Lekota v Commission for Conciliation Mediation And Arbitration and Others (JR1045/13) [2014] ZALCJHB 263 (18 July 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

JUDGMENT

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

CASE NO: JR 1045/13

In the matter between:

PAUL LEKOTA Applicant

and

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION First

Respondent

B VAN WYK NO Second Respondent

WALTONS (PTY) LTD Third

Respondent

Heard:

9 July 2014

Delivered: 18 July 2014

Summary: Review: Arbitrator’s finding in respect of misconduct not one that a reasonable arbitrator could have reached on the evidence before him. Award reviewed and replaced with an award for reinstatement. Normal review principles applied.

FOURIE AJ

[1] The applicant (“the employee”) was employed by the third respondent (“Waltons”) as Dispatch Supervisor. He was dismissed for theft of stock, alternatively for negligence in that he failed in his supervisory duties of detecting that certain memory sticks and cartridges had gone missing from the secure cage in the employer’s warehouse, at some point during the two week period between stock takes conducted at the behest of the branch manager.

[2] The employee challenged his dismissal in the CCMA. The arbitrator held, in a detailed and painstakingly drafted award, that on a balance of probabilities the applicant was not guilty of ‘unauthorised removal of stock’, or, in plain language, theft. This finding followed a rejection of the veracity of the polygraph evidence as the sole basis for the dismissal on the charge of theft. This finding is not challenged by either party on review.

[3] The arbitrator found the employee guilty of ‘dereliction of supervisor duty’, in that he failed, in his capacity as dispatch supervisor, to exercise proper control over stock in the warehouse. On the basis of this finding, the arbitrator upheld the dismissal as fair. The employee seeks to challenge this finding on review. The employer opposes the review application.

[4] The arbitrator’s key findings in respect of the charge of negligence against the employee can be summarised as follows:

1. As dispatch manager, the employee was ‘tasked to have his finger on the pulse of all stock leaving the premises.’

2. The employee ‘miserably failed’ in his duty to ‘carefully guard over the stock entrusted in his care which should have exited the premises under his watchful eye.’ As such he was grossly negligent in the conduct of his duties.

3. All that was required in respect of this charge, is that ‘the goods had gone missing and that the person responsible for the dispatch of the missing goods could not account as to how on earth these goods somehow evaporated from the cage where this very person on a daily basis picks goods from.’

4. As the employee refused to acknowledge responsibility or to indicate the slightest remorse for his negligent conduct, the sanction of dismissal was fair in the circumstances.

[5] The primary difficulty with this finding is that it was not at all clear on the evidence that the employee bore direct and overall responsibility for preventing stock shortages arising in the secure cage in particular, or in the warehouse as a whole.

[6] The employer’s evidence was focussed primarily on proving the employee guilty of theft. This it did by proving the existence of a shortage of stock (several memory sticks and cartridges) that arose during a period of two weeks, and thereafter relying on the results of a polygraph test, that implicated the employee but exonerated the two other persons primarily in control of and with access to the secure cage.

[7] The evidence clearly indicated that at least three other employees enjoyed unrestricted access to the secure cage in the normal course of their duties, and that further employees could gain supervised access. Further, control over keys to the secure cage was not strictly exercised, as it was common knowledge in the branch that a key to the secure cage was kept in an unlocked desk

drawer in an office.

[8] The employee testified that his primary duties related to supervising the dispatch of goods for delivery by drivers. The warehouse is attached to a Waltons store which sells goods directly to the public. Stock leaves the warehouse to stock the store, and for deliveries to customers. The employee testified that he was not responsible for the safekeeping of stock. This fell under Tshepo and Cuthbert, who were primarily involved in stock keeping in the secure cage, and who reported to the branch manager. This evidence was not seriously disputed during the arbitration.

[9] The inescapable conclusion that one reaches from reading the arbitration award, is that the arbitrator took a dim view of the employee’s credibility. The arbitrator seemed particularly incensed that the employee refused an offer, made during the arbitration, of a further polygraph test to be administered at the employer’s expense. At the time the arbitrator made it clear that he may draw a negative inference from the employee’s failure to take up the offer of a further polygraph test.

[10] The cloud of suspicion hanging over the employee as a result of the theft charge seems to have coloured the remainder of the award, despite his acquittal on this charge by the arbitrator.

[11] No evidence whatsoever was presented as to the scope of the employee’s duties in terms of his contract of employment, or the company policy on stock keeping, and the employee’s particular duties in this regard.

[12] Joubert, Waltons’ security manager, testified that if the employee had not failed the polygraph test, he would not have been dismissed. The charge of negligence seems to have been regarded as superfluous, with most of the evidence focused on the direct charge of theft.

[13] There is also no evidence that the employee would have been disciplined for failure to manage or detect stock shortages, were it not for the strong suspicion that he was the perpetrator of the theft. The employer never contemplated disciplinary steps against any other manager as a result of the shortage, despite several persons being at least equally responsible (and probably more directly responsible) than the employee, for protecting against stock losses and shortages.

[14] This leads me to conclude that the finding of guilt on the charge of negligence was tainted by a lingering suspicion that the employee in fact stole the goods himself. The acquittal on the charge of theft is not under review. The finding on the charge of negligence is not supported by the evidence, and seems motivated by irrelevant considerations. In my view it is not a finding that a reasonable arbitrator could have reached on the evidence before him.

[15] The finding is therefore subject to review. I now turn to consider whether to refer the rescission application back to the Bargaining

Council for hearing afresh, or to substitute the award. In Southern Sun Hotel Interests (Pty) Ltd v CCMA and Others[1], van Niekerk J explained the correct approach to this issue as follows:

‘…The LAC and this court have held that they should correct a decision rather than refer it back to the CCMA for a hearing de novo in the following circumstances: (i) where the end result is a foregone conclusion and it would merely be a waste of time to order the CCMA to reconsider the matter; (ii) where a further delay would cause unjustified prejudice to the parties; (iii) where the CCMA has exhibited such bias or incompetence that it would be unfair to require the applicant to submit to the same jurisdiction again; or (iv) where the court is in as good a position as the CCMA to make the decision itself.’

[16] In my view, the factors in (ii) and (iv) are present in this matter. A comprehensive transcript has been placed before the Court, in which, the issues were fully ventilated, and I exercise my discretion in favour of determining the matter instead of referring it back to the CCMA for determination afresh.

[17] In my view, as set out above, there is insufficient evidence to indicate that the employee bore primary responsibility for ensuring the integrity of stock management, and for preventing losses of stock. The losses took place at some stage during a two week period, and could have been caused by a multitude of factors, most of which would have had nothing to do with the applicant.

[18] The arbitrator’s finding on the charge of theft is not challenged on review, and must stand.

[19] It follows that the applicant’s dismissal for misconduct was unfair. The primary remedy for unfair dismissal prescribed in terms of the LRA is reinstatement, and I see no reason to deviate from this relief. The claim of a breakdown in the trust relationship was premised on the accusation of theft, on which the employee was found not guilty by the arbitrator. The rough and tumble of litigation was not out of the ordinary, and in my view neither the employee nor legal representatives conducted themselves in such a manner as to render reinstatement impracticable. Compare First Rand Bank Ltd v Language and Others, Unreported decision of the Labour Appeal Court, Case DA 4/2012.

[20] The employee has enjoyed substantial success on appeal, and I see no reason why costs should not follow the result.

[21] I make the following order:

1. The arbitration award issued by the second respondent under case number GAEK 8321-12 is reviewed and set aside.

2. The award is replaced with the following award:

‘The dismissal of the applicant, Paul Lekota, was substantively unfair.

The respondent, Waltons (Pty) Ltd, is ordered to reinstate the applicant to the position he formerly occupied, with no loss of benefits or backpay, retrospectively to the date of his dismissal’.

3.

The third respondent is to pay the applicant’s costs in the review application.

____________

Fourie,AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES:

For the Applicant:

Advocate D Whittington,

Instructed by:

Ismail and Dahya Attorneys

For the Respondents:

Mr R Acheson, Lee and McAdam Attorneys

[1] (2010) 31 ILJ 452 (LC) at para 33.