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[2015] ZALCCT 73
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Pick 'n Pay Retailers (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (C1083/14) [2015] ZALCCT 73 (3 December 2015)
THE
LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Not
Reportable
Case
Number: C1083/14
In
the matter between:
PICK
‘N PAY RETAILERS PTY
(LTD)
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
BENNETT,
CM
N.O.
Second Respondent
THE
JOINT AFFIMATIVE MANAGEMENT FORUM
obo
ISAACS,
M
Third Respondent
Heard:
3 June 2015
Delivered:
3 December 2015
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number WECT13743-14. The second respondent (the Commissioner)
found that the dismissal of Margaret Isaacs (Isaacs) was
substantively unfair and his award stated that she be reinstated with
effect from 3 September 2014, as though the dismissal had not
occurred, with continuity of employment and accrual of all benefits
other than full remuneration. The sanction of dismissal was
substituted by one of unpaid suspension from 3 September 2014 to 15
October 2014.
[2]
Isaacs had been employed by the applicant (the company) since
September 1993. Since about 2007 she had been employed as a Deli
Manager. On 3 September 2014, she was dismissed having been charged
with unauthorised consumption of company stock: “in that
you
consumed cheese in your department on the 9
th
of the 5
th
2014 without authorisation” and the breach of the company’s
tasting policy in respect of same. She had pleaded guilty
to tasting
a piece of grated cheese in contravention of the company’s
‘tasting policy’. The policy provides as
follows:
“
Tasting
Procedure:
Absolutely
no tasting of any company food product is allowed and cannot take
place unless the following steps have been strictly
adhered to:
·
A product is to be shop-used as per the
prescribed company procedures; and
·
A Store Manager (or in his absence the
person designated to run the strore), must specifically authorize a
tasting session to take
place and the persons who will participate in
the tasting; and
·
The Store Manager (or in his absence the
person designated to run the store) is to identify an area for the
purpose of tasting;
and
·
The Store Manager (or in his absence the
person designated to run the store) must be present during the
tasting session.
Staff will not be allowed
to taste the products of demonstrations or food/drink items on
promotion served to customers. These products
used for demonstrations
and promotions are to be shop-used as per the prescribed company
procedure.”
[3]
In his analysis of the evidence and argument before him, the
Commissioner found
inter alia
as follows:
“
There
is no doubt that Applicant knowingly broke the rule. She brought no
evidence in support of her claim that the cheese was tasteless
or
that she had received a customer complaint. Although no testimony was
led or documentary support submitted, the CCTV footage
of 16 May 2014
suggested that the event of 9 May 2014 was not an isolated incident.
These
things having been said, the Code of Good Practice: Dismissal,
contained in Schedule 8 of the Labour Relations Ac 66 of 1995
as
amended, advocates the application, where appropriate, of progressive
disciplinary action, noting that not all breaches of rule
warrant the
imposition warrant the imposition of what, in labour terms, the
ultimate sanction. An employer should apply a lesser
sanction if that
will bring about the desired result, being a sustained change of
behaviour/compliance with the rules of the company.
I do not overlook
that certain behaviours are generally regarded as dismissable
regardless of mitigation, for example theft. The
courts have endorsed
the view that theft is theft and that dismissal is an appropriate
approach. I accept that Applicant did not
in her mind consider her
actions to equate to theft. I also accept Respondent’s “a
rose by any other name would smell
as sweet” argument –
it does not matter how one describes Applicant’s actions:
intrinsically they amounted to
unauthorised consumption [in other
words theft] of company product.
My
problem is that morally I have difficulty in reconciling the severity
of the sanction with an unblemished employment record of
21 years’
duration. I further have difficulty in simply accepting without doubt
that no lesser sanction would have achieved
the desired effect; that
is to stop the misconduct that is contributing to high shrinkage. The
union brought the 2014 Labour Court
decision in Pick n’ Pay
retailers (Pty) ltd v CCMA and others (C566/2011) (“Gelant”)
to my attention. This case
has remarkable similarities to the one
before me, involving the unauthorised consumption of company product
by a departmental manager
of some 27 years unblemished service with
the employer. Respondent noted in the matter before me that this
court case was the catalyst
for the introduction of a formalised
tasting policy. Interestingly, the court expressed the same
reservations that assail me now,
being the appropriateness of the
sanction of dismissal. Where these two cases can of course be
distinguished is by the existence
in this matter of a known formal
procedure that did not exist at the time of the “Galent”
case. Respondent argued both
in court and before me that the purpose
of the tasting procedure was to avoid the application of initiative
by staff, thereby avoiding
the potential of free-for –all
tasting justified by using one’s initiative that could result
if no such policy were
in place, with the concomitant result of
increasing shrinkage. I accept the legitimacy of the argument but
still feel that the
slavish imposition of the sanction of dismissal
in response to breach of the rule in no more than the application of
a zero-tolerance
policy.”
[4]
The crux of the company’s review grounds is that the
Commissioner failed to take all relevant facts and circumstances
into
account in his decision regarding the substantive fairness of the
dismissal, and failed to appreciate that he had to assess
whether the
company (in the weight that it attached to the gravity of the offence
and to the aggravating and mitigating factors)
acted fairly. It was
submitted on behalf of the company that it is not for the
Commissioner to impose his own sense of morality
on what an
appropriate sanction should be but rather to properly consider the
aggravating and mitigating factors taken into account
by the
employer. In this regard the judgment in
Sidumo
was relied on.
It is worth recording the paragraphs cited by the company in respect
of the majority judgment:
“
[78]
In approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or
she will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require
consideration. For example, the harm caused by the employee's
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record. This is not an
exhaustive list.
[79]
To sum up. In terms of the LRA, a commissioner has to determine
whether a dismissal is fair or not. A commissioner is not given
the
power to consider afresh what he or she would do, but simply to
decide whether what the employer did was fair. In arriving
at a
decision a commissioner is not required to defer to the decision of
the employer. What is required is that he or she must
consider all
relevant circumstances……”
[5]
On my reading of the award, indeed on its face, the
Commissioner accepted the validity and importance of the rule
breached given the problems of shrinkage experienced by the company,
but not what he refers to as a ‘slavish imposition’
of
the dismissal penalty in respect of its breach. In
Shoprite
Checkers (Pty) Ltd v Mzolo
[1]
the
issue of a ‘zero tolerance policy’ and a Commissioner’s
duties to evaluate the fairness of a dismissal were
also in issue.
The LAC per Landman JA dealt with certain ‘general
considerations’ applicable to cases of this type:
“
[17]
It is also necessary to make some further remarks as regards
dismissal for a first offence ie a “zero tolerance”
policy. A dismissal will only be fair if it is procedurally and
substantively fair. A commissioner of the CCMA or other arbitrator
is
the initial and primary judge of whether a decision is fair. As the
code of good practice enjoins, commissioners will accept
a zero
tolerance if the circumstances of the case warrant the employer
adopting such an approach.
[18]
But the law does
not allow an employer to adopt a zero tolerance approach for all
infractions, regardless of its appropriateness
or proportionality to
the offence, and then expect a commissioner to fall in line with such
an approach.
The touchstone of the law of dismissal is fairness
and an employer cannot contract out of it or fashion, as if it were,
a “no
go area” for commissioners. A zero tolerance policy
would be appropriate where, for example, the stock is gold but it
would
not necessarily be appropriate where an employee of the same
employer removes a crust of bread otherwise designed for the refuse
bin. See the incisive contribution by André van Niekerk
“Dismissal for Misconduct – Ghosts of Justice, Past,
Present and Future” in Le Roux R and A J Rycroft (eds)
Reinventing Labour Law: Reflecting on the First 15 Years of the
Labour Relations Act and Future Challenges
(Juta 2012) 102-119.
Commissioners should be vigilant and examine the circumstances of
each case to ensure that the constitutional
right to fair labour
practices, more particularly to a dismissal that is fair, is afforded
to employees.” (my emphasis)
[6]
The Commissioner in this case did take account of the serious problem
the company was facing, as well as all other relevant
circumstances
arising from the evidence before him. He found the Company’s
approach amounted to one of zero-tolerance. He
also pertinently
considered the fact that this was a first offence, as well as the
very long service of the employee. His assessment
of the fairness of
dismissal as an appropriate sanction cannot be faulted in my
judgment, even his his use of the word “morally”
was not
apposite. The decision is also in line with the concept of
proportionality as set out above by the LAC, bearing in mind
the
scale of the unauthorized consumption by this employee. In
addition, the Commissioner did not award full back-pay in
the light
of what he described “as the seriousness of the misconduct”
and recorded the period 3 September to 15 October
2014 as an “unpaid
suspension”.
[7]
In all the above circumstances, I make the following order:
1. The
review application is dismissed.
_____________________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant: The Joint
Affirmative Management Forum
Respondent:
Bowman Gilfillan Inc
[1]
Unreported
(LAC
49/14)