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[2015] ZALCJHB 395
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Engen Stargan (Pty) Ltd t/a Kroonvaal 1 Stop v NUMSA obo Ntoahae and Others (JR2493/2012) [2015] ZALCJHB 395 (13 November 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
/Not
Reportable
Case no: JR 2493/2012
In
the matter between:
ENGEN
STARGAN (PTY) LTD t/a KROONVAAL 1
STOP
Applicant
and
NUMSA
obo MARIA PULANE
NTOAHAE
First Respondent
E
N
THOABALA
Second Respondent
DISPUTE RESOLUTION
CENTRE OF THE
MOTOR
INDUSTRY BARGAINING
COUNCIL
Third Respondent
Heard:
9 July 2015
Delivered:
13 November 2015
JUDGMENT
Bank; AJ
[1]
This is an application
for the review of an arbitration award handed down by the second
respondent (“the Commissioner”)
on 26 August 2012 in
which the dismissal of the first respondent (“the employee”)
was found to be substantively unfair.
The applicant (“the
employer”) was ordered to make a retrospective payment to the
employee equivalent to four months’
salary in the amount of
R9,052.20 before 30 September 2012 and she was also reinstated with
effect from 15 September 2012.
[2]
The employee was
dismissed on 20 March 2012 for gross misconduct in having taken a
hamburger without permission and without following
the proper
procedure for the employer’s staff to purchase food. The
employee was working at the employer’s Wimpy Restaurant
found
on the N1 Highway between Johannesburg and Kroonstad.
[3]
The evidence from the
employer is to the effect that the proper procedure for staff wishing
to purchase food is to inform the manager
of the Wimpy that they wish
to do so, whereupon the manager must go to the cashier, order the
food on behalf of the employee, accept
money from the employee for
payment of such food and pay the cashier. Once the manager obtains a
cash register slip from the cashier,
he must then sign it. The slip
is taken to the restaurant, the food is ordered, and then given by
the manager with the signed register
slip back to the employee who
consumes the food (presuming such food has not gotten too cold by
this time).
[4]
The incident in
question was discovered when the employer viewed certain video
footage in relation to an investigation into another
employee’s
disciplinary transgression. This led to a disciplinary enquiry
against the employee in which it was found that
she had been
dishonest in what she had done. A sanction of dismissal was imposed.
[5]
Thereafter, the
employee referred a dispute to the DRC for the MIBC and the matter
was arbitrated at Welkom on 9 July 2012.
The arbitration award
[6]
During the arbitration
proceedings, certain video footage was shown to the Commissioner and
oral evidence led as well. Sina Bangane
(“Bangane”), the
Wimpy manager, testified on behalf of the employer that co-employees
could only purchase food from
her own allowance with her permission,
provided that she was consulted first. Under cross-examination she
appears to have conceded
that she had earlier testified at the
disciplinary enquiry that she had in fact consented to allow the
employee to purchase a Dagwood
sandwich and had also earlier
testified at the enquiry that this was not the first time the
employee had obtained food in this
manner. Bangane, however, denied
this at the arbitration.
[7]
The employee’s
managing director Mr JJ Du Toit also led evidence of some 10 written
warnings that had been handed down to
the employee in question
between 13 January 2011 and 25 February 2012. All of these warnings
were, however, regarding failures
to adhere to certain procedures or
mistakes made in the course of work. None of these constitute
offences involving dishonesty
nor was a final written warning ever
imposed on the employee.
[8]
The employee testified
that she had worked as a griller at the Wimpy Kroonvaal for some nine
years and vehemently denied that she
had stolen from the company. She
did acknowledge that she had taken a Dagwood sandwich on the day but
this had been done with authorisation
and permission. She gave
testimony regarding her friendship with Bangane who would sometimes
buy food for the employee, despite
the rule that this should not be
done without a cash register slip being provided. She confirmed that
she and Bangane would share
food in this manner.
[9]
Only the substantive
fairness of the dismissal was in issue. The Commissioner found that
there was indeed a rule in place regarding
the correct procedure for
signing off slips where staff purchase food, but found that this was
a rule directed at cashiers and
not towards other employees. The
Commissioner also found that certain contradictions arose from the
respondent’s witnesses..
In essence, the Commissioner found
that the employer’s evidence relating to the employee’s
possession of company stock
(ie food) “had weaknesses” in
that a practice had developed in the workplace which flouted the rule
that cashiers could
not purchase food for other staff.
Grounds of review
[10]
The grounds of review
set out in the founding affidavit are rather scant and are confined
to a complaint that the Commissioner did
not interpret and recollect
the company’s evidence correctly. It is also stated that
further evidence was presented during
the arbitration as to the
impact that the alleged dishonesty had had on the trust relationship
thereby justifying dismissal as
the appropriate sanction. Finally, it
is alleged that the Commissioner disregarded the overwhelming
evidence of the employee’s
guilt but decided the matter on the
fact that the rule in question did not apply to the employee in
question. The Commissioner
thus held that the employee had not
contravened a rule applicable to her and found the dismissal to be
substantively unfair. This
reasoning and finding, it is complained,
constitutes misconduct that renders the arbitration award reviewable.
Analysis
[11]
The arbitration award
does not provide the level of detailed analysis that one would have
hoped for but, reading between the lines,
it is clear to me that the
Commissioner was of the view that the dismissal was substantively
unfair without going so far as to
state that the employee was
entirely innocent. There is nothing wrong with such a conclusion. The
employee’s evidence to
the effect that she and Bangane were
friends and had a good relationship was not contradicted. It seems
clear to me, on a review
of the evidence led, that the employee and
Bangane had cooperated in forming a private arrangement to help each
other with the
sharing of lunches and the buying of food, despite the
fact that there was a rule in place. The Commissioner’s finding
that
this rule was not only not directly applicable to the employee
in question but, more importantly, that it was not consistently
applied, cannot be faulted. It is clear to me that whatever rule was
in place, it was more honoured in the breach than in the observance.
I take note of the employee’s argument that, apart from Du
Toit’s say-so, there was no clear evidence of a breakdown
of
the trust relationship between the parties and also, that the
sanction of dismissal was too harsh in the circumstances. It is
regrettable that the Commissioner did not state this in so many
words, but there is of course reference (in paragraph 5.5 of the
award) to the question of whether dismissal is an appropriate
sanction for the contravention of the rule of standard in question.
Having found that there was in fact no such rule and that, even if
there were such a rule, it had not been consistently applied
by the
employer, then it goes without saying that the sanction of dismissal
imposed would be inappropriate and fall to be set aside.
[12]
In my view, the
arbitration award, though flawed, does not meet the threshold of
unreasonableness that has been laid down in the
well-known decisions
of
Sidumo and
Another v Rustenburg Platinum Mines Ltd and Others
(2007) 28
ILJ
2405 (CC) and
Palaborwa
Mining Co Ltd v Cheetham and Others
(2008) 29
ILJ
306 (LAC). I find that a reasonable decision-maker in the position of
the Commissioner could have well reached the decision that
the
employee’s dismissal was substantively unfair, particularly in
light of the existence of an alternative, such as a final
written
warning.
[13]
A review is not an
appeal. Even if I find the arbitration award to be somewhat lacking
in detail, I am not empowered to interfere
with the award in any
material respects, whether this be the Commissioner’s analysis
of the facts or the method by which
he reached his conclusion and the
reasons given for this. Ultimately, the Commissioner’s decision
in finding the employee’s
dismissal substantively unfair
certainly meets the threshold of reasonableness as expounded and
refined in the most recent case
law. I therefore find no reason to
interfere with the arbitration award.
[14]
For these reasons, the
application for review falls to be dismissed. I am disinclined to
make any costs order either.
[15]
In the result, I make
the following Order:
1.
The application for
review of the arbitration award dated 26 August 2012 is dismissed;
2.
There is no order as to
costs.
__________________________
Bank; AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES
For the
Applicant:
Mr S Simpson
Instructed by
Simpsons Attorneys
For the
Respondent:
S Mthiyane
Instructed
by:
NUMSA