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[2015] ZALCPE 61
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Shoprite Checkers (Pty) Ltd v Pikoli and Others (PR96/13) [2015] ZALCPE 61 (4 November 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case
No: PR 96/13
In
the matter between
SHOPRITE
CHECKERS (PTY) LTD
Applicant
and
LINDA
HARRIET
PIKOLI
First Respondent
SOUTH
AFRICAN COMMERIAL CATERING
AND
ALLIED WORKERS UNION (“SACCAWU”)
Second Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION (“CCMA”)
Third Respondent
COMMISSIONER
SIYABONGA COKILE N.O
Fourth Respondent
Heard:
14 May 2015
Delivered:
4 November 2015
Summary:
When a commissioner makes mutually exclusive findings
in determining
the substantive fairness of a dispute, his or her award is
susceptible to review.
JUDGMENT
Lallie,
J
[1]
This is an application to review and set aside an arbitration award
in which the fourth respondent who I will refer to as the
commissioner in this judgement found the first respondent’s
dismissal substantively unfair.
[2]
The first respondent was employed by the applicant in February 2002
at its Ziyabuya store as a money market clerk. She was effectively
a
cashier at the money market section of the applicant. After
counterfeit money was found in her takings during cashing up, she
faced two charges at a disciplinary enquiry. The first was
gross misconduct in that she had a significant till shortage as
a
result of accepting counterfeit money from a customer in the amount
of R1100.00 resulting in the applicant suffering loss.
By so
doing she breached the applicant’s rule 1 and cash handling
procedure. The second was gross misconduct in that
her till
shortage exceeded the applicant’s maximum of 0.02% thereby
breaching the applicant’s rule 1 and cash handling
procedure.
[3]
The first respondent was found guilty of both charges and dismissed.
She referred an unfair dismissal dispute to the third respondent
which I will refer to as the CCMA in this judgement. The dispute was
arbitrated by the commissioner who issued the arbitration
award the
applicant seeks this court to review and set aside. This application
was heard on an unopposed basis after the second
respondent’s
application for condonation of the late filing of the answering
affidavit was refused. The commissioner found
that the first
respondent did not make herself guilty of the first charge as no
evidence was led to prove that she had been trained
to distinguish
between real and counterfeit money. The third respondent suspected
that she might have been given the counterfeit
money by a customer
who tendered an amount of R2 050.00 in R50.00 notes. The commissioner
considered that the first respondent
accepted the counterfeit bank
notes on the busiest day of the month. He also took into account
evidence to the effect that when
there are shortages investigations
are conducted to locate the error which, if located, absolved the
cashier. He blamed the applicant
for not conducting its own
investigations in full by viewing the video footage of the security
camera which would have assisted
it identify the customer who handed
the first respondent R50.00 notes in the amount of R2 050.00. He
found that the applicant was
not at fault by accepting the
counterfeit money as any reasonable cashier would have accepted it
under the circumstances.
[4]
The commissioner made a finding that the conclusion that the first
respondent received counterfeit money from a customer was
not the
most reasonable inference which could be drawn in the circumstances
of the dispute before him as it could have been Nwabisa,
the cash
office clerk, who could have placed the counterfeit notes in the
first respondent’s takings. He based his finding
on what he
referred to as the first respondent’s unchallenged evidence
that Nwabisa had her back towards her when counting
the first
respondent’s money and alerted her to the presence of the
counterfeit money in her cash ten minutes after she had
handed the
money over to be countered by Nwabisa.
[5]
The commissioner based his finding on the second charge on the
reasons for finding that the first respondent was not guilty
of the
first charge. He found that the second charge was intricately linked
to the first because the till shortage occurred as
a result the first
respondent accepting counterfeit money. He concluded that the second
charge had to fall by the wayside as it
arose from the same incident
as the first. He further found that the applicant had applied
discipline inconsistently by not dismissing
employees who had
significant till shortages at its New Brighton store. He refused to
accept the argument that the branch manager
who failed to dismiss the
employees was disciplined without evidence on why that branch manager
did not dismiss the employees who
had significant till shortages. He
found the first respondent’s dismissal substantively unfair and
ordered her reinstatement.
[6]
The applicant submitted that the award should be reviewed and set
aside on the basis that it is defective in that the commissioner
committed gross irregularities in the conduct of the arbitration
proceedings and reached an unreasonable decision. He failed to
apply
his mind to issues that are material to the determination of the
dispute before him. His unreasonableness is manifested in
a number of
his findings which include the finding that the first respondent was
not provided with training in relation to the
identification of
counterfeit money. The UV light was a factor to absolve the first
respondent from fault. He failed to make findings
in relation to the
actual counterfeit money. He took into account the first respondent’s
evidence which was not put to the
applicant’s witnesses and the
finding that the applicant applied discipline inconsistently.
[7]
In deciding whether an arbitration award stands to be reviewed and
set aside the reviewing Court is to consider the totality
of the
evidence before the arbitrator. It must ascertain whether the
arbitrator considered the principal issue, evaluated the facts
presented and came to a reasonable decision. In this regard see
Goldfields
Mining SA (Pty)
Ltd
(Kloof
Gold Mine) v CCMA and Others
[1]
.
Not every material error of fact made by a commissioner is sufficient
to warrant the setting aside of an award. Errors are of
consequence
if they have the effect of rendering awards unreasonable. In this
regard see
Heroldt
v Nedbank Ltd and COSATU Amicus Curiae
[2]
.
[8]
Section 138
(7) (a) of the
Labour Relations Act 66 of 1995
as amended
(“the LRA”) requires commissioners to issue arbitration
awards with brief reasons. Commissioners are therefore
required to
determine disputes. In unfair dismissal disputes where only the
substantive fairness of the dismissal is challenged,
they have to
determine whether dismissed employees have committed the acts of
misconduct which led to their dismissal. There is
merit in the
applicant’s submission that the commissioner committed a gross
irregularity in the conduct of the arbitration.
When dealing with the
first charge, he found that the applicant was not at fault by
accepting counterfeit money as any reasonable
cashier would have
accepted it in the circumstances. He further stated that he did not
discount the likelihood that Nwabisa put
the counterfeit money in the
first respondent’s takings. He expressed the view that
receiving the counterfeit money by the
first respondent from a
customer was not the most reasonable inference that could be drawn in
the circumstances of the dispute
before him. The commissioner
effectively made two mutually exclusive findings on whether the first
respondent accepted the counterfeit
money from the customer. The
first is that she did. She, however, was not at fault by accepting it
as any reasonable cashier would
have done so in the circumstances.
The second is that she did not receive the counterfeit money from the
customer. It might have
been planted by Nwabisa in her takings. By
finding that the conclusion that the first respondent received the
counterfeit money
from a customer was not the most reasonable
inference that could be drawn in the circumstances of the dispute, he
contradicted
his finding that the first respondent received the money
but was not at fault by so doing. The commissioner was required to
have
made a finding based on the evidence before him whether the
first respondent received the counterfeit money from the customer or
not.
[9]
The importance of the commissioner’s finding on the first
charge is his finding that the second charge was intricately
linked
to the first. He made a finding that the second charge had to fall
away based on his finding on the first. As his finding
on the first
charge was contradictory, his finding on the second has no basis.
When dealing with the issue of inconsistency, the
commissioner made a
finding that the applicant’s witnesses did not give any
evidence about the inconsistent application of
discipline at its New
Brighton store, save for arguing that the branch manager who did not
dismiss cashiers with excessive shortages
at the New Brighton store
was disciplined. He added that the applicant elected not to call any
witnesses to explain why the employees
at the New Brighton store were
not dismissed. This finding is not based on evidence as the record
reflects that the applicant did
not rely on argument only in proving
that it applied discipline consistently. It also led evidence to that
effect. The commissioner
committed a gross irregularity by
disregarding material evidence which proved that the applicant
applied discipline consistently.
When the totality of the evidence
tendered at the arbitration is considered, it proves that the gross
irregularities made by the
commissioner led him to reach an
unreasonable decision which is susceptible to review.
[10]
The applicant sought an order substituting the arbitration award. The
applicant filed a complete record. It reflects that the
first
respondent made herself guilty of the charges which had been
preferred against her. Unchallenged evidence tendered on behalf
of
the applicant proved that the counterfeit money was patently fake and
that accepting fake money from a customer was tantamount
to not
accepting money at all. By accepting the counterfeit money the first
respondent exceeded the acceptable amount of shortage
by far. She
therefore breached the applicant’s rules of conduct which
fetched a sanction of dismissal. Her length of service
is outweighed
by the gravity of the misconduct. While it is true that employees who
have committed the same misconduct should be
dealt with the same way,
not every act of differentiation constitutes inconsistency which
justifies reinstatement. In
Mphigalale
v SSSBC Others
[3]
it was held that an employer may not repeat a decision made in error
in the interest of consistency. The applicant provided reasonable
explanation why employees who had substantial shortages at its New
Brighton store were not dismissed. The record reflects that
the
applicant discharged the onus of proving the substantive fairness of
the first respondent’s dismissal.
[11]
In the premises, the following order is made:
11.1 The
arbitration award issued by the fourth respondent under case number
ECPE 1542-13 dated 18 July 2013 is reviewed and
set aside and
substituted with the following:
11.2 The dismissal
of the first respondent was substantively fair.
____________________________________
Lallie, J
Judge of the Labour Court
of South Africa
APPEARANCES
For
the Applicant:
Ms Kok of Van Zyl Inc
For
the First and Second Respondents: Mr Poni of
SACCAWU
[1]
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC)
[2]
[2013] 11 BLLR
1074 (SCA)
[3]
(2012) 33
ILJ
1464
(LC).