IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN NOT
REPORTABLE
CASE NO D196/01
DATE HEARD: 27/02/03
DATE DELIVERED: 27/02/03
In the matter between:
IRIS NGOBESE AND FOUR OTHERS Applicants
and
PHILIP Van Zyl AND OTHERS Respondents
JUDGMENT ON DELIVERED BY THE HONOURABLE MS JUSTICE PILLAY
ON 27 FEBRUARY 2003
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT 27 FEBRUARY 2003
PILLAY J
[1] This is an application to review and set aside the award of
the first respondent Commissioner. The Commissioner
confirmed the dismissal of the applicants. The applicants
had been charged with, firstly, the failure to control stock
losses at under 2%, as per the company norm, (the losses
amounted to 16,25%) and secondly, the failure to comply
with agreed stock loss action planned.
[2] I do not intend to deal with all the grounds of review that the
applicant raises. The first ground of review is that the
Commissioner committed a gross irregularity by holding that
the stock loss norm of 2% was agreed to between the
respondent and two trade unions. Whatever the
Commissioner's comments were about the agreement
between the respondent and two trade unions, the material
aspect of that evidence is that the norm of 2% was accepted
as being that of the respondent's standard for compliance.
[3] The further ground of review relating to membership of the
applicants to certain trade unions was irrelevant to the issues
in dispute before the Commissioner.
[4] The next ground of review was that the Commissioner
committed a gross irregularity in failing to appreciate that
the cause of the shrinkage was beyond the applicants'
control, that the applicants were overworked and that there
were insufficient employees at the branch.
[5] The undisputed fact before the Commissioner was that the
parties had agreed to a stock loss plan. That was the plan
that the applicants had to implement. It was common cause
that the applicants had not implemented that plan, and the
Commissioner was entitled to find as he did.
[6] Be that as it may, even if the Commissioner was wrong in
this regard, his reasons appear on page 22 of the record,
where he states as follows,
"Iris complained about Grobler not
listening to her complaints and not
giving her his support. Much of the
applicants' case was based on this
lack of support. It is, however,
significant to note that Grobler was
also the area manager when the
stock loss was at its lowest level of
approximately 1,33%. Grobler, in any
case, explained that the staff
complement was determined
according to the turnover of a store. A
number of other stores which had a
similar turnover had a similar staff
complement."
[7] Clearly the Commissioner applied his mind to the applicants'
complaints and defence. He obviously rejected it and
preferred the evidence of Mr Grobler. From Mr Grobler's
evidence it is manifest that there is an objective norm for the
staffing of stores. The Commissioner was entitled to accept
that evidence and to reject that of the applicants.
[8] The next ground of review is that the Commissioner
committed a gross irregularity in failing to find that the
company was responsible for the stock losses at the branch
because the company's witnesses admitted during the
arbitration that it was the administration which caused the
stock loss.
[9] Here again the evidence before the Commissioner was that
the stock losses had fluctuated as follows: in 1997 the stock
loss amounted to 4,78%; in 1998, 24,10%; during 1999,
1,33%. If the administration was the cause of the stock loss
then it would have persisted over that period. These
statistics clearly indicate that the problem could not have
been one of administration because, if it was, then there
would have been a consistent trend in the stock losses over
those years.
[10] Another ground of review is that the Commissioner
committed a gross irregularity in failing to find that the theft
committed by outsiders was one of the main reasons for the
shrinkage. The Commissioner applied his mind to this
submission, and his reasoning appears as follows,
"Much was made about the lack of
security guards, but again both
Grobler and Stone explained that
there was no correlation between the
number of security guards and the
level of stock loss. It was also
significant to note that not a single
case of shoplifting or grab-and-run had
been reported to the police between
8 February 2000 and 15 March 2000.
The single incident referred to by Iris
could in no way have been responsible
for a loss of more than R150 000-00."
It is implied from this reasoning that the Commissioner did
not accept the submission that outsiders were the main
causes of the shrinkage.
[11] These were the main grounds of review and I do not intend
to deal with any of the others. In any event, they were not
crucial to the Commissioner's decision.
[12] In all the circumstances the application is dismissed with
costs to be paid by the applicants, jointly and severally the
one paying the others to absolved.
_________________
PILLAY, J
APPEARANCES:
FOR THE APPLICANT : MR JAFTA OF JAFTA & CO.
FOR THE RESPONDENT : MR ALEXANDER OF DENEYS
REITZ INC.