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[2015] ZALCJHB 207
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Sithole v Gregor and Others (JR3082/12) [2015] ZALCJHB 207 (16 July 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
no: JR 3082/12
FIHLOKWAKHE
SITHOLE
Applicant
and
COMMISSIONER ROB
MAC GREGOR
First Respondent
CCMA
Second Respondent
TIBER BRANDS ALBANY
BAKERY
Third Respondent
Heard:
10 July 2015
Delivered:
16 July 2015
JUDGMENT
HULLEY,
AJ
Introduction
[1]
The
applicant was employed by the third respondent as a despatch clerk.
He was dismissed and referred an unfair dismissal
dispute to the
second respondent. The matter was, it appears, conciliated and
when conciliation failed was arbitrated by
the first respondent.
[2]
The
first respondent found that the applicant’s dismissal was not
unfair.
[3]
The
applicant in these proceedings seeks to review and set aside that
award.
Factual background
[4]
On
8 March 2012 the applicant was charged with theft of bread to the
value of R23 656.50. The charge sheet indicates
that “from
the period dated 02/01/2012 until 25/01/2012, you allegedly stole
bread to the value of R23 656.50”.
[5]
Alternative
charges of dishonesty and theft arising from the same facts were also
brought.
[6]
The
charge sheet indicates that the details of the investigation
conducted by the third respondent showed that the applicant had
loaded various amounts of bread for “route AJB” on 9
separate occasions, these being 2, 4, 11, 13, 16, 17, 18, 24 and
25
January 2012.
[7]
A
disciplinary inquiry ensued and the applicant was found guilty and
dismissed. The chairperson did not specify in his findings
whether he found that the applicant had committed misconduct on each
of the nine dates specified in the charge sheet, but only
that he was
guilty of dishonesty / theft.
[8]
The
applicant appealed against the findings of the chairperson, but the
internal appeal failed.
[9]
Aggrieved
at his dismissal the applicant referred a dispute to the second
respondent which was ultimately arbitrated by the first
respondent.
[10]
At
the arbitration proceedings the first respondent called a single
witness, Mr Abraham Tsotetsi, and the applicant testified on
his own
behalf.
[11]
Tsotetsi’s
testimony related mostly to what he had observed on a video recording
which was produced at the arbitration proceedings.
He also
testified on the various procedures of the company and compared that
with what he had observed on the video recording.
[12]
The
third respondent was a bakery. The applicant was a despatch
clerk who was responsible for checking and despatching bread
from one
of the despatch bays. Tsotetsi testified that an order for
bread would be placed with the third respondent’s
telesales
department. An invoice would then be produced (presumably by
the telesales department) and drivers would then attend
at the
telesales department to obtain a copy of the invoice. The
driver would then produce the invoice to the despatch clerk
who was
responsible for considering the invoice and ensuring that the number
of loaves of bread which were loaded onto the delivery
van was
consistent with the number indicated in the invoice.
[13]
Invoices
were generated on one day and deliveries relating to those invoices
were executed the following day. A driver would
then take a
copy of the original invoice and the loaves of bread ordered and
would repair to the customer. On exiting the
premises the
driver would present the invoice to the security guards who would
check to ensure that the number of loaves of bread
on the van were
consistent with the number reflected in the invoice.
[14]
No
evidence was led by either party on this score, but the loaves of
bread would presumably then be delivered to a customer and
the
customer would in all probability have to sign some documentation as
proof of delivery which, presumably, ought to be returned
to the
company for its record purposes in case a dispute arose in the future
between the customer and the third respondent.
[15]
According
to Tsotetsi the company had three shifts. The despatch clerk
from each shift would compile a reconciliation in respect
of the
activities during his shift. The evidence of Tsotetsi was that
these reconciliations would be compiled on a daily
basis and a
combined reconciliation would subsequently be prepared by Mr Emmanuel
Sithole (no apparent relation to the applicant).
It is not
entirely clear from the evidence of Tsotetsi, but it appears that the
combined reconciliation was compiled on a monthly
basis.
[16]
Tsotetsi
explained that the individual reconciliations revealed no
discrepancies; it was only when the combined reconciliations
were
prepared that the problem was discovered. An investigation then
ensued and in the course of the investigation Tsotetsi
spoke to Mr
Dimitri Nkosi, the driver of a company named Mazambane, that was
responsible for deliveries. It appears that
the applicant was
present during this meeting and that the video recordings which were
ultimately used at the arbitration proceedings
were then shown to
both Nkosi and the applicant. Tsotetsi explained that when
confronted with the video recordings, Nkosi
(with reference to the
applicant) declared:
“
Let us tell
Mr Tsotetsi exactly what we have been doing. Kaizer [who is the
applicant in this matter] said ‘hey boy,
I am not coming to
play here’.”
[17]
Tsotetsi
played the entire video recording to the two. He stated that
the applicant then began crying and stated that the
recordings would
get him fired.
[18]
The
video recording was not placed before me and the representatives of
both parties agreed that it was not necessary to do so.
Although there does not appear to be any formal agreement on what was
observed on the video, there is sufficient information provided
by
Tsotetsi to allow me to understand in broad outline what he observed.
[19]
According
to Tsotetsi the applicant could be seen loading bread onto the
delivery van in what he described as “stacks”.
I
imagine these are crates of some sort. At any rate, it appears
that there were different sizes of such stacks and each
stack,
depending on its size, held a specific number of loaves. Based
on this, Tsotetsi was able to calculate the number
of loaves of bread
loaded onto the delivery van with reference to the number of stacks
loaded in each video clip. (There
was no evidence led by either
party on whether only fully loaded crates were despatched or whether
despatch clerks also loaded
partially loaded crates).
[20]
Tsotetsi
then compared the number of loaves loaded onto the van against the
number of loaves ordered as reflected in the relevant
invoices and
concluded that more bread was loaded onto the vans than had been
ordered.
[21]
Tsotetsi
testified that the reconciliations performed by Emmanuel Sithole
revealed that a substantial number of loaves of bread
were
disappearing. This led to an investigation which ultimately
resulted in the implication of the applicant.
[22]
While
Tsotetsi testified specifically in relation to an invoice dated 10
January 2012 he also testified that the video recordings
covered all
the dates reflected in the charge sheet. The first respondent
afforded the applicant’s representative an
opportunity to
consider all the recordings and to challenge any aspect of those
recordings which he wished to. He declined
the invitation.
[23]
In
cross-examination of Tsotetsi the applicant’s representative
noted that the charge sheet did not include 10 January 2012.
He
also levelled various challenges at the invoices and the
reconciliations which were handed in. The essence of his
challenge,
it appears, was that the invoices which were produced at
the hearing, were, so it was put, not those which the applicant had
received.
Tsotetsi explained that the original invoice would be
dispatched together with the loaves of bread and would ultimately be
retained
by the customer. I have indicated previously that
while no evidence was led on this issue the third respondent would in
all
probability have had to have a system in place which required the
customer to sign some form of proof of delivery. It appears
that what the applicant’s representative had in mind was this
proof of delivery. Unfortunately, he did not express
himself
properly, his focus being on the invoice itself.
[24]
The
invoices which Tsotetsi handed up at the arbitration proceedings were
those which he said had been downloaded from the company’s
“system”.
[25]
Tsotetsi
testified that the applicant could be observed in some of the video
frames checking the loaves of bread. In one frame
he notes that
the applicant “has got ink in his hand and a calculator”.
It is unclear why the company did not
produce the reconciliations
performed by Tsotetsi himself. It appears that this may have
been based upon Tsotetsi’s
view that it would reflect nothing
because the applicant merely recorded therein what was recorded on
the invoice. It was
only when the video recordings were
compared to the invoices that the discrepancy was realised.
[26]
In
his evidence the applicant gave different versions as to who loaded
the van. Initially he testified that the despatch clerk
would
load the bread onto the truck. In this regard, he stated “you
[referring to the despatch clerk] will check how
many loaves of bread
he [the driver] wants [as per the invoice] and you will go and
load”. Later he testified that
the driver’s
assistant would load the bread and not him personally. When
asked whether he loaded the truck he stated
“no, there are
assistants who load bread”. Still later, however, he
testified that “my job was to check
the truck, or load what was
written on the invoice”. Shortly thereafter he explained
“I don’t fetch the
bread I just open the bay and the
driver will take out the bread and his assistants”. (In
the pleadings in the present
review application, it was common cause
that the dispatch clerk did not actually load the bread onto the
vans. In these circumstances,
it seems that the applicant’s
evidence must be understood on the basis that he was the person
responsible to oversee the
loading of bread onto the van but did not
actually do the loading himself.)
[27]
Under
cross-examination the applicant indicated that while he had watched
the video he had not counted how many loaves of bread
were loaded as
reflected on the video. He also indicated that he was unable to
recall whether his stock had balanced on 10
January 2012.
The arbitration award
[28]
In
his award the arbitrator found that the applicant’s testimony
was not reliable. He pointed to the fact that the applicant
had
denied knowing many of the procedures which he ought to have known,
an example of which related to the reconciliation process.
The
arbitrator pointed out that in the excerpt from the video recording
it was clear that the number of loaves of bread loaded
could be
counted using the video.
[29]
The
first respondent pointed out that at the disciplinary hearing the
applicant stated that he had made a mistake when counting
whereas in
the arbitration proceedings before him the applicant claimed that he
could not count the number of loaves making use
of the video
footage.
[30]
Given
the frequency of the excess number of loaves of bread loaded, said
the arbitrator, it was clear that the applicant had not
made a
mistake and therefore, on the probabilities, the applicant must have
been fully aware of the number of loaves of bread loaded.
“At
best” for the applicant his misconduct consisted of his failure
to report the matter to his superiors, and at worst
he was “guilty
as charged” for colluding with the driver to defraud the
company.
[31]
With
regard to the question of inconsistency of treatment the arbitrator
found that he could see no reason why Tsotetsi or Sibisi
should have
been charged. (Sibisi was one of the other despatch clerks who worked
a different shift from the applicant.)
[32]
The
arbitrator found that the actions of the applicant were
“fundamentally dishonest and he showed no remorse”.
He was therefore satisfied that the trust relationship had broken
down and that dismissal was the appropriate sanction.
The grounds of review
[33]
The
applicant in his papers before this court challenged the arbitration
award on various bases.
[34]
First,
insofar as the question of inconsistency was concerned, he pointed
out that more than five security officers were responsible
for
checking the truck before it left the third respondent’s
premises and that he did not work alone and “the supervisors
and managers were also involved and the securities together the
drivers and crew members”.
[35]
He
complained that notwithstanding the aforesaid the third respondent
“chose to dismiss the applicant only and all these other
people
who were working with the applicant were left behind not
dismissed”.
[36]
Secondly,
the applicant contended that he had not been found in possession of
the third respondent’s property and that no
evidence had been
produced to prove that he had stolen the bread or had been found
loading extra bread onto the van. In this
regard, he pointed
out that he was not the person who actually loaded bread onto the
van.
[37]
Thirdly,
he contended that the third respondent’s entire case was
premised upon hearsay evidence and pointed to the failure
of the
third respondent to call either Nkosi or the security guard or any of
the security guards.
[38]
Fourthly,
the applicant contended that the arbitrator was biased “and
exceeded his powers for no reason” and that his
award was
unjustifiable. In this regard, the applicant contended that the
arbitrator had failed to apply “the best
evidence rule”
and relied instead on the allegations of Tsotetsi.
My findings
[39]
In
my view there is no merit in any of these submissions.
[40]
With
regard to the question of consistency it was clear from the testimony
of Tsotetsi as to why the other people who had been identified
by the
applicant had not been dealt with by the company. They were the
employees of third parties.
[41]
Insofar
as there may have been wrongdoing on the part of any person employed
by the third respondent (such as supervisors and other
despatch
clerks), there was insufficient evidence to demonstrate that they
were guilty of any wrongdoing at all and, even if they
were, they
were guilty of a dereliction of their duties in failing to detect the
applicant’s wrongdoing, not theft.
[42]
At
best for the applicant, the evidence relating to all the other checks
and balances could be relied upon by him to demonstrate
precisely how
difficult it would have been for him to have carried out the alleged
thefts. It was insufficient to rely upon
it to support a claim
for inconsistency.
[43]
At
any rate, having regard to the video footage it is clear that the
company’s checks and balances were breached. He
provided
no plausible explanation for what was observed on the video
recordings and contented himself with merely challenging the
bona
fides
of the third respondent.
[44]
The
applicant’s contention that he was not found in possession of
the bread is, with respect, neither here nor there. The
entire
basis of the charge related to the fact that the applicant had
successfully managed to avoid detection and steal the loaves
of bread
until subsequent investigations revealed the theft.
[45]
I
do not agree with the applicant’s contentions that the third
respondent’s entire case was premised upon hearsay evidence.
The evidence of Tsotetsi was supported by a video recording the
authenticity of which was not in dispute. This recording
coupled with the testimony of Tsotetsi and the invoices established
the guilt of the applicant.
[46]
What
is a matter of concern is the failure of the company to produce
evidence regarding the system and whether the invoice produced
from
the system was capable of being corrupted. The company was not
able to produce the original invoice. It had good
reason for
its failure: the original invoices were with the customers. It
was, however, able to print duplicates from the
system. It
seems to me that the focus of the cross-examination and the challenge
to the third respondent’s case ought
to have been in regard to
the reliability of the system and duplicates printed from it.
[47]
The
focus of the cross-examination was, however, not directed at the
system per se, but rather at the fact that the original invoice
had
not been produced. The original invoices could, however, not be
produced by the third respondent itself. They could,
of course,
be subpoenaed. In the present case, the arbitrator, during the
arbitration proceedings, pointed out that the applicant
ought to have
requested whatever documentation he wished to have beforehand.
[48]
Insofar
as it is contended that the arbitrator was biased, no factual basis
for that contention has been advanced and I am not prepared
to
consider it.
[49]
The
applicant’s submission that the arbitrator exceeded his powers
by failing to apply the best evidence rule presumably relates
to the
failure to receive the original invoices. I have already
explained what became of the original invoices.
[50]
With
regard to the justifiability of the award, it is apparent from the
record that there was ample evidence available to the arbitrator
to
arrive at the conclusion which he did. On the face of it, the
decision arrived at appears to be the correct one.
It is
certainly not so unreasonable that no reasonable arbitrator could
have arrived at it.
[51]
I
have, as I have indicated previously, one misgiving which relates to
the failure to lead evidence on how the system operated.
I am,
however, not satisfied that this issue was sufficiently challenged
during the course of the hearing and it was in fact not
challenged as
a ground of review in the present proceedings.
[52]
In
all the circumstances, I am satisfied that the application must fail.
[53]
With
regard to the question of costs, I am satisfied that costs ought, in
the interests of fairness and justice, to be awarded against
the
applicant. I say this primarily due to the fact that the
applicant, without any apparent basis, accused the third respondent
of deliberately fabricating evidence against him in order to get rid
of him. Although the findings of the chairman of the
disciplinary inquiry were not strictly speaking raised in the
arbitration proceedings, it is apparent therefrom that the applicant
was in fact held in high esteem within the company. I have
little doubt that in appropriate circumstances a party is entitled
to
allege and pursue a claim that the company has fabricated evidence
against him. However, where such a claim is made, it
must be
done responsibly, evidence must be produced and must be pertinently
put to the witnesses of the company. In the present
case it was
not raised in a responsible fashion, no evidence was produced to
support the theory and notwithstanding that was pursued
in argument
before me. No explanation could be provided, however, as to the
absence of the factual substratum to support
this theory.
Conclusion
[54]
In
all the circumstances, the application is dismissed with costs.
__________________
Hulley, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicant:
Mr Bayi of Bayi Attorneys
On
behalf of the Respondent:
Mr M. Khoza of Edward Nathan Sonnenbergs Inc