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[2015] ZALCD 1
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Shoprite Checkers (Pty) Ltd v Khawula and Others (D 928/10) [2015] ZALCD 1 (13 January 2015)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, DURBAN
JUDGMENT
CASE NO D 928/10
Not Reportable
Date: 13 January 2015
In the matter between:
SHOPRITE CHECKERS (PTY)
LTD
..............................................
Applicant
And
MANDLAKHE
KHAWULA
.................................................
First
Respondent
COMMISSION FOR CONCILIATION
MEDIATION &
ARBITRATION
......................................
Second
Respondent
DUDUZILE NATACIA
DANCA
..........................................
Third
Respondent
Date heard: 20 November 2014
Date delivered: 13 January 2015
JUDGMENT
VAN NIEKERK J
Introduction
[1] This is an application to review
and set aside an arbitration award issued by the first respondent, to
whom I shall refer as
‘the commissioner’. In his award,
the commissioner found that the dismissal of the third respondent (t
the employee
he employee) was substantively unfair, and ordered her
reinstatement.
Factual background and award
[2] The employee was engaged in January
2008 as a cashier. On 5 March 2009, she was dismissed after having
been found guilty on
charges of under-ringing mixed chicken portions
to the value of R 35.99, shortchanging a customer by R 47.10 a till
shortage of
R 34.70 and breaking a workplace rule against possessing
cash (a sum of R60) while working on the till.
[3] The parties’ respective
versions are recorded in the commissioner’s award. In broad
terms, the applicant denied
that the chicken braai pack was among the
items that the customer bought from her; she stated that she gave the
customer the correct
change and that the cash in her possession had
been retrieved from the canteen after she had been released from her
till. In his
award, the commissioner correctly recorded that he was
called upon to decide on a balance of probabilities whether the
dismissal
of the employee was procedurally and substantively fair.
Given the dispute of fact in relation to the charge of under ringing
the
mixed chicken portions, the commissioner concluded that the
employee was the only person in a position to shed light on what had
transpired. It is common cause that Sithole was not present at the
time of the incident. The commissioner concluded as follows:
I find it strange that a big
supermarket like the respondent could in the absence of the customer
not lead the evidence of a surveillance
camera to prove that
applicant had allowed the chicken portions to go through without
payment. It is common cause that the chicken
portions do not appear
on the till slip but it cannot be the only reasonable inference that
they went through the applicant’s
till. In view thereof the
evidence of the applicant that the said chicken portions were not
amongst the goods that the customer
had bought from her is more
probable.
[4] In regard to the charge of
shortchanging, the commissioner noted a discrepancy between Sithole’s
evidence and that of
a witness in the disciplinary hearing (Mkhungo)
in regard to the amount short-changed. Here, the commissioner
concluded as follows
I am of the view that if the customer
was honest she should have informed Mkhungo that she had R150.00 in
her posssession without
searching herself. It is strange that the
customer had shown R34.24 to Sithole and R30.00 to Mkhungo as change
that she received
from the applicant. The reasoning of Sithole that
the said customer could not lie because she was an elderly lady and
that she
had money in their position was a personal opinion and I
cannot accept it as a fact. In the light thereof it is my finding on
a
balance of probabilities that the respondent has failed to prove
that the customer was short changed. It is also my finding that,
if
the Respondent had investigated this matter properly, is would not
have taken the R50.00 from the applicant’s float. In
the
circumstances the applicant would not have had a shortage of R84.70.
Therefore Sithole should blame herself for jumping to
the conclusion
that there was no reason for the customer to lie.
[5] In regard to the charge of
possession of the R60.00, the employee’s case was that at the
relevant time, she had retrieved
the money in the canteen, was on a
lunch break and on her way out of the building when called by her
supervisor and found in possession
of the cash. At that point, she
was not operating the till. This much was conceded by Sithole. The
commissioner concluded that
the employee was not working at the till
when she was found with the R 60.00 in her possession.
[6] During the course of her evidence,
the employee stated that she had been short paid for the month of
January and February.
The grounds for review
[7] Two grounds for review are
articulated in the applicant’s founding affidavit. The first is
that the CCMA condoned the
late referral of the dispute in
circumstances where the explanation for delay was inadequate, and
where the employee had failed
to deal with her prospects of success.
The second is that the award is reviewable because the commissioner
found that the employee
had not committed the misconduct for which
she had been dismissed, and on account of the award of reinstatement
to the date of
dismissal in circumstances where the employee had
delayed referring the dispute to the CCMA by some 250 days. Also
attacked under
this head is the award of arrear salary, being the
underpayments claimed by the employee for the months of January and
February
2009. Specifically, the applicant submits that the
commissioner ‘failed to apply his mind, misconducted himself,
committed
a gross irregularity and/or exceed his powers’ in the
circumstances described above.
[8] The supplementary affidavit adds
very little, except that the deponent states that the condonation
ruling dated 8 December 2009
was received on 11 August 2011 and that
“Commissioner P Mkhize [the commissioner who granted the
application for condonation]
is added to the proceedings as the
fourth respondent’. In relation to the commissioner’s
finding that the employee
had not committed an act of misconduct, the
applicant simply adds, after including an extract from the record,
that ‘The
applicant submits that it has established beyond any
doubt that the third respondent committed the misconduct for which
she was
charged and that the first respondent’s finding
otherwise constituted a reviewable irregularity.’
[9] The applicant’s heads of
argument advances a case entirely different to that articulated in
the founding and supplementary
affidavits. Here, the applicant
contends that the commissioner failed to apply his mind to the
evidence before him and erred in
finding that on a balance of
probabilities, the evidence was insufficient to prove the charges
brought against the employee. The
grounds for review contained in the
heads of argument are also entirely different – here the
applicant (for the first time)
contends that the outcome of the
proceedings under review fell outside of a band of decisions to which
reasonable people could
come on the same material, that the
commissioner misconceived the nature of the enquiry resulting in an
unreasonable outcome, and
that the commissioner committed a gross
irregularity by making material errors of fact and failing to weigh
the evidence and the
relevance to be attached to that evidence, to
the extent that it rendered the outcome unreasonable.
The applicable principles.
[10] The legal principles to be applied
are well established. This court is entitled to interfere with an
arbitration award if and
only if the decision to which the arbitrator
came is one which falls outside of the band of decisions to which
reasonable decision
makers could come on the available material. The
court is not concerned with the correctness of the decision. Insofar
as a party
might rely on the conduct of an arbitrator (for example,
having regard to the relevant evidence and disregarding relevant
evidence)
this is not in itself a basis for review – this court
is entitled to interfere only if the arbitrator’s conduct
resulted
in an award which is unreasonable in the sense referred to
above.
[11] The relevant principles were
summarised recently by the Labour Appeal Court. In Head, Department
of Education v Mofokeng and
others (JA 14 /2014, 1 October 2014) the
court, per Murphy AJA, said the following:
‘[30] The failure by an
arbitrator to apply his or her mind to issues which are material to
the determination of a case will
usually be an irregularity. However,
the Supreme Court of Appeal (“the SCA”) in Herholdt v
Nedbank Ltd and this court
in Goldfields Mining South Africa (Pty)
Ltd (Kloof Gold Mine) v CCMA and others have held that before such an
irregularity will
result in the setting aside of the award, it must
in addition reveal a misconception of the true enquiry or result in
an unreasonable
outcome.
[31] The determination of whether a
decision is unreasonable in its result is an exercise inherently
dependant on variable considerations
and circumstantial factors. A
finding of unreasonableness usually implies that some other ground is
present, either latently or
comprising manifest unlawfulness.
Accordingly, the process of judicial review on grounds of
unreasonableness often entails examination
of inter-related questions
of rationality, lawfulness and proportionality, pertaining to the
purpose, basis, reasoning or effect
of the decision, corresponding to
the scrutiny envisioned in the distinctive review grounds developed
casuistically at common law,
now codified and mostly specified in
section 6 of the Promotion of Administrative Justice Act (“PAJA”);
such as failing
to apply the mind, taking into account irrelevant
considerations, ignoring relevant considerations, acting for an
ulterior purpose,
in bad faith, arbitrarily or capriciously etc. The
court must nonetheless still consider whether, apart from the flawed
reasons
of or any irregularity by the arbitrator, the result could be
reasonably reached in light of the issues and the evidence. Moreover,
judges of the Labour Court should keep in mind that it is not only
the reasonableness of the outcome which is subject to scrutiny.
As
the SCA held in Herholdt, the arbitrator must not misconceive the
inquiry or undertake the inquiry in a misconceived manner.
There must
be a fair trial of the issues.
[32] However, sight may not be lost of
the intention of the legislature to restrict the scope of review when
it enacted section
145 of the LRA, confining review to “defects”
as defined in section 145(2) being misconduct, gross irregularity,
exceeding
powers and improperly obtaining the award. Review is not
permissible on the same grounds that apply under PAJA. Mere errors of
fact or law may not be enough to vitiate the award. Something more is
required. To repeat: flaws in the reasoning of the arbitrator,
evidenced in the failure to apply the mind, reliance on irrelevant
considerations or the ignoring of material factors etc. must
be
assessed with the purpose of establishing whether the arbitrator has
undertaken the wrong enquiry, undertaken the enquiry in
the wrong
manner or arrived at an unreasonable result. Lapses in lawfulness,
latent or patent irregularities and instances of dialectical
unreasonableness should be of such an order (singularly or
cumulatively) as to result in a misconceived inquiry or a decision
which no reasonable decision-maker could reach on all the material
that was before him or her.
Analysis
[12] I deal first with what purports to
be an application to review and set aside the decision to condone the
employee’s late
referral of her dismissal dispute. The notice
of motion makes no mention of any specific relief in this regard, but
as I have indicated,
the deponent to the founding affidavit states no
more than that the referral was late, that the applicant had not
received a condonation
ruling and that the condonation of the late
referral was reviewable. After receipt of the record in the
proceedings under review
and the condonation ruling, the applicant
made no effort to amend the notice of motion. The supplementary
affidavit, as I have
indicated, simply purports to add commissioner
Mkhize as a fourth respondent to the review application. Rule 22 sets
out the procedure
for the joint of parties in clear and concise
terms. None of the provisions of this rule were observed. It is not
competent for
a party unilaterally to ‘add’ other parties
to proceedings as respondents simply by making an averment to this
effect
by way of affidavit. In the absence of an application for
joinder having been made or heard, and an order granted by this court
joining commissioner Mkhize to the proceedings, the commissioner has
not been joined.
[13] The non-joinder of the
commissioner is fatal to the application to review the condonation
ruling. In Hair Health and Beauty
(Pty) Ltd v De Beer & another
(JR 922/2012) this court stated, at paragraphs 32 and 33 of the
judgment:
… I do not hesitate to come to a
considered finding that the non-joinder of the commissioner is fatal
to the applicant’s
application for review. The decisions the
applicant’s sales were made by the commissioner and he ought to
have been joined
as a respondent in the review. It is
incontrovertible that the commissioner had a direct interest in the
matter.
[33] In MEC for the Department of
Education, Eastern Cape Province v Gcebe, the Labour appeal Court
held as follows:
‘It is settled law that where a
person or entity has a direct and substantial interest in the outcome
of the preceding such
a person and\or entity should be joined in the
proceedings… In review applications, it is necessary to cite
the arbitrator
and/or CCMA or the relevant bargaining council.
[14] The court went on to note that in
the absence of any indication that the commissioner had consented or
undertook to be bound
by the judgment of the court, the failure by an
applicant in a review application to join the commissioner whose
award is the subject
of the review proceedings, renders the
application materially defective. I see no reason to depart from this
approach. The non-joinder
of commissioner P Mkize is accordingly
fatal to the applicant’s attempt to review the condonation
ruling. In any event, the
founding and supplementary affidavits
simply fail to make out a case for review in relation to the
condonation ruling. What they
record is nothing more than an
assertion of the applicant’s unhappiness with the ruling; at
most, the averments made suggest
that the ruling is incorrect. None
of these meet the required threshold for review. The absence of any
record in relation to the
condonation ruling is also, in itself, a
basis to dismiss any application to review and set aside that ruling.
[15] Turning next to the review of the
first respondent’s award, again, the founding and supplementary
affidavits do no more
than dispute the correctness of the
commissioner’s finding. The affidavit does no more than suggest
that the award is reviewable
because the employee had not committed
the misconduct for which she was dismissed. The supplementary
affidavit does no more than
incorporate portions of the record in
order to sustain this allegation, with a conclusion that the
applicant had on the papers
established ‘beyond any doubt’
that the employee committed the misconduct for which she was charged.
In other words,
the primary complaint by the applicant is that the
commissioner, in effect, erroneously concluded that the employee was
not guilty
of the misconduct complained of.
[16] To the extent that the applicant’s
heads of argument make reference to what is contended to be a failure
by the commissioner
to meet the threshold of reasonableness, as I
have indicated, this is not the case made out on the papers. It is
not open to a
party in a review application to make out a case in the
heads of argument. It is trite that a proper case must be made out in
the
founding and supplementary affidavits and that the court must
disregard a recasting of the case by way of its of argument.
[17] On its own papers, the applicant
has simply failed to make out a case for review. There is no
reference to the applicable threshold
and the basis of the
application is nothing less than an appeal against the commissioner’s
decision. While the founding affidavit
makes cursory reference to the
grounds for review set out in section 145 (2), there is no attempt to
relate any of those grounds
to the content of the award. This court
is not entitled to interfere with an arbitration award even if it is
persuaded that the
commissioner’s decision is incorrect.
Commissioners are allowed to be wrong. What the applicant was
required to establish
for the purposes of these proceedings was that
the commissioner’s decision fell outside of a band of decisions
to which reasonable
people could come, having regard to the available
evidence. That is not a case that has been made on the papers. The
papers further
make no reference to let alone do they make out a case
that the commissioner failed to appreciate the nature of the enquiry
before
him, or that he failed to appreciate or apply his mind to
evidence properly before him. And on this basis alone, the
application
stands to be dismissed.
[18] Given my findings in relation to
the failure by the applicant to make out a proper case for review, I
do not intend to assess
the specific factual bases on which the
applicant contends that the award is reviewable. The applicable
principles require only
the following:
‘The questions to ask are these:
(i) In terms of his or her duty to deal with the matter with the
minimum of legal formalities,
did the process that the arbitrator
employed give the parties a full opportunity to have their say in
respect of the dispute? (ii)
Did the arbitrator identify the dispute
he was required to arbitrate (this may in certain cases only become
clear after both parties
have led their evidence)? (iii) Did the
arbitrator understand the nature of the dispute he or she was
required to arbitrate? (iv)
Did he or she deal with the substantial
merits of the dispute? and (v) Is the arbitrator’s decision one
that another decision-maker
could reasonably have arrived at based on
the evidence?
See Goldfields Mining South Africa
(Pty) Ltd v Commission for Conciliation Mediation and Arbitration and
others (2014) 35 ILJ 943
(LAC).
[19] It is not in dispute that the
commissioner gave the parties a full opportunity to state their case,
that he identified the
dispute that he was required to arbitrate and
that he understood its nature, and that he dealt with the substantial
merits of the
dispute. The only possible basis for review in the
present instance is a failure by the commissioner to meet the
reasonableness
threshold insofar as the result or outcome of the
proceedings is concerned. As I have indicated, that is not the case
that is made
by the applicant and the application for review
accordingly stands to be dismissed.
[20] Finally, in relation to costs, the
third respondent has been successful in her opposition to the
application, but this court
is traditionally reluctant to make orders
for costs in matters where collective bargaining partners litigate
and where an order
for costs may have the potential to prejudice the
collective bargaining relationship. This is not one of those cases.
The employee,
while assisted by a trade union in the disciplinary
proceedings, was cited in her personal capacity and the union is not
a party
to these proceedings. There is no basis to assume that
whatever relationship might exist between the applicant and the third
respondent’s
trade union will prejudice that relationship. What
particularly concerns me in the present instance is the applicant’s
conduct
in seeking to review the commissioners’ award in
circumstances where there has been a manifest failure by the
applicant to
make out a case for review in accordance with the
applicable principles. Even if I were to accept, as I do, that there
have been
a number of significant developments in the law relating to
the threshold for review since the filing of the founding affidavit,
the papers make no reference to the principles that applied to even
at that date. The principle that this court has no right to
entertain
an application that is tantamount to an appeal is long standing. The
papers have been drafted as if the applicant had
a right of appeal.
Further, the notice of motion in this matter was filed in September
2010, more than four years before the hearing
of the application. I
appreciate that during the course of 2012 the matter was struck off
in circumstances where there appear to
have been some confusion in
relation to the notice of set down and that there were other delays
along the way but the applicant,
as dominus litis, ought to have
taken steps to ensure that this matter was dealt with on a more
expeditious basis. The Practice
Manual characterises a review
application as one which by its very nature is urgent. For these
reasons, there is no reason to deprive
the third respondent of her
costs.
I make the following order:
1. The application is dismissed, with
costs.
ANDRÉ VAN NIEKERK
JUDGE OF THE LABOUR COURT
REPRESENTATION
For the applicant: Adv I Pillay,
instructed by Norton Rose Fulbright
For the third respondent: Adv K
Allen, instructed by Clifford Atham Attorneys