Cashbuild South Africa (Pty) Ltd (Thulamashe) v Ndimbana and Others (JR56/2015) [2016] ZALCJHB 372 (29 September 2016)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not Reportable

Case No: JR56/2015

In the matter between:

CASHBUILD SOUTH AFRICA (PTY) LTD (THULAMASHE) Applicant

and

GODFREY MKATEKO NDIMBANA 1st

Respondent

COMMSSIONE FOR CONCILIATION MEDIATION

AND ARBITRATION 2nd

Respondent

GODFREY MKATEKO DZIMBA 3rd

Respondent

HEARD: 3 May 2016

DELIVERED: 29 September 2016

SUMMARY: Review Application

Molahlehi J

Introduction

[1] This is application to review and set aside from arbitration award made by the first respondent (the Commissioner) under MP7129/14, dated 24 November 2014. The Commissioner found the dismissal of the third respondent, (the employee) to have been substantively unfair, and accordingly ordered that he be reinstated and also that he be paid his three months arrears wages.

Background facts

[2] The background facts are fairly common cause. The applicant who was the store manager at Thulamahashe was dismissed for gross negligence related to failure to follow the applicant’s procedures on several occasions. He was charged with the following counts of misconduct:

(i) Gross negligence/failure to follow company procedure after failing to adhere to store trading procedure by not maintain housekeeping standard, not managing merchandising standard and maintaining yard and parking areas.

(ii) Failure to follow company procedures in the store, rules for business administration was not done and managed from the 16th to the 20th August 2014.

(iii) Gross insubordination/negligence in that he did not follow instruction given by the divisional manager to report excess shrinkage on the 24th, 21st, 22nd, and 23rd July 2014 although there were shrinkage in excess of R100-00.

(iv) Gross negligence and or failure to follow company policies in that he did not manage, check and sign daily PIC counts on the 22nd, and 23rd July,12th,14th,15th August 2014.

(v) Gross negligence or failure to follow company policies and procedures by failing to ensure or pick up that PIC accounts were not done for the 16th and 17th July, 1st,4th, to 8th, 11th and 13th August 2014.”

Ground of review.

[3] The applicant challenges the award on the basis that a different conclusion would have been reached had the Commissioner determined the evidence on a rational, reasonable and fair basis. The Commissioner is also criticised for failing to apply the relevant legal principles.

[4] The applicant further contended that the decision of the Commissioner is unreasonable because of the following:

1. The first respondent failed to comply with the provisions of the Act, pertaining to the conducting of fair and proper arbitration proceedings in terms of the Act;

2. Factual findings made by the First Respondent himself, in fact did not correspond with the evidence and documents properly placed before the First Respondent in this particular matter.

3. The First respondent exceeded his powers in terms of the Act;

4. The First Respondent did not properly and rationally and justifiably apply his mind to the facts or the law in this instance;

5. The First Respondent failed to properly apply the provisions of the Constitution of the Republic of South Africa in this instance, especially in respect of the audi alteram partem principle.”

The arbitration award

[5] The Commissioner found the dismissal to have been unfair for the following reasons:

a) That the Third respondent was on leave from the 21st to the 26th days of July 2014 and as such he could not be responsible for failing to report the shrinkages in stock that occurs during this period;

b) That the Third Respondent was not in store from the 14th -19th day of July 2014 as he was performing stock take at the applicant’s Mkhuhlu branch and therefore there was no basis to discipline him for a failure to report a surplus in stock on the 14 day of July 2014 when he was not in fact absent from the store;

c) That the Third Respondent was not charged for failing to ensure that PIC counts were not done on the 16th and 17th July 2014 although he was at the Mkhuhlu branch during that period;

d) The Third Respondent was dismissed mainly for a failure to maintain housekeeping standards and a failure to report that the store has a surplus or shrinkage in stock. However the Third Respondent was not present in the store on the occasions where such a shrinkage or surplus was discovered therefore making it impossible to report accordingly;

e) That the PIC had been given instruction to report any excess or shrinkage in stock directly to him, yet there was no evidence to suggest that the PIC was disciplined for his failure in this regard;

f) That it is not unusual for a store to be in a poor condition during stock take.”

Evaluation analysis

[6] The test to apply in determining whether to interfere with the arbitration award of the CCMA Commissioner, is that set out in

Sidumo and Another v Rustenburg Platinum Mines,[1] sets out in the following terms:

“is the decision reached by the commissioner one that a reasonable decision maker could not reach?”

[7] In explaining the reasonable decision maker test as set out in Sidumo, the Labour Appeal, Gold Fields Mining South Africa (Pty) Ltd (Kloof Gold Mine) v Commission for Conciliation Mediation and Arbitration and Others,[2] per Waglay JP held that:

“[16] In short: A review court must ascertain whether the arbitrator considered the principal issue before him/her; evaluated the facts presented at the hearing and came to a conclusion which was reasonable to justify the decisions he or she arrived at.

[17] The fact that an arbitrator committed a process-related irregularity is not in itself a sufficient ground for interference by the reviewing court. The fact that an arbitrator commits a process-related irregularity does not mean that the decision reached is necessarily one that a reasonable commissioner in the place of the arbitrator could not reach.”

[8] In my view, it is clear from the record that the arbitrator in arriving at the decision, as he did, took into account the totality of the evidence which was before him including the circumstances of the case. He in this regard took into account the guidelines set out in Sidumo and those are the following:

1. The importance of the rule that has been breached.

2. The reason why the employer imposed the sanction of dismissal.

3. The basis of the employee's challenge to the appropriateness of the dismissal.

4. The harm caused by the employee's misconduct.

5. The effect of the dismissal on the employee.

6. Whether additional training and instruction may result in the employee not repeating the misconduct.

7. Whether progressive discipline was applied.

8. The employee's disciplinary record and length of service.

9. The presence or absence of dishonesty in the employee's conduct.

[9] Having regard to the above, it does appear to me that the Commissioner was indeed correct in the approach he adopted in dealing with the dispute. Even, if it was to be accepted, that the employee ought to have followed up and checked what was happening at his store whilst away from it, that fault cannot be equated to dishonesty. It was not the case of the applicant, as appears from the record, that the alleged failure to report to his senior the daily shrinkage, was motivated by an act of dishonesty on his part. There is also no evidence, that he had a disciplinary record of similar alleged conduct previously.

[10] The Commissioner also exercised his discretion, as he in law was entitled to, in a fair and balanced manner when he determined the fairness of the dismissal. The facts and the circumstances of this case does not support the proposition that the sanction of dismissal would have been the most reasonable and fair sanction. In this respect the Commissioner’s decision cannot be said to fall outside the band of a reasonable decision which a reasonable decision maker could not make.

[11] The conclusion reached by the Commissioner is also supported by the fact that there is also no evidence on the record showing that the relationship between the parties have irretrievably broken down.[3] There is also no evidence that, training of the employee would not address avoidance of future repeat of the conduct,[4] if the version of the applicant was to be accepted that the employee did committed the offences he was charged with.

[12] In light of the above I find that the applicant has failed to make out a case for the review of the Commissioner’s arbitration award. I see no reason why the costs should not follow the results.

Order

[13] In the premises the applicant’s review application of the arbitration award made under case number MP7129/14 Dated 24 November 2014 is dismissed with costs.

_____________________

E. Molahlehi

Judge of the Labour Court

Appearances:

For the Applicant: Snyman Attorneys

For the Respondent: Nabeel R Noorbhai Attorneys

[1] (2007) 28 ILJ 2405 (CC).

[2] [2007] ZALC 66; [2014] 1 BLLR 20 (LAC); (2014) 35 ILJ 943 (LAC).

[3] Edcon Ltd v Pillemer NO and Others [2010] 1 BLLR 1 (SCA); (2009) 30 ILJ 2642 (SCA).

[4] See Sidumo -supra