a till operator in the
employ of the
Applicant and on 2 November 2010 it was found that her till takings
were more than they should have been, according
to various controls
utilised by the Applicant, in the amount of R628.78. This fact was
common cause between the parties.
[3]
The evidence was that a so-called “till over” can be as
damaging to the Applicant as a “till under”
because the
necessary implication is that the till operator, the employee in this
case, has taken more money from the Applicant’s
clients than
she was entitled to in terms of the transactions which were conducted
by her on the day in question.
[4]
Obviously, this can lead to significant dissatisfaction on the part
of the Applicant’s clients and, on the Applicant’s
uncontested version, this can also lead to payments in respect of
utilities being received from customers but not paid towards
the
relevant utility bills.
[5]
The employee was duly charged with “misconduct in that on 02 /
11 / 2010 her till was over with (sic) R628.78 in cash
which is
against company Policy and Procedure”.
[6]
A disciplinary enquiry was duly held and, having been found guilty as
charged, the Employee was dismissed.
[7]
The employee duly referred her dispute to the First Respondent and
the Second Respondent, (“the Commissioner”) in
his award,
which is the subject of this review,
[1]
came to the conclusion that the employee’s dismissal was
substantively unfair on the basis that the sanction of dismissal
was
too harsh in the circumstances. The Commissioner also found that the
employee’s discrepancy was not occasioned by negligence
and the
evidence of the Applicant that it did not find any irregularities on
the transactions of the employee supports this view.
[8]
The Commissioner also deals with the issue of the Employee not having
been dishonest, which, while it may appear to be entirely
irrelevant
to the enquiry which the Commissioner was bound to undertake, which
related only to a procedure, may nevertheless go
to the issue of
sanction.
[9]
Two recent decisions, one in the Supreme Court of Appeal -
Herholdt
v Nedbank Limited (Congress of SA Trade Unions as Amicus Curiae)
[2]
and the second in the Labour Appeal Court -
Goldfields
Mining SA (Pty ) Limited (Kloof Gold Mine) v Commissioner for
Conciliation, Mediation and Arbitration and Others
[3]
are relevant to this matter. These two decisions have once again
considered the test on review and reiterated that it is based
on the
decision in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
.
[4]
[10]
Goldfields
(
supra
)
has distilled the test into a, with respect, neat and streamlined
form which is of assistance in determining matters of this nature.
His Lordship Judge President Waglay sets out two principles which are
germane to deciding this matter
[5]
–
‘
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him / her; evaluate the facts
presented at the hearing and came to a conclusion that is
reasonable’.
[11]
Judge Waglay then went on to set out a series of questions which can
be utilised for the purposes of deciding review applications
-
11.1 In
terms of his or her duty to deal with the matter with a minimum of
legal formalities, did the process
that the arbitrator employed give
the parties a full opportunity to have their say in respect of the
dispute?
11.2
Did the arbitrator identify the dispute he or she
was required to arbitrate? (This may in certain cases only become
clear after
both parties have lead their evidence).
11.3
Did the arbitrator understand the nature of the
dispute he or she was required to arbitrate?
11.4
Did he or she deal with the substantial merits of
the dispute?
11.5
Is the arbitrator’s decision one that
another decision maker could reasonably have arrived at based on the
evidence?
[12]
There are two respects in which the Commissioner’s award falls
short of the test set out in
Goldfields
[6]
(
supra)
–
12.1
the discrepancy in the till takings could not have
been occasioned other than by the negligence on the part of the
Applicant; and
12.2
the Commissioner, with respect, misunderstood the
evidence of the Employee that it ‘did not find any
irregularities on the
transactions’ of the Applicant.
[13]
The thrust of this evidence was not that the Employee had simply
erred but that the only explanation for the “over”
was
that the Employee had been negligent.
[14]
These findings by the Commissioner illustrate the shortcomings in the
process he adopted in coming to the conclusions which
he did.
[15]
In respect of the third and fourth questions postulated by Judge
Waglay in
Goldfields
(
supra
) the Commissioner clearly
strayed, again on the issue of negligence.
[16]
The difficulty is, however, that ultimately the reasonableness test
must be applied on the basis set out in
Goldfields
(“
supra
”)
–
‘
...the
constitutional standard of reasonableness is “suffused”
in the application of s145 of the LRA. This implies that
an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct of the arbitration proceedings,
and/or
excess of powers will not lead automatically to a setting aside of
the award if any of the above grounds are found to be
present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings is alleged the enquiry is
not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether the result was unreasonable,
or
put another way, whether the decision that the arbitrator arrived at
is one that falls in a band of decisions to which a reasonable
decision maker could come on the available material’.
[7]
[17]
On a conspectus of the facts and available material as a whole that
were before the Commissioner the decision he reached was
one that a
reasonable decision maker could come to and falls in a band of
decisions to which a reasonable decision maker could
come. It is in
essence a value judgment on the appropriate sanction. A commissioner
who found negligence, might nevertheless find
that the sanction of
dismissal was too harsh in circumstances where no dishonesty was
shown and a previous incident of an “under”
does not
appear to have attracted a formal sanction.
[18]
In the premises I make the following order -
1.
The application is dismissed.
2.
There is no order as to costs.
___________________________
Snider, A J
Acting Judge of the
Labour Court of South Africa
APPEARANCES
For
the Applicant:
Mr B Masuku Tabacks Inc
For
the Third and Fourth Respondents: Mpho
Mjeza of SACCAWU.
[1]
Record
at 73
[2]
2013
(6) SA 224
(SCA); (2013) 34
ILJ
2795
(SCA).
[3]
(2014)
35
ILJ
943
(LAC).
[4]
[2007]
12 BLLR 1097 (CC).
[5]
Goldfields
(
supra
)
at para16.
[6]
Ibid
at para 20
[7]
Ibid
at para 14–.