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[2014] ZALCCT 8
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TFD Network Africa (Pty) Ltd v Marawu NO and Others (C406/13) [2014] ZALCCT 8 (19 March 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
reportable
Case
no: C 406/13
In
the matter between:
TFD
NETWORK AFRICA (PTY)
LTD
Applicant
and
MARAWU
M
N.O
First
Respondent
NATIONAL
BARGAINING
COUNCIL
Second
Respondent
FOR
THE ROAD FREIGHT AND
LOGISTICS
INDUSTRY
NZWANA
MSOKOLI
REGINALD
Third
Respondent
Heard:
18 March 2014
Delivered:
19 March 2014
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
made by the first respondent, to whom I shall refer as ‘the
arbitrator’. In his award, the arbitrator found that the
dismissal of the third respondent was substantively unfair, and
ordered the applicant to reinstate him without retrospective effect.
The basis of the award is reflected in paragraph [23] thereof,
which
reads as follows:
‘
Taking
into account the totality of circumstances, particularly the
employees length of service (12 years), with no previous record
of
the same\similar offence. The fact that it was not disputed that the
applicant only consumed a damaged red Bull can without
the necessary
permission. The severe effect of dismissal on the employee, the
potential effect of a serious warning on the employee’s
future
conduct, I find dismissal as a sanction to be inappropriate in this
regard (sic).
’
Material
facts
[2]
The factual background to the present proceedings is not contested.
The third respondent was employed by the applicant as a
damaged goods
assistant. He commenced employment on 13 June 2000, and was dismissed
on 19 November 2012. The applicant has a rule
in place to the effect
that employees are not allowed to eat and drink in the warehouse. The
rationale for the rule is that
the stock carried by the applicant
includes consumable stock and as such, this stock would be
susceptible to pilfering in the form
of consumption by members of
staff. It is not disputed that the applicant’s employees had
been told that eating and drinking
in the warehouse was prohibited,
and that any breach of the rule would be considered to constitute a
serious misconduct warranting
dismissal. Further, the applicant
required to employees immediately to report any transgression of the
rule or face being deemed
to be part of that transgression. Notices
were displayed throughout the warehouse to this effect.
[3]
The warehouse is monitored by way of CCTV cameras and it was in the
course of a routine review of surveillance footage on 6
November 2012
that the applicant’s security manager noticed employees
consuming stock in the warehouse. The third respondent
specifically
was identified as walking to a crate, taking a can of drink, walking
to the corner where employees were gathered,
and then sitting and
drinking the contents of the can. The third respondent did not deny
that he had taken and consumed a can of
Red Bull; he contended that
the can was damaged and that he had permission to consume the goods.
This version was rejected by the
arbitrator who found the third
respondent guilty of the misconduct alleged. However, as I have
indicated above, the arbitrator
in effect found that dismissal was
too harsh a penalty in the circumstances.
Grounds
for review
[4]
The applicant seeks to review the arbitrator’s award in essence
on the basis that the arbitrator was not entitled to consider
the
penalty that he would have imposed in the circumstances; rather, he
was obliged to decide whether the sanction imposed by the
employer
was fair. In doing so, he was required to have regard to all of the
factors set out in the judgment of the Constitutional
Court in
Sidumo
& another Rustenburg Platinum Mines Ltd & others
(2007)
28
ILJ
2405 (CC). These factors are set out in the
arbitrator’s award at paragraph 21, but the applicant contends
that by having
regard to only two of the relevant factors (i.e. the
status of the third respondent’s disciplinary record and his
length
of service) the arbitrator failed properly to exercise the
discretion conferred upon him.
[5]
In particular, the applicant submits that the arbitrator ought to
have taken the following factual circumstances into account:
·
The fact that the third respondent persisted with a false defence to
the effect
that he had committed no misconduct, and in particular,
he’s defence that he had been given permission
to consume the item in question.
·
That the applicant had always applied a zero tolerance approach in
regard to
the consumption of items in that warehouse.
·
That the applicant had suffered a loss of some R1.3 million in four
months consequent
on pilfering.
·
That the ruling question had a valid commercial rationale
·
That on the uncontested evidence, a further working relationship
between the
third respondent and the applicant was unsustainable
·
That the third respondent failed at any stage to exhibit any remorse
·
That the disciplinary code and procedure prescribed dismissal for the
misconduct
in question, and that employees had specifically been
warned that a breach of the rule would
lead to dismissal.
·
That the offence is one of dishonesty and tantamount to theft, since
the third
respondent had taken and consume property that did not
belong to him.
[6]
The applicant submits that had the arbitrator properly weighed all
the relevant facts (including the third respondent’s
12 years
of service and unblemished disciplinary record), he would have come
to the conclusion that the sanction of dismissal was
appropriate.
Applicable
principles
[7]
As the series of recent decisions on the nature of the test to be
applied in the present proceedings has indicated, and arbitrator
is
allowed to be wrong; what matters is the reasonableness of the
outcome of the arbitration proceedings. An arbitrator’s
conduct
has not in itself rendered an award potentially reviewable but is not
entirely irrelevant. If that conduct has the
result of an
unreasonable outcome, the award remains reviewable. In this regard,
the applicant relies primarily on a long line
of authority dealing
with the issue of employees consuming company property in a retail
environment to submit that the arbitrator’s
award represents a
decision to which no reasonable decision maker could come on the
available material. This authority can be traced
back to
Metcash
Trading Ltd t/a Metrocash And Carry v Fobb & another
(2998)
19
ILJ
1516 (LC), where Mlambo J (as he then was) said the
following in the case that concerned an employee’s consumption
of 250ml
of orange juice that formed part of expired goods:
‘
Theft
is theft and does not become less so because of the size of the
article stolen or misappropriated. Trust is at the core the
employment relationship. Dishonest conduct by an employee breaches
the trust the employer places on the employee
.’
[8]
This principle was upheld by the Labour Appeal Court in
ShopRite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration & others
(2008) 29
ILJ
2581 (LAC) where
the dismissal of an employee for consuming three bowls of pap on the
employer’s premises was upheld. The
court referred to a number
of previous decisions where the dismissals of employees for consuming
or removing property from their
employer’s premises were
upheld, and concluded that dismissal was an appropriate sanction in
circumstances where employees
acted in flagrant violation of
applicable rules that had been implemented for clear and justifiable
operational reasons. Similarly,
in
Miyambo v Commission for
Conciliation, Mediation and Arbitration & others
(2010) 31
ILJ
2031 (LAC), the court upheld the dismissal of an employee
for removing a piece of scrap metal from his employer’s
premises
without the necessary permission in circumstances where the
employer had a consistent policy of zero tolerance for theft. In
Matsekoleng v Shoprite Checkers (Pty) Ltd
[2013] JOL 29789
(LAC), the Labour Appeal Court said the following in circumstances
where it found that an employee had not committed misconduct
when he
consumed donated milk that he genuinely thought was available for
consumption by staff:
‘
However,
I need to make myself clear on the following. In my view, this case
had absolutely nothing to do with the shrinkage problem
or the zero
tolerance policy that reportedly existed at the respondent’s
workplace. The issue of sanction or the proportionality
doctrine is
thus of no relevance. The critical and crisp issue was the guilt or
otherwise of the appellant of the misconduct charge,
in the light of
the particular facts of the case. In other words, the effect of this
judgment is not intended to create any precedent
which deviates from
the established jurisprudence, discussed above, and which has been
followed by this court in relation to the
issue of sanction and
employees properly convicted of misconduct involving theft or
misappropriation of property belonging to the
employer. This court
understands and is thus for approved of the zero tolerance policy as
a reasonable measure of eradicating shrinkage
experienced by
these large shopping businesses such as the respondent. However, that
issue pertains to sanction which can
only be embarked upon after a
sustainable conviction.
’
Analysis
[9]
The above authorities are binding upon me. The award is reviewable
since it represents a failure properly to balance all
relevant
factors in determining a sanction that would be fair, having regard
particularly to the respective interests of the applicant
and the
third respondent. To the extent that the arbitrator’s reasoning
is that the third respondent’s clean disciplinary
record and
his length of service trumped any other relevant considerations
cannot be sustained, particularly in the face of a well-established
principle that recognises the inevitability of the appropriateness of
dismissal as a sanction in circumstances where an employee
commits an
act of dishonesty, falsely denies having done so and then shows no
remorse. Had the arbitrator properly applied the
relevant legal
principles, he would have arrived at an outcome that falls within a
band of decisions to which reasonable people
could come on the
available material. Put another way, another arbitrator conducting
the arbitration and arriving at a determination
in the absence of the
identified irregularity, could not reasonably have arrived at the
same outcome. For these reasons, in my
view, the arbitrator’s
award stands to be reviewed and set aside.
[10]
The court has a discretion to either remit the matter to the second
respondent for rehearing before a different arbitrator,
or to
substitute a decision for that of the arbitrator. In the present
instance, all of the relevant evidence is on record and
little
purpose would be served in limiting the matter. The application of
the relevant principle would have resulted in a finding
that the
third respondent’s dismissal was substantively and procedurally
fair. That is the order that I intend to make.
It
is ordered that:
1. The
arbitration award issued by the first respondent on 16 April 2013
under case number WCRFBC 23880 is reviewed
and set aside.
2. The
award is substituted by the following:
“
The applicant’s
dismissal was substantively and procedurally fair.”
3.
There is no order as to costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
APPEARANCES
APPLICANT:
Mr
Sean Snyman, Snyman Attorneys
RESPONDENT:
Ms
Shaheedah Abdol, Kirsten Attorneys