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[2015] ZALCJHB 328
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Lewis Stores v Commission for Conciliation Mediation and Arbitration and Others (JR2721/12) [2015] ZALCJHB 328 (25 September 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not Reportable
Case
Number: JR2721/12
In
the matter between:
LEWIS STORES
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
First Respondent
COMMISSIONER N SIELE
N.O
Second Respondent
SACCAWU
Third Respondent
FRANS
JONAS
Fourth Respondent
Date
heard: 22 April 2014
Delivered:
25 September 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award issued
by the second respondent (the Commissioner) on 27 October
2012. In
terms of the Award the Commissioner found the dismissal of the third
respondent (Jonas) to have been substantively unfair
and ordered he
be reinstated with retrospective effect.
[2]
Jonas was employed as a stock clerk and relieving manager up until
his dismissal on 16 July 2010. The following charges were
levelled
against him:
“
Dishonesty
in that on 4
th
April 2012 you received R4000.00 from customer, MK Mampe for the
purchase of a fridge, you purchased the said fridge on your staff
account and paid R2864.00 and misappropriated the difference.
Abuse
of staff account in that on 4
th
April 2012 you purchased a
fridge for a customer MK Mampe which is in contravention of the Staff
Purchase Policy and in the process
you benefitted financially.
Misconduct
in that on the 5
th
April 2012 you breached the company
stock movement procedures when you removed a fridge from the branch
and delivered it to customer
MK Mampe without authorization from
Management and without proper documentation.”
[3]
In the founding affidavit the applicant avers that the Commissioner
adopted a piecemeal approach to the evidence and failed
to properly
consider the totality of the evidence before her and also failed to
correctly apply the balance of probabilities to
the respective
versions; or properly consider what she had to decide. This led to
her making an award that a reasonable decision-maker
could not make.
The supplementary founding affidavit painstakingly traverses the
record of the arbitration proceedings in support
of these averments.
[4]
The Award records the evidence of the daughter of MK Mampe, Ms
Nomathembu Mampe (a school pupil) as follows:
“
[14]
She testified that she gave the Applicant R3999.00. She stated that
the fridge was not available as the ones they saw were
white in
colour. According to her, when she gave the Applicant the money they
were three and stood next to the Applicant’s
table. The fridge
was not available and was delivered at night. She stated that she was
asked to go and collect the receipts and
documentation.
[14.1]
When she was asked as to when she gave the applicant the money, the
witness failed to respond. When she was asked as to when
was the
fridge delivered, she could not remember but said that it was during
the night.
[14.2]
The witness testified that she gave the Applicant the money and
Applicant informed them that he was the manager. She conceded
that
they were regular customers of the respondents. She furthermore
conceded that she knows that payments are made to the cashiers.
[14.3]
Later during cross examination, the witness changed her story and
said that it was her mother who went to buy the fridge.
According to
her, money for the washing machine was given to her on 10 April 2012.
She could not remember when was the fridge delivered
but it was after
20h00 in the night.”
[5]
At paragraph 27 of the Award the Commissioner writes as follows in
reference to Nomathembu Mampe:
“
[27]
The Respondent’s main witness contradicted herself during
cross-examination. Although she could somehow positively by
means of
non-verbal communication identify the Applicant, she was somehow a
little ashamed of boldly saying she gave applicant
the money. She
could only shamelessly point to the Applicant as he appeared in the
arbitration hearing and perhaps because she
saw the Applicant during
the disciplinary hearing. It is for this reason that she later
conceded that Money was given to her mother
and her mother knew the
Applicant.”
[6]
It is evident from the transcribed record that the Commissioner
either misunderstood the evidence that was led or did not record
it
accurately, when she found that Nomathembu Mampe changed her evidence
and said that her mother had gone to buy the fridge. Her
testimony
was quite clear that she had accompanied her mother to buy it and she
had given Jonas the money. The record further reflects
that no
admission was made by her to the effect that she was aware that money
was not to be given to sales advisors. Quite why
the Commissioner
believed this witnesses answer that they were regular customers at
the store amounted to a concession is puzzling.
Perhaps it was
because the Commissioner herself cross-examined the witness on this
as the record reflects. The interpreter is speaking
for Nomathembu
Mampe:
“
COMMISSIONER:
So you gave Frans uh the money without him giving you the receipt?
INTERPRETER:
Yes
COMMISSIONER:
Would it be normal if you go into a furniture shop to go and buy
furniture
and give the money to somebody else, such a lot of money
without such a person giving you a receipt?
INTERPRETER:
We trusted
him.
COMMISSIONER:
So if you say you say you
trusted Frans was it, it then means in other words
that it was not
for the first time you bought from him, isn’t it?
INTERPRETER:
Yes my mother
bought a room divider from him.”
[7]
In paragraph 22 of the Award under the heading “Analysis of
Evidence and Arguments”, the Commissioner writes that:
“The
central issue in dispute is whether Applicant’s version is
plausible of the denial as opposed to the version tendered
by the
respondent with due consideration to all the evidence tendered.”
[8]
The evidence of Jonas is
inter alia
recorded as follows in the
Award:
“
[20.3.]
He reflected on the charges levelled against him and was surprised
that he was charged for receiving R4000.00
He had previously
purchased a fridge on mark for a role in thousand and approached the
manager requesting for the authorisation
for use repairs. He later
requested the branch manager for a credit and then bought another
fridge.
[20.4]
The applicant testified that the Branch Manager
approved the purchase of the fridge on 04 April 2012.
He took the
fridge to his house. He denied that he delivered the fridge to the
Mampe house. He stated that the delivery crew completes
their
deliveries at around 19.30. According to him, there are security
guards and the shop is protected with an alarm system. He
could not
have had the company vehicle at 20h 00 or after 20h00. He said that
the manager is the only one who uses the delivery
vehicle after
hours….
[20.7]
The Applicant denied having been at Mempe house
around 20h00. He denied having been at Mampe residence.
He referred
to the testimony of Mr Mampe who stated that he was at their
residence around 8h00 when the children were asleep. He
does not
remember ever being at Mampe residence in the evening. He cannot
remember delivering the fridge at Mampe house. He confirmed
that the
delivery crew always knocks off at 17.30.”
[9]
The transcribed record reflects that Mr Mampe testified that Jonas
came to his house with another person at about 8 in the evening
with
the fridge. The Commissioner in her assessment of Mr Mampe’s
evidence records that it was “honest and detailed”.
The
Commissioner however fails to deal with this crucial dispute of fact
relating to the delivery of the fridge at the Mampe residence
and
make any finding in respect of it. She proceeds to find however that:
“
[33]
The Applicant in the arbitration stood fast to say that he did not
receive any money from Mrs MK Mampe. The question is why
could the
Applicant after his progression to the level of assistant manager
sacrifice his position by being dishonest. The Applicant
was a
collector
[1]
for six years and
acted as a manager; he had all the opportunity of behaving
dishonestly but did not. It is for these reasons, that
I am convinced
that the charges that were levelled against the Applicant had not
been proved by the Respondent.”
[10]
The question as to why the Mampe father and daughter should lie in
their testimony does not appear to have concerned the Commissioner.
The evidence of the company’s witness Johanna Du Toit that
Jonas had asked her for permission to deliver goods to a customer
at
night, and it was Jonas’ responsibility as stock clerk to get
the deliveries out and check the backkie in and out was
not recorded
by the Commissioner in the Award. Nor was her evidence that shortly
before the arbitration she visited the Mampe’s
house and
confirmed the fridge they had was the one purchased by Jonas
purportedly for himself (i.e. with the same serial number),
clearly
recorded or weighed by the Commissioner.
[11]
In view of the above, this is an Award that is susceptible to review.
It is glaring that the Commissioner reached a result
that a
reasonable arbitrator could not reach on all the material that was
before her
[2]
.
I see no reason in remitting the Award given the record before me. I
do not consider it appropriate on grounds of law and equity
that
costs should follow the result in this matter and make the following
order:
Order:
1.
The Award under case number NWKD 224-12 is reviewed, set aside
and
substituted
as follows:
“
The
dismissal of Frans Jonas was substantively fair.”
__________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Norton Rose Fullbright
South Africa
For
Third Respondent:
SACCAWU
[1]
The
evidence was that he had been a debt collector
[2]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013) 34 ILJ 2795 (SCA) at paragraph 25