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[2015] ZALCJHB 373
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Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2078/13) [2015] ZALCJHB 373 (26 October 2015)
REPUBLIC
OF SOUTH AFRICA
Of
interest to other judges
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
C
ase
no: JR2078/13
In
the matter between:
PICK ‘N
PAY RETAILERS (PTY) LTD
Applicant
And
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
First Respondent
ANTONIO MOODALEY
N.O.
Second
Respondent
JAMAFO OBO
ROXANNE CAMELIO
Third Respondent
Heard
:
21 October 2015
Delivered
:
26 October 2015
Summary:
(review-dismissal-sanction)
JUDGMENT
LAGRANGE
J
Introduction
[1]
The third respondent was dismissed after
being found guilty of dishonesty for using her personal “smart
shopper” card
to earn points on customers’ purchases.
[2]
The arbitrator confirmed that she was
guilty of the charge but found that dismissal was not in appropriate
sanction because:
2.1
there was no evidence of a prior
disciplinary record;
2.2
the fact that she showed much remorse
regarding what had happened showed that the adoption of progressive
discipline was required;
2.3
although dishonesty was serious every type
of dishonesty warrant dismissal particularly in the circumstances,
and
2.4
the respondent had not suffered any actual
loss and there was no evidence that the employment relationship had
irretrievably broken
down.
[3]
Accordingly, the arbitrator substituted the
sanction of dismissal with a final written warning and reinstated her
without back pay
rather than full reinstatement.
[4]
The applicant seeks to review the award
on the grounds that the award was not one that a reasonable
arbitrator could have
made because:
4.1
The arbitrator’s conclusion that she
was remorseful could not be sustained because-
4.1.1
she had sought to blame customers for
coercing her into using her card, which was highly improbable given
that she had swiped her
own card 28 times on the day in question.
4.1.2
She claimed not to be provided with the
required training for her positing including training in the use of
the smartcard
,
whereas
evidence was provided to the
contrary.
4.2
The third respondent was a cashier, a
position which required the utmost honesty and integrity.
4.3
It was inconceivable the applicant could
trust her in that position.
4.4
The applicants treated the offence
seriously and dismissed other employees for such misconduct.
[5]
There
was an
in
limine
challenge to the authority of the deponent to the founding affidavit
to institute review proceedings on behalf of the applicant,
but this
objection falls away in light of the authority of the SCA judgment in
[zRPz]
Unlawful
Occupiers, School Site v City of Johannesburg
[1]
Merits
of the review
[6]
What the record shows is that:
6.1
The third respondent knew even from the
training that she claims she only received from her fellow cashier’s
that they were
not supposed to use their personal smart shopper cards
to accumulate points from customers’ purchases. However she
claimed
that she only took this seriously when the store manager
confronted her. She did not offer any explanation why she should have
disbelieved what the other cashiers had told her. It was suggested in
argument that it was only after she learnt this from the manager
that
it was confirmed by other cashiers, but the transcript clearly
indicates that she heard about the rule before the manager
confronted
her. Rather than seeking certainty if she had any doubt that there
was such a rule she chose to ignore what the other
cashiers had told
her viz:
“
Ms
Camelio: When he asked me what happened with my Smart Shopper card I
told him what happened. Then he asked me to I think it was
right or
wrong what I did, and I said I think it was wrong.
Mr
Paulos: now why did you think it was wrong?
Ms
Camelio: when he told me about the policy but were not supposed to
use our smart shopper cards,
I heard it from the cashier’s
but I did not know if it was the truth will not
. So
when I
heard it from him
I felt for me it was wrong.
Mr
Paulos: I am not sure if you understand, I am not getting your
answer. For somebody that did not receive training, as you claim,
and
yet when confronted by Management on your actions on the 17
th
,
you are happy to admit that you are wrong.
Ms
Camelio: yes
Mr
Paulos: now my question is wedded that admission come from for
somebody who does not know any better?
Mr
Williams: Objection, Commissioner, I think the applicant answered
that question because the applicant says the reason why he
answered it was wrong, he heard from the other cashier’s
that this is wrong to earn points from customers and then he did not
take them seriously and then when they store manager raised this
issue again he saw it is serious and that is why he said he believed
that he was wrong, because the store manager asked it was not right
or wrong, then she said it was wrong, after being told that
she does
know the policy does not allow that she must claim the points. That
question was answered.”
[7]
It is only after this exchange that the
applicant then corrected herself to say that she only heard that what
she had done was wrong
from the other cashiers after the manager had
told her what the policy was. However, it is difficult to see how the
variation in
her version can reasonably be accepted when it is
obvious from her initial statement and from that of her
representative at the
arbitration that she was saying that it was
only when she heard the same thing from her manager that she took it
seriously. It
makes no sense why she would have said she did not take
it seriously when she heard it from the other cashiers if she only
heard
it from them after her manager had already told her about the
policy. Clearly this statement was an admission that she had heard
about the policy but did not accept that it was true until the
manager confirmed it.
[8]
The third respondent persisted in arguing
that customers had insisted that she used her card and she only
thought it would be wrong
to use her personal card without the
customer’s permission. This in itself was a tacit admission
that she knew there was
a rule against crediting her own card with a
customer’s points, coupled with a contention that there were
exceptions to the
rule if the customer insisted on donating their
points to the cashier.
Evaluation
[9]
The difficulty with the arbitrator’s
conclusion that the applicant showed remorse is that it was an
admission of having done
wrong by someone who nonetheless persisted
with a wholly implausible explanation that on 28 occasions on the
same day customers
had insisted on her using her card, and she had
innocently believed that when this happened the rule that she could
not use her
own card to accumulate customers points did not apply.
The arbitrator’s reasoning tacitly accepts the implausible
explanation,
which no reasonable arbitrator would have accepted when
the most obvious explanation is that she most probably used her own
card
when the customer did not ask her to swipe their own, which was
a contravention of the rule she was aware of but chose not to
believe.
[10]
As such it was not a candid admission of
acting in breach of the policy but an attempt to justify her actions
as being based on
an innocent belief that there were exceptions to
the rule and that on each occasion when she swiped the card 28 times
that day
she did so because the exception was applicable, which is
plainly unbelievable.
[11]
The
third respondent also argued that the employer had not presented any
evidence that the employment relationship had irretrievably
broken
down, but specific evidence is not a
sine
qua non
before that conclusion can be reached and depends on the context.
[2]
Misconduct involving dishonesty will usually be destructive of the
employment relationship, absent circumstances in which
the dishonesty
does not impact on the employer’s business. See
Absa
Bank Ltd v Naidu & others
.
[3]
In this case, the applicant was a cashier and it is difficult to see
how the arbitrator could reasonably have believed that,
given her
contrived and implausible rationale for what she did, the employer
could have felt assured that she was someone who could
be trusted to
perform her duties with integrity.
[12]
The mere fact that the third respondent,
with fourteen months’ service, did not have a prior
disciplinary record could not,
in the light of the above, reasonably
justify retaining the third respondent.
Order
[13]
In light of the above reasoning:
13.1
The arbitration award of the second
respondent dated 15 November 2015 under case number ECPE 4009-13 is
reviewed and set aside.
13.2
The finding that the dismissal of the third
respondent was substantively unfair and consequential relief in
paragraphs 31 to 34
of the award is substituted with a finding that
the third respondent’s dismissal was substantively fair.
13.3
No order is made as to costs
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
S Dube of Bowman Gillfilan Inc.
THIRD
RESPONDENT: T Moquechane of JAMAFO
[1]
2005
(4) SA 199
(SCA)
at
206-207, paras [14]-[15]
[2]
In
Anglo
Platinum (Pty) Ltd (Bafokeng Rasemone Mine) v De Beer & others
(2015) 36 ILJ 1453 (LAC)
at 1462, fn 8, the LAC said “Insofar as the requirement to
lead evidence to establish a breakdown in the employment
relationship
is concerned,
Edcon
Ltd v Pillemer NO & others
(2009)
30 ILJ 2642 (SCA)
;
[2010] 1 BLLR 1
(SCA) turned on its own
facts, and was not the law when the commissioner's award in this
dispute was handed down.”
[3]
(2015)
36
ILJ
602 (LAC)
At
622-623, viz: “
“
[53]
In
De
Beers Consolidated Mines Ltd
,
26
the
court further pointed out that 'the seriousness of dishonesty —
ie whether it can be stigmatized as gross or not —
depends not
only, or even mainly, on the act of dishonesty itself but on the way
in which it impacts on the employer's business'…
[54]
…
[55] On the issue of the
breakdown in the trust relationship occasioned by an employee's
dishonest misconduct, this court (per
Davis JA) in
Shoprite
Checkers (Pty) Ltd v CCMA & others
, stated the following
:
'[T]his
court has consistently followed an approach, laid out early in the
jurisprudence of the Labour Court in
Standard
Bank SA Ltd v CCMA & others
(
1998)
19 ILJ 903 (LC)
;
[1998] 6 BLLR 622
(LC) at paras 38-41 where Tip AJ said:
"It
was 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 dishonesty is
one that goes to the heart of the employment relationship
and is
destructive of it."'
[56]
I am satisfied that, on the basis of her dishonest and fraudulent
misbehaviour in relation to Mr Khan's matter, Ms Naidu's
trust
relationship with the appellant was, indeed, irreparably broken
down. In my view, any plea of remorse, genuine or otherwise,
was, in
the circumstances of this case, most unlikely to bring back
that trust, which was the cornerstone of her employment
relationship with the appellant.”