About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Cape Town Labour Court, Cape Town
SAFLII
>>
Databases
>>
South Africa: Cape Town Labour Court, Cape Town
>>
2019
>>
[2019] ZALCCT 16
|

|

Mlotha v Commission for Conciliation, Mediation and Arbitration and Others (C184/17) [2019] ZALCCT 16 (9 July 2019)

IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Not Reportable
Case No: C 184/17
In the matter between:
FUNDISWA
MLOTHA

Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION

First
Respondent
LAMEESAH JOOMA
N. O
Second
Respondent
WOOLWORTHS (PTY)
LTD

Third

Respondent
Heard:

17 October 2018
Delivered:
9 July 2019
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction
and background:
[1]
The applicant (Ms Fundiswa Mlotha) approached this Court for an order
reviewing and setting aside the arbitration award dated
10 February 2017, which was issued by the second respondent
(the
Commissioner) acting under the auspices of the Commission for
Conciliation Mediation and Arbitration (CCMA), under case number
WECT 14598-16.
[2]
In the award, the Commissioner had found that the dismissal of Mlotha
by the third respondent (Woolworths), was substantively fair.
Woolworths has opposed the review application.
[3]
The arbitration award followed upon a referral of an alleged unfair
dismissal
dispute to the CCMA by Mlotha, subsequent to her dismissal
by Woolworths on 31 August 2016, on the grounds of breach
of company rules and policies.
[4]
Mlotha was before her dismissal, employed by Woolworths as a Human
Resources
Store Administrator at the Paddocks branch in Milnerton.
She commenced her employment with Woolworths in March 2013. The
allegations
against Mlotha that she had
inter alia
breached
Woolworths’
policy
on honesty
emanated from an
incident that took place on 29 July 2016. It was alleged
that in breach of company policies, she had
set aside and/or reserved
a full priced item (a pack of beef meat) under the false pretence of
a reservation on behalf of a customer,
for the sole purpose of
concealing it from other potential customers, and taking advantage of
a reduced or discounted price that
was to take place at a later
period during that day.
The
arbitration proceedings:
[5]
The evidence before the Commissioner as presented by Woolworths’

Foods Department Manager (Jason Scott), was that;
5.1
Woolworths has an ‘end of life promotion’ document or
policy, in
terms of which every day at 14h00, certain products on its
shelves including meat products, have their prices reduced to 30% for

clearance. This practice is essentially intended that products that
have reached their sell by date
are purchased in
order to reduce waste.
5.2
Woolworths also has a policy directed to its employees, in terms of
which   the
reservation of any sales merchandise prior to,
during, or after the sale periods, is regarded as a breach of the
honesty code of
practice to be met with instant dismissal.
Furthermore, employees in accordance with policies are warned to
desist from putting
away stock for personal reasons in any
unauthorised areas; from purchasing or placing expired merchandise in
their shopping baskets
before it was recorded, and or to set aside
merchandise for the purposes of purchasing them at a later stage
during the sale period.
5.3
Mlotha was charged with setting aside a full priced pack of meat
under the pretence
of a customer order. Woolworths has a policy that
permits items to be set aside for customers upon their requests.
Where this is
done, the customer’s contact details must be
placed on the item before it is removed from the shelves. The items
would in
turn be placed on the ‘inter-active stand’ in
the cooler, and the customer would be given until the end of the
business
day to collect the item. If late in the day the item had not
been collected, the customer would be contacted to establish whether

he or she is still interested in purchasing the item.
5.4
It is further a practice that customers when making requests for
items to be
reserved, would ordinarily call the sale assistants to
make such reservations. Mlotha was based in an office, and was
accordingly
not one of the sales assistants that dealt with
customers.
5.5
At about between 08h00 and 9h00 on 29 July 2016, Mlotha was
observed
by Scott and Vincent Smit, the early Morning Controller,
taking the pack of meat into the cooler. The pack, contrary to
practice
and procedure, did not have any details of a customer on it.
When asked however, Mlotha had stated that the pack was reserved for

a customer.
5.6
At about between 14h26, Mlotha had presented the meat pack at the
tills for
her own purchase. Ordinarily, the item would have cost
R115.51, but Mlotha had bought it for R80.00, having had a 30%
sticker placed
on the item and further having benefitted from a staff
discount. Scott in the course of his duties had signed off the
transaction
in line with procedures, where staff purchase items from
the store.
5.7
Following the purchase, investigations including the viewing of CCTV
surveillance
footage had revealed that Mlotha had retrieved the meat
pack from the cooler at about 14h00, and presented it to a
replenisher
(‘Yanga’) to affix a sticker on it with a
marked-off of 30%. She then placed the pack in her shopping basket
and proceeded
to the till point to make payment.
[6]
David Jardine, Woolworths’ Food Department Manager had
investigated
the misconduct in question, and his evidence before the
Commissioner was essentially that;
6.1
He had interviewed Mlotha, Scott and other individuals in relation to
the matter
and obtained written statements from them. Interviews were
conducted with Mlotha on 1 August 2016 and when she was
asked
of the customer’s details, she did not initially have
them. Mlotha was then suspended from duty on 4 August 2016 and had
provided the customer’s details, which she had retrieved from
her personal mobile phone. Attempts at contacting the customer

however proved unsuccessful, and there was no record that the
customer had called to reserve the item or was called about when
the
item would be collected.
[7]
Mlotha’s testimony was as follows;
7.1
On 29 July 2016, she was the store manager on duty. A
customer had
called and asked her to reserve the pack of meat for
her, and she had done so in line with her obligations to provide
quality service
to customers and responding to their needs. When the
customer called in to make the reservation, she had asked for her
details
and enquired as to when the item would be collected. She then
gave the customer a grace period of thirty minutes within which to

collect the item. When the customer did not arrive, she then moved
the item to the shelves/sales floor.
7.2
At some point she came across the replenisher who was busy with
marking down
items. She then gave him the item to mark down, and
proceeded to the tills to make her purchase. The transaction was
authorised
by Scott.
7.3
She contended that her dismissal was unfair, as it was as a result of
a trap
by Scott, who did not even afford her an opportunity to state
her side of the story on the day in question.
7.4
Under cross-examination;
7.4.1
Mlotha denied that she ever placed the meat pack aside, and that all
that she did was to place it in the
demarcated area. She insisted
however that the customer had indeed called in the morning and asked
her to put the pack aside, which
would be collected at or about
13h30, hence she placed it in the demarcation area in the cooler. She
could not however recall at
what time the customer had called.
7.4.2
She testified that she took the customer’s details and wrote
them on a piece of paper which she had
placed in her personal
handbag. She further could not give the customer’s details
immediately she was asked about them, as
she felt intimidated and was
not thinking straight.
7.4.3
She further testified that she had made the statement referred to in
the proceedings under duress, and had
merely signed it as she was
concerned that she could be charged with insubordination. She
disagreed with the contents of that statement,
but however conceded
that she was not threatened into making that statement.
7.4.4
She confirmed that she did not call the customer on 29 July 2016
to enquire as to when the meat
pack would be collected, and her
reasoning was that the customer had advised her that she would
collect the item at a certain time,
and also since she wanted to save
telephone costs.
7.4.5
When the customer did not arrive, she then retrieved the meat pack
from the cooler and gave it to the replenisher
and told him that it
was due for a markdown. She confirmed that she did not place the pack
back on the shelves, but contended that
the replenisher had affixed a
markdown sticker on it and placed it on the shelves, from which she
took it and proceeded to the
tills.
7.4.6
She testified that if she had any bad intentions, she would have
simply retrieved the pack from the cooler
and proceeded to the till
as it would have been scanned and marked down in any event.
The
arbitration award:
[8]
The Commissioner had regard to the provisions of Item 7 of
Schedule
8, of
the Code of Good Practice, and accepted that there was a
duty on employees to act honestly in the execution of their duties
and/or
towards their employer. The Commissioner further observed that
Woolworths had codified this general principle into a standard
employment
rule, and that Mlotha had contravened Woolworths’
policy on honesty based on the following conclusions;
8.1
Mlotha had deliberately removed the item in question from the
designated refrigerator
with the sole intent of purchasing it at a
reduced price at a later stage, which culminated in her unduly
benefiting from her dishonest
conduct.
8.2
Mlotha’s contention that she had in fact returned the item to
the designated
refrigerator for the purpose of making it available
for sale to the public and/or other employees of Woolworths ought to
be rejected.
8.3
Contrary to Mlotha’s evidence, the video evidence demonstrated
that she
had handed over the item to the replenisher for the purposes
of implementing a price deduction of 30%, and thereafter placed the

item into her shopping basket for her personal purchase.
8.4
Employees who conducted themselves in a manner that had the potential
to breach
the trust relationship between the employee and the
employer left themselves exposed to a peril of corrective measures
being taken
against them. In this case, Mlotha had deliberately acted
in a manner that resulted in Woolworths making a loss of R36.00 and
further
that she had benefited from her dishonest conduct.
8.5
Mlotha’s refusal to accept responsibility for her conduct
contributed
to the break down in the trust relationship between her
and Woolworths, and further that it was indicative of the absence of
remorse
on her part.
Grounds
of review:
[9]
In seeking to have the Commissioner’s award reviewed and set
aside,
it was submitted on behalf of Mlotha that;
9.1
The Commissioner had committed an error in concluding that the
procedural fairness
of the dismissal was not an issue for
determination owing to its omission in the referral form. The
procedural fairness of the
dismissal was at issue and further that
its omission for the Commissioner’s considerations culminated
in the breach to her
right to a fair trial of issues and therefore
constituted a reviewable irregularity.
9.2
Aligned to the allegation that there was no fair trial of issues, it
was submitted
that Mlotha was denied an opportunity to cross-examine
a witness
viz
Mr Vincent Smith who failed to make an
appearance at the disciplinary hearing.
9.3
The charge preferred against Mlotha was sustained through hearsay
evidence in
view of Smith’s absence from the disciplinary
hearing, and the Commissioner placed reliance on the statement of
Smith and
unduly took into account hearsay evidence.
9.4
The Commissioner failed to take into account that the transaction in
question
was approved by Woolworths, making the dismissal on account
of the same transaction irregular and unfair.
9.5
In the alternative Mlotha contends that the dismissal was an
inappropriate sanction
due to the failure of Woolworths to adduce
evidence at the arbitration proceedings that continued employment was
intolerable and/or
that there was a breach of trust. In the end,
Mlotha contends that dismissal was too harsh a sanction.
[10]
Woolworths in opposing the review application contends that an
analysis of the award reveals
that the Commissioner;
a)
appreciated the nature of the enquiry before her, which was
whether
Mlotha’s dismissal was substantively fair.
b)
committed no material misdirection as regards her understanding
of
the evidence, and
c)
arrived at a reasonable decision
The
test on review and evaluation:
[11]
Central to
the determination of whether an arbitration award is reviewable is
whether
the
decision arrived at by the Commissioner is one that a reasonable
Commissioner could not reach in the light of the material placed

before him or her
[1]
.
An award would meet the requirement of reasonableness if there are
reasons supporting it
[2]
. It is
further trite that awards should not be easily interfered with,
unless the decision arrived at by the Commissioner was entirely

disconnected with the evidence, or is unsupported by any evidence
and/or involves speculation on the part of the commissioner
[3]
.
[12]
Flowing
from
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[4]
,
it is
not sufficient to rely solely on the allegation that there was a
gross irregularity in the conduct of the arbitration proceedings.

More is required in that the applicant seeking a review must
establish that the ultimate result was unreasonable, in the sense

that  the decision arrived at by the Commissioner is one that
falls outside the band of decisions to which a reasonable
decision-maker
could come on the available material.
[13]
Thus, the question remains whether despite the Commissioner’s
reasoning, it can be
said that the result is in any event capable of
justification in the light of the material placed before the
Commissioner. Allegations
that the Commissioner committed material
errors of fact, or placed little or too much weight and relevance to
particular facts,
or failed to have regard to particular facts, are
not in themselves sufficient to sustain a review, unless it is
demonstrable that
the errors complained of rendered the final outcome
unreasonable.
[14]
It has
further been restated that in determining whether the Commissioner’s
award is reviewable, the substantive fairness
of the applicant’s
dismissal ought to be looked at, and regard must be had to what the
essence of the charges proffered against
the applicant entailed, and
which rules or policies are alleged to have been breached
[5]
.
[15]
In this case, and as evident from the record, Woolworths had rules,
policies and procedures
in place in regards to reserving items for
customers. These were elaborated upon by Scott in his evidence before
the Commissioner
which Mlotha could not dispute. Her only contention
was that these policies or rules were only applicable in the clothing
department,
which contention was not or could not be substantiated.
[16]
It was apparent from the formulation of those policies and rules that
they were applicable
to all the departments in Woolworths. They were
well-known; were reasonable; and were put in place for operational
reasons, which
included setting of high standards of integrity and
honesty, in pursuance of customer service. Mlotha had conceded at the
arbitration
proceedings that she was fully aware of the consequences
of breach of these policies.
[17]
From the evidence, there is something that does not add up with
Mlotha’s defences.
She did not deny that she had indeed removed
the pack from the shelves and taken it to the cooler. The first issue
is that the
contact details of the customer were not placed on the
item contrary to standing procedures. As to the reason Mlotha would
have
secured those details from the customer and however placed them
in her personal handbag is unknown nor explained. On that score

alone, there was a clear breach of policies.
[18]
A second consideration is that there was no evidence that this
customer was called before
the item could be retrieved from the
cooler storage. When confronted, Mlotha did not have the details of
the customer, and it was
only after the fact that she had produced
them. Even then, on the evidence of Jardine on behalf of Woolworths,
the alleged customer
could not be reached on the contact details
provided by Mlotha.
[19]
Despite the fact that the alleged customer undertook to collect the
item at 13h30, Mlotha
did not call her prior to removing the item
from the cooler storage, and again contrary to standing policies. Her
explanation for
not calling the customer is clearly unconvincing. If
Woolworths has a policy that customers must be contacted to remind
them of
their reservations, I fail to appreciate the reason Mlotha
would suddenly be concerned with saving telephone costs.
[20]
Mlotha had then decided to retrieve the beef pack from the cooler
storage. There is a dispute
as to whether she had placed it back on
the sales shelves or not. Her version is that having retrieved the
pack, she then gave
it to the replenisher and told him that it was
due for a markdown. She also confirmed that she did not place the
pack back on the
shelves, but contended that the replenisher had
affixed a markdown sticker on it and placed it on the shelves, from
which she took
and proceeded to the tills.
[21]
Irrespective of the sequence of events, the most probable conclusion
to be reached as the
Commissioner had done, was that having reserved
the meat pack for herself, she had then retrieved it from the cooler
at 14h00 at
the time that she knew items would be marked down, and
proceeded to find the replenisher and told him that the item was due
for
a markdown. The replenisher having duly affixed the mark down
sticker on the item, whether Mlotha had placed the item back on the

sales shelf is immaterial, as she had immediately thereafter,
proceeded to the sales tills to pay for it. The contention made on

behalf of Mlotha that once the item was placed back on the sales
shelf, then anyone could buy it misses the point. Mlotha had clearly

contrary to standing policies and procedures, engineered the
circumstances which enabled her to buy the item at the discounted

price.
[22]
In the
light of the above circumstances, and in line with what was stated in
Goldfields
[6]
,
there
is no basis to conclude that the process that the Commissioner
employed did not give the parties a full opportunity to have
their
say in respect of the dispute. The submissions made on behalf of
Mlotha that the Commissioner did not afford the parties
a fair trial
of issues on the basis that she was denied an opportunity to
cross-examine Mr Vincent Smith of Woolworths as he had
failed to make
an appearance at the disciplinary hearing does not take her case any
further. It is trite that proceedings before
the CCMA are
de
novo
,
and if Mlotha wanted to have Smith cross-examined, nothing prevented
her from having him subpoenaed. Furthermore, it is not known
what
value Smith’s evidence would have added to her case.
[23]
The further submission made on behalf of Mlotha that the Commissioner
did not afford her
a fair trial of the issues as she did not deal
with her allegations of procedural unfairness are equally without
merit. If an allegation
is made in the CCMA referral forms that a
dismissal was procedurally unfair, evidence in that regard needs to
be placed before
the Commissioner. In the absence of such evidence, I
fail to see how it can be said that the Commissioner committed an
irregularity
by not considering the issue.
[24]
Further having had regard to the analysis and conclusions in the
award, I am satisfied
that the Commissioner properly identified and
understood the nature of the dispute she was required to arbitrate,
and dealt with
the substantial merits of the dispute. The
Commissioner gave reasons that supported her decision
and
there is no basis for any conclusion to be reached that her
conclusions were disconnected with the evidence, or unsupported
by
any evidence and/or involved speculation on her part.
[25]
The
Commissioner having had regard to the misconduct in question as
against the rules and policies breached, also had regard to
whether
the sanction of dismissal was appropriate in the circumstances. She
placed emphasis on a trust relationship between an
employer and
employee, and pointed out that Mlotha knowingly took the risks to her
detriment with her conduct. She also had regard
to Mlotha’s
failure to take responsibility for her actions or to show some form
of contrition. In these circumstances, I
fail to appreciate the
reason that it can be said that the Commissioner’s award is
reviewable, where a senior employee, knowingly
breached company rules
related to honesty and integrity, failed to show any form of
contrition, and still pleaded victimhood. Flowing
from Mlotha’s
own conduct, that was sufficient for a conclusion to be made that the
trust relationship could not be restored.
There was no need for
further evidence demonstrating that the trust relationship was broken
down
[7]
.  In the end, it
ought to be concluded that the decision arrived at by the
Commissioner in the light of the material placed
before her, is a
decision that falls within a band of reasonableness, and it follows
that the review application should be dismissed.
[26]
I have further had regard to the requirements of law and fairness,
and accordingly hold
the view that a costs order is not warranted in
this case.
[27]
In conclusion, it needs to be mentioned that upon judgment of this
matter being reserved
on 17 October 2018, the Court’s
file which was despatched to Johannesburg via courier never found its
way to my
chambers. Despite a search and enquiries by the Office of
the Registrar with the appointed courier service provider, the file
could
not be found. The Court extents its gratitude to the Office of
the Registrar and the parties in this matter in ensuring that a
duplicate file was reconstructed, and further apologises to the
parties for the delay in the delivery of this judgment.
Order:
[28]
In the premises, the following order is made;
1.
The applicant’s application to review and set aside the

arbitration award issued by the second respondent under case number
WECT 14595-16 dated 10 February 2017 is dismissed.
2.
There is no order as to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
Appearances:
For
the Applicant:                              M

Ntloko of M.P Ntloko Attorneys
For
the Third Respondent:                 E

Geldenhuys of Macgregor and Erasmus Attorneys
[1]
Sidumo
& another v Rustenburg Platinum Mines Ltd & others
2008
(2) SA 24
(CC) at para 110
[2]
Duncanmec
(Pty) Limited v Gaylard NO and Others
[2018] ZACC 29
;
2018 (11) BCLR 1335
(CC);
[2018] 12 BLLR 1137
(CC);
2018 (6) SA 335
(CC); (2018) 39 ILJ 2633 (CC) at para 43
[3]
Herholdt
v Nedbank Ltd (Congress of SA Trade Unions as Amicus Curiae)
(2013)
34 ILJ 2795 (SCA) at 2802 para 13;
DRS
Dietrich, Voigt & MIA v Bennet CM N.O and Others
(CA14/2016)
[2019] ZALAC 2
(27 February 2019)
[4]
[2014]
1 BLLR 20
(LAC),
[5]
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
[6]
At
para 20, where it was stated that;
“
Failing
to consider a gross irregularity in the above context would mean
that an award is open to be set aside where an arbitrator
(i) fails
to mention a material fact in his award; or (ii) fails to deal in
his/her award in some way with an issue which has
some material
bearing on the issue in dispute; and/or (iii) commits an error in
respect of the evaluation or considerations of
facts presented at
the arbitration. The questions to ask are these: (i) In terms of his
or her duty to deal with the matter with
the minimum of legal
formalities, did the process that the arbitrator employed give the
parties a full opportunity to have their
say in respect of the
dispute? (ii) Did the arbitrator identify the dispute he was
required to arbitrate (this may in certain
cases only become clear
after both parties have led their evidence)? (iii) Did the
arbitrator understand the nature of the dispute
he or she was
required to arbitrate? (iv) Did he or she deal with the substantial
merits of the dispute? And (v) is the arbitrator’s
decision
one that another decision-maker could reasonably have arrived at
based on the evidence?”
[7]
See
Impala
Platinum Ltd v Jansen and others
[2017] 4 BLLR 325
(LAC) at para 15, where it was held that;
“
Also
in
Absa Bank Limited v Naidu
and others, it was stated that
“there are varying degrees of dishonesty and, therefore, each
case is to be determined on
the basis of its own facts on whether a
decision to dismiss an offending employee is a reasonable one.
Generally, however, a
sanction of dismissal is justifiable and,
indeed, warranted where dishonesty involved is of a gross nature.”
This signifies
that the nature of the misconduct may well determine
the fairness of the sanction. It must therefore be implied from the
gravity
of the misconduct that the trust relationship had broken
down and that dismissal is the appropriate sanction.”