Sneller Verbatim/JduP
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J5079/00
2001-04-10
In the matter between
FOSCHINI GROUP (PTY) LIMITED Applicant
and
CCMA First Respondent
LESANE MELI SHADRACK SESELE Second Respondent
ELINA MOKHALO Third Respondent
________________________________________________________________
J U D G M E N T
Delivered on 10 April 2001
________________________________________________________________
REVELAS, J:
1.This is an application in terms of section 145 of the Labour Relations Act,
66 of 1995 ("the Act"), to review an award reinstating the third
respondent in the applicant's employ. The award was made by the second
respondent ("the arbitrator"), a commissioner appointed by the first
respondent.
2.The third respondent was dismissed on 29 February 2000 following a
disciplinary inquiry into an incident relating to the third respondent's
stabbing of an employee from a nearby store.
The incident occurred on 8 January 2000.
3.The applicant referred her dispute concerning her dismissal to the first
respondent for conciliation, which failed. The matter came before the
arbitrator, who found that the third respondent indeed stabbed an
employee of a nearby store several times, while she lay on the ground.
The arbitrator further found that this conduct " on its own, did not justify
the dismissal" since the stabbing " did not take place on the premises of the
employer", and the victim was not a "colleague" of the third respondent.
4.The arbitrator declined however to reinstate the respondent " because of the
potential to disturb the harmonious relationship among the employees".
5.The application was launched one week outside the 6 week time limit
prescribed in section 145 of the Act. I have read the papers filed in
the condonation application brought by the applicant. The prospects of
success are strong and the delay was rather insignificant. Condonation
is therefore granted.
6.I now return to the merits of the case. The arbitrator accepted the
evidence of the third respondent that the knife with which the victim
was stabbed, had been concealed by the victim in her umbrella, and that
the third respondent had feared for her life. The arbitrator appears to
have accepted this evidence of the third respondent because the victim
herself was not called as a witness. The applicant argues that in
accepting this evidence the arbitrator failed in his duties to assess
the value of the evidence that was properly before him, and the
probabilities where the versions of the parties conflicted.
7.Miss Carelli of the applicant, testified that after the third applicant and
the victim started arguing on the morning in question, the victim had
run to the telephone to call the police. This is consistent with the
third respondent’s own evidence. Miss Carelli was an eyewitness to the
stabbing, and stated that although she did not see where the knife had
stabbing, and stated that although she did not see where the knife had
come from, she first saw the knife in the third respondent’s hand, an
also testified that there was no umbrella anywhere to be seen. There
seems to be no reason given why Miss Carellis’ evidence was ignored.
8.The arbitrator was apparently influenced to accept the third respondent’s
evidence on these matters because Lydia did not testify.
9.It is not clear to me from the reasoning of the award why the arbitrator
held the view that because the offence was not committed on company
premises, it did not warrant dismissal. It appears that he had taken it
into account as a mitigating factor, precluding dismissal, and not as a
factor which precluded any form of discipline.
10.In my view, the fact that the assault did not take place on the
applicant’s premises, is of small significance when considering the
other facts surrounding the assault. There were various other factors
which indicated that the conduct of the second respondent impacted on
the employment relationship and on the business of the applicant.
11.The applicant contends that the following factors were ignored by the
arbitrator:
1.The victim had fallen over after receiving the first stab wound and had
been stabbed by third respondent several more times while she lay on the
ground. The incident occurred five doors away from the entrance door of
the applicant's shop.
2.The incident occurred in Hennenman, a small town in the Free State where,
on the unopposed evidence, everyone knew everyone. It was therefore no
small matter that one shop’s assistants should stab another shop’s
assistant on the pavement.
3.When bypassers tried to stop the incident the third respondent indicated
that she wanted to " kill the dog".
12.Reports were also made to the applicant that if the third respondent were
kept on as a shop assistant the applicant's shop would not be supported
by customers. The third respondent also entered the shop with the same
knife with which she stabbed the victim, still in her hand, in front of
other employees.
13.Employers are most certainly entitled to regard violent conduct such as
demonstrated in this matter, in a most serious light. Coemployees and
customers are entitled to feel safe on an employer’s premises.
14.The aforesaid factors, which appear to have been overlooked by the
arbitrator, are factors which in accordance with the principles laid
down by the Labour Appeal Court in SA Polymer Holdings (Pty) Ltd t/a
Megapipe v Lallie and Others , should not have been overlooked. Labour
Court Digest 1994 (3) Part 4 at 226:
"We agree with the submission that ostensible criminal conduct on the part of an
employee off the employer's premises and not during working hours does not
preclude the employer from assessing such conduct in the context of the actual or
potential effect in the workplace and to the personnel and the property of the
employer. The fact that the conduct is not directed at or against fellow employees
is equally immaterial. Whether such conduct had the effect of destroying or
seriously damaging the relationship of the employer and employee, depends on a
number of factors. These include the nature of the criminal conduct, the nature of
the work or services performed by the employee, the potential effects which the
conduct may have on the employer's business, and in particular its profile in the
eyes of its clients and the public, and the impact which the conduct may have on
the relationship between the employer and the employee, and between the
employee and his co-workers. These are broad outlines and are not intended to be
exhaustive."
15.The arbitrator was required to determine whether the dismissal was for a
fair reason, and not whether, in his view the dismissal was the
appropriate sanction. The offence was very serious and impacted on the
appropriate sanction. The offence was very serious and impacted on the
employment relationship. This much was found by the arbitrator. It is
therefore incomprehensible why the third respondent was compensated by
the second respondent. Where the arbitrator perceived his function as
one of having to determine a fair sanction, he misconceived his powers,
and in doing so exceeded those powers. His decision therefore falls to
be set aside in terms of section 145 of the Act (See: De Beers
Consolidated Mines Ltd v CCMA and Others 2000 (21) ILJ 1051 LAC; County
Fair Foods (Pty) Ltd v CCMA and Others 1999 (20) ILJ 1701 LAC; [1999] 11
BLLR 1117 LAC; Toyota SA Motors (Pty) Ltd v Radebe and Others 2000 (21)
ILJ 340 LAC).
16.In the circumstances the application is granted.
E. Revelas
ON BEHALF OF APPLICANT: MR CHRIS TODD
BOWMAN GILFILLAN INC