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[2020] ZALCJHB 197
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Sebothoma v Commission for Conciliation, Mediation and Arbitration and Others (JR 537/2016) [2020] ZALCJHB 197 (13 May 2020)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case no: JR 537/2016
In the matter between:
KLAAS
SEBOTHOMA
Applicant
and
COMMISSION
FOR CONCILIATION,
MEDIATION
AND ARBITRATION
First
Respondent
THABE
PHALANE N.O
Second
Respondent
CAMBRIDGE
FOODS (MASSMART) (PTY) LTD
Third
Respondent
Enrolled:
6 May 2020
Delivered:
13 May 2020
In
view of the measures implemented as a result of the Covid-19
outbreak, this judgment was handed down electronically by circulation
to the parties' representatives by email. The date and time for
hand-down is deemed to be 09h45 on 13 May 2020.
JUDGMENT
PRINSLOO, J
Introduction
[1]
The Applicant seeks to review and set aside
an arbitration award dated 8 February 2016 and issued under case
number GATW 15065-15
wherein the Second Respondent (the arbitrator)
found the Applicant’s dismissal substantively fair and
dismissed his case.
[2]
The Third Respondent (Respondent) opposed
the application.
[3]
The matter was enrolled for hearing on 6
May 2020. In accordance with the provisions of the ‘Urgent
directive in respect of
access to the Labour Court’ dated 28
April 2020, which is applicable with effect from 4 May 2020 until the
end of the July
2020 recess, the parties agreed that this matter be
disposed of without oral argument. Both parties submitted
supplementary heads
of argument.
[4]
I have considered the papers filed as well
as the written heads of argument submitted.
Material background
facts:
[5]
The Applicant was employed by the
Respondent on 6 June 2011 and at the time of his dismissal (13
November 2015) he was employed
as the store manager at the
Respondent’s Bloed Street store.
[6]
In October 2015, the Applicant was charged
with two counts of misconduct and following a disciplinary hearing,
he was dismissed.
[7]
The Applicant referred an unfair dismissal
dispute to the First Respondent and he challenged the fairness of his
dismissal.
The evidence adduced:
[8]
The issue to be decided by the arbitrator
was whether the Applicant’s dismissal was substantively fair.
Procedural fairness
was not in dispute.
[9]
In order to assess the arbitrator’s
findings, it is necessary to consider the evidence adduced at the
arbitration proceedings
as well as the charges that the Applicant was
found guilty of and dismissed for.
[10]
The Applicant faced two counts of
misconduct namely:
1.
Gross insubordination in that you have not
ensured that the required stock takes for the Bloed Street store have
been conducted
as the schedule and / or as required. You have been
aware that the integrity of the stock take figures are inaccurate and
/ or
fictitious yet you have failed to take corrective action against
the butchery manager and / or escalate the inaccurate stock take
data
to Cambridge Food management. You have failed to participate in the
butchery stock takes when these were conducted by the
Bloed Street
butchery manager. Through this gross insubordination you have
contributed to the financial prejudice suffered by Cambridge
Food
where a shrink of R 127 142,00 has been reported;
2.
Gross dishonesty in that you have allowed
fictitious and / or random stock count figures to be used for the
identified stock item/s,
as reflected in the stock take documents for
the Bloed Street store. You have withheld the fact and / or failed to
actively participate
in the Bloed Street butchery stock take/s which
in turn has negatively influenced the integrity of the Bloed Street
butchery stock
take data and caused a financial shrink of R
127 142,00.’
The Respondent’s
case
[11]
The Respondent’s witness, Mr Klopper,
testified that he is a regional manager and that the Applicant
reported directly to
him. He explained that weekly stock takes are
done in different departments in the business and that relevant to
the Applicant’s
case was the stock take in the butchery at the
Respondent’s Bloed Street store. It was discovered that there
was shrinkage
of R 127 000 in the butchery and that resulted in
an investigation.
[12]
Mr Klopper testified that there was an
instruction that the store manager has to be involved in all the
stock takes in the store.
The store manager is responsible and
accountable for the entire store and as such, he had to be present
with the butchery manager
when the stock take was conducted. It
became apparent that the butchery manager, Mr Johannes Nkoana, did
the stock take for the
butchery without the Applicant’s
involvement.
[13]
Mr Klopper referred to the shrinkage report
for the Bloed Street store and indicated that there was a shrinkage
posted for every
week at an average of R 3000 – R 3500, which
could have been the allowed shrinkage due to losses or waste that are
acceptable
such as blood, bones etc that are not sold. In some weeks,
no stock take was conducted, notwithstanding the fact that there was
an instruction that stock take had to be done weekly. During
September 2015 there was a shrinkage of R 127 000, which drew
the Respondent’s attention as it was exceptionally high.
[14]
He explained the concept of rolling stock
and in short; this happens when there is a variance or shortage after
stock take and a
fictitious number of stock is inserted in the system
to get the same number of stock as the number which the system will
be showing.
Stock gets added to the system (and effectively to the
store) when in fact that stock is not there.
[15]
The shrinkage of R 127 000 was
investigated and it was found that the rolling of stock was the main
cause of the shrinkage
as well as theft of stock, but Mr Klopper made
it clear that theft could not be to the value of R 127 000 for
the relevant
period.
[16]
Mr Klopper explained that the Applicant as
the store manager was responsible and that he had to be accountable
and had to ensure
that stock take was conducted in accordance with
the relevant prescripts.
[17]
In cross-examination the Applicant’s
version was that he had signed the stock take report for the sake of
compliance and that
he had done so after the stock take. He disputed
that there was a rule which required of the store manager to be
present or involved
when the stock take is done. His version was that
he had to sign for the sake of compliance because a stock take was
conducted
and not because he was involved or counted the stock. He
only became involved if there was a variance in the stock.
The Applicant’s
case
[18]
The
Applicant’s version was that the charge of gross
insubordination was misplaced because there was no verbal or written
instruction given to him to perform a specific task on a specific
date which he had failed to carry out. Further, he denied that
he was
aware that the stock take figures were inaccurate and fixed and that
the financial loss of R 127 000 occurred whilst
he was on leave.
[VN1]
In
terms of the Respondent’s standing operating procedures, the
store manager must conduct a weekly stock take in the
butchery, and
in his absence, the regional operations manager will be required to
conduct the stock take. The Applicant’s
version is that he was
absent when the stock take was conducted and that the operations
manager should have conducted the stock
take in his absence, which he
had failed to do. Instead, the operations manager was never
charged for failure to conduct
the stock take and this amounts to
inconsistent application of discipline. He also referred to incidents
at the Randburg branch,
Newgate, Cosmo City and Nelspruit where there
were shortages and variances but where the store managers are still
working for the
Respondent.
[19]
The Applicant’s case was that he was
not guilty of the misconduct he was dismissed for.
[20]
The Applicant testified that he pleaded
guilty because he was the store manager and because of his areas of
responsibility and accountability.
He testified that he did not
understand what it meant to admit guilt and to plead guilty to the
charges and he did so because he
wanted to be a team player.
[21]
The Applicant testified that even if there
was a rule that required of the store manager to conduct weekly stock
takes, such a rule
was not reasonable or practical in the sense that
it was humanly impossible to conduct a weekly stock take.
[22]
In cross-examination the Applicant conceded
that there were a number of stock take reports that he did not sign,
notwithstanding
the fact that it was part of his duties and
responsibilities as a store manager. The Applicant conceded that he
did not perform
his duty as he was expected to do.
[23]
It is evident from the transcript that the
Applicant had great difficulty in answering questions in
cross-examination. It is further
evident that the Applicant had no
facts or reliable knowledge regarding the alleged inconsistency he
had claimed existed at other
stores and he conceded to the fact that
he had no such evidence to place before the arbitrator.
Analysis of the
arbitrator’s findings and the grounds for review
The test on review
[24]
I
have to deal with the grounds for review within the context of the
test that this Court must apply in deciding whether the arbitrator's
decision is reviewable. The test has been set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[1]
as whether
the
decision reached by the commissioner is one that a reasonable
decision maker could not reach.
The
Constitutional Court held that the arbitrator's conclusion must fall
within a range of decisions that a reasonable decision
maker could
make.
[25]
The
Labour Appeal Court (LAC) in
Gold
Fields Mining SA (Pty) Ltd (Kloof Gold Mine) v Commission for
Conciliation, Mediation and Arbitration & Others
[2]
affirmed the test to be applied in review proceedings and held that:
In short: A reviewing
court must ascertain whether the arbitrator considered the
principal issue before him/her; evaluated
the facts presented at the
hearing and came to a conclusion that is reasonable.
[26]
The review Court must consider the totality
of the evidence and then decide whether the decision made by the
arbitrator is one that
a reasonable decision maker could make based
on the facts placed before him / her.
[27]
The review test is a stringent and
conservative test of reasonableness.
The
Applicant has to show that the arbitrator arrived at an unreasonable
result.
[28]
In
Bestel
v Astral Operations Ltd and Others
[3]
the LAC considered the limited scope possessed by this Court to
review an arbitration award and accepted that an arbitrator’s
finding will be unreasonable if the finding is unsupported by any
evidence, if it is based on speculation by the arbitrator, if
it is
disconnected from the evidence, if it is supported by evidence that
is insufficiently reasonable to justify the decision
or if it was
made in ignorance of evidence that was not contradicted. The
LAC held 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.’
[29]
It is within this context that the
application for review is to be considered.
The arbitrator’s
findings on substantive fairness
[30]
In his analysis of the evidence, the
arbitrator referred to Item 7 of the Code of Good Practice and the
provision that in determining
the fairness of a dismissal,
consideration should be given to the question whether or not the
employee contravened a rule or standard
regulating conduct and if the
rule or standard was contravened, whether the employee was aware of
the rule or standard and whether
the rule or standard had been
consistently applied and ultimately, whether dismissal was an
appropriate sanction.
[31]
The arbitrator considered the fact that the
Applicant pleaded guilty on the basis that he was responsible for the
store as the store
manager and according to the arbitrator, this
accords with the Respondent’s case that the Applicant was
ultimately responsible
for the loss and the shrinkage at the store
where he was the store manager.
[32]
The arbitrator held that the Applicant’s
plea presented an indefensible submission for him when he conceded
that he was responsible
but not guilty.
[33]
The arbitrator found that on the facts
before him, the Applicant admitted that there were stock takes in
which he had to participate,
he was aware of the fact that he had to
participate in those stock takes because he would sign the stock take
reports after the
fact. The arbitrator accepted that the Respondent
established that there was a rule in place that required of the
Applicant to
conduct a stock take, that the Applicant contravened the
rule and that there was indeed a fair reason to dismiss him.
[34]
The arbitrator found the Respondent’s
dismissal substantively fair.
Grounds for review
[35]
The Applicant’s main ground for
review is that the arbitrator had been called to decide three issues
and he had committed
a gross irregularity in that he had failed to
deal with the issues he was called on to decide.
[36]
The three points that the arbitrator was
called to decide were whether the Applicant had breached a rule, the
issue of inconsistency
and the harshness of the sanction. The
Applicant’s case is that the arbitrator failed to deal with the
latter two issues.
[37]
I will consider the issues raised in turn.
Did the Applicant
breach a company rule
[38]
The Applicant’s case is that taking
into account the charge of misconduct and the evidence presented, a
reasonable decision
maker would not have concluded that the
Respondent had proved its case on a balance of probabilities. This is
so because the Applicant’s
case was that he was on leave when
the stock take was done and thus he could not have failed to do what
the Respondent required
him to do. His complaint is that the
arbitrator failed to consider the evidence and it was held against
him that he was unable
to produce a leave form. The arbitrator’s
findings are unreasonable.
[39]
In my view there is no merit in this ground
for review.
[40]
The first difficulty in the Applicant’s
case is the fact that he had pleaded guilty to the charges in his
internal disciplinary
hearing. The arbitrator considered this fact
and the Applicant’s own evidence that he pleaded guilty because
as the store
manager he was responsible for the store. The arbitrator
found that the Applicant could not in the same breath accepted that
he
was responsible for the store and yet that he was not guilty.
[41]
The second difficulty is the wording of the
charge and the Applicant’s admissions which he had made during
the arbitration
proceedings. The gist of the charge levelled against
the Applicant was that he had failed to ensure that the required
stock takes
for the Bloed Street store have been conducted as
required and that he had failed to participate in the butchery stock
takes when
these were conducted by the butchery manager. As a result,
the Applicant contributed to the financial prejudice suffered by
Respondent
in that a shrinkage of R 127 142,00 has been
reported.
[42]
The Respondent’s version was that
stock take had to be done weekly and that the store manager was
required to be involved
in it. On the Applicant’s own version,
he was not involved in the stock take and it was common cause that
the stock take
was not done weekly, as per the Respondent’s
business requirement. It is evident that during the arbitration
proceedings,
the Applicant admitted to the fact that he as the store
manager was responsible in the event that something went wrong in his
store,
that he failed to sign certain stock take sheets and that he
had signed others after the fact just for the sake of compliance.
[43]
The Respondent’s evidence was that
the main cause of the shrinkage was the rolling of stock and that
this happened because
there was no consistency in stock takes,
because the store manager not being present and involved with stock
take, as was required,
and because he was not taking responsibility
to ensure that the stock take was conducted in the right manner and
in accordance
with the company’s rules.
[44]
The Applicant seeks to attach great
significance to dates he was allegedly on leave and he wants to
exonerate himself from any wrongdoing
because he was on leave on a
specific date when a stock take was done. A perusal of the charge the
Applicant was found guilty on,
showed that it was not limited to a
specific date, but related to the fact that the Applicant failed to
ensure compliance when
stock takes were conducted.
[45]
Considering the facts holistically, the
Applicant’s focus on a specific date that he was allegedly on
leave, is misplaced.
The evidence showed that the Applicant as the
store manager was responsible to ensure compliance with the
Respondent’s procedures
and his failure to do so over time,
resulted in shrinkage. He adopted a myopic view in persisting that it
related to a single stock
take event, when he was allegedly not
present and could therefore not be in the wrong.
[46]
Considering the facts and the evidence
placed before the arbitrator, I am not convinced that the
arbitrator’s findings that
there was a rule in place and that
the Applicant broke the rule by not participating in stock take and
that the Respondent established
a fair reason for dismissal, are
unreasonable.
Inconsistency
[47]
The Applicant’s case is that he had
presented evidence on the issue of inconsistency and that the
arbitrator’s conclusion
that he had presented hearsay evidence
is one that a reasonable decision maker would not have made, taking
into account firstly
that the Respondent did not dispute his version,
but merely required evidence. Secondly, that the issue of
inconsistency would
always be based on what the other party has
learned and the Respondent should have presented, counter evidence
relating to the
issue.
[48]
There is no merit in this ground for review
for a number of reasons.
[49]
The first and most obvious is the legal
principles applicable to the concept of inconsistency.
[50]
In
NUM
obo Botsane v Anglo Platinum Mine (Rustenburg Section)
[4]
the LAC addressed the issue of consistency and held as follows:
‘
Moreover,
as a matter of practice, a party, usually the aggrieved employee, who
believes that a case for inconsistency can be argued,
ought, at the
outset of proceedings, to aver such an issue openly and unequivocally
so that the employer is put on proper and fair
terms to address it. A
generalized allegation is never good enough. A concrete
allegation identifying who the persons are
who were treated
differently and the basis upon which they ought not to have been
treated differently must be set out clearly.
Introducing such an
issue in an ambush-like fashion, or as an afterthought, does not
serve to produce a fair adjudication
process. (See
SACCAWU
& others v Irvin & Johnson Ltd
2002
(3) SA 250 (LAC)
;
(1999)
20
ILJ
2302
(LAC)
at
para
29
; also see
Masubelele
v Public Health & Social Development Bargaining Council &
others
[2013]
ZALCJHB JR2008/1151 which contains an extensive survey of the case
law about the idea of inconsistency in employee
discipline.)
[51]
In
Comed
Health CC v National Bargaining Council for the Chemical Industry and
Others
[5]
the
Court said the following:
‘
It
is trite that the employee who seeks to rely on the parity principle
as an aspect of challenging the fairness of his or her dismissal
has
the duty to put sufficient information before the employer to afford
it (the employer) the opportunity to respond effectively
to the
allegation that it applied discipline in an inconsistent manner. One
of the essential pieces of information which the employee
who alleges
inconsistency has to put forward concerns the details of the
employees who he or she alleges have received preferential
treatment
in relation to the discipline that the employer may have meted out.’
[52]
The position is this: The Applicant had to
raise the issue of inconsistency at the outset of the proceedings and
he had to raise
it in a concrete fashion to afford the Respondent an
opportunity to deal with it. The Applicant failed to do so.
[53]
Secondly, applying the relevant principles
of law relating to inconsistency,
it
is important to determine what exactly the evidence was before the
arbitrator with regard to the issue of inconsistency that
he was
required to determine.
[54]
It
is evident from the
transcribed
record that the issue of inconsistency was not raised with the
Respondent’s witness during his cross-examination
and at the
time when the Respondent presented its case. In fact, the issue of
inconsistency was raised for the first time in the
Applicant’s
testimony. Evidently, the Applicant failed in his duty to put any,
let alone sufficient, information before the
Respondent to afford it
an opportunity to respond to the allegations of inconsistency. On
this basis alone, the Applicant should
not have been allowed to
introduce a challenge to consistency which the Respondent was never
afforded and opportunity to respond
to.
[55]
Be
that as it may, in his evidence, the Applicant’s case was that
there was inconsistency in respect of
Mr
Klopper, and store managers at the Randburg, Newgate, Cosmo City and
Nelspruit branches where there were shortages and variances
but where
the store managers are still employed by the Respondent.
[56]
In
cross-examination on the issue of inconsistency, the following
transpired: The Applicant was asked for evidence to show that
there
was an inconsistent application of discipline and the Nelspruit
branch, where disciplinary action was indeed taken against
the
relevant manager, and he conceded that he did not know and did not
have any evidence.
[57]
In respect of his other allegations
regarding inconsistent application of discipline, the Applicant was
cross-examined as follows,
as is apparent from the relevant parts of
the record:
‘
Mr
Chrystal: Okay have you got any evidence in
any of the other stores that disciplinary action wasn’t
taken
against store management?
Mr Sebothoma:
Yes I don’t know of any, because all I know is the store
managers communicate, so we talk, we’ve
got only 13 stores.
Mr Chrystal:
I need written proof, written documents. I need written documents for
you
to show the commissioner that there has been an inconsistent
application of discipline.
Mr Sebothoma:
I don’t have but can you provide me with the discipline for all
these stores that there was disciplinary
action taken against all
the…
Mr Chrystal:
Okay let’s just carry on. Do you or do you not have any
evidence ….(unclear)
inconsistent application of discipline?
Mr Sebothoma:
Discipline I don’t have.’
[58]
The
fact of the matter is that not only was the Respondent not afforded
an opportunity to respond to the allegations of inconsistency
at the
time that it presented its case, but there was no concrete evidence
in this regard before the arbitrator.
[59]
The
LAC confirmed in
NUM
obo Botsane v Anglo Platinum Mine (Rustenburg Section)
[6]
that
a generalized allegation is never good enough. A concrete
allegation identifying who the persons are who were treated
differently
and the basis upon which they ought not to have been
treated differently must be set out clearly.
In
casu,
t
here
was no substantiating testimony, no supporting documents and a
complete lack of particularity.
[60]
The
Applicant had the evidentiary burden to at least prove a
prima
facie
case of inconsistency, which he failed to do. The only reference to
inconsistency before the arbitrator was no more than generalised
allegations, supported by nothing more than knowledge which the
Applicant had obtained because of the fact that ‘store managers
talk’.
[61]
The arbitrator’s conclusion that the
Applicant had no evidence to support his claim for inconsistency and
that what he had
presented was hearsay, is a finding that is
supported by the evidence and is a reasonable one based on the facts
placed before
the arbitrator.
[62]
The Applicant is doing nothing but being
opportunistic to persist with this ground for review in view of his
own failure to present
concrete evidence and to afford the Respondent
a fair opportunity to respond thereto.
Harshness of the
sanction
[63]
In his further supplementary affidavit, the
Applicant submitted that the arbitrator did not deal with an issue he
had been called
upon to decide, namely the harshness of the sanction.
The Applicant made no further averments to support this ground for
review,
apart from an unsubstantiated statement that the arbitrator
failed to consider an issue he was called upon to decide.
[64]
It is evident from the transcript that the
Applicant never called upon the arbitrator to decide the harshness of
his sanction, but
that he insisted that he was not guilty of
misconduct, that the rule was not reasonable and that he should be
reinstated as he
was of the view that the charge levelled against him
was misplaced.
[65]
The Applicant at no point acknowledged
wrongdoing (notwithstanding the admissions he made) for which he
showed remorse and he established
no basis to challenge the harshness
of the sanction. In his review application, he did no more than to
mention in passing that
the arbitrator failed to consider an issue he
was called upon to decide. The record shows otherwise.
[66]
In its opposing papers, the Respondent
submitted that it was common cause before the arbitrator that the
Respondent had suffered
a loss in excess of R 120 000,00, that
he pleaded guilty to a charge that involved dishonesty and that as a
store manager
he was employed in a position of trust, and that based
on that evidence, it was reasonable to find the Applicant’s
dismissal
fair and implied in that, was that the sanction was fair.
[67]
The Applicant did not file a replying
affidavit to dispute the Respondent’s averments.
[68]
In my view, there is no merit in this
ground for review. It amounts to no more than an unsubstantiated
ground for review that is
not supported by the evidence or any
averments in the Applicant’s affidavit.
Conclusion
[69]
I have to consider the grounds for review
within the context of the test that this Court must apply in deciding
whether the arbitrator's
decision is reviewable. The ultimate
question is whether holistically viewed, the decision taken by the
arbitrator was reasonable
based on the evidence placed before him.
[70]
I must ascertain whether the arbitrator
considered the principal issue before him, evaluated the facts
presented and came to a conclusion
that is reasonable. I have
considered this question after perusal of the transcribed record, the
arbitration award and the grounds
for review raised by the Applicant.
The arbitrator’s findings on the fairness of the Applicant’s
dismissal fall within
a band of reasonableness based on the evidence
that was placed before him.
[71]
The arbitrator’s findings are
reasonable and are not to be interfered with on review.
Costs
[72]
This Court has a wide discretion in respect
of costs. In my view the interest of justice will be best served by
making no order
as to cost.
[73]
In the premises I make the following order:
Order
1.
The application is dismissed;
2.
There is no order as to costs.
______________
Connie Prinsloo
Judge
of the Labour Court of South Africa
Representatives:
Applicant:
Mabaso Attorneys
Third
Respondent:
Mervyn Taback Inc Attorneys
[1]
2007
28 ILJ 2405 (CC) at para 110.
[2]
(2014)
35 ILJ 943 (LAC).
[3]
[2011]
2 BLLR 129
(LAC) at par 18.
[4]
(2014)
35 ILJ 2406 (LAC) at para 39.
[5]
(2012)
33 ILJ 623 (LC) at para 10.
[6]
(2014)
35 ILJ 2406 (LAC).
[VN1]
Judge
kindly check this passage. The part on inaccurate and fixtures