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[2017] ZALCJHB 333
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Cashbuild South Africa (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (JR452/16) [2017] ZALCJHB 333 (29 August 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JR452/16
In
the matter between:
CASHBUILD
SOUTH AFRICA (PTY)
LTD
Applicant
and
COMMISSION
FOR CONSICIATION MEDIATION AND
ARBITRATION
First Respondent
COMMISSIONER
FOURIE A
Second
Respondent
ITUMELENG
K A
Third
Respondent
Heard:
21 July 2017
Delivered:
29 August 2017
Summary:
The conduct of the Commissioner-not considering all the
relevant facts, made the award reviewable
JUDGMENT
KRUGER
A J.
Introduction
[1]
This is an application to review and set
aside an arbitration award issued by the second Respondent (the
commissioner) on 26 January
2016.
[2]
The third Respondent was employed as a
trainee manager. He earned a salary of R13 119.03 per month.
[3]
The Applicant dismissed the Third
Respondent on 14 October 2015.
Factual
Background
[4]
On 9 September 2015, the Applicant sent an
email to the third Respondent and other managers reminding them of
their duties.
[5]
On 14 September 2015, there was stock take
and the Third Respondent worked administrative duty until 18
September. On 18 September
2015, the Third Respondent went on leave
and on 23 September 2015, a certain Pejane, the divisional manager of
the Applicant visited
the store. Because of this store visit the
Third Respondent and the other managers were charged for misconduct.
[6]
The Third Respondent was dismissed for
Gross Negligence in that:
“
On 11
th
of September you failed, without proper cause to perform your duties
with the proper care required in that you failed to carry
out the
above mentioned duties”
[1]
The
duties were as follows -
a.
“
The
managers desk together with the sales coordinators desk must be clean
and no papers lying around;
b.
There
must be no gaps in the store expect where there is no stock on hand;
c.
All
stock to have correct pricing;
d.
All
Plano – grams must be fully implemented;
e.
All
bulk boxes to have correct template of the stock inside the box and
must be neatly packed;
f.
Floor
to be clean and be free of obstruction of stock to customer and to
staff;
g.
Yard
to be clean at all times;
h.
GRS
offices must be clean and there should be no stock in the receiving
expect the stock to be received for the specific day;
i.
Kitchen
and toilets must be clean at all times and the roster must be daily
completed and be signed off;
j.
RFB
checklist must be completed by the relevant staff and be signed off
by management on a daily basis;
k.
No
queues at the till points”
The
arbitration proceedings and the award
[7]
In paragraph 5 of the award the Second
Respondent stated that she regretted the fact that she allowed legal
representation. She
stated that Mr. Orton was not prepared and for
that reason irrelevant evidence were presented at the arbitration.
Mr. Orton also
wanted to reopen his case after it was already closed.
[8]
In paragraph, 47 of the award the second
respondent made the following finding –
“
It
was not in dispute that the store was found in disarray on the 23
rd
of September 2015. It was further not in dispute that the three
Managers and the System Supervisors all shared one desk. This could
naturally cause problems to assign responsibility if something went
missing from the desk or if the desk was found in disarray
as in this
case appeared to be the situation”
[9]
The second Respondent noted in paragraph 48
of the award that the Applicant took disciplinary action against all
the managers and
that all the managers were dismissed.
[10]
In paragraph 49 of the award the second
Respondent made the following finding-
“
I
am not suggesting that that the Trainee Managers had no
responsibilities, but I am of the view that the degree of negligence
in the sense of failure to comply with their duties and
responsibilities in the case of the Store Manager and the Trainee
Manager
differ.
[11]
The Second Respondent found that the Third
Respondent was not entirely to be blamed for the shortcomings that
were found on 23 September
2015. In paragraph, 56 she found that –
“
I
do acknowledge that the employee could have applied his mind and
reported the shortcomings to the Divisional Manager or that he
could
take initiative and see to it that that the shortcomings were
addressed on the store. However that would ultimately be the
responsibility of the Store Manager”
[12]
The Second Respondent then found that the
Applicant failed to prove that the Third Respondent was grossly
negligent and that a final
written warning would have been
sufficient. The Second Respondent ordered reinstatement without back
pay.
Grounds
for Review
[13]
The Applicant contends that the Second
Respondent committed misconduct in relation to her duties and that
she committed a gross
irregularity rendering the award reviewable.
The Applicant relies on the following grounds:
“
a.……
the second respondent was biased in favour of the third Respondent at
the expense of the Applicant.
b.
The second respondent misconceived the nature of the inquiry and
thereby committed
a gross irregularity; and or
c…… Committed gross
irregularities in failing to apply her mind properly to the evidence
and / or to properly evaluate
the evidence and / or making material
factual and legal errors; and or
d
Misconduct in the execution of her duties; and or
e
Arrived at a decision that no reasonable commissioner could have
arrived
at and thereby acted grossly irregular.
Analysis
First
Respondent was bias in favour of the third Respondent at the expense
of the Applicant.
[14]
Mr.
Pejane took issue with the fact that the Second Respondent mentioned
that she regretted allowing legal representation and that
she felt
that Mr. Orton was not properly prepared. Pejane further stated that
the fact that she “
ridiculed
a perfectly sound argument made by Mr. Orton by shrugging it of as
amusing”
[2]
meant that because of her dislike in Mr. Orton her judgement was
clouded; and that she was therefore biased in favour of the Third
Respondent.
[15]
In
President
of the Republic of South Africa & Others v South African Rugby
Football Union
[3]
the
Constitutional court stated that –
“
The
question is whether a reasonable, objective and informed person would
on the correct facts reasonably apprehend that the judge
has not or
will not bring an impartial mind to bear on the adjudication of the
case, that is a mind open to persuasion by the evidence
and the
submissions of council”
[16]
The Applicant did not take issue with the
Second Respondent’s conduct during the proceedings but with
what was said in her
award. The fact that a commissioner mentioned in
her award that she regretted allowing legal representation and that
according
to her the representative was not properly prepared does
not mean that her dislike in the representative clouded her
judgement.
Even if her reasoning in paragraph, 55 of the award
regarding the planning was wrong; and if her words “
I
find it amusing”
was unfortunate;
this does not mean that she was biased.
[17]
The Second Respondent considered all the
evidence. She made adverse findings against both the Applicant and
the Third Respondent.
I am not convinced that the Applicant was not
afforded a fair hearing because of the conduct of the Second
Respondent. For these
reasons, this ground of review must fail.
Applicant’s
arguments with regard to the rest of the grounds of review
[18]
The
crux of the Applicant’s case
[4]
is that Store Management, which includes the Applicant, had a shared
responsibility to ensure that the store standards were met.
On 9
September, the Managers signed Pejane’s email and did nothing
to action it. In other words, they did not plan accordingly.
If
proper plans were in place, then issues discovered by Pejane on 23
September would not have ensued.
[19]
The Second Respondent out of her own
reduced the Third Respondent’s culpability because he was a
Trainee Manager. This was
not part of the Third Respondent’s
defence.
[20]
Mr.
Orton argued that when the Third Respondent testified that there was
a plan; there was a shifting in the evidentiary burden
[5]
and the Third Respondent had the duty to produce such a plan. The
Third Respondent could not produce such a plan.
[21]
The Second Respondent did not consider all
the relevant facts when she concluded that dismissal was not an
appropriate sanction.
Mr. Orton argued that reinstatement is not
practical because the trust relationship was destroyed. He argued
that because of shrinkage,
the Applicant was forced to act and to
dismiss the Managers.
Analysis
[22]
In
Goldfields
Mining SA v CCMA
[6]
the court stated that –
“……
..
the reviewing court is not required to take into account every factor
individually, consider how the arbitrator treated and 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 proses related irregularity sufficient
to set aside the award. This piecemeal approach of dealing with the
arbitrator’s award is improper as the reviewing 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”
[23]
In
Head
of Department of Education v Mofokeng
and
others
[7]
the LAC stated that –
…
.
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”
[24]
The
Second Respondent was wrong in not accepting Mr. Orton’
argument with regard to the shift in the evidentiary burden. There
was clearly not a proper plan in place. The Second Respondent failed
to consider the consequences of this lack of planning on the
business
of the Respondent; especially at a time when there were problems with
shrinkage.
[8]
[25]
The question is whether these two errors
will be enough to make the entire award unreasonable and therefore
reviewable. Dismissal
is not a form of moral outrage and the
Applicant had the right to expect that his Managers and this includes
the Third Respondent
will take proper care of its business. The Third
Respondent although a Trainee Manager was experienced. He worked at
the Applicant
for a period of six years; he knew that there were
problems with shrinkage; and despite this, he did nothing; he did not
plan or
ask for assistance from his Divisional Manager. Because of
this lack of planning the Applicant, suffered losses. It was not
unreasonable
to act decisively.
[26]
The dismissal of the Third Respondent was
therefore fair and the order to reinstate the Third Respondent under
these circumstances
was unreasonable.
[27]
The award under review is to be set aside.
Costs
[28]
Costs should be considered against
the requirements of the law and fairness.
[29]
The requirement of law has been
interpreted to mean that the costs would follow the result.
[30]
In view of social justice and the
fact that the Third Respondent is unemployed. I am of the view that
each party must pay its own
costs.
[31]
In the premises I make the following
order:
Order
1.
The Applicants application for review is
upheld;
2.
The arbitration award issued by the Second
Respondent on 26 January 2016 under case number FSBF 4649-15 is
reviewed and set aside.
3.
The award is replaced with the following
order;
3.1.
The dismissal of the Applicant was fair and he is not entitled to any
relief
4.
There is no order as to costs.
______________
Werner
Kruger
Acting
Judge of the Labour Court
Appearances:
For
the Applicant
:
R J
Orton
Instructed
by
:
Snyman
Attorneys
For
the Third Respondent :
Mr P R Cronje
Instructed
by
: Peyper
Attorneys
[1]
See page 38 of the record in the disciplinary hearing the Chairman
states it as follows – “
There
were no evidence submitted that they deliberately failed to follow
the instructions, they never indicated in person that
they do not
want to follow the instructions, however they failed to follow the
instructions as would have been expected from
a reasonable manager
in their position”
[2]
Page 28 paragraph 6.39
[3]
1999 (4) SA 147 (CC)
[4]
I have read the entire heads of argument but I record only that that
was relevant for purposes of this judgement
[5]
See
Woolworths (Pty) Ltd v
CCMA (2011)32 ILJ 2455 (LAC
)
The DVD footage evidence established, in my view a prima facie case
of concealment and, therefore, an element of dishonest interaction
on the part of the employee, which then shifted the evidentiary
burden to her to present such evidence as would exonerate her
from
blame in this regard.
[6]
[2007] ZALC 66
;
(2014) 1 BLLR 20
LAC at paras 17 -18
[7]
(2015) 1 BLLR 50
(LAC) at para 32
[8]
The commissioner did not consider the central dispute – see
Ntoagae and Another v Anglo
Platinum LTD JA
8 /
2012
(2014) ZALAC 47
(19 September 2014)