Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG CASE NO: J 2748/00
2002
In the matter between
SHOPRITE CHECKERS (PTY) LTD
Applicant
and
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION First Respondent
COMMISSIONER ZLL TSHIQI Second Respondent
Third Respondent
_______________________________________________________
J U D G M E N T
_______________________________________________________
NTSEBEZA AJ: On 13 June 2002 I heard argument from
Ms Araujo, who appeared for the applicant and from
Mr Ramogale, who appeared for the third respondent.
The issue was whether I ought to interfere in an award
made by the second respondent, commissioner Tshiqi,
hereinafter referred to the commissioner, in a dispute between
Shoprite Checkers (Pty) Ltd, trading as Hyperama, (hereinafter
referred to as the employer) and the third respondent, James
Molefe, (hereinafter referred to as the employee).
The employee had been dismissed by the employer after a
disciplinary inquiry held by the employer in which the employee
had been charged for breach of common regulations on
Saturday, 12 June 1999 insofar as it was alleged that he had
been in possession of a firearm without permission from his
manager.
The second charge was that he had grossly misconducted
himself in that on the same Saturday he had fired a shot on the
sales floor whilst stores were trading.
The third allegation was that he had grossly misconducted
himself on the same Saturday, insofar as by being involved in the
two charges mentioned above, he had brought the company's
name into disrepute with customers, tenants and staff.
The matter had been referred to the first respondent
(hereinafter referred to as the CCMA). The arbitration award by
the commissioner was that the dismissal by the employer was
substantively unfair and the commissioner ordered reinstatement
of the employee.
The proceedings before me were an endeavour by the
employer to review the commissioner's award in terms of Section
145 of the Labour Relations Act, no. 66 of 1995 (the Act).
The background to this matter is that Molefe was employed
as a food manager at the employer's store in Kempton Park. He
went into his workplace on 12 June 1999 in order to prepare for
the stock take which was to take place on the following day. On
the evidence of the employer, the employee was aware of
various policies and procedures regarding the carrying of
firearms on its premises. He was also aware of the rules.
Whilst Molefe was in the store, an incident took place as a
consequence of which two shots were fired and, according to the
employer Molefe was in possession of his gun when a shot (or
shots) was (were) discharged out of his firearm.
After having been suspended, Molefe received a
notification to attend a disciplinary inquiry. He was dismissed
consequent upon the findings of the disciplinary inquiry on 21
June 1999. His subsequent appeal against the dismissal
sanction was unsuccessful, hence the referral of his dispute to
the CCMA.
I am being prevailed upon by the applicant to hold that the
commissioner committed misconduct or gross irregularity as
contemplated in Section 145(a)(1)(ii).
Alternatively, I am being asked upon to find that the award
was obtained improperly, as described in Section 145(2)(b) or
that the commissioner's actions are not justifiable in terms of the
reasons given for them and that she accordingly exceeded her
powers as described in Section 145(2)(a)(iii) of the Act.
For the latter proposition I am referred to the case of
Carephone (Pty) Ltd v Marcus NO and Others 1998 19 ILJ 1245
(LAC) and to Shoprite Checkers (pty) Ltd v Ramdaw NO (2001
BLLR 1011 (LAC).)
The main submission is that there is no rational connection
between the commissioner's award and the material/evidence
that was placed before him at the arbitration.
Insofar as the commission found that the employer was
unable to show that the employee knew of its policies with regard
to the carrying of firearms on its premises, Ms Araujo submitted
that in holding that the employee was not aware of the change in
the procedures the commissioner had ignored the inherent
improbabilities of Molefe, being a senior manager, being unaware
of changes to policies and procedures.
In any event, so argued Ms Araujo, the unchallenged
evidence from Ellinas that he always put rules and procedures in
the pigeonholes of managers should have been accepted by the
commissioner. There was a duty on all employees, particularly
senior employees like Molefe, to keep themselves abreast of
changes to rules and procedures and, in the absence of any
contradicting evidence, Ellinas' evidence to the effect that he had
put a copy of the new procedures in each of the managers'
pigeonholes had to be taken into account.
In so far as the commissioner had held that the employee
was unaware of the rules regarding the possession of firearms on
the premises, Ms Araujo argued that that finding was not
substantiated by Molefe's own evidence that the only rules that
he was aware of were those on the notice-board, the old
Hyperama rules. The argument was that even those old
Hyperama rules prohibited the carrying of firearms whilst an the
employee was on duty.
The commissioner seems to have also held the view that
the evidence did not show that the employee had been on duty.
Ms Araujo argued that in so holding, the commissioner
misdirected herself inasmuch as she failed to properly assess and
consider the employee's own version that he did not believe that
he had breached the employer's procedure. His attitude hd been
that the rules and procedures prohibited the carrying of firearms
whilst one was on duty, whereas he was not on duty because if
he had been on duty he would have been paid overtime and
would have been in uniform.
The argument against Molefe's contentions was that he
was on the shop's premises on that day to ensure that his
department was ready for the stock take on the following day.
That evidence, taken together with Ellinas' evidence to the effect
that he was on duty, should lead to the only probable inference
that the employee was on duty on the day in question.
Insofar as the commissioner's finding was to the effect that
there was no evidence to show that Molefe deliberately fired a
shot from his firearm, Ms Araujo's argument was that due regard
must be given to the evidence, particularly Molefe's own
evidence that a shot was fired from his gun when it fell on the
floor, a version that is in direct contradiction to that presented on
his behalf by his representative, one Steyn, who had alleged, in
addressing the commissioner:
"That James pulled out his own firearm to protect himself, as he
pulled it out a shot went off from his firearm."
There had also been the evidence of Ellinas who had
testified that during the incident he had seen both the
employee and the other individual involved in the fracas. They
had guns in their hands.
There was also evidence that at the disciplinary
inquiry the employee had not disputed firing a shot. Besides,
the general tenor of questions that had been put to Ellinas,
suggesting that the employee was acting out of self-defence in
pulling out a handgun, is inconsistent with a finding that there
was no evidence to show that the employee deliberately fired a
shot from his firearm.
The offence for which the employee had been charged was
a serious one, the consequences of which were that customers
and staff were forced to take evasive action and had been at the
risk of being shot. The employee was a senior member of staff
and had allowed himself to be involved in a situation where he
placed the safety of his colleagues and of customers at risk. This
conduct was so grossly unacceptable that the commissioner
should not have hesitated in finding that not only was there
overwhelming evidence against the employee but that the only
appropriate sanction in the circumstances was that meted out at
the disciplinary inquiry - namely dismissal.
On behalf of the employee, Mr Ramogale argued that the
commissioner had correctly found that there was confusion as to
which two sets of rules were applicable, namely the Hyperama
rules or the Shoprite Checkers rules with regard to the carrying of
firearms whilst an employee was on duty.
The one rule held that it was an offence to be in possession
of a firearm whilst one was on duty whilst the other held that it
was an offence to be in possession of firearms whilst one was in
the workplace during working hours.
To the degree that the employer's witnesses were
assuming that the employee was aware of which rules were
applicable, the commissioner had been right in giving the
employee the benefit of the doubt as to whether he was aware of
which rules were applicable, so argued Mr Ramogale.
As far as the firing of the shot was concerned Mr Ramogale
argued that nowhere had it been admitted by the employee that
he had drawn out his firearm. However, Mr Ramogale was not
able to surmount the hurdle presented by the employee's
representative at the hearing, Mr Steyn, aforementioned, who
had submitted on his behalf that the employee had had to draw
his firearm in order to defend himself.
I am quite satisfied on what has been presented to me that
the evidence led before the commissioner was sufficient for it to
have come to a different conclusion. The award cannot be
justified in the light of the evidence. It is reviewable.
It also is not necessary for me to remit the matter to the
CCMA as I have a fairly comprehensive view of all of the
evidence. Even though the record has got a number of
inaudibles, to the extent that the matter was fully argued by both
parties before me, it does not seem to me that any useful
purpose would be served by remitting the matter to the CCMA.
Accordingly, my order is as follows:
1. The award of the commissioner under case number JA71046
which was received by the applicant on 16 May 2000 is reviewed
and set aside.
2. The award of the commissioner is substituted with an order that
the dismissal of the employee, Mr Molefe, was substantively fair.
3. There will be no order as to costs.
________________
DB NTSEBEZA
Acting Judge of the Labour Court of South Africa
Appearance:
For the Applicant: Ms L. Araujo
Instructed by: Perrot, Van Niekerk & Woodhouse Inc
For the Third Respondent: Mr T. Ramogale
Instructed by: COGIWUSA
Date of Hearing: 13 June 2002
Date of Judgment: