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[2018] ZALCJHB 273
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Hleza v Sibanyoni NO and Others (JR291/16) [2018] ZALCJHB 273 (24 August 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: JR291/16
In
the matter between:
NONHLANHLA
HLEZA
Applicant
And
COMMISSIONER
THEMBEKILE
SIBANYONI
N.O
First
Respondent
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION
Second
Respondent
TSOGO
SUN CASINOS PROPRIETARY
LIMITED
in respect of MONTE
CASINO
Third
Respondent
Heard:
17 July 2018
Delivered:24 August 2018
Summary:
This is an application in terms of
section 145
of the
Labour
Relations Act of 1995
to review and set aside the arbitration award
made by the First Respondent under case number GAJB16781-15 dated the
5
th
day February 2016 in terms of which the Commissioner
found that the dismissal of the Applicant by the Third respondent was
procedurally
and substantively fair and dismissed the referral of an
unfair dismissal dispute to the CCMA.
JUDGMENT
SEDILE.
AJ
Brief
background
[1]
The Applicant was employed by Tsogo Sun Casinos Proprietary Limited
at Monte Casino on 30 November 2001 as a Slot Supervisor.
She
was dismissed on 17 July 2015 for misconduct involving dishonesty and
failure to comply with the Company’s standard operating
procedures.
[2]
On 1 June 2015, the Applicant transferred an unclaimed amount of
R193.50 from a slot machine to a card in her possession and
cashed
out an amount of R200 (in two R100 notes) from the Tuscany cash desk.
[3]
The applicant proceeded to fold the cashed amount and pretended to
deposit it into the unclaimed credit box at the Venice cash
desk,
which is a different cash desk from the one at which she cashed the
amount. Accordingly, the allegation against the Applicant
was that
she did not in fact deposit the cash into the unclaimed credit box.
Surveillance cameras captured her folding the money
but it does not
show her actually depositing the money into the unclaimed credit box
because her back was turned towards the camera,
and that when the
unclaimed cash box was opened to be cleared, there were no folded
hundred rand notes found inside the box.
[4]
On 03 June 2015, a discrepancy was discovered by the Shift Manager in
the Applicant’s transactions of 01 June 2015.
An
investigation was conducted and it became apparent that the money was
not deposited by the Applicant and that the relevant procedure
was
not followed by her in terms of the company’s rules.
[5]
In particular, all the unclaimed credit cash boxes were opened. In
the unclaimed credit cash box located at the Venice Cash
desk where
the Applicant alleges that she inserted the cash, no R100 notes were
found. Only one blue note of foreign currency was
found in that cash
box. In the unclaimed cash box that was located at the Tuscany cash
desk, one R100 note was found. This R100
note was not folded in any
way and it therefore could not have been one of the notes which the
Applicant alleges that she inserted
in the cash box in circumstances
where the video footage clearly showed the Applicant folding the
notes before she pretended to
insert them at the Venice cash desk.
[6]
On or about 24 June 2015, the Applicant was issued with a notice of
suspension and was charged with dishonesty and breach of
the standard
operating procedures as follows:
“
Dishonesty in that
on the 1
st
of June 2015 you cashed out an amount of R200
from your slots area, unclaimed card at Tuscany cash desk and
pretended to deposit
the folded two times R100 notes into an
unclaimed box at Venice cash desk”
“
Breach of Standard
operating Procedures in that in the 1
st
of June 2015, you,
with regards with the same two R100 notes, despite being aware of the
procedures, deliberately failed to carry
them out.”
[7]
On 30 June 2015, the Applicant was issued with a notice to attend a
disciplinary hearing. The disciplinary hearing commenced
on 3 July
2015 and was concluded on 17 July 2015. The Applicant was found
guilty of the alleged misconduct and was dismissed on
17 July 2015.
[8]
On 7 September 2015, the Applicant referred an unfair dismissal
dispute to the Commission for Conciliation Mediation and Arbitration
(CCMA). The arbitration was held on 24 November 2015, 18
January 2016 and was concluded on 19 January 2016. Video footage
of
the process of clearing the cash boxes and what was found in the cash
boxes were presented to the commissioner during the arbitration
hearing. On 5 February 2016, the commissioner delivered the award in
which she ruled that the Applicant’s dismissal was both
procedurally and substantively fair.
Submissions
made by the parties
[9]
The Applicant submits that the award should be reviewed and set aside
because the commissioner:
9.1 committed a gross
irregularity and/or misconduct in the conduct of the arbitration
proceedings, in that she failed to comprehend
that the arbitration
hearing was a hearing
de novo
;
9.2 made a decision which
was not supported by any of the evidence that served before her and
reached a decision that is manifestly
unfair; and
9.3 ignored relevant
evidence.
[10]
The Third
Respondent submits that the Applicant’s review application has
no merit whatsoever, because the applicant has not
established any
ground as contained in section 145 of the Labour Relations Act
[1]
(LRA) upon which the award may be reviewed and set aside nor has she
been able to show that the decision reached is one that a
reasonable
commissioner could reach.
Analysis
of the matter
[11]
An applicant who seeks to have an arbitration award reviewed and set
aside must not only allege the prescribed grounds of review
as set
out in section 145 of the LRA or allege that the award was
unreasonable, but an applicant must also set out the factual
basis
upon which it alleges that such grounds have been established.
[12]
One of the Applicant’s grounds of review is that the
commissioner acted unreasonably, however no factual basis has been
advanced for this ground of review
[13]
The commissioner conducted the arbitration proceedings in a fair and
objective manner. The commissioner was entitled in the
proceedings to
hear the evidence in a manner that she considered appropriate.
The commissioner was then required to analyse
that evidence applying
the applicable rules of evidence and to make a determination as to
whether the Applicant’s dismissal
was fair or not.
[14]
The commissioner did exactly that and therefore the allegations by
the Applicant that the commissioner committed gross irregularities
has no merit whatsoever. Not all irregularities in the conduct of
arbitration proceedings constitute gross irregularities or misconduct
for the purposes of section 145 of the LRA.
[15]
The irregularity or misdirection relied upon must render the outcome
of the proceedings unreasonable, in the sense that a reasonable
decision-maker could not reach the decision to which the commissioner
came to in light of all the evidence before him or her.
[16]
The Applicant in the present instance has not pleaded any proper
factual basis on which she submits that the First Respondent
committed any gross irregularity in the conduct of the proceedings
under review. Further, there is no averment in the Founding
Affidavit
to the effect that the outcome of the proceedings failed to meet the
reasonableness threshold as described above.
[17]
In the circumstances, the Applicant failed to make out a proper case
for review on the papers submitted and the oral evidence
adduced
during the review court proceedings.
[18]
For the above reasons the following order is made:
Order
1. The applicant’s
review application is dismissed;
2. There is no order as
to costs.
P.
Sedile
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For
the applicant: In Person
For
the third respondent: M. Khoza of Edward Nathan Sonnenbergs Inc.,
Sandton
[1]
66 of 1995, as amended.