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[2015] ZALCD 17
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Woolworths (Pty) Ltd v Commission for Conciliation, Mediation And Arbitration and Others (DA7/2013) [2015] ZALCD 17 (17 March 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA, DURBAN
Case no: DA7/2013
DATE: 17 MARCH
2015
Not Reportable
In the matter
between:
WOOLWORTHS
(PTY)
LTD
..................................................................................................
Appellant
And
COMMISSION
FOR CONCILIATION, MEDIATION
And
ARBITRATION
....................................................................................................
First
Respondent
COMMISSIONER
W.
PAUL
..................................................................................
Second
Respondent
THANDIWE
SHOZI
..................................................................................................
Third
Respondent
NOKUTHULA
YVONNE
MDUNGE
.....................................................................
Fourth
Respondent
NOKUTHULA
PATRICIA
THSAPA
.........................................................................
Fifth
Respondent
Heard:
16 September 2014
Delivered:
17 March 2015
Summary: Review
of arbitration award – employees dismissed for breach of till
policy – commissioner finding employees
guilty and upholding
dismissal – Labour Court setting aside award – Appeal –
evidence pointing to the fact that
no persons than employees
responsible for the till shortages – appeal upheld –
Labour Court’s judgment set aside-
review application
dismissed.
Coram:
Waglay JP, Jappie JA
et
Dlodlo AJA,
JUDGMENT
DLODLO
AJA
[1]
This is an appeal against the judgment (as varied)
of the Labour Court (Lagrange J) which upheld a review application
brought by
the Respondents. The Court
a
quo
set aside the award and ordered
that the third to fifth Respondents (hereafter “the
Respondents”) be reinstated with
retrospective effect. The
Appellant is before this Court with leave of the Court
a
quo
.
[2] The facts that
led to the dispute between the parties are as follows. The
Respondents were employed as cashiers at the Appellant’s
Hillcrest store in Durban. The Respondents together with a contract
worker from a labour broker, one Dlamini, were all working
on
Saturday 4 July 2009 when the incident that led to their dismissal
occurred.
[3] As it is custom
at the Appellant, each cashier received a cash float of R1694 at the
beginning of his/her shift. At the end
of their shift, the
Respondents and Dlamini delivered the contents of their till takings
to Philisiwe Ngcobo (Ngcobo) in sealed
bags. Philisiwe Ngcobo was the
store administrator in charge of receiving till takings on that day.
The bags were collected by
Fidelity Guard’s employees on Monday
6 July 2009 and then taken to the Appellant’s Bank. On opening
the bags at the
Bank, it was discovered that the bags of Shozi,
Mdungwe and Dlamini each had a shortfall of R1694 which was the value
of the daily
float received by each of them on Saturday 4 July 2009.
The bag of Tshapa had a shortfall of R1684 which was R10 lesser than
the
daily float that was received.
[4] Subsequent to
these shortfalls, the Respondents were charged for misconduct. Save
for the quantum, the same charges were preferred
against the
Respondents, namely: “
Gross misconduct in that on the 4
th
of July 2009 your till reflected a shortfall of R1684.00 thereby
resulting in breach of the till discrepancy policy.”
A
separate disciplinary enquiry was held for each of them and they were
allfound guilty as charged.
[5] Dissatisfied
with their dismissal, the Respondents referred an unfair dismissal
dispute to the Commissioner for Conciliation,
Mediation and
Arbitration (CCMA). As the matter could not be conciliated, it
proceeded to arbitration. The Commissioner upheld
the Respondents’
dismissal. The Commissioner in analysing the evidence rejected the
probability that the sealed bags could
be opened and sealed again
without showing signs of tampering. The Respondents’ witnesses
particularly Shozi could not demonstrate
that the bags once sealed
could be re-opened and sealed again without it showing signs of
having been tampered with. This could
not be demonstrated when the
bag was submitted into evidence.
[6] The Respondents
were further aggrieved by the arbitration award and they approached
the Labour Court to have the award set aside.
The Court
a quo
took issue with the Commissioner’s finding that once the bag
had been sealed, it could not be re-opened without showing signs
of
being tampered with. This finding, the Court
a quo
found to be
a decision that a reasonable decision-maker could not reach based on
the evidence before him. The Court
a quo
held that the
Commissioner failed to make a finding by focusing only on whether the
bags could be opened without being tampered
with. It is the Court
a
quo’s
finding that the Commissioner had failed to take into
account the fact that there was inexplicable coincidence that the
shortfalls
occurred on particular weekends when the same store
administrator, Ngcobo, was on duty.
[7] The Court
a
quo
further held that the fact that an identical shortfall had
occurred on another weekend when Ngcobo was on duty was another
coincidence
that could not reasonably be disregarded. The Court
a
quo
thus concluded that no arbitrator could have reasonably
ignored these unusual circumstances as factors which must have had
some
relevance to the determination of the person responsible for the
shortage in the cash bags. The Court
a quo
was therefore
satisfied that the arbitrator adopted a narrow approach in weighing
the evidence before him thereby committing an
irregularity in the
proceedings warranting the setting aside of the award. The Court
a
quo
later granted leave to appeal to this Court.
Contentions of
the parties
[8]
The Appellant contends in the main that the commissioner committed no
misconduct warranting interference and that in setting
aside the
arbitration award, the Court
a
quo
failed to apply the reasonableness test as enunciated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[1]
It was submitted on behalf of the Appellant that the Court
a
quo
failed to take into account and weigh all of the evidence led during
the arbitration proceedings. Concerning the Court
a
quo’s
finding that there was no demonstration in the arbitration
proceedings that the sealed bags could be opened without being
tampered
with, the Appellant contends that a demonstration did take
place at the disciplinary proceedings.
[9] Concerning the
court
a quo’s
finding that no reasonable commissioner
would have ignored the similarity of the amounts of the shortfalls,
the Appellant submitted
that the shortfalls were not evidence of the
innocence of the Respondents, rather, they indicate that the
shortfalls are connected
either through collusion or as the work of
one person who wanted to pass them off as system errors. It was
further submitted that
the similarity in the amounts equal to the
cash float can only indicate that no persons other than the
Respondents acting in collusion
with one another are responsible for
the shortfalls. The Appellant contends that in deciding otherwise,
the Court
a quo’s
finding amounted to speculation.
[10] As regards the
Court
a quo’
s finding that the Commissioner had ignored
some evidence which could have suggested a possibility that another
person could be
responsible for the shortfall, the Appellant contends
that in light of the evidence that the sealed bags could not be
opened without
detection, the commissioner was correct to conclude
that the Respondents were responsible for the shortfalls. It is
further submitted
on behalf of the Appellant that the suggestion that
Ngcobo may have opened the bags and stolen the money was dependent on
whether
it was possible to re-open the bags without detection. The
Appellant argues that since the evidence was clear that the bags
could
not be opened, the Commissioner was correct in his assessment
that on a balance of probabilities the allegations that Ngcobo had
taken the money could be rejected. Consequently, on behalf of the
Appellant, it was submitted that the Court
a quo’
s
conclusion to the contrary was flawed.
[11] The Respondents
oppose the appeal and contend, concerning the opening of the sealed
bags, that there was evidence given by
the Third Respondent that the
bags could be re-opened after they had been sealed and that she
demonstrated that this could be done
prior to her disciplinary
enquiry. They submit in this regard that this version was undisputed
during cross-examination. Moreover,
the Respondents submit that the
Commissioner was wrong when he limited his reasoning to the fact that
the bag that was brought
to the disciplinary hearing could not be
opened without a sign of detection. They contend that the bag that
was brought to the
disciplinary hearing was a used bag from the Bank
which had been sealed a number of times. They submit that there was
no evidence
of a new bag that was brought which, when closed, could
not be re-opened without showing that it had been tampered with. In
clear
terms, the contention is that a new bag could be opened without
showing any detection.
[12]
Concerning the possibility that Ngcobo could be responsible for the
shortfalls, the Respondents contend that it was difficult
for an
employee to see the drop safe when handing the bags over to Ngcobo
who was responsible for dropping the bags into the safe.
In this
respect, they submit that Ngcobo had the opportunity to tamper with
the bags if she had not dropped them into the drop
safe when the
store was quiet on Sundays as she was in the cash office alone. The
Respondents also drew an inference that the pattern
of shortages
occurred when Ngcobo was on duty. Moreover, the Respondents contend
that unusual coincidences pointed to the possibilities
that Ngcobo
could be the person responsible for the shortages and that the
Commissioner by failing to find that another person
other than the
Respondents could be responsible for the shortfalls committed a
reviewable irregularity.
The appeal
[13] The
consideration of this appeal is centred on two issues:
(i)
Whether the bag could be opened without
showing signs of having been tampered with; and
(ii)
The possibility that another person could
be responsible for the shortfalls. The ancillary question raised by
this question is whether
an employee could see when the bags were
dropped into the safe.
The evidence of the
parties’ witnesses needs to be considered in order to determine
this appeal. Their evidence should be
limited to the two questions
set out above.
The evidence led
on behalf of the appellant
[14] At arbitration,
the Appellant’s evidence was led by Dhivan Govender (Govender),
the store manager at the Appellant’s
Hillcrest branch. In
respect of the question whether the bags could be opened without
showing any signs that they were tampered
with after being sealed,
Govender testified as follows:
‘…
In
the afternoon a bag is completed for them by the store administrator,
they accept the bag, they put all their money in this bag
and this
bag had got a seal so after you put your money into this bag, you
seal it…but once you seal this bag it is a special
kind of
sticky seal which you cannot open it and if you do try and open it,
it creases…’
[15] During
cross-examination, when asked whether the bags could be tampered
with, Govender testified as follows:
‘
Mr
Govender: If you do tamper it will give you signs of tampering with
the bag.
Ms Zibi: There
will be signs of tampering
Mr Govender: And
the bottom slit is from Standard Bank, so…
Ms Zibi: The
Applicants (sic) will testify in this arbitration that this bag if
its new, it’s a new bag, is issued to you
to put out your money
and then you close it. And for example maybe there’s a cheque
that has been left behind, if it’s
still new you can always
open it and put the cheque inside and re-seal it, there will be no
signs of tampering, if it’s still
new. But this one, they are
saying this one now has been sealed, nine months down the line.
Mr Govender: But
clearly if you’re sealing it the first time, you’re not
doing it correctly, then clearly you can, maybe
you can open it. But
if you’re sealing it as it’s meant to be sealed, with all
the air out, which they have done, then
it can’t be tampered
with.
Ms Zibi: Sir, if
then this bag a person is able to seal it and then forget a cheque
that is left behind and open it and re-seal
it, then this bag can be
opened, if it’s new?
Mr
Govender:
Should I open it. And
I’ll test these bags and if you fail to seal it properly, the
bag will open. But you press down how
it’s meant to be done,
you cannot open it.
Remember
it’s not a Woolworths bag it’s designed for Woolworths,
but it’s from external company, which is Standard
Bank.’
(own
emphasis)
[16] Concerning the
question whether there was a possibility that another person can be
responsible for the shortfalls, Govender
testified that when the
employees hand in their bag over to the store administrator, they
“
need to ensure that the bag number is the same and also
they need to wait for the money to be dropped before leaving there.”
In this respect, he testified that it is only when the money was
dropped into the safe that the till operator and the store
administrator
would sign to signify that the money was dropped into
the safe. Although the till operator could not go inside with the
store administrator
to drop the money, Govender continued as follows:
“
It is quite a distance the drop from the drawer to the
floor. And in this occurrence where there was about R8000 there was a
lot
of change so you would hear the sound of money, it was a heavy
bag so you would hear the money dropping to the bottom and then only
is the drawer pushed out to say there is no, the money has fallen
inside.”
[17] Govender
further stated that if the store administrator wanted to fake a drop,
she needed time to count the money to make up
the amount of the cash
float because the money in the bags is coins. This is because the
office in which the drop safe is located
is a general office where
all the managers enter regularly and the store administrator cannot
see anyone coming in.
[18] When
cross-examined about the possibility that Ngcobo could be responsible
for the shortfalls, Govender stated that there is
a strong
possibility that all Respondents colluded to have a shortfall
equalled to the amount of the daily cash float to make it
looks like
it was a system failure. He further agreed with the Respondents’
representative that the shortfalls occurred when
Ngcobo was on duty
but emphasised that huge shortfalls also happened when she was not on
duty and even after she had been dismissed.
[19] He reiterated
what he said during his examination that it could not be proved that
Ngcobo was the one who took the money. Again,
he stated that a loud
sound could be heard when the bags were dropped into the safe because
the drop safe is about 1.3 metre deep.
In this respect, it is
apposite to reproduce the exchange between him and Ms Zibi:
‘
Ms
Zibi: So when these bags are dropped by this lady in the drop safe,
would the cashier outside the window be able to see that
my money has
gone down the safe?
Mr Govender: You
can clearly hear it because…
Ms Zibi: You can
clearly?
Mr Govender: Hear
it…
Ms Zibi: Hear it…
Mr govender: Ja
Ms Zibi: Only
hear, but not see?
Mr Govender: And
remember after the drawer is pushed the monies in there drops and you
pull it out. So clearly you can hear it drop
and it is pulled out.
And if you pull it out you can see [that] the drawer is shallow so
you can see it if you look in.
Ms Zibi: Would
you be able to see whether the drawer has been closed by this lady?
Mr Govender: The
drawer is pushed and it is closed. So it pushed for the money to drop
and it is pulled out…
Ms Zibi: Now
these people would they be able to see that, or the drawer now is
being pushed, the drawer now is being closed?
Mr Govender:
Well, when I stand there, I can see so I mean if I am interpreting,
you ask me to interpret myself, I can see yes.
Ms Zibi: You but
not all of them could see, they could only hear the noise?
Mr Govender: Yes
they could have heard it, whether they see or not I can’t
answer for them, but I could have seen, but it
is difficult to see,
but I can see.’
[20] The evidence of
Govender can be summarised as follows: concerning the probability
that another person namely Ngcobo could be
responsible for the
shortfalls, he excluded such possibility because when the bags are
dropped into the safe, the till operator
could hear the noise which
is loud as the result of the coins. Moreover, he admitted the
difficulty to see when the bags are dropped
but that it is possible
to see that the drawer is empty after the bags had been dropped.
Concerning the question whether the bags
could be opened without
showing that it had been tampered with, his testimony is that
regardless of whether the bag is new or old,
if properly sealed, it
cannot be opened without showing evidence. However, he said that the
bag could only be opened without showing
signs of being tampered with
only if it was not properly closed in the first place.
Evidence on
behalf of the respondents
[21] The three
Respondents led evidence. However, for the present purpose, the
evidence is limited to that of Ms Thandiwe Shozi
(Shozi) because
other witnesses simply corroborated her evidence. Shozi’s
testimony concerning whether the bags could be
tampered with without
showing any evidence is as follows:
‘
I
have worked here for three years using the very bag and I know that
when you go to the cash office you can open it with money
in this bag
and also that you can re-open this bag and then you can re-close it
again. So it is possible to open and close it.
And also prior to
attending the disciplinary enquiry I requested that they bring this
bag so I can show the company how this bag
can open and then
re-closed again which I did.’
[22] As regard the
question whether Ngcobo could be responsible for the shortfalls,
Shozi clearly stated that Ngcobo was responsible
because huge
shortfalls always occurred when she was on duty. She further said
that she had never had such huge shortfalls. Shozi
disputed
Govender’s statement that Ngcobo could not have enough time to
count the money. Instead she testified that she had
more than enough
time to count the money because she was always alone in the office as
managers were not there. When asked whether
she could see the bags
being dropped into the safe, she testified that she was unsure
whether the money was properly dropped “
because the noise of
the drawer when it bangs especially when you got the bank notes.”
Can the bags be
reopened without showing that they have been tampered with?
[23] At the
arbitration, the Commissioner was confronted with two versions and
had to decide whether the bags could be opened without
being tampered
with. The first version is that of Govender who in clear terms said
that the bags could not be opened without showing
signs of being
tampered with. The second version is that led by Shozi on behalf of
the Respondents that she demonstrated that the
bags could be opened
prior to the disciplinary proceedings. The Court
a quo
in
setting aside the award, held that the Commissioner ignored the
evidence of Govender that the bag could only be re-opened if
it was
not properly sealed and that of Shozi that she demonstrated that the
bags could be re-opened and closed at the internal
inquiry.
This finding is wrong. Firstly, Govender clearly stated that the bags
when sealed if opened will show signs of tampering
and under
cross-examination he said if not properly sealed then they can be
opened without showing any sign; in other words when
sealed properly
if opened, they would show sign. Secondly, the demonstration by Shozi
that the bags could be opened without any
sign of being tampered with
was prior to the disciplinary hearing in circumstances which are not
clearly set out, nor is it stated
before whom did this demonstration
take place.
[24] Lastly, the
Court
a quo
ignored the demonstration of Govender at the
arbitration as evidenced by the above extract quoted above. Moreover,
the following
exchange between Govender and the representative of the
Appellant evinces that demonstration did take place during the
arbitration
proceedings:
‘
Ms
Nair: Can you pass it around for everybody. So if somebody had
tampered with this bag then you would see that that seal is opened?
Mr Govender: Ja
you would see the little crease, it will have tore as such and you
can see further the bag there’s cuts, the
only cut at the
bottom is where the bag gets accepted at Standard Bank, so they open
the bottom to count it, that’s the only
time that bag will have
been opened at Standard Bank, when it was sent to Standard Bank to
count out. So prior to that there was
no cuts or slits in the bag
money.
Ms Nair: the bag,
are those bags?
Mr Govendr: oh ja
as we can
Ms Nair: Is that
for who?
Mr Govender: this
is for Thandiwe- thandiwe, ja and again there’s no interference
with the bag as such. Also, sorry the next
one is Nokuthula Tshapa,
and again there’s no tampering with the bags…’
[25] The
Commissioner was faced with the demonstration led by Govender that if
the bags were to be opened, it will show detection
and that of Shozi
who simply stated that she had demonstrated the contrary prior to the
disciplinary hearing. Her evidence amounted
to no more than hearsay
evidence. Did the fact that the Commissioner confined himself to the
evidence of Govender without examining
Shozi’s evidence amount
to a reviewable irregularity? I do not think so. The Commissioner was
influenced by the demonstration
made by Govender and came to the
conclusion he did because “
although it was submitted that
the sealed bags containing the cash could be opened and closed
without showing signs of tampering
this could not be proved
when the bags was submitted into evidence.”
This conclusion
falls within the bound of reasonable outcome.
Is there a
possibility that Ngcobo may be responsible for the shortfalls?
[26]
The Commissioner did not examine this question but based on his
finding that the sealed bags could not be opened without showing
signs of tampering, found it improbable that “
on
the balance of probability the allegations that the cash clerk had
opened the cash bags removed the money and re-sealed the bags.”
Does
the fact that the Commissioner did not examine thoroughly this issue
amount to a reviewable irregularity? We should be reminded
of the
dictum of Waglay JP in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[2]
that:
‘
In
a review conducted under s145 (2) (a) (c) (ii) of the LRA, the review
court is not required to take into account every factor
individually,
consider how the arbitrator treated and dealt with each of those
factors and then determine whether a failure by
the arbitrator to
deal with one or some of the factors amounts to process-related
irregularity sufficient to set aside the award.
This piecemeal
approach of dealing with the arbitrator’s award is improper as
the review court must necessarily consider
the totality of the
evidence and then decide whether the decision made by the arbitrator
is one that a reasonable decision-maker
could make.
To do it
differently or to evaluate every factor individually and
independently is to defeat the very requirement set out in section
138 of the LRA which requires the arbitrator to deal with the
substantial merits of the dispute between the parties with the
minimum
of legal formalities and do so expeditiously and fairly. This
is also confirmed in the decision of CUSA v Tao Ying Metal
Industries.
Failing to
consider a gross irregularity in the above context would mean that an
award is open to be set aside where an arbitrator
(i) fails to
mention a material fact in his award; or (ii) fails to deal in
his/her award in some way with an issue which has some
material
bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of facts
presented at the
arbitration. 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? And
(v) Is the arbitrator’s decision one that another
decision-maker could reasonably have
arrived at based on the
evidence?’
[27] It is not every
irregularity committed by a Commissioner which must be set aside on
review. Put differently, it is not every
irregularity that will
vitiate the entire award. The reasonableness of the arbitration award
must be assessed in light of the totality
of the evidence presented
at the arbitration. Nevertheless as stated in
Gold Fields
supra
, the reviewing court must assess whether the
irregularity amounted to a reviewable one. In assessing the evidence,
the Court
a quo
reasoned that the Commissioner did not
consider the similarity in the shortfalls occurring on the same day
and the fact that the
shortfalls were equivalent to the till float.
This is a case which can go either way. However, the possibility that
Ngcobo could
be responsible for the shortfalls is less persuasive
because of the following: Govender’s evidence corroborated by
Shozi
is that there is a drop procedure which needs to be followed
when dropping the bags; even if the cashier cannot see how the bags
are being dropped, when dropping the bags there is a loud noise which
cannot go unnoticed; it is only when the cashiers hear the
noise of
the bags being dropped that he/she signs the handover. Moreover, the
undisputed evidence of Govender is that it is possible
to see that
the drawer is empty after the bags had been dropped. It can be
inferred from his evidence that no cashier will sign
the drop off
documents if he/she is not satisfied that the bags had been dropped.
[28] It then follows
that the probabilities indicate as conceded by Govender that anyone
could be responsible for the shortfalls.
Govender admitted that
Ngcobo could not be excluded as the person responsible for the
shortfalls but since there was no evidence
pointing to her the
Respondents acting in collusion were responsible for the shortfalls.
In addition, he testified to the fact
that because Ngcobo was
dismissed for mishandling petty cash, it cannot be construed to mean
that she was responsible for the till
shortfalls. This was reinforced
by the undisputed fact that huge shortfalls continued after Ngcobo
was dismissed and even when
she was not on duty. The above evidence
compounded by the overwhelming evidence that the sealed bags could
not be opened without
showing any detection, I find that the
Commissioner arrived at a reasonable outcome. Accordingly, the appeal
should be upheld and
the Court
a quo’s
judgment set
aside.
Order
[29] In the
circumstances, I make the following order:
(a)
The appeal is upheld with no order as to costs.
(b)
The order of the court
a quo
is set aside and replaced with an order that “
the
application to review the arbitration award is dismissed”
.
Dlodlo
AJA
I agree
Waglay JP
I
agree
Jappie JA
APPEARANCES:
FOR
APPELLANT: Adv. CE Watt-Pringle (SC)
Instructed
by MacGregor-Erasmus Attorneys
FOR
3
RD
, 4
TH
& 5
TH
RESPONDENTS:
Adv. M PILLEMER (SC)
Instructed
by Messrs Jafta Incorporated
[1]
(2007) 28 ILJ 2405 (CC).
[2]
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC) at paras 18-20.