THE LABOUR COURT OF SOUTH AFRICA , JOHANNESBURG
Not Reportable
Case No: JR725/23
In the matter between:
SHOPRITE CHECKERS (PTY) LTD Applicant
And
SACCAWU o.b.o. SETLOPA ASHNATH LYDI A
RAMOLOBENG First Respondent
ELIA ROBERT MOKUNGWE N.O. Second Respondent
COMMISSION FOR CONCILIATION, MEDIATION AND
ARBITRATION Third Respondent
Heard: 11 February 2025
Delivered: 11 February 2025
Reasons: 25 February 2025
REASONS FOR ORDER
2
PHEHANE , J
Introduction
[1] This is an opposed application in terms of section 145 of the Labour Relations
Act
1 (LRA) to review and set aside an arbitration award by the second respondent
dated 14 April 2023, in which award the second respondent found the dismissal of
the first respondent from the applicant as substantively unfair and ordered
retrospective reinstatement.
[2] On 11 February 2025, this Court issued an order dismissing the review
application with no order as to costs.
[3] The reasons for the order follow hereunder.
Background
[4] The f irst respondent was dismissed from the employment of the applicant on
3 August 2022 following an internal disciplinary hearing. At the time of her dismissal,
she was employed as a Receiving Clerk and was a shop steward. She had worked
for the applicant for a period of 12 years.
[5] During July 2022, the first respondent was identified in video footage
removing items from a bin in the receiving or waste area at Rivonia Village , a
shopping centre where the applicant is located. It is common cause that the items she removed from the bin were pies, yoghurt, cabbage and carrots, waste products
that had been discarded by the applicant as no longer being fit for consumption.
[6] The charges against the first respondent at the disciplinary hearing were the
following :
‘Serious Misconduct in that:
1 Act 66 of 1995, as amended.
3
1. You have intentionally and deliberately taken waste from C heckers
Rivonia Village.
2. By your actions you have damaged the trust relationship between
yourself and the C ompany [.]
3. Breach of Company Rules[.].’2
[7] The version of the applicant before the second respondent wa s that t he first
respondent breached clause 11 of its Workplace Rules , which read:
‘11. COMPANY AND OTHER GOODS
11.1 Employees shall not consume or attempt to consume any goods
belonging to the C ompany or any other third party ( including but not limited to
supplier representatives, co-employees, customers ) unless such goods have
been purchased in terms of the Company staff buying procedures and/ or the
relevant cancelling procedure for which the employee can produce a valid invoice justifying lawful possession of the goods.
11.2 Employees in departments where the preparation of food is involved
may not taste or sample any food or beverages unless they have the specific
prior permission of management to do so.
11.3 Employees shall not remove or attempt to remove or assist in the
removal of any goods or property belonging to the Company, a supplier or
customer .
11.4 Employees may not, hold, keep or store for any reason whatsoever any
goods at the workplace in a place which is not specifically authorised by
management for that purpose and without management's prior permission.
This includes any goods of the C ompany, a supplier, customer or fellow
employee. ’
3
Grounds of review
[8] The applicant lis ts four grounds of review. The first ground of review is that
the second respondent committed a gross irregularity by failing to undertake a
2 Record, Vol 2 at p 121.
3 Record, Vol 2 at p 153.
4
proper assessment and evaluation of the “ competing” evidence before him and failed
to make a credibility finding. The second round of review is that the second
respondent committed a gross irregularity in finding that the applicant did not
discipline the first respondent in accordance with a “ waste policy ” in circumstances
where the first respondent was not charged premised on a “wa ste policy” but on the
applicant ’s Workplace Rules. The applicant avers that the seco nd respondent
committed an irregularity in criticizing it for not charging the first respondent on a
“waste policy” when no such policy was before the second respondent and did not
feature in the internal disciplinary hearing. The third ground of review is that the
second respondent failed to determine that the employment relationship between the
parties had broken down in circumstances where this was inferred from the nature of
the charge, as this was a serious charge and that the first respondent had put up a
dishonest defence. The fourth ground of review is that the second respondent was
biased towards the first respondent .
[9] In opposing the grounds of review , other than in the main, denying the
allegations by the applicant and stating the opposite, the first respondent contends
that the applicant fail ed to prove the existence of a rule that prohibits employees
from removing waste and therefore, the second respondent found that dismissal was
not the appropriate sanction. Finally, that there was there is nothing that supports the
allegation that the second respondent was biassed.
Analysis
[10] The test to succeed in a review application is tr ite.
4 The applicant must
demonstrate that the decision of the commissioner is one that no reasonable
decision maker could arrive at on the totality of the evidence before him or her .
Where it is alleged, as it is in the present case, that the commissioner committed an
irregularity, the decision is only reviewable where the irregularity has a distorting
effect on the outcome with the result that the outcome is unreasonable.5
4 Sidumo and Another v Rustenburg Platinum Mine Ltd and Others [2007] ZACC 22; [2007] 12 BLLR
1097 (CC).
5 Gold Fields Mining South Africa (Pty) Ltd (Kloof Goldmine) v Commission for Conciliation, Mediation
and Arbitration and others [2013] ZALAC 28; [2014] 1 BLLR 20 (LAC).
5
[11] On the totality of the evidence before the second respondent, the witnesses of
the applicant, namely , Mr. Mdluli, the Store Manager , and Ms . Kekae, the
chairperson of the internal disciplinary hearing, was that there was no rule in the
workplace that prohibited employees from removing waste products from the waste
area. Mr Mdluli stated that he could not recall a rule that prohibit ed staff from takin g
waste6 and confirmed that the first respondent was not aware that she could not
remove waste until the disciplinary proceedings were ins tituted against her. The first
respondent’s evidence was that she was only informed on 28 Jul y 2022, a day
before she was c harged with misconduct, that it is impermissible to remove waste
and this incident was the first time she had removed waste as she was working near
the waste area. Her reason for taking the waste was due to destitution. Ms Kekae
stated that the applicant had a “ waste policy ” but such policy was not before her , and
neither was it before the seco nd respondent during the arbitration proceedings .
[12] Mr. Mdluli and Ms . Kekae were adamant that the waste was the property of
the applicant and therefore, the first respondent breached clause 11 of the
Workplace Rules.
Analysis
[13] The applicant failed to prove the existence of a rule that staff are not permitted
to remove waste for whatever reason, be it health reasons or due to the waste being
the property of the applicant after it had been “scanned out” and removed from its system .
[14] No evidence was placed before the second respondent to the effect that food
that is discarded in the waste area is a ris k to the applicant.
[15] That the applicant failed to prove the existence of a rule prohibiting the
removal of waste is the end of the matter in my view , which renders the dismissal
substantively unfair.
6 Transcribed record at p 15.
6
[16] On the evidence before the second respondent, t he waste ar ea is a receiving
area in the complex which is accessible to employees working in the [shopping]
complex. The first respondent explained that she was destitute and wanted to take
the food that was thrown out by the applicant . She apologised for her conduct and
showed remorse.
[17] In my view, there was no need for the second respondent to make a credibility
finding as he was not confronted with two mutually destructive versions . The
witnesses for the applicant did not prove the existence of a rule. The first
respondent’s evidence was that no such rule existed.
[18] The applicant’s witnesses were at pains to point out that the waste was the
property of the applicant and therefore, the first respondent ought to have known that
she was not permitted to remove the applicant ’s property without permission.
However, this is not the allegation that she was to meet during the disciplinary
hearing.
[19] The allegation was that she intentionally and deliberately took waste from the
applicant and that her actions damaged the trust relationship and breached company
rules. There was no evidence before the seco nd respondent of the damage to the
relationship of trust. The rule she was alleged to have breached is not contained in the charge sheet.
[20] The applicant avers in paragraph 42 of its founding affidavit that the first
respondent’s dismissal “ related to acts of unauthorised consumption and / or
removal of the applicant’s property ”.
7 This was not the charge levelled against the
first respondent.
[21] Considering the provisions of clauses 11.1 to 11.4 of the Workplace Rules, it
is clear that the goods mentioned in these clauses are g oods that are “ fit for
consumption” . Waste discarded by the applicant is not mentioned in these clauses.
This is common cause.
7 p 16.
7
[22] It is also common cause that the waste the first respondent took was “ not fit
for consumption” . Thus, no mutually destructive versions were presented before the
second respondent. The second respondent’s criticism that the applicant dismissed
the first respondent in haste is not far off the mark , in view of the evidence before
him regarding the inconsistent application of discipline for the same offence where
yet another employee (Annie Mant hole) was not dismissed.
[23] Simply labelling a charge serious does not make it seriou s. While it is
appreciated that taking food that is not fit for consumption poses a health risk , there
was no evidence before the second respondent that this conduct breached the relationship of trust. [24] In my view, the second respondent considered the totality of the evidence
before him and he considered the circumstances of the infringement, the
seriousness of the misconduct, the remorse of the first respondent, and that there
was no rule prohibiting employees from taking waste. Therefore, hi s decision falls
within the band of reasonable decisions.
[25] In conclusion, there is nothing in the record to substantiate the allegation of
bias in respect of the second respondent. [26] There is thus no basis for this Court to interfere with the arbitration award.
[1] In view of the foregoing, the order as aforesaid was made.
M. T. M. Phehane
Judge of the Labour Court of South Africa