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[2017] ZALCJHB 350
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Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JR2224/15
In
the matter between:
THEMBISILE
ZITHA
Applicant
and
COMMISSION
FOR CONCILIATION, MEDIATION AND ARBITRATION
First
Respondent
COMMISSIONER
AKIM,
N.O.
Second
Respondent
EDCON
LIMITED
Third
Respondent
Heard:
24 August 2017
Delivered:
3
October 2017
Summary:
Section
145 review – commissioner finding employee guilty of gross
negligence for failing to verify that merchandise properly
returned
before authorising refund of cash to customer and that dismissal
appropriate – award found reasonable
JUDGMENT
MYBURGH,
AJ
Introduction
and background
[1]
The
employee seeks to set aside on review the commissioner’s award,
in terms of which he found that the employee’s dismissal
by the
company for gross negligence was substantively fair. The review
application is opposed by the company.
[2]
The
essential background is this.
a)
The
employee appears to have been initially employed at Edgars, Maponya
Mall as a retail associate. On 3 April 2011, she underwent
multi-skilling training and signed receipt of a standing instructions
policy addressing key risk factors for service centre operators
(SCOs) (“the policy”). The policy addresses,
inter
alia
,
“processing a cash credit”, albeit that at the time, this
was not part of the employee’s duties.
b)
In October
2011, the employee appears to have transferred to Edgars, Westgate
Mall, where she took up the position of a sales specialist
working on
the floor. In May 2014, following a large-scale retrenchment
exercise, the employee was reassigned to the credit office
at the
store and worked as a credit officer,
[1]
reporting to Ms Mishoene, the credit manager.
c)
As this
involved a move from the sales floor to working on a terminal, Ms
Mishoene (on her version) trained the employee in the
operation of
the terminal. Once she was competent in performing all the relevant
transactions, Ms Mishoene then gave her authority
to authorise
returns (see below) – this in circumstances where Ms Mishoene
found herself too busy to attend thereto personally.
d)
By at least
December 2014, the employee had been given a returns password
(effectively an authorisation code) by Ms Mishoene, which
enabled her
to authorise returns and the paying out of cash to customers (or
otherwise crediting them). Such a transaction would
be processed by a
terminal operator (a SCO), who would then call upon the employee to
authorise the transaction.
e)
The
employee then attended to performing these duties. By way of example,
on 31 December 2014 alone, the employee authorised scores
of return
transactions. All returns are captured by way of video surveillance,
which is monitored and evaluated by the control
room. Up until the
date of the incident in question (see below), none of the return
transactions authorised by the employee was
picked as being irregular
by control room personnel.
f)
On 21
February 2015, the employee authorised a cash credit transaction
without checking / verifying the returned item, which resulted
in a
loss of R1999 to the company. The SCO involved was one Gemina. The
irregular transaction was picked up by the control room,
which led to
an investigation of the transaction.
g)
This gave
rise to the employee being charged with gross negligence, which was
said to have breached the trust relationship.
h)
On 11 May
2015, following a disciplinary enquiry at which she was found guilty
as charged, the employee was dismissed. Gemina was
also dismissed.
i)
At the
ensuing CCMA arbitration before the commissioner, the employee
admitted (at least) the factual component of the charge against
her,
i.e. that she had entered her authorisation code without checking /
verifying the returned item / transaction at all. But
she contended
that her dismissal was substantively unfair because: (i) she was not
aware of the policy / rule which regulates the
authorisation process;
and (ii) she was not given sufficient training to enable her to
perform her duties properly, with the result
that the sanction of
dismissal was (allegedly) inappropriate.
j)
The
controversy boiled down to this. According to the company, when it
came to returns, what was required of the employee was this:
she had
to check the returned item/s against the customer’s till slip
and what was captured on the system, and, if they corresponded,
enter
her authorisation code on the terminal operated by the SCO before
cash was paid out to the customer. (This is referred to
below as “the
rule” and accords with the relevant text of the policy referred
to above.) According to the employee,
on the other hand, she was
simply required to enter her authorisation code when requested to do
so by the SCO, and was under no
obligation to check / verify the
transaction in any way.
k)
Underlying
this controversy was,
inter
alia
,
whether or not Ms Mishoene had given the employee on-the-job training
on the aforesaid rule – as contended by Ms Mishoene,
but
denied by the employee.
l)
At the
arbitration, Ms Mishoene testified for the company, whereupon the
employee gave evidence in her defence. As stated above,
in his award,
the commissioner found that the employee’s dismissal was
substantively fair.
The
commissioner’s award
[3]
As a point
of departure, the commissioner was critical of the employee’s
evidence that she had only become aware of the policy
during her
suspension in 2015, when it was clear (as she went on to concede)
that she signed receipt of the policy in 2011. This
led the
commissioner to find that this was “not consistent with [the
employee’s] contention that she was not aware
of the policy”.
[4]
Turning to
the issue of training, the commissioner found that the employee’s
signature of the policy in 2011 also established
that her “excuse
that she was not trained [was] unjustifiable”. In relation to
whether Ms Mishoene had provided the
employee with on-the-job
training, the commissioner found as follows:
“
Agnes
[Mishoene] testified that she provided the [employee] with an on the
job training when she gave her an authorizing password.
This version
was placed in dispute. The [employee’s] version [was] that when
Agnes gave her the password to authorise, she
advised her that there
was no need for her to be careful. I find it improbable in that this
version was not put to Agnes.”
[5]
In
circumstances where the commissioner found that the employee was
aware of the policy and had been given on-the-job training by
Ms
Mishoene, he appears to have concluded that the employee was guilty
of gross negligence.
[6]
Dealing
pertinently with the issue of sanction, the commissioner recorded his
rejection of the employee’s central attack on
the fairness of
the sanction of dismissal, namely that she had (allegedly) not been
trained. In addition, the commissioner had
regard to the loss
suffered by the company, Ms Mishoene’s evidence that the trust
relationship had been destroyed through
the employee’s conduct,
and to the fact that the company’s disciplinary code provides
for dismissal for a first offence
of gross negligence. In the result,
the commissioner concluded that the sanction of dismissal was
appropriate.
Grounds
of review: analysis and evaluation
[7]
In her
founding and supplementary affidavits, the employee is critical of
the commissioner’s award, contending that, in certain
respects,
he misunderstood / misconstrued the evidence, misinterpreted the
evidence, failed to apply his mind to the evidence or
attached
insufficient weight to it, and that he failed to consider various
considerations relevant to the issue of sanction.
[8]
In argument
before me, Ms Maharaj (who appeared for the employee) correctly
accepted that, in circumstances where the employee ultimately
attacks
the reasonableness of the outcome of the award on review, the onus is
on her to establish that – irrespective of
the errors and
misdirections that a fine tooth comb analysis of the award may
uncover – the result of the award is, nevertheless,
incapable
of reasonable justification. Put differently, even if the
commissioner’s award is open to criticism (as it is in
certain
respects), the question is whether the result of the award (i.e. that
the dismissal was substantively fair) is one that
a reasonable
commissioner could not reach on all the material before him.
[2]
Only then will the award be reviewable for want of reasonableness.
[9]
In
circumstances where the employee admitted to not having checked /
verified the return transaction at all on 21 February 2015
before
authorising it by entering her authorisation code, her defence in
relation to the issue of guilt was essentially that she
did not know
that she had to verify / check the transaction, because she was
unaware of the rule and had not been trained on it
(which effectively
amounts to the same thing). In relation to sanction, insofar as she
was guilty of misconduct, the thrust of
the employee’s defence
was that the absence of training rendered the sanction of dismissal
inappropriate. The issue of training
thus spanned both the issue of
guilt and sanction.
[10]
While the
commissioner’s finding that the employee had knowledge of the
rule contained in the policy as a result of having
received training
in 2011, at a time when the employee was in a different role, is open
to criticism, to my mind, the key issue
is whether the commissioner’s
finding that Ms Mishoene gave the employee on-the-job training at the
time of giving her the
authorisation code in or about December 2014,
is reasonable.
[11]
In this
regard, Ms Mishoene was unwavering in her evidence that she had given
the employee such training and explained the rule
to her, and that it
would have made no sense for her to have given the employee the
authorisation code on the basis that she should
simply (blindly)
enter it whenever asked to do so by a SCO. Under cross-examination,
the employee experienced difficulty in explaining
the purpose of
entering a (secret) authorisation code, if it were not a
double-checking mechanism. She also stated under cross-examination
that when Ms Mishoene gave her the authorisation code, she asked her
what she was supposed to do with it; that Ms Mishoene had
said that
she must authorise return transactions; that she asked whether this
would get her into trouble; and that Ms Mishoene
had said, “I
must not worry because I must just put [in] my number and my password
only”. Quite correctly, the company’s
representative put
it to the employee at the arbitration that this conversation had not
been put to Ms Mishoene under cross-examination.
[3]
Although the commissioner’s description of what was not put to
Ms Mishoene (see para 4 above) may be inarticulate, he was
correct in
finding that a material aspect of the employee’s defence was,
in fact, not put to Ms Mishoene. This raises a question
mark about
the credibility of the employee’s version – this in
addition to the fact that it appears at odds with the
inherent
probabilities.
[12]
In these
circumstances, I am of the view that the commissioner’s finding
that the employee was given on-the-job training by
Ms Mishoene was
not unreasonable. This is further borne out by the fact that, as
submitted by Ms Oosthuizen (who appeared for the
company), it is
unlikely that the employee’s blind authorisation of returns
would not have been picked up by the control
room if she had done so
since December 2014, which was implicitly her case. Instead, it
appears more likely that the employee had
properly acquitted herself
in the past, but misconducted herself on 21 February 2015, for a
reason that went unexplained by her.
[13]
Once it is
accepted that the employee was given on-the-job training (or that the
commissioner’s finding to that effect was
reasonable), then it
seems to me that a finding (implicitly made by the commissioner) that
the employee was grossly negligent on
21 February 2015 is also not
unreasonable. In effect, the employee was guilty of a dereliction of
her duties, such as to qualify
as gross negligence.
[14]
What
remains is to determine whether the upholding of the sanction of
dismissal was reasonable in all the circumstances. While one
may well
argue, as Ms Maharaj did, that the sanction of dismissal for a first
offence by an employee with a clean record and long
service was
unfair, in order to succeed, the employee in this matter must go
further and establish that a reasonable commissioner
could not have
come to a different conclusion, i.e. that the decision on sanction
fell outside of a range of reasonableness.
[15]
To my mind,
the employee has fallen well short of establishing this. Indeed,
where an employee is entrusted with authorising the
payment of cash
out to customers who return merchandise in the retail sector –
which self-evidently requires the verification
/ checking of the
legitimacy of the transaction – and inexplicably fails to
acquit herself of that duty, thereby causing
a loss to her employer
of some R2000, one can easily conceive of many reasonable and
fair-minded commissioners upholding the sanction
of dismissal. In the
result, as with his determination of guilt, I am of the view that the
commissioner’s determination of
sanction was not unreasonable.
Order
[16]
In the
circumstances, the following order is made:
a)
The review
application is dismissed;
b)
There is no
order as to costs.
________________________________
Myburgh,
AJ
Acting
Judge of the Labour Court of South Africa
Appearances
For the applicant: N
Maharaj of Legal Aid South Africa, Johannesburg Justice Centre
For the third
respondent: V Oosthuizen of Shepstone & Wylie
[1]
Also referred to in evidence as a
credit assistant or associate.
[2]
Sidumo & another v Rustenburg
Platinum Mines Ltd & others
[2007] 12 BLLR 1097
(CC) at para 110;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR
1074
(SCA) at para 25.
[3]
What had been put to Ms Mishoene
under cross examination was simply this: “Zitha [i.e. the
employee] will testify and dispute
that you ever showed her that she
should each and every time check.”