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[2015] ZALCJHB 439
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Step Ahead v Mokwena NO and Others (JR1203/13) [2015] ZALCJHB 439 (28 December 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: JR 1203/13
Not Reportable
In the matter between:
STEP
AHEAD
Applicant
and
SELEELE MOKWENA
,
N.O.
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second Respondent
BOITUMELO
SEICHOKELO
Third
Respondent
Heard:
17 November 2015
Delivered:
28 December 2015
Summary: Review
application. The decision of the Commissioner failing to meet the
reasonable decision maker state
JUDGMENT
MOLAHLEHI, J
Introduction
[1]
This
is an application to review and set aside the arbitration award made
by the first respondent under case number GATW4191-13
and dated 03
May 2013 in terms of which the dismissal of the third respondent (the
employee) was found to have been substantively
unfair.
[2]
The
application was unopposed.
Background facts
[3]
The
applicant is involved in the retail shoe business, and has three
branches in Pretoria. The stock to the three branches are delivered
by the driver Mr Maswanganyi, who is also responsible for collecting
money for banking for the three branches. The banking is done
at the
Brooklyn Mall. The money collected from the two other branches is
counted and banked at the Brooklyn mall.
[4]
On
12 February 2013 Mr Maswangyani attended at the Irene Mall and
Woodlands Boulevard Mall where he collected the banking. He placed
the money collected in the shoe boxes to conceal the cash from
strangers. He proceeded to the Brooklyn Mall, where on arrival he
placed the money into the shoe boxes on a trolley. The trolley was
parked at the back of the store. After parking the trolley at
the
back of the store he then proceeded to the bathroom.
[5]
The
money collected was generally counted by Mr Maswanganyi and Ms
Masilela. On the return from the toilet both Mr Maswanganyi and
Ms
Masilela opened the shoe box where the cash had been placed. Upon
opening the box she discovered that the money in the amount
of
R669.00 was missing.
[6]
Initially
all the employees at the Brooklyn Mall were charged with the theft of
the missing cash. It was apparently established
during those
disciplinary hearing that the three employees who had knowledge that
the cash and the opportunity to remove it where
it was were Mr
Maswanganyi; Mss Masilela and the employee. After that the
disciplinary hearings were postponed and the three requested
to
subject themselves to a polygraph test.
[7]
The
disciplinary hearings resumed after the polygraph test which the
employee failed. The chairperson of the disciplinary hearing
found
after taking into account both the result of the polygraph test and
the evidence of the witnesses presented that the employee
was guilty
of theft and accordingly dismissed the employee.
[8]
Aggrieved
by the outcome of the disciplinary hearing the employees referred an
alleged unfair dismissed dispute to the CCMA, which
was ultimately
arbitrated upon by the Commissioner. As indicated above the
Commissioner found the dismissal to have been substantively
unfair
and accordingly ordered the applicant to pay compensation equivalent
to four months’ salary for that reason.
The grounds of review
[9]
The
applicant raised several grounds of review, the essence of which is
that the Commissioner failed to apply his mind to the facts
which
were properly placed before him. The applicant further contends that
the conclusion reached by the Commissioner is not justifiable
when
regard is had to the evidence and the material which were properly
placed before him.
The arbitration award
[10]
The
Commissioner in arriving at the conclusion that the dismissal was
unfair considered the testimony of the three witnesses who
testified
on behalf of the applicant. He found that the evidence of the second
witness did not link the employee to the missing
cash and that of the
third witness to have not been irrelevant.
Evaluation
[11]
The
test for review as set out is
Sidumo
and another v Rustenburg Platinum Mines Ltd and Others
[1]
is
that of a reasonable decision maker which requires the review Court
to determine whether the outcome of the arbitration proceedings
is
one which a reasonable decision maker could not reach. In terms of
this test a Commissioner in dealing with a dispute is required
to
ensure that the dispute is “fully and fairly” determined.
In determining the dispute fully and fairly the Commissioner
is
required to have regard to the material facts properly presented
before him or her. Failure to have regard to the material facts
properly before him or her is likely to taint the arbitration award
with unreasonableness.
[12]
In
the present matter the record reveals that in addition to the
testimony of the various witnesses the applicant presented evidence
also in the form of the polygraph test report. As indicated earlier
the employee was the only one who failed the test.
[13]
In
Truworths
Ltd vs Commissioner for Conciliation, Mediation and Arbitration &
Others
[2]
the
Court held:
‘
Despite
this negative inference which is unconnected with the evidence, the
commissioner does not draw a negative inference from
the fact that
the respondent herself had initially refused to go for a polygraph
nor from the fact that the respondent had actually
failed the
polygraph. No mention is also made of the fact that Wali who also
took the polygraph actually passed the polygraph.
Wali was in fact
found to be honest and cooperative. If the evidence in respect of the
polygraph is perused it appears that he
respondent had obtained very
low scores in her polygraph test and was in fact found to be
dishonest. Although it is trite law that
the probative value of a
polygraph test on its own is not sufficient to find a person guilty,
the result of a polygraph test is,
however, one of the factors that
may be considered in evaluating the fairness of a dismissal.’
[14]
The
Commissioner, in the present matter makes no reference to the outcome
of the polygraph test. This means in weighing the fairness
or
otherwise of the dismissal he did have regard to the polygraph test
results. This in my view was a serious and material omission
which
resulted in the material failure to fully and fairly determine the
dispute. I accordingly find that the decision made by
the
Commissioner was for this reason unreasonableness. The review
application accordingly stands to succeed. I do not however believe
that the Court is in a position to substitute the decision of the
Commissioner and therefore the matter stands to be remitted to
the
CCMA.
[15]
It
was for the above reasons that the following order was made:
1.
The
arbitration award issued by the first respondent under case number
GATW4191-13 dated 03 May 2013 is reviewed and set aside.
2.
The
matter is remitted to the second respondent to be heard by a
commissioner other than the first respondent.
________________
E, Molahlehi
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
AJ Posthuma of Snyman Attorneys
[1]
[2007]
12 BLLR 1097 (CC).
[2]
(2009)
30 ILJ 477 (LC).