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[2018] ZALCJHB 49
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Compass Group Southern Africa (Pty) Ltd v Van der Merwe NO and Others (JR633/16) [2018] ZALCJHB 49 (9 February 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Case
no: JR 633-16
Not
Reportable
In
the matter between:
COMPASS
GROUP SOUTHERN AFRICA (PTY)
LTD
Applicant
and
M
VAN DER MERWE
N.O
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second Respondent
NASECGWU
obo MOKETE DORCAS MELAMU
Third Respondent
Heard:
8 February 2017
Delivered:
9 February 2018
JUDGMENT
WHITCHER
J
[1]
The
applicant seeks to have reviewed and set aside the arbitration award
of Commissioner Van der Merwe, wherein she found that the
dismissal
of the third respondent was substantively and procedurally unfair and
ordered the applicant to retrospectively reinstate
the employee.
[2]
In my view
the application is meritorious. The applicant’s submissions
coincided with
my
independent notes on the matter.
[3]
As
correctly poi
nted
out by the applicant: I
n
an unfair dismissal case relating to misconduct, the ‘evidentiary
burden’ starts with the employer but once the employer
provides
prima
facie
proof of the misconduct as alleged, the ‘evidentiary burden’
shifts to the employee to prove his own defence. If the
employee then
fails to put up a defence or fails to prove his defence, the
employers
prima
facie
proof
of misconduct becomes conclusive proof and the employer has then
discharged the ‘overall onus’ that always rested
with
it.
[1]
[4]
The
applicant, through its witnesses established a prima facie case of
misappropriation of company property/dishonest conduct on
the part of
the employee, which then shifted the evidentiary burden to the
employee to present evidence as would exonerate her
from blame in
this regard.
[2]
In my view, the
employee failed to discharge the shifting evidentiary burden that
rested on her, or as the applicant put it, failed
to “[prove]
to be honest what admittedly on its face looked dishonest”.
[5]
On a
balance of probabilities, the apples were in fact the property of the
applicant and the employee attempted to misappropriate
same. This I
say for the reasons set out hereunder.
[6]
It was
common cause that the employee stored and served apples in the
ordinary course of her duties in the hospital. It was also
common
cause that apples were served in the ward on the day of the incident.
The employee therefore had access to such apples.
[7]
The
employee conceded that the apples found in her possession were
strikingly similar to the apples that had been served in the
ward.
[8]
The
employee carried the apples in a ward bag.
[9]
According
to Ngwenya, when he asked the employee about the apples, she
apologised and begged forgiveness – in other words,
she
essentially admitted that she had misappropriated them.
[10]
The
commissioner correctly described Ngwenya as a good witness. The
record reveals that he gave clear and unambiguous testimony
and he
had had no prior relationship with any of the parties and therefore
no reason to implicate the employee.
[11]
Significantly,
he mentioned that in her appeal to him at the scene she made
reference to a specific family tragedy – an item
of information
he could not have known been able to testify to unless she had told
him, considering they had never met before.
[12]
The
employee and the vendor on the other hand were poor witnesses, even
in the commissioner’s view. They were unable to present
a
coherent and comparable version about the sale of the apples. To cite
just one example, the employee contends that she purchased
the apples
and then went to work and placed them somewhere. In other she
immediately took them with her. The vendor, however, testified
that
she left them with him and went all the way back into the hospital to
fetch a plastic bag. As submitted by the applicant,
the contradiction
is material and destroys the credence of their version.
[13]
Significantly,
when first confronted with the goods in her possession, the employee
did not claim that she had bought them from
the vendor. As submitted
by the applicant, a reasonable person in the position of the employee
who had been found with the apples
that she purchased would have at
the very least insisted that she bought the apples from a particular
place and person. She instead
apologised and pleaded forgiveness.
This behaviour is more consistent with the behaviour of a person who
had been caught stealing.
[14]
In the
premises, the employee presented a version which was improbable. This
must mean that the applicant’s prima facie case,
presented by
an objective and credible witness must be accepted and that the
evidence before the commissioner clearly demonstrated
that the
employee was guilty as charged.
[15]
The
question now is whether it was fair to dismiss her.
[16]
I
considered the LAC judgments in
Shoprite
Checkers (Pty) Ltd v Tokiso Dispute Settlement
[3]
and
Shoprite
Checkers (Pty) Ltd v CCMA.
[4]
The
employee’s case is however distinguishable because she was
charged and found guilty of essentially theft, concocted a
mendacious
defence, showed no genuine remorse and occupied a
position
where trust is a key factor.
[17]
Although
Ngwenya testified that, when first confronted, the employee
apologised and admitted guilt [and thus appeared to show remorse],
the problem is that she denied the entire version of Ngwenya and
chose to attack his credibility.
[18]
Subsequent
to
Shoprite
Checkers (Pty) Ltd v CCMA,
[5]
the
LAC has followed the approach adopted in the often quoted decision of
the LAC in
De
Beers Consolidated Mines Ltd v CCMA & Others
[6]
,
also followed in
Shoprite
Checkers (Pty) Ltd v CCMA & Others
[7]
,
which justifies a strict approach to dishonest conduct in the
workplace on the basis of the employer’s operational
requirements.
[8]
This approach
is applicable in this case considering the nature of the applicant’s
business and the fact that a business
at risk through persistent
pilfering also places in jeopardy the security of employment of all
employees.
[19]
Furthermore,
t
he
rule was made clear to the employee when she was employed as
evidenced by her signature on the document which contained the rule.
This document further informed the employee that the rule had been
borne out a major problem that the applicant faced, namely persistent
loss of business through pilfering and that any transgression of the
rule is a dismissal offence.
[20]
On the
issue of procedural fairness, the testimony of the employee’s
witnesses was very confusing and could not have placed
the
commissioner in a position to determine this aspect in favour of the
employee. In any event, it would appear from even this
confused
version that the witness [the vendor] was only named after the
dismissal was effected.
[21]
Moreover,
the minutes of the disciplinary hearing reflect that the employee was
given an opportunity to call witnesses, but did
not call the vendor.
She conceded in her testimony that the chairperson of the enquiry
actually asked her if she has got a witness.
[22]
In light of
this there is no basis for the commissioner’s finding that the
dismissal was procedurally unfair because the employee
was not given
the right to call the vendor.
Order
[23]
In the
premises the following order is made:
1.
The
arbitration award issued by the first respondent is set aside on
review and substituted with an award that the dismissal of
the third
respondent [Mokete Dorcas Melamu] was substantively and procedurally
fair.
2.
There is no
order as to costs.
__________________________
B.
Whitcher
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the applicant:
R J C Orton from Snyman Attorneys
For
the third respondent:
Mr V. Tshabalala of NASECGWU
[1]
Woolworths
(Pty) Ltd v CCMA & others
(2011) 32
ILJ
2455 (LAC) at par 34.
[2]
See
Woolworths (Pty) Ltd v CCMA (2011) 32 ILJ 2455 (LAC) at par 34.
[3]
[2015]
9 BLLR 887
(LAC)
[4]
[2008]
12 BLLR 1211 (LAC)
[5]
[2008]
12 BLLR 1211 (LAC)
[6]
[2000]
9 BLLR 995 (LAC)
[7]
[2008]
9 BLLR 838 (LAC)
[8]
Miyambo
v CCMA & others
[2010]
10 ILJ 1017 (LAC)