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[2015] ZALCJHB 254
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Devel Switchboards (Pty) Ltd v Metal And Engineering Industries Bargaining Council and Others (JR2986/2010B) [2015] ZALCJHB 254 (7 August 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case no: JR2986/2010B
In the matter between
:
DEVEL SWITCHBOARDS
(PTY) LTD
Applicant
and
METAL AND ENGINEERING
INDUSTRIES
BARGAINING
COUNCIL
First Respondent
COMMISSIONER
T NSIBANYONI
N.O.
Second Respondent
ERIC
CHISANE
Third Respondent
Heard:
1
July 2015
Delivered:
7 August 2015
Summary:
Review application – arbitration award – s 145 of the LRA
– misconduct – theft
– gross dishonesty –
dismissal – applicable legal principles restated
JUDGMENT
MALAN AJ,
Introduction
[1]
This is an opposed application in terms of
which the applicant (‘
the
company’
) seeks to have the
arbitration award dated 23 September 2010 (case number MEGA27241)
(‘
the award’
)
handed down by the second respondent (‘
the
Commissioner’
) on 7 October 2010
under the auspices of the first respondent (‘
the
Bargaining Council’
) reviewed and
set aside (‘
the review
application’
).
[2]
Although not expressly stated by the
company in the review application, having regard to the papers filed
of record as a whole as
well as the company’s heads of argument
and submissions by its counsel at the hearing of this matter, I am
satisfied that
it is evident that the review application has been
brought in terms of
s 145
of the
Labour Relations Act, 66 of 1995
(‘
the LRA’
).
[3]
In essence, the third respondent, Mr Eric
Chisane (‘
Mr Chisane’
),
is an erstwhile employee of the company. Following his
suspension, a disciplinary enquiry was convened during which Mr
Chisane was charged with and found guilty of (1) theft and/or
attempted theft; (2) misappropriation of company property; (3) gross
dishonesty; (4) causing the company financial loss; and (5) a
breakdown of the trust relationship. Consequently, he was
summarily dismissed from the company’s employment on 30 October
2009.
[4]
Aggrieved
by these findings, Mr Chisane referred a dispute to the Bargaining
Council, contending that his dismissal was unfair.
Conciliation
failed and the matter proceeded to arbitration. During the
arbitration proceedings
the
procedural fairness of
Mr
Chisane’s
the dismissal was not disputed.
[1]
Only
the substantive fairness of his dismissal was challenged and
accordingly required determination by the Commissioner.
[5]
In the award, the Commissioner determined
that Mr Chisane’s dismissal was substantively unfair and
accordingly ordered the
company to reinstate him. In addition
to the aforesaid, the Commissioner ordered the company to pay Mr
Chisane compensation
equivalent to 12 (twelve) months’ back pay
since his dismissal. It is these determinations by the Commissioner
that forms
the subject matter of the review application.
[6]
At the commencement of the argument,
counsel for the company, Mr Venter, indicated that the company did
not persist with its point
in limine
relating to the late filing by Mr Chisane of his answering affidavit.
Synopsis of material
evidence before the Commissioner
[7]
The company is a manufacturer of
switchboards in which copper is an essential and frequently used
material. During the time
in question Mr Chisane was employed
by the company as a general worker.
In his capacity
aforesaid, he is the person responsible for, amongst other things,
receiving copper delivered to the factory and
cutting the copper to
the required sizes for purposes of manufacturing switchboards.
[8]
Prior to August 2009, the company had
noticed for some time that copper delivered to its factory had gone
missing. On 24 August
2009, several bars of copper were
delivered to the factory. On 21 September 2009, the company’s
director, Mr Steve
Tselchous, noticed that a copper bar had gone
missing. Following his aforesaid discovery,
Mr Tselchous
called a staff meeting and requested those members of staff involved
in the missing copper to redeem themselves.
He also advised
them that he was going to require of each one of them to contribute
to pay for the missing copper.
[9]
On or about the 28
th
of September 2010, Mr Tselchous noticed one of its employees namely
Ms Rebecca Khoza (‘
Ms Khoza
’),
leaving the premises with a plastic bag.
Ms Khoza was
employed by the company as a cleaner.
After he
followed her, she noticed him and dropped the plastic bag. When
opening the plastic bag, Mr Tselchous discovered
pieces of copper
inside the plastic bag. The police were contacted and Ms Khoza
was subsequently arrested.
[10]
Ms Khoza admitted that she was party to the
theft and subsequently resigned. However, she also informed Mr
Tselchous that
she was not the only employee involved in the theft of
copper from the company but was in the past assisted by Mr Chisane.
He would
cut pieces of copper and assist her in smuggling the pieces
of copper out of the factory.
[11]
Following the aforesaid incident, Mr
Tselchous was also approached by one of the employees, who informed
him that Mr Chisane had
previously assisted Ms Khoza in removing
copper from the factory by placing pieces of copper in a bucket
filled with water designated
for the washing of motor vehicles.
[12]
In essence, Mr Chisane denied that he
assisted Ms Khoza with removing the said copper from the factory or
that he stole any copper
from the company.
[13]
As mentioned earlier, following the above,
Mr Chisane was suspended and subsequently dismissed following a
disciplinary hearing.
Grounds of review
[14]
I understand the company’s grounds of
review, albeit wide, to be that the findings by the Commissioner in
the award is not
that of a reasonable decision-maker in that the
Commissioner failed to apply her mind and/or misconstrued material
evidence before
her in that:
14.1.
The misconduct with which Mr Chisane was
charged related to theft committed over a period of time and was not
limited to the incident
on 28 September 2009.
14.2.
During the arbitration proceedings Mr
Chisane only challenged Ms Khoza’s evidence relating to the
incident on 28 September
2009 and not the balance of the allegations
against him. Put simply, Mr Chisane did not challenge the
evidence by Ms Khoza
that he assisted her over a period of time in
unlawfully removing pieces of copper from the company’s
premises.
Applicable legal
principles
The
review test
[15]
The
two recent and most important judgments, at least in my view,
delivered on the review test are
Herholdt
v Nedbank Ltd
[2]
and
Gold
Fields Mining SA (Pty) Ltd v CCMA.
[3]
[16]
It
is apposite to first have regard to the judgment by the Supreme Court
of Appeal (‘
SCA’
)
in
Herholdt
v Nedbank Ltd.
[4]
(‘
the
Herholdt case
’)
The SCA in the
Herholdt
case sought to reconfirm the principles enunciated by the
Constitutional Court in
Sidumo
& Another v Rustenburg Platinum Mines Ltd & Others
.
[5]
(‘
the
Sidumo case’
).
In a nutshell, the test is whether a reasonable decision-maker could
reasonably arrive at the same conclusion that the decision-maker
whose decision is under review, has arrived at.
[6]
[17]
The SCA at par 12 in the
Herholdt
case provided a useful explanation of how the
Sidumo
test operates:
“
[T]hat
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. ... The reasons are still considered in order to
see how
the arbitration reached the result. That assists the court to
determining 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.”
[18]
In examining the effect of the
Sidumo
case the SCA went on to state that:
“
...
a gross irregularity in the conduct of the proceedings ... was not
confined to a situation where the arbitrator misconceives
the nature
of the enquiry, but extended to those instances where the result was
unreasonable ...”
[19]
In summary, the SCA at par 25 in the
Herholdt
case stated:
“
A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds of
s145(2)(a)
of the LRA.
For a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by
s145(2)(a(ii)
, the arbitrator must
have misconceived the nature of the inquiry or arrive at an
unreasonable result. A result will only be unreasonable
if it is one
that a reasonable arbitrator could not reach on all the material that
was before the arbitrator. Material errors
of fact, as well as
the weight and relevance to be attached to particular facts, are not
in and of themselves sufficient for an
award to be set aside, but are
only of any consequence if their effect is to render the outcome
unreasonable.
[20]
What
the court was saying, simply put, is that if the arbitrator ignored
material evidence, and in considering this material evidence
together
with the case as a whole, the review court believes that the
arbitration award outcome cannot now be reasonably sustained
on any
basis, then the award would be reviewable.
[7]
[21]
In the
Goldfields
case the Labour Appeal Court (‘
LAC’
)
at par 14 held as follows:
“
Sidumo
does not postulate a test that requires a simple evaluation of the
evidence presented to the arbitrator and based on that
evaluation, a
determination of the reasonableness of the decision arrived at by the
arbitrator. The court in Sidumo was at pains
to state that
arbitration awards made under the
Labour Relations Act
... continue
to be determined in terms of
s145
of the LRA but that the
constitutional standard of reasonableness is ‘suffused’
in the application of
s145
of the LRA. This implies that an
application for review sought on the grounds of misconduct, gross
irregularity in the conduct
of the arbitration proceedings, and/or
excess of powers will not lead automatically to a setting aside of
the award if any of the
above grounds are found to be present. In
other words, in a case such as the present, where a gross
irregularity in the proceedings
is alleged, the enquiry is not
confined to whether the arbitrator misconceived the nature of the
proceedings, but extends to whether
the result was unreasonable…”
[22]
The LAC, in considering process-based
reviews, stated at paragraph 15 the following:
“
...
The emphasis here is on process, and not result. Proponents of this
view argue that where an arbitrator has committed a gross
irregularity in the conduct of the arbitration as contemplated by
s145(2)
, it remains open for the award to be reviewed and set aside
irrespective of the fact that the decision arrived at by the
arbitrator
survives the Sidumo test. I disagree. What is required is
first to consider the gross irregularity that the arbitrator is said
to have committed and then to apply the reasonableness test
established by Sidumo. The gross irregularity is not a self-standing
ground insulated from or standing independent of the Sidumo test.
That being the case, it serves no purpose for the reviewing court
to
consider and analyse every issue raised at the arbitration and regard
failure by the arbitrator to consider all or some of the
issues
albeit material as rendering the award liable to set aside on the
grounds of process-related review.
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her, evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.
The
fact that an arbitrator committed a process-related irregularity is
not in itself a sufficient ground to interference by the
reviewing
court. The fact that an arbitrator commits a process-related
irregularity does not mean that the decision reached is
necessarily
one that a reasonable commissioner in the place of the arbitrator
could not reach.
...
the review court must necessarily consider the totality of the
evidence ...”
[23]
And further at paragraph 20:
“
...
The questions to ask are these: (i) In terms of his or her duty to
deal with the matter with the minimum of legal formalities,
did the
process that the arbitrator employed give the parties a full
opportunity to have their say in respect of the dispute? (ii)
Did the
arbitrator identify the dispute he was required to arbitrate (this
may in certain cases only become clear after both parties
have led
their evidence)? (iii) Did the arbitrator understand the nature of
the dispute he or she was required to arbitrate? (iv)
Did he or she
deal with the substantial merits of the dispute? and (v) Is the
arbitrator’s decision one that another decision-maker
could
reasonably have arrived at based on the evidence?”
[24]
However, the LAC at paragraph 21 accepted
that:
“
Where
the arbitrator fails to have regard to the material facts it is
likely that he or she will fail to arrive at a reasonable
decision.
Where the arbitrator fails to follow proper process he or she may
produce an unreasonable outcome.”
[25]
In
the case of
CUSA
v Tao Ying Metal Industries & others
[8]
(“the Tao Ying case”) Ngcobo J stated as follows:
“
It
is by now axiomatic that a commissioner is required to apply his or
her mind to the issues properly before him or her. Failure
to do so
may result in the ensuing award being reviewed and set aside.”
[26]
In summation, although differing to a
limited extent in their approach, both the aforesaid judgments make
it clear that:
26.1.
in
order to succeed with a review attacking the merits of an award (or
ruling in this case), the applicant must ultimately establish
that
the award fails the
Sidumo
test;
[9]
26.2.
this test would be satisfied if the
commissioner misconceived the true nature of the issue he or she was
called upon to determine;
26.3.
where
the commissioner did appreciate the true nature of the enquiry, the
award or ruling may still be reviewable on the grounds
set out in
Sidumo
.
Errors of fact and other misdirections appearing from the award or
ruling do not, in and of themselves, give rise to a review,
but the
award will be reviewable if they caused the result thereof to be
unreasonable (as occurred in both
Herholdt
(
supra
)
and
Gold
Fields
(
supra
);
[10]
and
26.4.
allied to this, although a commissioner’s
reasons obviously remain relevant, both the reasons and the result
(on all the material
available) must be assailed in order to succeed
on review.
[27]
Therefore,
the first step in a review enquiry is to consider and determine if a
material irregularity indeed exists. A review court
determines
whether such an irregularity exists by considering the evidence
before the arbitrator as a whole, as gathered from the
review record
and comparing this to the content of the award and reasoning of the
arbitrator as reflected in such award. The review
court must also at
this stage apply all the relevant principles of law in order to
determine what indeed constituted the proper
evidence that the
arbitrator, as a whole, would have had to consider. If the review
court in conducting this first step enquiry
should find that no
irregularity exists in the first instance, the matter is at an end,
no further determinations need to be made,
and the review must
fail.
[11]
[28]
Should
the review court, however, conclude that a material irregularity
indeed exists, then the second step in the review test follows,
which
is a determination whether, if this irregularity did not exist, this
could reasonably lead to a different outcome in the
arbitration
proceedings. Put differently, could another reasonable decision
maker, in conducting the arbitration and arriving at
a determination,
in the absence of the irregularity and considering the evidence and
issues as a whole, still reasonably arrive
at the same outcome? The
review court, in essence, at the second stage of the review test,
takes the proper evidence as a whole,
as ascertained from the review
record, considers the relevant legal principles and decides whether
the outcome that the arbitrator
arrived at could nonetheless
reasonably be arrived at by another reasonable decision maker, even
if it is for different reasons.
The end result always has to be an
unreasonable outcome flowing from an irregularity, for a review to
succeed.
[12]
Acts
of dishonesty
[29]
Section 23(1) of the Constitution of the
Republic of South Africa, Act 108 of 1996
(‘the
Constitution’)
provides that
everyone has a right to fair labour practices. The right to
fair labour practices extends to employees and employers
alike. One
of the primary purposes of the LRA is to give effect to the
fundamental rights conferred by Section 23 of the Constitution.
This is encapsulated in s 3 of the LRA that provides that any person
applying the provisions of the LRA must interpret its provisions
to
give effect to its primary objects in compliance with the
Constitution.
[30]
In
NEHAWU
v University of Cape Town and others
[13]
the court remarked as follows:
“
The
focus of Section 23(1) is, broadly speaking, the relationship between
the worker and the employer and the continuation of that
relationship
on terms that are fair to both, in giving content to that rights, it
is important to bear in mind the tension between
the interests of the
workers and the interests of the employers which is inherent in
labour relations. Care must therefore be taken
to accommodate, where
possible, these interests so far as to arrive at the balance required
by the concept of fair labour practices.
It is in this context
that the LRA must be construed.”
[31]
The
LAC in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation Mediation and
Arbitration and Others
[14]
quoted with approval the earlier
dictum
of the Labour Court in
Standard
Bank of SA Ltd v CCMA and Others
[15]
to the effect that:
“
It
is one of the fundamentals of the employment relationship that the
employer should be able to place trust in the employee …
a
breach of this trust in the form of conduct involving dishonest is
one that goes to the heart of the employment relationship
and is
destructive of it”
[32]
A
further reference in the judgment and one frequently quoted in this
court and the LAC is the
dictum
in
De
Beers Consolidated Mines Ltd v CCMA and Others
[16]
namely:
“
A
dismissal is not an expression of moral outrage; much less is it an
act of vengeance. It is, or should be a sensible operational
response
to risk management in the particular enterprise……; it
has everything to do with the operational requirements
of the
employer’s enterprise.”
[33]
In
Hulett
Aluminium (Pty) Ltd v Bargaining Council for the Metal Industry and
Others
[17]
the court comments that:
“
Turning
to the issue of the seriousness of the offence, the presence of
dishonesty tilts the scale to an extent that even the strongest
mitigating factors, like long service and a clear record of a
discipline are likely to have minimal impact on the sanction to be
imposed. In other words, whatever the amount of mitigation, the
relationship is unlikely to be restored once dishonesty has
been
established in particular in case where the employee shows no
remorse. The reason for this is that there is a high premium
placed on honesty because conduct that involves corruption by the
employees damages the trust relationship which underpins the
essence
of the employment relationship.”
[34]
The learned author on labour law, Professor
John Grogan in the December 2008 issue of his publication
Employment
Law
, dealing with “
Sidumo”
and the “
Reasonable Commissioner
Test”
, comments, with reference
to,
inter alia
,
Hulett
supra
that:
“…
the
Labour Court found that the ‘Sidumo test’ did not
preclude a reviewing Court from setting aside awards in which
employees dismissed for dishonesty were reinstated. Before
setting aside the award in Hulett Aluminium, the Court cited a
string
of pre-Sidumo judgments which support the proposition that ‘conduct
that involves corruption by the employees damages
the trust
relationship which underpins the essence of the employment
relationship.”
[35]
It
is clear from the above authority that our courts place a high
premium on honesty in the workplace and there are many c
ases
dealing with matters of outright dishonesty, where it was found that
the sanction of dismissal was justified.
[18]
Ultimately, the task of the court is to pass a moral or value
judgment in order to determine fairness.
[19]
[36]
The abovementioned cases outline the
approach that commissioners should adopt in arbitrating disputes
involving dishonest conduct
on the part of employees. The
authorities referred to lay down sound and commercially intelligible
principles that should
not be departed from. It is submitted
that a shift away from these principles will further fuel the
perception that our labour
laws are too inflexible.
[37]
It is against this background that the
applicant’s background that the applicant’s grounds of
review and arguments presented
by the respective parties in this
regard are considered.
Analysis of evidence
and grounds of review
[38]
Central to the company’s grounds of
review and argument presented at the hearing of this matter is its
contention that the
Commissioner disregarded and/or failed to apply
her mind to the evidence that the charges levelled against Mr Chisane
was not limited
only to the incident of the 28
th
of September 2009. In the circumstances, I understand the
company’s case to be that the charges against Mr Chisane
related to his ongoing involvement in the theft of copper from the
factory and colluding with and assisting Ms Khoza to remove
copper
from the factory, selling it to a nearby scrap yard and sharing the
spoils. On this basis the company contends that
the
Commissioner’s findings is not that which a reasonable
decision-maker could reach.
[39]
Having regard to the content of Mr
Chisane’s notice of suspension, his charge sheet and the
evidence presented during the
arbitration proceedings, I am satisfied
that that the charges against Mr Chisane were not limited to the
specific incident on the
28
th
of September 2009 but related to his alleged ongoing involvement in
the theft of copper from the company. This conclusions
is
supported further by what is set out hereunder.
[40]
The
evidence by Mr Tselchous was that: (1) he previously caught Mr
Chisane in the past stealing copper;
[20]
and (2) Ms Khoza, advised him that Mr Chisane assisted her in
stealing copper from the factory.
[21]
(Ms Khoza testified to this effect during the arbitration). This
evidence was not seriously challenged by Mr Chisane during
cross-examination.
However, it appears, for the first time,
from Mr Chisane’s evidence in chief that he disputed stealing
or ever being caught
stealing copper from the company.
[22]
[41]
In
Smal
v Smith
[23]
his Lordship Mr Justice Claasen said at 438:
“
it
is, in my opinion, elementary and standard practice for party to put
to each opposing witness so much of his own case or defence
as
concerns that witness, and if need be, to inform him, if he has not
been given notice thereof, that other witnesses will contradict
him,
so as to give him fair warning and an opportunity of explaining the
contradiction and defending his own character. It
is grossly
unfair and improper to let a witness’ evidence go unchallenged
in cross examination and afterwards argue that
he must be
disbelieved.”
[42]
The
judgment in
President
of the
Republic
of South Africa and others v South African Rugby Football Union and
others
[24]
is similarly relevant in this regard:
“
[61]
The institution of cross examination not only constitutes a right, it
also imposes certain obligations.
As a general rule it is essential
when it is intended to suggest that a witness is not speaking the
truth on a particular point,
to direct the witnesses attention to the
fact by question put in cross examination showing that the imputation
is intended to be
made and to afford the witness an opportunity,
while still in the witness box, of giving any explanation open to the
witness and
of defending his or her character. If a point in
dispute is left unchallenged in cross examination, the party calling
the
witness is entitled to assume that the unchallenged witness’s
testimony is accepted as correct. This rule was enunciated
by
the House of Lord in Browne v Dunn (1893) (6) R 67 (HL) and has been
adopted and consistently followed by our courts.
[62]
The rule in Browne v Dunn is not merely one of professional practice
but is essential to fair
play and fair dealings of witnesses.
It is still current in England and has been adopted and followed in
substantially the
same form in the commonwealth jurisdictions.
[63]
The precise nature of the imputation should be made clear to the
witness so that it can be met
and destroyed, particular where the
imputation relies upon inferences to be drawn from other evidence in
the proceedings.
It should be made clear not only that the
evidence is to be challenged but also how it is to be challenged.
This is so because
the witness must be given an opportunity to deny
the challenge, to call corroborative evidence, to qualify the
evidence given by
the witness or others and to explain contradictions
on which reliance is to be placed.”
[43]
In the premises, I find that very little
weight can and should be attached to this belated and bald denial by
Mr Chisane regarding
the theft of copper on occasions other than the
incident on the 28
th
of September 2009.
[44]
Although
Ms Khoza, during her evidence, dealt with the incident that occurred
on the 28
th
of September 2009, she testified that Mr Chisane did not give her
copper on the 28
th
of September 2009.
[25]
[45]
I
understand, Ms Khoza’s evidence further to be that Mr Chisane,
amongst other employees, assisted her on occasions other
than that of
the 28
th
of September 2009 in stealing copper from the company by assisting
her to remove copper from the factory in order to enable her
to sell
it to the nearby scrap yard and sharing the money received.
[26]
This evidence was not disputed by Mr Chisane.
[27]
[46]
The fact that the charges against Mr
Chisane could not have been limited to the incident on the 28
th
of September 2009 is supported by the fact that Mr Chisane’s
involvement in the theft of the copper, the sale thereof to
the
nearby scrap yard and sharing of the proceeds with Ms Khoza could not
have related to the incident of the 28
th
of September 2009. This is so simply because both Mr Tselchous
and Ms Khoza testified that the copper that was removed by
Ms Khoza
on the 28
th
of September 2009 in a plastic bag was recovered by Mr Tselchous.
It follows that Ms Khoza’s evidence relating to the
sale of the
stolen copper and sharing of the proceeds must have related to
occasions other than that of the 28
th
of September 2009 with which Mr Chisane assisted.
[47]
Mr Chisane did not challenge Ms Khoza’s
evidence that: (1) he assisted her in stealing copper from the
company on occasions
other than the 28
th
of September 2009; (2) such copper was sold to the nearby scrap yard;
and (3) he shared in the proceeds of the said copper.
[48]
The Commissioner clearly either disregarded
the aforesaid undisputed evidence or failed to apply her mind to such
evidence.
This undoubtedly caused her to arrive at a conclusion
that is not reconcilable with that of a reasonable decision-maker and
renders
the award reviewable. Had the Commissioner applied her
mind to this material evidence that remained unchallenged, as she was
duty bound to do, the inescapable conclusion would have been that Mr
Chisane was guilty of the charges levelled against him and
consequently that there existed a valid reason for his dismissal.
[49]
The
court in
Kalik
v Truworths (Gateway) & Others
[28]
(dealing with theft as a form of dishonesty), held as follows:
“
[27]
An
employment relationship broken down as a result of an act of
dishonesty can never be restored by whatever amount of mitigation.
The underlying reason for this approach is that an employer cannot be
expected to keep dishonest workers in his/her employ. The
other
reason for this is to send an unequivocal message to other employees
that dishonesty will not be tolerated … The rational
for this
approach are also informed by the consideration that a worker with an
unblemished record cannot after an incident relating
to an act of
dishonesty, continue to be trusted. It is the operational risk to the
business of an employer that arises from the
dishonest conduct, which
cancels off whatever good record the worker may have had before the
commission of the offence. In other
words there would be no purpose
in conducting an inquiry into mitigating circumstances where a worker
is guilty of misconduct relating
to dishonesty. However, this
approach would not apply in cases involving other forms of
misconduct.”
[50]
The
above sentiments echo a long line of decisions stretching back many
years and in previous cases this court as well as the LAC
have
emphasized the fact that the main consideration is not one of
vengeance or moral outrage, but a sensible operational response
to
risk management.
[29]
[51]
Employees should be encouraged to avoid
dishonest conduct. In our society the levels of workplace
dishonesty are increasingly
high. Naturally, this state of
affairs affects their competitiveness and in some cases seriously
challenge the viability
of many enterprises, resulting in job
losses. This state of affairs cannot and should not be allowed
to continue.
[52]
If an arbitrator affords relief to an
employee who has stolen, his conduct is in effect, thereby condoned.
Theft should under
no circumstances be tolerated in the workplace.
All employees should know in no certain terms that there are no grey
areas
or exceptions.
[53]
Employers are entitled to implement rules
and enforce discipline to protect their proprietary interests.
Rules are an essential
part of risk management. In order to
properly regulate real risks, the rules must be consistently applied.
Order
[54]
In the premises, I make the following
order:
1.
The arbitration award issued by the second
respondent under case number MEGA27241on 23 September 2010 is hereby
reviewed and set
aside.
2.
The award is substituted by the following:
‘
The
third respondent’s dismissal was substantively fair’.
3.
There is no order as to costs.
_______________
L M Malan, AJ
Acting Judge of the
Labour
Court of South Africa
APPEARANCES:
For the applicant:
Advocate P Venter
Instructed
by Gascoigne Randon & Associates
For the third
respondent:
Mr L Makhuni
Instructed
by B M Kolisi Attorneys
[1]
Record p96, lines 21-245 (transcript).
[2]
(2013)
34 ILJ 2795 (SCA) at par [25].
[3]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC).
[4]
(2013)
34 ILJ 2795 (SCA) at par [25].
[5]
2008
(2) SA 24
(CC); also reported at (2007) 28 ILJ 2405 (CC) and also at
[2007] 12 BLLR 1097 (CC).
[6]
Ehrke
v Standard Bank of SA & Another (2010) 31 ILJ 1397 (LC) at p
1404, par [19] B/C-D; See also Fidelity Cash Management
Service &
Others v CCMA & Others (2008) 29 ILJ 964 (LAC); also reported at
[2008] 3 BLLR 197 (LAC).
[7]
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) & others (2015) 36
ILJ 232 (LC) at
[14].
[8]
[2009]
1 BLLR 1 (CC).
[9]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
[2007] 12
BLLR 1097
(CC). (‘Sidumo’) at para 110: “
Is
the decision reached by the commissioner one that a reasonable
decision-maker could not reach?”
[10]
See
also Myers v National Commissioner of the SAPS (2013) 34 ILJ 1729
(SCA).
[11]
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) & others (2015) 36
ILJ 232 (LC) at
[16].
[12]
National
Union of Metalworkers of SA on behalf of Thilivali v Fry's Metals (A
Division of Zimco Group) & others (2015) 36
ILJ 232 (LC) at
[17].
[13]
2003
(2) BCLR 154
(CC) at [40].
[14]
(2008) 29 ILJ 2581 (LAC).
[15]
(1998) 19 ILJ 903 (LC).
[16]
(2000) 21 ILJ 1051 (LAC).
[17]
(2008) 29 ILJ 1180 (LC).
[18]
Shoprite
Checkers
(Pty)
Ltd v CCMA & others (2008) 29 ILJ 2581 (LAC); Consani
Engineering (Pty) Ltd v CCMA & others (2004) 25 ILJ 1707 (LC);
De Beers Consolidated Mines Limited v CCMA & others (2000) 21
ILJ 1051 (LAC); Toyota SA Motors (Pty) Ltd v Radebe & others
(2000) 21 ILJ 340 (LAC); Standard Bank of South Africa Ltd v CCMA &
others (1998) 19 ILJ 903 (LC); Anglo American Farms t/a
Boschendal
Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC); Central News Agency
(Pty) Ltd v Commercial Catering & Allied Workers
Union &
another (1991) 12 ILJ 340 (LAC) at 344. Also see Rainbow Farms (Pty)
Ltd v CCMA & Others [2011] 5 BLLR 451 (LAC).
[19]
Media Workers Association of South Africa & others v
Press Corporation of South Africa Ltd (“Perskor”)
[1992] ZASCA 149
;
1992
(4) SA 791
(A) at 798I and 802A; See also NUMSA v Vetsak
Co-operative Ltd & others (1996) 17 ILJ (A) at 459H; Cape Town
City Council
v Masitho (2000) 21 ILJ 1957 (LAC).
[20]
Record p101, lines 1-3.
[21]
Record p104, lines 13-17; p108, lines 1-14.
[22]
Record p107, lines 13-25; p108, lines 21-23; p109, lines 1-24.
[23]
1954
(3) SA 434 (SWA).
[24]
2000
(1) SA 1
(CC) at [61] – [63].
[25]
Record p108, lines 21-23; p109, lines 1-4.
[26]
Record p107, lines 13-25; p108, lines 21-23; p109, lines 1-24.
[27]
Record p120, lines 1-23; p121, lines 21-23; p109, lines 1-24.
[28]
[2008]
1 BLLR 45
(LC) at [27].
[29]
De
Beers Consolidated Mines Ltd v CCMA & Others (2000) 21 ILJ 1051
(LAC).