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[2019] ZALCPE 7
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Alpha Pharm (EC) (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (PR12/16) [2019] ZALCPE 7 (10 April 2019)
in
the labour court of South Africa, PORT ELIZABETH
Not
Reportable
case
no: PR12/16
In
the matter between:
ALPHA
PHARM (EC) (PTY)
LTD Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND
ARBITRATION First
Respondent
COMMISSIONER
AMON NYONDO
N.O.
Second
Respondent
CEPPWAWU
obo BOOYSEN, I
AND
6
OTHERS Third
Respondent
Heard:
19 March 2019
Delivered:
10 April 2019
JUDGMENT
MAHOSI.J
Introduction
[1]
This
is an application brought by the Applicant in terms of section 145
of
the Labour Relations Act (LRA)
[1]
to
review
and set aside the arbitration award issued by the second respondent
(commissioner) acting under the auspices of the first
respondent,
Commission for Conciliation, Mediation and Arbitration (CCMA) under
case no. ECPE – 5077-14 dated 11 December
2015.
[2]
The
third respondent, filed a notice of intention to oppose, however it
took no further steps as it contended that the review application
had
been “deemed withdrawn” in terms of clause 11.2.3 of the
Practice Manual of the Labour Court.
[2]
However, on 28 April 2018, the Court, per Lallie, J ruled to the
contrary. On the day of the hearing of the matter, the third
respondent’s representative appeared in court and submitted
that the third respondent is not opposing the application but
that he
was only present to observe the proceedings. The matter proceeded
unopposed.
Material
background facts
[3]
The Applicant is a distribution enterprise
in the pharmaceutical industry. It had long been plagued by theft of
it’s products,
including scheduled medicines, and suspected
that many of the thefts were perpetrated by its employees. It also
suspected the workings
of a ‘group’ syndicate which other
employees were aware of. Around September 2014,
an
employee, Nathan Kieviets (Kieviets) was caught by police selling
Bioplus belonging to the Applicant and was subsequently dismissed.
Following a visit and an interviewing of the other employees by the
police, Lee-Anne Blignaut (Blignaut), informed her manager,
Bongi
Simon (Simon) of her involvement in the theft of the Bioplus which
Kieviets was found selling. She implicated Kieviets as
playing a
leading role in removing the stolen products from the Applicant’s
premises. She further implicated other employees,
Charne Ownhouse
(Ownhouse), Charlene Deveroux (Deveroux) Ilse Booysen (Booysen) and
Zenette Williams (Williams), whom Blignaut
said she had observed
placing products in baskets and giving them to Kieviets who would
remove these products from the premises.
According to Blignaut, in
addition to being part of the syndicate, Deveroux ran a business of
money lending at the Applicant’s
premises. A practice which was
prohibited in terms of the Applicant’s rules.
[4]
Blignaut described the
modus
operandi
used by herself, Booysen,
Williams, Deveroux and Ownhouse to have products removed without
authorisation from the Applicant’s
premises, which was
essentially to notify Kieviets by SMS the last three digits of the
container in which the stolen goods were
placed. Kieviets would later
remove those goods and arrangements would be made to retrieve the
products from Kieviets outside of
the workplace. She stated that the
syndicate had a WhatsApp group wherein the syndicate communicated
about the thefts.
[5]
Armed with this information, the Applicant
subjected its employees to polygraph tests. Ownhouse refused to
undergo the polygraph
test. Booysen, Williams and another employee
Ruwayda Vaaltyn took the test and were found to be deceptive.
Subsequently, Ownhouse,
Booysen, Deveroux and Williams were charged
with “
participating in the
unauthorized removal of company property
”
and dishonesty. Deveroux was charged with running a business of
lending money to her fellow employees within the Applicant’s
premises. She was found not guilty on the charge of colluding in the
theft, but received a final written warning for money lending.
Ownhouse, Booysen, Williams and Vaaltyn
were
all dismissed on 2 December 2014 after being found guilty of the
offences they were charged with.
[6]
For the sake of clarity, I deal
individually with the cases of each employee hereunder.
Zenette
Williams (Williams)
[7]
Williams was implicated by Blignaut in her
statement as having put company property including toiletries into
containers which would
be removed from the Applicant’s premises
by Kieviets. She also stated that Williams had taken pregnancy shakes
without authorization.
According to Blignaut, Williams had also told
her that she had gone out on a trip with Kieviets and Enoch who was
employed as a
driver, with the stolen goods and that they had removed
the products from the Applicant’s premises. On this day,
according
to Blignaut, Williams had shown her products she wanted to
remove from the premises. At the internal disciplinary enquiry, under
cross-examination, Williams challenged Blignaut’s evidence and
caused an adjournment in the proceedings, she wanted to call
Kieviets
to refute Blignaut’s claims. However, Kieviets never came to
testify as he had already been dismissed. The chairperson
found that
the evidence against Williams was uncontested and issued a sanction
of dismissal against her.
Ilse
Booysen (Booysen)
[8]
Booysen was charged with dishonesty. She
was implicated as being part of the syndicate and Blignault also
stated that on one occasion,
Booysen had placed the stolen products
in containers to be removed by Kieviets. Booysen denied any knowledge
of the workings of
a syndicate or Kieviets for that matter. She was
implicated by Blignaut as being part of the WhatsApp group working
with Kieviets,
which she denied. She also denied having Kieviets’
phone numbers, however under cross-examination, she admitted to
chatting
with him on several occasions but that this was not about
the thefts.
Charne
Ownhouse
[9]
Ownhouse, like the others was charged with
participating in the unauthorised removal of company products without
authorisation,
dishonesty and breach of good faith. She refused to
undergo the polygraph test. She was however implicated in the
Blignaut statement
as having taken part in the unauthorised removal
of company products. She denied her involvement in the thefts but
admitted to
witnessing other employees doing so. She stated
that she knew about the thefts and who the culprits were but did not
come
forward and was not willing to reveal the identities of the
culprits for fear of retribution. She indicated that she was not
aware
of the policy in place within the Applicant that protects
whistle blowers. She didn’t come forward to report the thefts
as
she ‘feared for her life’. She admitted to being
friends with Kieviets but denied having any illegal dealings with him
or Blignaut.
Ruwayda
Vaaltyn
[10]
Vaaltyn was employed as a pharmacist
assistant until her dismissal in 2014. She was charged with
participating in the unauthorised
removal of company property.
Although she was not readily willing to undergo the polygraph test
due to her pregnancy, she did take
the test. She admitted to the
polygraph examiner that she took a schedule 1 tablet without first
seeking permission from the pharmacist
as she suffered from a
migraine and that the pain was unbearable on that particular day. She
admitted that she was aware that she
needed permission from the
pharmacist to consume company products and she had not obtained same.
This incident had occurred some
years prior. She denied having any
involvement in the unauthorised removal of company products.
[11]
Although Blignaut had not implicated
Vaaltyn in the statement as being a part of the syndicate, she stated
at the disciplinary hearing
that she had observed Vaaltyn placing
pills and milk products into a container without authorisation.
According to Blignaut, Vaaltyn
had on the day in question asked her
about which formula would best suit her (Vaaltyn’s) baby, a
claim Vaaltyn denied. This
allegation did not form part of Blignaut’s
initial statement to Simon and only came up at the disciplinary
hearing.
The
Arbitration
[12]
The arbitration was held on 10 and 30
November 2015 and the commissioner issued an award on 11 December
2015.
[13]
It is common cause that Blignaut did not
testify at the arbitration. The arbitrator however decided to admit
her statement as part
of the evidence and to test its evidentiary
weight against the evidence as a whole.
[14]
In support of its case, the Applicant
called Kobus Van Heerden and Anita Freemantle, both polygraph
examiners who conducted the
polygraph tests. Both their testimonies
were to a large extent that Booysen, Williams and Vaaltyn had shown
deception in their
answers, whilst Blignaut came out as being
truthful. Simon, the Operations Manager, testified and relayed the
statement given to
her by Blignaut. She testified that it was the
Applicant’s policy to dismiss employees found guilty of charges
such as those
faced by the dismissed employees. She listed the names
of other employees who had been dismissed in the past for
unauthorized removal
of company products.
[15]
In respect of Vaaltyn, Simon testified that
she was not allowed to consume company products without
authorization. This rule was
in place to ensure that no employees’
life was at risk as the Applicant ran the risk of losing its trading
license, which
could lead to job losses. She further testified that
the Applicant had a zero tolerance approach to unauthorized
consumption of
company products. Her evidence was further that
employees were warned about the shrinkage that the applicant was
experiencing.
[16]
Under cross-examination, when asked whether
Blignaut was part of the group of the dismissed employees, Simon
responded that Blignaut
was not and that she was only connected to
Kieviets. When asked whether she knew that Blignaut was part of the
WhatsApp group involving
the culprits, she was steadfast in saying
that Blignaut worked with Kieviets only and not the group.
[17]
When questioned as to why Blignaut was
sparred of disciplinary charges and dismissal, Simon stated that
Blignaut ‘
did not give the company
time to dismiss her’
. However,
she stated that Blignaut came forward with the information hence she
was not charged or dismissed.
[18]
According to Simon, the dismissed
employees’ conduct had led to a breakdown in the trust
relationship and she was not willing
to work with them.
[19]
Patrick Flood, the chairperson of the
disciplinary hearing testified and stated that Ownhouse did not
challenge the allegations
that Blignaut made against her. He stated
further that Ownhouse’s refusal to undergo the polygraph test
and the charges against
her led to him finding her guilty.
[20]
In respect of Booysen, Flood took into
account Blignaut’s evidence implicating Booysen and the fact
that Booysen could not
explain why she had failed the polygraph test.
These factors led him to impose a sanction of dismissal against
Booysen.
[21]
As for Williams, Flood stated that she too
had been implicated by Blignaut as having taken company products
without authorization
and placing them into containers to be removed
by Kieviets. Furthermore, he took into account Blignaut’s
evidence that Williams
had earlier on confessed to her about having
removed toiletries without authorization. Williams had also gone on a
trip with Kieviets
and Enoch (the driver). According to Flood, the
evidence against Williams was uncontested hence he imposed a sanction
of dismissal.
[22]
The evidence of Flood against Vaaltyn was
that Vaaltyn had admitted to taking a pill without authorization
despite the fact that
she was a pharmacist assistant, which according
to Simon, was a position of trust. Furthermore, Flood stated that he
had taken
into account the evidence of Blignaut against Vaaltyn, in
that she had been asked by Vaaltyn what type of milk formula was
suitable
for her baby and then observed Vaaltyn putting pills and
milk formula in a container.
[23]
Last
to testify for the Applicant was Clive Johnson. His evidence centered
and challenged the claim of inconsistent application
of discipline by
the Applicant as contended by the dismissed employees. He stated that
although Deveroux had been implicated by
Blignaut as running a money
lending business in the Applicant’s premises (she was
lending huge amounts of money and
receiving interest therefrom),
which according to Flood was against company policy and a
contravention of the Usury Act
[3]
,
he nonetheless decided to issue her with a final written warning
instead of a sanction of dismissal.
[24]
All the employees
testified
at the arbitration. Booysen, Williams and Ownhouse essentially denied
each and every allegation made against them by Blignaut,
as they did
in their disciplinary inquiries.
[25]
Booysen denied that she had been part of
the syndicate, that she had sent WhatsApp messages to Kieviets, and
that she had been to
Kieviets’ home to collect stolen company
products. She testified that she did not use her cell phone at work
as they were
not allowed to. She stated that there could have been no
opportunity to use a cellphone as Simon usually walked around the
warehouse
and would have observed such usage. She stated that she
placed products into containers as per the invoices.
[26]
Williams denied Blignaut’s claim that
she had stolen toiletries from the Applicant. Her evidence was that
she had bought the
toiletries on her staff account. She denied having
stolen from the Applicant or that she had observed anyone stealing
from the
Applicant. She denied having gone on a trip with Kieviets
and Enoch and testified that the allegations against her had driven
her
to a point where she did not want to work for the Applicant as
she felt ill-treated, however she had not been willing to resign
and
wanted to wait for the Applicant to dismiss her.
[27]
Kieviets also testified during the
arbitration. His evidence was that he had been framed with the
Bioplus he was caught with. He
stated that Blignaut was the one who
would SMS him the number of the crate that had the stolen goods which
he wanted for his ‘side
business’. He admitted to working
with Blignaut and other employees whom he referred to as ‘the
bad guys’, had
removed the Applicant’s products without
authorisation but that none of the dismissed employees were part of
that syndicate.
He refused to name who the other employees were but
was adamant that none of the dismissed employees had worked with him
in the
thefts. Kieviets refuted Blignaut’s claim that the
dismissed employees would call at his home to collect the stolen
products.
According to his evidence, the vehicles they used to make
deliveries were monitored by surveillance including which streets
they
drove to, therefore it would have been impossible for the
Applicant not to have data of the alleged trips to his home.
[28]
Kieviets admitted to being friends with
Ownhouse, Booysen and Willliams on social media and that they
exchanged messages with them.
The
Award
[29]
In his analysis of the evidence and
arguments, the commissioner noted that Blignaut’s written
statement, implicating the other
employees in the theft, formed the
basis of the Applicant’s case. Blignaut did not testify at the
arbitration proceedings
despite being subpoenaed by the Applicant.
[30]
The commissioner opined that the
Applicant’s failure to secure the testimony of Blignaut was
unexplained and from the reading
of the award, he treated Blignaut’s
statement as hearsay evidence.
[31]
In the view of the commissioner, Ownhouse
could not escape her dismissal on the basis that she had breached her
duty of good faith
towards the Applicant by not reporting the thefts
which caused the Applicant shrinkage. Her contention that she was
afraid of her
life was not sustainable as she had admitted to being
friends with Kieviets and yet ‘feared’ for her life.
Furthermore,
she had failed to prove her innocence. I am of the view
that the commissioner’s reasoning and finding in respect of
Ownhouse
is reasonable, based on the evidence before him. His
confirmation of Ownhouse’s dismissal cannot be faulted. I now
turn to
deal with the remaining employees, viz, Vaaltyn, Williams and
Booysen.
[32]
The commissioner found that Blignaut’s
statement, which formed the basis for the respondent employee’s
dismissal, was
fatally contradicted by Simon. He found that Kieviets
on the other hand corroborated the employees’ version that they
were
not part of the syndicate which caused the Applicant shrinkage.
[33]
The commissioner found Kieviets’
testimony, that the delivery vehicles were under constant
surveillance, in support of the
contention that the alleged stolen
products were never delivered to Kieviets’ home as contended by
Blignaut. Furthermore,
the commissioner noted that although Blignaut
had stated that Williams had mentioned to her that she had gone on a
trip with Kieviets
and Enoch, with stolen company products, the
evidence before him showed that Williams was not on the trip sheet on
that day.
[34]
As regards to Vaaltyn, the commissioner was
of the mind that although she volunteered the confession and admitted
to consuming a
pill without authorisation, she was not without guilt
on this charge. As opposed to Simon and Flood’s view, such
conduct
by Vaaltyn was a show of good faith. However, the
commissioner found that the statement by Blignaut as to Vaaltyn
placing pills
and milk formula in a container without authorisation,
was not sustainable as it could not be proven. He found the evidence
against
Vaaltyn in this respect to be hearsay.
[35]
In assessing the fairness of the sanction
of dismissal against Vaaltyn, the commissioner sought guidance from
item 3 (4) of Schedule
8 of the Code of Good Practice: Dismissal and
found that, given the fact that Vaaltyn was a first offender,
dismissal was not an
appropriate sanction. Another guiding factor
considered by the commissioner was that the Applicant did not serve
the same sanction
to Deveroux, whose misconduct was found
inter
alia
, to be against legislation, but
was only given a final written warning. According to the
commissioner, the same sanction was befitting
to Vaaltyn as the
Applicant could not justify the disparity in dealing with the two
employees.
[36]
To
the extent that the dismissed employees failed the polygraph tests
which to a large extent, informed their dismissals, the commissioner
was of the view that the Applicant bore an evidentiary burden over
and above mere reliance on the polygraph tests, to prove on
a balance
of probabilities, the guilt of the employees. Placing reliance on
DHL
Supply Chain (Pty) Ltd v De Beer NO and Others
[4]
,
the commissioner held that the employees could not be dismissed
merely on the basis that they failed the polygraph tests when
their
guilt was not proven.
[37]
The basis of the arbitrator’s
findings appear in his award as follows:
‘
53.
At the arbitration Bongi’s evidence was to the effect that
“
Lee-Anne was caught with her
hands in the cookie jar. Lee-Anne came forward with information.
Lee-Anne was not part of the group.
She was connected to one person.
She was involved with Nathan Kievits and not a group.”
When Bongi was asked why Lee-Anne was treated differently in that she
was not charged for the theft she confessed to, Bongi replied
that
Lee-Anne was not dismissed; she did not give the company enough time
to dismiss her. Bongi’s evidence was in stark contrast
to the
statement of Lee-Anne Blignaut which had roped in dismissed
applicants. The representative of the respondent did nothing
in
relation to this testimony of Bongi. His re-examination did not
address this apparent reversal.
54.
Nathan Kievits testified that he was working with Lee-Anne to take
stock out of the respondent for his side
orders. He said that the way
using whatsapp with Lee-Anne for this as laid out under his
testimony. Nathan was dismissed from respondent
after the discovery
of his theft of Bioplus. He testified that he was not working in
cahoots with the dismissed applicant. He testified
that the
applicants were not involved in the way that he was with Lee-Anne.
The testimony of Nathan Kieviets and that of Bongi
cemented
a version
that the dismissed applicants
were not working with Lee-Ann Blignaut and Nathan Kieviets in the
perpetration of the unauthorized
removal of company property,
unauthorized possession of property from Alpha Pharm and the seeing
of other people do that. The reason
is that the basis for these
charges was the statement by Lee-Anne Blignaut which was fatally
contradicted by the Operations Manager
Bongi and that contradiction
corroborated Nathan Kieviets. The version of Bongi and Nathan
Kieviets was supported by the Applicants
who denied the alleged
involvement as contained in the statement of Lee-Anne. Lee-Anne was
not there to defend her statement when
it was opposed in the manner
it was by the applicants and Bongi and Nathan’s testimonies
were the final nail in the hearsay
statement of Lee-Anne Blignaut. I
will set forth to unearth the specific differences in the different
cases of the applicants in
relation to their specific individual
charges,
55.
Zenette Williams and Ilse Booysen and Chame Ownhouse where never
found with any unauthorized property and
did not participate in any
such unauthorized removal seeing that this was based on the evidence
of Lee-Anne Blignaut which they
denied. The respondent failed to
prove that the reasons for the dismissal were fair. I conclude that
they were not guilty of charges
1 and 2 which were identical for both
of them. For unauthorized possession of the goods of the employer to
arise, evidence must
be led and it must be sustainable on
probabilities that the employer had lost control of the property in
question and the employee
had by contrast effectively gained control
of the property. No evidence of this sort was brought out against any
of the applicants,
including Ruwayda Vaaltyn and Charne Ownhouse (or
I'd suit specifically below because of the particular circumstances).
The authority
is established by the case
Rainbow
Farms (Pty) Ltd v CCMA
[2011] 5 BLLR
451
(LAC) at para 26 H. In the premise, unauthorized removal or
possession did not arise. In that regard the respondent failed to
prove
that the applicants were guilty of the charges. In the absence
of guilt binding dismissal of Charne Ownhouse (in relation to
unauthorised
removal or possession only), Zenette Williams, Ilse
Booysen and Ruwayda Vaaltyn was substantively unfair. The authority
for this
is the case
First Garment
Rental (Pty) Ltd v CCMA
[2015 11 BLLR
1094
(LAC) par 15 F’.
Grounds
of review
[38]
The basis on which the applicant challenged
the commissioner’s award was that he misdirected himself by
failing to assess
the evidence properly or at all, which led to a
conclusion that no reasonable commissioner would have reached on the
same evidence.
[39]
The commissioner misdirected himself by
failing to assess the evidence and this led him to a conclusion that
no reasonable commissioner
could have reached on the same evidence.
[40]
The
commissioner failed to properly assess the evidence as required in
Head of the
Department
of Education v Mofokeng and Others
[5]
,
which failure had a distorting effect on the outcome and denied the
Applicant a fair trial.
[41]
The commissioner failed to consider the
real issue before him which was whether it was probable for Booysen
and Williams not to
have known about the activities of Kieviets and
failed to appreciate that all the employees implicated were a
‘close-knit’
group. According to the Applicant, the
commissioner ought to have found that the dismissed employees worked
as a ‘group’
or ought to have known about the thefts.
[42]
In respect of Vaaltyn, the Applicant
submitted that the commissioner ought to have found that the sanction
of dismissal was appropriate
viewed against the evidence of Simon and
given the fact that Vaaltyn showed no remorse.
The
test for review
[43]
The
test laid down in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[6]
is
a test for the substantive reasonableness of the outcome or result of
an arbitration award, which is an outcome based enquiry
[7]
,
entailing a stringent test aimed at ensuring that arbitration awards
are not lightly interfered with.
[8]
[44]
In
Bestel
v Astral Operations Ltd and Others
[9]
the
Court stated as follows:
‘
It
is important to emphasise, as is exemplified from
Carephone
,
and in
Schwartz
,
supra,
that
the ultimate principle upon which a review is based is justification
for the decision as opposed to it being considered to
be correct by
the reviewing court; that is whatever this Court might consider to be
a better decision is irrelevant to review proceedings
as opposed to
an appeal. Thus, great care must be taken to ensure that this
distinction, however difficult it is to always maintain,
is
respected.’
[10]
[45]
For
the applicant to succeed with the review application, it must be
established that the commissioner’s decision fell outside
the
bands of reasonableness on all the material that was before the
commissioner, including for the reasons not considered by the
commissioner.
[11]
Analysis
[46]
Arbitration proceedings are by their very
nature
de novo
proceedings, starting on a clean slate. In this case, the main
ingredient of the Applicant’s case was the statement by
Blignaut,
who for unknown reasons did not testify before the
commissioner and who could not be tested under cross-examination. The
Applicant
had a duty to secure Blignaut at the arbitration to support
its case against the dismissed employees. It failed to do so. To cry
foul of not being given a fair trial, at the review stage, is a
fallacy. This aspect however does not render any fatality to this
case as the commissioner decided in his discretion, to accept the
statement and to weigh its probability against the evidence tendered
at arbitration. The evidence before the commissioner did not support
Blignaut’s statement. There was nothing before the commissioner
to support the charges against the employees, i.e. that they were
guilty of stealing from the Applicant and thereby causing shrinkage.
The commissioner’s decision falls within the bounds of
reasonableness and there is no basis to interfere with it on review.
[47]
Furthermore, the Applicant’s reasons
for not charging Blignaut and for the issuing of a sanction of a
final written warning
to Deveroux cannot be sustained. To the extent
that Simon testified that Blignaut was not caught with her hands in
the cookie jar,
the same goes for the dismissed employees. There is
nothing, from the record and the evidence before the commissioner to
prove
that any of them was responsible for the thefts except for
Blignaut’s statement. The Applicant has failed to discharge the
onus of proving the fairness of the dismissal of Vaaltyn, Williams
and Booysen and therefore, the commissioner’s decision
must
stand.
Costs
[48]
Now turning to the issue of costs. This
Court has a wide discretion in awarding costs, guided by the
requirements of law and fairness.
In this matter
I
find that law and fairness will be best served by making no order as
to costs.
[49]
In the circumstances, I make the following
order:
Order
1.
The application to review
is dismissed.
2.
There is no order as to costs.
__________________
D. Mahosi
Judge
of the Labour Court of South Africa
[1]
Act
66 of 1995 as amended.
[2]
April,
2013.
[3]
73
of 1968.
[4]
(2014)
35 ILJ 2379 (LAC).
[5]
[2015]
1 BLLR 50 (LAC); (2015) 36 ILJ 2802 (LAC).
[6]
[2007]
12 BLLR 1097
(CC).
[7]
Ellerine
Holdings Ltd v Commission for Conciliation, Mediation and
Arbitration and others
(2008)
29
ILJ
2899
(LAC) at 2906H-I.
[8]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 100;
Herholdt
v Nedbank Ltd (Congress of South African Trade Unions as amicus
curiae)
[2013] 11 BLLR 1074
(SCA) at para 13.
[9]
[2011] 2 BLLR 129 (LAC)
[10]
Id
fn 5 at para 18.
[11]
Fidelity
Cash Management Services v CCMA and Others
[2008]
3 BLLR 197
(LAC) at para 103.