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[2018] ZALCJHB 132
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Pick 'n Pay (Bloemgate) v Rampai NO and Others (JR108/15) [2018] ZALCJHB 132 (28 March 2018)
Of
interest to other judges
THE LABOUR COURT OF
SOUTH AFRICA,
HELD AT JOHANNESBURG
C
ase no: JR
108/15
In the
matter between:
PICK ‘N PAY (BLOEMGATE)
Applicant
and
RAMPAI, N (
N.O.
)
First
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION & ARBITRATION
Second
Respondent
NUPSAW
obo SOPHIE MOKOENA
Third Respondent
Heard
:
22 and 26 March 2018
Delivered
:
28 March 2018
Summary:
(Review – Arbitrator discouraging a party asking for an
adjournment to call a witness not in attendance
at the arbitration
but not expressly refusing to adjourn proceedings – whether or
not party wishing to call witness should
have anticipated need to
have ensured attendance of witness before arbitration commenced –
whether issue was in dispute at
disciplinary hearing – costs of
postponement occasioned by applicant’s incorrect diarising of
date of review hearing
and failure to read respondent’s
practise note)
JUDGMENT
LAGRANGE
J
Background
[1] The
employee party in this review application, Ms S Mokoena (‘Mokoena’),
was dismissed for gross negligence by the
applicant (‘PnP’)
for failing without good cause to perform the duty of care necessary
expected of her in that she
had till shortages of approximately R212
for the month of July 2014. She was employed by PnP as a cashier at a
monthly wage of
R 2761.79.
[2] The
application had to be postponed on the first day it was set down
because PnP’s attorneys’ office had incorrectly
recorded
the set down date which had been agreed upon at a pre-enrolment
hearing and also failed to notice the correct date of
the set down
appearing on the respondent’s practice note.
The
award
[3] In
terms of PnP’s disciplinary code, cash shortages of more than
R100 are deemed to be gross negligence if they are not
incidental to
an act of theft or fraud. The arbitrator found that the list of
shortages attributed to the employee did not support
the aggregate
sum of the alleged shortage and the Front-End Manager, Mr J Visagie
(‘Visagie’), who had both testified
for PnP and
represented it in the arbitration, could not explain how the figure
was arrived at.
[4] The
arbitrator also found that PnP’s policy on shortages was well
known and understood by the employee. The arbitrator
accepted that
the policy was a valid one. The arbitrator did not deal with whether
gross negligence can be pre-defined with reference
to a fixed amount
of cash shortages in the way PnP’s code does.
[5]
However, the arbitrator concluded that PnP had been unable to prove
that the policy had been breached because neither of its
witnesses
could explain how the total alleged amount of the R212.21 shortfall
was derived. The Cash Office Supervisor who had prepared
the record
of shortages was not called as a witness and the arbitrator condemned
the conduct of PnP without making a finding on
the reasons advanced
by PnP for not calling the supervisor, namely that the employee had
not disputed the amount at the disciplinary
enquiry. The
arbitrator was highly critical of PnP’s failure to call the
supervisor as a witness to the enquiry, which
he expressed in
somewhat exaggerated judgmental terms:
“
During
cross-examination of both witnesses of the respondent, both witnesses
admitted that it could not be explained how the amount
of R 212.21
was arrived at. Yet the respondent found it prudent to discipline PnP
overcharged that the respondent itself could
not explain.
The
claim that the supervisor had prepared the shortages record was not
available to testify because PnP had not indicated prior
to the
arbitration that the amount was disputed, is indicative of the
respondent’s disdain towards the notion of social justice
at
the least
. The respondent need not be reminded that the same
shortages record, on the basis of which PnP was subjected to
disciplinary enquiry
and eventually dismissed was prepared by no
other person but the respondent. Who else was supposed to explain and
show this process
how the amount of R 212.21 was arrived at?”
(emphasis
added)
[6] The
arbitrator concluded that the dismissal was substantively unfair but
procedurally fair and ordered the retrospective reinstatement
of the
employee.
Grounds
of review
[7] The
crux of PnP’s grounds of review is that, until the arbitration
hearing, it was not apparent that the employee disputed
the amount of
the shortage. Accordingly, it had not called the supervisor as a
witness to explain how the total figure was arrived
at. However, when
it became clear that this would be an issue the arbitrator
unreasonably refused to allow PnP an opportunity to
call the
appropriate person to prove how the amount of the shortages was
calculated.
[8]
Further, the failure to prove the amount of the shortage was an issue
raised by the arbitrator whereas the employee had not
disputed the
determination of the shortage but based her case on the fact that the
shortfall had already been deducted from her
salary without her
consent and accordingly she had already been penalised for the
shortfall.
Evaluation
[9] From
the record, it is apparent that when Visagie was being questioned
about the determination of the amount of the shortfall,
he was unable
to explain precisely how the amount was arrived. When it was put to
him under cross-examination that the shortfall
was only R 18.18, his
response was that they had worked on the amount of R 212.12 and that
he would have brought his witness who
works with the shortages if he
had known the figure was going to be in dispute, but at the
disciplinary enquiry the figure had
never been disputed. He was not
challenged when he claimed it had not been disputed at the enquiry,
even though he said it more
than once.
[10] When
pressed further on the calculations Visagie pointed out that he
already said that there was an office at the company that
did the
calculations and he would ask for a postponement of the arbitration
so that he could call the responsible person who had
14 years’
experience and did the calculations on a daily basis. The employee’s
representative nonetheless pursued his
questions about the
calculations and Visagie then appealed to the Commissioner as
follows:
“
Mr
Commissioner uhm, I would request that we have a short adjournment so
that I can get more witness to be able to explain this
to uhh, Pick
‘n Pay uhm, which will think be at the end of the day be
benefit to both of us that he knows exactly how it
works uhh, this
lady as a sales worked in this office for 14 years and she’s
absolutely clued up she cannot any questions
that he could or might
want to ask her she’ll be able to answer.”
[11] The
Commissioner then intervened and questioned him about the
supervisor’s work and then queried why he had not felt
it
necessary to ensure her presence at the arbitration so she could
testify. Visagie reiterated that she was not called because
no
dispute was anticipated about the figure and that is why she was not
in attendance at the arbitration. The arbitrator then reminded
Visagie that at the commencement of the proceedings that day, the
employee’s representative had made it clear that the amount
of
the shortage was being disputed, which he readily conceded. The
Commissioner then confirmed that Visagie was suggesting that
the
process be adjourned for the Cash office supervisor to be called to
come and explain the shortages. Visagie reiterated his
motivation for
that suggestion and PnP’s representative even recommended that
she be called as a witness. The arbitrator
then got side-tracked
and irritated about the fact that Visagie had testified without
having direct knowledge of the calculation
of the shortages, viz:
“
Commissioner:
now, now if you can explain that you are saying you’d maybe
need those questions to be referred to another person
being your
witness who you did not bring. What are you saying I should do with
this evidence?
Respondent’s
representative [Visagie]: well Mr Commissioner in all fairness of
just trying to be fair to, to her and to everybody
here and that’s
the reason I would like to have are here and as I mentioned for any
clarity I would love to have everything
clear so that there’s
aren’t any uhh, misunderstandings and stuff I understand your
view there but uhh, as I say I
was at, but this morning I wasn’t
aware about it, before that there was no indication that there would
be any discrepancy
or any dispute about that uhh, not even on a
document that we got from the CCMA so that is the reason why I didn’t
uhh called
her as a witness.
Commissioner:
Okay.
Respondents
representative: if mention was made I would have had her here.
Commissioner:
Okay.”
Without
expressly dealing with the request for a postponement, the
Commissioner then invited PnP’s representative to continue
his
questioning of Visagie. More than once after that, Visagie emphasised
that he could not deal with the detailed calculation
of the shortage.
At the end of his evidence, the Commissioner asked if he had another
witness to call and Visagie called the chairperson
of the enquiry, Mr
J Du Plooy (‘Du Plooy’), a Labour Consultant. He too was
present on the day of the arbitration having
been called by PnP to
testify.
[12]
Interestingly, Mokoena’s representative never put to Du Plooy
that the amount of the shortfall had been in dispute at
the
disciplinary hearing. The Commissioner however of his own accord
questioned Du Plooy about how he had made a finding that Mokoena
had
been responsible for a shortfall in the amount of R212.00. His
response was that, there had been evidence of the calculation
provided by the supervisor but the amount was never in dispute in the
disciplinary enquiry.
[13]
After Du Plooy’s evidence, the Commissioner asked Visagie if he
had any other witnesses and when he said he did not the
Commissioner
asked him if he closed his case. The Commissioner did not enquire
whether he still wanted to ask for a postponement
to call the cash
office supervisor, whom Visagie had previously identified as having
full knowledge of the determination of the
amount of the shortfall.
Evaluation
[14]
Although Mokoena’s counsel,
Mr Ford,
cited a couple of
places in the record of the disciplinary enquiry where it might be
conceivably inferred that Mokoena had not
entirely agreed with the
calculation of the shortfall in those proceedings, as things stood on
the evidence before the arbitrator
there was no reasonable basis for
inferring that the shortfall had been a matter of dispute during
those proceedings. That being
the case, it is difficult to understand
how the arbitrator came to the conclusion that PnP ought to have
realised in advance that
it was essential to have Ms Naidoo available
at the arbitration to give evidence. It ought to have been manifestly
obvious to the
arbitrator that this had come as a surprise to PnP.
[15] It
is true that the arbitrator did ask Visagie after Du Plooy had
testified if he had further witnesses and he confirmed he
had none,
at which point the arbitrator confirmed that Visagie had closed its
case. It was argued on behalf of Mokoena that Visagie
should not have
been considered a layperson who needed guidance from the arbitrator
in the conduct of the applicant’s case,
because at the
beginning of the arbitration proceedings, he had made reference to
one of Mokoena’s potential witnesses not
being subpoenaed. That
reference was a response to Mokoena’s representative
complaining that they did not have time to subpoena
a shop steward as
a witness when PnP refused to release him. I hardly think that is
enough to presume Visagie was an experienced
representative.
[16] In
any event, what is revealing about the arbitrator’s treatment
of PnP’s failure to call the cash office supervisor
to testify,
is that the arbitrator clearly ignored the fact that the need for her
testimony had only become evident at the start
of the arbitration
proceedings. Nowhere in his award does he deal with the fact that
Visagie repeatedly expressed the wish to call
her as a witness and
specifically asked for a postponement to do so. Instead he castigated
Visagie for not bringing her to the
arbitration in the first place
and found that this failure demonstrated that PnP had a cavalier
attitude towards ‘social
justice’, whatever that term is
supposed to mean in the context of an arbitration proceeding. These
findings in the award
were foreshadowed by the thrust and tenor of
arbitrator’s questioning of Visagie in the arbitration
proceedings about why
he had failed to bring the supervisor to the
proceedings to testify. That questioning and the findings which
followed, were premised
on the assumption that PnP necessarily ought
to have realised that her evidence would be crucial, despite it being
obvious from
the evidence of Visagie that he had no reason prior to
the arbitration to believe that the value of the shortages would be a
contentious
issue.
[17] The
arbitrator must have been acutely aware of the fact that Visagie
repeatedly stressed that the supervisor would have to
be called to
present such evidence and that he needed to do so. Mokoena’s
own representative at the arbitration, as well
as the arbitrator
himself, also recognised the importance of her testifying. However,
because the arbitrator was reluctant to accept
that the need to call
the witness could not reasonably have been foreseen, he made it very
clear that he believed Visagie was at
fault for not arranging
beforehand for the supervisor to be present at the arbitration and
declined to directly address Visagie’s
express and repeated
requests for a postponement. Under the circumstances, the
arbitrator’s failure to address the issue
of the postponement,
or at the very least to ask whether Visagie still wished to ask for a
postponement before he declared Visagie’s
case closed, was a
dereliction of his duties and clearly deprived PnP of an opportunity
to lead a very crucial witness. Moreover,
the arbitrator’s
decision that PnP had failed to prove its case that Mokoena was
responsible for cash shortages in excess
of R100.00 was inextricably
linked with the failure to allow Visagie to call a witness who could
testify how the shortage was determined.
Not only was PnP deprived of
a fair hearing as a result of this, but it is probable that this
irregularity would have affected
the determination of whether or not
the misconduct was proved. This means the arbitrator committed a
reviewable irregularity in
the sense having a distorting effect on a
vital finding, as alluded to in
Head of Department of Education
v Mofokeng & Others
, where the LAC held:
“
[33]
Irregularities or errors in relation to the facts or issues,
therefore, may or may not produce an unreasonable outcome or provide
a compelling indication that the arbitrator misconceived the
enquiry. In the final analysis, it will depend on the
materiality
of the error or irregularity and its relation to the
result. Whether the irregularity or error is material must be
assessed and
determined with reference to the distorting effect it
may or may not have had upon the arbitrator's conception of the
enquiry,
the delimitation of the issues to be determined and the
ultimate outcome.”
[1]
[18] In
the circumstances, I am satisfied that the award must be set aside.
Because the defect relates to evidence which ought to
have been led,
the only remedy is to remit the matter for rehearing, subject to
limiting the scope of any additional evidence to
be led.
Costs
[19] In
relation to the postponement necessitated by the non-appearance of
PnP’s representative, I am satisfied that it was
not a result
of wilful or mala file conduct on the part of PnP’s attorneys,
but nonetheless was a result of negligence, which
necessitated the
third respondent having to appear twice. Accordingly, it is
appropriate for PnP to pay the wasted costs of the
postponement, but
a punitive cost order would be excessive.
[20]
In relation to the costs of the application, it was argued by PnP
that Mokoena should not have opposed the
review application because
the merits of the application were strong. However, I cannot say that
Mokoena’s opposition was
groundless and another arbitrator
might still find the dismissal was substantively unfair even after
hearing additional evidence.
Consequently, I am not persuaded that
the requirements of law and fairness warrant a cost order against
Mokoena.
Order
[1]
The arbitration award issued on 17 November 2014 under case no FSBF
4624-14 is reviewed
and set aside.
[2]
The matter is remitted back to the second respondent for a hearing
de
novo
before an arbitrator other than the first respondent, to be
convened within 30 days of receipt of this order, save that the
record of the arbitration hearing shall consist of the record of the
original hearing and such additional evidence that the parties
may
lead in proving or disproving the amount of the alleged shortage of
R212-12 attributable to Ms Mokoena and on the appropriateness
of the
sanction of dismissal in the event she is found guilty as charged.
[3]
The applicant must pay the third respondent’s wasted costs of
the postponed hearing
of 22 March 2018.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
R
J Orton of Snyman Attorneys
RESPONDENT:
B
Ford instructed by Ndumiso
Voyi
Inc.
[1]
(2015) 36 ILJ 2802 (LAC) at 2813.