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[2014] ZALCCT 74
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Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C566/2011) [2014] ZALCCT 74 (18 September 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
CAPE TOWN
JUDGMENT
Case
no: C566/2011
Of interest to other
judges
In
the matter between:
PICK ‘N PAY
RETAILERS (PTY)
LTD
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First
Respondent
MR YUSUF SMITH
N.O.
Second
Respondent
JAMAFO
OBO WILLEM
GELANT
Third
Respondent
Heard:
16
April 2014
Delivered:
18
September 2014
Summary:
(Review
– misdirection preventing arbitrator from determining correct
disciplinary charge – misdirection affecting finding
of guilt
necessitating review – substitution of finding of guilt and of
sanction – dismissal nonetheless substantively
unfair).
JUDGMENT
LAGRANGE, J
Introduction
[1] In
this matter, the third respondent, Mr W Gelant (‘Gelant’),
was employed as a fruit and vegetable
manager at the applicant’s
store in Gardens, Cape Town. He had held this position for the
previous five years and had been
working for the applicant for 27
years.
[2] He
was dismissed for consuming company property without authorisation on
11 June 2010. His dismissal took place
on 3 February 2011. The second
respondent, the arbitrator, found that Gelant’s dismissal was
substantively unfair but procedurally
fair and reinstated him with
retrospective effect to 14 July 2011. The applicant has applied to
review the award and to stay the
enforcement of the award pending
judgement in the review.
Background
[3] Before
considering the arbitrator’s reasoning and the grounds of
review, it is useful to highlight some
of the evidence before the
arbitrator.
[4] Video
footage of the incident which led to Gelant’s dismissal, which
was not disputed, was shown at the
arbitration hearing. The footage
was taken from a camera covering the fruit and vegetable preparation
area which is off the shop
floor, sometimes referred to as the backup
area. The description of the incident in the CCTV analysis report
records the following
occurrences on 11 June 2010:
“
11:44:17
A
couple of fruit platters are standing on the table and a male
employee and a female employee is talking. The male employee takes
a
piece of fruit and eats it. The male walks out of camera view and the
female employee follows him.
12:14:15
A
female employee and a male employee walk into camera view and the
female employee places a fruit platter on the table and walks
out of
camera view. The male employee stands the table and he takes a piece
of fruit from the platter and eats it. He takes a plastic
cup and
pours some orange juice and drinks it and walks out of camera view.”
It
is common cause that the male employee described in the report is
Gelant.
[5] The
assistant store manager at the time, Mr G Sterrenboom
(‘Sterrenboom’), gave evidence for the
applicant and
Gelant gave evidence on his own behalf.
[6] Sterrenboom
testified that it was company policy that company property could not
be consumed because it would
result in a loss to the employer. This
rule was explained to each and every staff member during the
induction process. He agreed
that he could not comment on what was
the practice when Gelant had been employed, as he had only been
employed 13 years previously
whereas Gelant had been employed at
least 13 years before that. However, he did claim that when a staff
member moved from to a
management post there was a re-induction
process, which he did about five and a half years ago and which was
common practice.
[7] In
the Western Cape region losses of this kind amounted to R 32 million
during the six-month period from February
to August 2010, and the
shrinkage at the garden centre store was R 1.8 million amounting to
4% of turnover. Although he was talking
about an authorised
consumption, he agreed that this figure would also include things
like till shortages and could not give a
breakdown of the specific
causes of shrinkage. In terms of the disciplinary code it was
regarded as a serious offence and was treated
as a dismissible
offence if a person was found guilty of it.
[8] The
procedure for tasting products does not take place in the backup area
but on the shop floor and the quantity
of produce set aside for a
promotion, which would be written off as wastage, would be cut up,
peeled and tasted by all the personnel
in the relevant department,
not by one person. When he had asked Gelant in the disciplinary
enquiry if he had obtained permission
to do a tasting he had
confirmed he had not. According to Sterrenboom the procedure Gelant
should have followed if he wanted to
sample something on the platter
because he suspected it might be off was that he should have
approached the store manager or Assistant
Manager and requested to do
a tasting on the product. The same practice would have applied to the
orange juice.
[9] Under
cross-examination he elaborated that the preparation of platters was
done for customers on order and
they were not supposed to stand in
the backup area. As far as he could recall Gelant had never stated
what the platter was intended
for. He conceded that, part of Gelant’s
work was to do quality checks on the products, which included looking
to see if fresh
produce was bruised or overripe.
[10] He
also agreed that at the enquiry Gelant had stated:
“
It
was World Cup. We prepared platters for tasters. We normally use the
waste at the back. I asked them if they used the waste that
was
there. They used the pawpaws. Pawpaws did not look so good and
therefore I tasted the pawpaw.”
Under
heavy prompting from the applicant’s representative, Ms Venter,
who herself at times could not resist giving evidence,
Sterrenboom
commented that it was not a common practice to make platters from
wasted fruit.
[11] On
being asked if the sanction of dismissal was too harsh, Sterrenboom
simply reiterated that “case
law” at the firm showed that
when someone was found guilty of unauthorised consumption of company
property it lead to dismissal.
Under cross-examination he confirmed
that this happened irrespective of the circumstances of the
consumption.
[12] Sterrenboom
also commented that it was not hygienic for Gelant to eat off a
platter that was for sale to a
customer. Under cross-examination
there was a major dispute as to whether Gelant had lifted the fruit
with a toothpick or his bare
hands, but under fairly obvious leading
by the applicant’s representative, Ms Venter, in re-examination
Sterrenboom insisted
that even if the applicant had used a toothpick
and not his bare hands it did not constitute a controlled tasting in
compliance
with the applicant’s policies. Similarly, also under
prompting from Venter, Sterrenboom confirmed that it didn’t
make
any difference whether the platter was being prepared for
sampling by customers or whether it was being prepared for an order
by
customer.
[13] Under
further questioning from the arbitrator Sterrenboom confirmed that
any tasting or sampling exercise
would involve the person handling
the food wearing protective gloves as well. Customers would be given
food to taste in little
containers. Sterrenboom testified that all of
this was set out in legislation governing the handling of foodstuffs
but could not
point to any written document issued by the applicant
itself setting out the policy, which he claimed was simply the common
practice
at the company.
[14] The
applicant explained that the platters were supposed to be prepared as
tasters for customers and it was
his idea to attract customers into
his department as the managers had been encouraged to think of ways
of doing this. In the morning
a quality check would be done and the
sound part of the produce would be used for making tasters, while the
rest would be discarded.
The pawpaw on the platter didn’t look
the right colour, which is why he tasted it. The second fruit he had
sampled was a
slice of a Pink Lady apple, a variety which
deteriorated very quickly. A customer had said that it tasted floury.
If fruit was
bruised it would be cut up and used if possible for
example to make salads. As manager of his department who knew that
some of
the produce would be discarded as waste and to minimise
wastage he tried to use what he could. He accepted that he was
supposed
to ask the store manager or assistant store manager to
remove products from the shelf, but as a specialist in that
department he
knew what could be used and what could not. He felt
that he had the authority to do that, even though it had to be
recorded that
the stock had been used to make salads or platters.
[15] Under
cross-examination, he elaborated on the procedure of checking the
quality of stock before the store
opened and on an ongoing basis
throughout the day. Products which were inferior, bruised or had
passed the expiry date were removed
and taken to the back. Before it
was removed as waste and the store manager would have to authorise it
or determine if some of
it could still be used. He agreed that he had
not specifically obtained authority to use the produce in question
for platters,
but clearly believed that because he had been
instructed to take some initiative to attract customers to the
department that could
include the preparation of platters from
produce which might otherwise be consigned to waste.
[16] He
was questioned assiduously on why he had not attempted to produce
documentation to support his claim that
he was using waste product.
He tried to explain that it would have been difficult to do that
given that the enquiry was only convened
more than six months after
the event. He conceded that it had not been declared waste product by
the store manager or his assistant
at the time, but he had recorded
it as waste because that was the common practice and he could not run
to the store manager every
time produce had to be removed from the
shelves. The store manager only signed the document at night after
produce had already
been discarded. It is fairly obvious from his
answers that the produce he had used to prepare the platters had been
declared waste
produce at the end of the day. The tenor of the
question concerning his authority to do so put to him by Ms Venter
under cross-examination
was that he needed the authority beforehand.
[17] It
was then put to him that only fruit that had reached its sell by date
was used in salads or platters and
not fruit that was damaged or
bruised. He explained that the common practice is that it never
happened that the store manager came
and said what must be used for
the salad bar and what could be thrown out. Common practice was that
he knew what was used for waste
and what could be used for shop use,
and the store manager or assistant manager would abide by his
decision, but would reprimand
him if he did something wrong. For all
the 16 years he had worked in the fruit and vegetable section what
could be used would be
used in the salad bar and excessive waste was
discouraged. That was the standard practice if fruit was bruised but
had not reached
a sell by date.
[18] It
was then suggested to him that he was no different from any other
employee and had no special privileges
which non-managerial employees
did not have. He denied that this was what he was trying to say but
that it was not for staff members
to decide to taste produce without
asking him as the manager. He claimed that in meetings with the
coordinators the question had
been posed what they should do as a
manager if they saw something was wrong and it’s not right and
they were told that they
could taste the product because they were
the specialist in charge of that department. Moreover, he saw it as
his duty as manager
of the fruit and vegetable department to make
sure that he was not selling substandard produce. He agreed that in
the case of a
new product that the tasting procedure as outlined by
Sterrenboom would be followed. He could not be selling produce to
customers
that he knew was not right.
[19] He
was also tested on why he only tasted the pawpaw once the platter had
been prepared and he explained that
he only saw it when it was in the
backup area. He noticed that it did not look as orange as it should
have been. Also it was not
always possible to see from the colouring
of the skin what the colour of the flesh would be like.
[20] The
juices were prepared at the back and they were being promoted with
the platters on a table. He had gone
to the back to taste the juice
after a customer had complained that it was sour. He had tasted it in
a tasting cup which held a
small quantity of juice. Under
cross-examination he explained that a customer had complained that
the juice was sour and he had
gone to the back where the juice
container was to test it. Even though that juice was not the same
batch which the customer had
sampled he was able to report to the
customer that a new batch had been prepared and was sweeter.
[21] If
there was a complaint there appeared to be a problem with a product,
he would taste it and the product
would be removed and the buyer
would be phoned about the quality of that product. He accepted that
in the case of new produce which
came in, it would be tasted together
with staff so they would be able to advise customers how it tasted.
[22] Gelant
did not interpret what he had done as amounting to consuming company
product, because it was not as
if he was eating to fill his stomach:
he was merely tasting the produce. He agreed under cross-examination
that he had tasted food
in the past, but he denied that this meant he
had “got away with it” for 20 years. Even if his manager
had been standing
next to him he would have tasted the food. Moreover
the area in which he had done so was an open area in which there was
a lot
of movement, so it was not as if he had been acting
secretively. In his view it simply didn’t make sense for him to
take
the food out to the shop floor and taste it there.
[23] It
was put to Gelant that he should have reported any complaint to the
store manager. His view was that he
only had to report it if he could
not resolve it as the department manager.
[24] When
he joined the company there was no induction process. Employees were
simply told where they would have
to go and work. He began work as a
porter. He did concede that when he was appointed to the position of
manager of the fruit and
vegetable department 5 ½ years
earlier he had been given some guidelines and training including IR
training.
[25] At
the end of his cross-examination it was put to Gelant that the
employer’s records did not reflect
the items in question
recorded as wastage. His response was that what was used in the
preparation of customer samplers would have
been recorded as produce
consigned for shop use and the rest as wastage. The applicant’s
representative then sought to re-open
the company’s case,
against the objections of the union representative, to lead further
evidence of the company records of
wastage. The commissioner ruled
that the company could file the documents with their written
submissions and the union could respond
with the company having a
right of reply.
The arbitrator’s
findings
[26] The
arbitrator accepted that the evidence showed that Gelant had consumed
company products on 11 June 2010
and noted that he did not dispute
that but disputed the reason he was doing so. He was not persuaded
that the applicant had disproved
Gelant’s explanation for doing
so. He found nothing inherently improbable about his version when
weighing of the probabilities.
[27] The
arbitrator also found that the applicant had refused to even consider
the possibility that Gelant had
a legitimate reason for consuming the
produce. He considered that this was odd given Gelant’s service
of more than 20 years
with a clean disciplinary record. Even if he
had not complied strictly with the procedures relating to tasting or
testing of the
product it did not imply that he had acted
dishonestly. He further accepted that providing customer satisfaction
was part of his
responsibilities of a manager and that encompassed
testing a product when a question arose about its quality. Tasting
produce in
response to a customer complaint not to have attracted the
sanction of dismissal.
[28] The
arbitrator noted that the company had not produced any written
version of the testing policy, but did
not regard this as decisive
because in any event Gelant had not been charged for failing to
follow the policy but for dishonest
conduct, by which I understand
the arbitrator to mean that his consumption of the product was
tantamount to an act of theft.
[29] On
a balance of probabilities the arbitrator found that he could not say
with any degree of certainty that
the applicant’s version was
more probable than that of Gelant. If anything, the latter’s
version was more probable
than the applicant’s version.
[30] There
had been a complaint that the delay in taking disciplinary action had
resulted in procedural unfairness.
However, the arbitrator accepted
that the applicant had only become aware of the incident on 18
December 2010 and had notified
the applicant of the charges two days
later followed by the first date of a hearing on 28 December. As
such, he was satisfied that
Gelant had sufficient time to prepare and
present his case. Consequently his dismissal was procedurally fair.
[31] When
considering the appropriate remedy the arbitrator followed the normal
approach, as mandated by section
193 (2) of the Labour Relations Act,
66 of 1995 (‘the LRA’), that the reinstatement is the
preferred remedy unless
the employee does not seek that relief or if
a continued employment relationship would be intolerable.
Consequently he ordered
the retrospective reinstatement of Gelant on
the same terms and conditions governing his termination of employment
on 3 February
2011, without loss of service continuity and benefits.
Grounds of review
[32] The
applicant’s first complaint is that the arbitrator missed the
point in finding that there was no
proof that he was guilty of
dishonest conduct, because he was charged with unauthorised
consumption of company products and his
state of mind was irrelevant
to whether or not he was guilty of the charge. It contended that this
amounted to an act of process-related
unreasonableness. The applicant
further claimed as a second ground of review that the arbitrator had
also made a material error
of law by “insisting that the
applicant was required to prove dishonest conduct as an element of
the misconduct” that
Gelant was charged with. In truth there is
little distinction between this and the first ground of review. In
any event, the applicant
contends that if the Commissioner had not
reasoned as he did the result might well have been different.
[33] The
applicant further contended that the arbitrator committed further
acts of process-related unreasonableness
by failing to consider a
number of material facts and had he done so the result might have
been different. The factors highlighted
by the applicant in this
regard are:
33.1 the
undisputed evidence of financial losses owing to shrinkage regionally
and at the Garden store;
33.2 the
ramifications of tolerating such an authorised consumption in the
workforce of 38,000 employees
as set out in the applicant’s
written heads of argument;
33.3 the
submissions made in closing argument about the employer’s
expectation of employees to
protect its assets;
33.4 the
consistent approach of the applicant in dealing with breaches of the
rule and the seriousness
with which the offence was treated;
33.5 the
evidence that employee is found guilty of the offence were dismissed;
33.6 submissions
made by the applicant in argument that managers who contravened the
rule had been
dismissed;
33.7 the
existence of a tasting policy of the applicant, even if this was not
one that was reduced
to writing;
33.8 the
copies of the house rules and regulations applicable in the Western
Cape apparently submitted
with the applicant’s closing
argument.
[34] In
the applicant’ s supplementary affidavit, the issues set out in
the previous paragraph are augmented
with more detailed reference to
the evidence, but no additional grounds of review were advanced.
Evaluation
[35] I
accept that the arbitrator plainly misstated the nature of the
misconduct in saying that Gelant had been
charged with dishonest
conduct and not with breaching the tasting policy. The charge was
that he had consumed company produce without
authorisation. At least
as far as the first part of the enquiry was concerned, the arbitrator
was required to determine if Gelant
had indeed done so. In his
reasoning the arbitrator collapsed consideration of the issue of
guilt, with the existence of a justification
which diminished the
seriousness of the infraction, or completely excused it. In the end
he arrived at a conclusion about the fairness
of the dismissal,
without clearly identifying his subsidiary conclusions along the way.
[36] Consequently,
he concluded that Gelant was not guilty of dishonest conduct. It must
be said in fairness to
the arbitrator, that he might have been
influenced by the applicant itself in making a finding on the
misconduct on the basis of
dishonesty, rather than on the charge
itself.
[37] Thus,
in its written submissions to the arbitrator, the applicant dwelled
at some length on jurisprudence
relating to consumption of company
products being treated as tantamount to theft. Further, in its
replying heads to Gelant’s
answering heads of argument at the
CCMA, it then sought to de-emphasise the association of the offence
with theft and focused instead
on the question of dishonesty. Just to
give one example, at paragraph 4.3 of the applicant’s replying
heads it submitted
to the arbitrator, the applicant stated:
“
The
[third respondent] now places emphasis on the issue of theft. It is
however important to highlight that this is not so much
the issue of
theft, as it is the larger concept of
dishonesty
and the issue of
trust
which in the end justifies dismissal.”
(Original
emphasis)
[38] Not
only did the applicant make much of the issue of dishonesty in its
submissions to the CCMA, but it reiterated
its view that the sanction
of dismissal was appropriate in its submission to court because
inter
alia
:
“
Although
it was not a specific charge put to him, the misconduct entailed an
unsavoury element of dishonesty. Gelant was prepared
to consume
produce that did not belong to him, but was property of his
employer.”
[39] Nonetheless
it seems that the arbitrator confused submissions relevant to the
issue of sanction with the finding
of guilt on the misconduct.
Consequently, he failed to determine whether Gelant was guilty of the
charge for which he was dismissed.
For the reasons set out below, his
finding on the charge itself would in all probability would have been
different and that must
be set aside. Whether the ultimate decision
concerning the fairness of the dismissal itself will be different as
a result of a
re-consideration of the finding on misconduct will be
discussed below, but in the light of his misdirection fundamentally
affecting
the outcome of a primary issue he had to decide, that
conclusion also has to be considered afresh in the light of any
change in
the finding of misconduct.
Re-evaluation
[40] Setting
aside the arbitrator’s findings on guilt and sanction based on
a finding that Gelant was not
guilty of dishonest conduct, does not
mean that there is nothing of relevance in the arbitrator’s
reasoning which in many
respects was not unreasonable on a number of
issues.
[41] The
applicant was supposed to have provided evidence of the written
policies it relied on when it filed its
original heads of argument
with the CCMA. However, it appears from Gelant’s answering
affidavit that it only did so on 6
July 2011 after the union had
filed heads on 23 June 2011. The union applied for a directive about
what should be done in the circumstances
but this elicited no
response from the arbitrator and the award was faxed to the
respondent on 12 July 2011.
[42] Strictly
speaking the arbitrator was entitled to have disregarded these
documents which were received after
the union’s submissions,
contrary to his own directive.
[43] On
the evidence, it was undisputed that Gelant consumed two small
portions of fruit and a small cup of orange
juice in two incidents
about half an hour apart. What was in dispute was his authority and
justification for doing so.
[44] On
the question of whether it was authorised, it seems that Gelant
conceded that in terms of the formal policy,
the use of shop produce
for the preparation of tasting platters or for fruit salad required
the approval of the store manager or
assistant manager and that he
had not actually obtained it in advance of consuming the items in
question.
[45] His
defence was fourfold. Firstly, he had not been consuming the product
for his personal satisfaction, but
to test it because there was a
question mark about its quality. Secondly, as a manager in charge of
the section he had to take
the initiative to taste produce if it
appeared of doubtful quality or if a customer complained. As the
manager of the department
he had a responsibility to address that
without running to the store manager as a first resort on every
occasion. Thirdly, the
question had been raised in a meeting with
co-ordinators and it had been confirmed that they could taste a
product if there was
a concern about its quality as the specialist
manager in their respective sections. Fourthly, the authorisation of
writing off
produce was usually done retrospectively by the senior
manager at the end of the day and if he made an error of judgment in
discarding
good produce he would be reprimanded.
[46] It
is difficult to conclude that the applicant had not breached the rule
against consuming company property
without authority. As such he was
guilty of the charge. One may also accept that such rules are
necessary to preserve the applicant’s
stock and the casual
consumption thereof to satisfy employees’ personal needs does
not have to be tolerated and an employer
is entitled to treat it as a
serious matter.
[47] The
seriousness of the particular infraction of the rule should also be
considered. In this instance the arbitrator
was of the view that
Gelant had some justification for what he had done and that it was
not for his personal satisfaction. I cannot
say that was a conclusion
no reasonable arbitrator could have reached even if it might not have
been most probable explanation
of his conduct. Having accepted his
explanation it does not seem unreasonable for someone in his position
as the head of a department
to have genuinely believed he was
expected to take some remedial action himself to address potential
problems with the quality
of produce in his department despite the
formal policy of authorisation tasting. In this regard, it is
interesting to note that
when the applicant’s representative
cross-examined him, Venter was indifferent to the issue whether as a
manager he might
be expected to be more proactive in dealing with
quality issues than a non-managerial employee and whether it was
reasonable as
a speciality manager to exercise some discretion and
initiative in such circumstances.
[48] These
considerations, in my view justify a more nuanced view of the
severity of Gelant’s infraction.
[49] Then
there is the question of his unblemished and lengthy service. It is
readily apparent from Sterrenboom’s
testimony that this counted
for nothing in the applicant’s view. He reiterated the oft
heard adage that the consequence of
being found guilty of the offence
was that dismissal was the sanction in all cases. After nearly two
decades since the LRA was
enacted and six years after the
Constitutional Court judgment in
Sidumo
& another v Rustenburg Platinum Mines Ltd & oth
ers
[1]
,
one might think that the precepts of Items 3(4) and 3(5) of the Code
of Good Practice on Dismissal
[2]
read with s 188(2)
[3]
of the LRA
and the emphatic weight given by the Constitutional Court to the
importance of having regard to a number of factors
in deciding
whether it is fair to dismiss an employee for misconduct
[4]
wo
uld have
dispelled the notion that a finding of guilt determines the sanction
automatically. Regrettably, this case illustrates
that this thinking
is still prevalent and tenaciously adhered to.
[50] A
related fallacy is that the only way in which a workplace rule can be
meaningfully enforced is to dismiss
the guilty party in every
instance, without ever considering if a less serious sanction might
be sufficient and justified by the
circumstances of the case.
[51] In
this instance Gelant’s otherwise unblemished record counted for
nought. Further it was argued, though
not even put to Gelant in
cross-examination that he could not be trusted. There was no evidence
to suggest that a written warning
or final written warning might be
sufficient to rectify the problem without appearing to be lax on the
handling of company produce.
[52] Having
regard to:
52.1 Gelant’s
responsibility as a manager in charge of the fruit and vegetable
section
of the store and the tension between that responsibility and
the applicant’s formal policy of denying him any autonomy to
make his own assessment of quality as and when such an issue arises;
52.2 Gelant’s
extensive length of service of 27 years including more than 5 years
as manager
of his section;
52.3 the
importance of preventing shrinkage;
52.4 the
need to emphasise the seriousness of the rule;
52.5 the
absence of other suggesting Gelant could no longer be trusted if
given a sufficiently
serious warning, and
52.6 Gelant’s
justification for what he did,
I
do not think that dismissal was an appropriate sanction for his
breach of the rule and consequently his dismissal was substantively
unfair. A final written warning ought to have more than sufficed in
the particular circumstances of this case. The mere fact that
there
was general evidence that the applicant consistently dismissed any
employee for the misconduct is not sufficient reason to
outweigh
other relevant factors.
[53] The
arbitrator’s finding on procedural fairness remains unaffected.
Order
[54] In
consequence, it is ordered that:
54.1 The
second respondent’s finding in the arbitration award dated 15
June 2011 issued
under case number WECT 4137-11 that the third
respondent was not guilty of dishonest conduct is reviewed and set
aside and substituted
with a finding that he was guilty of the
unauthorised consumption of company property.
54.2 The
second respondent’s finding in the said award that his
dismissal was substantively
unfair is confirmed after reconsideration
thereof in the light of the revised finding of guilt.
54.3 The
relief granted in the said award is reviewed and set aside and
substituted with the
following:
54.3.1 The third
respondent is reinstated with retrospective effect to the date of his
dismissal on 3 February 2011, on the
same terms and conditions and
without loss of service and service related benefits
54.3.2 The third
respondent is issued with a final written warning valid for 12 months
from the date of his return to work
for the unauthorised consumption
of company products.
54.3.3 The third
respondent must tender his services to the applicant within 14
calendar days of this judgment.
[55] The
applicant must pay the third respondent’s costs.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
G
A Leslie instructed by Bowman Gilfillan Inc
FIRST
RESPONDENT: T J Moquechane of
JAMAFO
[1]
2008
(2) SA 24
(CC );(2007) 28 ILJ 2405 (CC)
[2]
The
provisions read:
“
(4)
Generally, it is not appropriate to dismiss an employee for a first
offence, except if the misconduct is serious and of such
gravity
that it makes a continued employment relationship intolerable.
Examples of serious misconduct, subject to the rule that
each case
should be judged on its merits, are gross dishonesty or wilful
damage to the property of the employer, wilful endangering
of the
safety of others, physical assault on the employer, a fellow
employee, client or customer and gross insubordination. Whatever
the
merits of the case for dismissal might be, a dismissal will not be
fair if it does not meet the requirements of section 188.
(5) When deciding
whether or not to impose the penalty of dismissal, the employer
should in addition to the gravity of the misconduct
consider factors
such as the employee's circumstances (including length of service,
previous disciplinary record and personal
circumstances), the nature
of the job and the circumstances of the infringement itself.”
[3]
S
188 (2) reads: “
Any
person
considering whether or not the reason for dismissal is a fair reason
or whether or not the dismissal was effected in accordance
with a
fair procedure
must
take into account any relevant code of good practice
issued in terms of this Act
.”
(emphasis added)
[4]
Sidumo
at
2432-3, viz:
“
[78] In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances.
He or she will
necessarily take into account the importance of the rule that had
been
breached.
The commissioner must of course consider the reason the employer
imposed the sanction of dismissal, as he or she must
take into
account the basis of the employee's challenge to the dismissal.
There are other
factors that will require consideration. For example, the harm
caused by the employee's conduct, whether additional
training and
instruction may result in the employee not repeating the misconduct,
the effect of dismissal on the employee and
his or her long-service
record. This is not an exhaustive list.”