IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT JOHANNESBURG)
CASE NUMBERS : J2530/98
J2481/98
In the matter between -
TRUWORTHS LIMITED APPLICANT
and
COMMISSIONER, Mr L L RAMABULANA N O 1ST RESPONDENT
S A C C A W U 2ND RESPONDENT
MORIGE, CORRINE 3RD RESPONDENT
JUDGMENT
REVELAS J:
1] This is an application for review in terms of s 145 of the
Labour Relations Act, 66 of 1995 ("the Act"). The applicant
("TRUWORTHS") seeks an order to setting aside an arbitration
award made by Mr LL RAMABULANA ("the second
respondent"), a commissioner of the Commission for
Conciliation Mediation and Arbitration ("the CCMA") on 13 July
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1998 in favour of the third respondent, Ms CORRINE MORIGE.
TRUWORTHS dismissed the third respondent on 19 September
1997 following a disciplinary enquiry where she was found
guilty of the following charges levelled against her:
" Misconduct: Dishonesty in that on 29 July 1997, you
allegedly possessed a bank card note for two rand, when in fact it
should have been processed for R56,99, resulting in a personal
gain of R50,00 as only R4,99 was overbanked"
2] The third respondent challenged the substantive fairness of
her dismissal and declared a dispute with TRUWORTHS, which
she referred to the CCMA, where conciliation failed. The
matter then resulted in the arbitration before the first
respondent.
3] The case advanced by TRUWORTHS at the arbitration hearing
was that the third respondent was dishonest in that she took
R50.00 after processing a transaction of a client, one
Mr GOVENDER, on 29 July 1997. It was common cause that
he returned a garment which he had previously bought for R
56.99. He requested the refund to be credited on his credit
card account. Contrary to what was required, the third
respondent allegedly failed to transfer the whole credit to
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Mr GOVENDER's credit card account. She only transferred
R2.00. The daily cash-up of the till reflected that there was an
excess in the amount of R4.99 only, whereas there should
have been an excess or overpayment of R 54.99 according to
the transaction registered. The third respondent was not able
to account for the missing R50.00. She did not give the
R50.00 to Mr GOVENDER or someone else. The transaction
was authorized by a supervisor. The first respondent argued
that the supervisor should have been disciplined as well.
4] The supervisor was not subjected to any disciplinary process,
since TRUWORTHS did not impart any blame relating to the
transaction to the supervisor. It was submitted on behalf of
TRUWORTHS that the supervisor who authorised the
transaction did so, after having satisfied herself that the price
attached to the garment and the price reflected on the
computer screen were the same.
5] The case for the third respondent was that she registered an
entry of in, R 2.00 on the cash register instead of R56.99.
She testified at the arbitration hearing that she had executed
her responsibilities on the day in question to the best of her
abilities and in accordance with what was expected of her as
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an employee. She denies that there was any misconduct on
her part and denied that she stole R50.00. It was common
cause before the first respondent that the third respondent
was the cashier responsible for the transaction.
6] The first respondent made the following observation in his
award:
" Having perused all the documents submitted and having
listened to both parties' submissions, I have concluded that
Corrine [third respondent] should be held responsible for the
disappearance of R50.00, and partially [ sic ] the transaction which
she concluded on the day in question as indicated above. (my
underlining) However, the very same transaction was authorised
by her supervisor [ sic] the supervisor is obviously reflecting that
she is satisfied with the transaction. However, it was
subsequently discovered that the transaction itself has a lot of
mistakes, in that, instead of crediting the client's account with an
amount of R56,99, only R2.00 was credited"
7] The first respondent rejected the explanation of the
supervisor, who testified at the arbitration hearing that in the
whole of the transaction she only checked a few details and
left the other details for the third respondent’s attention. The
first respondent then concluded that the third respondent's
dismissal was unfair on the basis that TRUWORTHS acted
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inconsistently, by dismissing the third respondent and not
subjecting the supervisor to any form of discipline. The first
respondent ordered the reinstatement of the third respondent.
8] TRUWORTHS argued that the supervisor's role in checking the
credit-card refund was to ensure that the garment was
returned and that the ticket price corresponded with the
amount which appeared on the till screen. It was argued that
the supervisor had fulfilled her duties in that regard, and the
amount appearing on the docket was the purchase price. It
was further argued by TRUWORTHS that it was not the
supervisor's responsibility to " dissect the minutiae of the
docket thereafter".
9] According to TRUWORTHS it was contended that the
supervisor's role was limited, because it had a system of in-
built checks which would detect any non-reconciliation at the
end of the day's trading or thereafter. It was emphasized that
the entry of the R2.00 credit refund and the fact that the
automatic till generated a R54.99 "cash" refund, could only
have been be created by a deliberate act on the part of the
third respondent.
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10] TRUWORTHS further contended that even if the supervisor
was negligent, that it was grossly irregular of the first
respondent to compare her conduct with the conduct of the
third respondent, which was dishonest, and which strongly
suggested an action perpetrated for personal financial gain.
It was also argued that the first respondent failed to take
cognizance of the difference in the job functions and
responsibilities of the third respondent and her supervisor,
and failed further to comprehend the gravity of the third
respondent's conduct.
11] TRUWORTHS was of the view that any misconduct on the part
of the supervisor related to poor work performance, which
could be dealt with by counselling as a disciplinary measure.
In any event, argued TRUWORTHS, the supervisor's conduct
was irrelevant to the issues which the first respondent had to
decide upon.
12] TRUWORTHS raised several new factual matters in its reply to
the third respondent's answering affidavit and the third
respondent received permission from Zondo J to answer to the
replying affidavit of TRUWORTHS. TRUWORTHS then filed a
reply to that document. In addition supplementary heads of
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argument were also filed, all of which added to the prolixity
which marked the cases presented by both parties.
13] The relevant issues in this matter, I believe, can be dealt with
in a manner which involves far less prolixity.
14] The question that I have to decide, is whether or not to
interfere with the award of the first respondent, on the basis
that the first respondent came to a conclusion which is not
justifiable by the reasons given for that conclusion. In other
words, it must be demonstrated that there is no a rational
objective basis for justifying the connection between the
evidencial material which was available to the first respondent
and the conclusion which the first respondent eventually
arrived at. [see Carephone (Pty) Ltd v Marcus N.O and others
1998 (11) BLLR 1093 (LAC), and also 1998 (19) ILJ 1420 (LAC)
and Shoprite Checkers (Pty) Ltd v CCMA and others (1998) 19
ILJ 892]
15] Counsel on behalf of first respondent argued that the first
respondent was entitled to judge the behaviour of the first
respondent, with reference to the standards set by
TRUWORTHS, and to interfere when such standards resulted in
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unfairness to the first respondent. It was argued that
employer inconsistency would render the dismissal unfair.
That is correct. But was there inconsistency?
16] According to the third respondent, her dismissal did not fall
within the range of penalties which a fair, unreasonable
employer would have imposed in similar circumstances, given
the background and history of the case. It was also argued
that the first respondent did indeed take into consideration,
the material evidence relating to the issues before him and
arrived at a fair conclusion.
17] TRUWORTHS is of the view that the first respondent
committed a gross irregularity. It contends that the evidence
presented at the arbitration and the conclusion which the first
respondent were not logically connected to the overall
assessment and impact of the oral evidence and the
documentation, read together. It was argued that the first
respondent reached conclusions which were not capable of
reasonable justification if the factual premises on which they
are based are considered.
18] The following findings of the first respondent are of material
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significance in determining this application for review.
18.1 The first respondent found as a fact that the third
respondent was responsible for the " disappearance" of the
R50.00. The amount of R50.00 was not found in the till, nor
was it given to the customer.
18.2 The first respondent found that the supervisor and the
third respondent were both " involved in a misconduct [ sic]" and
therefore the supervisor should also have been disciplined.
19] In my view the third respondent's conclusion, that the
supervisor should also have been subjected to some form of
discipline, is not supported by logic or fact.
20] The R2.00 entry, as well as the R56.99 cash entry, were on
the probabilities, entered deliberately, and could hardly be
result of a mistake, such as the slip of a finger.
21] The supervisor at best was negligent in not immediately
realizing that the wrong amounts were registered into the till.
In any event there was evidence that errors made, are
invariably detected a day or two later. None of the actions of
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the supervisor were indicative of an intention to gain R50.00
for herself whereas such an intention can, on the probabilities,
be attributed to the third respondent.
22] A perusal of the credit note, a copy of which was attached to
the founding papers, reflects a total R56.99. To the left of the
total amount, it reflects " Bank Card R2.00 " and " Cash
R54,99". On the third respondent's version, the supervisor
omitted to notice that the bank card entry was R2.00 instead
of R56.99. I agree with the contention that it was not a
serious omission and does not amount to " a serious
dereliction of her duties " as found by the first respondent.
The failure by the supervisor, to notice the incorrect bank
card entry, did not entitle the third respondent to
misappropriate an amount of R50.00, which, on the
probabilities, is the only inference that can be drawn.
23] TRUWORTHS found the third respondent to be dishonest and
dismissed her. The supervisor's actions were not dishonest.
Therefore, there was absolutely no basis for the third
respondent’s finding that the supervisor was " involved" in the
same incident of misconduct, and that a failure to discipline
her indicated inconsistency on the part of TRUWORTHS.
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24] The arbitrator himself remarked in his award that:
“I also think that had the supervisor executed her duties
properly, the embarrassing incident could have been avoided and
possibly the dismissal of Corrine. On the other hand, it is my
opinion that, had the employer subjected the supervisor to any
form of discipline I would have been convinced otherwise, and
possibly upheld the dismissal of Corrine.” (My underlining)
25] I am unable to grasp the logic behind this reasoning. On the
one hand the first respondent labels the conduct of the third
respondent as a mere "embarrassing incident", but at the
same time he finds that the third respondents conduct was of
such a nature that it possibly warranted dismissal, were it not
for the omission to discipline the supervisor.
26] The fact that the R50.00 was missing, on the probabilities,
indicate that the third respondent was dishonest. Dishonesty
goes far beyond mere embarrassment. It is the type of
misconduct which would normally warrant dismissal. This
view is supported by the first respondent himself, where he
suggests that he would possibly have upheld the dismissal if
the supervisor was also disciplined.
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27] Since there is no factual basis for a finding that there was
inconsistency on the part of TRUWORTHS in dismissing the
third respondent, there is no basis for a finding that the
dismissal was unfair.
In Standard Bank of South Africa Limited v CCMA and others
(1998) 19 ILJ 903 (LC) Tip AJ observed as follows:
" It is one of the fundamentals of the employment
relationship that an employer should be able to place trust
in the employee. A breach of trust in the form of conduct
involving dishonesty is one that goes to the heart of the
relationship and is destructive of it.
The existence of the duty of an employee to act with
good faith towards his or her employer and to serve
honestly and faithfully is one of long-standing in the
common law. It is regularly and strongly approved by
our courts in relation to the unfair labour practice
jurisdiction under the previous Labour Relations Act,
28 of 1956. It has been no less strongly reaffirmed in
decisions dealing with the current Act."
There is no purpose in remitting the matter to the CCMA for a
hearing afresh, in my view, because I have found on the facts
that were mostly common cause, that the dismissal was not
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unfair.
28] Consequently I make the following order:
1. The arbitration award issued by the first
respondent is set aside.
2. The second and third respondents are to pay the costs
of the application jointly and severally, the one paying
the other to be absolved.
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E REVELAS
On behalf of the Applicant:
Advocate L Halgryn
Instructed by:
Andrew Levy and Associates
On behalf of the 2nd & 3rd Respondents:
Advocate A P J Du Plessis
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Instructed by:
Honey & Partners Inc