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[2017] ZALCPE 12
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Cashbuild (Pty) Ltd v Mdlalana NO and Others (PR128/16) [2017] ZALCPE 12 (14 September 2017)
THE
LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not
reportable
Case
no: PR 128/16
In
the matter between:
CASHBUILD (PTY) LTD
Applicant
and
M MDLALANA N.O
First
Respondent
THE
COMMISSION FOR CONCILIATION, MEDIATION
AND
ARBITRATION
Second Respondent
SACCAWU
obo N NOMPHELO
Third Respondent
Heard:
17 August
2017
Delivered:
14 September 2017
Summary:
Review application. No merit in the grounds for review. Application
dismissed
JUDGMENT
PRINSLOO
J
Introduction
[1]
The Applicant seeks to review and set aside an
arbitration award issued on 16 March 2016 wherein the First
Respondent (the arbitrator)
found Ms Nomphelo Nkonzombi’s (the
employee) dismissal unfair and ordered that she be reinstated.
[2]
The Third Respondent (Respondent or union) acting
on behalf of Nkonzombi opposed the application.
[3]
The Applicant also applied for condonation for
the late filing of the review application. I have considered the
application for
condonation as well as the opposition thereto. In my
view a case has been made out for condonation and I grant condonation
for
the late filing of the review application.
Background
facts
[4]
The background facts are as follows:
[5]
The employee was employed as a cashier at the
Applicant’s East London branch. On 26 November 2015 the
employee was on duty
as a relieving cashier. At the end of her shift
the employee handed over to the next cashier who worked until the end
of the day.
When the final cash up was done at the end of the day,
there was a negative balance of R 1 882,80 on the cash register. The
next
morning the employee was questioned about the shortage and she
was able to remember a transaction with a specific customer. It
turned out that the customer paid by card for a purchase of R 941,55
and when the employee processed the payment, she processed
a refund
instead of a sale. The customer left the store with the goods,
without having paid for them and instead the customer was
refunded in
the amount of R 941,55.
[6]
On 4 December 2015 the employee was charged with
gross dishonesty, alternatively gross negligence and a disciplinary
hearing was
held on 9 December 2015 The employee was found guilty of
gross negligence and dismissed on 15 December 2015.
[7]
An unfair dismissal dispute was subsequently
referred to the Second Respondent and the dispute was arbitrated in
March 2016.
The
evidence adduced:
[8]
The issue to be decided by the arbitrator was
whether the employee’s dismissal was substantively fair as she
did not challenge
the procedural fairness of her dismissal.
[9]
In order to assess the arbitrator’s
findings in respect of substantive fairness and the award he issued,
it is necessary to
consider the evidence adduced.
[10]
The Applicant’s assistant manager, Ryan,
testified and he explained that there was a negative balance of R
941.55 for items
that left the store but not paid for. The next day
he asked the employee about the amount and she knew which customer it
was. The
customer came to the store two days later and said that she
knew there would be an issue when she was not asked to enter her pin
number when she paid for the goods. The employee instead made a
refund and that led to the charge of gross negligence.
[11]
Ryan testified that employees are allowed to make
mistakes, but in this instance the employee should have noticed that
something
was not right with the transaction and she should have
asked somebody else for assistance.
[12]
Ryan testified that the employee was told that if
the customer could not be traced, she would have to pay the R 941.55,
which the
employee paid on 27 November 2015 out of her own accord.
Ryan conceded that the employee went to FNB and that she requested
the
manager at FNB to assist her to get hold of the customer and that
is why the customer went back to the Applicant’s store and
paid
the whole amount. Ryan’s version is that the employee was
negligent when she pushed the refund button instead of the
sale
button and carried on with the process without asking for assistance.
[13]
The employee testified that on 26 November 2015
she was relieving another cashier from 10:00 – 11:00 when she
swiped the customer’s
card and punched all the buttons to
perform the speed point procedure. She was waiting for the speed
point to punch in the pin,
but instead the transaction went through.
The employee testified that she did not notice that the receipt from
the speed point
had a minus and she thought the customer had one of
those cards that did not require a pin code, but instead requires a
signature
from the customer. The customer signed the receipt and
queried why a pin was not required and the employee explained to her
that
it might be a card that did not require a pin but a signature.
[14]
The next morning the employee was questioned
about the fact that the till was short and after she was shown the
invoice, she recognised
the goods on the invoice and remembered the
customer. The Applicant tried to get hold of the customer via their
bank, but was not
successful and Ryan told her that she should pay R
941.55. The employee made arrangements to pay the money through
another cashier,
but Ryan stopped her and the employee testified that
Ryan stopped the payment as he wanted to make a case against her.
[15]
The employee went to FNB and with the assistance
of the bank manager, traced the customer who subsequently went to the
store and
paid for the goods.
[16]
In cross-examination Ryan did not pose any
material questions to the employee.
Analysis
of the arbitrator’s findings and grounds for review
[17]
The
arbitrator considered the Code of Good Practice in Schedule 8 of the
Labour Relations Act
[1]
(the Act)
in determining the substantive fairness of the employee’s
dismissal. The arbitrator accepted that there is a rule
or standard,
that the employee was aware of the rule or standard, that it was
reasonable and that the employee breached the rule
or standard.
[18]
The only issue to be decided was whether or not
dismissal was an appropriate sanction. The arbitrator held that the
employee’s
concern for her actions showed that she made an
honest mistake and her behaviour is not that of a person who is
malicious, wilful
and intent on bringing harm to the employer.
[19]
The arbitrator further held that the Applicant
never raised the issue whether the trust relationship had broken down
and became
intolerable at the arbitration proceedings and adduced no
evidence to show that the employee has a history of negligence or
misconduct.
[20]
The arbitrator concluded that although the
employee has been negligent in the performance of her duties,
dismissal was not warranted
and progressive discipline in the form of
a final written warning would have sufficed. The arbitrator ordered
the reinstatement
of the employee with no retrospective effect.
[21]
The Applicant raised two main grounds for review.
The first ground for review is that the arbitrator misinterpreted and
misapplied
the duty that rested on him to decide the issue of an
appropriate sanction and the second ground for review is that the
arbitrator
committed a material irregularity with regard to the issue
of relief.
[22]
I have to
deal with the merits of the review application within the context of
the test that this Court must apply in deciding whether
the
arbitrator's decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The Constitutional
Court very clearly held that the arbitrator's conclusion must fall
within a range of decisions that a reasonable
decision maker could
make.
[23]
The
Labour Appeal Court in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA
[3]
affirmed the test to be applied in review proceedings and held that a
piecemeal approach should not be followed. It held that:
‘
In short: A
reviewing 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 that is
reasonable.’
[24]
This Court, sitting as a review Court,
should not follow a piecemeal approach but should consider whether
the arbitrator dealt with
the substantial merits of the case and
whether holistically viewed, the decision was reasonable based on the
evidence that was
adduced.
[25]
It is in this context that the grounds for review
raised by the Applicants must be decided.
Appropriateness
of the sanction
[26]
The first ground for review is that the
arbitrator misinterpreted and misapplied the duty that rested on him
to decide the issue
of an appropriate sanction in that he had to
determine whether the employer acted fairly in dismissing the
employee and not whether
or not he would have dismissed the employee.
[27]
The
factors to be considered in determining the fairness of the sanction
were set out by the Constitutional Court in
Sidumo
[4]
as follows:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee's challenge
to the
dismissal. There are other factors that will require
consideration. For example, the harm caused by the employee's
conduct, whether additional training and instruction may result in
the employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record. This is not an
exhaustive list.
To sum up. In terms of the LRA, a
commissioner has to determine whether a dismissal is fair or not. A
commissioner is not given
the power to consider afresh what he or she
would do, but simply to decide whether what the employer did was
fair. In arriving
at a decision a commissioner is not required to
defer to the decision of the employer. What is required is that
he or she
must consider all relevant circumstances.’
[28]
In
Fidelity
Cash Management Services v CCMA
[5]
the
Labour Appeal Court referred to the
Sidumo
factors
to be considered in deciding the appropriateness of a sanction and
held as follows:
‘
The
Constitutional Court emphasized that this is not an exhaustive list.
The commissioner would also have to consider the Code of
Good
Practice: Dismissal and the relevant provisions of any applicable
statute including the Act. In this regard ss 188 and 192(2)
of the
Act will usually be of relevance. Section 188(1) provides in effect
that a dismissal that is not automatically unfair is
unfair if the
employer fails to prove the matters stated therein. Section 182
enjoins a person considering whether a dismissal
is unfair to take
into account provisions of the relevant Code of Good Practice.
Section 192(2) is the provision that places the
onus on the employer
to prove that the dismissal is fair.
Once the commissioner has considered
all the above factors and others not mentioned herein, he or she
would then have to answer
the question whether dismissal was in all
of the circumstances a fair sanction in such a case. In answering
that question he or
she would have to use his or her own sense of
fairness. That the commissioner is required to use his or her own
sense of justice
or fairness to decide the fairness or otherwise of
dismissal does not mean that he or she is at liberty to act
arbitrarily or capriciously
or to be m
ala fide
. He or she is
required to make a decision or finding that is reasonable.’
[29]
The Applicant’s case is that the arbitrator
decided the issue of sanction as if he was the employer and it was
not decided
on the basis of whether what the Applicant did was fair.
The Applicant also complains that the arbitrator ignored and failed
to
determine or consider most of the factors he was required to
consider and determine when deciding the issue of the fairness of the
sanction of dismissal.
[30]
It is evident from the arbitration award that the
arbitrator considered that there was no evidence to show that the
trust relationship
was broken down and became intolerable, that there
was no evidence to show that the employee has a negative disciplinary
record,
that the employer did not lose the money, that the employee
was prepared to pay the loss suffered, that she went the extra mile
to find and contact the customer, the facts showed that the employee
made an honest mistake, she was not found guilty of gross
dishonesty
and progressive discipline would suffice.
[31]
In my view there is no merit in this ground for
review. It is evident from the arbitration award that the arbitrator
considered
a number of relevant factors in deciding the
appropriateness of the sanction of dismissal and the mere fact that
he did not consider
all the factors the Applicant raised, does not
render the award unreasonable or reviewable. The arbitrator indeed
considered the
relevant factors and all the relevant circumstances
presented to him and made a finding that is reasonable based on the
said factors
and circumstances.
[32]
The Applicant further submitted that the
arbitrator’s finding that there was no evidence on the trust
relationship is at odds
with the evidence as this was specifically
addressed in the disciplinary hearing, which was undisputed and
confirmed by the written
finding. The chairperson specifically dealt
with this issue and made a finding on this, which was ignored by the
arbitrator.
[33]
The transcribed record shows that there was no
evidence adduced on the trust relationship. It is common cause that
procedural fairness
was not in dispute and no evidence was adduced on
the findings of the chairperson of the disciplinary enquiry and it is
opportunistic
to accuse the arbitrator of ignoring evidence that was
never adduced or placed before him.
[34]
The ultimate question is whether
holistically viewed, the decision taken by the arbitrator was
reasonable based on the evidence
placed before him.
In
casu
the Applicant seeks to cast the net
wider than the evidence that was placed before the arbitrator and
seeks to import the proceedings
of the internal disciplinary hearing
as if it was evidence before the arbitrator when it was not.
The
relief
[35]
The arbitrator ordered the reinstatement of the
employee with no retrospective effect.
[36]
The Applicant’s second ground for review is
that the arbitrator committed a material irregularity with regard to
the issue
of relief when he awarded reinstatement where the employee
showed no remorse and where there is actual evidence about the
breakdown
of the employment relationship. The Applicant’s case
is that the arbitrator did not exercise any proper discretion in this
regard in line with the principles of the Act.
[37]
Section 193(2) of the Act
provides that the arbitrator 'must require the employer to reinstate
or re-employ the employee' unless,
as set out section 193(2)
(a)
-
(d),
the employee does
not wish to be reinstated, the circumstances surrounding dismissal
are such that a continued employment relationship
would be
intolerable, it is not reasonably practicable for the employer to
reinstate or re-employ the employee or where the dismissal
is unfair
only because the employer did not follow a fair procedure.
[38]
I have already alluded to the fact that the
Applicant has not in the arbitration proceedings adduced any evidence
to show that the
relationship was broken down or that reinstatement
was not appropriate or not reasonably practicable.
[39]
In casu
no facts or
evidence were placed before the arbitrator, as provided for in
section 193(2)(a)-(d) of the Act, to show that there
was any
justifiable reason not to award the primary remedy of reinstatement
and the arbitrator’s award of reinstatement is
not
unreasonable, more so where it is without retrospective effect.
[40]
Having considered the evidence adduced at the
arbitration proceedings, the findings made by the arbitrator and the
grounds for review
as raised by the Applicant, I am satisfied that
the arbitrator's findings and conclusion fall within a range of
decisions that
a reasonable decision maker could make.
[41]
The award and the findings contained therein are
reasonable and are not to be interfered with on review.
[42]
This Court has a wide discretion in respect of
costs and in my view this is a matter where the interests of justice
will be best
served by making no order as to costs.
[43]
In the premises I make the following order:
Order:
1.
The late filing of the
application for review is condoned;
2.
The application is
dismissed with no order as to costs.
__________________
Connie
Prinsloo
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:
Mr S Snyman of Snyman Attorneys
For
the Third Respondent: Mr L Poni - Union official of SACCAWU
[1]
Act 66 of 1995 as amended.
[2]
(2007) 28 ILJ 2405 (CC) at para 110.
[3]
(2014) 35
ILJ
943 (LAC).
[4]
(2007) 28 ILJ 2405 (CC) at para 78 and 79.
[5]
(2008) 29 ILJ 964 (LAC).