IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG CASE NO JR211/03
In the matter between
MARKHAMS, a division of
FOSCHINI RETAIL GROUP (PTY) LTD Applicant
and
KOMOTJO MATJI N.O. First Respondent
THE COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
THANDO DHLAMINI Third Respondent
_______________________________________________________________________
JUDGMENT
________________________________________________________________________
JAMMY AJ
1. The Third Respondent, at the time employed by th e Applicant as a sales
associate at its Eastgate Store, was dismissed on 6 December 2001 on
a charge, found to have been proved, of –
“Serious misconduct arising out of an incident that took place in
Clicks on 18/11/2001 that resulted in your admissio n of guilt to
theft”.
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2. The fairness of that dismissal was disputed, the matter was referred for
conciliation to the Second Respondent and, when it remained
unresolved, was referred for arbitration before the Third Respondent in
his capacity as a Commissioner of the Second Respondent.
3. In his award, the subject of this application, the First Respondent records
that the Third Respondent’s version of the events i n the store “was that
she had actually paid for those goods by cheque”. Following a purported
analysis of the further evidence presented on both sides, he concludes that
–
“The burden or onus of proof in this case is upon t he Respondent.
It is required that the Respondent must prove on a balance of
probabilities that the Applicant is guilty of all e lements of the
misconduct with which he has been charged. In the event of any
doubt as in the present case, the Applicant should be entitled to
the benefit of doubt. After careful consideration and analysis of
the evidence at my disposal, it is my finding that the Respondent
has failed to discharge the onus upon itself of pro ving that the
dismissal of the Applicant was for a fair reason re lated to her
misconduct”.
4. The essential element of misconduct in the charg e against the Third
Respondent was, as I have indicated, one of theft, sourced in her wilful
attempted removal from the store of goods for which she had not paid.
The First Respondent’s finding, in that context, th at in the face of her
evidence that she had in fact paid for them, the ch arge against her had
not been proved is, as the Applicant submits, untenable on any analysis.
5. In the first instance, the video evidence, found by the First Respondent to
be “not helpful” is, on the Applicant’s analysis as confirmed by its
witnesses during a showing of the film in the cours e of the arbitration,
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incontrovertible in that context. Secondly, the tr anscription of the
arbitration record, indicates unambiguously that –
5.1 when confronted by the security guard as she at tempted to exit the
store, the Third Respondent attempted to bribe him;
5.2 when questioned by the company’s senior area ma nager she
informed her that she had forgotten to pay for the items in question;
5.3 on her own evidence, when confronted in the sto re, the Third
Respondent attempted to explain to the manager of t he store that
she had not checked the till slip and thought that she had paid for
everything. She then offered to pay for the items in question;
5.4 at no stage was it contended or suggested by th e Third Respondent,
as the First Respondent records, that the items in question had been
paid for. The contrary is in fact the case and, on the evidence, the
Third Respondent at no stage attempted to dispute t he fact that she
had not paid for them. Not only was that the case at the time of the
incident but her acknowledgment of that fact was co nfirmed by her in
the course of the hearing of her disciplinary appeal.
6. When assessed against this evidence, the First R espondent’s finding of
fact that in her evidence in chief the Third Respon dent contended that
she had actually paid for the goods in question, de fies explanation.
Equally incomprehensible, in my view, is his conclu sion that, on a
balance of probabilities, the Respondent had not pr oved that the
Applicant was “guilty of all the elements of the mi sconduct with which
she has been charged” and that she should be “entit led to the benefit of
doubt”. What he records as his “careful consideration and analysis of the
evidence at my disposal”, if indeed that is what he properly undertook,
could and should have left him in no doubt that its probative weight
indicated an emphatic discharge by the Respondent o f the onus of proof
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which he emphasises. In any event, as the Applican t correctly submits,
that is not the test properly to be applied in civi l proceedings such as
these and by importing the element of “doubt” into his assessment of the
probabilities, the First Respondent has manifestly mistakenly applied the
standard of proof applicable in criminal matters as opposed to civil
litigation, where it has no relevance.
7. In these circumstances I have no hesitation in h olding that, in the context
of the well-established principle defined in a line of cases in the Labour
Courts, the First Respondent’s award is not justifi able on the evidence
properly before him.
See Carephone (Pty) Ltd v Marcus N.O. and Others (1998)
11BLLR 1093 (LAC); Shoprite Checkers (Pty) Ltd v Ra mdaw
N.O. and Others (2001) 22ILJ 1603 (LAC)
8. I am further of the view that no good purpose wo uld be served by the
reversion of this matter to the Second Respondent to be arbitrated afresh
by a Commissioner other than the First Respondent. I have little doubt
were that course to be followed, with the evidence in this arbitration
being adduced in its totality once again, the inevi table conclusion would
be no different from that which I have now myself r eached, namely that
the adverse disciplinary finding against the Respondent was justified and
that her dismissal in the circumstances was warranted.
9. For these reasons the order that I make is the f ollowing:
9.1 The First Respondent’s award dated 20 January 2 003 in the Second
Respondent’s case number GA185/02 is reviewed and set aside.
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9.2 The First Respondent’s order, in the context of that award, that the
dismissal of the Third Respondent was substantively unfair and that
she was to be re-employed, is substituted by an order in the following
terms:
“The dismissal of the Applicant was substantively fair”.
___________________________
B M JAMMY
Acting Judge of the Labour
Court
Date of hearing: 13 August 2003
Date of Judgment: 28 August 2003
Representation:
For the Applicant:
Attorney R Moultrie: Bowman Gilfillan Inc.