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[2015] ZALCJHB 234
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Massbuild (Pty) Ltd t/a Builders Warehouse v Commission for Conciliation, Mediation And Arbitration and Others (JR1685/12) [2015] ZALCJHB 234 (4 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR1685/12
DATE:
04 AUGUST 2015
Not Reportable
MASSBUILD
(PTY) LTD t/a BUILDERS
WAREHOUSE
...................................................
Applicant
And
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
..........................................................................
First
Respondent
COMMISSIONER
D DIBAKWANA,
N.O
............................................................
Second
Respondent
P
J
LINDEQUE
...........................................................................................................
Third
Respondent
Heard:
30 July 2015
Delivered:
4 August 2015
Summary:
Section 145 review application –
commissioner’s finding that employee not guilty of unauthorised
possession of company
property and that dismissal procedurally unfair
set aside on review.
JUDGMENT
MYBURGH,
AJ
Introduction
[1]
In his award, the second respondent (the
commissioner) found the dismissal of the third respondent (the
employee) substantively
and procedurally unfair, and awarded him six
months’ remuneration in compensation. This in circumstances
where the employee
did not seek reinstatement.
[2]
The
applicant (the company) now seeks to review the award in terms of
section 145 of the LRA.
[1]
Although the matter was originally opposed by the employee, he has
since withdrawn his opposition – it having been agreed
between
the parties that, in the event of the company succeeding on review,
it will not seek costs against the employee. The matter
was thus
heard on an unopposed basis.
The
employee’s dismissal
[3]
The employee was employed as a departmental
manager at the company’s Centurion store. He was dismissed in
January 2012 after
having been found guilty of the charge of “being
in unauthorised possession of company merchandise when searched at
the search
bay on 20 December 2011”.
[4]
The essential facts surrounding the
employee’s dismissal were as follows. On 8 December 2011, the
employee had purchased 18
Rolson products at the store to the value
of some R1200. On 20 December 2011, when leaving work, the employee
was subjected to
a search in a search cubicle. The search was carried
out by Magane (a security guard), with Chauke (another security guard
who
was assigned to searching women on that day) being in the
vicinity. Both of the security guards worked for a company called
SVA.
On the company’s version, in the process of conducting the
search, Magane discovered a Rolson emergency cell phone charger
in
the employee’s bag, which bag had been stored in a storeroom
that day. (There is no dispute that the charger was on sale
at the
store and was valued at about R100, and that the employee was unable
to produce any proof of purchase.) Magane brought the
issue to the
attention of Chauke, and the matter was ultimately escalated to York
(a manager and the initiator at the employee’s
disciplinary
inquiry). The following day, York procured written statements from
the employee and the two security guards. In the
process, the
employee suggested that he undergo a polygraph test, which was
subsequently undertaken and “failed” by
the employee.
[5]
As mentioned above, a charge of
unauthorised possession was then brought against the employee, and he
was dismissed after being
found guilty thereof at a disciplinary
inquiry. (For what it is worth, the employee subsequently arranged
for another polygraph
test by a different examiner, which he
“passed”.)
The arbitration
award
[6]
At the arbitration, York and Chauke
testified for the company, whereupon the employee gave evidence in
his defence. Certain video
evidence was also presented.
[7]
Turning to his award, the findings made by
the commissioner in his award regarding the substantive fairness of
the employee’s
dismissal were as follows:
“
28.
The [company] led two witnesses whose evidence was circumstantial and
hearsay. Mr John York relied on what he was told by the
security
company and the statements of the two guards and the statement he
prepared and asked the [employee] to append his signature
in making
arrangements for the disciplinary hearing of which the outcome was
that the [employee] was found guilty and dismissed.
Tintswalo Beauty
Chauke was not a reliable witness as her statement …
contradicted with her oral evidence. In addition the
video footage of
20 December 2011 … clearly showed that she was just sitting in
her chair and swinging not paying attention
to the [employee] as well
as his bag.
29. … The
security guard that is alleged to have searched and found the item in
the [employee’s] bag was not at this
arbitration to testify. I
was not given any evidence about his whereabouts. He who alleges must
prove and the [company] failed
to prove the allegations in terms of
the charge levelled against the [employee]. …
31. … The
video footage disproved the testimony of Tintswalo Beauty Chauke. It
is clear in the video footage that [she] sat
in her chair all the
time the [employee] was at the staff entrance / search bay.
32. The [employee’s]
testimony that he requested the polygraph test to be done to clear
his name was supported by Mr John
York and [he] admitted that he made
arrangements for the [employee] to sit for the polygraph test. I do
not believe that a guilty
person can go [to] the length of asking for
the polygraph test to be done. The [employee] did not give me any
reason to doubt his
credibility.
33. The evidence
before me tells me that on the balance of probabilities the
[company’s] defence is dismissed therefore, the
[employee’s]
application succeeds.”
[8]
Although it is difficult to discern the
precise basis for the commissioner’s finding of procedural
unfairness, it appears
that he found the employee’s dismissal
procedurally unfair because “the [company] failed to do a
proper investigation
before the [employee] was asked to attend the
disciplinary hearing and the [employee] was dismissed on hearsay
evidence”.
[9]
In relation to relief, the commissioner
awarded the employee six months’ remuneration in compensation,
on the basis that the
employee did not seek reinstatement and had
been unemployed for six months.
Grounds of review
and evaluation
[10]
Mr Chiti (who appeared on behalf of the
company) advanced two main grounds of review in oral argument.
Firstly, that the commissioner
had misdirected himself in unduly
intervening in the cross-examination of the employee by the company’s
representative at
the arbitration. Secondly, that the commissioner
had gone wrong in finding that the employee had not been found in
unauthorised
possession of the charger, and ultimately finding the
dismissal substantively unfair. In addition to this, a third ground
of review
emerges from the review application – it being, in
effect, that the commissioner’s finding of procedural
unfairness
was unreasonable.
[11]
To begin with the
first
ground of review
, having read the
passages in the transcript relied on by Mr Chiti in argument, I am
not persuaded that the commissioner intervened
unduly, either by
asking questions himself or by putting a halt to a line of questions
pursued by the company’s representative.
The commissioner was
clearly intent on moving things along, as he was entitled to do in
terms of section 138(1) of the LRA. I do
not believe that the
commissioner deprived the company of a fair hearing. In the result,
the first ground of review fails.
[12]
Turning
to the
second
ground of review
,
in a case of unauthorised possession of company property, the
employer bears the onus for establishing that (i) company property
(ii) was in the possession of the employee (iii) without
authorisation.
[2]
During the
arbitration, the employee sought to advance a case that he was not
caught in possession of the charger, as he had not
seen Magane remove
the charger from his (the employee’s) bag, with the result that
Magane may have pretended to have found
it in his (the employee’s)
bag. (In the alternative, the employee contended that he had been
framed.) The commissioner appears
to have accepted the employee’s
primary defence, i.e. the
absence
of possession
.
[13]
In so doing, the commissioner failed to
apply his mind to the following materially relevant facts.
a.
Firstly, York’s unchallenged evidence
was that the defence advanced by the employee during their interview
on 21 December
2011 was that he had been framed (as opposed to not
having been found in possession of the charger).
b.
Secondly, the statement taken from the
employee by York on 21 December 2011, which the employee signed,
clearly records the
employee as having accepted that the security
guard found the charger inside his bag.
c.
Thirdly, the employee’s evidence that
how the statement stood to be interpreted is that he had accepted at
the time what Magane
had told him (i.e. that he had found the charger
in the bag), and not that this had actually occurred, is an untenable
construction.
It was also not something put to York under
cross-examination.
d.
Fourthly, the employee appears to have
accepted at his disciplinary inquiry that he was found in possession
of the charger, after
he opened his bag for it to be searched.
e.
Fifthly, although there were some
inconsistencies in Chauke’s evidence and although she did not
physically see Magane take
the charger out of the employee’s
bag, she testified about the discussion that ensued between Magane
and the employee after
the charger came to light (the contents of
which appears not to have been in dispute). It is clear from this
evidence that the
employee did not raise contemporaneously that the
charger had not been discovered in his possession.
f.
Sixthly, the employee’s answers under
cross-examination to a line of questions to the effect that a
reasonable person would
have kept an eye on his bag while it was
being searched, were unconvincing.
[14]
On
my assessment of the matter, if the commissioner had considered these
material facts and considerations, he would probably have
come to the
conclusion that the employee was caught in possession of the charger.
In the result, the award on guilt (to the effect
of an absence of
possession) is
prima
facie
unreasonable, with the remaining question being whether there exists
an evidentiary basis to displace the
prima
facie
case of unreasonableness.
[3]
[15]
To my mind, there is none, and none of the
findings made by the commissioner quoted above do so – this for
the following reasons.
The real significance of York’s evidence
lay in the interview he had conducted with the employee, which was
not hearsay.
The contradictions in Chauke’s evidence do not
appear to me to have been particularly material. Furthermore, while
Chauke’s
evidence that she was told by Magane that he had found
the charger in the employee’s bag was hearsay (insofar as this
was
tendered as proof of this having occurred in circumstances where
Chauke did not see this occurring), her evidence about what was
discussed between Magane and the employee was not (with this evidence
being of significance for the reasons mentioned above). In
addition,
contrary to what is stated by the commissioner, it was brought to his
attention that Magane no longer worked for SVA,
and that he could not
be traced by the Sheriff. And finally, I do not believe that much can
be read into the employee having volunteered
to undergo a polygraph
test.
[16]
In
the result, I am of the view that the commissioner’s finding
that the employee was not in
possession
of the charger, and thus not guilty of unauthorised possession of
company property, was unreasonable.
[4]
To my mind, this is a classic case of the distorting effect of a
misdirection by a commissioner (in this instance, the failure
to
consider material facts) having caused an unreasonable result in
relation to guilt.
[5]
[17]
Although
not considered by the commissioner, it is necessary to consider the
employee’s alternative defence (i.e. that he
was framed),
insofar as the company seeks to assail on review the overall finding
of substantive unfairness by the commissioner.
On an analysis of the
evidence, I am by no means persuaded that the employee discharged the
evidentiary burden
[6]
of
establishing this defence for the following reasons. Firstly, no one
had ever previously sought to frame the employee. Secondly,
although
employees had access to the storeroom, only two people (other than
the employee himself) entered the storeroom on 20 December
2011
(neither of whom appeared to have remained in there for long), with
one of them being a merchandiser employed by RMS (and
not by the
company). Thirdly, there was no evidence that the employee’s
bag (stored in the storeroom) was conspicuous or
known to others.
Fourthly, the employee himself could think of no reason for why any
staff member would have wanted to get him
dismissed. Indeed, he
painted himself as someone who had a cordial relationship with
everyone, including the security guards.
[18]
Having
rejected the employee’s alternative contention of having been
framed, what remains for consideration is whether the
sanction of
dismissal was appropriate, albeit that this was also not something
considered by the commissioner (because he found
the employee not
guilty). While the issue of penalty was not specifically addressed in
evidence, this seems to have been on account
of the fact that the
arbitration centred entirely around the issue of the employee’s
guilt. This notwithstanding, it appears
from the documentary record
that the company has in place a rule that the misconduct in question
attracts the penalty of dismissal.
Insofar as evidence was not led to
demonstrate the destruction of the employment relationship, in terms
of two recent judgments
by the LAC, it is not an invariable rule that
this has to occur, and a breach of trust can be inferred in the case
of certain instances
of misconduct.
[7]
In my view, unauthorised possession of company property (in the
circumstances that occurred herein) is one of them. There are some
200 – 300 employees engaged at the store, which sells all
manner of building supplies. It is difficult to imagine how everyone
could be given a chance to be found at least once in unauthorised
possession of company property before resorting to dismissal.
Dismissal for a first instance of such misconduct was fair in all the
circumstances of the matter.
[19]
Turning to the
third
ground of review
, to my mind, the
commissioner’s finding of procedural unfairness is plainly
unreasonable. As the company correctly avers
in its founding
affidavit, the disciplinary inquiry was convened after York had
obtained statements from the two security guards
and the employee
himself, and a polygraph test had been undertaken. Furthermore, the
minutes of the hearing reflect that the two
security guards gave
evidence at the disciplinary inquiry. Notwithstanding that the
commissioner’s factual findings on this
score are not
reasonably supported by the evidence, the fact that an employer does
not properly investigate a matter before a disciplinary
inquiry and
relies on a degree of hearsay evidence is, in any event, not grounds
for a finding of procedural unfairness.
Order
[20]
In the premises, the following order is
made:
1.
The arbitration award issued by the second
respondent is set aside on review;
2.
The award is replaced with an order that
the dismissal of the third respondent was fair;
3.
There is no order as to costs.
Myburgh, AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On behalf of the
Applicant: D Cithi of Mervyn Taback Inc
On
behalf of the Third Respondent: no appearance
[1]
Labour
Relations Act 66 of 1995
.
[2]
Continental
Oil Mills (Pty) Ltd v Singh No & others
(2013) 34
ILJ
2573 (LC) at para 27;
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
(2000) 21
ILJ
2698 (LC) at para 1.
[3]
See
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at para 33.
[4]
See
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para 110
[5]
See
Head
of the Department of Education v Mofokeng
[2015] 1 BLLR 50
(LAC) at para 33.
[6]
Where
an employee is found in unauthorised possession of company property,
the evidentiary burden shifts to him to justify such
misconduct. See
generally,
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others
(2011) 32
ILJ
2455 (LAC) at para 34.
[7]
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer
[2015] 4 BLLR 394
(LAC) at para 19;
Department
of Home Affairs and another v Ndlovu and others
[2014] 9 BLLR 851
(LAC) at para 18. The finding in
Edcon
Ltd v Pillemer NO & others
[2010] 1 BLLR 1
(SCA) at para 23, is thus not an invariable rule and
must be read in the light of the facts of the case.