FOSAWU obo Mazondo v Commission for Conciliation Mediation and Arbitration and Others (JR 2930/11) [2013] ZALCJHB 188 (1 August 2013)

REPUBLIC OF SOUTH AFRICA

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

Not reportable

Case no: JR 2930/11

In the matter between:

FOSAWU obo Mazondo S ................................................................................Applicant

and

C C M A ....................................................................................................1st Respondent

Jacob Daniel Sello NO ...........................................................................2nd Respondent

Silverstar Casino ....................................................................................3rd Respondent

Heard: 9 July 2013

Delivered: 01 August 2013

_____

BRUINDERS AJ

The employee was employed as a supervisor in the cash desk section at the employer’s casino. His duties included cashing up and balancing what are called CAION machines situated on the gaming floor. These are ATM type machines. Customers access CAION machines to obtain cards used for gambling. They can load money onto these cards and they can draw cash against the credit balance on them.

The employee was required to cash up and balance the CAION machines at the end of each shift. There is a prescribed procedure that governs the cash up and balance. It results in an ‘End of Shift Report’ that is produced by accounting for all movements on every CAION Machine. The report reflects the ‘vault balance’ held by the employer at the end of each shift. The employer relies on the ‘End of Shift Report’ to report its daily cash balance because it reflects the transactions and cash balance on each machine. The employee was required to do a variance investigation report for a variance of over R20, 00 on each machine. If there was a variance of R100, 00 or more, the employee was required to notify his shift manager. He and the shift manager were then required to locate the source of the discrepancy. If they could not do so, they were required to report the discrepancy to the surveillance section for further investigation.

The employee was dismissed on 12 July 2011 for dishonesty because he failed to report a variance of R1000, 00 that he had picked up on a CAION machine, and he reversed the correct amount and entered an incorrect amount in an ‘End of Shift Report’, so attempting to hide the variance. He disputed his dismissal. It was referred to arbitration.

The arbitrator delivered his award on 18 October 2011. He found on a balance of probabilities, that the dismissal was substantively fair because the employee had reversed the correct amount to force balance the machine and, in so doing, he attempted to hide the variance of R1000,00.

The employee is a member of the applicant, a trade union. It applies for an order reviewing and setting aside an arbitration award by a CCMA arbitrator who is the second respondent. There are a number of grounds of review. It is not necessary to list them all. The main reason for the review application is that the arbitrator found that the guilt of the employee had been established

on a balance of probabilities, when there was evidence that disturbs that balance because it shows that the employee is not guilty of the charge.

There are five grounds on which a CCMA arbitration award can be set aside on review. It can only be set aside under s145 of the Labour Relations Act 66 of 1995 (the Act) if the arbitrator exceeded his arbitral powers given to him under the Act, if he committed misconduct, if he committed a gross irregularity in the proceedings or if the award was obtained by fraud. The Constitutional Court has held that a CCMA award may also be set aside if it is an award that no arbitrator could reasonably make.

The question before the arbitrator was whether on a balance of probabilities, the evidence supported the finding that the employee had failed to comply with the prescribed procedure (the arbitrator referred to it as a work rule) requiring him to report a variance and to cash up the machine accurately and whether he had deliberately forced balanced the machine to hide the variance. He found that on a balance of probabilities, the evidence supports these findings. In doing so, the arbitrator referred to the prescribed procedure and to the evidence that there was a variance and that the employee had force balanced the machine.

In reaching that finding, the arbitrator did not exceed his statutory mandate. He made a finding on the question before him. The question fell within his statutory mandate. He applied the correct test in deciding that question. He was not guilty of arbitral misconduct because there is no evidence that during the course of the arbitration he misconducted himself in relation to the

parties or his duties as an arbitrator. There is no allegation (or evidence) that the award was obtained by fraud.

What is left then is whether he committed an irregularity in the proceedings or whether the award is one that an arbitrator could not reasonably make. On review in this case, both those grounds boil down to whether there was no evidence before the arbitrator of misconduct on the part of the employee. So the review question is whether there was no evidence of a variance, or that the employee had force balanced the machine, or that he had misrepresented the true balance in his ‘End of Shift Report’.

If there was any evidence of this before him, the arbitrator cannot be said to have committed an irregularity in the proceedings or of producing an award that no arbitrator could reasonably make. Provided that the arbitrator applied the balance of probabilities

test, his award cannot be set aside because he should have found on balance that the probabilities do not support his finding. That is an appeal ground. It is not a ground on which the award may be set aside on review.

It seems that applicant’s real complaint is not that there is no evidence that there was a variance and that the employee knew of the variance and that he covered up and misrepresented the variance in his ‘End of Shift Report’. Its complaint is that if all the evidence is taken into account then the probabilities do not support the finding by the arbitrator. So, for example, it was argued that the arbitrator should not have found dishonesty because the employee was not dishonest and that the

arbitrator had made a mistake about dishonesty. That is a complaint properly made on appeal, not review. But it would be remiss of me not to point out that there was evidence before the arbitrator (referred to by the arbitrator in his award) that the employee had failed to report a variance of R1000,00 he knew of and that he reversed the correct amount and entered an incorrect amount in an ‘End of Shift Report’, so attempting to hide the variance. There was evidence before the arbitrator of dishonesty. He cannot be faulted for irregularity.

Consequently, I make the following order: The application to review and set aside the arbitration award dated 18 October 2011 under case number GAJB20067-11 is dismissed with costs.

T J Bruinders

Acing Judge of the Labour Court