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[2018] ZALCPE 5
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Petzer v Commission for Conciliation, Mediation and Arbitration and Others (PR140/13) [2018] ZALCPE 5 (19 January 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, PORT ELIZABETH
Not Reportable
Case No: PR 140/13
In
the matter between
CHERYL
LORRAINE
PETZER
Applicant
and
THE
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
COMMISSIONER
THOBELA NCETHEZO N.O.
Second
Respondent
BUILDERS
TRADE DEPOT (PTY) LTD
Third
Respondent
Heard:
23 November 2016
Delivered:
19 January 2018
Summary:
Notwithstanding errors made by a commissioner in the conduct of
arbitration proceedings, an award will not be reviewed
and set aside
if it falls within bounds of reasonableness.
JUDGMENT
LALLIE,
J
[1]
The applicant seeks an order reviewing and setting aside the
arbitration award of the second respondent who will be referred
to as
the commissioner in this judgment. The application is opposed by the
third respondent. The applicant filed an application
to have her late
filing of the application condoned. The condonation application is
unopposed. The extent of the delay is a day
and the applicant has
given reasonable explanation for the lateness. The application must,
in the circumstances, succeed.
[2]
The applicant was employed by the third respondent as its
administration and credit controller. Her responsibilities included
ensuring that all staff members were aware of the third respondent’s
policies and procedures. A number of employees including
Mrs Bosch
(Bosch), the third respondent’s banking clerk reported to her.
Bosch’s duties included depositing money paid
by the third
respondent’s customers in a drop safe which was located in the
third respondent’s strong room/cash office.
In terms of the
third respondent’s policy two employees had to sign a document
confirming the deposit before money was deposited
in the drop safe.
On 26 November 2012, Bosch made a deposit of R54 000.00 in the drop
safe without obtaining the signature of a
second signatory who had to
be one of her seniors at the administration block where the drop safe
was located. The third respondent
was subsequently informed by its
bank that the actual cash deposited by Bosch was in the amount of R50
000.00. The third respondent
investigated the shortage.
[3]
On 8 December 2012, before the cause of the shortage was discovered
an amount of R19, 000.00 disappeared from the third respondent’s
safe. The circumstances surrounding the disappearance of the money
were that during the morning of 8 December 2012, Bosch informed
the
applicant that she had misplaced the safe key. The safe was locked.
The administration block staff looked for the key. They
did not find
it. At about 11h45 the applicant went to a shop. On her return 15
minutes later she was notified that the safe had
been opened and an
amount of R19, 000 was missing. As a consequence of the two incidents
the third respondent charged the applicant
with gross negligence/
recklessness for failure to double count the amount deposited by
Bosch in the drop safe on 26 November 2012
which resulted in the loss
of R4 000, 00 and her failure to secure the strong room on 8 December
2012, causing the third respondent
to suffer a financial loss of R19,
000.00. A disciplinary enquiry into the allegations was held and she
was found guilty of both
charges and dismissed. She referred an
unfair dismissal dispute to the first respondent which will be
referred to as the CCMA in
this judgment. The commissioner found her
dismissal both substantively and procedurally fair. It is that
finding which the applicant
seeks this court to review and set aside.
[4]
The applicant attacked the reasonableness of the findings of both the
substantive and procedural fairness of her dismissal.
She submitted
that the award stands to be reviewed and set aside because the
commissioner abrogated her responsibility to consider
all the
evidence and legal principles governing the determination of the
substantive and procedural fairness of her dismissal.
She failed to
have adequate regard to her evidence and submissions. She failed to
properly conceptualise the legal issues to be
determined and arrived
at conclusions that were not rationally connected with the evidence
before him. The third respondent’s
basis for opposing the
application is that the grounds the applicant sought to rely on are
invalid. A further submission was that
the award is reasonable and
based on the evidence tendered at the arbitration.
[5]
Not every error made by a commissioner renders that commissioner’s
award reviewable, this is trite. Only errors whose
distorting effect
have an impact on the reasonableness of the award will justify having
an award reviewed.
[1]
It is
common cause that the applicant’s duty was to ensure that the
third respondent’s employees were made aware of
policies and
procedures. The reason the commissioner found the applicant guilty of
the first charge was that Bosch reported to
her and she was aware
that a huge amount of money which had to be verified was being
counted in the strong room. The commissioner
expected the applicant
to have been proactive and co-signed before Bosch made the deposit in
the drop safe. The applicant correctly
argued that the commissioner’s
finding overlooked her evidence that it was not her sole
responsibility to co-sign before
a deposit was made in the drop safe.
Any employee senior to Bosch in the administration block had the
responsibility to verify
amounts and co-sign before deposits were
made in the drop safe. Her responsibility was to check monthly
whether that policy had
been complied with. Absent evidence to the
effect that it was the applicant’s sole responsibility to
co-sign before the deposit
was made in the drop safe, the
commissioner’s decision that the applicant was either negligent
or reckless by not co-signing
was unreasonable. Having the
responsibility of ensuring that employees were aware of the policies
and being the custodian of policies
did not constitute proof that the
applicant committed misconduct by not co-signing.
[6]
The commissioner did not err in finding that the applicant made
herself guilty of misconduct by leaving the third respondent’s
premises after she had been made aware that the safe key was missing.
By the applicant’s own admission she did not lock the
strong
room. The commissioner correctly found that the applicant should have
been cautious and safeguarded the third respondent’s
money
particularly because the incident which resulted in the loss of R4
000.00 was still fresh. The commissioner’s finding
that the
gravity of the misconduct justified dismissal is reasonable.
[7]
The applicant’s allegation that the commissioner’s
finding that her dismissal was procedurally fair is unreasonable
is
not supported by evidence. The commissioner’s reliance on the
decision in
Avril
Elizabeth Home for the Mentally Handicapped v CCMA and others
[2]
cannot be faulted as it correctly supported her finding that the
applicant was afforded the right to state a case before the decision
to dismiss her was taken. The commissioner’s award falls within
bounds of reasonableness.
[8]
In the premises the following order is made:
Order:
1.
The late
filing of the application is condoned.
2.
The
application is dismissed.
3.
No order is
made as to costs.
Z
Lallie
Judge
of the Labour Court of South Africa
Appearances
For the Applicant: Mr Van
Der Veen of Wheeldon Rushmere & Cole Inc
For the Third Respondent:
Mr Titus of Macgregor Erasmus Attorneys
[1]
Head of the Department of Education v Mofokeng
[2015] 1 BLLR
50 (LAC
[2]
(2006) 27 ILJ1644 (LC)
.