Sneller Verbatim/MLS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR 1150/01
2002-11-20
In the matter between
STANDERTON BUTCHERY Applicant
and
CCMA Respondent
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J U D G M E N T
_______________________________________________________
LANDMAN J: The Standerton Butchery dismissed Ms Johanna
Tshabalala for stealing meat from the refrigerator. The
dispute was referred to the CCMA. The commissioner who
heard the evidence and handed down an award ordering the
butchery to pay her compensation equivalent to 12 months'
remuneration.
Mr Khimshener appears to have justifiably found that Ms
Tshabalala was guilty of theft or attempted theft. The
commissioner interferes with the sanction and replaces it with
the one described above.
The award consists of four pages, the last sentence on
page 3 is incomplete but the pages are numbered and
therefore it must be accepted that the entire award is being
placed before me.
In any event, the commissioner was served with the
papers and had an opportunity to point out any deficiencies or
omissions had there been any.
The butchery seeks to review and set aside the award.
The grounds on which the review is based are set out in
paragraph 32 of the founding affidavit.
I need not set them out for purposes of this judgment
although I do take them into account.
The commissioner accepts that Ms Tshabalala stole or
attempted to steal the meat. He also accepts that the trust
relationship between the parties had irretrievably broken
down. The commissioner was concerned that the butchery
had not inconsistent in its application of the rule against
theft and a disciplinary penalty for theft.
It is true that Mr Carelse, the proprietor of the butchery,
testified that he had not on a previous occasion when Ms
Tshabalala and others had been involved and had been
accused of stealing knives and meat, dismissed them. But the
butchery had preferred criminal charges against other
employees although they had been discharged by the criminal
court because it had been found that the employer's search of
their bags was unconstitutional.
However, the commissioner overlooked the fact that
Ms Tshabalala was most certainly aware of the consequences
of theft. Indeed, there cannot be an employee who does not
know that theft is morally wrong, that theft is in breach of
contract and that theft can lead to severe disciplinary
consequences.
Her employer's leniency to urge her in the past does not
constitute condonation of her actions. It is indeed an
aggravating factor. There were no grounds to interfere with
the employer's sanction.
The commissioner's award of compensation is therefore
not justifiable having regard to the facts, it constitutes an
unwarranted intervention in the sanction which was
appropriate and fair.
In the circumstances therefore the award is set aside and
replaced with the finding that the dismissal of the applicant in
the arbitration, Ms Tshabalala, was substantively and
procedurally fair. There will be no order as to costs.
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