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[2015] ZALCJHB 469
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Shoprite Checkers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR475/2013) [2015] ZALCJHB 469 (3 September 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Not
of interest to other judges
Case
no: JR 475/2013
In
the matter between
SHOPRITE
CHECKERS (PTY)
LTD
Applicant
And
COMMISSION
FOR
CONCILIATION,
First Respondent
MEDIATION
AND ARBITRATION
JANSEN
VAN VUUREN
NO
Second Respondent
RETAIL
AND ALLIED WORKERS
UNION
Third Respondent
NCUNA
MC
Fourth Respondent
Heard:
3 September 2015
Delivered:
3 September 2015
Summary:
Review of an arbitration award – the
Commissioner applied the wrong tests and adopted a very narrow
approach to the interpretation
of the allegations of misconduct –
award reviewable.
EX
TEMPORE
JUDGMENT
COETZEE
AJ
[1]
This is an opposed review application to
set aside an arbitration award reinstating the employee, Me MC Ncuna,
after having been
dismissed by the applicant for misconduct.
[2]
The parties to this matter are Shoprite
Checkers (Pty) Ltd, the applicant, the Commission for Conciliation,
Mediation and Arbitration,
first respondent, Commissioner Jansen van
Vuuren, second respondent, Retail and Allied Workers Union, third
respondent and Me Matapela
Catherine Ncuna the fourth respondent.
[3]
The first application was to condone the
late filing of the record of the arbitration by the applicant. This
application initially
was opposed. The third and fourth respondent
withdrew the opposition to the application for condonation and I am
satisfied that
condonation should be granted. The late filing of the
record is condoned.
[4]
The applicant in the review application
sets out the grounds for review which essentially are that the
Commissioner became involve
in the arena to an inappropriate extent.
Secondly that the Commissioner applied incorrect tests in assessing
the evidence
and therefore arrived at a conclusion that was
unreasonable. A further ground is that a very technical approach to
the allegations
of misconduct was taken by the Commissioner which
resulted in an injustice to the applicant.
[5]
The fourth respondent was an employee of
some years standing with the applicant.
[6]
She was charged with the following
allegations of misconduct:
'Firstly,
you circumvented your responsibility of a manager and/or transgressed
Shoprite’s standing procedures by handing
the store keys to a
member of a service supplier to open the store in you stead which
could have resulted in losses and third party
liabilities'.
Secondly:
'You made racial remarks towards fellow members of management, 21
February 2012 and 23 February 2012 which is a clear
contravention of
the company rules'.
Thirdly:
'You behaved in a manner unbecoming a Shoprite employee by making
racial remarks towards fellow members of management on
21 February
2012 and 23 February 2012'.
[7]
She was found guilty of these allegations
of misconduct in the subsequent disciplinary inquiry. She referred an
alleged unfair dismissal
to arbitration.
[8]
On arbitration the Commissioner made a
number of findings resulting in an award that she was substantively
unfairly dismissed.
The
facts:
[9]
The fourth respondent was a senior employee
in the ranks of a manager and she had the duty to reopen the store on
a specific Monday
morning.
[10]
This duty arose from the fact that she had
closed the store on the previous day and therefore had a set of keys
to use the next
morning at 06:00 in the presence of another manager
and the chief security officer to reopen the store.
[11]
Earlier during this morning she felt
indisposed but was of the view that she would still be able to go to
the store and open the
store and thereafter attended a medical
practitioner.
[12]
About an hour before the store had to be
reopened, she decided that she was not feeling well enough. She then
got hold of the chief
security officer who she knew would be
travelling past her residence to the store. He is a service supplier
to the applicant.
[13]
She asked him to collect her set of keys
and to take the keys to the store.
[14]
There was a dispute as to whether she
handed him the keys with the intention to go and open the store with
the other manager on
duty or whether it was merely to convey the keys
from her residence to the store so that someone else, another
manager, could assist
the second manager to open the store.
[15]
The strict rule was that the store had to
be opened in the presence of three people: two managers with their
own sets of keys opening
two different locks on the store door and in
the presence of a security officer.
[16]
She sent a text message to the second store
manager who received the text message while waiting at the store for
her to arrive and
to come and assist him in opening the store.
[17]
The security official took her keys to the
store and handed those to the second manager. The second
manager then obtained
permission to open the store with both sets of
keys and in the presence of the security officer.
[18]
This is the incident that gave rise to the
first allegation of misconduct.
[19]
The second allegation of misconduct relates
to racial remarks allegedly made by the fourth respondent.
[20]
Two incidents were referred to. The
one was that she allegedly referred to a baby in the store as 'that
thing' which was construed
to be a racial slur. Her explanation was
that she had referred to a toy on a shelf and not the baby.
[21]
There were more than one person present at
the time and the centre of focus was the baby. It is highly unlikely
under those circumstances
that someone would, out of the blue, refer
to a toy in the store as 'What is that thing?' On the probabilities
she had not been
referring to a toy. I am however not convinced
that the Commissioner was incorrect in finding that it was not a
racial slur
if in fact it had been made.
[22]
I do not believe that the employer
discharged the onus to show that it was meant and intended to mean or
was understood to be a
racial slur. The Commissioner was correct in
finding that the fourth respondent was not guilty of this allegation
of misconduct.
[23]
The second incident of racism refers to a
meeting at the office between the fourth respondent and one Herbert.
[24]
Herbert’s evidence was that they were
discussing a schedule and there was some disagreement amongst them
about it to the extent
that it almost ended in an altercation. When
he left the fourth respondent called him a “coloured bastard”.
There can
be no doubt that such a statement is a racial slur.
[25]
In her oral evidence she denied the
altercation and that she ever made this allegation.
[26]
When presented with her prior written
statement, she tried to avoid the consequences of her statement.
In her statement she
referred to the altercation but she denied the
slur. This makes her denial of the slur suspect as she had to concede
she admittedly
lied about the altercation.
[27]
The Commissioner considered the evidence of
Herbert and the fourth respondent. The Commissioner accepted that he
had two conflicting
or opposed versions of what occurred between the
fourth respondent and Herbert.
[28]
In his view the applicant’s future
was at stake and for that reason he was accepting her version above
that of Herbert. He
also reasoned that Herbert admitted that there
was a third person present that could also testify on this issue and
because the
employer did not call that third person the commissioner
drew an adverse inference against Herbert from the absence of that
witness.
[29]
There are two aspects to this. The
first is that if it was possible to resolve the dispute of fact on
the probabilities. It
was not necessary to use the next tool and that
was to draw adverse inferences.
[30]
On the probabilities, the version of
Herbert is probably the correct version and that is simply so because
of the denial of the
fourth respondent that the altercation took
place and when confronted with her written statement she had to admit
that she did
not present the correct evidence on this issue and
therefore tried to cover her own position by denying having made this
particular
allegation.
[31]
There is no indication as to why Herbert
would have falsely accused her of having made the slur. On the
other hand she had
all the incentives in the world to protect her own
position by denying that she had said it. The Commissioner adopted
the wrong
test, to protect her, and thereby avoided dealing with the
facts of the matter.
[32]
The Commissioner in respect of the three
allegations of misconduct held that the employer did not discharge
the onus in proving
those allegations.
[33]
His reason mainly was that in respect of
allegation 1 the employer had to prove that the keys were handed over
and that she did
so with the intention for the chief security officer
to open the shop. In the absence of any one of those two elements the
charge
had not been proven. That is not the correct approach. It is
an over technical approach to this allegation of misconduct. The mere
handing of the keys to the chief security officer constituted
misconduct.
[34]
The allegation of misconduct covered a
number of things: that she circumvented her responsibilities as a
manager, that she transgressed
Shoprite’s standing procedures
by handing the store keys to a member of a service provider, and in
addition to that, for
him to open the store. Such an
interpretation is in line with the approach that allegations of
misconduct should not be regarded
in a too technical light. The
commissioner construed the allegation of misconduct in a very
technical and constrained manner.
[35]
The commissioner's reason for finding the
fourth respondent not guilty on this allegation of misconduct cannot
stand as reasonable.
[36]
The fourth respondent’s
representative submitted that there was no rule that the fourth
respondent could not hand the key
to a security service provider.
The argument goes that on page 70 of the record there is a document
that shows who are authorised
and who are not authorised to have the
keys to the shop and that under the name of Ms Fagera, who was
authorised, there also appears
the name of the security officer as an
authorised person.
[37]
There was no oral evidence on this issue
and secondly the name that appears there is R Ntabineng while the
name of the security
officer was Cecil of the same surname.
[38]
In respect of the second allegation of
misconduct, the Commissioner similarly took a very narrow approach to
the allegation of misconduct
and required of the employer to prove
more than one instance of racial remarks in order to succeed.
Secondly he interpreted the
allegation that the slur had to be made
to more than one person too. This, again, is an overly technical
approach to the allegation
of misconduct.
[39]
The employer clearly succeeded in showing
that there was at least one incident where a racial slur was made and
to whom it was made.
There was no need in order for the employer to
succeed, that the employer had to prove more than one incident.
[40]
The employer, the applicant in this matter,
argued that the Commissioner acted improperly and that his conduct
constitutes an irregularity
in the way that he conducted the
arbitration proceedings.
[41]
That may very well be so. It is a
case where the Commissioner became involved in issues to the extent
more than one would
readily accept to be his function. This
however, to me seems to be one of those process-related issues that
did not affect
the outcome of the arbitration.
[42]
I am not of the view that the proceedings
were affected to the extent that it is necessary to have a new or a
fresh arbitration
in this matter.
[43]
I have considered whether the award is one
that a reasonable Commissioner could not have arrived at.
However, in assessing
the approach of the Commissioner and the
outcome according to the Commissioner, I am of the view that it is an
unreasonable outcome.
[44]
The Commissioner failed in applying the
correct tests in assessing the evidence and assessing whether the
evidence substantiated
the allegations of misconduct. In doing
so he arrived at an unreasonable conclusion. The allegations of
misconduct
are of a very serious nature. The evidence has shown that
the consequences of non-compliance with the policy on the possession
of the keys could have resulted in serious consequences to the
applicant and that this alone would have been a breach of the trust
relationship.
[45]
Secondly, this court has always taken a
serious view with regard to racial slurs and that in it’self
would also constitute
a dismissible offence, unless there are very
strong mitigating factors of which none have been raised, as the
allegation was denied.
[46]
I first want to deal with costs.
[47]
I have been asked to make a cost order on
the basis that the review should not have been opposed. None of
the other factors
that may influence a cost order have been raised
before me. I do not believe that the opposition was misguided
and therefore
I am not inclined to make any cost order.
[48]
I make the following order:
[48.1]
The arbitration award GHATW4138/2012
dated 10 February 2013 is reviewed and set aside and substituted by
the following:
'The
dismissal of the applicant was substantively and procedurally fair'
[48.2]
There is no order as to costs.
_________________________________
Faan
Coetzee
Acting
Judge of the Labour Court of South Africa
Appearances:
For
the applicant[s]: MS Edward
Instructed
by:
Mervyn Attorneys
For
the Respondent: Mr Khoza
Instructed
by:
Carrim Attorneys