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[2019] ZALCJHB 113
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SACCAWU obo Mamuremi v Tokiso and Others (JR828/16) [2019] ZALCJHB 113 (17 May 2019)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not reportable
Case No: JR 828/16
In the matter between:
SACCAWU obo JOYCE
MAMUREMI
Applicant
And
TOKISO
First
Respondent
ABDUL OSMAN
N.O
Second Respondent
JDG TRADING t/a
JOSHUA DOORE Third
Respondent
Heard: 27
November 2018
Delivered: 17
May 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The Applicants seek an order reviewing and setting aside the
arbitration
award issued by the Second Respondent (Arbitrator) dated
18 March 2016. SACCAWU and the Third Respondent are parties
to a collective agreement in terms of which disputes between the
parties are to be resolved under the auspices of TOKISO Dispute
Settlement, a private dispute resolution agency. The Third Respondent
(‘JDG’) opposed the review application.
[2]
Ms Joyce Mamuremi (Mamuremi) was employed by JDG with effect from
November 2009.
JDG is in the business of furniture retail . At
the time of her dismissal by JDG, Mamuremi was employed as a Branch
Manager at
JDG’s Tzaneen branch. She was dismissed on
14 November 2014 on account of allegations of misconduct
pertaining
to breach of JDG’s Dispatching Article Policy and
Procedure.
[3]
The case against Mamuremi was as follows;
3.1
On 9 October 2014, a salesperson (Mr Simon Maake) at the
branch under
Mamuremi, sold a black lounge suite which was the only
one of its kind in the branch, to a customer, Ms Matilda Maake (The
customer).
Mamuremi ostensibly facilitated the sale by issuing a
proof of delivery (POD) on the lounge suite on 13 October 2014.
3.2
Despite the sale and the POD having been issued, the lounge suite was
not delivered
to the customer. On 16 October 2014, the
customer came to the branch and spoke to Maake and demanded her money
back.
She was then referred to Mamuremi. The matter was not resolved
and it came to the attention of Mamuremi’s immediate
supervisor,
Mr Andrew Langa.
3.3
Langa despite a search, could not find a delivery note in respect of
the transaction
in an attempt to do his reconciliation. Upon asking
Mamuremi where the delivery note was, she told him that she was still
busy
with it, as the customer wanted to cancel the sale. Ultimately,
Mamuremi had advised Langa that she had pre POD the goods and
confirmed
that they were still in the store. At some point, Mamuremi
informed Langa that she had used her own money to deliver the goods
to the customer on 13 October 2014.
3.4
JDG contends that the irregularities leading to the charges is that a
POD cannot
be issued before the good are delivered in accordance with
its policies and procedures, as it serves as proof that goods were
delivered
to a customer.
3.5
A disciplinary enquiry was initiated and convened on 6 November 2014.
At those proceedings, Mamuremi produced an affidavit deposed to by
the customer, in which the latter averred that the lounge suite
was
delivered to her house on 13 October 2014, but that she had
returned it to the branch and requested Mamuremi to keep
it for her.
The Chairperson of the enquiry, Mr Jerry Mnisi expressed doubts about
the veracity of the customer’s affidavit,
and concluded that a
dismissal was appropriate in the circumstances, as Mamuremi had
breached company policies.
[4]
Following an unsuccessful internal appeal, Mamuremi as assisted by
SACCAWU
referred an unfair dismissal dispute to TOKISO, which matter
came before the Arbitrator for determination.
The
arbitration proceedings:
[5]
JDG led the evidence of three witnesses at the proceedings,
viz
,
Messrs Maake, Mnisi and Langa.
5.1
Maake’s testimony was to confirm that he sold the lounge suite
to the
customer, and that Mamuremi was present at the store at the
time. The goods were however not delivered to the customer. He
confirmed
that the customer came to the store on 16 October 2014
and was agitated as her goods had not been delivered after the
sale.
5.2
Mnisi is the Area Manager for Witbank and had presided over the
disciplinary
enquiry. His evidence, to the extent that the procedural
fairness of the dismissal was not placed in dispute, was only
pertinent
in regards to factors considered in deciding on a
dismissal. He took into account the fact that Mamuremi was a senior
manager;
was aware of the policies and procedures that prohibited pre
POD items; had a final written warning on record for a similar
offence,
and that the offence in question was met with a dismissal
according to the company’s Disciplinary Code and Procedure.
5.3
Mnisi also referred to the affidavit from the customer, which was
received on
the morning of the enquiry, which contained averments and
explanations which were not proffered by Mamuremi before. He further
testified that the customer was called by someone in the Head office
on 21 October 2014, and she had denied that she had
received the goods as yet. It was as a result of that information
that investigations were then conducted into whether the delivery
note was pre POD by Mamuremi.
5.4
Mnisi further testified that if the goods were returned as alleged by
Mamuremi
and the customer in her affidavit, then a reversal of goods
movement form would have been completed, reflecting the delivery as
unsuccessful, or that the returned stock would have been treated as
access stock to be re-entered into stock, or at most, the sale
deal
ought to have been cancelled.
5.5
Mnisi had denied that Mamuremi had informed him of allegations of
sexual harassment
by her immediate supervisor, Langa, or that Langa
had committed a similar offence that she was charged with.
5.6
Andrew Langa, the Regional Manager and Mamuremi’s immediate
supervisor
testified in regards to events after the customer
confronted him on 27 October 2014 to complain about the
goods that
were not delivered. He had confronted Mamuremi, who had
confirmed that she had pre-invoiced the goods which were still in the
store
as at 27 October 2014, despite the sale having been
made on 9 October 2014.
5.7
Langa had done his own reconciliation and discovered that the
delivery note
of the customer was missing and when he enquired from
Mamuremi, the latter’s response was that she was still busy
with it
as the customer wanted to cancel. The delivery note however
re-surfaced on 30 October 2014, and he had refused to sign
it off as it was not there previously. Mamuremi had further informed
him that she had paid for the delivery of the goods on
13 October 2014
out of her pocket. This was despite the
fact that the goods were still in the store on 27 October 2014.
5.8
According to Langa, when a pre POD is done, this could result in the
manipulation
of figures in order to achieve budgets. He further
testified that goods could only be invoiced once the delivery note
came back
after a successful delivery. It was only him who could
authorise the hiring of private transport for delivery of goods.
5.9
Langa had denied having committed the same offence or having had
ulterior motives
to charge Mamuremi. Under cross-examination, Langa
had conceded that he had also not followed company procedures. He
further conceded
that despite Mamuremi having been dismissed, he had
allowed her to work in the store for a number of days and entrusted
her with
the keys to the store.
5.10
He had denied having had personal clashes with Mamuremi over the
purchase of a mobile phone from
the store or having had any romantic
designs over her. He contended that she had not filed a grievance
against him in respect of
any of her allegations. This was despite
having conceded that he had sent her a number of sexually explicit
material on her phone,
and that she had returned the favour by
sending him material of similar content.
[6]
Mamuremi’s evidence was essentially that the lounge suite was
delivered
to the customer timeously, but was returned to the store as
it could not fit into the doorframe of the customer’s house.
Mamuremi had then requested and was granted permission by the
Regional Manager to keep the goods for the customer, but not for
longer than a month. The customer returned after eight or nine days
and reported that the goods could be delivered as the door problem
was resolved. She had then arranged transport for the goods to be
re-delivered.
[7]
Mamuremi denied having made a pre POD as the goods were delivered and
the customer had signed in that regard. She denied that there was
anything wrong with having used private transport to deliver the
goods as it was previously done with Langa’s approval. She
further testified that Langa had in the past asked her to pre-invoice
goods which she had refused to do.
[8]
The friction between the two according to Mamuremi emanated from when
Langa asked her to buy a mobile phone on his behalf in the store, but
failed to pay her back. She further testified that she had
rebuffed
his advances towards her, and after he had sent her sexually explicit
material. She denied having sent similar material
to him, and
confirmed that she did not lay a grievance against him because
his girlfriend was also her friend.
[9]
Under cross-examination, Mamuremi testified that her previous warning
was in regard to a failed audit and not pre POD. She conceded that
she was aware of the policies and procedures, and the fact that
a pre
POD was harmful to the business and customers. She was further aware
that a number of branches also used pre POD.
[10]
She denied having asked the customer to depose to an affidavit before
her disciplinary
enquiry. She confirmed however that any other
transactions that were not in accordance with policies and procedures
that she was
aware of were not brought to the attention of
management.
[11]
The customer, Mathilda Maake testified that the goods were delivered
on 13 October 2014
but had to be returned to the store as
they could not fit into her door frame. She did not cancel the sale
and had gone back to
the store some two or three weeks later with her
own private transport to collect the goods. She confirmed having
received a call
from JDG Head Office enquiring about the delivery of
goods and had confirmed that she had not, but did not give an
explanation.
She denied having gone to the store to complain about
the non-delivery of the goods she had purchased, and confirmed having
deposed
to an affidavit after Mamuremi called her.
The
award:
[12]
The Arbitrator’s conclusions and findings were that based on
the mutually exclusive
versions of the witnesses,
12.1
The customer’s version was unreliable as she was evasive and an
unreliable witness, whilst
JDG’s witnesses had largely
corroborated each other’s versions regarding the transaction.
12.2
Whilst Langa was equally evasive and had contradicted himself in
regards to the allegations made
against him by Mamuremi, she had
nonetheless conceded that she had not lodged any complaint against
Langa, and accordingly, her
claim of inconsistency should fail.
12.3
Based on all the considerations, JDG had discharged the onus placed
on it to prove that Mamuremi
was guilty of issuing a POD before
delivery and also failing to deliver the goods timeously to the
customer. A sanction of dismissal
was appropriate in the light of
Mamuremi being aware of the company rules and procedures that she
could not pre POD and further
since she was issued with a final
written warning in the past for similar conduct.
Grounds
of review and evaluation:
[13]
The
test on review is settled. It is that an arbitration award is
reviewable if the decision reached by the arbitrator was one that
a
reasonable decision-maker could not reach.
[1]
This requires of this Court to enquire whether the decision under
review is one that a reasonable decision-maker could not reach
on the
evidential material available. On this test, an arbitration award
based on defective reasoning by an arbitrator may still
pass the
muster required in reviews, provided that the result is one that a
reasonable decision-maker could have reached.
[2]
In a further explication of the reasonableness test, the
Constitutional Court in
Duncanmec
(Pty) Limited v Gaylard NO and Others
[3]
stated
that;
‘
Sidumo
cautions against the blurring of the distinction between appeal and
review and yet acknowledges that the enquiry into the reasonableness
of a decision invariably involves consideration of the merits. So as
to maintain the distinction between review and appeal this
Court
formulated the test along the lines that unreasonableness would
warrant interference if the impugned decision is of the kind
that
could not be made by a reasonable decision-maker.
This
test means that the reviewing court should not evaluate the reasons
provided by the arbitrator with a view to determine whether
it agrees
with them. That is not the role played by a court in review
proceedings. Whether the court disagrees with
the reasons is
not material.
The
correct test is whether the award itself meets the requirement of
reasonableness. An award would meet this requirement
if there
are reasons supporting it. The reasonableness requirement protects
parties from arbitrary decisions which are not justified
by rational
reasons.’
[14]
To the
extent that Mamuremi only challenged the substantive fairness of her
dismissal, it is necessary to have regard to what the
essence of the
charges proffered against her entailed, and to ask which rules,
procedures or policies she was alleged to have breached.
[4]
[15]
It was common cause that Mamuremi was alleged to have breached JDG’s
Dispatching
Article Policy and Procedures, as she had pre POD
delivery note without the goods having been delivered to the
customer. The effect
of such breaches according to Langa, was that
they resulted in the manipulation of figures in order to achieve
budgets.
[16]
The grounds relied upon in seeking a review is that the Arbitrator
failed to apply his
mind properly and failed to consider important
facts raised by Mamuremi; that the Arbitrator failed to consider that
the goods
were delivered on time and returned to the store as
requested by the customer, and also upon permission having been
obtained from
the Regional manager; and further failed to take
into account allegations of inconsistency raised by Mamuremi.
[17]
Having had regard to the record and the facts placed before the
Arbitrator and his conclusions
in that regard, it should be concluded
that there is no basis to conclude that the Arbitrator reached an
unreasonable decision
to warrant interference by this Court in
relation to the aspect of substantive fairness of the dismissal. My
conclusions in this
regard are based on the following considerations;
17.1
Mamuremi was a senior employee and was fully aware of the policies
and procedures she is alleged
to have breached, and was fully aware
of the consequences of the breach, having previously been issued with
a final written warning
for similar breaches in the past. Equally so,
she was aware of the consequences of issuing a POD before delivery.
17.2
The sale of the goods in question having been concluded on
9 October 2014, I am prepared
to accept as the Arbitrator
had done, that as at 21 October 2014, the goods had not
been delivered, and the testimony
of the customer was correctly
rejected by the Arbitrator as being unreliable.
17.3
Maake’s testimony was that having sold the lounge suite to the
customer, she came back
to the store on 16 October 2014
agitated because goods had not been delivered. All that the customer
did was to deny
having come back to the store to complain, and
contended that she only came back some two or three weeks later to
recollect the
goods as they could not initially be delivered due to
the door frame at her house. This was in contrast to Mamuremi’s
evidence,
which was that she came back some eight or nine days later
after the sale, and after the goods were returned to the store, to
collect
them. Added to that, she testified that she came back
with her own transport, which evidence was in direct contradiction to
that tendered by Langa, that Mamuremi informed him that she had
arranged for the transport and paid for it out of her pocket.
17.4
Even more worrisome with the customer’s version is that she
confirmed that Mamuremi contacted
her after the sale and informed her
of her ‘situation’. The only probable inference to be
drawn is that in the light
of Mamuremi having found herself in a
pickle, she had contacted the customer, and together they had
concocted a version that resulted
with the affidavit before the
disciplinary enquiry, and her concocted version before the
Arbitrator.
17.5
The evidence clearly demonstrated that upon the sale of the goods on
9 October 2014,
they were not delivered to the customer,
hence she came back on 16 October 2014 to complain. She had
further confirmed
that the goods were not delivered when contacted by
JDG’s Head Office on 21 October 2017. He contention
in the
arbitration proceedings that she had however not explained the
reasons why the goods were not with her at the time is clearly
self-serving,
in the light of the concocted version that the goods
were returned to the store at her request.
17.6
Had it been correct that the goods were delivered to the customer and
that she had asked that
the store keep them for her, there would
clearly have been no need for any investigation. To this end, as a
result of her coming
in to the store on 16 October 2014 to
complain in an agitated state, and further upon her confirmation with
Head Office
on 21 October 2014 that the goods had not yet
been delivered, an investigation was initiated. This led to a
discovery
that Mamuremi had contrary to standing policies and
procedures, pre POD the transaction, and lied to Langa about the
delivery note
when asked about it. On Langa’s evidence,
Mamuremi had informed him that she had paid for the delivery of the
goods on 13 October 2014
out of her pocket. This was
despite the fact that the goods were still in the store on
27 October 2014.
17.7
There are further inherent improbabilities and contradictions with
Mamuremi’s evidence
which led to the Arbitrator’s
decision to reject her version. JDG correctly points out that
inasmuch as Mamuremi sought to
deny that she had done anything wrong
as the goods were timeously and properly delivered and a POD
obtained, in the same vein,
her contention was that she got
permission from Langa to do a pre POD. It is either she got
permission to do the pre POD or she
did not do it. It cannot be both.
17.8
Mamuremi also sought to cast aspersions on the evidence of Langa, and
inasmuch as she had succeeded
in demonstrating a non-professional
relationship between the two, the nub of the allegations against her
leading to the fairness
of her dismissal remained intact. It is
apparent that the relationship between the two was less than
professional, as they readily
and happily exchanged sexually explicit
material despite her denials. The explanation that she did not lodge
a grievance or a complaint
because Langa’s girlfriend was also
her friend is clearly unsatisfactory. I fail to appreciate what her
friendship with Langa’s
girlfriend had anything to do with the
workplace.
17.9
Furthermore, the contentions that the charges against her were
because Langa was a scorned man
who was a sexual pest were clearly an
after-thought and conjured up to bolster a faltering concocted
version. She had not complained
of any sexual harassment by Langa
until when faced with disciplinary proceedings. It is not suggested
that there is no merit in
her allegations that she was sexually
harassed. The issue is that if it did happen, it was not reported.
17.10 Equally
so with allegations of inconsistency. Mamuremi at no stage brought it
to the attention of JDG that Langa
was involved in pre POD. An
employer cannot be expected to act against misconduct by its
employees unless made aware of them. Mamuremi
confirmed that none of
the breaches were reported. It is ironic that Mamuremi as a senior
employee failed to report any similar
transgressions on the part of
Langa and only did so more out of convenience when she was about to
be dismissed. It therefore follows
that there is no merit in the
contention that Langa was treated differently, or that the decision
by Langa to have her charged
was as a result of her having rebuffed
his romantic advances.
[18]
In the end, I am satisfied that the Arbitrator considered the primary
issues before him,
carefully evaluated the evidence and gave reasons
why certain evidence was accepted or rejected, and applied a balanced
approach
in that regard. Ultimately the Arbitrator came to a decision
that falls squarely within a band of reasonableness.
[19]
I have further had regard to the requirements of law and fairness in
respect to the issue
of costs, and I am satisfied that the facts and
circumstances of this case calls for the applicants to be burdened
with its costs.
This review application was ill-considered for a
variety of reasons. It is apparent, as already indicated in the body
of the judgment,
that Mamuremi and the customer conspired to present
a concocted and convoluted story with the aim of not only misleading
the chairperson
of the disciplinary enquiry, but also the Arbitrator.
Irrespective of the relationship between Mamuremi and Langa, and in
the light
of her having been issued with a final written warning for
the same misconduct, she ought to have known that any further
transgression
would lead to her dismissal. She nonetheless failed to
take heed of that warning. In these circumstances, surely SACCAWU
should
have reflected on the merits of this case, and realised the
futility of persisting with this application.
[20]
In the premises, the following order is made;
Order:
1. The
application to review and set aside the arbitration award issued by
the Second Respondent under case number
TOKISO 3703 dated
19 March 2016 is dismissed with costs.
___________________
Edwin
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicants:
Leatha Marakalala, SACCAWU Official
For
the Third Respondent:
RJC Orton of Snyman Attorneys
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
(Sidumo)
[2007]
12 BLLR 1907
(CC)
at para 10.
[2]
See
Herholdt
v Nedbank Limited (Congress of South African Trade Unions as amicus
curiae)
[2013]
11 BLLR 1074
(SCA) at para 25, where it was held that;
‘
For
a defect in the conduct of the proceedings to amount to a gross
irregularity as contemplated by s 145(2) (a) (ii) …the
Arbitrator must have misconceived the nature of the inquiry or
arrived at an unreasonable result. A result will only be
unreasonable if it is one that a reasonable Arbitrator could not
reach on all the material that was before the Arbitrator. Material
errors of fact, are not in and of themselves sufficient for an award
to be set aside, but are only of any consequence if their
effect is
to render the outcome unreasonable.’
[3]
[2018] ZACC 29
;
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018 (6) SA 335
(CC); (2018) 39 ILJ 2633 (CC) at paras 41 - 43
[4]
Stokwe
v Member of the Executive Council: Department of Education, Eastern
Cape and Others
[2019] ZACC 3
; (2019) 40 ILJ 773 (CC);
2019 (4) BCLR 506
(CC) at
para 57