IN THE LABOUR COURT OF SOUTH AFRICA
REPORTABLE
CASE NO D1719/02
DATE HEARD : 2004/02/05
DATE DELIVERED : 2004/02/05
In the matter between:
AMALGAMATED PHARMACEUTICALS LIMITED Applicant
and
H GROBLER N.O. First Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
S SHEZI Third Respondent
Fourth Respondent
Fifth Respondent
JUDGMENT DELIVERED BY THE HONOURABLE MADAM JUSTICE PILLAY
ON 5 FEBRUARY 2004
MR F A BODA
ON BEHALF OF 1ST RESPONDENT: MR P O JAFTA
TRANSCRIBER
SNELLER RECORDINGS (PROPRIETARY) LTD - DURBAN
D1719/02-NB/CD - 3 - JUDGMENT
JUDGMENT 5 FEBRUARY 2004
PILLAY J
[1] The applicant seeks to review the award of the first respondent
Commissioner on the limited issue of the remedy of reinstatement
awarded.
[2] The third, fourth and fifth respondents, (the individual respondents),
were dismissed for misappropriation of company property. A polygraph
test showed that they could be responsible for the serious stock losses
suffered by the applicant.
[3] The Commissioner found as follows:
"In practice a polygraph does not serve to prove that someone is actually lying for
the questions are often too broad to exclude that which is neither intended nor
sought. And it most definitely does not prove that someone is guilty. In casu the
respondent fell into the trap it set for itself. If the polygraph says the applicants
are not being truthful and they are the ones who worked in the departments
concerned, they had to be guilty on probabilities? 'Right’, the respondent
concluded. Thus the respondent came to the wrong conclusion for there is
absolutely no evidence whatsoever before me to prove that the applicants were
guilty of anything other than that they had failed to report the fact that Elias
abused the system as and when he felt like it. They were not charged with having
been disloyal - and their explanation as to why they did not report him was quite
satisfactory and typical of a situation where a senior member of staff who is in a
position of power abuses a system to the detriment of the workforce. This,
together with the fact that they gave their evidence in a forthright, direct and
honest manner, leads me to conclude that their dismissal was unfair."
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D1719/02-NB/CD - 4 - JUDGMENT
[4] Mr Boda, for the applicant submitted that the award is reviewable
because the Commissioner failed, firstly, to provide any reasons for the
remedy awarded. ( Highveld Steel and Vanadium Corporation Limited v
National Union of Metalworkers of South Africa and Others (2004) 1
BLLR 11 (LAC) paragraph 60.) Secondly, she failed to consider that the
applicant held a reasonable suspicion against the individual applicants. If
she had done so, she would have found that the relationship of trust had
broken down and would therefore not have awarded reinstatement, so it
was submitted.
[5] The failure or omission by the Commissioner to provide reasons for
her award does not per se render the award irrational and therefore
reviewable on the grounds of a gross irregularity. The Commissioner's
findings of fact which, I might add, are not disputed and the way she
recorded them anticipate the remedy. Firstly, she rejects the polygraph
evidence for the reasons stated above. Secondly, she accepts from the
corroborated evidence of the individual respondents that they suspected
that Iqbal Elias, the person in charge of the stock, abused the procedures
which resulted in the stock losses. This acceptance is consistent with the
concession by Elias himself that he did not follow procedures, that
mistakes ensued and that he had asked the individual respondents not to
check orders that he packed himself.
[6] It follows from the foregoing that the individual respondents had to
be found not guilty. Furthermore, the concession, the evidence in
rebuttal and the finding that the individual respondents gave their
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D1719/02-NB/CD - 5 - JUDGMENT
evidence in a forthright, direct and honest manner established other
equally probable causes for the stock losses.
[7] In these circumstances, the failure to furnish reasons for the remedy
of reinstatement is not a gross irregularity.
[8] This case is distinguishable from that of Highveld above, firstly,
because the facts anticipate the remedy. Secondly, Highveld is an
appeal from a judgment of the Labour Court. This is a review of an
award. The test for setting aside an award is limited to the grounds set
out in section 145(2) of the Labour Relations Act No 66 of 1995 ("the
LRA").
[9] Having regard to the decision in Carefone (Pty) Limited v Marcus
N.O. and Others (1998) 11 BLLR 1093 (LAC), the award is justifiable on
the basis of the material before the Commissioner.
[10]Even if the Commissioner was wrong in exercising her discretion in
favour of reinstatement, and in my view I do not believe that she is, there
is no basis for concluding that such an error is a gross irregularity.
[11]Turning to the second leg of the applicant's argument, once it was
established that there were other possible causes of the stock loss, the
applicant's suspicion of the individual respondents could not be
reasonable. Furthermore, there could be any number of explanations for
the fall in the stock losses since the dismissal of the individual applicants.
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D1719/02-NB/CD - 6 - JUDGMENT
It would have been quite irrational in these circumstances for the
Commissioner to have refused reinstatement.
[12] Whether there is or is not a reasonable suspicion and breach of trust
is a factual inquiry and depends on the circumstances of each case. The
facts in this case are distinguishable from the case relied on by Mr Boda,
namely Algorex (Pty) Limited v CWIU and Another (1995) 10 BLLR 1
(LAC).
[13]The mere fact that the applicant does not trust the individual
respondents cannot, without more, be a basis for holding that the
employment relationship has broken. In a constitutional democracy
implicit in the notion of fair labour practice is the obligation to balance
the respective interests of the parties. To punish the individual
respondents with unemployment, even if this is accompanied with some
compensation, without finding them guilty of any wrong doing is grossly
unfair. The breach of trust, if there was such, was not caused by the
individual respondents.
[14]In the circumstances, the application for review is dismissed with
costs.
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