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[2015] ZALCCT 59
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Woolworths (Pty) Ltd v Commission for Conciliation Mediation and Arbitration and Others (C208/14) [2015] ZALCCT 59 (8 October 2015)
THE LABOUR COURT OF SOUTH AFRICA,
CAPE TOWN
JUDGMENT
Not Reportable
Case Number: C208/14
In the matter between:
WOOLWORTHS
(PTY) LTD
Applicant
and
COMMISSION
FOR CONCILIATION MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER
M VAN ROOYEN
Second
Respondent
MLUNGISELI
SOMPONDO
Third
Respondent
Date heard: 12
May 2014
Delivered:
8 October 2015
JUDGMENT
RABKIN-NAICKER J
[1] This is
an unopposed application to review an award under case number
WECT19388/13. The second respondent (the Commissioner)
found the
third respondent’s dismissal to be procedurally and
substantively unfair. She reinstated him retrospectively to
the date
of his dismissal on 18 December 2013.
[2] The third
respondent (Sompondo) started working for the applicant company on 1
October 2002. He had been a manager for five
years prior to his
dismissal.
[3] It was
common cause at the arbitration, that Sompondo had worked at
applicant’s Paarl store at which time he travelled
a total of
118 kilometres from his home to work and back. This entitled him to
claim 48 kilometres per day in terms of the Applicant’s
Travel
Policy, as the first 35 kilometres of each trip were deemed by the
policy to constitute private traveling which is unpaid.
[4] In July
2012, Sompondo was transferred to the Tiger Valley store at which
time he travelled 94 kilometres to and from
work allowing him
to claim 24 kilometres per day in terms of the policy. Prior to May
2012, claiming employees submitted their
kilometres only once, when
they started working at a specific store. The policy was then changed
to require employees to submit
their claim when starting at a new
store and thereafter to submit their claims every six months.
[5] The way
in which claims were processed every six months was as follows: an
employee sends an email to the Store Administrator
with the number of
kilometres travelled to and from work and the Store Administrator
then completes a reimbursive travel claim
form and presents it to the
employee for signature. Once the employee has signed it, the Store
Administrator presents it to the
employee’s line manager and
the Human Resources Business Partner for signature. It is then sent
to head office for payroll
processing.
[6] In
January 2013, the Store Administrator asked Sompondo to resubmit his
kilometres travelled to and from work. He responded
that he had done
so when he started working at the store six months before. He was
then informed of the change in policy requiring
employees to resubmit
their claims every six months. At the time of this conversation,
according to Sompondo, he was in the HR
office for other purposes and
was in a hurry and he said he travelled 59 kilometres each way.
He was asked to put this in
an email and he wrote it there and then
using the Store Administrator’s p.c.. Mompondo testified he
made the mistake of confusing
his travelling to Paarl with his
travelling distance to Tygervalley.
[7] On 1
February 2013 tSompondo was presented with a completed reimbursive
travel claim form which he signed. The kilometres on
the form are
stipulated as “20 x 2”. According to the (incorrect)
information he provided to the Store Administrator
in January 2013,
the kilometres should have been “24x2”. Sompondo
testified he did not notice the (double) mistake
on the form when he
signed it.
[8] On 22
July 2013 , he wrote an email to the Store Administrator stating his
kilometres travelled to and from work are 59 each
way. He testified
he was very confident about the fact that he declared the kilometres
to be 59 in his January 2013 e-mail as he
had copied the information
on his July e-mail from his e-mail of January 2013. On 23 July 2013
he was presented with a completed
reinbursive travel claim form which
he signed. The kilometres on the form are indicated as “24x2=48km”
[9] The Store
Administrator testified at the arbitration. She was on leave from 9
to 28 September 2013. When she came back she checked
her expense
listings and noticed one of the overspent accounts was travelling.
She made a list of the employees claiming travelling
and asked them
what their traveling was. She noticed that the claims of Quinton and
Sompondo differed although she understood they
lived in the same
area.
[10]
Somphondo testified that the Store Aministrator contacted him
and asked whether he is certain that he claims
the correct kilometres
and he answered in the affirmative. On Sunday 12 October 2013 she
again contacted him asking the same question.
He testified he found
it strange that she had asked him the same question twice. At the
time he was on his way home from the store
and decided to measure the
distance. He then realised, he testified, that he had been claiming
the distance to Paarl Mall and not
to Tygervalley Store. On the same
day he wrote an email to his two superiors informing them of his
‘mistake’. In the
e-mail he states that he realises the
seriousness of the negligence, he did not do it intentionally and he
apologises and undertakes
to repay the monies.
[11]
Essentially the applicant submits that in finding that Sompondo made
an honest mistake, the Commissioner made an
award that a reasonable
decision maker could not make, and that she appears to have ignored
the evidence of the applicant’s
five witnesses because this is
not recorded in the award. Her finding that Sompondo made an honest
mistake was in circumstances
where on three separate occasions he
declared the wrong amount; when he would have realised he was
travelling some 24 kilometres
less a day both in time and kilometres;
and when he would have been aware from his pay slip (over a period of
12 months) in addition
to what he was receiving in his bank account
was the same as before; and he would have realised from the fact that
he was using
less petrol but being paid the same, that he was being
overpaid.
[12]
The Commissioner found as follows:
“
21.
The Respondent argued that the Applicant should have noticed the over
payment on his salary advices. In response the Applicant
said he did
not study his salary advises closely. It is common cause that the
Applicant does not receive hard copies of his salary
advices, but
that these are available to him on the company intranet. The actual
fixed amount that the Applicant should have received
for travelling
was R1056 per month. Since February 2013 he received R1 760 and since
July 2013 R2 112. Taking into consideration
that the Applicant
is an employee that earns just over R25,000 per month, that certain
bonuses and increases were paid in the relevant
period that he also
had claims for ad hoc travel from to time as is reflected in the
documents presented at the arbitration proceedings,
I am of the view
that the Respondent did not prove on a balance of probabilities that
the Applicant had been dishonest in saying
he did not notice the
overpayments…….
24
The Applicant has been in the Respondent’s employ for eleven
years, five of which he was a manager. He has no disciplinary
history
of any wrongdoing. The Applicant informed his superiors of the
mistake immediately when it came to his notice and he offered
to
reimburse the monies he had received in excess to what he was
entitled to. These factors, together with the absence of dishonesty,
render the sanction of dismissal unfair. In coming to this conclusion
I have been mindful of and have carefully considered the
nature of
the Respondent’s operations being retail, the seniority of the
Applicant and the trust the Respondent must be able
to place in him.”
Evaluation
[12]
The charge against Sompondo was as follows: “Gross misconduct
in that during the period from July 2012 to
date you breached company
policies and procedures when you incorrectly claimed you mileage as
per the travel reimbursement policy
and inflated such a claim. This
resulted in you claiming wages to which you are not entitled to.”
The company rule in question
was: “claiming wages not due or
signing for or accepting wages for which you are not entitled is
dismissable”.
[13]
Sompondo had worked at the Paarl store for 12 months. At the
arbitration it was put to Sompondo :
“
MS
SLABBERT: Ja. So let me ask you, why would the 59 km stick in your
mind when you were only there for 12 months versus the 18
months in
Tygervalley?
MR
SOMPONDO: The 59 km would stick in my mind because I worked more with
it, as I said, than the 47 km. What I also painted the
picture of
was, in Paarl Mall I did so much call outs, fridge failure callouts
in that store than any other store. In Paarl Mall,
that’s a
store that is on the outskirts of the Western Cape. In terms of
attending training, I would have to work with this
59 km, whereas in
Tygervalley the only time that I ever, ever had to look at 47 and
think of 47 was the first day that I was in
Tygervalley; never, ever
for six months.”
[14]
The record shows that on transfer to Tygervalley on the 17 July 2012
Sompondo correctly signed the travel claim
form i.e. for the 12x2= 24
kilometres he was entitled to. This would have meant that for the six
months after this date he would
have received the correct, lesser
amount in terms of his travel allowance. Further claims increase this
amount by R704.00 and then
by another R352.00 i.e. from R1056 to
R2112 for travel. According to the evidence recorded in
paragraph 12 above, in the
first six months at Tygervalley (except
for a one off claim for a training course) he never had to work with
the figure of ‘47’
because he was no longer doing
callouts. The Commissioner failed to consider that the claims for ad
hoc travel she referred to
in her finding that Somphondo may not have
noticed the discrepancies in his salary, were claims on Sompondo’s
own evidence
relating to his time at Paarl. This is borne out by the
documentary record before her.
[15]
It is submitted on behalf of the applicant that the Commissioner
should have applied her mind to the issue of whether
Sompondo was
guilty of gross negligence in assessing whether his dismissal was
fair. Sompondo agreed that the offence with which
he was charged was
could lead to dismissal under the company’s disciplinary code,
but he stated that the “company should
also note that a mistake
is possible.” The Commissioner’s failure to consider the
enquiry as to whether the misconduct
amounted to gross negligence and
to focus only on the issue of dishonesty per se, does in my view
render her award reviewable in
respect of the issue of substantive
fairness. This is on the grounds that she misconceived the nature of
the enquiry before her,
and in so doing reached an unreasonable
result.
[1]
The evidence before her revealed that Sompondo, who served in a
managerial position, had been at the very least guilty of gross
negligence for an offence he agreed could result in dismissal of the
applicant’s employees.
[16]
In as far as the finding on procedural unfairness is concerned, I do
not find a basis to set aside the Commissioner’s
finding. The
chairperson
mero moto
postponed the first hearing because the
initiator of the disciplinary charges was unprepared and secondly he
instructed the initiator
to submit certain documents into evidence
after the conclusion of the hearing without giving Sompondo an
opportunity to respond
to these. Taking into account that this is not
a small employer, these failures in natural justice require that a
solatium be paid
to the affected employee.
[17]
Given the record before me, I see no purpose in remitting this matter
for re-hearing and make the following order:
Order
1. The Award under
case number WECT 19388-13 is reviewed and set aside and substituted
as follows:
“
1.1 The
dismissal of Mlungiseleli Sompondo was substantively fair but
procedurally unfair.
1.2 Woolworths (Pty)
Ltd is to pay him compensation for the procedurally unfair dismissal
in an amount equivalent to two months’
salary i.e. R25 258.79
X 2 = R50,517.58 within 15 days of this
order.”
___________________________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
:
For the
Applicant: Macgregor Erasmus Attorneys
[1]
Herholdt v Nedbank Ltd (Congress of SA Trade
Unions as Amicus Curiae)
2013 (6) SA 224
(SCA); (2013) 34 ILJ 2795
(SCA) at paragraph 25.