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[2014] ZALCPE 18
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (P414/11) [2014] ZALCPE 18 (30 July 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: P414/11
In
the matter between:
SHOPRITE
CHECKERS (PTY)
LTD Applicant
And
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
DONOVAN DOMINGO N.O Second
Respondent
FRANCINA
FREDERICKS Third
Respondent
ELAINE
LOURENS Fourth
Respondent
Heard:
30 July 2013
Delivered:
30 July 2014
Summary:
An award which is inconsistent with the evidence led at the
arbitration may be reviewed if the inconsistence
leads the
commissioner to reach an unreasonable decision.
Review
in terms of section 145 of the LRA-Dismissal for misconduct.
JUDGMENT
LALLIE,
J
Introduction
[1]
This is an application to review and set aside an arbitration award
of the second respondent in which he found the applicants’
dismissal substantively unfair, ordered their reinstatement and
substituted their dismissal with final written warnings valid for
twelve months. It is opposed by the third and fourth respondents.
Factual background
[2]
The third respondent was employed by the applicant on 15 September
1986 until her dismissal on 13 May 2011 at a time she was
a fruit and
veg controller at the St George’s Square branch of the
applicant. The fourth respondent took up employment with
the
applicant at the same branch on 1 May 1996. She was a deli assistant
on her dismissal on 16 May 2011. The third and fourth
respondents
were captured on video camera on 29 April 2011 consuming food
designated to be sold to the applicant’s customers.
They were
both charged with the following:
‘
Gross
Misconduct in that on 29 April 2011, you failed to comply with
standard company rules and regulations by acting in an unlawful
and
disorderly manner by consuming company property of which you were not
the lawful owner and without permission from management,
thus in
breach of company rules 1,8 and 13’.
[3]
They were found guilty of the charges which were preferred against
them and dismissed. They referred unfair dismissal disputes
to the
first respondent where the second respondent issued the arbitration
under review.
The award
[4]
In his award the second respondent spelt out the rules the third and
fourth respondents were accused of breaching which also
formed the
basis of their dismissal. Rule 1 required employees to comply with
all rules and regulations of the applicant and to
carry out all
reasonable instructions given by their superiors and to behave in a
lawful manner at all times. Rule 8 prohibits
strictly, eating in the
workplace except in areas designated by the manager for that purpose.
It further prohibits strictly, tasting
or sampling of merchandise
without proper authorization of management. Rule 13 precludes
employees from being in possession of,
or consuming, or attempting to
consume or remove from the applicant’s premises, by any means
or in any manner whatsoever,
any property of the applicant, supplier,
customer or other property of which the employee is not the lawful
owner, including stock,
without following the correct staff buying
procedures or without authorization of management. The rule further
requires employees
to report to their managers any conduct by
customers, suppliers and fellow employees which could lead to any
loss being suffered
by the applicant.
[5]
Recording his observation of the video footage of 29 April 2011 at
10h01, the second respondent stated that the third respondent
was
initially observed spreading mayonnaise on chicken filling which was
in a food container. She then tasted the food. Over the
next seven
minutes she is observed opening another mayonnaise container
spreading it onto the chicken filling at random intervals,
helping
herself to the food and occasionally looking down the passage. The
second respondent observed the fourth respondent tasting
pickled fish
twice over approximately 90 minutes and thereafter taking it to the
front of the deli. The video footage was reliable,
clear and not
disputed by the third and fourth respondent.
[6]
Giving reasons for his decision, the second respondent made the
finding that the third respondent did not dispute the applicant’s
evidence, tendered by Mr Oosthuizen (“Oosthuizen”) and
the video footage. She conceded that she was aware of the shrinkage
at the applicant’s business and she also knew the rules. She
was remorseful and expressed the view that the applicant could
have
considered a sanction less than dismissal in view of her 25 years of
unblemished service. The second respondent stated that
he accepted
the third respondent’s unchallenged testimony that she went to
the deli to place orders as usual. She was asked
by a temporary
employee for assistance and lost sound judgment and engaged in a
rather foolish act. He was not persuaded that the
third respondent’s
behaviour was planned, calculated and with the intention to be
dishonest. He considered aggravating circumstances
which included her
supervisory position, her knowledge of the rules, her obligation to
be exemplary and the applicant’s need
to curb shrinkage. He
also considered mitigating circumstances which included the third
respondent’s 25 years of unblemished
service, she was
remorseful and appealed for leniency, she suffered the indignity of
being unemployed, her conduct was not pre-meditated
or wilful and her
actions did not cause the applicant substantial harm.
[7]
The second respondent made similar findings with regard to the fourth
respondent. She disputed neither Oostheizen’s evidence
nor the
video footage. She was aware of both the rules and the applicant’s
shrinkage problem. She expected her 15 years of
unblemished service
to have worked in her favour. The second respondent accepted as
unchallenged the fourth respondent’s
evidence that she would
have helped herself to a generous portion of the pickled fish and set
down if she wanted to eat it. He
however, was not impressed by her
denial of having noticed a copy of rule 8 despite being shown a
photograph depicting that it
is attached to the wall. He described it
as a childish defensive reaction to the situation that she found
herself in. He was not
persuaded that the fourth respondent’s
behaviour was deliberately aimed at causing the respondent harm. He
was also not convinced
that her behaviour was planned, calculated and
with the intention to be dishonest.
[8]
The second respondent considered aggravating circumstances which
consisted of the fourth respondent’s experience at the
deli
section, her knowledge of the rules, her duty to be exemplary, and
her contribution to shrinkage when she was charged with
the
responsibility to curb it and the applicant’s duty to curb
shrinkage. The mitigating circumstances he considered in favour
of
the fourth respondent are similar to those he took into account in
favour of the third respondent. The second respondent reinstated
the
third and fourth respondents each with a final written warning valid
for a period of 12 months.
Grounds
for review
[9]
The applicant’s main grounds for review are that the second
respondent committed misconduct in relation to his duties
as an
arbitrator. He committed gross irregularities in the conduct of the
arbitration proceedings. He exceeded his powers. He arrived
at a
decision which a reasonable decision-maker could not reach and
prevented the applicant from having a fair trial. He failed
to apply
his mind to material issues by not taking all relevant factors into
account. He also failed to consider the totality of
the matter. His
findings that the actions of the third and fourth respondent were not
intentional, dishonest or wilful are not
supported by evidence. The
second respondent’s finding that the conduct of the third and
fourth respondents did not cause
the applicant substantial harm is
not supported by evidence. The second respondent’s finding, in
the absence of a credibility
finding, that the third respondent had
reason to be at the deli was unreasonable. So is his failure to take
into account the fourth
respondent’s lack of remorse.
[10]
The third respondent denied eating copious portions of the chicken
mayonnaise filling and submitted that she merely tasted
a portion
which could not affect shrinking significantly. The fourth respondent
also insisted that her tasting the pickled fish
did not contribute to
shrinkage. The third respondent’s evidence that she usually
placed her orders at the deli was uncontested.
The third and fourth
respondent further submitted that the decision of the second
respondent is a decision of a reasonable decision-maker
who took all
the evidence into account. They denied that the award has the flaws
highlighted by the applicant and submitted that
there are no grounds
to have the award reviewed and set aside.
[11]
The law of review is settled. For an arbitration award to stand the
scrutiny of review, it must not be a decision that a reasonable
decision maker could not reach. In this regard see
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
.
The Court dealt with the approach to be adopted by commissioners in
performing their duties as arbitrators as follows at paragraphs
78 to
79:
‘
[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.
[79] To sum up. In terms
of the LRA, a commissioner has to determine whether a dismissal is
fair or not. A commissioner is not given
the power to consider afresh
what he or she would do, but simply to decide whether what the
employer did was fair. In arriving
at a decision a commissioner is
not required to defer to the decision of the employer. What is
required is that he or she must
consider all relevant circumstances’.
[12]
The Court in
Goldfields
Mining SA (Pty) Ltd v CCMA
[2]
enunciated the review test thus:
‘
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that evaluation,
a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in
Sidumo
was at pains to state that arbitration awards made under the Labour
Relations Act (“LRA”) continue to be determined
in terms
of section 145 of the LRA but that the constitutional standard of
reasonableness is “suffused” in the application
of
section 145 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’.
[13]
The Court summarised the correct approach for the review court to be
to ascertain whether the arbitrator considered the principal
issue
before him or her, evaluated the facts presented at the hearing and
come to a conclusion that is reasonable.
[14]
What needs to be established first is whether the second respondent
committed misconduct and gross irregularities when conducting
the
arbitration or exceeding his powers as the applicant alleged. Should
the answer be in the affirmative I need to determine whether
the
second respondent’s conduct led him to reach an unreasonable
conclusion. When the evidence which served before the commissioner
is
considered in its totality it reveals that he considered the
principal issue before him which was the fairness of the third
and
fourth respondents’ dismissal for misconduct. He also evaluated
the facts presented at the arbitration. He however, did
not come to a
reasonable conclusion for the reasons I have provided below. The
commissioner tabulated the factors he needed to
take into account as
envisaged in
Sidumo
(
supra)
, he however, did not
consider them but considered the third and fourth respondents’
service with clean disciplinary records.
This is reflected by his
comment that they could not be dismissed for eating or tasting food
after such long service with clean
disciplinary records. He failed to
apply the relevant legal principles and down played the nature of the
misconduct he found they
had made themselves guilty of. With regard
to the third respondent, the second respondent found that the video
footage showed that
she consumed the chicken and mayonnaise filling
over a period of seven minutes, she could not explain why she
continued tasting
it despite having a cold and she was not sure why
she occasionally looked down the passage while tasting the food. He
also found
unchallenged, Oosthuizen’s evidence which included
the evidence that the third respondent should not have been at the
deli
to place her orders over the phone as she had access to a
cordless phone. The commissioner could not reasonable conclude that
the
third respondent went to the deli to place her orders as she
always did. The versions presented by Oosthuizen and the third
respondent
are mutually exclusive and required the commissioner to
have chosen one and given reasons for his election. Although the
commissioner
was required to give brief reasons for his decision, he
deliberately avoided making a ruling whether the third respondent was
asked
by a temporary employee to taste the chicken or not. He
referred to the third respondent’s conduct as engaging in a
rather
foolish act after losing sound judgment and concluded that the
behaviour was not planned, calculated and with the intention to be
dishonest. Oosthuizen’s evidence which the commissioner said
was undisputed by the applicant painted a totality different
picture.
It depicted the third respondent as a supervisor who left her
department and went to the deli to consume food in breach
of the
applicant’s rules, knowing that her conduct would lead to
shrinkage and was dismissible. There was a duty on the commissioner
to give reasons for rejecting undisputed evidence.
[15]
The commissioner elected to rely on
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[3]
which is distinguishable from the matter before him. A case in point
is
Shoprite
Checkers (Pty) Ltd v CCMA and Others
[4]
in which the Court having taken into account the decision the
commissioner relied on found as follows:
‘
This
decision appears to adopt a different approach to the body of
jurisprudence as analysed in this judgment. However, in
that
case, the employee had 30 years of unblemished service. While
that employee contended that he had been authorised to
taste food in
the areas where the video clip had showed him to have so eaten, and
that, on one of the occasions, he was eating
his own food, unlike the
present case, he had not gone so far as to produce manufactured
evidence that manifestly was concocted
in order to support his own
mendacious account, as was evident in the present dispute’.
In
terms of the commissioner’s ruling that Oosthuizen’s
evidence was undisputed, the third respondent fabricated her
evidence
to support her mendacious account.
[16]
Also when dealing with the fourth respondent’s case, the
commissioner watered down her version. He accepted that the
fourth
respondent was aware of the rule against tasting. The commissioner
down played the fourth respondent’s untruthfulness
when she
denied having been made aware of rule 8 which prohibited employees
from eating or tasting merchandise without authorization
of
management. He described it as a childish defensive reaction to
the situation that she found herself in. Her conduct constitutes
what
the Labour Appeal Court in the Silverton judgment referred to as
going so far as to produce manufactured concocted evidence
in order
to support her own mendacious account.
[17]
The commissioner concluded that the third and fourth respondents had
made themselves guilty of the misconduct which led to
their
dismissal. He committed gross irregularities in concluding that the
sanction of dismissal was inappropriate. His decision
is not based on
the evidence before him including evidence he found undisputed and is
inconsistent with his rulings. The decision
to reinstate the third
and fourth respondent is based on a version which the commissioner
decided to deliberately water down and
his deliberate omission to
consider all the circumstances of the case before him. The value of
the third and fourth respondent’s
length of service and clean
disciplinary records were artificially elevated with a view to
justify their reinstatement in the absence
of real justification for
reinstatement. All the gross irregularities the commissioner
committed led him to reach a decision a
reasonable decision-maker
could not reach.
[18]
The third and Fourth respondent did not act unreasonably in opposing
this application, granting a costs order is in the circumstances
would have been inappropriate.
[19]
In the premises the following order is made:
19.1
The arbitration award issued by the second respondent under case
number WEGE 1124-11 and dated 27 July 2011
is reviewed and set aside.
19.2
The matter is remitted to the first respondent to be arbitrated
de
novo
by a commissioner other than the
second respondent.
_______________________________
Lallie J
Judge
of the Labour Court of South Africa
APPEARANCE
For the
Applicant:
Ms Kok
of Van Zyl Incorporated
For the Respondent:
Advocate
Ah Shene
Instructed
by:
Liesel Scholtz Incorporated
[1]
2008 (2) SA 24
(CC) at paras 78 and 79.
[2]
[2007] ZALC 66
;
[2014] 1 BLLR 20
LAC at para 14.
[3]
[2008] 12 BLLR 1211 (LAC).
[4]
[2008] ZALAC 9
;
[2008] 9 BLLR 838
(LAC) at para 24.