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[2018] ZALCJHB 86
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Cashbuild Ltd v Rantho NO and Others (JR1983/09) [2018] ZALCJHB 86 (2 March 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case no: JR1983/09
In
the matter between:
CASHBUILD
LTD
Applicant
And
S
M RANTHO
N.O
First
Respondent
COMMISSION
FOR CONCILIATION
MEDIATION
AND ARBITRATION
Second Respondent
SERVAAS
DANIEL VAN HEERDEN
Third
Respondent
Heard:
11 July 2017
Delivered:
02 March 2018
JUDGMENT
JULY,
AJ
Introduction
[1]
The
applicant in this matter brought an application to have the award
made by the first respondent under the auspices of the second
respondent, reviewed and set aside. The review application is brought
in terms of section 145 of the Labour Relations Act
[1]
(LRA), in
that it is defective.
[2]
The
test for review is the objective test as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2]
the test is
whether
the decision reached by the commissioner was one that a reasonable
decision maker would have reached.
[3]
In his award the first respondent makes the
following order:
"6.1
I found that the dismissal of the applicant by the respondent was
substantially unfair but
procedurally fair.
6.2
I
order the respondent to re-instate the applicant retrospectively to
the position he occupied as at the date of his dismissal under
the
same conditions that applied as at the date of the dismissal.
The respondent must re-instate the applicant on or before
10
th
July 2009."
[4]
Although the third respondent filed a
notice of intention to defend, there were no opposition papers, and
the founding affidavit
made on behalf of the applicant was therefore
unopposed.
Background
Facts
[5]
The award by the first respondent is not
borne by the evidence that was before him. The facts are
briefly that the third respondent
was appointed as a divisional
manager of the applicant. This is a senior position in terms of the
organizational structure; the
branch managers of all the stores
report to him.
[6]
In terms of the policy regulating petty
cash, when petty cash is required a petty cash slip must be
completed, stating the reasons
for the purchase, the amount paid out
and the name and signature of the person making the purchase. It
further requires that a
person who makes a purchase must return any
change and furnish a receipt.
[7]
On 6 May 2008, the third respondent
attended at the Mokopane store of the applicant and instructed a
cashier (Sarah Sekhu) to give
him R 1500.00 from the stores
petty cash. The third respondent advised the cashier that the money
was for company business
travel to Louis Trichardt. Upon
investigation, it turned out that the money was actually intended for
the third respondent's personal
use.
[8]
Consequently, the third respondent was
charged as follows:
"1. On 9/5/2008 D Van Heerden
went to the Mokopane branch of Cashbuild and requested the amount of
R1 500 to be issued
to him from the petty cash via the system
supervisor, Sarah. The monies were issued under the instruction that
it was for company
use, and this was not the case.
2. Dishonesty – in that on 12
May 2008 after receiving a tip-off the ops manager contacted the
employee, D Van Heerden, and
questioned him about the monies taken.
In turn the ops manager was informed that the monies were intended
for a contractor cost
and the monies were no longer required to pay
said contractor and had been reported. This was a blatant lie.
3. The petty cash procedure was
breached due to no signature were supplied by Dannie and no invoices
returned to verify the cost."
[sic]
[9]
A disciplinary hearing was instituted by
the operational manager. The third respondent was found guilty
and dismissed for
misappropriation of funds and dishonesty.
[10]
Subsequent to his dismissal he referred a
dispute of unfair dismissal to the second respondent. The dispute
remained unresolved
as at 21 August 2008. The third
respondent further referred the dispute to the second respondent for
arbitration.
[11]
Notwithstanding the uncontested version of
the witnesses called by the applicant during the arbitration, the
first respondent, in
his analysis of the evidence states that:
"Contrary
to the evidence of Mr. Van der Merwe Ms. Sarah Sekhu testified that
this took place at about 09:00 after she told
Mr. Van der Merwe about
the incident and after the latter resolved to approach the applicant
to submit the slips. Further, according
to the evidence of Ms. Sekhu
that amount of R 1000.00 was not paid at about 09:00 but later
during the course of the
day. Therefore, I find that there are
contradictions in the evidence of the respondent. I find that logic
is missing in the evidence
of the respondent and this suggests to me
that the version of the respondent is fabricated. Therefore, I find
the version of the
respondent to be implausible. Besides, I find that
the fact that the applicant gave Mr. Van der Merwe the money without
having
been requested to do so gives credibility to his contention
that he borrowed the money from Mr. Van der Merwe. "
[12]
This analysis is nonsensical and has led to
the unreasonable finding made by the first respondent. I thus find
that the reasoning
of the first respondent is irrational.
[13]
I therefore make the following order:
Order
1.
The arbitration award dated 4 June 2009,
under case number LP4452 - 08, is reviewed and set aside.
2.
The dismissal of the third respondent was
both substantially and procedurally fair.
3.
There is no order as to costs.
__________________
S
July
Acting
Judge of the Labour Court of South Africa
Appearances
For
the Applicant:
Thandi Moyo
Instructed
by
Snyman attorneys
For
the Respondent:
[1]
Act
66
of 1995 as amended.
[2]
[2007] 12
BLLR 1097
(CC).