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[2020] ZALCJHB 5
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Ster Kinekor Theatres - A Division of Primedia (Pty) Ltd v Mtiya NO and Others (JR488/15) [2020] ZALCJHB 5 (14 January 2020)
IN THE LABOUR COURT OF SOUTH
AFRICA, JOHANNESBURG
Not
reportable
Case
No: JR 488/15
In
the matter between:
STER
KINEKOR THEATRES – a division of
PRIMEDIA
(PTY) LTD
Applicant
and
L.
MTIYA
N.
O
First Respondent
COMMISSION
FOR CONCILIATION MEDIATION
AND
ARBITRATION
Second
Respondent
ECCAWUSA
obo JACQUELINE MPHONYANA
MOKUWA
Third Respondent
Heard:
22 August 2019
Delivered:
14 January 2020
JUDGMENT
TLHOTLHALEMAJE,
J
Introduction:
[1]
The applicant (Employer) seeks
an order in terms of the provisions of section 145 of the Labour
Relations Act (LRA)
[1]
,
to review and set aside the arbitration award dated 26 February 2015
issued by the first respondent (the Commissioner)
acting under the
auspices of the Commission for Conciliation Mediation and Arbitration
(CCMA). The Commissioner had found that
the dismissal of Ms Mokuwa
(The Employee) was substantively unfair on account of inconsistent
application of the rules and discipline.
The review application is
opposed by the third respondent (ECCAWUSA) acting on behalf of the
Employee.
[2]
The background to this dispute is summarised as follows;
2.1
The Employee was employed as a
Cinema Controller with effect from 1 May 2010, and was
based at the Employer’s premises
in Cradle Stone Mall. On
23 October 2014 the Employee was called to appear before a
disciplinary hearing to answer to
allegations of gross negligence or
gross dishonesty, and breach of standard of the Employer’s
policies and procedures.
[2]
2.2
In her findings dated
11 November 2014, the chairperson of the disciplinary
hearing, Ms Precious Sindi Mthiya
[3]
of Labournet, found the Employee guilty of gross negligence and
breach of the standard policies and procedures, and recommended
the
sanction of a dismissal.
2.3 Aggrieved by the dismissal, the
Employee as assisted by ECCAWUSA referred an unfair dismissal dispute
to the CCMA. When attempts
at conciliation failed on 8 December 2014,
the dispute was then referred for arbitration.
[3]
At the arbitration proceedings before the Commissioner, the Employee
only challenged the substantive fairness of the dismissal,
and in
particular, inconsistency in the application of the rule and
sanction. The allegation against the Employee was that on
28 September 2014, a discrepancy or a shortfall in the
amount of R1000 (One Thousand Rand Only) was identified at a cinema
where she was stationed. It was further alleged that she, together
with another cashier
(Ms Nthabiseng Phakathi),
had
failed to drop the money into the safe within a reasonable period in
direct breach of the Employer’s policies and procedures.
Similar charges were preferred against Phakathi, and separate
disciplinary enquiries were held with Mthiya as chairperson in both.
Phakathi was only issued with a final written warning, on the basis
that she had occupied a junior position of responsibility compared
to
that of the Employee.
[4]
The Employer at the arbitration proceedings relied solely on the
evidence of Mthiya to demonstrate that the dismissal of the
Employee
was substantively fair. Mthiya’s evidence before the
Commissioner was that:
4.1. Phakathi reported to the Employee
and was under her supervision. The procedure as she understood it was
that the Employee as
Controller was responsible for collecting all
the proceeds from the cash points and for dropping it in a safe
within a reasonable
period. A reasonable period was regarded as five
minutes from the time that the cash was recorded into the Employer’s
system.
4.2. Mthiya’s view was that the
conduct of the Employee warranted the sanction of dismissal on the
grounds that she occupied
a managerial position, whilst the position
of Phakathi was subordinate to that of hers. There was further
evidence that the Employee
had instructed Phakathi to return to her
stock taking tasks which had resulted in the latter not having
control over what had transpired
at the cash drop area. The
procedures required that the two of them ought to be together at all
material times until the cash was
safely deposited in the safe.
4.3. Mthiya testified that the onus
was greater on the Employee to follow standard procedures, as she was
in a managerial position,
as compared to a junior employee like
Phakathi. She further testified that the Employee must have been
aware or ought to have been
aware of the standard procedures and the
need to follow them.
4.4. The misconduct according to
Mthiya was aggravated by the fact that the Employee had instructed
Phakathi to go back and resume
her stock-taking tasks, and also by
the fact that the Employer had suffered a financial loss.
4.5. Under cross-examination, it was
put to Mthiya that there was no written policy in regards to the
timing of the cash in the
drop safe. Her contention however was that
there was a common policy and practice that required that the cash be
dropped within
the five minutes’ period. She contended that
this was confirmed by witnesses in the disciplinary hearing.
4.6. It was further put to her that it
was only after the Employee was dismissed that the Employer had
subsequently introduced the
directive that the cash collected from
the cashier should be dropped within a five-minute period. She
disputed that version, and
maintained that the common practice had
always existed.
4.7. Mthiya further conceded that
Phakathi and the Employee were charged with the same or similar
misconduct. She however maintained
that the Employee was treated
differently on the basis that she held a more senior position, and
further that it was the evidence
of Phakathi at the disciplinary
hearing that she was given instructions by the Employee to leave the
drop area and to return to
her stock-taking duties, rending her
helpless in respect of having control.
[5]
The Employee’s evidence before the Commissioner was that;
5.1 On 20 September 2014,
she was the only Controller on the shift, and she was required to
cash drop and spot check Phakathi
at the same time. She had dropped
R1000.00 and then continued with her spot check and stock counting.
Together they had then captured
the stock on the system. She then
took her float of R200.00 from Phakathi and they then went to the
cash office to drop safe. She
had two money bags with her, one
containing the float and the other containing R1000.00, which
Phakathi had to drop. Having entered
the cash office to perform the
drop, she had opened the drop safe shutter and put in the money bag
with R1000.00 in the safe. She
thereafter went to her individual safe
to drop off the money bag with her float.
5.2 She conceded that she took longer
to drop the cash, but testified that this was due to the reason that
she was required to do
a spot check first. She further testified that
there was no rule or policy in regards to how long she should take
the drop and
that it depended on how quick she could do it.
5.3 She further conceded that she had
left the safe key inside the safe, and her explanation was that she
simply forgot about the
keys.
5.4 Under cross-examination, she
confirmed that her duties entailed giving stock and float to
cashiers, securing the assets of the
Employer including its cash, to
brief and supervise front line staff, and to perform the tasks of a
manager in his absence. She
conceded that she occupied a managerial
position as a Controller, and that she was aware of the Employer’s
policies in regards
to cash and stock variance. She also conceded
that she was responsible for making sure that there were no cash
variances.
The
Commissioner’s award:
[6]
The Commissioner in finding that the dismissal of the Employee was
substantively unfair made the following observations and
conclusions:
6.1 Mthiya’s version that the
Employee was dismissed rather than being issued with a final warning
as was the case with Phakathi
ought to be rejected, as both of them
were equally responsible for the handling of cash as per the
procedures, were charged with
the same offence, and further that the
only difference was that the Employee had left the keys inside the
safe for some time on
20 September 2014.
6.2 The Employee was reasonably aware
of the procedures she ought to have followed with regards to stock
variance and banking procedures.
The Stock Variance policy provided
that for Multi Skilled Cashiers, and Controllers/Supervisors, a stock
variance of R50.00 was
dismissible. The policy also had a zero
tolerance for cash variances irrespective of amounts for Controllers
and Supervisors.
6.3 Since in relation to the charges
the variance was above R50.00 for both the Employee and Phakathi, the
Employer’s contention
that the Employee was treated differently
because of her seniority ought to be rejected, as both charges were
equally serious and
dismissible. A different outcome could have been
reached had Phakathi also been dismissed, especially since the
Employer had suffered
a financial loss as a result of the Employee’s
and Phakathi’s conduct.
The
legal framework and evaluation:
[7]
The applicant seeks to have the arbitration award reviewed and set
aside on a variety of grounds including that the Commissioner
failed
to apply the principles applicable to inconsistency by failing to
conduct a proper enquiry, and that she had simply adopted
a singular
approach by stating that both the Employee and Phakathi were charged
with the same misconduct. It was further submitted
that the
Commissioner was fixated on the wording of the charges rather than
placing emphasis on the substance of the misconduct.
[8]
The test on review is trite. An
applicant in review proceedings must establish that the result
arrived at by the Commissioner was
unreasonable or that her decision
is one that falls outside the band of decisions to which a reasonable
decision-maker could come
on the available material. Furthermore, it
is now accepted that the enquiry is whether despite the
Commissioner’s reasoning,
it can be said that the result is
nonetheless capable of justification on the available material. In
the end, material errors of
fact on the part of the Commissioner, as
well as the weight and relevance to be attached to particular facts
or a failure to have
regard to particular facts are not in themselves
sufficient grounds for review. Their effect must be as such as to
render the outcome
unreasonable
[4]
.
[9]
In this case, the Commissioner accepted that the Employee did not
deny the allegations against her, and that the only issue
in
contention was the consistent application of the rules and
discipline. To the extent that the Employee did not take issue with
these findings, it is correct as pointed out on behalf of the
Employer, that the primary issue is whether the Commissioner properly
applied her mind to the principles applicable to inconsistency where
such a defence is raised.
[10]
The principles to be considered
when a plea of inconsistency is raised are fairly trite. At the core
of the parity principle is
that
discipline
should not be arbitrary and unfair
[5]
.
In
Conmed
Health CC v Bargaining Council
for
the
Chemical Industries and
Others
[6]
, it was held that
the
parity rule does not take away the right of the employer to impose
different sanctions on employees who were involved in the
same act of
misconduct; that the differential sanctions do not automatically lead
to the conclusion that the dismissal was unfair;
and that the
fairness of the dismissal has to be determined on the basis of
whether the employer, in imposing differential sanctions,
acted
unfairly. Fairness in this regard involves a determination of whether
there was an objective and fair reason for imposing
different
sanctions for misconduct arising from the same offence
[7]
.
This approach is in line with
Cape
Town City Council v Mashito
[8]
,
where
it was stated that;
“
Fairness,
of course, is a value judgement, to be determined in the
circumstances of the particular case, and for that reason there
is
necessarily room for flexibility, but where two employees have
committed the same wrong, and there is nothing else to distinguish
them, I can see no reason why they ought not generally to be dealt
with in the same way... Without that, employees will inevitably,
and
in my view justifiably, consider themselves to be aggrieved in
consequence of at least a perception of bias.”
[11]
Taking into account that
inconsistency is but one factor amongst others to be taken into
account in determining the fairness of
the dismissal, and that it is
by no means decisive of the outcome of that determination
[9]
,
I am in agreement with the submissions made on behalf of the Employer
that the Commissioner clearly considered the issue of inconsistency
as a stand-alone factor, to the exclusion of everything else. That
approach in my view rendered the arbitration award reviewable.
Once
the Commissioner had accepted as she had done, that indeed the
misconduct in question was committed, and that it was serious,
there
was clearly an obligation on her to consider all the other factors
when determining the appropriateness of the sanction,
including those
identified in
Sidumo
[10]
[12]
In this case, the Employee had conceded that she had occupied a
fairly senior position, which came with immense responsibilities.
She
understood and acknowledged the policies and procedures that were in
place, and further appreciated the reason why these were
put in
place.
[13]
Phakathi on the other hand was the Employee’s subordinate and
given her position and responsibilities, it can be accepted
that the
Employee had an even more burden to apply and comply with the
policies and procedures, particularly when it came to the
handling of
cash, and to ensure that her subordinates did the same Clearly that
on its own was a distinguishing feature, which
the Commissioner
ignored.
[14]
The other consideration is that the allegations in question were not
denied, which implied that the Employee had been negligent,
and had
also breached existing policies and procedures. The Employee had
conceded that she had left the safe key inside the safe,
and clearly
her excuse that this was attributable to mere forgetfulness is not
satisfactory, given the consequences of that conduct.
Notwithstanding
the fact that the Commissioner had acknowledged that the issue of
leaving the safe key in the safe is something
that the Employee had
conceded to, again, she (Commissioner) had ignored that
distinguishing factor.
[15]
The Employer’s Cash and Stock Variance policy provided that any
variance on the part of Controllers and Supervisors was
a dismissible
offence in the light of the policy of zero tolerance for cash
variance. The Commissioner had accepted that the misconduct
in
question,
albeit
committed by both the Employee and Phakathi,
was serious and dismissible particularly since there was a loss of
R1000.00. Once
the Commissioner had accepted these facts, and in
particular, the seriousness of the misconduct, clearly there was an
obligation
to look at the distinguishing factors between the Employee
and the Employer. Other than the issue of seniority, the Employee as
Controller was responsible for the overall cash takings of all
cashiers, cash ups and cash drops. Thus, there was a difference
in
responsibilities. To the extent that the Employee negligently failed
to perform these duties, the mere fact that both she and
Phakathi
were charged with the same offences should not have been the end of
the enquiry.
[16]
It is therefore not correct as argued on behalf of
the Employee, that the Employer did not demonstrate and convince the
Commissioner
that there were differences in the personal
circumstances of the Employee and Phakathi, or of the severity of the
misconduct in
question and/or any other basis. Those differences were
pointed out and the Commissioner had either ignored or rejected them
without
any reasonable justification.
[17]
In summary, the Employer was entitled to impose different penalties
on the Employee and Phakathi despite the fact that they
had committed
the same misconduct.
It was correctly argued on
behalf of the Employer that the Employee’s case in regard to
inconsistency was not based on any
discernible bad faith,
discrimination or other ulterior motives on the part of Mthiya. Thus,
once the distinguishing features between
the Employee and Phakathi
were glaring and undisputed, this provided a fair and objective basis
for differentiation. Thus, any
argument that such differentiation was
arbitrary or capricious was bound to fail. It follows that since the
Commissioner only had
regard to one factor of inconsistency to the
exclusion of other important considerations, it cannot be said that
the decision arrived
at in the light of the available material, falls
within a band of reasonableness. Accordingly, the award ought to be
set aside.
[18]
In the light of the above conclusions and the
material placed before the Court, no purpose would be served by
remitting the matter
back to the CCMA for a re-hearing. It is
therefore my view that a substitution is the most appropriate order
to be made. I have
further had regard to the issue of costs, and I am
of the view that the requirements of law and fairness dictate that no
such an
order should be made. Accordingly, the following order is
made;
Order:
1. The arbitration award dated
26 September 2016 under case number GAJB 26820-14
issued by the First Respondent acting
under the auspices of the
Second Respondent is reviewed, set aside and substituted with the
order that;
‘
The
dismissal of Ms Jacqueline Mphonyana Mokuwa was substantively fair’.
2. There is no as to costs.
___________________
E.
Tlhotlhalemaje
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant: A.J. Postuma of Snyman Attorneys
For
the Third Respondent: Adv. M.M Mafojane, instructed by Nkosi
Shabalala Incorporated
[1]
Act 66 of 1995 (as amended)
[2]
Index to record page 149
“…
Nature of Complaint
:
2.1
Gross negligence or gross
dishonesty
in that on the 20
th
September 2014
you failed to perform your duties with the proper care required in
that the drop was loaded on the system
at about 12:23, and it was
not dropped at a reasonable time after it was registered on the
system. There is 1 money bag missing,
and this caused the company to
suffer a loss of about R1000.00
2.2
breach of standard Ster
Kinekor policy and procedure
in that:
a. You failed to drop the money in
the safe within a reasonable time after it was registered on the
system;
b. Application and the manager should
have been present when the money was dropped into the safe;
c. you left the key of the safe
inside of the safe for some time on 20 September 2014.
…”
[3]
Incorrectly
referred to in the transcribed record as ‘Mathe’.
[4]
Gold
Fields Mining
Gold
Fields MiSA (Pty) Ltd (Kloof Gold Mine) v CCMA & others
[2007] ZALC 66
;
[2014]
1 BLLR 20
(LAC)
[5]
See
NUMSA
v Henred Fruehauf Trailers (Pty) Ltd
(1994)
15
ILJ
1257
(A);
SA Commercial
Catering and Allied Workers Union and Others v Irvin and Johnson Ltd
(1999)
20 ILJ 2302 (LAC) at para 29 where it was held;
‘
... Consistency is simply an
element of disciplinary fairness .... Every employee must be
measured by the same standards ....
Discipline must not be
capricious. It is really the perception of bias inherent in
selective discipline which makes it unfair.
Where, however, one is
faced with a large number of offending employees, the best that one
can hope for is reasonable consistency.
Some inconsistency is the
price to be paid for flexibility, which requires the exercise of a
discretion in each individual case.
If a chairperson conscientiously
and honestly, but incorrectly, exercises his or her discretion in a
particular case in a particular
way, it would not mean that there
was unfairness towards the other employees. It would mean no more
than that his or her assessment
of the gravity of the disciplinary
offence was wrong. It cannot be fair that other employees profit
from that kind of wrong decision.
In a case of a plurality of
dismissals, a wrong decision can only be unfair if it is capricious,
or induced by improper motives
or, worse, by a discriminating
management policy.... Even then I dare say that it might not be so
unfair as to undo the outcome
of other disciplinary enquiries. If,
for example, one member of a group of employees who committed a
serious offence against
the employer is, for improper motives, not
dismissed, it would not, in my view, necessarily mean that the other
miscreants should
escape. ...’
[6]
(2012) 33
ILJ 623 (LC)
[7]
At para 8
[8]
(2000) 21
ILJ 1957 (LAC) 1961 A-F
[9]
B
idserv
Industrial Products (Pty) Ltd v Commission for Conciliation,
Mediation and Arbitration and Others
(2017)
38 ILJ 860 (LAC) at para 31.
[10]
Sidumo and Another v
Rustenburg Platinum Mines Ltd and Others
[2007]
12 BLLR 1097
(CC);
2008 (2) SA 24
(CC) ; (2007) 28 ILJ 2405 (CC)
[2007] ZACC 22
; ;
2008 (2) BCLR 158
(CC), where it was held;
“
78.
In
approaching the dismissal dispute impartially, a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct,
whether additional training and instruction may result in the
employee not repeating the misconduct, the effect of dismissal
on
the employee and his or her long-service record. This is not an
exhaustive list.
79. To sum up. In terms of the
LRA, a commissioner has to determine whether a dismissal is fair or
not. A commissioner is
not given the power to consider afresh what
he or she would do, but simply to decide whether what the employer
did was fair.
In arriving at a decision a commissioner is not
required to defer to the decision of the employer. What is required
is that he
or she must consider all relevant circumstances.”