J4428/00-PJ
Sneller Verbatim/PJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J4428/00
2001-06-05
In the matter between
POOLO, RAYMOND Applicant
and
EDGARS CRESTA Respondent
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J U D G M E N T
Delivered on 5 June 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 and set aside an arbitration award
issued by the second respondent, a commissioner appointed by the first
respondent (“the CCMA”).
2.
3.The applicant, a former employee and cashier employed by the of the third
respondent, a retail store, was dismissed on 27 September 1999. The
applicant alleges that his dismissal was unfair and that the third
respondent did not follow a fair procedure in dismissing him.
Consequently he referred the dispute about the dismissal to the CCMA
where the matter was arbitrated by the second respondent (“the
arbitrator”) after conciliation had failed.
4.The charge levelled against the applicant was that he had an overbank of
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JUDGMENT1
exactly R499,99, the value of a cash credit and later when he cashed up
at 16h58 his till balanced exactly. According to the applicant he had
borrowed money from a colleague and that is why the till balanced.
5.The arbitrator found as follows in his award: " Should I find Poolo guilty of this
offence, notwithstanding the fact that he had a small clean disciplinary record and
over four years service with the company, dismissal is an appropriate penalty ."
The second respondent then referred to the matter of CCMA v Kabusa and
Another 1991 [12] ILG40LAC and Anglo American t/as Bossendal Restaurant v
Khumayo 1992 [13] ILG573LAC.
6.The arbitrator was persuaded on a balance of probabilities that the
applicant deliberately and intentionally processed the cash credit in
question for the following reasons set out in his award:
"Poolo [the Applicant] did not dispute that he conducted the transaction, although
he appear to deny that any procedures existed with regard to cash credit
transactions. I accept the company's version that such procedures did exist and
that Poolo should have been aware that these procedures existed.
Thinane in fact confirmed that in such instances there must be a customer who
produces a receipt plus the merchandise and that the customer's details must be
reflected on the docket. As stated previously I do not believe it necessary for the
company formulate to an explicit rule to expect of its employees not to act with
gross dishonesty in the performance of their duties. Paolo was unable to explain
why the docket contained no customer details whatsoever except to say that the
transaction was approved by his superior and he 'could not remember what
happened on that day'. It is common cause that there was no authorisation by his
superior on the docket. Poolo's explanation for an overbank some 15 minutes
superior on the docket. Poolo's explanation for an overbank some 15 minutes
after the transaction took place, is furthermore unconvincing. It is just too
improbable that he would have borrowed the exact amount of R499,99 from his
colleague, Solly's till, when there was no reason to do so. If he had borrowed the
money to hand to the customer who had ostensibly returned the merchandise for
J4428/00-PJ
R499,99 this money would have been given to the customer and not have been in
Paolo's till at the time of the spot audit. In fact that no customer actually existed
for the cash credit was further verified on video footage. I accept Thinanes's
argument that it is conceivably possible to serve two customers at once. With
respect, that is not the issue in this matter. What is highly improbable is for the
customer to arrive at the till, be served, a transaction entered into the cash
registered (sic) and then the customer leave within the space of one minute and
thus not been captured at all on video, even fleetingly.
I have also taken into consideration the fact that the merchandise' stock number
on the transaction was identical to that of merchandise, in a transaction that
occurred earlier in the day. Poolo did not dispute the fact that no two items of
merchandise had the same number or that the merchandise for the transaction in
question was not found. He argued that the merchandise could have been used by
a colleague, but no actual evidence was tendered regarding the whereabouts of
the merchandise which had ostensibly been returned. Having weighed up the
two contradictory versions before me on the balance of probabilities, I accept the
company's version that this was a ghost transaction for which no corresponding
customer nor merchandise existed."
7.Then with reference to the Labour Appeal Court decision in De Beer's
Consolidated Mines Ltd v CCMA (2000) 21 ILJ 1051 (LAC) the arbitrator
held the seriousness of the offence must be measured by the way it
effects business and not the length of service. This view was also
held in the matter of Toyota South Africa Motors (PTY) LTD v Radebe and
Others [1998] 11 BLLR 243 (LA) . Accordingly the applicant's dismissal
was held to be fair.
8.The applicant's representative contends that the arbitrator displayed bias
8.The applicant's representative contends that the arbitrator displayed bias
by standing down the matter from 09:00 to 14:00 in the afternoon at the
third respondents behest. Apparently the third respondent was also some
20 minutes late.
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JUDGMENT3
9.In my view, this submission is without any basis. The mere fact that a
party is accommodated by an arbitrator, is not per se a form of bias.
The applicant argues that the delay was calculated to prejudice the
applicant. There is nothing before me to suggest that this was the
motive of the arbitrator or to victimize him as argued.
10.The applicant has couched its review application in the form of an appeal
which this is not. Reviews are not concerned with the result but the
manner in which the evidence was adduced and whether the conclusion is
reasonably connected to the reasons given for the outcome.
11.In my view, to interfere with the second respondent's findings in this
matter would be tantamount to granting an appeal which an application
for review may not be. Furthermore, I do not believe that even on an
appeal the applicant would have succeeded in persuading a court to
interfere with the findings of the second respondent.
12.In the circumstances the application for review must fail. The application
is dismissed.
________________
E. Revelas