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[2015] ZALCJHB 377
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Ledwaba v Mpahpulu NO and Others (JR2172/2011) [2015] ZALCJHB 377 (23 October 2015)
REPUBLIC
OF SOUTH AFRICA
Not
reportable
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
C
ase
no: jr 2172/2011
In
the matter between:
PHINEAS LEDWABA
Applicant
And
MR JOSEPH MPAHPULU
N.O.
First Respondent
COMMISSION FOR
CONCILIATION,
MEDIATION &
ARBITRATION
Second Respondent
EDGARS
Third Respondent
Heard
:
21 October 2015
Delivered
:
23 October 2015
Summary:
(Review-proof of policy-nature of charges)
JUDGMENT
LAGRANGE
J
[1]
The applicant is a former store manager,
who was dismissed after being found guilty of the following charges:
“
Failure
in your duty to demonstrate acceptable conduct in that on 10 January
2011 at Jet Festival more you failed to arrest a shoplifter
and
accepted payment in the form of cash and a cell phone from her. Such
conduct is in breach of the arrest policy.”
[2]
The arbitrator upheld the dismissal. In the
course of the arbitrator’s decision he found that the employer
had failed to provide
a policy governing the arrest of customers,
which it claimed existed. However the arbitrator concluded on the
evidence:
“
It
may have been true there was no policy with regards to dealing with
customers that are found stealing but it was clearly an established
practice for them to be apprehended and handed over to the police.
The applicant admitted to having done that many times before.”
[3]
In brief, for the sake of contextualising
the dispute, the uncontroversial facts of the matter may be
summarised as follows:
3.1
A shoplifter was apprehended with 4 pairs
of shoes with a total price of approximately R720.
3.2
The store manager on his version attempted
to call the police but was unable to get through to them.
3.3
The store manager received R800 from the
shoplifter and return the shoes to the store.
3.4
The store manager also retained the
shoplifter’s cell phone which was sold to another employee
within a few days.
3.5
The shoplifter was released after handing
over the money and her cell phone, and was not given any of the goods
she had attempted
to steal.
[4]
Although he did not dispute receiving the
money and the cell phone or that the suspect was released, he claimed
that all of this
was the doing of the security officer who
apprehended the suspect. Despite the fact that he agreed that the
security officer had
no power to decide to release the suspect, he
did not report it to his superior because the security officer had
assured him that
the suspect was due to return. The thrust of the
security officer’s evidence was that when he had taken the
suspect to the
applicant, she had offered to pay for the goods and
when she did so the applicant decided not to phone the police but
when she
obtained the R800, he asked for an additional R800. Because
she was unable to pay the additional amount he demanded that she
leave
her cell phone as security.
[5]
The nub of the applicant’s case on
review is that the arbitrator failed fundamentally in his duties when
he proceeded to find
the applicant guilty despite the employer not
being able to prove the existence of the rule which had been broken.
The applicant
is correct that under s 188(2) of the Labour Relations
Act, 66 of 1995 (‘the LRA’) an arbitrator determining the
fairness
of a dismissal must have regard to the test for substantive
fairness set out in item 7 of Schedule 8 to the LRA which includes
item 7(b) that states anyone considering the fairness of a dismissal
should consider “…if the employee contravened
a rule or
standard regulating conduct in, or of relevance to, the workplace;…”
[6]
The applicant focuses on the last sentence
in the charge pertaining to the existence of the policy and argues
that the arbitrator
committed a reviewable irregularity by
effectively proceeding with the rest of the enquiry having found that
the employer had failed
to prove the existence of an arrest policy
applicable to customers. It is established law that the framing of
charges in disciplinary
hearings does not have to meet the precise
standard of criminal charges:
“
[37]
In dealing with the point
in
limine
,
one should not lose sight of the purpose of the charge-sheet,
namely to ensure that the dismissed employee is made aware
of the
allegations he is to face in the disciplinary hearing. Disciplinary
charges are not intended to be a precise statement of
the elements of
an offence.
The
charges need only be sufficiently precise to allow the charged
employee to identify the incident which forms the subject-matter
of
the complaint in order for him or her to prepare a suitable defence
.
(See
Korsten
v Macsteel (Pty) Ltd & another
[1996] 8 BLLR 1015
(IC) at 1020; and
Dywili
v Brick & Clay
[1995] 7 BLLR 42
(IC) at 47B-C.) Such right to prepare for the
employee should not be rendered illusory by an inadequate
charge-sheet. (See
Police
& Prisons Civil Rights Union v Minister of Correctional Services
& others
(1999)
20 ILJ 2416 (LC)
at 2426C-F.)”
[1]
See
also
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation & Arbitration
& others
.
[2]
[7]
What the arbitrator found effectively was
that there was a standard practice, though not a rule reduced to
writing, which was adhered
to in the case of customer arrests.
Moreover, the second portion of the charge relating to accepting cash
and a cell phone from
the suspect is clearly identified in the charge
as part of the unacceptable conduct. The applicant preparing himself
to defend
the charges could hardly have believed that he did not have
to explain why he had received money even though the goods had been
recovered and why he retained her cell phone, so it is hard to see
how he could have been prejudiced in defending himself. That
conduct,
on the face of it was unacceptable, whether or not there was a policy
governing arrest procedure in relation to customers,
and clearly was
a substantive part of the misconduct he was charged with. Indeed he
did try and offer some justification for his
actions in this regard
but this was not believed by the arbitrator.
[8]
In the circumstances, I do not believe the
arbitrator misdirected himself. He dealt with the gravamen of the
charges against the
applicant and it is a distortion and gross
oversimplification of the charge to try and reduce it to a question
of a breach of a
written arrest policy.
[9]
This being the crux of the review, the
applicant has failed to lay a basis for setting the award aside.
Order
[10]
The review application is dismissed.
[11]
No order is made as to costs.
_______________________
Lagrange J
Judge of the Labour
Court of South Africa
APPEARANCES
APPLICANT:M
M Mitti of Mitte Attorneys
THIRD
RESPONDENT: V Reddy of Norton Rose Fullbright
[1]
Zeelie
v Price Forbes (Northern Province)
(2001)
22
ILJ
2053
(LC)
at 2062-3.
[2]
(2011)
32
ILJ
2455 (LAC)
at 2467, para [32]