About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2017
>>
[2017] ZALCJHB 51
|
|
Pick 'n Pay Retailers (Pty) v Commission for Conciliation, Meditation and Arbitration and Others (JR1815/14) [2017] ZALCJHB 51 (7 February 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
CASE
NO: JR1815/14
In the
matter between:
PICK
‘N PAY RETAILERS (PTY)
LTD
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION
AND
ARBITRATION
First Respondent
BRETELL
EVELYN RICKMAN HONE
N.O.
Second Respondent
SACCAWU
obo MARIA SEEMELA
Third Respondent
Heard:
14 December 2015
Delivered:
07 February 2017
Summary:
Misconduct – Cashier under-ringing – CCMA finds dismissal
harsh and reinstate.
Code of Good Practice: Dismissal
applied.
Negligence not necessarily
Dishonest.
JUDGMENT
MOSIME,
AJ
[1]
The
applicant seeks an order to review and/or to set aside an arbitration
award
[1]
issued by the fourth
respondent (“the Commissioner”) on 21 July 2014 under the
auspices of the first respondent, with
case reference number
LP32/14
,
or remit it to the first respondent or substitute it with an Order
that this Court may consider appropriate. This Court is moved
through
application and the founding and supplementary affidavits of Mr.
Coenraad Willem Hendrick du Toit, the applicant’s
Senior Case
Manager: Labour Relations, Northern Region. The union representing
the third respondent opposes the application.
[2]
The facts in this case
are summarised in the questioned commissioner’s award and the
record, and are outlined in the body
of this judgment. The third
respondent (referred to in the record and this judgment as “Maria”)
has supplied the Court
with the opposing affidavit deposed by herself
personally. However, she was represented during the application
proceedings by the
union official from the South African Commercial
and Catering and Allied Workers Union (SACCAWU).
[3]
Maria
was employed by the applicant for a period of seventeen (17) years
and was not shown to have any disciplinary record. At the
time of her
dismissal, she was stationed at the tills as a cashier. On the 19
September 2013, at 11h15, Maria was deployed at one
of the express
tills of the applicant’s retail stores in Tzaneen. A footage of
the video recording
[2]
admitted
as evidence and was placed before the second respondent during the
arbitration hearing shows Maria attending to a customer
who was
purchasing four loaves of white bread at the store. The customer
placed the loaves at the counter of the till before Maria.
The
footage apparently shows Maria communicating with the customer and
then scanning bar codes of two loaves only. It is not clear
what
Maria said to the customer. The customer is then shown thereafter
placing all four loaves of bread in the plastic bag and
leaving the
till with them towards the exit. Maria was then shown attending to
the next customer without paying further attention
to the customer
leaving the till with two unpaid loaves of bread. Audio recordings of
the communication between the customer and
Maria were not available.
[4]
The customer was
apprehended at the exit point by a security officer, Ms Grace
Makhubela (“Makhubela”). The latter reported
the matter
to Mr Simon Nomvela (“Nomvela”), a manager at the
perishable section, and told him that the customer was
leaving the
store with four loaves of bread but was in possession of a till slip
that showed she had paid for only two.
[5]
The explanation
supplied by Maria to Nomvela and another senior manager was that she
told the customer to pay for the other two
loaves to Lucas Poto
(“Lucas”), the cashier at the next till. She also spoke
to Lucas and asked him to accept the payment
of the two loaves. She
did not see where the customer went when she left her till.
[6]
A
summary of this evidence as recorded in the transcript
[3]
is that the customer approached Maria with a bag of apples and four
loaves of bread. She scanned two plastic bags and the apples
first.
Before she could scan the bread, the customer stopped her and told
her she wanted to pay for the other two loaves separately.
Maria then
made attempts to call the supervisor but the customer stopped her
because she was in a hurry and could not wait for
the supervisor. She
abandoned the call and put the loaves aside. The customer presented
her with a hundred rand note to pay for
the two loaves but she did
not have enough change in the till. She had received the float, but
that was only in coins. Customers
do not prefer coins when they had
tendered high notes. Maria did not have enough change (in notes) in
the till as this was her
second customer for the day. The customer
took the R100 note back and tendered a smaller amount of R30. Maria
then called Lucas,
who was at the next till, and told him that the
customer would pay for the other two loaves of bread at his till.
This testimony
is largely corroborated by Lucas
[4]
,
who confirmed that Maria spoke to her and also stated that he
expected that the customer was joining his ‘long’ queue
to tender payment for the two loaves Maria spoke to him about. Lucas
also testified that he was never called to give a version
during the
investigation of the incidents.
[7]
Maria
stated further that later on the day, she was approached by a
security officer named Peter, who was accompanied by the customer.
Peter then instructed Maria to assist the customer and she rang the
other two loaves. She stated that she confronted the customer
and
repeated that she had explained to her that she needed to pay for the
other two loaves of bread at the next till. This testimony
was never
challenged. The customer then left. After her lunch time, she was
called to Nomvela’s office, accompanied by a
shop steward. She
explained the whole incident to Nomvela and the latter then resolved
the issue by allegedly telling her that
she would be required to sign
a Written Warning. She stated that the warning was never issued.
[5]
This version was not put to Nomvela during his cross examination. She
was surprised when a week later she was called in and informed
that
she would be formally charged and disciplined.
[8]
According to Nomvela,
it is the duty of the cashier to ensure that a customer pays for all
the goods purchased before leaving the
store with them. Under ringing
occurs when the customer leaves the till point and the cashier had
only rung fewer goods than what
the customer is supposed to pay for.
It is clear from the evidence of both Maria and Nomvela before the
second respondent that
Maria neglected to ensure that the customer
indeed went to the Cashier at the next till and did not leave the
store with the loaves
that were not paid for.
[9]
Maria
admittedly
[6]
continued
attending to the next customer. She stated under cross examination
that she thought that the customer was going to Lucas
as she had
spoken to both Lucas and the customer. She admitted that she did not
check to ensure that the customer indeed went to
pay for the loaves
to Lucas. She said that she a ‘mental disturbance’ and
was having family problems that day and she
could only attribute her
failure to check to that.
[10]
In
the transcript of the record
[7]
Mr Du Toit, who also deposed the founding affidavit, put to Maria
that ‘… you thought [that the customer would go
to Lucas
on the next till] but you did not check, you have the responsibility.
The two witnesses testified that you had the responsibility’.
This was also acknowledged by the second respondent in the award
[8]
.
In the award
[9]
, the second
respondent summarised the evidence of Keagile Teme, the Floor
Manager, for the applicant, as that the cashier was ‘responsible
for ensuring payment of the items paid’, and that Maria ought
to have ensured that ‘the customer went to the cashier
next to
her to pay for the other two breads’ (sic).
[11]
It is clear from this
evidence that, at the centre of the charge is the fact that Maria
neglected or failed to ensure that the customer
went to the next till
to pay for the two loaves that the customer left her till without
paying for. The commissioner found that
Maria was careless, and thus
her conduct amounted to negligence, in this regard.
The
Commissioner’s Award
[12]
In the commissioner’s
award, the second respondent identifies the issue she was called upon
to determine as whether or not
the dismissal of Maria was
substantively fair and if so, determine an appropriate relief. Maria
did not challenge the procedural
fairness of the disciplinary
inquiry. The offence that Maria was charged with at the inquiry
leading to her dismissal was framed
as follows:
‘
Under-ringing,
in that on the 19 September 2013 you rung two with loaves of bread
instead of four loaves of white bread …’
[10]
[13]
In
the analysis, the commissioner identified three contentious aspects
that she was called upon to determine, namely whether or
not the
applicant had proved that Maria committed the misconduct, the
sanction of dismissal was too harsh and that the applicant
was
consistent in the application of discipline in respect of Maria’s
case compared with how similar cases were treated in
the past. This
Court finds that the commissioner had asked the correct questions in
order to enable herself to proceed on the correct
path with the
inquiry. Without any further ado, the commissioner immediately
dismissed the claim of inconsistency.
[11]
The basis for the dismissal of the claim was that the evidence that
sought to prove the claim was based largely on hearsay, and
that
there were insufficient facts supplied on the comparative case cited
by the union, to enable her to determine in what respect
the two
cases were similar. She thus found that there was no support for the
challenge on this substantive ground.
[14]
The
commissioner noted that Maria had acknowledged that she had committed
the offence of under-ringing as alleged in the charge,
but raised a
defence including the fact that she did not have enough small change
for the high denomination tendered by the customer
and that she told
the customer to pay for the other loaves on the next till. However,
the video shows the customer leaving the
store without paying for the
loaves. After traversing all the evidence before her, the
commissioner then made the following conclusion
[12]
:
‘
Regardless
of which version of events is the more probable
,
what is clear to me is that the Applicant was negligent in under
ringing the two loaves and failing to make the least effort to
follow
up on whether the customer paid for the unpaid loaves. The customer’s
actions that we could see on the video do not
support the Applicant’s
version. She (the customer) packed the four loaves and appeared to
head for the exit. If the Applicant
had passed the two unpaid loaves
to Mr Poto, who was at the till next immediately next to hers, then
this would vindicate her version
of events’
And:
‘
Whilst
I cannot make a finding that the Applicant was dishonest, her
carelessness was sanctionable. The question is was it sufficiently
serious to warrant dismissal?’
[13]
[15]
In
resolving this question, the commissioner considered the Code of Good
Practice: Dismissals in the Labour Relations Act
[14]
,
specifically
Item
3(4)
of the Code. In that regard, the commissioner considered the
following directives from the Code to be of crucial importance:
15.1
The fact that Maria had a clean disciplinary record in her lengthy
service with the applicant. Maria had been employed for
a period of
at least 18 years with the employer at the time of her dismissal, and
the commissioner considered that period to be
‘considerable’.
15.2
The commissioner found that although Maria’s negligence had the
potential to cause financial loss to the applicant, and
is serious,
in her view, it does not render the employment relationship
intolerable, which an offence involving dishonesty would.
15.3
The circumstances of the Applicant’s case were not sufficiently
serious to justify dismissal, which she found was substantively
unfair.
[16]
Having so concluded,
the commissioner determined that it would not be fair on the
respondent to be expected to continue the employment
of Maria as a
cashier when she had been negligent in this role and had caused
actual or potential financial loss. The commissioner
opined that
Maria’s long period of absence from work was sufficient
sanction for her negligence. She ordered that the applicant
reinstates Maria in “
any
suitable position other than that of a cashier or money handler
without any reduction in her pay or benefits”
.
The
test on review
[17]
Numerous
judgments in this Court have dealt with test that must apply when
deciding whether the commissioner’s decision is
reviewable, and
these have been rehashed innumerable times since the Constitutional
Court judgment in
Sidumo
v Rustenburg Platinum Mines Ltd
[15]
and should be now crystallised. The test is whether the conclusion
reached by the commissioner was so unreasonable that no other
commissioner could have come to the same.
[18]
In
Sidumo
[16]
the
Constitutional Court very clearly held that the commissioner’s
conclusion must fall
within
a range
of decisions that a reasonable decision-maker could make. This
reasonable test was succinctly adumbrated in the pre-
Sidumo
case
of
Computicket
v Marcus NO and others
[17]
,
thus: ‘The question I have to decide is not whether [the
commissioner’s] conclusion was wrong but whether ... it was
unjustifiable and unreasonable.’
[19]
This
decision was followed in a vast number of other decisions and I do
not find it necessary to repeat the position here. It is,
in my view,
aptly encapsulated in
The
National Commissioner of the South African Police Service v Myers and
Others
[18]
,
where the LAC held:
‘
Whatever
one’s personal view may be, the test as set out in
Sidumo
... is whether or not the
commissioner’s decision … is a decision that a
reasonable decision-maker could reach.’
[20]
A
commissioner should then be criticised if, when determining the
matter before him or her, fails to ensure, before reaching a
conclusion on a decision that he or she is about to make, that the
award will be legitimised by reasonableness, justifiability (in
the
light of the material that he took into account), and freedom from
prejudice. Deviation will result generally in gross unreasonableness.
In
Southern
Sun Hotel Interests (Pty) Ltd v CCMA
[19]
Van
Niekerk J also observed that it may be inferred from the judgment of
the Constitutional Court in
Sidumo
that
section
145
also invites scrutiny of the process by which commissioners reach
their conclusions.
[21]
It
was held in
CUSA
v Tao Ying Metal Industries and Others
[20]
that
a commissioner is obliged to apply his or her mind to the issues in a
case. Commissioners who do not do so are not acting lawfully
and/or
reasonably and their decisions will constitute a breach of the right
to administrative justice.
[22]
It is submitted in the
applicant’s heads in this case that the arbitration award is
reviewable on the basis that the commissioner
committed a gross
irregularity in the conduct of the proceedings, which led to an
unreasonable result.
Grounds
of review
[23]
It appears from the
notice of motion that this application is made on the basis that the
commissioner committed a gross irregularity
on the grounds that the
commissioner acted unreasonably by failing to take into account
materially relevant evidence placed before
her, and thus reached a
decision that no reasonable decision-maker could reach.
[24]
The criticism against
the commissioner is that she ignored the alleged Maria’s “gross
dishonesty”, failure to
show remorse and the alleged
fabrication of the fact that she did not have sufficient change for
the customer. I have to determine
whether or not, from the
applicant’s submissions, any other decision maker could have
come to that conclusion from the evidence
before the commissioner.
[25]
It
is not disputed, and this was conceded by Maria that she did have a
float of R300, but that was in coins and not notes. She stated
in her
evidence that when the customer tendered a R100 note, she told the
customer that she did not have “change” but
only had
“coins”. The commissioner also made a finding in that
regard
[21]
. Maria states
further in her testimony, ‘
Normally,
customers don’t want too much coins … that is why I
raised my hand so that the supervisor can come and assist
me and the
customer said she is in a hurry’
.
[22]
It is therefore not entirely correct that her defence was that “
she
did not have change”
.
[23]
Indeed she confirmed that she had a float of R300. There was
therefore no need for the commissioner to dwell on this aspect of
the
evidence, as there was nothing contrary before her.
[26]
It is also common cause
that the video evidence does not provide any assistance with regard
to the recording of the voices. The
commissioner considered what
Maria said to the customer and also to Lucas. This is that she told
the customer to pay for the other
two loaves at the till next to her,
and that she spoke to Lucas, the customer listening, and told Lucas
that she was sending the
customer to his till to pay for the other
two loaves. This evidence was corroborated by Lucas.
[27]
However,
Du Toit states in his affidavit
[24]
that Maria “lied” to the commissioner ‘
throughout
the arbitration proceedings stating that she did not have change to
give to the customer and therefore told the customer
to go and pay at
a different till’
.
He also states as follows:,
‘
As
a result, the Commissioner himself found that the Third Respondent’s
version was not supported by any of the evidence even
that of her own
witnesses’.
[28]
It is difficult to find
any basis for this deposition with reference to evidence on record or
in the award. The commissioner made
neither a finding that Maria was
a dishonest witness nor that did she lied about the fact that she did
not have sufficient change.
However, the commissioner found that the
applicant had proven that Maria failed to ring the two loaves as
alleged by the applicant.
She also found that ‘
regardless
of which version was probable’
,
Maria was ‘
negligent
in under ringing the two loaves and failing to at least make an
effort to follow up on whether the customer paid for the
unpaid
loaves’
.
[29]
It
is not clear therefore, how the applicant comes to a conclusion that
the phrase ‘
regardless
of which version was probable’
implies that the commissioner ‘
failed
to consider and evaluate the probabilities of the parties’
versions’
.
[25]
The phrase, understood in its ordinary meaning, means that it did not
matter in this case which version is probable on the facts,
even
after having evaluated and considered all versions, and perhaps even
after agreeing with the employee’s own version,
the conclusion
that remains clear is that Maria was negligent. Having found that
Maria was not negligent, the commissioner proceeded
to consider
whether or not there was any dishonesty on Maria’s conduct, and
concluded as follows:
‘
Whilst
I cannot make a finding that the Applicant was dishonest, her
carelessness was sanctionable’.
[30]
Furthermore, the
commissioner clearly rejected Maria’s version on her word as
compared to the video recording. She had already
acknowledged that
there was no audio recording and it cannot be disputed that Maria
told the customer to go pay at the till next
to hers. However, the
video shows the customer leaving the store and not paying. Maria
makes no effort to ensure that the customer
goes to pay for the two
loaves at the till next to hers. It is in this this regard that the
commissioner then finds that ‘
the
customer’s actions that we could see on the video do not
support the Applicant’s version
’
that she said what she said she said to the customer. By not
following up on what she told the customer, Maria was ‘careless’,
thus negligent. There cannot be anything more for the commissioner to
say to indicate that she had made a finding on which version
was
probable.
[31]
This illustrates the
commissioner’s logic as this Court understands. The applicant
contends that Maria lied on the receipt
of the float. Applicant also
contends that Maria lied when she said she told the customer to pay
for the other loaves at the next
till. The commissioner evaluates the
evidence and finds that Maria did not lie about the float. She in
fact admitted that she received
the float, but in coins and the
customers do not prefer coins. The commissioner accepts her
explanation. The commissioner however,
finds that Maria had
under-rang the two loaves and was thus culpable. Maria explains that
she told the customer to pay for the
two loaves to Lucas at the next
till. This is corroborated by Lucas. There is no audio recording of
the communication. Despite
what Maria and Lucas said, the customer
leaves the store with the two loaves, and Maria is seen attending to
the next customer.
She makes no effort to ensure that the customer
does what she was told. The commissioner finds that Maria was
negligent (careless)
in failing to ensure that the customer pays for
the bread.
[32]
There is no legal basis
to support a view that if a court rejects a party’s version on
the facts, then there must necessarily
and automatically follow a
conclusion that that party was dishonest. In any event, the Code of
Good Practice provides a guide to
arbitrators on what may constitute
a serious misconduct ‘of such gravity that it makes a continued
employment relationship
intolerable’. This includes gross
dishonesty, wilful damage to the property of the employer, wilful
endangering of the safety
of others, physical assault and gross
insubordination. The Code enjoins commissioners that even if they
found the misconduct to
be serious, they still cannot conclude that a
dismissal sanction is appropriate without further considering the
personal circumstances
of the employee, the nature of the job and the
circumstances of the infringement itself. These the commissioner has
taken fully
into account in this case and has, in my view, come to a
reasonable decision. The Code of Good Practice is mandatory and must
be
taken into account when a commissioner decides on the sanction.
[33]
The cases cited in the
Applicant’s Supplementary heads speak to the procedural and
substantive defects that are now accepted
as forming the basis of
irregularities in the commissioner’s conduct of the arbitration
hearing. In my view, they are not
fully applicable to the manner in
which the commissioner in this case came to her decision. Her
decision is reasonable and is probably
what any other commissioner,
faced with the same facts, would have made.
[34]
In my view, therefore,
the third respondent in this matter has rendered an award which any
reasonable decision maker would have
given. I find that she has
properly and rationally applied her mind and came to justifiable
conclusions. Her award is therefore
reasonable and must stand
as decreed.
[35]
I have considered that
this is not a matter where an award of costs is necessitated against
the losing party. I thus make no order
in that regard.
Order
[36]
In the premises, I make
the following order:
1.
The application is
dismissed.
2.
No order is made as to
costs.
__________________________
Mosime,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances:
For the
Applicant:
Ms
Samantha Coetzer
Instructed
by:
Bowman Gilfillan, Sandton
For
the Third Respondent:
Ms
L Marakalo
Union
Official, SACCAWU
[1]
Pleadings
bundle, 19-26.
[2]
Record, 19
– 22.
[3]
Record, 42
– 43.
[4]
Record, 64.
[5]
Record,
lines 15-25, p44.
[6]
Record,
line 5-10, p46; line 12, p46.
[7]
Record, 48.
[8]
Pleadings
Bundle, 20, at paragraph 4.16 of the Award.
[9]
Pleadings
Bundle, 19, at paragraph 4.10 of the Award.
[10]
Pleadings
bundle, 30.
[11]
Pleadings
Bundle, 19, at para 5.7 of the Award
[12]
Ibid, para
5.12 of Award.
[13]
At para
5.13 of the Award.
[14]
Act No. 66
of 1995, as amended.
[15]
[2007] 12
BLLR 1097
(CC).
[16]
Supra,
paras 118-119.
[17]
(1999) 20
ILJ
343
(LC) 346.
[18]
CA 4/09
(unreported), Labour Appeal Court, Cape Town (2 March 2012) paras
[103] – [104].
[19]
Supra.
[20]
(
2008)
29 ILJ 2461 (CC) at para [134].
[21]
Pleadings
Bundle, 24, at para 5.10 of the Award
[22]
Record, 48,
line 23.
[23]
Pleadings
bundle, p11-12;
See
generally the Founding Affidavit, at para 36.
[24]
Pleadings
bundle, 12,
at
par 37.1.4 of the founding affidavit.
[25]
Applicant’s
Supplementary Heads, para 8.