About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2015
>>
[2015] ZALCJHB 385
|
|
Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR2711/12) [2015] ZALCJHB 385 (6 November 2015)
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
reportable
Not of interest to other
judges
Case No: JR2711/12
In
the matter between:
PICK
‘N PAY RETAILERS (PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
LAWRENCE
NOWOSENETZ
N.O
JAMAFO
obo QUEEN KLAAS
Second
Respondent
Third
Respondent
Heard
:
14 October
2015
Delivered
:
6 November
2015
Summary
:
Review. Consumption of food items. Employee tried to deceive the
Commission by attempting to introduce false evidence and showing
no
remorse. Application for review granted with costs.
JUDGMENT
AC BASSON J.
[1]
This is an application to review and set aside an award by the third
respondent (hereinafter referred
to as “the Commissioner”)
in terms of which the dismissal of the third respondent (Ms Klaas -
hereinafter referred
to as “the respondent”) was found to
be substantively and procedurally unfair. The commissioner ordered
the respondent’s
reinstatement.
Brief
exposition of the relevant facts
[2]
At the time of her dismissal the respondent was employed as a
Customer Services Manager, a position
that she has held for the
previous five years. The applicant’s Northern region suffered a
loss of approximately R9.6 million
as a result of stock shrinkage for
the period 1 September 2011 to 29 February 2012 (five months). The
applicant’s Irene Store
(where the respondent was employed)
suffered la loss of R 106 514.52 over the same period.
[3]
The events leading to the respondent’s dismissal can briefly be
summarized as follows: As
a result of extensive losses suffered by
the applicant, video footage from closed circuit cameras in the
applicant’s Irene
store was released to management in September
2010. The video footage was reviewed together with other footage
received at the
end of 2010 concerning possible disciplinary action
against other employees. The video footage revealed an incident
during which
the respondent was seen eating a custard slice. From the
video it can be seen that the food preparer – a certain Ms
Komane
- was cutting custard slices and putting them on a tray. The
respondent approached her and removed with her finger a piece of the
custard slice from a tray and licked her finger. Komane then cut a
portion for the respondent which she then eats.
[4]
The respondent’s version at arbitration was that she tasted the
custard slice following
a complaint received by a customer. The
respondent steadfastly maintained that it was her duty to ensure that
customer complaints
are handled appropriately and that included her
tasting food if and when required. The respondent therefore
maintained that she
merely “tasted “the custard slice as
opposed to consuming it.
[5]
The respondent had, however, as required, not obtained permission
from the store manager to taste
the custard slice; the custard slice
was not tasted within the designated food area and lastly, food
safety procedures were not
followed during the tasting exercise. In
this regard the evidence of the applicant was that, in order to
prevent pilferage and
shrinkage, the applicant has strict rules in
place with regard to the consumption of company food items. One of
these rules is
that no employee in the organisation has the right to
take a product and consume the product without the authorisation of
the store
manager or, in the absence of the store manager, the
assistant store manager. Breach of this rule is treated seriously and
all
employees found guilty of an authorised consumption of company
property are dismissed. The applicant’s version further was
that the respondent’s duties did not include tasting food.
[6]
On 18 January 2011 the respondent was charged with dishonesty in
consuming company property without
paying for it or without
authority; breaking company rules and not following’s food
safety rules. Following an internal disciplinary
enquiry which took
place on 30 May 2011 the respondent was found guilty of committing
misconduct. She was dismissed on 6 June 2011.
The respondent
thereafter took the applicant’s decision on appeal. The appeal
hearing was heard on 27 June 2011 and the outcome
was delivered on 15
July 2011. The decision to dismiss the respondent was upheld on
appeal.
The
award
[7]
The Commissioner concluded on the evidence that the respondent did
not “taste” the
custard slice but that she in fact was
“consuming”. Having found the respondent guilty as
charged, the Commissioner
then proceeded to evaluate the fairness of
the sanction of dismissal. In this regard the Commissioner concluded
that, notwithstanding
the fact that consumption amounted to theft,
every case had to be evaluated with reference to its own
circumstances. The Commissioner
concluded that dismissal was too
harsh a sanction and that viable alternatives to dismissal were not
considered by the applicant
when it took the decision to dismiss the
respondent. Furthermore, according to the Commissioner, the trust
relationship has not
irreparably broken down. In arriving at this
decision the Commissioner took into account that the continued
employment relationship
was not intolerable in light of the fact that
the respondent was not suspended pending the enquiry:
“
[37]
..In my view the Applicant has shown herself irresponsible and
unworthy of managerial responsibilities, but this does not
necessarily render her untrustworthy as an employee in a lower
position. She deserves an opportunity to rehabilitate herself. This
view is based on a clean record and seven years of service which is
substantial. Demotion and a final written are more appropriate
sanction is in my view. Commissioners frequently prescribe
alternative sanctions in awards and curiously the courts have never
rejected this practice even though there is no express statutory
authority to do so. The Respondent is thus at liberty to reconsider
the question of sanction
de novo
based merely on what should
be regarded as a recommendation.
[38]
In conclusion, having regard to all the circumstances including
recent approaches to consumption cases both in the CCMA and
by the
courts, my finding is that the sanction was inappropriate and the
dismissal was accordingly substantively unfair.”
[8]
In respect of procedural fairness, the Commissioner was of the view
that the delay in convening
the disciplinary enquiry was unreasonable
in light of the fact that the respondent was charged seven months and
seven days after
the offence was committed.
The
review
.
[9]
The applicant submitted that the Commissioner acted unreasonably by
failing to apply his mind
to a number of material relevant facts and
if he had done so, the result of the arbitration award may have been
different. More
in particular it was contended that the Commissioner
failed to apply his mind to the materially relevant fact that the
respondent
was grossly dishonest and that she had not shown any
remorse. In this regard the respondent testified that the customer
had complained
about the custard slice at approximately midday on the
day where as it was clearly impossible as the video footage showed
that
the respondent had tasted the custard slice at 9H15 in the
morning. Furthermore, the respondent’s dishonesty went so far
as her involving the manager of the Jeep store (in the same shopping
complex) and requesting her to pretend to be the customer who
laid a
complaint about the custard slice. The respondent even went as far as
to write an unsigned letter supposedly from the customer
setting out
the complaint which later was submitted as evidence at the
disciplinary hearing but rejected as inadmissible as the
so-called
customer was not called in to testify. It was also submitted that the
Commissioner failed to take into account that the
applicant has clear
house rules and a clear tasting policy which the respondent is well
aware of. Despite the fact that the applicant
was aware of the
policies, she intentionally did not follow them.
[10]
It was also submitted that the Commissioner reached an unreasonable
decision by concluding that
the dismissal of the respondent was too
harsh.
Evaluation
[11]
The only issue in contention in this review is the appropriateness of
the sanction for the reasons
contained in the applicant’s
grounds of review.
[12]
The
Constitutional Court in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
confirmed that the test to be applied in applications for review is
that of the “reasonable decision maker”. The Labour
Appal
Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA and others
[2]
pointed
out that it is not sufficient for an award to be set aside simply to
establish a gross irregularity in the conduct
of the arbitration
proceedings. It is incumbent on an applicant to establish that the
result was unreasonable or ‘
put
another way, whether the decision that the arbitrator arrived at is
one that falls outside the band of decisions to which a
reasonable
decision-maker could come to on the available material
’.
In the recent of the Labour Appeal Court in
Head
of the Department of Education v Mofokeng and others
[3]
the Labour Appeal Court again emphasised the restrictive scope of a
review:
“
[32]
However, sight may not be lost of the intention of the
legislature to restrict the scope of review when it enacted
section
145
of the LRA, confining review to “defects” as defined in
section
145(2)
being misconduct, gross irregularity, exceeding powers and improperly
obtaining the award. Review is not permissible on the same
grounds
that apply under PAJA. Mere errors of fact or law may not be enough
to vitiate the award. Something more is required. To
repeat: flaws in
the reasoning of the arbitrator, evidenced in the failure to apply
the mind, reliance on irrelevant considerations
or the ignoring of
material factors etc must be assessed with the purpose of
establishing whether the arbitrator has undertaken
the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent
or patent
irregularities and instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively)
as to result in a
misconceived inquiry or a decision which no reasonable decision-maker
could reach on all the material that was
before him or her.
[33]
Irregularities or errors in relation to the
facts or issues, therefore, may or may not produce an
unreasonable
outcome or provide a compelling indication that the arbitrator
misconceived the inquiry. In the final analysis, it
will depend on
the materiality of the error or irregularity and its relation to the
result. Whether the irregularity or error is
material must be
assessed and determined with reference to the distorting effect it
may or may not have had upon the arbitrator’s
conception of the
inquiry, the delimitation of the issues to be determined and the
ultimate outcome. If but for an error or irregularity
a different
outcome would have resulted, it will
ex hypothesi
be material
to the determination of the dispute. A material error of this order
would point to at least a
prima facie
unreasonable result. The
reviewing judge must then have regard to the general nature of the
decision in issue; the range of relevant
factors informing the
decision; the nature of the competing interests impacted upon by the
decision; and then ask whether a reasonable
equilibrium has been
struck in accordance with the objects of the LRA. Provided the right
question was asked and answered by the
arbitrator, a wrong answer
will not necessarily be unreasonable. By the same token, an
irregularity or error material to the determination
of the dispute
may constitute a misconception of the nature of the enquiry so as to
lead to no fair trial of the issues, with the
result that the award
may be set aside on that ground alone. The arbitrator however must be
shown to have diverted from the correct
path in the conduct of the
arbitration and as a result failed to address the question raised for
determination.”
[13]
This
decision was quoted with approval by the Labour Court in
Shoprite
Checkers v Commission for Conciliation, Mediation and Arbitration and
others
[4]
where Myburgh, AJ summarised the position regarding reviews as
follows:
“
[9]
This
dictum
in
Mofokeng
says
many important things about the review test. But for present
purposes, consideration need only be given to the guidance that
it
provides for determining when the failure by a Commissioner to
consider facts will be reviewable. The
dictum
provides for the following mode of
analysis:
(a)
the first enquiry is whether the facts ignored
were
material
, which will be the case if a consideration of
them would (on the probabilities) have caused the Commissioner to
come to a different
result;
(b)
if this is established, the (objectively wrong)
result arrived at by the Commissioner is
prima facie
unreasonable;
(c)
a second enquiry must then be embarked upon –
it being whether there exists a basis in the evidence
overall to
displace the
prima facie
case of unreasonableness; and
(d)
if the answer to this enquiry is in the negative,
then the award stands to be set aside on review on the
grounds of
unreasonableness (and
vice versa
).
[10]
The shorthand for all of this is the following: where a Commissioner
misdirects him or herself by ignoring
material facts, the award will
be reviewable if the distorting effect of this misdirection was to
render the result of the award
unreasonable.”
[14]
It
is in light of these decisions that the review court must consider
whether the conclusion reached by the Commissioner “
falls
outside the band of decisions to which a reasonable decision-maker
could come to on the available material
’.
Before I turn to this exercise and because this review essentially
turns on the appropriateness of the sanction, it is
necessary, to
briefly highlight what the Constitutional Court
in
Sidumo
[5]
held
in respect of the duty of a Commissioner in imposing a sanction:
“
[75]
It is a practical reality that in the first place it is the employer
who hires and fires. The act of dismissal
forms the jurisdictional
basis for a commissioner, in the event of an unresolved dismissal
dispute, to conduct an arbitration in
terms of the LRA. The
commissioner determines whether the dismissal is fair. There are
therefore no competing ‘discretions’.
Employer and
commissioner each play a different part. The CCMA correctly submitted
that the decision to dismiss belongs to the
employer but the
determination of its fairness does not. Ultimately, the
commissioner's sense of fairness is what must prevail
and not the
employer's view. An impartial third party determination on whether or
not a dismissal was fair is likely to promote
labour peace.
[76]
The view that if there was no deference afforded to the employer's
sanction there would be a flood
of cases to the CCMA is no more than
supposition. As the Labour Appeal Court correctly stated in Engen
Petroleum:
'[It] reveals a failure
to appreciate the full rationale behind the creation of the CCMA. It
is right and proper that as many disputes
as possible that are not
resolved amicably in the workplace, should be referred to the CCMA
or bargaining councils and other
mutually agreed fora for
conciliation and, later, arbitration, irrespective of what any one
may think of the merits or demerits
of such disputes. The existence
of the CCMA ... helps to channel, among others, workers' grievances
to where they can be ventilated
without any interruption and
disruption of production - at least up to a point. It is also right
and proper that unions should
be encouraged and not discouraged to
refer dismissal disputes with employers to the CCMA for arbitration
if they feel aggrieved
by such dismissals. In that way, they can
ventilate all issues about their grievances in regard to such
dismissals in that forum
before a third party, who can listen to all
sides of the dispute and, using his own sense of what is fair or
unfair, decide whether
the dismissal is fair or unfair. In that way,
the workers would have less urge to resort to industrial action over
dismissal disputes.'81
[77]
Employees are entitled to assert their rights. If by so doing a
greater volume of work is generated
for the CCMA, then the state is
obliged to provide the means to ensure that constitutional and labour
law rights are protected
and vindicated.
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality
of circumstances. He or she will
necessarily take into account the importance of the rule that had
been breached. The commissioner
must of course consider the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis
of the employee's challenge to the
dismissal.
There are other factors
that will require consideration. For example, the harm caused by the
employee's conduct, whether additional
training and instruction may
result in the employee not repeating the misconduct, the effect of
dismissal on the employee and his
or her long-service record. This is
not an exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not.
A commissioner is not given the
power to consider afresh what he or she would do, but simply to
decide whether what the employer
did was fair. In arriving at a
decision a commissioner is not required to defer to the decision of
the employer. What is required
is that he or she must consider all
relevant circumstances.”
Did
the Commissioner ignore facts that were material to the extent that
had the Commissioner considered these facts, he would have
come to a
different result?
[15]
The applicant in its Heads of Argument refers to numerous facts that
the Commissioner had failed
to consider. I am in agreement that the
following facts were not considered by the Commissioner and had he
done so he would have
arrived at a different conclusion:
(i)
The Commissioner failed to consider the real problem of pilfering
and
theft that this particular employer faced particularly in the dairy
and bakery sections of the Irene store. These losses with
the
substantial that it had resulted in the applicant dismissing 15 of
its employees.
(ii)
Although the Commissioner considered the fact that the applicant was
employed in a managerial capacity and concluded that as a manager
“
a higher standard of conduct is expected from her in
conforming to the Respondent’s policies and rules
”.
Having found this, the Commissioner nonetheless concluded that
reinstatement was appropriate despite the fact that “
the
Applicant has shown herself irresponsible and unworthy of managerial
responsibilities.”
The Commissioner therefore decided to
reinstate the respondent into the same managerial position he has
found her to be unworthy
of. This, in my view, is irrational.
Moreover, the Commissioner then makes the comment that the respondent
“
is at liberty to reconsider the question of sanction de
novo based merely on what should be regarded as recommendation
.”
This is likewise irrational: once reinstated the respondent is not at
liberty to decide the question of sanction
de novo
.
Furthermore, there is nothing in the award that constitutes a
“recommendation”.
(iii)
The
Commissioner failed to take into account the fact that the respondent
was dishonest in that she went so far as to involve the
manager of
the Jeep store in the same shopping mall and requested her that she
pretend to be the customer who had laid a complaint
about the custard
slice. The Commissioner also completely disregarded the fact that the
respondent went as far as to write an unsigned
letter supposedly from
the customer sitting out the complaint and that she had admitted this
letter as evidence at the disciplinary
hearing. Had the Commissioner
taken this into account, the Commissioner would not have arrived at
the decision to reinstate the
respondent. The Commissioner also
failed to take into account the fact that respondent continued to lie
to the applicant and the
Commissioner throughout the arbitration to
the extent that the Commissioner himself found that her version was
impossible and to
the extent that the respondent was untruthful. In
Hulett
Aluminium Pty Ltd v Bargaining Council
for
the Metal Industry
[6]
the Court held that it would be unfair to expect of an employee to
take back an employee when the employee has persisted with his
or her
denials and has not shown any remorse.
(iv)
The
Commissioner also failed to take into account that the respondent
showed no remorse
[7]
but instead, as already pointed out, tried to deceive the applicant
by involving the manager of another store to pretend that she
was the
customer who had laid a complaint. In this regard the court in
De
Beers Consolidated Mines Ltd v CCMA and Others
[8]
held as follows:
“
[25]
It would in my view be difficult for an employer to re-employ an
employee where shown no remorse. Acknowledgement of wrongdoing
is the
first step towards rehabilitation. In the absence of a recommitment
to the employer’s workplace values, any pre-cannot
hope to
re-establish the trust relationship which he himself has broken.”
(v)
According to the applicant the actions of the respondent were in
breach
of applicant’s well-known rules and policies. An
employer is entitled to regard all non-compliance with its rules
severely.
In this regard the context within which the respondent was
dismissed by the applicant is important: She was in a managerial
position
and she clearly must have been aware of processes and
policies regarding tasting of products.
(vi)
The Commissioner held that there was no breakdown in the trust
relationship
because the applicant relied merely on the say-so of Van
der Merwe (the previous manager) and because the chairman of the
applicant’s
disciplinary hearing did not testify at all. I am
in agreement with the submission that the say-so of Mr Van der Merwe
is in fact
material in light of the fact that he was the manager of
the store at the time of the transgression. His evidence in this
regard
was not challenged and there was no basis for it to be
rejected. Regarding the failure to call the chairman; it should be
noted
that there is no obligation for the chairman of the enquiry to
testify. Furthermore the role of a chairman is merely to assess
whether the manager’s testimony that the relationship had
broken down irretrievably stood up to scrutiny.
[16]
The applicant further submitted that the Commissioner committed a
gross irregularity and reached
an unreasonable decision by making a
material error of law in concluding that the dismissal of the
respondent was too harsh. The
applicant referred to the fact that it
is settled law that in cases where an employee is found guilty of
dishonesty, the dishonesty
alone may be sufficient to warrant a
dismissal, even in circumstances where the employee has a long
service record particularly
in cases where the employee shows no
remorse. The applicant submitted that the Commissioner clearly did
not consider and apply
his mind to the law. I am in agreement with
the submission: Not only is the respondent guilty of dishonesty, she
also showed no
remorse and refused to take any responsibility for her
actions. What compounds matters is the fact that the respondent tried
to
mislead the Commissioner when giving evidence.
Procedural
fairness
[17]
In respect of the procedural fairness the Commissioner held that the
dismissal was procedurally
unfair but declined to award any
compensation in light of the applicant’s “untruthful
denial of any wrongdoing”.
There is no cross-review regarding
this finding. I have nonetheless perused the findings in this regard
and I am of the view that
the finding in respect of procedural
unfairness must stand. I am however, in agreement with the
Commissioner that the respondent
should not be awarded any
compensation in respect of the procedural unfairness in light of the
consideration that she had been
untruthful and in fact tried to
mislead the Commissioner as well as her employer.
Costs
[18]
In respect of costs I can see no reason why costs should not follow
the result.
Order
[19]
In the event the following order is made:
19.1
The dismissal of the third respondent. Ms Queen Klaas was
substantively fair but procedurally unfair.
19.2
I make no order in respect of the finding of procedural unfairness.
19.3
The third respondents are ordered to pay the costs.
AC BASSON
Judge of the Labour Court
Appearances:
For
the applicant : Mr G Damant of Bowman
Gilfillan Incorporated
For
the respondent : Mr T. Moqechane of JAMAFO
[1]
(2007) 28 ILJ 2405 (CC).
[2]
[2014] 1 BLLR 20 (LAC).
[3]
[2015]
1 BLLR 50
(LAC). Footnotes omitted.
[4]
[2015]
10 BLLR 1052 (LC).
[5]
Supra
[6]
[2008] 3 BLLR 241 (LC).
[7]
Absa
Bank Ltd v Naidu and others
(2015) 36 ILJ 602 (LAC): “[46] Obviously, the fact of a guilty
plea per se or mere verbal expression of remorse is
not
necessarily a demonstration of genuine contrition. It could be
nothing more than shedding crocodile tears. Therefore, the
crucial
question is whether it could be said that Ms Naidu's utterances
empirically and objectively translated into real and
genuine
remorse. In
S
v Matyityi
,
the Supreme Court of Appeal remarked as follows on this issue:
'There is, moreover, a
chasm between regret and remorse. Many accused persons might well
regret their conduct, but that does not
without more translate to
genuine remorse. Remorse is a gnawing pain of conscience for the
plight of another. Thus genuine contrition
can only come from an
appreciation and acknowledgement of the extent of one's error.
Whether the offender is sincerely
remorseful, and not simply feeling
sorry for himself or herself at having been caught, is a factual
question. It is to the surrounding
actions of the accused, rather
than what he says in court, that one should rather look. In order
for the remorse to be a valid
consideration, the penitence must be
sincere and the accused must take the court fully into his or her
confidence. Until and
unless that happens, the genuineness of the
contrition alleged to exist cannot be determined. After all,
before a court
can find that an accused person is genuinely
remorseful, it needs to have a proper appreciation of, inter alia:
what motivated
the accused to commit the deed; what has since
provoked his or her change of heart; and whether he or she does
indeed have a
true appreciation of the consequences of those
actions.'
[8]
(2000) 21 ILJ 1051 (LC).