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[2017] ZALCJHB 61
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JDG Trading (Pty) Ltd t/a High-Fi Corporation v Wessels NO and Others (JR53/15) [2017] ZALCJHB 61 (6 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA,
JOHANNESBURG
Case
number JR 53 /15
In
the matter between:
JDG
TRADING (PTY) Ltd t/a HIGH -FI
CORPORATION
Applicant
And
WESSELS
N.O
First Respondent
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
MNYAIZA
LUNGILE
Third Respondent
Date
of order: 3 May 2016
Reasons
dated: 6 February 2017
REASONS
FOR JUDGMENT
MOLAHLEHI
J
[1]
On 3 May 2016 this Court made the order reviewing and setting aside
the arbitration award issued by the first respondent (‘the
Commissioner’) under case number MP 5729-14 dated 16 October
2014. The arbitration award was further substituted by the order
that
the dismissal of the third respondent (‘the employee’)
was substantively fair.
[2]
The review application was unopposed. The reasons for the order are
set out in this judgment.
Background
facts
[3]
The employee was prior to her dismissal charged with “dishonest
behaviour” and “breach of staff purchase policy.”
The employee pleaded guilty and was consequently dismissed.
[4]
The first witness of the applicant was Mr Clarke (‘Clarke’),
the branch manager, who testified that the employee
was dismissed for
failing to comply with the policies relating to staff discount
purchases and that relating to the purchase of
televisions.
[5]
The charges against the employee arose from the purchase of a
television set by a customer, Mr Mbonambi (‘Mbonambi’).
Clarke testified that in purchasing the television Mbonambi,
initially failed to provide the receptionist with a valid TV license.
He stated that the employee colluded with Mbonambi in producing the
identity document of a certain Mr Nkosi (Nkosi) and used that
for the
purpose of purchasing the television set.
[6]
According to Clarke, the receptionist who was responsible for
processing the sale, initially queried the details of Mbonambi.
He
also testified that the employee pleaded guilty to breach of the
“staff purchasing policy, “in that she purchased
a DSTV
Explorer for a friend”. This according to him resulted in the
breakdown in the trust relationship between the applicant
and the
employee.
[7]
During the disciplinary hearing the employee, according to Clarke,
raised the issue of the alleged inconsistent application
of
discipline by the applicant. This point was unsustainable because the
facts which she relied on in the disciplinary hearing
was
distinguishable. The case was distinguishable because the employee,
in that case, Ms Strange (‘Strange’) purchased
the item
in question for her husband to whom she was married in terms of
customary law.
[8]
The second witness of the applicant was Strange, the administrative
manager, who essentially in her testimony confirmed what
was stated
by Clarke in relation to her purchasing an item for her husband in
terms of the staff policy.
[9]
The third witness of the applicant was Ms Jiyane (‘Jiyane’)
the receptionist who processed the sale for Mbonambi.
She testified
that Mbonambi went to the floor of the store and spoke to the
employee when she questioned him about the details
which he had
furnished for the purpose of the sale. On his return after speaking
to the employee, he came back with what appeared
to be the correct
information. Although she was still suspicious of the information
furnished by Mbonambi, she proceeded to process
the sale. She
subsequently informed her manager about her suspicion.
[10]
The fourth witness of the applicant was Ms Nkwane (‘Nkwane’),
the receptionist. She testified about another incident
wherein the
purchase of an item before her, the identity document of Mr Nkosi was
also used. The customer referred her to the employee
when she
enquired from him about the details of the identity document. She,
however, never confronted the employee about the matter.
The
employee’s case
[11]
The employee was the only person who testified in her case. She
testified about the process applied by the applicant in issuing
a
warranty for the goods to be sold. This is the process she was mainly
involved in and not the sale of goods. She denied any involvement
in
the sale in question. She contended that her involvement was limited
to the issuing of the warranty agreement.
[12]
In relation to the purchase she testified that she assisted a friend
who is their taxi driver to purchase the TV and did so
after speaking
to her manager.
Grounds
for review
[13]
The essence of the applicant’s complaint is that the
Commissioner’s arbitration award is unreasonable in that the
findings made are irrational and thus rendering the award to be
unreasonable.
Evaluation
[14]
In considering and determining the review application the test which
this court applied is that of a reasonable decision maker
set out in
Sidumo v
Platinum Mines (Pty)Ltd and Others.
[1]
The inquiry conducted in this regard is that of determining whether
the decision reached by the Commissioner that the dismissal
of the
employee was unfair is one which could be reached by a reasonable
decision maker. An objective approach was adopted in assessing
all
the evidence that was before the Commissioner when the decision was
made that the dismissal of the employee was unfair.
[15]
In restating and explaining the reasonable decision maker test the
Labour Appeal Court in
Gold
Fields Mining (Pty) Ltd v CCMA
[2]
had the following to say:
“
In
short: A review court must ascertain whether the arbitrator
considered the principal issue before him/her; evaluated the facts
presented at the hearing and came to a conclusion which was
reasonable to justify the decisions he or she arrived at.”
[16]
The issue of fairness of the procedure followed by the appellant in
dismissing the employee in this matter was not placed in
dispute. In
the assessment of the reasonableness of the decision of the
Commissioner, consideration was given to the fact that
the employee
had pleaded guilty to the charge relating to breach of the staff
discount purchasing policy.
[17]
I agree with the applicant that there is no reasonable connection
between the evidence as a whole and the conclusion reached
by the
Commissioner. In my view, had the Commissioner, in dealing with the
evidence adopted the approach set out in
Gold
Fields
[3]
,
the outcome of the arbitration hearing would have been different. In
that case, the court held:
“
[18]
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.”
[18]
In the present matter had the Commissioner taken into account the
totality of the evidence he or she would have found that
the employee
assisted Mbonambi in the purchase of the TV set and assisted him also
in the filling in of all the relevant documentation
for that purpose.
The other aspect of the evidence which the Commissioner ignored is
that when asked to provide certain details
by the receptionist,
Mbonambi went into the store and spoke to the employee and returned
to the receptionist with all the relevant
information.
[19]
It, therefore, means that the Commissioner failed to properly and
fairly determine the probabilities of the facts before her
and thus
committed gross irregularity. An objective and proper analysis of the
evidence which was before the Commissioner leads
to an irresistible
conclusion that the employee was guilty as charged and that in the
circumstances of this case, the sanction
of dismissal was fair. In
other words, in the circumstances of this case, it cannot be disputed
that the conduct of the employee
was dishonest and accordingly
destroyed the trust relationship between her and the applicant.
Order
[20]
It was for the above reasons that I made the following order:
1.
The arbitration award made by the First Respondent under case number
MP 5729-14
dated 16 October 2014 is reviewed and set aside.
2.
The arbitration award of the First Respondent is substituted with the
order to
the effect that the dismissal of the Third Respondent is
substantively fair and thus his claim of unfair dismissal is
dismissed.
___________________________
E. Molahlehi
Judge of the Labour
Court, Johannesburg
Appearances:
For
the Applicant: Snyman Attorneys
For
the Respondent: In person
[1]
(2007) 28 ILJ 2405 (CC)
[2]
[2007] ZALC 66
;
(2014) 1 BLLR 20
(LAC) at para 16
[3]
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