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[2017] ZALCJHB 445
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Pick 'n Pay Retailers (Pty) Ltd v Letsoalo (JR435/15) [2017] ZALCJHB 445 (20 November 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Not of interest to other judges
Case
No. JR 435/15
In
the matter between:
PICK ‘N PAY RETAILERS
(PTY) LTD
Applicant
and
ANNIE
MALEPO LETSOALO
Respondent
Heard:
01 September 2017
Delivered:
01 September 2017
Edited:
20 November 2017
EX
TEMPORE
JUDGMENT
COETZEE.
AJ
Introduction
[1]
This
is the
ex-tempore
judgment with reasons, in the matter between Pick ‘n Pay
Retailers (Pty) Ltd (the applicant/employer) and Letsoalo Annie,
(first respondent/employee) represented by the University of Pretoria
Law Clinic, Muteleni (second respondent) and the Commission
for
Conciliation, Mediation and Arbitration cited as the (third
respondent).
[2]
The
applicant seeks to review and set aside an arbitration award
GATW10373/14 dated 27 February 2014.
[3]
The
first respondent was initially represented by a union by the name of
JAMAFO but is now represented by the University of Pretoria
Law
Clinic.
[4]
The
applicant employed Annie Letsoalo (Letsoalo) for 28 years. At
the time of the incident that led to her dismissal, Letsoalo
rendered
services as an inventory clerk in the receiving department, but had
been acting in the position of receiving manager in
that department.
[5]
It
was a requirement of the applicant that Letsoalo had to pass the
prescribed examination with a pass mark of 90% before the applicant
could confirm her appointment to the position of receiving manager.
[6]
The
applicant allowed Letsoalo four opportunities to write and pass the
examination. Letsoalo, on three previous occasions, unsuccessfully
attempted to pass the examination. On the fourth occasion she sat for
the examination on 3 December 2013. This was her last opportunity
to
pass the examination.
[7]
It is
common cause that during the test her employer found her with crib
notes on her desk under her examination pad. The employer’s
witness testified that the employee admitted having used the crib
notes during the examination. The employee explained that she
did not
use the crib notes to copy from the notes but merely to refresh her
memory.
[8]
Julianne
Matshaba sat for the same examination on the same occasion. The
employer charged her with the same misconduct as Letsoalo
but found
her not guilty. The employer had found crib notes in her handbag that
was put away, and the employer was unsuccessful
in proving that she
had made any use of the crib notes during the test.
[9]
In
the case of Letsoalo, the employer subjected her to a disciplinary
enquiry. The employer dismissed her, and her appeal
failed. She
referred the matter to the CCMA.
[10]
She
testified at the disciplinary enquiry that she saw others using crib
notes and that she did not know that she was not allowed
to use the
crib notes during the examination.
[11]
The
evidence for the employer was that the receiving department within
the retail industry is a high risk area. That is the reason
why
employer required a pass mark of 90%.
[12]
Letsoalo
then referred the matter to arbitration. The second respondent
arbitrated the dispute, and rendered an award to the effect
that the
dismissal of Letsoalo was substantively unfair, ordering the employer
to reinstate her and to impose a final written warning.
[13]
The
employer now seeks to review and set aside the award.
[14]
This
case is about the appropriateness of the sanction.
[15]
The
commissioner made the following finding, with which the employer
agrees:
“
I find, regarding the
claim of substantive fairness ... she contravened the rule.”
[16]
He
further found that the rule was reasonable and valid, given that this
was not an open book examination. He further held that
the rule was
known, or ought to have been known, by the applicant and that the
employer applied discipline consistently.
[17]
The
commissioner then made the following further finding:
“
For almost a period of a
year she was working in a high risk department, and the test that she
sat for was in order to assist her
to attaining a position of trust,
that of receiving manager. But she elected to act in a
dishonest manner by resorting to
cheating.”
[18]
The
employer however, challenges the following further finding of the
commissioner:
“
The applicant, during
investigation, admitted to her manager, to the whole incident, and
was corporative (which should read cooperative).
The conduct of
the applicant did not go to the heart of the employer relationship
between her and the respondent employer. Other
measures short of
dismissal were not considered by the respondent employer, and there
is no evidence indicating why this route
was not followed prior to
imposing a dismissal sanction.”
[19]
In
this case the applicant submits that the test to be applied by this
Court is one set out in
Shoprite
Checkers (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
[1]
“…
Where
a commissioner misdirects himself by ignoring material facts, the
award will be reviewable, if the distorting effect of this
misdirection was to render the result of the award unreasonable.”
[20]
The
applicant submits that the commissioner failed to undertake a proper
enquiry regarding sanction. The commissioner failed to
consider
various relevant and material facts having a direct bearing on the
appropriateness of the sanction imposed by the company.
[21]
The
factors not considered are the nature and importance of Letsoalo’s
position. That the position of receiving manager is
a high risk
position and requires a person of integrity. A fact if properly
construed, Letsoalo’s actions amounted to dishonesty
and fraud,
which go to the heart of the trust relationship between an employer
and employee.
[22]
In
trivialising Letsoalo’s misconduct, the commissioner failed to
appreciate the employer’s need for honesty in the
workplace.
[23]
The
evidence adduced by the employer clearly showed that Letsoalo owed a
duty of good faith to the company, which included a duty
to act
honestly. The Commissioner failed to understand that the receiving
department is a high risk department, and that the company
viewed
such misconduct in a serious light as it destroyed the relationship
of trust.
[24]
The
evidence of Mr Joel von Bissis, the initiator at the disciplinary
enquiry set out how the trust relationship between the employer
and
Letsoalo had broken down, and that because of her dishonesty, the
employer could not entrust her with the position of receiving
manager. This evidence was not seriously contested. In fact, his
evidence related to any person working in the receiving department.
[25]
It
was also clear that the use of crib notes during the examination was
prohibited. The first respondent had previously written
the same
examination on three occasions and failed. She was fully aware of the
procedure and rules relating to the taking of the
test. Her conduct
in cheating is antithesis to the position of anybody working in the
receiving department, which entails substantial
trust. She undermined
the essence of this trust relationship.
[26]
Mr
von Bissis testified as follows:
“
The seriousness of this
offence is that there is a trustworthy between the company and the
employee that has basically been broken,
because the company
entrusted or trusts its employee to work at the back, to receive our
stock from the supplier. This is basically
what it is. So the
company, when the company sees this, that this person was dishonest
in writing the test, how will this company
then trust this person
working in the department receiving our stock? That is how important
this position is.”
[27]
Ms
Bush, who is the case manager, also described the conduct as a
serious transgression, and that the business is that of receiving
and
selling, and both these ends are very important. That is where one
loses money.
[28]
The
first respondent submitted that both these witnesses were not in a
position to testify to the trust relationship. Firstly, because
Mr
von Bissis is an administration manager, and not a line manager of
the first respondent. In addition, Ms Bush is the case manager,
who
also cannot testify as to whether there was a trust relationship or
not.
[29]
The
fact is, they both testified to the business and the way the business
is conducted. They have knowledge of the nature of the
business.
[30]
In
addition, evidence was led of a number of persons who had been
dismissed for the same reason, that is, dishonesty in the
examination,
and some that were not dismissed because of
discrepancies and what have you.
[31]
The
conduct of Letsoalo in no way amounted to cooperation after the fact,
nor did she show remorse, and this was not taken into
account. She
was caught red handed and was accordingly left with no option but to
admit that she used crib notes.
[32]
She
subsequently provided conflicting versions at the enquiry and at the
arbitration. Her evidence in this regard is contradictory
and that
does not show a reason to trust her any more.
[33]
The
applicant submits that the above facts are material. If they had been
correctly considered, the commissioner, on a balance of
probabilities, would have come to a different conclusion altogether,
in determining the appropriateness of the sanction. As a result,
the
award is
prima
facie
unreasonable.
[34]
Turning
to the second enquiry and asking the question whether there exists a
basis in the overall evidence to displace the
prima
facie
case of unreasonableness, no such basis exists, and thus the award is
further confirmed to be unreasonable.
[35]
In my
analysis, the case of
Independent
Newspapers (Pty) Ltd v Media Workers Union SA
,
on
behalf of McKay and others
[2]
,
is appropriate. I quote:
“
This court, has held on
numerous occasions that in the face of dishonesty by an employee,
there is very little chance of the trust
relationship being rebuilt.
Dismissal is general seen as a fair sanction in those circumstances.
The arbitration in this case did
not consider that aspect of the case
before him. That failure makes his finding on sanction so
unreasonable that no other arbitrator
could have reached the same
conclusion. In those circumstances the award must be reviewed and set
aside.”
[36]
The
comments of the commissioner that the employer did not consider a
sanction short of dismissal, or counselling, is inappropriate.
In
cases where there is dishonesty and it goes to the heart of the trust
relationship in a high risk department such as in this
case, there is
no need to consider any other sanction, unless of course there are
special circumstances that relate to the matter.
No such special
circumstances have been raised by the employee in this matter, and
therefore the general rule that dishonesty goes
to the heart of the
trust relationship prevails.
[37]
The
employer’s decision to dismiss was fair, having regard to the
importance of the rule, and all the other factors. And more
specifically, the importance of the trust relationship with regard to
a person that works in the receiving department of a retail
organisation, and this evidence was not disputed by the applicant.
[38]
I
find that the finding of the commissioner is not one that a
reasonable commissioner could have arrived at. The factors that he
failed to consider and his failure to give due regard to distorted
the outcome of his enquiry. All the evidence relevant to determine
whether the dismissal was substantively fair is on record, and this
court is in as good a position to substitute the finding.
[39]
With
regard to costs, I have considered the relevant factors in
determining a cost order. In my view, there is no reason to make
a
cost order. I make the following order.
Order
1.
The
arbitration award dated 27 February 2014 in the case GATW10373/14 is
reviewed and set aside. The arbitration award is substituted
by a
finding that the dismissal of Annie Letsoalo was substantively fair.
2.
There
is no order as to costs.
_____________________
F Coetzee
Acting Judge of the
Labour Court
Appearances
For the
applicant:
Sibusiso Dube
(Bowman Gillfillian Inc)
For the
respondent:
QM Dzimba (Pretoria
University Law Clinic)
[1]
[1]
[2015]
10 BLR 1052
(LC) at para 10.
[2]
(2013)
34 ILJ 143 (LC).