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[2014] ZALCPE 27
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Masscash (Pty) Ltd - A Division of Massmart Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and Others (P564/12) [2014] ZALCPE 27 (5 September 2014)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
IN
PORT ELIZABETH
JUDGMENT
Not
reportable
Case
no: P564/12
In
the matter between:
MASSCASH (PTY) LTD)
A DIVISION OF MASSMART HOLDINGS LTD
Applicant
And
COMMISSION FOR
CONCILIATION MEDIATION AND ARBITRATION
First
Respondent
BONGANI MBALI
N.O.
Second
Respondent
VIVIAN
NCEDANI
Third
Respondent
Heard:
04 September 2014
Delivered:
05 September 2014
Summary:
(Review - reasonableness).
JUDGMENT
LAGRANGE,
J
Introduction
[1]
The third respondent in this matter was
dismissed on 18 January 2012 having been found guilty of failing
“...to safeguard
company assets in that on 2 December 2011 you
failed to keep Abigail’s float bag in the safe and as a result
the business
suffered a financial loss of R6800.05”. She
referred her dismissal to the CCMA and on 8 October 2012 the
arbitrator issued
an award to the effect that her dismissal was
substantively unfair and awarded her retrospective reinstatement. The
applicant has
applied to review and set aside that award.
The arbitrator’s
award
[2]
I do not intend to set out the award
in any detail but only to focus on the essential findings of the
arbitrator which were:
2.1
The issue was whether or the third
respondent’s failure to keep the cashier’s float bag in
the safe, after the cashier
had handed it in and been given a seal to
seal the bag, was the cause of the financial loss.
2.2
The arbitrator rejected the evidence of the
applicant’s administrative manager that the safe was big enough
to keep the float
bag in favour of evidence of the administrative
clerk and of the third respondent herself that there was no space at
the time to
put the bag in the safe, because it was full.
2.3
The arbitrator found that there was a rule
that the cashier ought to have deposited the money in the float bag
before leaving it
with the third respondent with only sufficient cash
for a float inside.
2.4
Had the cashier complied with this
procedure the financial loss would have been avoided.
2.5
There was an anomaly about the fact that
the seal found on the cashier’s bag when it was discovered to
have been opened was
not the same seal she had been issued with by
the third respondent, but the arbitrator decided that there was no
evidence that
the seals had to be issued in a particular sequence and
did not regard this as relevant to the issues he had to decide.
2.6
The third respondent had testified that she
had left the office where the bag was being kept to go to the
bathroom but had not locked
the door because another clerk was
present and she had asked her to look after the office in her
absence.
2.7
The employer had caused the situation which
led to the financial loss by not addressing the shortage of space for
keeping float
bags.
2.8
The conduct of the cashier in failing to
deposit the bulk of the money in the bag when she had to go to a
meeting was not explained,
and she was responsible for safeguarding
the assets in it.
2.9
The third respondent was not dishonest and
had requested police to be called to identify who had handled the
bag.
[3]
The arbitrator found that the inference
which the employer had drawn from the evidence was not the only one
that could be drawn
and others were possible which could explain how
the money went missing. Anyone in the cash office could have removed
the seal
based on the applicant’s witnesses’ version. In
consequence, the third respondent could not be found guilty of
negligence.
She alone could not be blamed as there were other factors
contributing to the loss when the totality of factors is considered.
[4]
Without making an express finding that the
third respondent was not guilty as charged (which might have formed
the basis of another
ground of review but was not raised by the
applicant) the arbitrator concluded that her dismissal was
substantively unfair. In
understanding the arbitrator’s
reasoning, it is apparent that the basis of the arbitrator’s
decision was that the full
amount of the loss could not be attributed
to the third respondent and therefore the applicant had failed to
prove its case on
a balance of probabilities.
Grounds of review
[5]
As
frequently happens in review applications the grounds of review
appear to be more like grounds of appeal. It is clear since the
LAC
decision in
Goldfields
Mining South Africa (Pty) Ltd (Kloof Gold Mine) v CCMA
.
[1]
that an arbitrator’s failure to take material facts into
account is not determinative of the question whether the test for
review has been satisfied or not. The reasonableness test as
expressed in the
Sidumo
[2]
judgement must also be met.
[3]
The critical factors in a case such as this, in which the attack is
on the alleged failure by the arbitrator to consider material
facts,
is whether the arbitrator dealt with the substantive merits of the
dispute and whether the decision is one that another
arbitrator could
have reasonably arrived at on the evidence.
[6]
While there are other issues raised by the
applicant as grounds of review, which relate to the failure of the
arbitrator to make
adverse credibility findings about the third
respondent, the principal grounds of review are twofold. Firstly, the
applicant contends
that the arbitrator failed to appreciate the
evidence that when the cashier handed her float bag to the third
respondent, the third
respondent had a duty to safeguard it.
Secondly, the arbitrator allegedly failed to take account of the
third respondent’s
failure to lock the door of the cash office
when she went to the bathroom when she was aware that there was a lot
of cash in the
office which was not secured in the safe.
Evaluation
[7]
Considering the first ground, although it
must be said that the evidence supports the third respondent that the
normal procedure
for a cashier with a considerable sum of money in
her float bag would have been to deposit the bulk of that money with
only a small
amount being retained in the bag as a float, it was
clear from the evidence of the applicant’s witnesses that once
the chief
cashier had issued a seal for the bag to the cashier, the
chief cashier was responsible for the safekeeping of the bag.
[8]
The key contention of the third respondent,
which the arbitrator appears to have accepted is that had the cashier
complied with
the rule of depositing money the loss would not have
been so great. The arbitrator plainly adopted this line of reasoning
in arriving
at his conclusion. The first question the arbitrator
should have asked is whether the third respondent was guilty of
breaching
her responsibility to safeguard the contents of the bag.
Having determined that the question of whether her breach of that
duty
was the sole cause of the extent of the loss or whether that
responsibility should have been shared with the cashier is an inquiry
that might only have had a bearing on the determination of an
appropriate sanction, not on the essence of the charge which was
her
failure to safeguard the employer’s assets. It seems that the
arbitrator might have collapsed these issues into one question.
Whether the arbitrator thought that the loss could be totally
attributable to the third respondent or not, it was necessary for
him
to determine if she had acted in breach of that duty. On the
evidence, it is difficult to see how a reasonable arbitrator could
have concluded that she had not acted in breach of that duty when she
left the cash office where the unsecured bag was being kept,
without
even locking the door. This brings the second principal ground of
review to the fore.
[9]
Regarding the second ground, the arbitrator
remarkably concluded that there was no evidence of a rule that the
third respondent
ought to have locked the door to the cash office
when she went to the bathroom. He then proceeded to focus on the fact
that if
there had been sufficient space for the bag in the safe and
if the cashier had deposited the bulk of the contents of the bag, the
loss might have been avoided. Following this discussion, the
arbitrator then arrived at his conclusion that there were alternative
explanations for the disappearance of the money and the applicant had
not proved that its version was the most probable explanation.
[10]
By reasoning in this manner, the arbitrator
avoided the essence of the charge which was the third respondent’s
failure to
safeguard the assets contained in the cashier’s bag.
In circumstances, where it was not in dispute that the bag ought to
have been locked up in the safe but could not be for lack of space,
it is absurd for the arbitrator to reason that there was no
duty on
the third respondent to take reasonable alternative precautions to
safeguard the bag such as the simple expedient of locking
the door,
rather than relying on the hopefully watchful eye of someone who was
not charged with the responsibility of safeguarding
the bag.
[11]
For the above reasons, I am satisfied that
the arbitrator’s conclusion that the third respondent’s
dismissal was substantively
unfair was a consequence of him failing
to take the considerations above into account and cannot be supported
on the evidence before
him.
Relief
[12]
In light of the above, I am satisfied on
the evidence that the third respondent was guilty of not safeguarding
the assets in the
cashier’s bag. As such, her omission was the
final step in a chain of causation which resulted in the loss.
Whether the loss
might have been reduced to a lesser amount had the
cashier deposited the money, does not alter the fact that she was
guilty of
misconduct and that, on a balance of probabilities, the
loss would not have occurred had she safeguarded the bag more
diligently.
[13]
In the circumstances, the next
consideration is to determine if dismissal was an appropriate
sanction in the circumstances, which
naturally was not an issue
considered by the arbitrator. There are some nuances in this
case which might be factors in determining
the question of
substantive fairness, apart from the usual mitigating and aggravating
factors, such as the other omissions in the
chain of causation
leading to the loss. I think it would be undesirable for the court to
decide on an appropriate sanction in the
absence of these issues
being ventilated in argument. Accordingly, it ought to be
remitted to the CCMA for this purpose.
Order
[14]
The second respondent’s finding in
the arbitration award issued on 8 October 2012 under case number ECEL
448-12 that the third
respondent’s dismissal was substantively
unfair and the consequential relief ordered in paragraphs 41 to 45 of
the ward inclusive
is reviewed and set aside.
[15]
The second respondent’s finding is
substituted with a finding that the third respondent was guilty of
failing to safeguard
the company’s assets on 2 December 2011 by
failing to safeguard the float bag of Abigail, as a result of which
the company
suffered a financial loss of approximately R 6,800.
[16]
The matter is remitted back to the first
respondent to determine if the dismissal for the said misconduct was
substantively fair,
based on the record in the original arbitration,
and after hearing the submissions of the parties.
[17]
No order is made as to costs.
_______________________
R LAGRANGE, J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:
S Cokile of Siya Cokile Inc. Attorneys
THIRD
RESPONDENT:
L Poni of SACCAWU
[1]
(2014) 35 ILJ 943 (LAC) at 950, paras [21] to [25]
[2]
Sidumo & another v Rustenburg Platinum Mines Ltd & others
2008 (2) SA 24
(CC); (2007) 28 ILJ 2405 (CC)
[3]
Goldfields
Mining
at 949, para [15]