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[2015] ZALCJHB 15
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Phatela and Another v Commission for Conciliation, Mediation And Arbitration and Others (JR 2283-10) [2015] ZALCJHB 15 (27 January 2015)
REPUBLIC
OF SOUTH AFRICA
The
Labour Court of South Africa, Johannesburg
Case
no: JR 2283-10
DATE:
27 JANUARY 2015
Not
Reportable
In
the matter between:
Jennifer
Phatela & Sarabano
Abdullah
.....................................................
Applicants
And
Commission
for Conciliation, Mediation And Arbitration
............
First
Respondent
Dumusani
Johannes Ngwenya
(n.o.)
.............................................
Second
Respondent
Picadilly
(Pty)
Ltd
.............................................................................
Third
Respondent
Delivered:
27 January 2015
Summary:
(Review - dismissal).
Judgment
LAGRANGE,
J
Introduction
[1]
Ms J Phatela (‘Phatela’) and Ms
S Abdullah (‘Abdullah’) were dismissed for gross
dishonesty by the third
respondent Picadilly (Pty) Ltd, a clothing
retailer (‘the employer’).
[2]
The following summary of pertinent evidence
is gleaned from the arbitrator’s brief award:
2.1
The dishonesty concerned their alleged
joint attempt to defraud the employer by marking a garment that was
not a sale garment with
a tag indicating it was a sale garment which
reduced its price by 50%.
2.2
The only garments that were supposed to be
marked for sale were oddments. Items were only marked as oddments,
the only three items
or less of the same make and colour. If there
were more than three items of the same make and colour they were
referred to as ‘a
range’ and would not be marked down
without the express permission of a manager.
2.3
A witness testified that she saw Abdullah
give Phatela the tag in question, which Phatela attached to the
garment. She alerted her
supervisor because it seemed odd that a
garment was being marked as a sale garment when it was part of a
range that was still on
the shop floor.
2.4
Phatela claimed that she had simply found
an unmarked red skirt and asked that it be marked so she could buy it
for another staff
member. Abdullah had simply denied any wrongdoing.
2.5
The applicants both claimed that they had
not been given an opportunity to state their version. Their evidence
was contradicted
by the initiator at the enquiry, Ms T Bhamjee.
[3]
The arbitrator found that:
3.1
The applicants had not disputed that the
skirt in question was part of a range on the shop floor, nor had they
contested that items
which were part of a range could not be marked
down to 50% without the permission of the manager. They also had not
disputed that
the skirt in question was part of a range and had been
marked down without the necessary permission.
3.2
The applicants could not provide an
explanation why Phatela had a skirt marked down by 50% which was part
of a range on the shop
floor.
3.3
The most likely explanation was that the
applicants had collaborated to reduce the skirt price in order to
defraud the employer.
3.4
Their actions destroyed the trust
relationship that ought to exist between them and their employer and
the employer was entitled
to dismiss them in the circumstances.
3.5
The evidence of the initiator to the effect
that they were given an opportunity to state their versions was not
disputed and accordingly
their dismissals were also procedurally
fair.
Grounds
of review
[4]
By the time the matter was heard Phatela
had withdrawn from the application and Abdullah was the only
remaining applicant.
[5]
The initial grounds of review, which
obviously represented a preliminary attempt to identify what was
wrong with the award, were
that-
5.1
After a round table discussion between the
parties and the employer’s premises, where the arbitration
hearing was held, the
arbitrator left the room with Mr F Jassat
(‘Jassat’), the store manager, which led them to believe
that the arbitrator
was biased.
5.2
The arbitrator’s reasoning was
contradictory in saying that Abdullah did not admit to any wrongdoing
as well as saying that
they admitted that the skirt was part of a
range.
[6]
In the supplementary affidavit, clearer
grounds were set out, obviously after obtaining some advice. In
summary, these were that
the arbitrator:
6.1
misconstrued the evidence;
6.2
arrived at conclusions unsupported by the
evidence, which no reasonable arbitrator could have reached;
6.3
exceeded his powers;
6.4
created a perception of bias by failing to
call for a Portuguese interpreter for the applicants;
6.5
failed to consider all the evidence and all
the versions of the parties and the probabilities in a reasonable
fashion, and
6.6
ignored crucial evidence which resulted in
him committing errors of fact and law.
[7]
Some of the above grounds were broadly
stated and no detail was provided in support of these submissions. It
is important in this
regard to emphasise that it is not sufficient
simply to state grounds of review in bald terms. The applicant must
set out the facts
which it relies upon for stating a particular
ground of review. Unless the applicant does so, the opposing party is
not really
in a position to respond to such broadly stated claims. In
the supplementary affidavit some specific evidence was identified,
which
the applicants felt was crucial in explaining the failures of
the arbitrator. These were that:
7.1
The applicant’ s witness , Ms J Nape,
said it was herself who had marked down the garments to 50% including
the red skirt,
because it was an oddment which she wished to buy: it
was not the applicants who had done this.
7.2
The same witness testified that she had
colluded with Phatela to have a former staff member purchase the
garment for her, but the
witness was only issued with a written
warning.
7.3
The arbitrator failed to decide if there
was a well-known ruling which had been breached by the applicant.
7.4
The arbitrator failed to determine the
matter in light of the evidence that Abdullah had acted on Phatela
instruction in removing
the garment from the shop floor.
7.5
The arbitrator also overlooked the evidence
of Phatela and Nape, which vindicated Abdullah.
7.6
The arbitrator failed to have regard to the
guiding provisions of the Labour Relations Act, schedule 8 items
2(1), and 3(1) to 3(5)
inclusive. No further details of why this
claim was made were provided.
[8]
At the time the matter was heard,
additional grounds of review had been mentioned in the heads of
argument filed on behalf of Abdullah
by the South African Equity
Workers’ Association. However, the Court is bound to consider
only those grounds which are raised
in the founding and supplementary
affidavits.
Evaluation
[9]
In relation to the complaint about the
absence of a Portuguese interpreter, this was never an issue raised
as a problem by either
of the applicants at the arbitration
proceeding. The arbitrator can hardly be blamed for being unaware of
this need if it was not
brought to his attention that the applicants
were unable to understand what was being said in the proceedings or
were unable to
give any evidence or make representations on this
account.
[10]
The essence of Ms J Nape’s testimony
was that she had marked the item down because it was on the rail
where the sale items
were, which were being marked down to 50%, and
the team leaders had told her that it was not part of a range but an
oddment. She
testified that she would have marked down even if she
had not been personally interested in buying the item. This evidence
was
corroborated by Jassat who said the staff who were marking the
discounts would not know which items were oddments and which were
not. The importance of her evidence was that she only marked the
skirt down to 50 % because that is what she was told to do.
[11]
The question of inconsistent treatment
being meted out was not an issue that the employer was challenged on
during the arbitration,
and was only raised once by Abdullah, and
only under cross-examination. An arbitrator cannot be criticised for
not dealing with
an issue that the employer’s witnesses were
not asked to comment on by the applicants.
[12]
The evidence of Jassat was that Abdullah
knew that the skirt was not an oddment. Abdullah also moved the other
items in the range
from the shop floor at Phatela’s request,
but if she had genuinely believed that the item was correctly marked
at 50% discount,
she would have queried why it was necessary to move
the other items from the shop floor and put them in the main store
upstairs.
He contended that the only reason for removing the other
items marked at 30 % from the floor late in the day, was that Phatela
became aware that sale of the under-priced skirt was discovered by
Jassat and it was necessary to conceal the fact that it was part
of a
range and not an oddment. There was no rational reason for removing
the other similar items off the shop floor. Moreover,
it was also
well known that permission was needed from someone more senior like a
manager or director if stock was to be removed
in bulk from the shop
floor. This practice was also confirmed by Ms Munyai, a supervisor,
in her testimony. Neither Phatela nor
Abdullah provided a cogent
business related explanation for this behaviour, and when the
director of the company, Mr F Bhamjee,
gave evidence he was not
challenged when he testified that Abdullah had no reason to be moving
garments off the floor at 17h00,
especially given that she was a team
leader upstairs and in the absence of instructions from a manager.
[13]
The arbitrator failed to decide if there
was a well-known ruling which had been breached by the applicant. In
fact there was no
material dispute arising from the evidence about
the practice of distinguishing oddments from a range of items and the
rules for
discounting range items and oddments.
[14]
Ought the arbitrator to have determined the
matter in light of the evidence that Abdullah had acted on Phatela’s
instruction
in removing the garment from the shop floor? It is true
that Abdullah had acted on Phatela’s request, but she never
questioned
why the remaining garments in the range had to be removed
upstairs when Phatela told her that there was a problem with the
price
of the skirt, which Phatela was arranging to be bought by
another person on her own behalf. The issue was whether Abdullah had
collaborated with Phatela’s scheme to obtain the garment at a
50 % discount. In this regard there was also the eyewitness
testimony
of Ms Mokgosi who said she saw Abdullah give Phatela an orange
sticker, which was used for oddments, to place on one
of the skirts
on the shop floor that had no markings. Mokgosi also testified that
there were five or six of the skirts forming
part of a range. Her
testimony was unchallenged in any important respect by either Phatela
or Abdullah.
[15]
It is unclear why Abdullah contends that
the evidence of Phatela and Nape, which vindicated Abdullah. Insofar
as Nape’s evidence
is concerned, when considered in its
totality, it does not vindicate Abdullah. Phatela’s version in
her evidence in chief
was that the skirt in question was not the same
as ones on the floor (thereby implying it was an oddment) and that
when she saw
the sold items had been retained by Jassat she went to
Abdullah and said it seemed as if there was a problem with the item
and
asked her to take the other skirts off the floor and check them.
One only has to state this version to see the inherent difficulty
it
contains: if the skirt was not the same as the others on the floor,
what point would be served by checking the other skirts?
Later, under
cross-examination, Phatela struggled to advance a justification for
the removal of the items from the shop floor.
Further, once it became
difficult to persist with the claim that the skirt was not part of a
range, Phatela shifted to suggest
it had a different code from the
other similar skirts and for that reason was considered an oddment.
[16]
On the question of the arbitrator
supposedly failing to have regard to the guiding provisions of the
Labour Relations Act, schedule
8 items 2(1), and 3(1) to 3(5), no
specific support for such claims were advanced.
[17]
The
test for review on grounds of the reasonableness of an arbitrator’s
evaluation of the evidence was formulated in the following
way in
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus
Curiae)
[1]
.described
the new test as being whether:
“…
the
award was one that a reasonable decision maker could not reach.
That
test involves the reviewing court examining the merits of the case
'in the round' by determining whether, in the light of the
issue
raised by the dispute under arbitration, the outcome reached by the
arbitrator was not one that could reasonably be
reached on the
evidence and other material properly before the arbitrator. On this
approach the reasoning of the arbitrator assumes
less importance than
it does on the SCA test, where a flaw in the reasons results in the
award being set aside
.
The reasons are still considered in order to see how the arbitrator
reached the result.
That
assists the court to determine whether that result can reasonably be
reached by that route. If not, however, the court must
still consider
whether, apart from those reasons, the result is one a reasonable
decision maker could reach in the light of the
issues and the
evidence
.”
[2]
[18]
In this instance, for the reasons stated
above, I conclude that the arbitrator’s findings are ones that
a reasonable arbitrator
could have reached on the evidence before
him, quite apart from his own justification for doing so.
Consequently, the review application
must fail.
Order
[19]
The review application is dismissed.
[20]
No order is made as to costs.
R
LAGRANGE, J
Judge
of the Labour Court of South Africa
APPEARANCES
For
the Applicant: A P Landman (pro bono)
For
the First Respondent: S U Roeloffs instructed by De Villiers & Du
Plessis
[1]
(2013) 34
ILJ
2795
(SCA) at 2801, para [11]
[2]
At 2802, para [12].(emphasis added)