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[2015] ZALCCT 37
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Baatjies v CCMA and Others (C765/2014) [2015] ZALCCT 37 (11 March 2015)
IN THE LABOUR COURT OF
SOUTH AFRICA
(WESTERN CAPE LABOUR
COURT, CAPE TOWN)
CASE NUMBER: C765/2014
DATE: 11 MARCH 2015
In the matter between:
MAGDALENA SUSANNA
BAATJIES
..................................................................................
Applicant
And
CCMA
............................................................................................................................
First
Respondent
GRAHAM PROCTOR
N.O
.....................................................................................
Second
Respondent
SHOPRITE CHECKERS (PTY)
LTD
......................................................................
Third
Respondent
J U D G M E N T
STEENKAMP, J:
This is an application for condonation
coupled with a review application pertaining to an arbitration award
handed down by the Commissioner,
Mr Graham Proctor, on 18 January
2014. It stems from an incident which is common cause where the
applicant, Ms Baatjies, who was
an employee of the third respondent,
Shoprite Checkers, left a branch of that store in Beaufort West
without having paid for six
bags of chicken to the value of R209,99.
The six bags were in the undercarriage
of her shopping trolley. She did ring up the one bag of chicken that
was in the top of the
trolley. On her version she told the cashier
to scan it another six times which did not happen. It is only when
she was phoned
by a controller, Ms Jacobs, that the employee returned
to the store to pay for the unpaid chicken.
Dealing with the application for
condonation I shall consider the well known principles set out in
Melane v Santam Insurance Company
Limited
1962 (4) SA 531
(A) and
also in the subsequent case of NUM v Council for Mineral Technology
[1999] 3 BLLR 209
(LAC).
The extent of the delay, as Ms
Cornellisen quite properly conceded, is excessive. The application
is six months late despite the
generous period of six weeks that is
allowed for review applications.
The explanation for the delay, once
again Ms Cornellisen conceded, is in her words, “scant”.
Ms Baatjies simply says
that she is a member of Legal Wise. She was
initially sent by that company to Rabie Attorneys in March 2014 but
they terminated
their mandate because Legal Wise owed them money.
She does not explain what happened to her previous attorney, Mr
Wagenaar, who
attempted to represent her at arbitration, also on the
instructions of Legal Wise.
For the next six months, between March
and August 2014, all she says is that she “had to constantly
contact the offices of
Legal Wise to find out whether a new attorney
had been appointed”. She does not provide any detail of what
those efforts
were, nor does she provide any proof such as itemised
bills from a telephone company or cell phone service provider or
emails or
letters or anything of this sort. As Mr Van Zyl pointed
out, in NUM v Council for Mineral Technology (supra) the LAC held
that:
“Without a reasonable and
acceptable explanation for the delay, the prospects of success are
immaterial, and without prospects
of success, no matter how good the
explanation for the delay, an application for condonation should be
refused”.
In the case before me the delay is
excessive and the explanation is so poor as to be non-existent. The
application should be refused
for that reason alone. However, even
if I take into account the prospects of success, those prospects are
slim to say the least.
This is an application for review, not
appeal. The arbitrator properly took into account all the evidence
before him. He came
to the conclusion that the employee had
committed the misconduct complained of. In doing so he took into
account the probabilities
of the evidence before him and the
discrepancies in the employee’s own testimony.
He specifically took into account the
principles set out in Sidumo v Rustenburg Platinum Mines (2007) 28
ILJ 2405 (CC). He then
weighed up the mitigating and aggravating
circumstances. He considered the applicant’s considerable
length of service of
23 years and noted that that weighed heavily in
her favour. Against that, he noted that she denied that she was
responsible for
ensuring all her goods were declared. She continued
to insist doing so despite convincing evidence to the contrary.
She was evasive. She refused to accept
that she had a responsibility to ensure that all her goods had been
declared. She showed
no remorse for her conduct. She sought to
place the entire blame on her colleague who was also dismissed. The
arbitrator pointed
out that her argument that she returned and paid
for the goods did not mitigate her offence. The only reason she
returned was
because she received a phone call to advise her that the
unpaid goods had been discovered. She was aware of the problem of
shrinkage
faced by her employer. She was aware of the role she was
required to play to combat such losses. She was in a position of
leadership,
she should have been an example to the cashiers, but she
continued to refuse to accept her responsibility and failed to set
that
example. She showed that she could no longer be trusted to act
in the employer’s interest. It is in those circumstances that
the arbitrator reached the conclusion that he did, coupled with the
fact that there was a clear rule -- and it is common cause
that this
rule applied to all employees -- that states in plain language:
“Employees must conduct
themselves in a lawful, orderly and appropriate manner at all times,
during and outside of normal
working hours.”
That rule is not only clear but is
consistent with case law binding on this Court. As Mr Van Zyl
pointed out, the Labour Appeal
Court in Hoechst (Pty) Limited v CWIU
(1993) 14 ILJ 1449 (LAC) held at that stage already, predating the
1995 LRA, that:
“Where misconduct does not fall
within the expressed terms of a disciplinary code, the misconduct may
still be of such a nature
that the employer may nonetheless be
entitled to discipline the employee.”
Not only is that applicable but in the
case before me, the company rules do in fact expressly contain the
clause that I have just
referred to. That principle was also
recently confirmed by my brother Le Grange J in Dolo v CCMA (2011) 32
ILJ 905 (LC).
The conclusion reached by the
arbitrator is not so unreasonable that no other arbitrator could have
come to the same conclusion.
Therefore the applicant does not have
any prospects of success. Both parties asked for costs to follow the
result.
THE APPLICATION FOR CONDONATION IS
DISMISSED WITH COSTS.
STEENKAMP, J
APPEARANCES
APPLICANT: Z Cornelissen
Instructed by: Parker attorneys
RESPONDENT: C van Zyl (attorney).