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[2015] ZALCJHB 57
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Shoprite Checkers v Commission for Conciliation Mediation And Arbitration and Others (JR953/13) [2015] ZALCJHB 57 (25 February 2015)
REPUBLIC OF SOUTH AFRICA
THE LABOUR COURT, JOHANNESBURG
Case No: JR953/13
DATE: 25 FEBRUARY 2015
Not Reportable
In the matter between:
SHOPRITE
CHECKERS
.........................................................................................................
Applicant
And
COMMISSION FOR CONCILIATION
MEDIATION AND
ARBITRATION
..........................................................................
First
Respondent
DIVID DIBAKWANE
N.O
......................................................................................
Second
Respondent
RAWU
..........................................................................................................................
Third
Respondent
BP
MAHLANGU
......................................................................................................
Fourth
Respondent
Heard: 26 November 2014
Delivered: 25 February 2015
Summary: Review application. The Commissioner’s
decision not unreasonable. The review application dismissed with
costs.
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
under case number GATW 1873 – 12 in terms of which
the second
respondent (the Commissioner) found the dismissal of the fourth
respondent (the employee) to have been unfair. It was
for this reason
that the applicant was ordered to reinstate and compensate the
employee.
Background
facts
[2]
The
applicant is a company duly registered in terms of the company laws
of South Africa and operates several retail stores across
the
country. It employs approximately 110,000 employees upon whom it
relies on for trust and honesty.
[3]
According
to the applicant because of its vulnerability in relation to
invoicing and receipt of stock, it relies on receiving clerks
to
ensure that the correct stock has been delivered. The stock received
is checked against the invoice produced by the supplier.
[4]
The
employee who was employed as a receiving clerk based at the Silverton
branch of the applicant was charged with misconduct relating
to the
stock which is alleged to have been delivered from Parmalat but which
could not be accounted for. The charge proffered against
the employee
reads as follows:
‘
Serious
misconduct that on 24/05/2012 you failed to comply with the company’s
receiving rules and procedures. This resulted
in a POD being issued
for goods on invoice nr 403720 (Parmalat) for goods that had not been
received into the branch. Resulting
in a loss to the company.’
[5]
The
outcome of the disciplinary hearing was that the employee was found
guilty and dismissed for that reason. Assisted by his union
the
employee referred a dispute concerning the alleged unfair dismissal
to the CCMA and the outcome thereof was that the dismissal
was unfair
as stated earlier.
[6]
The
issue that gave rise to this matter arose from an invoice which was
signed by Mr Gryling, the manager of the store where the
employee was
based.
[7]
The
case of the applicant during the arbitration hearing was based on the
responsibility of the employee as the receiving clerk.
He signed for
the receipt of the perishable stock which the supplier had on the
basis of the invoice delivered but as stated earlier
its whereabouts
was unknown.
[8]
The
case of the applicant is that the employee was responsible for the
receipt of the stock is based on the testimony of Mr Daniels.
His
testimony focused mainly on the process of receiving goods.
According
to him, the applicant orders goods from the suppliers via a catalogue
where the qualities and the quantities of the goods
to be delivered
are placed.
[9]
He
further testified that
on
arrival at the gate the driver of the delivery truck will give the
invoice of the goods to be delivered to the receiving clerk.
The
receiving clerk will then take the invoice to the capturing clerk who
will then capture and match the goods to see whether
the order number
is the same. Thereafter the receiving clerk will open the outer
receiving gate for the delivery truck to move
into the delivery bay
if it is free. The stock will then be offloaded and then after taking
it the receiving clerk will then lock
the gate. The receiving clerk
will then go into the cage to check the invoice and see if the
quantity of the stock delivered is
correct.
[10]
Once
the receiving clerk is satisfied that the stock on the invoice
correspond with that which has been delivered, it is checked
for
quality by the IBI, an independent company contracted to perform such
a function to the applicant. The IBI clerk will if satisfied
with the
quality of the goods delivered, place the stamp on the invoice, place
the GRN number on it and give it back to the receiving
clerk
who is then expected to sign the GRN stamp and to insert on the stamp
GRN number on the stamp.
[11]
In
relation to what happened in this case, Mr Daniels testified that the
documentation for the day in question indicates that the
receiving
clerk, being the employee entered the GRN number and signed the goods
received, indicating on the stamp that the number
of stock received
on that day was 58.
[12]
During
cross examination, Mr Daniels denied that the people who receive
perishable stock were only managers. He also disagreed with
the
employee's proposition that once the delivery truck was inside the
cage, the receiving clerk will call a manager who will then
go into
the cage with the driver of delivery truck to check the quantity of
the stock inside the cage. He contended that the manager
may come and
do the spot check.
[13]
The
case of the employee was that although his signature appears on the
document, he did not receive the stock in question. He also
disputed
the validity of his signature as it appeared on the document.
[14]
The
employee further disputed that it was his responsibility to receive
perishable stock. He contended that the stock in question
should have
been received by Mr. Greyling. He insisted that in his 30 years of
service with the applicant, he had always known
that receipt of
perishable goods, such as the ones in question, was received by the
managers and not the receiving clerks.
[15]
According
to the employee, the responsible person to receive perishable stock,
as was the case on the day in question, was the manager,
Mr Greyling.
He did not, however, dispute that the number reflecting the quantity
of the stock on the invoice as being 58 was entered
by him.
[16]
The
hand writing expert testified that the signature on the invoice was
not that of the employee, however, the number 58 reflecting
the
quantity of the stock delivered on the day in question was in all
probabilities that of the employee.
Grounds of
review
[17]
The
applicant contends, in the founding affidavit, that the Commissioner,
in accepting the evidence that the employee was not involved
in the
dishonesty perpetrated by Mr Greyling failed to consider the evidence
properly presented before him. It is further contended
by the
applicant that in concluding that there was no evidence that stock
was not received amounted to failure to apply the rules
of evidence
properly.
The
arbitration award
[18]
In
arriving at the decision that the dismissal was unfair the
Commissioner firstly summarized the evidence of the witnesses who
testified during the proceedings. He then evaluated the evidence and
focus mainly on whether the receiving clerks were responsible
for
receiving perishable goods. Attention was also paid to the question
of whether the rule in terms of which the employee had
been charged
with was in force at the time the offense was alleged to have been
committed.
[19]
The
Commissioner also found that there ‘was not evidence led to
prove that the respondent was consistent in dismissing the
employees
who committed misconduct like the one committed by the applicant.’
[20]
The
Commissioner also found that although reference is made in the charge
to ‘… Resulting in a loss to the Company
no evidence was
led by the applicant in that regard.’
The applicable
legal principles
[21]
The
legal principle to apply when considering a review application is now
well known. The power of the court to interfere with an
arbitration
award does not extend to the determination of the correctness of the
award but is to evaluating whether the arbitration
award meets the
constitutional standard of reasonableness. The enquiry to conduct is
stated in Sidumo in the following terms:
“
[1
[22]
In
a case where the complaint on review is about the conduct of the
arbitrator, the court would be entitled to interfere with the
arbitration award where it has been shown that the arbitrator's
conduct resulted in an outcome that is unreasonable.
[1]
Evaluation
[23]
Assuming,
that the applicant is correct that the approach adopted by the
Commissioner with regard to the issue of inconsistency
was wrong,
that is not, however, decisive of the determination of whether the
dismissal was fair or otherwise. The same applies
with regard to the
finding that the applicant did not suffer any loss as a result of the
alleged misconduct of the employee.
[24]
I
turn to deal with the issue which in my opinion is determinative of
the fairness or otherwise of the dismissal of the employee.
It is
apparent from the reading of the record that the Commissioner was
faced with two conflicting versions in relation to the
facts
concerning the application of the rule for which the alleged
misconduct of the employee was based on. In this respect, the
Commissioner accepted the version of the employee which was according
to him supported by the version of Ms Kekana who was also
previously
a receiving clerk for a period of eight years and had worked for the
applicant for about 20 years.
[25]
The
Commissioner further accepted the version of the employee that he did
not commit any offence and that the offense for which
he was accused
of was committed by Mr. Greyling.
[26]
The
Commissioner rejected the version of Mr. Daniels who testified as
indicated above on behalf of the applicant on the basis that
although
he presented evidence that the two invoices showed receipt of the
goods, he led no evidence to that effect.
[27]
In
my view, the Commissioner’s conclusion cannot be faulted for
unreasonableness, regard being had to the totality of the
facts and
the circumstances of this matter.
[28]
In
my view, the challenge to the Commissioner's arbitration award would
still be unsustainable even if it was to be found that his
finding
that there was no fair reasons to dismiss the employee was
unreasonable. The further inquiry in that regard would be to
determine whether the dismissal sanction was in the circumstances
fair including the determination of whether there was proof of
breakdown of the trust relationship between the parties.
[29]
Although
the charge against the employee labels the offense as serious, there
is no evidence to support that allegation. The document
titled
"Shoprite Company Rules" submitted during the arbitration
proceedings do not specifically deal with the offense
for which the
applicant was charged with. It, therefore, does not assist in
determining the seriousness of the offense in order
to assess whether
the dismissal was a fair sanction.
[30]
The
other document submitted during the arbitration proceedings is titled
"Receiving Rules." This document also does not
assist in
the assessment of whether the offense can be regarded as a serious,
the breach of which would warrant a dismissal.
[31]
It
is also important to note that the applicant did not lead any
evidence indicating that the trust relationship between the parties
has broken down.
[32]
Based
on the above, I am of the view that the applicant has failed to make
out a case warranting interference with the Commissioner’s
arbitration award. Accordingly, the applicant’s review
application stands to be dismissed. I see no reason in law and
fairness
why costs should not follow the results.
Order
[33]
In
the premises, the applicant’s review application is dismissed
with costs.
Molahlehi, J
Judge of the Labour Court
Appearances
:
For the Applicant: J Jones of Norton Rose Fulbright South Africa.
For the Respondent: Mr Khoza OF Retail and Allied Workers Union.
[1]
The
approach to adopt in this regard has been set out in
Herholdt
v Nedbank Ltd
and
Another
(
2013)
34
ILJ
2795
(SCA)
and
Goldfields
Mining South Africa (Pty) Ltd (Kloof Mine) v CCMA and Others
(2014)
35
ILJ
943 (LAC)
.