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[2019] ZALCJHB 206
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Tsebo Outsourcing Group v Segole and Others (JR1163/17) [2019] ZALCJHB 206 (30 April 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not Reportable
Case
No: JR1163/17
In the matter between:
TSEBO OUTSOURCING
GROUP
Applicant
and
COMMISSIONER: SILAS
SEGOLE
First
Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second
Respondent
NASECGWU obo CECILIA
DIEKETSENG SENATSI Third
Respondent
Heard: 7 November 2018
Delivered: 30 April
2019
JUDGMENT
LALLIE, J
[1]
This is an application to review and set aside an arbitration award
of the first respondent
who will be referred to as the commissioner
in this judgment. It is opposed by the third respondent.
[2]
The factual background to this dispute is that the individual third
respondent who
will be referred to as the third respondent in this
judgment, was employed by the applicant as an Assistant Catering
Manager. She
performed her duties at Cairn Hall Hospital. Her
responsibilities included being in charge of stock. In October 2016,
Mr Schmitt,
the applicant’s District Manager noticed
discrepancies in stock levels and variances that were unacceptably
larger than usual
in the third respondent’s area of
responsibility. The third respondent was asked to find out the cause
and report it to the
applicant. As stock taking was conducted weekly,
the third respondent did not report on the reasons for the variances
which continued
to show in her stock taking documents. The applicant
suffered a R5000.22 stock loos.
[3]
The applicant took a decision to institute a disciplinary enquiry
against the third
respondent on the following charge:
‘
Attempt to defraud
Tsebo on any inconsistencies relating to stock taking or stock sheets
which lead to a loss for Tsebo or the client
in that during the
months of October you had numerous variances to the amount of
R3046,36 after being given enough time to look
for the problem in
which you failed’.
The chairperson of the
disciplinary enquiry, Mr Mahlangu, found that the third respondent
had displayed negligent behaviour and
found her guilty of what he
referred to as ‘a component verdict of gross negligence’.
He recommended the sanction of
dismissal which the applicant
implemented.
[4]
The third respondent challenged the applicant’s decision to
dismiss her at the
second respondent, the Commission for
Conciliation, Mediation and Arbitration (the CCMA). The dispute was
arbitrated by the commissioner
who found the third respondent’s
dismissal both substantively and procedurally unfair and ordered the
applicant to reinstate
her. It is that award that the applicant seeks
this Court to review and set aside. The applicant’s main
grounds for review
are that the commissioner failed to properly apply
his mind to the evidence before him, misconstrued the evidence and
reached an
unreasonable decision which is disconnected from the
evidence. The applicant submitted that it led evidence and proved
that the
third respondent made herself guilty of misconduct. The
commissioner, however, unreasonably found that the applicant had
dismissed
the third respondent unfairly for misconduct that she was
not charged with.
[5]
Giving reasons for his decision, the commissioner made a finding that
the third respondent
did not contravene any rule because the
applicant had failed to prove its case against her. He found no
evidence linking the third
respondent to the charge which she faced
at the disciplinary enquiry and concluded that the third respondent
did not contravene
the rule but that she was dismissed on a charge
based on the chairperson’s perception. The third respondent
opposed the application
on the basis that the award is both
reasonable and correct.
[6]
The applicant’s argument is correct that the relevant test to
determine a review
application based on errors made by a commissioner
in the conduct of an arbitration is that set out in
Head
of the Department of Education v Mofokeng and Others
as follows
[1]
:
‘…
To repeat:
flaws in the reasoning of the arbitrator, evidenced in the failure to
apply the mind, reliance on irrelevant considerations
or the ignoring
of material factors etc must be assessed with the purpose of
establishing whether the arbitrator has undertaken
the wrong enquiry,
undertaken the enquiry in the wrong manner or arrived at an
unreasonable result. Lapses in lawfulness, latent
or patent
irregularities and instances of dialectical unreasonableness should
be of such an order (singularly or cumulatively)
as to result in a
misconceived inquiry or a decision which no reasonable decision-maker
could reach on all the material that was
before him or her.’
[7]
An assessment of the totality of the evidence tendered at arbitration
and the arbitration
award supports the applicant’s version that
the commissioner misconstrued the dispute before him. As the dispute
before him
concerned an alleged unfair dismissal for misconduct, the
commissioner was required to determine the fairness of the
applicant’s
conduct of dismissing the third respondent for
gross negligence, the misconduct she was dismissed for and not for
the misconduct
she was charged with. The commissioner therefore
conducted an incorrect enquiry, thus misconceiving the dispute before
him.
[8]
The manner in which the commissioner dealt with the applicant’s
conduct of charging
the third respondent with one act of misconduct
and dismissing her for another, rendered his award defective as
envisaged in section
145 of the Labour Relations Act
[2]
(the LRA). In
Woolworths
(Pty) Ltd v Commission for Conciliation, Mediation and Arbitrati
on,
the Labour Appeal Court (LAC) held that
[3]
:
“
Unlike in criminal
proceedings where it is said that ‘the description of any
statutory offence in the words of the law creating
the offence, or in
similar words, shall be sufficient’, the misconduct charge on
and for which the employee was arraigned
and convicted at the
disciplinary enquiry did not necessarily have to be strictly framed
in accordance with the wording of the
relevant acts of misconduct as
listed in the appellant’s disciplinary codes, referred to
above. It was sufficient that the
wording of the misconduct alleged
in the charge-sheet conformed, with sufficient clarity so as to be
understood by the employee,
to the substance and import of any one or
more of the listed offences. After all, it is to be borne in mind
that misconduct charges
in the workplace are generally drafted by
people who are not legally qualified and trained”.
[9]
The commissioner’s award that the third respondent’s
dismissal was substantively
and procedurally unfair resulted from his
misconception of the dispute before him. The award is therefore
unreasonable. The applicant
sought an order substituting the award. I
have read the record of the arbitration proceedings and am not
convinced that it contains
sufficient information on which a decision
on the fairness of the third respondent’s dismissal can be
made.
[10]
In the premises, the following order is made:
Order
:
1. The
arbitration award issued by the first respondent under case number
FSBF5232-16
dated 20 April 2017, is reviewed and set aside.
2. The
matter is remitted to the second respondent to be arbitrated
de
novo
by a commissioner other than the first respondent
Z.
Lallie
Judge
of the Labour Court of South Africa
Appearances
:
For
the Applicant:
Mr Postuma of Snyman
Attorney
For
the Third Respondent: Mr Tshabalala Representative of NASECGWU
[1]
(2015)
36 ILJ 2802 (LAC) at para 32.
[2]
Act
66
of 1995 as amended.
[3]
(2011)
32 ILJ 2455 (LAC) at para 32.