Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 375/00
2002-11-20
In the matter between
SHOPRITE CHECKERS Applicant
and
CCMA Respondent
_______________________________________________________
J U D G M E N T
_______________________________________________________
LANDMAN J : Shoprite Checkers (Pty) Limited has applied to
review and set aside the award of a commissioner of the CCMA
handed down during February 2002.
Ms Shioma, the employee, attended court yesterday and
I noted that she is present in court this morning. She said
that she came to court because her trade union
representative, Ms Josephine Ledwaba, was unable to attend
court.
The application had been served on her union, the Rule
7(a)(8) notice had also been served by registered post sent on
17 May. No opposition has been filed and Ms Shioma says
that she has not signed any documents regarding this case.
The last document that she signed related to the CCMA
proceedings, she is not sure whether or not they were
affidavits.
In the absence of an explanation as to why there was no
opposition it was necessary to proceed and hear the
application on an unopposed basis.
Ms Shioma was employed as a receiving clerk in Shoprite
Checkers' Louis Trichardt store. A receiving clerk is an
important position within the store and is a position of trust
which also requires the person to be reliable.
The receiving clerk is responsible for ensuring that the
goods received by the store are properly recorded and
checked. In addition to this the receiving clerk must ensure
that when he or she signed invoices reflecting what the
company has received, that they have in fact received those
goods. He or she is also responsible for ensuring that all
goods that leave the store through the receiving department,
are properly accounted for.
On 10 July 2000 the store manager, Mr Van der Walt, was
doing a spot check and he noticed approximately seven apple
boxes in the receiving department. These boxes had been
placed in front of Ms Shioma's desk at the receiving
department earlier for her to perform her duties.
He noticed that the employee of the company that was
collecting the boxes had only two claim forms in hand and this
appeared to be wrong. As a consequence he investigated the
situation and found out that the large number of products in
the boxes were not recorded on any documentation. Had the
products left the store, Checkers would have suffered a loss of
approximately R684.
As a result of this discovery Ms Shioma was issued with a
notice to attend a disciplinary inquiry, the complaint against
her was "serious misconduct in that she did not follow
company return procedures on 10 July, resulting in a potential
loss to the company of R684."
Ms Shioma attended the disciplinary inquiry on 13 July
where she pleaded guilty and admitted her mistake. She was
found guilty and dismissed. An appeal was unsuccessful.
She referred a dispute to the CCMA and the only issue
which was relevant at the ensuing arbitration was whether her
negligent misconduct was sufficient to warrant dismissal.
The commissioner made the following finding in his
award:
"In this case I find the following strong mitigating factors
favourable to the employee.
The employer suffered no financial loss as a result of the
employee's negligent conduct. The employee by pleading
guilty to the charge demonstrated a remorse for the
wrongdoing.
I am also in total agreement with the employee that by the
time she committed this misconduct she was working under
pressure after the dismissal of her co-worker, Ms Khunwana.
She was virtually doing the work of two employees single-
handedly.
My considered opinion is that the employee's circumstances at
the commission of the misconduct falls squarely into the
provision of the code of good practice of the Labour Relations
Act i.e. Schedule 8(3)(5), which provide that when deciding
whether or not to impose a penalty of dismissal the employer
should in addition to the gravity of the misconduct, consider
factors such as employee's circumstances (including length of
service, previous disciplinary record and personal
circumstances) the nature of the job in the circumstances has
been infringement itself.
This provision in my further opinion, implies that the company
should not behave like an armchair critic advisor after the
event. The company should place itself in the position of the
employee who was doing the work of two employees.
The visa versa is not the case, no evidence was led at the
hearing as to what prevented the company to acquire the
services of someone to replace Ms Khunwana. I agree
with Mr ... (inaudible) only called for a corrective progressive
action short of dismissal. An outright dismissal in this case is
completely disproportionate and similar to an act of crushing a
fly with a sledgehammer.
I am also at complete variance with the company's contention
that the employee's conduct resulted in breaching the trust
relationship between her and the company beyond repair,
especially for reasons already mentioned above in the form of
mitigating factors, particularly lack of financial loss to the
company and the fact that the employee was doing the work
of two employees.
I find that the dismissal of Hilda Naletshani Shioma on 24 July
2001 by the employer party was substantively unfair.
I order the employer party to reinstate the employee with full
back pay and all her service benefits. the award comes into
operation as soon as the employee receives it."
The general rule relating to interference by an arbitrator
or a court with the sanction imposed by an employer is well
known. An arbitrator may only intervene if the sanction is
unfair. An arbitrator may therefore only intervene if the
sanction is so disproportional in the circumstances as to
induce a sense of shock.
It is also a fundamental rule that a court or tribunal is not
permitted to award an applicant more relief than the applicant
sees. If one does this, one commits a gross irregularity.
In this matter the union representing Ms Shioma sought
reinstatement without back pay. Notwithstanding this, the
commissioner awarded her reinstatement with back pay and
with all her benefits.
This constitutes a reviewable defect. The award must
be reviewed and set aside on this basis.
The question is as to whether I should make the order
which the commissioner should have made or whether I should
refer it back to the commissioner or to another commissioner.
There is no reason for this matter to be sent back, the
record is complete and I might add that despite my finding
that the award is defective the commissioner conducted the
proceedings in an even handed manner.
The following considerations need to be considered in
judging whether the employer's sanction of dismissal for gross
misconduct, that is gross negligence, is so inappropriate that it
calls for intervention.
1. Ms Shioma was employed as a receiving clerk, a position of
trust and was entirely responsible for all stock which was
dispatched and received through the receiving area.
2. Her gross negligence was only discovered by means of a spot
check. Had the spot check not taken place it is unlikely that it
would have been discovered.
3. Had it not been for the store manager's alertness Checkers
would have suffered financial loss.
4. A counselling session with both receiving clerks, which
includes Ms Shioma, had been held and it was emphasised
during the counselling session that no mistakes in the
receiving area would be tolerated.
5. Checkers has a serious problem regarding shrinkage which
causes it to suffer heavy losses. Having regard to the limited
profit which is made one can understand that an employer
such as Checkers has an interest in combatting shrinkage.
6. Ms Shioma's conduct although not pointing on these facts to
dishonesty, could have contributed to further shrinkage.
Ms Shioma had been employed for approximately 11 years.
7. At the time of her dismissal she was employed as a receiving
clerk.
8. She did not dispute that she had not properly checked the
boxes at her table and she admitted her guilt. This is also
indicative of remorse.
9. Ms Shioma was under pressure due to the fact that one of her
colleagues had left the employment of Checkers and had not
been replaced and that she was effectively doing the work of
two persons. It is true that in the record at one stage when
heavily pressed, she said that she was not under pressure in
doing her job but all the facts which were put to her before and
after show that there was pressure on her.
10. Ms Shioma's conduct had breached the trust relationship
insofar as this refers to her reliability in looking after the goods
of her employer.
11. The evidence presented to the arbitrator was to the effect that
no other position would be suitable for her given the lack of
trust and reliability.
This is not a case of dishonesty or theft but one of
serious negligence with the potential for serious losses which
would be untraceable and irrecoverable.
This sort of gross negligence can of itself lead to
dishonesty as Mr Van der Walt pointed out at page 120 of the
bundle.
Taking all the factors into account I am unable to say
that the employer's sanction warrants interference. It is
proper, I think, to apply the test which this court uses to
examine an award of a commissioner, namely to determine
whether it is justifiable in relation to the material facts which
were placed before the commissioner.
This test, I think, is applicable to the employer's decision
regarding sanction. The question is was the employer's
sanction justifiable. It need not be justified.
I doubt whether I would have come to the same
conclusion, particularly as the employer had worked for 11
years and I would thought that it would have been possible to
transfer her to another position within the store.
However, I must come to the conclusion upon all the
facts which I have set out above, that the employer's sanction
was justifiable and that it was not proper for the commissioner
to have intervened, even had he not committed the gross
irregularity to which I have referred. It also means that this
court cannot interfere with the employer's sanction.
In the premises the award of the second respondent, the
commissioner, dated 15 January 2002 under case
number MP1921/01, is reviewed and set aside and replaced
with an award that the dismissal was fair.
The third respondent, that is the union, is to pay the cost
of this application.
-----