Jamafo obo Motaung v Commission For Conciliation, Mediation And Arbitration and Others (JR 2682/16) [2023] ZALCJHB 139 (28 April 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2682/16

(1) REPORTABLE: YES / NO

(2) OF INTEREST TO OTHER JUDGES: YES / NO

(3) REVISED.

DATE: 28/04/2023

In the matter between:

JAMAFO OBO MOTAUNG, THABO Applicant

and

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION First

Respondent

THEMBA CEDA, N.O. Second

Respondent

PICK 'N PAY RETAILERS (PTY) LTD Third

Respondent

Delivered This judgment was handed down electronically by circulation to the parties' representatives through email. The date for hand-down is deemed to be 28 April 2023.

JUDGMENT

MAHOSI, J

Introduction

[1] The applicant brought an application in terms of section 145 of the Labour Relations Act[1] (LRA) to review and set aside the arbitration award (the award) dated 01 November 2016, issued by the second respondent (the commissioner)

under the auspices of the second respondent, the Commission for Conciliation, Mediation and Arbitration (CCMA) and under case number

GAJB 12474-16. The third respondent opposed the application.

[2] Coupled with the abovementioned application is the. Condonation application for the late filing of the supplementary affidavit. The third respondent opposed only the application review application.

[3] The applicant made out a case for the late filing of the supplementary affidavit. Accordingly, the condonation application, stands to be granted.

[4] The first and the second respondents filed a notice to abide by the decision of the Court.

Background

[5] The third respondent employed the applicant on 01 April 2004, and before his dismissal, he was the Butchery Manager earning R16 595.65 per month.

[6] In February 2015, the third respondent charged and subjected the applicant to a disciplinary enquiry for the following acts of misconduct:

1. Misconduct in that on Monday, 08/02/2016, you bumped stock by claiming to have 143 kg of lamp, which you did not have.

2. Misconduct in that on Monday, 15/02/2016, you bumped stock on beef by putting/adding 264 of beef which you did not have.

3. Misconduct in that on 15/02/2016, you counted waste of about 488 kg as beef trimming @ R29.95 per kg instead of writing it off as waste.

4. Dishonesty in that you falsified the figures in view of the above.[2]

[7] On 01 June 2016, the chairperson of the disciplinary hearing found the applicant guilty of the abovementioned charges, except for bumping 264kg of beef.

[8] Aggrieved by the decision to dismiss him, the applicant referred an unfair dismissal dispute with the CCMA for conciliation. However, the dispute was unsuccessfully conciliated. As a result, the CCMA issued a certificate of non­ resolution.

[9] The applicant then referred the dispute to arbitration, which was heard on 17 and

18 October 2016.

The arbitration proceedings

[10] During the arbitration, the union official, Debbie Brenner, represented the applicant, and Hendrick Smith, the ER case manager, represented the third respondent.

[11] The commissioner had to· dee whether the applicant's dismissal was substantively and procedurally fair. The applicant testified in support of his case, whilst the third respondent called .three witnesses to support his case. These were:

11.1 Samual Ndebele; the Area Manager,

11.2 Mr Peter Hlophe, the Block man, and

11.3 Mr Dsnny Louries, the chairperson of the disciplinary hearing.

[12] Having had regard to the evidence and arguments before him, the commissioner issued the award on 01 November 2016, in which he found that the third respondent succeeded in proving that the applicant's dismissal was substantively and procedurally fair.

Submissions

[13] The applicant challenged the commissioner's award on the basis that he allegedly committed gross misconduct and irregularity in that he failed to apply his mind to the material facts, considered irrelevant factors, ignored uncontested evidence and misconstrued the nature of the enquiry before him.

[14] The third respondent premised its opposition on the grounds that the commissioner did not commit any irregularities that could be reviewable able as he was able to identify the dispute, considered all the evidence .placed before him and reached reasonable

conclusions.

Applicable law and analysis

[15] Arbitration awards are reviewable in terms of section 145 of the LRA and section 145(2) defines a defect as the commissioner’s

.misconduct concerning the duties as an arbitrator, gross irregularities in the conduct of the arbitration proceedings, exceeding the commissioner's powers, or improperly obtaining an award. The review test is trite.[3] The critical issue is whether the commissioner’s decision is one that a reasonable decision-maker could not reach.

[16] The applicant submitted that the commissioner misconstrued the issue before him in that he found him guilty of dereliction of duty and theft in circumstances where he was not charged for such misconduct. Further, the commissioner was influenced by irrelevant factors and failed to. consider relevant and material facts. Furthermore, the applicant submitted that the commissioner ignored certain «uncontested evidence and was predisposed to considering irrelevant considerations to favour the third respondent unfairly. The applicant submitted, in addition, that the commissioner committed gross irregularity by finding that he breached a trust relationship as the third respondent failed to lead any evidence to support his finding.

[17] The commissioner recorded the charges that the third respondent levelled against the applicant in his analysis of evidence and arguments as follows:

'The applicant was charged with misconduct with regard to the bumping of stock on 08 February 2016 claiming 143 kg of lamp which he did not have. He was also charged with misconduct relating to counting waste of about 488kg as trimming on the 15th of February 2016. He was also charged with dishonesty pertaining to his misconduct. The applicant was not found guilty concerning the misconduct which has to do with bumping stock on the beef by putting/adding 264,kg beef since there was no sufficient evidence and this resulted in the withdrawal of the charge.'[4]

[18] Regarding the misconduct relating to bumping stock by claiming to have 143 kg of lamp meat, which he did not have, the commissioner considered the evidence before him and recorded as follows: ]

1.42 The respondent's first witness who is an area manager, Sam Ndebele, testified that the applicant had an opening stock of 143kg and purchased 345kg, which equalled 488kg combined, So, according to the respondent. it did not make sense that whilst the applicant had 143kg of lamb meat, he would purchase a further 345kg of meat. The 143kg of lamb should have been his opening stock for the following week.

1.43 The act of purchasing 345kg of lamb proved that he did not have the143kg as far as the respondent was concerned. According to the respondent, the 143kg was enough opening stock for the week ahead, and there was no need to purchase 345kg of lamb.

1.44 More significantly, the applicant sold 104kg of lamb out of 488kg. After selling 104kg of lamb, the balance was 384kg. However, the actual count showed 229kg as closing stock instead of 384. So 384kg - 229kg =155kg. The 155kg was missing, and could not be accounted for by the applicant. Therefore the applicant attributed 155kg that he could not account for as shrinkage. The applicant abdicated his responsibility as a manager by claiming he had no control over shrinkage.

1.45 The applicant blamed shrinkage on theft by claiming that many things were happening in the store. The applicant, during cross-examination, when asked how possible it was that 155kg of lamb could be lost, said it always happened and was beyond their powers. He kept saying theft does occur.[5]

[19] To the extent that the applicant attributed the missing stock to shrinkage, the commissioner rejected his defence by stating as follows:

1.46 Sadly, this man was a store manager charged with running the store. The respondent entrusted him with managing the store on its behalf. This enormous shrinkage of 155kg meant that the respondent suffered financially hence the negative gross profit experiences by the store.

1.47 What defied logic about the conduct of the applicant was his inability to appreciate the huge financial loss suffered by the respondent. He seemed too careless; hence he said the shrinkage was beyond their powers. Worse, despite conceding that shrinkage was happening all the time, he did nothing to seek intervention for help from the respondent to stem this tide. Nowonder the store was sitting on a negative gross profit.[6]

[20] Regarding the second charge, the commissioner considered Mr Ndebele's evidence that the applicant inflated the third respondent's gross profit and falsified information by counting beef trimming that was a waste as fresh meat when he was not supposed to do so. He further considered Mr Hlophe's evidence that the applicant counted and recorded 488kg of waste as fresh meat. It was on the basis of the above evidence that he arrived at the finding that the applicant's conduct amounted to bumping and falsification of figures that resulted in jeopardising the third respondent's business.

[21] Resultantly, the commissioner concluded that the third respondent proved that the applicant committed the misconduct with which he was charged. He also found that the manner in which the third respondent conducted the disciplinary hearing was fair as the applicant was given adequate notice to attend the disciplinary hearing, was informed about his rights to representation, have an interpreter, call his witness, cross-examine the third respondent witnesses as well as the right to appeal.

[22] On the appropriateness of the sanction, the commissioner considered the third respondent's code, which regarded fraud and forgery as dishonesty; the applicant's knowledge of the code, and his lack of remorse to find that the trust relationship had been destroyed. Consequently, he found that the dismissal was an appropriate sanction.

[23] The manner in which the commissioner analysed the dispute before him does not support the applicant's version that he misconstrued the enquiry he had to conduct, misdirected himself on the point of law or committed an irregularity or an act of misconduct because, as the award reflects, he correctly dealt with the issue before him. Further, the commissioner considered all the evidence and applied his mind to the issues before him. As such, he dealt exhaustively with the evidence before him and considered all relevant factors before concluding that the applicant's dismissal was substantively and procedurally fair.

[24] The applicant has not established any basis upon which this Court could find that the commissioner's award was reviewable, There is, therefore, no reason forthis Court to interfere with it.

Costs

[25] Concerning costs, the requirements of law and fairness dictate that there should be no order as to costs.

[26] Accordingly, the following order is made:

Order

1. The condonation application for the late filing of the supplementary affidavit is granted.

2. The application to review and set aside the arbitration award dated 01 November 2016, issued by the second respondent under the auspices of the second respondent, the Commission for Conciliation, Mediation and Arbitration, and under case number GAJB 12474-16, is dismissed.

3. There is no order as to costs.

D. Mahosi

Judge of the Labour Court of South Africa

Appearances

For the applicant: Mr

T Mocqechane, union official

For the third respondent: Advocate K. Naidoo

Instructed by: Kapditwala

Incorperated t/a Denton

[1] Act 66 of 1995, as amended

[2] Index to the CCMA records: Part B, p 10

[3] See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others 2007 (28) ILJ 2405 (CC); Herholdt v Nedbank Ltd 2013 (34) ILJ 2795 (SCA) at para 25; Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC).

[4] Index to pleadings, p 35, para 1.41 of the award

[5] Index to pleadings, p 35, para 1.42- 1.45 of the award

[6] Indextopleadings,p35, paras1.46- 1.47oftheaward