REPORTABLE
IN THE LABOUR COURT OF SOUTH AFRICA
SITTING IN DURBAN
CASE NO D1366/02
D1367/02
DATE 2003/08/06
In the matter between:
CAMBRIDGE MEAT Applicant
and
D M Mhlongo First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATIONSecond Respondent
SACCAWUThird Respondent
JUDGMENT DELIVERED BY
THE HONOURABLE MR ACTING JUSTICE GERING
ON 6 AUGUST 2003
ON BEHALF OF APPLICANT:
MR B
MacGREGOR
Deneys Reitz Inc.
ON BEHALF OF 2ND
RESPONDENT:
MR P O JAFTA
Jafta & Co.
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
JUDGMENT 6 AUGUST 2003
GERING AJ
[1] This is a review of an award given by a commissioner of the
CCMA. The award appears in the papers and is six
pages long.
[2] The issue before the commissioner was whether the
dismissal of the employee was substantively fair. The
question of procedural fairness did not arise for
decision.
[3] I will refer to the fourth respondent in the review proceedings
as "the employee", and I will refer to the applicant in
the review proceedings, Cambridge Meat, whose
name, I believe, may have changed since then, as
simply "the company" or "the employer".
[4] The proceedings at the arbitration were given through an
interpreter and the evidence has been typed and the
record of the arbitration proceedings is in the bundle
consisting of about 72 pages.
[5] Unfortunately, in this case, there was no record of the
disciplinary inquiry and we do not even have any
documentation showing the employer's code of
conduct or what exactly was the charge on which at
the disciplinary inquiry he was found guilty and was
dismissed. But it appears from page 5 of the record of
the proceedings as being "unauthorised removal of
company property". I point out it does not state
"unauthorised possession of company property", nor
does it say "theft", although at times parties do tend
to treat these provisions of company codes as being
theft. It is actually wrong to do so. The common law
crime of theft is quite separate and distinct from the
words "unauthorised removal of company property" or
even "unauthorised possession of company property",
and it is confusing and wrong to try to equate the one
with the other.
See Grogan Workplace Law , 6th Ed. page 141,
footnote 28.
[6] After surveying all the evidence, the commissioner states on
page 5 of the award:
"It is clear from the
evidence above that the
company has failed to
discharge the onus that
the dismissal of the
applicant was
substantively fair."
She uses the term "applicant", but it is, in fact, "the
employee".
[7] There are some difficulties in regard to her reasons in coming
to this conclusion but, in dealing with the matter, I
prefer to adopt the approach set out in a judgment of
mine where I quoted from a judgment of the Labour
Appeal Court. The judgment that I refer to is
Rustenburg Platinum v CCMA and Others (2002) 4
BLLR 387 at 392, where I quoted the following from
Shoprite Checkers (Pty) Limited v Ramdaw N.O. and
Others (2001) 9 BLLR 1011 (LAC) at 1043, paragraph
101:
"In my view, it is within
the contemplation of the
dispute resolution system
prescribed by the Act
that there will be
arbitration awards which
are unsatisfactory in
many respects but
nevertheless must be
allowed to stand because
they are not so
unsatisfactory as to fall
foul of the applicable
grounds of review.
Without such
contemplation, the Act's
objective of the
expeditious resolution of
disputes would have no
hope of being achieved.
In my view, the first
respondent's award
cannot be said to be
unjustifiable when regard
is had to all the
circumstances of this
case and the material
that was before him."
[8] My judgment was upheld on appeal in an unreported
judgment of the Labour Appeal Court, case
No JA17/02. The judgment of the Labour Appeal Court
was given on the 23rd May of this year and the appeal
against my own judgment was dismissed.
See now (2003) 7 BLLR 676 (LAC).
[9] In the course of that judgment, the Labour Appeal Court said:
"Counsel on both sides
argued the matter on the
basis that if we found
that the reasons given by
the second respondent
(the second respondent
was the commissioner or
arbitrator) were
unsustainable, but we
were of the view that the
result is correct or
justifiable, we should not
interfere with the award.
I found that the result of
the arbitration is
justifiable. Accordingly,
there is no basis to
interfere with the award
and the appeal must
fail."
See now (2003) 7 BLLR 676 at 687, paragraph [36].
[10] In my view, these considerations apply to this award also.
The arbitrator states in the award, summarising the
evidence of the applicant:
"He stated that he was
dismissed for consuming
company property. In
essence, the evidence of
the employee was that
during the course of the
day, the 20th October
2001, when he had come
to work at about 11.00 in
the morning and come
back after various rounds
as a driver in the
afternoon, he had on two
occasions eaten a
quarter loaf of bread, and
his evidence was they
were given to him with
the authority or
permission of his
superior, one Cobus, and
he consumed them on
the premises. He did not
remove them from the
premises."
[11] I may say in parenthesis that this alone is a basis for saying
there was no unauthorised "removal" of company
property. Unauthorised removal of company property
normally postulates removal from the company
premises.
[12] The employee further explained that he was informed by
Mr James of the company that one could consume two
quarter loaves per shift but as soon as one consumed
the third one, one would have to obtain a slip. The
employee further stated that Wayne (i.e. the person
who gave evidence for the company) was present at
work on the day in question. However, Wayne had not
seen him with the quarter loaf.
[13] Having regard to the following facts, it seems to be that on a
balance of probabilities the evidence clearly shows
that the company, on whom the onus rested of
showing that the dismissal was substantively fair, did
not discharge the onus.
[14] There was no record of the proceedings at the disciplinary
hearing.
[15] There was no record of the code of conduct, other than the
short statement on page 5 which I have already
quoted.
[16] The only witness for the company was one Wayne Barker,
bakery manager of the company. His evidence on all
material points was hearsay, and on some questions
his evidence was simply in response to leading
questions put by the company representative.
[17] Cobus, the person whom the employee said had given him
permission to have the bread, was not called as a
witness. He had, in fact, left the company under a
cloud of suspicion and the evidence of the employee
was that he had been guilty of stealing R400 money
from the company.
[18] The witness James, referred to on page 40 of the transcript,
was not called.
[19] The only evidence that might have tended towards showing
that the employee was guilty was that at the
disciplinary inquiry he had said that he was guilty but
it is clear from the transcript that what he meant by
saying he was guilty did not mean that he was guilty
of breach of the rules or that he was guilty of theft. It
meant that he had consumed the two quarters of
bread which, on his evidence, he had the permission
of Cobus, his superior, to have, and he says this on
page 53 in answers to questions by the commissioner,
"Just ask him does he
understand what guilty
means."
And he replied,
"It may be because I do
not understand English
well. Maybe I pleaded to
something that I do not
understand."
And then he says further,
"The only thing that I
have done is I accepted
or I pleaded - I plead
guilty on the grounds
that I took the quarter
but I understood that I
took it, I was allowed to
do so and then they
dismissed me on those
grounds."
[20] It is clear that he admitted that he had had two quarter
loaves of bread but his evidence, as put to Mr Barker,
on page 18 of the record was as follows:
"See when Mr Mhlongo
gets an opportunity to
testify, he will say he got
permission to consume
the second quarter of
bread from his
immediate superior,
namely one Mr Cobus.
Do you have any
comment on that?"
[21] And on page 40 his evidence was, and he said this several
times in the transcript,
"Mr James told us that we
had to consume two
quarters, not more than
two quarters, because if
we take the third one
that means that now that
will be the stolen one.
You have got a limit of
two quarters per shift."
[22] It seems to me that there is no admissible evidence to
contradict the version of the employee, given on oath
at the arbitration, that he had eaten the two quarters;
that he had done this because he understood he was
entitled to have two quarters and that he had in each
case got the permission of Cobus. Cobus was not
called as a witness and in the hearsay evidence which
was led by the commissioner and should not have
been led, according to this, Cobus had not given
permission. Page 20 of the record:
"What did Cobus say to
you?"
[23] I do not think it was proper for the commissioner to put to
the company witness this question:
"What did Cobus say to
you?"
"Must I just explain what happened? Okay, Cobus called me up
from the bakery and it's that time of the afternoon where we are
about to start our stock-take. He then explained to me that Moses
earlier in the day had taken his first quarter and in the second in
that time of the day he had then seen him with another quarter and
approached Moses and said to him, 'Listen, where is your slip for the
quarter?', and Moses said, 'No, I was hungry'. Then he said to me,
'What do we do?', so I said, 'Well, Cobus, we've got to follow the
company procedure. It's known as theft.'"
[24] It seems to me that this evidence, which is hearsay evidence,
cannot stand against the clear evidence of the
employee, given on oath at the arbitration, that he
had an understanding from James, from the company,
that he is entitled to two quarters and that he had, in
any case, got permission from Cobus to have these
two quarters.
[25] Although the commissioner does not explicitly state that she
accepts the version put by the employee, it seems
clear, on a proper reading of the arbitration award,
that what she said was that the company had failed to
discharge the onus that the dismissal of the applicant
was substantively fair, and that she must have, in
effect, accepted the version of the employee because
she then goes on to say, lower down,
"Even if the applicant ..."
(She always refers in this award to the employee as
the applicant.);
"Even if the applicant
had consumed the
second quarter loaf
without permission, the
company had not acted
consistently in applying
its codes and its policies
over its employees."
[26] That statement on page 5 postulates that she is saying,
"Even if I were to find that the employee had
consumed the second quarter without permission", but
she had not found that. What she had found, implicit
in that, was that the employee had consumed the
second quarter loaf with permission and not unlawfully
and not unauthorisedly. But she, in effect, said,
"Even if the applicant
had consumed the
second quarter loaf
without permission then
on another basis the
dismissal would not be
fair."
[27] And the other basis she gives is that the employees were not
all treated on the same basis. In the one case where
the employee apparently had stolen R400, he had
been given an option to resign and, secondly, had
been given the opportunity of undergoing a lie-
detector test. In the case of the employee, he was not
given an opportunity to resign and he was not given a
lie-detector test. So there is a differential between the
way in regard to possession of company property,
which is loosely described as theft, that the company
treated the matter as between employees.
[28] I may say in the same decision of the Labour Appeal Court
which I referred to above, the Labour Appeal Court
referred to what is known as the parity principle. I
quote now from what the Labour Appeal Court said:
"Possibly this was
because differentiation
would have to contend
with the principle on
which we were not
addressed - the parity
principle - which
comprehends the
concept that employees
who behave in much the
same way should have
meted out to them much
the same punishment. I
refrain from deciding
whether it may have
been fair to differentiate
between the third
respondent and the other
two employees, given the
particular circumstances
of the case."
(See now (2003) 7 BLLR 676 at 686 paragraph [35].)
[29] The Court referred to an earlier case, National Union of
Metalworkers v Henred Fruehauf Trailers 1995 (4)
SA 456 (A) at 463. In that case the following is stated
in the majority judgment of the Appellate Division:
"Equity requires that the
Courts should have
regard to the so-called
"parity principle". This
has been described as a
basic tenet of fairness
which requires that like
cases should be treated
alike. So it has been held
by the English Court of
Appeal that the word
'equity' as used in the
United Kingdom statute
dealing with the fairness
of dismissals,
comprehends the
concept that employees
who behave in much the
same way should have
meted out to them much
the same punishment.
The parity principle has
been applied in
numerous judgments in
the Industrial Court and
the LAC in which it has
been held, for example,
that an unjustified
selective dismissal
constitutes an unfair
labour practice. The
application of the
principle is not limited to
labour disputes."
[30] In my view on a proper reading of the award, the
commissioner was deciding a second ground on the
basis that even if the employee had consumed the
second quarter loaf without permission, then on the
basis of the parity principle the dismissal would not be
fair.
[31] My own judgment rests entirely on the basis that, on the
evidence as a whole, the company has failed to
discharge the onus which rested on it of proving that
the dismissal of the applicant was substantively fair.
[32] The evidence in the transcript as a whole did not justify
coming to the conclusion that the employee's version
should be rejected and, in my view, on the basis that
the employee's version should be accepted and not
rejected, and that the company's version, based on
hearsay evidence and evidence resulting from leading
questions, is not sufficient to discharge the onus of
proof.
[33] In my view, therefore, the review application against the
judgment of the commissioner should be dismissed
with costs.
[34] There is also an application under section 158 that the
arbitrator's award should be made an order of court,
and in the circumstances I grant that order also,
together with an order for costs.
[35] I trust that the employee, who should tender his services,
that he will be reinstated by the company and that we
will not have further proceedings resulting from this.
[36] Wherever the award uses the term "applicant", that refers to
the employee.
[37] My judgment is that the application for the review of the
award given by the commissioner dated 16th May
2002 should be dismissed with costs and that in terms
of section 158 the award of the commissioner should
be made an order of court with costs.
[38] I would like to thank both parties for their helpful heads and
for their patient dealing with the questions raised by
the Court. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- -
(SIGNED) GERING AJ
2003/09/01