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[2015] ZALCCT 15
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Jacobs v CCMA and Others (J 1031/10) [2015] ZALCCT 15 (13 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Case no: J 1031/10
DATE: 13 FEBRUARY 2015
Not Reportable
In the matter between:
GIOVANNI
JACOBS
.....................................................................
Applicant
And
CCMA
................................................................................
First
Respondent
JOSEPH THEE
N.O
.....................................................
Second
Respondent
SOUTH AFRICAN POST
OFFICE
..............................
Third
Respondent
Heard: 10 February 2015
Delivered: 13 February 2015
Summary: Review – misconduct –
conclusion reasonable.
JUDGMENT
STEENKAMP J
Introduction
[1] The applicant, Mr Giovanni Jacobs,
seeks to have an arbitration award by the second respondent,
commissioner Joseph Thee, reviewed
and set aside.
[2] Jacobs was dismissed by the third
respondent, the South African Post Office. The commissioner found
that his dismissal was fair.
Background facts
[3] Jacobs was a branch manager at the
West Coast Mall. The branch manager at Vredenburg, Llewellyn Visagie,
was instructed to conduct
a stock audit at the West Coast Mall
branch. When he got there, Jacobs volunteered the information that
his “float”
was short in an amount of R100, 00. He had
put in the amount of R490 instead of R590.
[4] Visagie checked the money and found
that R100 was short. He offered Jacobs the opportunity to pay in the
money but Jacobs refused.
[5] An investigator, Andre Opperman,
testified that Jacobs at first admitted that the money was short, but
then denied it.
[6] At a disciplinary hearing, the
chairperson found that Jacobs had indeed overstated the cash on hand.
The Post Office dismissed
him.
[7] The arbitrator was satisfied that
the Post Office had a rule in place dealing with the procedure to be
followed in dealing with
shortages and discrepancies. Jacobs was
aware of the rule. The arbitrator found Visagie’s evidence more
credible than that
of Jacobs, who simply denied the misconduct after
initially having admitted that the amount was short. With regard to
sanction,
the arbitrator considered the fact that Jacobs was this
earlier admission; and that he had shown no remorse. He found
dismissal
to be fair.
Evaluation
[8] In the review hearing, Mr Van Zyl,
for the applicant, essentially re-argued his client’s case. He
attempted to cast doubt
on the way the investigation was conducted,
e.g. the question whether two people were present when the money was
counted. He also
argued that there was no clear evidence that the
R100 actually went missing.
[9] Neither in the founding affidavit
nor in the oral argument did the applicant set out any clear grounds
of review. This was a
case that was squarely premised on the Sidumo
test, i.e. whether the conclusion reached by the arbitrator was so
unreasonable that
no other arbitrator could have come to the same
conclusion. (The test is not, as Mr Van Zyl submitted, whether
another arbitrator
could have come to a different conclusion. It is
the exact opposite. It may well be that another arbitrator could
reasonably have
come to a different conclusion. That does not make
the award reviewable. It is only open to review if it is so
unreasonable that
no other arbitrator could have come to the same
conclusion).
[10] The arbitrator carefully analysed
the evidence before him. He assessed the credibility of the
witnesses. He made a factual
finding that Jacobs had contravened the
rule in question. He considered the question whether, taking the
contravention and the
employee’s responsibilities into account,
dismissal was a fair sanction. He concluded that it was. That falls
within a range
of reasonable outcomes. The award is not open to
review, as opposed to appeal.
Order
The application for review is
dismissed.
Steenkamp J
APPEARANCES
APPLICANT: G van Zyl (attorney).