Masingo v CCMA and Others (JR 1742/15) [2016] ZALCJHB 259 (21 June 2016)

THE LABOUR COURT OF SOUTH AFRICA, JOHANEEBURG

JUDGMENT

Case No: JR 1742/15

Not Reportable

In the matter between:

MASIGO MASIGO..................................................................................................................Applicant

And

CCMA............................................................................................................................First Respondent

COMMISSIONER L SHEAR.................................................................................Second Respondent

CHIPBASE NORTHRIDING/ILIAD

AFRICA TRADING (PTY) LTD...............................................................................Third Respondent

Heard: 07 June 2016

Delivered: 21 June 2016

Summary: An unopposed review application. The applicant alleges that the commissioner failed to conduct a proper enquiry into the issues and misunderstood his defence. The commissioner misconducted himself. Held: (1) The commissioner committed misconduct in relation to his duties. (2) The award is reviewable in law. (3) There is no order as to costs.

Judgment

MOSHOANA, AJ

Introduction

[1] This is an unopposed application to review and set aside an arbitration award in terms of which the commissioner found the dismissal of the applicant to be substantively fair.

Background facts

[2] The third respondent employed the applicant as a junior salesperson. On or about 02 April 2015, an amount of R37 807.18 was paid into the account of the third respondent. On 31 March 2015, a quotation was issued to one Ashley Mabusa for goods to the value of

the said amount. The said quotation was valid until 14 April 2015. In the said quotation, the said Ashley Mabusa was informed that all cheques require bank clearance. A minimum of five working days is the minimum clearance period. Bank transfers and electronic fund transfers will obtain clearance once it reflects on the bank statements. On 7 April 2015, an amount of R38 807.18 reflected on the bank statement of the third respondent under reference QUO/6001. Following that Mrs Mclaren informed the applicant that the money was in the bank as reflected on the bank statement.

[3] The applicant as usual issued an invoice and the customer collected the goods. On 8 April 2015, the bank statement reflected that the payment was reversed with the narration ‘UNPAID 201027410 CHQ STOLE’. On 13 April 2015, the applicant received notification to attend a disciplinary hearing. He was charged as follows:

‘Gross negligence alternatively breach of employee’s duty of good faith to the company in that on Wednesday 08 April 2015 you generated an invoice for the customer on your COD account, you grossly/negligently failed to allow a waiting period for a payment

made on line, you further allowed the goods to be released to the customer, while you knew/should have known that you may release the goods after the waiting period. Your actions/behavior resulted in the company suffering a direct loss of R 37 807.18.’

[4] Following a disciplinary, the applicant was found guilty and dismissed. Aggrieved thereby, the applicant approached the CCMA. The

second respondent was appointed to resolve the dispute through arbitration.

Grounds of Review

[5] The applicant complained that during the course of the arbitration, the commissioner held private discussions with the third respondent’s representative without explaining to him what was to be discussed. After the private discussion, the third respondent’s representative adopted a different course in presenting the case. Thereby the commissioner assisted the third respondent. Further, he complained that the commissioner misunderstood his version. He was not allowed to lead evidence or to call witnesses that he had subpoenaed.

Evaluation

[6] In order to consider the applicant’s complaints, the court had regard to the record of the proceedings. Section 138 does allow the commissioner some flexibility, however, the overall consideration is fairness of the entire process to both parties. At the very beginning of the arbitration, the commissioner advised the parties that what will guide him in the matter is evidence and nothing else. One Moloto appeared as a representative of the third respondent. He asked the commissioner to make an opening statement.

However, the opening statement became a narration of what happened. The commissioner suddenly without warning the parties adopted what appeared to be an inquisitorial approach. In the course of that approach, he without any warning to any of the parties, the applicant in particular, said to the third respondent’s representative that ‘[they] can have a quick chat outside’. Shortly after this, the record reflects that the third respondent’s representative presented some bundle of documents and made reference to certain pages.

[7] After a long narration, the record reflects that the commissioner turned to the applicant and asked certain questions. The applicant told him about the practice that once Mclaren advise that the money is in the bank; the goods will be invoiced and released. He

informed him that Mclaren told him, the applicant that the money is in the bank. Further upon the commissioner’s question, the applicant told him that he followed a standard procedure. That procedure being that they do not invoice until the money is in the bank and it was confirmed to him that the money is in the bank after which an invoice was generated. Further, he told him that he generated the invoice according to the way he was taught, which is once the money reflect and is confirmed to be in the bank.

[8] There is no reflection that any witnesses were called or questioned, in particular Mclaren. To my mind, the commissioner misconducted himself when he had a chat with one party without explaining to the applicant why he is doing so. The fact that after such a chat, the other party adopted a different course lends credence to the applicant’s complain that the commissioner assisted the other party. Misconduct in the course of the proceedings is a ground for review.

[9] The commissioner’s award is very brief. His analysis is effectively two paragraphs. In his analysis, it is clear that he ignored the fact that Mclaren told the applicant that the money is in the bank. He ignored the standard practice that the applicant told

him about, which no one contested to be the standard practice. The fact that the applicant knew or did not know a customer is not a relevant consideration. The applicant gave account of the standard procedure, which procedure he followed. That being the case, a finding that the applicant was negligent is not reasonable. Therefore to my mind, the commissioner’s award is not justifiable and is not one that a reasonable commissioner will issue and accordingly reviewable.

[10] What then follows is what should happen to this matter. The court has sufficient material to determine whether the applicant was

guilty as charged or not. The narration that the standard procedure is to go by the word of Mclaren was never disputed. Indeed, according to the bank statement, the money reflected on 7 April 2015. There was also evidence that the transfer was made on 2 April 2015.[1] The money was only reversed on 8 April 2015, which was six days after the transfer. There is no dispute that Mclaren, who was not called as a witness at the arbitration, confirmed that the money was in the bank account. According to paragraph 3 of the quotation letter, bank transfers and electronic fund transfers will obtain clearance once it reflects on the bank statements (page 12 of the record). The bank statement reflects that on 2 April 2015, the third respondent’s bank account was credited with an amount of R37 807.18. Mclaren printed the statement on 7 April 2015 as reflected at page 18 of the record. The five days clearance period should be allowed only if the clearance is not obtained immediately.

[11] To my mind, the applicant is not guilty of negligence let alone gross negligence as alleged. He only got to know on 8 April that the payment was reversed with a notation that the cheque was stolen. He did not know nor was he told by anybody that the payment

was by way of a cheque. Therefore, there was no fair reason to dismiss the applicant. The record reflects that the applicant indicated his wish to be reinstated. There is no evidence on record to suggest that the primary remedy is to be excluded.

[12] Accordingly, I am of a firm view that the award should be reviewed and set aside and be replaced with an order that the dismissal is substantively unfair; and that the applicant be reinstated from the date of dismissal without loss of benefits.

Order

[13] In the results, I make the following order:

1. The award issued by commissioner Shear is reviewed and set aside. The dismissal of the applicant is substantively unfair. The third respondent is ordered to reinstate the applicant effective 24 April 2015 without loss of benefits.

2. There is no order as to costs.

Moshoana, AJ

Acting Judge of the Labour Court of South Africa

APPEARANCES

For the Applicant: In Person.

For the Respondents: No appearance

[1] Pages 15-17 of the record.