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[2014] ZALCCT 18
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Shoprite Checkers (Pty) Ltd v CCMA and Others (C339/13) [2014] ZALCCT 18 (16 April 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
NOT
REPORTABLE
OF
INTEREST TO OTHER JUDGES
CASE
NO: C 339/13
In
the matter between:
SHOPRITE CHECKERS
(PTY) LTD
Applicant
and
CCMA
First Respondent
COMMISSIONER J LE F
PIENAAR
Second Respondent
SACCAWU
Third Respondent
JACOBA WIGGINS
THANDOKAZI
TONTSI
Fourth Respondent
Sixth Respondent
AMALIA VAN HARTE
Seventh Respondent
Heard
:
23 March 2014
Delivered
:
16 April 2014
Summary:
Review – misconduct – arbitrator misconceived nature of
enquiry – reviewed and remitted.
JUDGMENT
STEENKAMP J
Introduction
[1]
This is an application to have an
arbitration award by the second respondent, Commissioner J le F
Pienaar, reviewed and set aside.
He found that the dismissals of the
third to sixth respondents – Ms Jacoba Wiggins, Ms Thandokazi
Tontsi, and Ms Amalia van
Harte – were unfair. He ordered the
applicant, Shoprite Checkers, to reinstate them retrospectively.
Background facts
[2]
The three employees were al employed in
Shoprite’s cash office at the Middestad Mall in Bellville. They
were dismissed for
gross negligence. The allegation pertaining to all
three of them was that they “caused the safe to be short with R
71 283,
35 which is a loss to the company, and you cannot give
an account for.” Ms Wiggins faced a further allegation that she
“caused
a shortage of SASSA money of R65 000, which is a
loss to the company and you cannot give an account for”.
[3]
SASSA is the South African Social Security
Agency. Shoprite Checkers, like some other retailers, is appointed by
the state to pay
out social grants on its behalf. Wiggins, employed
as a cash office controller, was responsible for the administration
of SASSA
payouts. The applicant funds the SASSA payouts from its
daily takings. It then reclaims the money paid out from SASSA. The
store
prepares the SASSA “float” days before the first
day of the next month when payouts start. The SASSA float at the
store
is about R2 million per month. Money from the day’s
takings is placed in specially marked bags in 20 bundles of R100 000
each. Two employees have to check the amount. Each bag is sealed and
a numbered seal is placed on the bag. The bag is then dropped
into
the “drop safe’. Two employees must be present when the
bag is dropped, and again when the bag is taken from the
drop safe
and the seal is broken. The employees involved must fall in a drop
safe control sheet to record the date of the drop,
the sum that was
dropped, and the seal number. Both employees must record the seal
number.
[4]
Money is stored in a vault at the store.
The vault contains a drop safe, a time lock safe and a secure “cage”
where
the “main float” is kept. During the day the cash
office staff member responsible for the main float keeps the key to
the vault and the key to the main float. The manager responsible for
locking up each evening takes the vault key. The cake and
the vault
must be locked when the cash office personnel are not present. Each
time an employee hands over the key to a different
member of the cash
office staff, that employee must complete a formal and documented
handover. In the period relevant to the incident
that led to their
dismissal, the three individual employees (third to sixth
respondents) were responsible for the cash office.
The admin manager
was on sick leave at the time.
[5]
The main float is the float from which the
individual cashiers’ floats for the day are prepared. The main
float has a total
daily amount of R 200 000 allocated to it. The
responsible employees must count, check and balance it daily. The
float is
made up from the day’s takings and it is kept in the
cage.
[6]
Tontsi and Van Harte were employed as
cashing up clerks. Together with Wiggins, they were responsible for
the daily cash ups, conducting
pickups, assisting with drops and
collections into and from the drop safe, ensuring that all paperwork
was captured, and that the
cashiers’ floats and the main float
balanced daily. If they discovered any discrepancies, they had to
report it to management.
[7]
Van Harte had been employed by Shoprite for
about 12 years. Due to her seniority, she would act as the cash
office controller in
Wiggins’s absence. It is not disputed that
the employees knew and understood their responsibilities and the
applicable policies
and procedures.
[8]
The dispute leading to the employees’
dismissal arose in the week of 24 to 30 September 2012, when the
responsible admin manager,
Mr Denyssen, was on sick leave. The
dispute relates to two issues:
8.1
the employees’ alleged failure to
comply with the main float cash handling procedures, leading to a
loss of R71 283,
35; and
8.2
Wiggins’s alleged failure to comply
with the Sassa float cash handling procedures, leading to a loss of R
65 000.
[9]
On 30 September 2012 the branch manager, Ms
Jacobs, called the regional admin manager, Ms Marie Paddock, to the
store to investigate
certain discrepancies. She discovered the
following:
9.1
The cashier cash up slips for the period 27
to 29 September had not been captured. The paperwork was strewn about
the cash office.
9.2
The employees had not balanced the main
float daily. They did not do so on 16, 19, 20, 23, and 26 to 29
September 2012.
9.3
Money collected on Saturday, 29 September
2012 had simply been left in the vault in float bags.
9.4
The employees had not done a formal
handover of the cage key and had left the key in the cage for the
next “holder”
to collect.
9.5
The employees did not collect and cancel
IOU’s issued to the cashiers as a result of the transfer of
money from the Sassa
float bags to the main float.
9.6
There was a total shortage on the main
float of R 71 283, 35.
9.7
Wiggins had not completed the Sassa drop
safe sheet when she removed float bag number 19 from the drop safe.
She also removed the
bag on her own, and not in the presence of
another employee. In fact, there was no record of bag 19 having been
removed from the
drop safe at all. The seal number that had been
placed on the bag had been removed and the bag resealed with a
different seal number,
without any record of that seal number. Sassa
bag 19 was R 65 000 short.
[10]
All three employees attended a disciplinary
enquiry in respect of the following allegation of misconduct:
“
Gross
negligence – in that you have caused the safe to be short of R
71 283, 35 which is a loss to the company and you cannot
give an
account for.”
[11]
In addition, Wiggins face the following
allegation:
“
Gross
negligence – in that you have caused a shortage on the net one
Sassa money of R 65 000, which is a loss to the company
and you
cannot give an account for.”
[12]
The outcome of the disciplinary hearing was
that all three employees were dismissed.
The arbitration award
[13]
The arbitrator proceeded from the following
premise:
“
In
both allegations raised against the [employees] the words “gross
negligence” preface the allegations, but the grounds
of
negligence are not set out, and the [employees] cannot be found
guilty of any specific instance of negligence, as they had not
been
appraised [
sic
]
of these allegations.”
[14]
The arbitrator accepted that there was
indeed a shortage of R 71 283, 35 in the main float, and a shortage
of R 65 000 of Sassa
money (despite Wiggins’s denial).
[15]
The arbitrator then considered the question
of causation:
“
The
further issue that has to be decided is one of causation, i.e.
whether it can be said that the loss was
caused
by [Wiggins] in respect of allegation
number 2 [SASSA], and in respect of allegation number 2 [
sic
– clearly a reference to the shortage in the main float] by the
three [employees]. This is a legal issue, viz. whether factual
causation as well as legal causation was established, as referred to
in …
International Shipping Co
(Pty) Ltd v Bentley
1990 (1) SA 680
(A)
700E – 701A.”
[16]
The arbitrator went on to found that the
employees could not be held responsible for the losses, “as
anybody could have taken
the money as anyone could go in and out of
the cash office and have caused the loss. This situation arose not
only because the
applicants did not follow the rules, but also due to
lack of supervision on the part of management (Ms Jacobs, the branch
manager
and Mr Denyssen, the admin manager) and instructions given to
them at times to ignore the rules”.
[17]
The three employees could not give any
explanation how the losses occurred on their watch, and maintained
that there were no losses,
despite the clear evidence to the
contrary. The arbitrator found:
“
In
this respect they are mistaken, but I accept their evidence that they
do not know how the losses occurred.”
[18]
The arbitrator appeared to accept that it
was the responsibility of the three employees to ensure that the work
was done according
to the prescribed procedures. However, he added:
“
But
the branch manager also had a responsibility to oversee that the
rules were complied with, as is evidenced by the fact that
Ms Jacobs
was charged with gross negligence by not ensuring that all the
cashiers’ cash-up slips had been captured and declared
(the
responsibility of management as stated by Ms Paddock), and given a
final written warning.”
[19]
The arbitrator found that it had not been
shown that, but for the gross negligence of the employees, the losses
would not have occurred,
“as the failures of management at the
branch could just as well have caused the losses”. He found
that “factual
causation has not been proved” and that the
company had failed to show that the employees had caused the losses.
Review grounds
[20]
The applicant submits that the arbitrator
committed a gross irregularity in the conduct of the proceedings; and
that his finding
is not one that a reasonable arbitrator could reach
on the evidence before him.
Evaluation / Analysis
[21]
In finding that the employees could not be
“found guilty” of any specific incident of negligence, as
they had not been
apprised of those allegations, the arbitrator
misconceived the nature of the enquiry. The enquiry was simply
whether they had committed
misconduct in the form of gross
negligence. The notices for the disciplinary hearings clearly set out
what the nature of that allegation
was, i.e. that all three of them
had caused the safe to be short with R 71 283, 35; and that, in
addition, Wiggins caused a shortage
of Sassa money of R 65 000.
[22]
The
guidelines for a disciplinary enquiry are set out in the Code of Good
Practice: Dismissal and the court in
Avril
Elizabeth
[1]
reminded us that:
“
...it
means no more than that there should be dialogue and an opportunity
for reflection before any decision is taken to dismiss”.
[23]
Van Niekerk J added that there is no place
for formal disciplinary procedures that incorporate all the
accoutrements of a criminal
trial, including technical and complex
‘charge sheets’ and requests for particulars. It is
difficult to see how the
arbitrator could have found that the
employees in this case “had not been appraised [
sic
]
of” the allegations against them. The allegations were quite
clear: they were responsible for the money; they did not follow
the
prescribed procedures; and that negligence caused a loss to the
company.
[24]
That is in accordance with Item 4(1) of the
Code that simply requires that:
“
The
employer should notify the employee of the allegation by using a form
and language that the employee can reasonably understand.”
[25]
Disciplinary
allegations are not intended to be a precise statement of the
elements of the alleged offence. The allegations need
only be
sufficiently precise to allow the employees to identify the incident
that forms the subject matter of the complaint to
enable them to
prepare their defence.
[2]
That
is exactly what happened in this case. The employees knew exactly
what the allegations pertaining to their alleged gross negligence
were and they had a full opportunity to explore it further in the
disciplinary inquiry and again in the arbitration. They did not
complain that they did not know what it was about.
[26]
As
the LAC commented in
Mutual
Construction Company Tvl (Pty) Ltd v Ntombela NO:
[3]
“
Granted,
the charges as reflected in the notice of enquiry did not specify
with any degree of certainty what it was that the [employee]
was
alleged to have done which supported the charges preferred against
him. According to Binx, the charges were explained to the
[employee]
at the disciplinary hearing. In any event, it did appear from the
nature of his defence and evidence ... that the [employee]
fully
understood the import of the charges against him and conducted his
defence thereto reasonably well. The position was further
better
demonstrated during the arbitration proceedings, which was a hearing
de novo of the dispute. Indeed, it could not be expected
of a company
official who was not legally trained to have drafted and formulated
the charge sheet as, for example, was seen to
be done in a court of
law.”
[27]
The
same holds true for this case. The arbitrator in this case gave the
employees the benefit of an unarticulated defence. This
is a material
misdirection that directly affected his conclusion.
[4]
The employees’ defence was that they did not commit any
misconduct, not that they didn’t understand the allegations.
The arbitrator’s findings in this regard amount to a gross
irregularity that led to an unreasonable conclusion.
[5]
[28]
The next building block of the arbitrator’s
conclusion is his finding in respect of causation. But the authority
he refers
to deals with a damages claim founded in delict. The
question before him was, quite simply, whether the employees had been
grossly
negligent, thus causing the (admitted) losses to the company.
Although the allegations could have been more clearly drafted, it
could not have been expected of the company to show that the
employees intentionally caused the losses; indeed, that would have
been contrary to the allegation of “gross negligence”.
The company did show that, on a balance of probabilities, the
gross
negligence of the employee led to the losses complained of. But for
their negligence, it is improbable that the losses would
have
occurred.
[29]
In applying the test of causation as it
applies to damages in delict, the arbitrator misconceived the nature
of the enquiry and
applied the incorrect legal test. That led to an
unreasonable result.
[30]
With regard to the specific allegation
against Wiggins, that her gross negligence led to the loss of R65 000
of SASSA money,
the arbitrator accepts that there was a shortage of R
65 000; yet he leaves it there.
[31]
Wiggins provided contradictory versions at
the disciplinary hearing and the arbitration with regard to the loss
of the SASSA money.
At the arbitration she said that she left R35 000
in the bag and issued a new seal. That is highly implausible, as she
signed
off on it as the second checker. She admitted that she was
ultimately responsible; yet the arbitrator failed to deal with this
aspect altogether. In this respect he prevented the company from
having its allegations fully and fairly determined. This was a
gross
irregularity that led to an unreasonable result in respect of
Wiggins.
[32]
On the evidence as a whole, it is clear
that the employees were aware of the proper procedures; that they did
not follow those procedures;
and that their gross negligence caused a
loss to the company. The arbitrator’s conclusion that the
misconduct had not been
proven is so unreasonable, in my view, that
no other arbitrator could have come to the same conclusion.
Conclusion
[33]
The award must be reviewed and set aside.
It would serve little purpose to remit it. All the evidence is before
the court. The three
employees were in a position of trust. They
committed gross misconduct that broke down the trust relationship
between them and
the employer. Their dismissal was fair.
[34]
With regard to costs, I take into account
that the employees had an award in their favour and they had little
choice but to defend
this application. I do not consider a costs
award to be appropriate in law and fairness.
Order
[35]
I therefore make the following order:
35.1
The arbitration award of the second
respondent dated 15 April 2013 under case number WECT 18572-12 is
reviewed and set aside.
35.2
The award is replaced with the following
award: “The dismissal of the three employees, Ms Jacoba
Wiggins; Ms Thandokazi Tontsi;
and Ms Amalia van Harte, was fair.
___
____________________
Steenkamp
J
APPEARANCES
APPLICANT:
José
Jorge of Norton Rose Fulbright.
THIRD
to SIXTH RESPONDENTS
Coen
de Kock
Instructed by Carelse Khan attorneys.
[1]
Avril
Elizabeth Home for the Mentally Handicapped v CCMA
[2006]
9 BLLR 833 (LC).
[2]
Zeelie
v Price Forbes (Northern Province)
(2001)
22
ILJ
2053
(LC) 2063 A-C.
[3]
[2010] 5 BLLR 513
(LAC) para [41].
[4]
Slagment
(Pty) Ltd v BCAWU
(1994)
15
ILJ
979 (A) 989.
[5]
Herholdt
v Nedbank Ltd
[2013]
1 BLLR 1074
(SCA).