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[2015] ZALCJHB 235
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Sepang v Dibakwane and Others (JR 2610/12) [2015] ZALCJHB 235 (4 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 2610/12
DATE:
04 AUGUST 2015
Not
Reportable
MAMPEKA
CHRISTINA
SEPENG
.......................................................................................
Applicant
And
DAVID
DIBAKWANE
..................................................................................................
First
Respondent
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
..............................................................................................
Second
Respondent
BARNETTS
.................................................................................................................
Third
Respondent
Delivered:
4 August 2015
JUDGMENT
TLHOTLHALEMAJE,
AJ
Introduction:
[1]
The applicant seeks an order to review and
set aside the arbitration award dated 19 September 2012 issued under
case number GATW195-12
by the first respondent (Commissioner) under
the auspices of the second respondent (the CCMA).
[2]
In the award, the Commissioner found that
the dismissal of the applicant (Sepeng) was substantively fair, and
had dismissed her
referral. The review application is opposed.
Background:
[3]
The third respondent is in the business of
retail of furniture and electrical appliances. Sepeng was dismissed
on 28 May 2012 at
the time that she held the position of Store
Manager. The dismissal followed upon a disciplinary enquiry into
allegations that
she had breached company policies by sharing her
password with her colleague, and also being negligent for failing to
ensure that
a stock clerk conducted a section stock take as required
by policy. The alleged transgressions had resulted in furniture in an
amount of R35 631.00 being stolen from the third respondent’s
branch in Hammanskraal.
[4]
An unfair dismissal dispute was referred to
the CCMA. The dispute came before the Commissioner for arbitration
and he found that
the dismissal was fair on the grounds that;
a.
the third respondent had proven that
Sepeng was aware of its rules regarding the use of password and also
of transactions policies;
b.
Sepeng was the custodian of the third
respondent’s policies and procedures as a branch manager;
c.
she had shared her password without
taking into account the password policy of the third respondent;
d.
Sepeng had not done a stock take for
the period between January 2012 and February 2012.
The
grounds for review:
[5]
The applicant’s grounds of review as contained in the founding
affidavit are in broad and unsubstantiated terms. In this
regard, the
applicant merely stated the following;
a)
the Commissioner’s award was not
justifiable in relation to the reasons given for it.
b)
The Commissioner failed to apply his mind
to the evidence and facts presented to him in the arbitration in
reaching his conclusion
that the applicant’s dismissal was
substantively fair.
c)
The Commissioner committed a gross
irregularity by failing to apply his mind to the evidence,
misunderstood the evidence, and attributed
motives to the applicant,
which could not reasonably be drawn to the evidence submitted.
d)
The Commissioner committed misconduct in
relation to his duties by disregarding relevant evidence and issuing
an award that indicates
that he failed to apply his mind to the facts
presented.
[6]
The grounds of review were further amplified in the applicant’s
supplementary affidavit, and in the written heads of argument,
with a
specific attack against the conduct of the Commissioner, wherein it
was alleged that he had committed gross irregularities
by;
a)
Limiting the applicant’s
representative’s questions to the extent that the latter was
frustrated that he had left the
hearing without cross-examination of
a witness being finalised;
b)
On numerous occasions refused the
applicant’s legal representative an opportunity to ask relevant
questions; refused the representative’s
requests for an
adjournment to obtain instructions on certain issues raised by the
third respondent; refused the applicant’s
requests for
adjournment to take medication; and refused the legal representative
an application for a postponement in order to
attend to his other
commitments as a commissioner at the Small Claims Court even though
it was already 16h50;
c)
By refusing the applicant an opportunity to
obtain alternative representation and opportunity to present evidence
thus depriving
her of a fair hearing;
d)
By failing to take into account that the
third respondent did not act consistently with regard to similar
misconduct committed by
other employees in the past, and historical
inconsistency was of huge importance;
e)
By not allowing the applicant an
opportunity to present her evidence in regards to inconsistency, and
thus essentially depriving
her of a fair hearing
[7]
In opposing the application, it was submitted on behalf of the third
respondent that it has strict stock control procedures
and
transaction system in place in order to address problems of stock
loss, and that each employee using its system had a password
which
was to be kept secret and not shared with anyone.
[8]
In regards to Sepeng and by virtue of her capacity as store manager,
the strict rules were even more important as her password
had
supervisory authority and could be used to override and alter
transactions. She had in breach of the rules and policy, shared
her
password with a number of employees, and this password was then used
by the Stock Clerk Mr Moepi, to steal furniture to the
value of more
than R35 000.00 from the third respondent. She had admitted to having
shared her password but denied having given
it to Moepi. This however
according to the third respondent did not matter as Moepi had used
her password in committing the theft,
and was subsequently dismissed.
The legal
framework in respect of review applications:
[9]
The review test is that as set out in
Sidumo
and another v Rustenburg Platinum Mines Ltd and others
[1]
,
and in this regard, the question to be posed is whether the decision
reached by the Commissioner is one that a reasonable decision-maker
could not reach on the material placed before him or her
[2]
.
[10]
In
Goldfields
Mining South Africa (Pty) Ltd v CCMA
[3]
the Labour Appeal Court in a further explication of the
Sidumo
test held that provided that the arbitrator gave the parties a full
opportunity to state their respective cases at the hearing,
identified the issue that he or she was required to arbitrate,
understood the nature of the dispute and dealt with its substantive
merits, the function of the reviewing court is limited to a
determination whether the arbitrator’s decision is one that
could not be reached by a reasonable decision-maker on the available
material
[4]
.
[11]
In
Herholdt,
the SCA further re-emphasized that the reviewing court should
intervene
in
circumstances where the decision of the Commissioner is “
entirely
disconnected with the evidence”
or is “
unsupported
by any evidence”
and “
involves
speculation by the Commissioner
”
[5]
.
Evaluation:
[12]
As already pointed out, the grounds of review as stated in the
founding affidavit are of a general nature and it is unclear
from the
founding affidavit as to what the basis of attacking the award is. It
is not sufficient in review applications for broad
generalised
statements to be made that an award ought to be reviewed due to
certain unsubstantiated factors such as not being not
justifiable in
relation to evidence which, which evidence is nevertheless not
identified; or that a commissioner failed to apply
his mind to the
evidence, or committed misconduct or that the award was one which no
reasonable decision maker could made. A foundation
must be laid for
such allegations to be sustainable.
[13]
The grounds of review as amplified in the supplementary affidavit and
in these proceedings as correctly pointed out by the
third respondent
appear to be directed towards the conduct of the Commissioner during
the arbitration proceedings. In this regard,
one would assume that in
the words echoed in
Goldfields
, the issue is whether the
Commissioner gave the parties a full opportunity to state their
respective cases at the hearing. In this
regard, if it is found that
the applicant was deprived of an opportunity to fully ventilate her
case, the Commissioner could not
possibly have arrived at a
reasonable outcome.
[14]
In his award, the Commissioner stated that he had allowed Mr Phahla,
an attorney, to represent the applicant. It had however
become clear
to the Commissioner during the proceedings that Phahla was
disruptive, and further that he was not properly briefed
on the
matter. In my view, this impression is fortified by the applicant’s
own submissions that the Commissioner had refused
to grant an
adjournment simply for Phahla to obtain further instructions from the
applicant in regards to certain material raised
during the
cross-examination of the third respondent’s witness.
[15]
In circumstances where as submitted on behalf of the third respondent
and as further recorded by the Commissioner that the
matter was
adjourned on 10 September 2012 and again stood down on 11 September
2012 at 12h00, it had become apparent that Phahla
had still not
familiarised himself with the matter. The Commissioner was therefore
correct in refusing to adjourn the matter any
further simply for the
purposes of granting Phahla a further indulgence to take proper
instructions from the applicant in the midst
of cross-examination of
a witness.
[17]
It is not uncommon during trial proceedings for representatives to
ask for an indulgence from the presiding officer in order
to take
further instructions from clients on certain issues. However, this
does not necessarily call for persistent and prolonged
adjournments
to do so. Once a representative repeatedly asks for an adjournment in
order to take instructions from a client, especially
during the
course of cross-examination of a witness, it can only confirm that
the representative is least prepared to deal with
the matter.
[18]
By virtue of clearly being unprepared, the Commissioner and the third
respondent had also formed a view that Phahla had resorted
to asking
irrelevant questions during cross-examination with the hope of buying
time. When the Commissioner refused to adjourn
the proceedings before
17h00 in the middle of the cross-examination of the third
respondent’s witness, Phahla had then sought
to be excused from
the proceedings as he had another matter to attend to at the Small
Claims Court. Clearly this was extremely
irregular on the part of
Phahla in that a legal practitioner cannot ask for an adjournment or
a postponement simply on the basis
that he or she have to attend to
another matter in another forum.
[17]
Phahla’s other work commitments were not a reasonable or
acceptable excuse to seek an adjournment even if it was a few
minutes
before 17h00. The Commissioner was correct and had acted reasonably
within his powers in insisting that the matter should
be finalised
even if it was beyond 17h00 in the light of the previous
adjournments. I am not aware of any CCMA rule that stipulates
that
its proceedings must commence at 09h00 and end at exactly 17h00. A
Commissioner is obliged to deal with a matter before him
or her
expeditiously. This however does not imply that this must be done at
the expense of fairness. I am however of the view that
considerations
of fairness in this case were not sacrificed for the sake of
expediency as shall further be illustrated below.
[18]
According to the Commissioner and the record, Phahla had then sought
to “recuse” himself from the matter, and obviously
it was
up to him and his client if he wished to withdraw from the matter.
The exchanges between the Commissioner and Phahla
[6]
clearly indicate that the latter was given time to consult with the
applicant and the Commissioner had correctly refused to sanction
his
withdrawal from the proceedings, indicating that it was a matter
between him and his client. Following these exchanges, Phahla
had
then proceeded with the cross-examination of the third respondent’s
witness for a while, with various interjections by
the Commissioner
asking what the relevance of the questions were, and rightly so.
[19]
At some point during the proceedings
[7]
,
the Commissioner had instructed Phahla to sit down, and when the
latter refused, the Commissioner had recorded this fact and also
recorded that Phahla had left the process without his permission, and
also left the applicant behind. The Commissioner also informed
the
applicant that she could proceed on her own, as he was not going to
postpone the proceedings. At that point the applicant had
proceeded
on her own, and continued to cross-examine the third respondent’s
witness. It is not apparent from the submissions
made on behalf of
the applicant as to at what stage the Commissioner had refused her to
secure alternative representation as this
is not evident from the
record, nor is it apparent from the record that the applicant had
sought a postponement in order to seek
alternative representation.
[19]
From the record, it is however apparent that Phahla abandoned the
arbitration proceedings and then left the applicant to proceed
on her
own. The Commissioner cannot be accused of having not afforded the
applicant an opportunity to ventilate her case in circumstances
where
legal representation was granted, and her legal representative
unceremoniously abandoned her. The matter had been adjourned
twice
already and when Phahla abandoned the applicant and the proceedings,
and thereafter the applicant had continued on her own,
the
Commissioner could not be accused of misconduct. On the contrary, if
anyone is to be accused of any misconduct it is Phahla,
who had at
worst, acted contrary to his ethical and professional obligation
towards his clients.
[20]
A legal representative cannot abandon a client in the course of
proceedings even if he or she is of the view that the client
is not
being afforded a fair hearing. It is expected of the legal
representative in circumstances where there is a perception that
a
client is not getting a fair hearing, to record his or her objections
in regard to the presiding officer’s specific objectionable
conduct, and to continue to represent the interests of the client to
his or her ability until finality. Even if Phahla wanted to
withdraw
from the matter for whatever reason, it was required of him to
properly do so on record, instead of simply abandoning
his client and
the proceedings in a huff. Needless to say however, it is apparent
that Phahla abandoned his client and the arbitration
proceedings in
order to attend to his other engagements. The Commissioner in these
circumstances cannot be accused of having deprived
the applicant of a
fair hearing, and at most, the applicant has recourse against Phahla.
[21]
With regards to the merits of the case, the facts before the
Commissioner were that the applicant as a store manager was
responsible
for all aspects and duties related to the management and
operation of the store. It could not have been disputed that such a
position
came with high levels of trust and responsibilities,
especially in matters pertaining to passwords and transactions.
[22]
Key to the applicant’s position was adherence with established
rules, policies and procedures related to stock control
and
transaction systems. To this end, each employee was allocated a
password, which obviously had to be kept secret. I did not
understand
the applicant’s evidence to be that she could not have been
aware of these rules and policies. She had admitted
to sharing her
password
albeit
with another line manager as this was
acceptable practice, and that her password was stolen from the line
manager by another employee
Nyundu. Her contention was that she could
not be held responsible.
[23]
In denying liability, the applicant had further contended that there
was a directive from her regional manager that she could
share her
password. The Commissioner had nevertheless concluded that the
allegation of a directive was unsubstantiated. The third
respondent’s
contention however was regardless of the individual the applicant had
shared her password with, ultimately,
stock was lost as a consequence
of the sharing of the applicant’s password.
[24]
Sepeng had also contended that the sanction of dismissal was harsh
and in this regard, the Commissioner found that the applicant
had
displayed no remorse. Essentially, the Commissioner had concluded
that as a consequence of the applicant having shared her
password,
stock was stolen from the store using her password. The Commissioner
had further found that the third respondent had
discharged the onus
in respect of the second charge related to failure to do a stock
take. The second charge received little attention
from submissions
made on behalf of the applicant, and it can be accepted that the
Commissioner’s findings are not disputed
in this regard.
[25]
A number of difficulties are inherent in the applicant’s case.
The first is that the Commissioner had based on the evidence
of the
witness who had investigated the matter, Mr Mohulatsi, found that
there was evidence to point out that as a consequence
of sharing her
password, stock was stolen from the store. Mohulatsi had disputed
that there could have been any directive from
the third respondent
sanctioning the sharing of password. This version made sense as the
purpose of having secret passwords is
obvious, and once its sharing
is sanctioned by the third respondent, this would defeat is purpose
of protecting its assets
and adherence to its transaction
policies.
[26]
A further difficulty with the applicant’s case was that it was
always the third respondent’s case that she had
pleaded guilty
to the charges in the internal disciplinary hearing. This was
vehemently denied in the arbitration proceedings,
it further being
contended in submissions made on her behalf that there was no basis
for the chairperson to have recorded this
plea when this was not the
case. The improbability of this contention is however belied by two
central factors as illustrated below;
[27]
The first is that once an employee contends that a sanction was
harsh, this can only be confirmation of an admission that indeed
the
transgression in question was committed, but nevertheless a lesser
penalty should have been imposed. The second factor pertains
to
submissions made on the applicant’s behalf that the
Commissioner failed to deal with evidence pertaining to inconsistent
application of the rules and policies. To be precise, it was
submitted
[8]
on the applicant’s
behalf that the Commissioner disregarded relevant evidence insofar as
the applicant raised the important
issue of consistent application of
dismissal in similar cases by the third respondent. It was alleged
that she was never afforded
the opportunity to present this evidence.
[28]
Again, once an employee raises allegations that the employer failed
to apply its rules, policies and disciplinary measures
consistently,
the only inference to be drawn is that the infraction in question was
committed, but that employee should never have
been disciplined
harshly on account that the employer has condoned the breach of
policies before or contemporaneously.
[29]
In
SATAWU
& Others v Ikhwezi Bus Service (Pty) Ltd
[9]
this Court had held that an employer is indeed entitled to impose
different penalties on different employees who had committed
the same
misconduct, provided there was a fair and objective basis for doing
so. Thus where inconsistency of application of discipline
is claimed,
it is for the employee to show in what material respects the employer
had acted inconsistently, and it is not enough
for the employee to
simply make an allegation of inconsistency.
[30]
To the extent that it was claimed on behalf of the applicant that she
was deprived of presenting evidence of inconsistency,
it is concluded
that when account is taken of her position of seniority and trust
within the company; the nature of the duties
she performed and
hierarchy within the organisation; the circumstances surrounding the
act of misconduct which was proven; the
severity of the misconduct or
its impact on the employer and its operations (i.e. loss of R35
000.00); and her failure to show
contrition as alluded to by the
Commissioner, it cannot be said that the sanction of dismissal was
not justifiable in the circumstances.
[31]
In the light of the above conclusions, it is my view that the
Commissioner’s award is unassailable. When regard is also
had
to the record of arbitration proceedings, the material before the
Commissioner and the decision arrived at, there is no basis
to
conclude that the decision arrived at can be said to be one that no
reasonable decision maker could have arrived at.
[32]
Even though I am of the firm view that this application was ill
conceived, I am dissuaded by considerations of law and fairness
from
making any cost order. Accordingly, the following order is made;
Order:
i.
The application to review and set aside the
arbitration award dated 19 September 2012 issued by the first
respondent under case
number GATW195-12 is dismissed.
ii.
There is no order as to costs.
Tlhotlhalemaje,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
On
behalf of the Applicants: Mr JM Gouws of Johan Gouws Attorneys
On
behalf of the Third Respondent: Mr S Snyman of Snyman Attorneys
[1]
[2007] 12 BLLR 1097
(CC), held that [at par 110]:
[2]
See
also
Herholdt
v Nedbank Ltd
(2013) 34 ILJ 2779 (SCA) at para [12] where the SCA held that the
test
“…
involves
the reviewing court examining the merits of the case ‘in the
round’ by determining whether, in the light
of the issues
raised by the dispute under arbitration, the outcome reached by the
Commissioner was not one that could reasonably
be reached on the
evidence and other material properly before the Commissioner. ...
The reasons are still considered in order
to see how the
Commissioner 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 that a reasonable
decision- maker could
reach in the light of the issues and the evidence.”
[3]
(2014)
35 ILJ 943 (LAC) at para [20]
[4]
See
also
South
African Medical Association obo Mabuza and Others v Commissioner
Moletsane and Others
(JR834/12) [2014] ZALCJHB 66 (14 March 2014) at para [8]
[5]
At para [13]
[6]
P215
– 217 of the record
[7]
P232
line 20 – p233
[8]
Paragraph
6.24.8 of the written heads of argument
[9]
(2009)
30 ILJ 205 (LC)