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[2019] ZALCJHB 134
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Mass Warehouse (Pty) Ltd t/a Makro SA v SACCAWU obo Mthimunye and Others (JR987/15) [2019] ZALCJHB 134 (7 June 2019)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
case
no: jR987/15
In
the matter between
MASS
WAREHOUSE (PTY) LTD T/A MAKRO SA Applicant
and
SACCAWU
obo BILLY MTHIMUNYE
First
Respondent
THE COMMISSION FOR
CONCILIATION,
MEDIATION
AND ARBITRATION Second
Respondent
COMMISSIONER JACKSON MTHUKWANE N.O
Third
Respondent
Heard:
31 October 2018
Delivered:
07 June 2019
JUDGMENT
BALOYI,
AJ
Introduction
[1]
The arbitration award issued by the third respondent is the subject
matter of this
application. In terms of the very award, the third
respondent found the dismissal of the first respondent to be
substantively unfair
and awarded him reinstatement retrospectively.
The applicant is seeking an order reviewing and setting aside the
award. The first
respondent is opposing the application.
Factual Background
[2]
The applicant and the first respondent entered into an employment
relationship in
September 1991. The relationship which the applicant
terminated on 29 July 2014 after finding the first respondent guilty
of gross
negligence. The first respondent was at the time of his
dismissal occupying the position of Back Returns Clerks. He was based
at
Makro, Centurion.
[3]
The applicant conducts a retail business of various merchandise.
Certain items sold
by the applicant were for a variety of reasons,
brought back to the store for repairs. It was the duty of the Back
Returns Clerks
to book out the items due for repairs to the relevant
suppliers. Once the repairs were done, the driver identified as
Godfrey was
sent out to pick up such repaired goods. The Back Returns
Clerks were further responsible for receiving the repaired goods from
the suppliers after being collected by the driver.
[4]
The first respondent as a Back Returns Clerk was responsible for
following up
with the suppliers on whether the goods sent for repairs
were attended to and ready for collection. The process of following
up
went to the extent of ensuring that the goods collected by the
driver reached the store. The first respondent was faulted for not
ensuring that the repaired goods reached the store after being
collected from the suppliers. Furthermore, he failed to inform the
relevant manager about the non-arrival of such repaired goods.
According to the applicant’s records, the third respondent
had
in no less than 16 occasions failed to record that the repaired goods
collected from the suppliers were received back into
the store. The
applicant was able to link these omissions to the first respondent
due to his username appearing on such records.
The repaired goods
remained unaccounted for after their collection from the suppliers
and the applicant had as a result, suffered
losses. The misconduct in
question was said to have been committed on an ongoing basis during
2012 and 2013.
[5]
The first of the applicant’s two witnesses was Ms Nomasonto
Masuku (Ms
Masuku), the Process Controller at the very store in which
the applicant was based. The initial investigations were carried out
by the applicant’s second witness, Mr Jacobus Paulsen (Mr
Paulsen) who was the Executive Manager: Receiving. Mr Paulsen
submitted the outcome of his investigations to Ms Masuku for her
further attention. Her evidence and that of Mr Paulsen was mainly
based on the outcome of the investigations that the repaired goods
collected from the suppliers did not reach the store. They were
not
part of the Back Returns Department during 2012 and 2013.
[6]
Mr Paulsen started managing the Back Returns Department in February
2014 following
his transfer from the applicant’s other
branches. The evidence of the applicant’s witnesses was
respectively based
on documents sourced out during investigations and
information gathered when interviewing the Back Returns Clerks. One
of the Back
Returns Clerks who worked with the third respondent
resigned immediately after being interviewed by Mr Paulsen. Mr
Paulsen confirmed
receiving a single report from the third respondent
about certain items that did not reach the store after repairs. He
went further
to state that the report in question was however made
after the investigations had commenced. When he assumed management of
the
Back Office Department, all the Clerks were performing the same
duties and continued as such under him.
[7]
The first respondent had from the onset, denied being negligent. He
was not working
alone in the Back Returns Department, he cannot under
such circumstances, be blamed for all the wrongs that took place in
that
department. Due to separate duties performed by the Back Returns
Clerks, he was not required to make follow ups on the collected
repaired goods. He further maintained that he did make follow ups
with suppliers hence the driver was able to go out and collect
the
repaired goods. The driver’s failure to bring the repaired
goods should not be attributed to him because he did what
was
required of him. At the time he was still reporting to one Lungile
and he was not required to make follow ups beyond sending
a driver to
collect the repaired goods. At some point Lungile assisted him in
contacting the suppliers. He had in any event reported
the issue of
goods not returning to the store to Mr Paulsen; as such no misconduct
was committed by him.
[8]
The third respondent’s findings in his award are heavily rested
on the applicant’s
failure to lead evidence demonstrating the
breakdown of specific duties of the Back Return Clerks. Since none of
the applicant’s
witnesses had worked in the department at the
time of the losses, the first respondent’s version that he was
only responsible
for booking back the repaired stock from the
technicians remained undisputed. Secondly, that the applicant failed
to call Lungile
who was the manager at the material times to rebut
the first respondent’s version regarding separate
responsibilities of
the Back Returns Clerks. Thirdly, the applicant
had as a result of having not properly investigated the allegation
against the
first respondent, failed to prove that the third
respondent was guilty of gross negligence. Lastly, the applicant
tendered no credible
evidence to justify the applicant’s
dismissal. Based on these findings, he ruled that the first
respondent’s dismissal
was substantively unfair and awarded him
reinstatement with back pay.
[9]
Now before this Court the applicant is seeking an order for the
review and set aside
of the arbitration award based on the third
respondent’s commission of gross irregularity. His decision is
criticized for
putting more weight on Mr Paulsen not been present at
the time of commission of misconduct. He failed to take into account
the
documentary evidence that plainly revealed that the first
respondent failed to do what was required of him when coming to
following
up on the goods taken out for repairs. His failure to
accurately record the evidence as presented before him led to his
inability
to understand the evidence in question. This effectively
led him to preferring a wrong version in his determination of the
dispute.
His finding that the applicant failed to lead evidence to
demonstrate that the Back Returns Clerks performed separate duties is
inconsistent with Mr Paulsen’s evidence that the employees in
the department performed the same duties. He failed to consider
the
credibility, reliability and probabilities associated with both
parties’ evidence.
[10]
The first respondent contends that the third respondent’s
decision is a reasonable one
and therefore the application should be
dismissed. The applicant’s witnesses contradicted each other
regarding the number
of employees working at the Back Returns
Department. The applicant failed to dispute that the back returns
employees performed
different duties. The first respondent had in
deed reported the non-return of goods to Mr Paulsen.
Evaluation
[11]
The test for review of arbitration awards based on the constitutional
ground of reasonableness
is well established and it is in fact
accepted as a settled legal position. The award falls to be reviewed
if it is amongst others,
established that the arbitrator’s
decision is not one which a reasonable decision maker could reach
[1]
.
The court when confronted with a review application cannot ignore
that a decision of an arbitrator cannot be easily interfered
with.
This extends to the point where the court holds a view that it would
have decided otherwise had it been tasked with the determination
of
the dispute at arbitration level. In essence, the determination of
unfair dismissal disputes is primarily vested on the arbitrators
and
the court’s interference should be exceptionally minimal. The
court may be compelled to interfere with the arbitrator’s
decision only if the irregularity is so gross to a point that no
reasonable decision maker could arrive at a decision that is subject
to review. The Labour Appeal Court (LAC) in
Fidelity
Cash Management Services v CCMA and Others
[2]
had in this respect said the following at paragraph 98:
“
[98]
It will often happen that, in assessing the reasonableness or
otherwise of an arbitration award or other decision of a CCMA
commissioner, the Court feels that it would have arrived at a
different decision or finding to that reached by the commissioner.
When that happens, the Court will need to remind itself that the task
of determining the fairness or otherwise of such a dismissal
is in
terms of the Act primarily given to the commissioner and that the
system would never work if the Court would interfere with
every
decision or arbitration award of the CCMA simply because it, that is
the Court, would have dealt with the matter differently.
Obviously,
this does not in any way mean that decisions or arbitration awards of
the CCMA are shielded from the legitimate scrutiny
of the Labour
Court on review.”
[12]
The misconstruction of the nature of the inquiry which is in itself
an irregularity does often
call for the Court’s interference
with the arbitration award if such irregularity has the effect of
bringing about an unreasonable
result. The Supreme Court of Appeal
(SCA) in
Herholdt
v Nedbank LTD and Others
[3]
at paragraph 25 held as
follows:
“
In
summary, the position regarding the review of CCMA awards is this: A
review of a CCMA award is permissible if the defect in the
proceedings falls within one of the grounds in s 145(2)
(a)
of the LRA. 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, as
well as the weight and relevance to be attached to particular facts,
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.”
[13]
The negligence that gave rise to the dispute between the parties is
founded on the first respondent’s
failure to follow the
required working procedures. The third respondent began his analysis
of evidence by making reference to item
7 of schedule 8 of Code of
Good Practice on dismissals
[4]
.
He regurgitated same in paragraph 15 of his award. In the next
paragraph he identified the relevant issues for consideration on
his
way to determination of the dispute as follows:
“
It
was common cause between the parties that stock that had been sent to
technicians for repairs, was repaired, collected by the
driver and
his assistant but it never reached the store. Paulsen started to
manage the applicant only on 14 February 2014, and
the alleged gross
negligence took place during 2012 and 2013.Nomasonto Masuku testified
that the applicant during that period worked
with two other employees
in that department. Paulsen testified that only one other employee
worked with the applicant in that department.
The applicant stated
that he worked with Johannes and Sibusiso”
[14]
From this point he went on to analyze the facts of the matter based
on the above
dicta
to arrive at his conclusion. It does not appear in his award as to
why item 7 of schedule 8 of Code of Good Practice was introduced
as a
tool for determination of the dispute but was left unused. It
glaringly appears in the award that the third respondent determined
the dispute based on the applicant’s inability to tender
sufficient evident to justify dismissal. In the presence of the
applicant’s records backed by oral evidence, particularly that
of Mr Paulsen, there is no doubt that the third respondent
has failed
to apply the legal tools that he deemed relevant for determination of
this matter to the facts placed before him.
[15]
In view of the above, it is also of prime importance for the Court to
look at the
source of the finding that the applicant’s case
carried no sufficient evidence. The third respondent found that the
applicant
made no effort to lead evidence that the first respondent
performed separate duties to those performed by his fellow Back
Returns
Clerks. The applicant received criticism from the third
respondent for not calling Lungile to clarify the separation of
duties.
The issue at hand as understood by the third respondent, was
the first respondent’s duties of booking back the stock that
had been repaired by the technicians. These are indeed matters of
evidence identified by the third respondent.[16]
What appears to reveal difficulties in the third respondent’s
reasoning has largely to do with application of rules of evidence.
Proper application of the rules of evidence should definitely be
consistent with accurate capturing of the evidence. The third
respondent identified the non-return of repaired goods to the store
as a common cause issue. Consequently, it was incumbent on
the first
respondent to establish the whereabouts of the collected repaired
goods. If such goods did not reach the store, the next
thing for him
to do was to bring this to his superiors’ attention. The core
of the first respondent’s case is that
he followed up on the
repairs and reported to Mr Paulsen. On the other hand, he was not
responsible for reporting the repaired
goods that did not reach the
store. What causes further problems to the third respondent’s
case is that Mr Paulsen whom he
reported the non-arrival of goods,
was seen as an incompetent witness because he did not work in the
department in 2012 and 2013.
[17]
With the issues for determination clearly identified, it remains
difficult to understand why the third
respondent was not able to
notice that the first respondent’s case was loaded with several
mutually exclusive versions. What
is more troubling is that the third
respondent sourced the evidence about Lungile from the first
respondent’s testimony which
only came into the record after
the close of the applicant’s case. As the record stands none of
the applicant’s witnesses
were confronted with this version
during cross examination to enable them to respond or to enable the
applicant to consider calling
further witnesses if need be. It does
not appear in his analysis of the evidence that the first
respondent’s other version
about the driver’s failure to
return the repaired goods to the store should not be blamed on him
was ever considered. There
is no indication in the award on whether
this version was found to be acceptable or otherwise. Based on what
was placed before
the third respondent, this forms part of the
critical issues deserving consideration for purposes of the
determination of the dispute.
[18]
It does under the circumstances, conspicuously appear from the above
that the third respondent failed
to consider the totality of facts
placed before him
[5]
. On
whatever facts he elected to consider, he failed to properly apply
the rules of evidence. He identified all pertinent issues
that were
clearly common cause. The only identifiable contentious issue was
whether the third respondent made follow ups on the
return of the
repaired goods to the store after sending the driver to collect them.
Once the applicant raised an issue about the
goods which the first
respondent was to receive after being collected from the technicians,
logically the first respondent remained
with a duty to explain what
happened to the goods, most particularly where their disappearance
was never reported to his superiors.
The fate of the first respondent
was mainly rested on whether he had a good explanation for such goods
not having reached the store.
[19]
With the third respondent’s ignorance of the totality of
factors placed before him, he certainly
came to an unreasonable
conclusion by finding that the applicant failed to produce sufficient
evidence to justify the third respondent’s
dismissal. This is
not consistent with the documentary evidence which revealed that the
first respondent had in no less than 16
occasions neglected his
duties of ensuring that the repaired goods reached the store. The
applicant was able to link this negligence
to the first respondent
through his username and this was not disputed. The third respondent
has in no doubt misconstrued the evidence
which effectively turns on
the nature of the inquiry he was faced with. This in no doubt brings
about an unreasonable result. His
award is thus open for review and
to be accordingly set aside.
[20]
Regarding costs, both parties were not at each other’s throats
on the issue. It will therefore
be within the requirements of law and
fairness not to make a cost order.
[21]
In the premises, the following order is therefore made:
Order
1.
The arbitration award issued by the third
respondent under case number GATW 11443-14 is reviewed and set aside
and substituted with
an order that:
1.1
The dismissal of the first respondent is
found to be substantively fair.
2.
There is no order as to
cost.
___________________________
MM
Baloyi
Acting
Judge of the Labour Court of South Africa
Appearances:
For the Applicant:
Mr B Masuku of Mervyn Taback Inc
For
the Respondent: Mr L Marakalala of SACCAWU
[1]
See:
Sidumo
and Another v Rustenburg Platinum Mines Ltd and others
[2007] 12 BLLR 109
, CC at par 110 when the constitutional court
raised a critical question in respect of test for review, ie,
“Is the decision reached by the commissioner one that a
reasonable decision-maker could not reach?” .
[2]
[2008]
3 BLLR 197 (LAC).
[3]
[2013] 11 BLLR 1074 (SCA)
[4]
Any
person who is determining whether a dismissal for misconduct is
unfair should consider—
(a)
whether or not the employee contravened a rule or standard
regulating conduct in, or of relevance to, the work-place;
and
(b)
if a rule or standard was contravened, whether or not—
(i)
the rule was a valid or reasonable rule or standard;
(ii)
the employee was aware, or could reasonably be expected to have been
aware, of the rule or standard;
(iii)
the rule or standard has been consistently applied by the employer;
and
(iv)
dismissal with an appropriate sanction for the contravention of the
rule or standard.
[5]
In
Gold
Fields Mining SA (Pty) Ltd v CCMA
[2007] ZALC 66
;
[2014] 1 BLLR 20
(LAC) at paragraph 21 the Labour Appeal Court
restated that the arbitrator’s failure to have regard to the
material facts
is likely to make him/her to fail to arrive at a
reasonable decision.