Moshiane v Commission for Conciliation, Mediation and Arbitration and Others (JR1057/17) [2023] ZALCJHB 209 (14 July 2023)

IN THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case No: JR 1057/17

In the matter between: SIBANDA MPHUMULENG MOSHIANE Applicant and COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent EVA NGOBENI N.O. Second Respondent MR PRICE Third Respondent

Heard: 23 February 2023

Delivered: This judgment was handed down electronically by circulation to the parties' legal representatives by email and publication on the Labour Court’s website. The date and time for hand-down is deemed to be on 14 July 2023

JUDGMENT

TLHOTLHALEMAJE, J

Introduction:

[1] The applicant seeks an order reviewing and setting aside the arbitration award issued by the second respondent (Commissioner) acting under the auspices of the first respondent, the Commission for Conciliation Mediation and Arbitration (CCMA). In the award, the Commissioner found that the dismissal of the applicant by the third respondent (Mr Price) was procedurally and substantively fair.

Background:

[2] The applicant was employed by Mr Price at its Tembisa branch as a supervisor, and was responsible for inter alia overseeing staff, securing assets and cashing up. She was called to a disciplinary hearing on 19 January 2017 to answer to allegations of misconduct[1], and was subsequently dismissed on 6 February 2017. Aggrieved with the dismissal, the applicant on 8 February 2017 referred an alleged unfair dismissal dispute to the CCMA. When the dispute could not be resolved at conciliation, it then came before the Commissioner for arbitration, leading to the award that is the subject of these review proceedings.

The evidence before the Commissioner and the findings:

[3] The evidence on behalf of Mr Price’s Store Associate, Ms Thendani Nevhondo, whose duties included customer service, cash desk and floor coverage was as follows;

3.1 Mr Price had a cashing-up procedure in place, in terms of which the presence of a supervisor was required to confirm the amounts cashed up and determine whether there are any discrepancies. If there were discrepancies, the employee/cashier would have to be issued with a warning.

3.2 On 19 October 2016 as she was at her cash-register attending to the customer, an altercation took place between the applicant and another employee, Abednego at the latter’s cash register. This followed upon the applicant having had done cash up on Abednego’s cash register and discovered that there was a cash shortage of R200.00. Abednego’s contention at the time was that he had done a cash up before the applicant did hers and everything was in order. An argument then ensued between the two and Abednego then suggested that they should perform a search on each other.

3.3 As they were shouting at each other about the shortage, and after Abednego had suggested that they should perform a search on each other, the applicant then took off her belt and lowered her jeans to allow Abednego to conduct a search on her. Another shop assistant manager, (referred to as Nomasonto (Sonto)), who had overheard the shouting then came to where the two were and started taking photos of the incident on her phone as it unfolded. Sonto then did a recount of the cash register and confirmed that there were indeed shortages.

3.4 A search for the missing cash followed, and Sonto found the missing cash underneath a cash drawer. The discovery of the missing cash did not however stop the applicant and Abednego from shouting at each other, which according to Nevhondo made him uncomfortable, hence he held the view that the applicant should not be reinstated. She further contended that there was a searching procedure at the workplace where the need arose, which was normally conducted by security personnel.

3.5 Under cross-examination, she denied that the argument was in fact between Sonto and Abednego, or that it was the applicant that had called Sonto to intervene. He accepted that Sonto tried to intervene and told the applicant not to argue with a ‘fool’ (in reference to Abednego), and that was when another argument started between Sonto and Abednego. He insisted that he did not see Abednego touch the applicant’s breasts when searching her and reiterated that it was the applicant who had taken

off her jeans on her own accord. He confirmed that the argument took place at the time that there were no customers at the store.

[4] The evidence of Mr Thokozani Mahlangu, the regional manager and chairperson of the disciplinary inquiry was that the incident leading to the dismissal was brought to his attention by another store manager (Kobi). A disciplinary enquiry was held on 19 January 2017 in regards to the allegations. In considering the seriousness thereof, Mahlangu also took regard of another previous incident involving the applicant, when she had an altercation with her previous manager, and had threatened the latter with assault in the presence of customers.

[5] Mahlangu further testified that the applicant had a duty to protect the image of the employer, and that her conduct on the day in question had resulted in other employees losing faith in the applicant and moreover, the incident had damaged the public image of Mr Price. He testified that the incident had also resulted in the dismissal of Abednego and Sonto. He contended that at the internal enquiry, the applicant had conceded that she took off her jeans during her altercation with Abednego, but had subsequently changed her version of events despite having pleaded guilty at the internal enquiry.

[6] The applicant’s version of events was that on 19 October 2016 she was performing her duties at the cash desk and had attempted to cash up at Abednego’s cash register. She had discovered that there was a shortage of R200.00 and had then called Sonto as her senior to confirm the shortage. Upon the shortage being confirmed and after informing Abednego of same, the latter refused to follow the next step of verification with him, insisting that there was no shortage because he had counted the cash prior to the arrival of the applicant.

[7] It was at that point that Abednego had suggested that they should perform a search on each other. She had initially refused since the employer’s policy did not permit such a conduct. However, Abednego had insisted on the search, and he proceeded to search her on her upper body and breasts. When Abednego could not find the missing cash, he then suggested it must be in her jeans, and that she should undress since the cash may fall off..

[8] She testified that she was about to completely unfasten her belt when a Mr Samuel Moopa had arrived and instructed Abednego to refrain from conducting a body search on her and told them to look for the missing cash in the drawer. It was at that point that two R100 notes were found underneath the drawer. The applicant then told Abednego to apologise for accusing her of taking the money. At that point, Sonto had sought to reprimand Abednego for falsely accusing the applicant and in the process said to Abednego that he was ‘stupid’, resulting in an argument between the two. When Abednego objected to being called stupid, the

applicant attempted to intervene, but Abednego continued arguing and called her (applicant), a ‘bitch’. She further testified that Moopa at that stage intervened and pulled Abednego aside for him to cool down. At some point after the

incident, she and Abednego were called to the manager’s office where Abednego had apologised. The applicant however confirmed that she did not call upon Moopa to testify on her behalf at the internal enquiry.

[9] Moopa was employed as a supervisor and testified that on 19 October 2019 he was performing his mopping duties near the cash desk area when he overheard that Abednego had a cash shortage of about R200.00. Abednego had accused the applicant of stealing the missing money and had then attempted to search the applicant by forcing her to undress. The applicant had then called Sonto to come and resolve the matter by double checking the cash up.

[10] Due to the loud argument which had then ensued, he had decided to approach and assist in the search for the missing monies and it was at that point when he discovered the money underneath the cash drawer. After the cash was found, Sonto called Abednego a ‘fool’ for accusing the applicant of theft, and an argument ensued between the two. He then decided to pull Abednego aside so that he could cool off. When they came back and whilst Sonto and the applicant were finalising cashing up, Abednego referred to them as ‘bitches’.

[11] He accused Abednego of intimidating and scaring the applicant into being subjected to a body search by him and telling her to undress. She then proceeded to unfasten her belt to lower her jeans when he (Moopa) intervened, and indicated to Abednego that his conduct was inappropriate. At that point Abednego had already searched her on her back side and thighs, and the applicant was in the process of pulling her off her jeans below her waistline.

[12] Under cross examination, Moopa confirmed that when he joined in the search for the missing cash, Sonto, Abednego and Nevhondo were already at the scene. He however insisted that the applicant did not argue with Abednego and was at all times quiet as Abednego accused her of stealing the cash and demanded to body search her. He testified that the loud arguments were instead between Abednego and Sonto.

[13] The Commissioner found that in the light of the disputed facts, the evidence of Nevhondo was consistent as opposed to that of the applicant and her witness Moopa, which was riddled with inconsistencies regarding whether there was an argument between the applicant and Abednego. This was so since the applicant had testified that Abednego had searched her breasts and proceeded to her jeans, whilst Moopa had stated that she was searched by Abednego who put his hands on her buttocks and thighs. Furthermore, Moopa had initially stated that the applicant had lowered her jeans to an extent that her lower body was exposed. However, when probed further,

he changed his version, stating that the applicant had only unfastened her belt.

[14] The Commissioner thus concluded that Moopa was not a reliable witness, and further in view of the applicant having made gestures during Moopa’s testimony when he testified, his evidence was to be rejected. The Commissioner accepted the evidence presented on behalf of Mr Price as more probable and as such, it had discharged its onus in demonstrating that the applicant was guilty of misconduct. Moreover, the Commissioner concluded that since the applicant was a supervisor and had previously committed a similar offence, she had breached the trust relationship between the parties. This was further fortified by the fact that the other employees implicated in the altercation were also dismissed for the incident.

The grounds of review and evaluation:

[15] The applicant seeks a review of the award on the grounds that the Commissioner committed an irregularity by failing to explain or outline the process of arbitration; in accepting that she had previously committed a similar misconduct without any evidence having been adduced in that regard; that the Commissioner committed a misdirection in respect of whether her witnesses collaborated each other in regards to whether Abednego had performed a search on the applicant; by failing to resolve the disputed facts; by failing to assess the probability and reasonableness of her version and by finding the evidence of Nevhondo to be more probable in circumstances where he could not recall certain facts.

[16] The test on review is settled. The enquiry is whether the decision arrived at by the Commissioner on the evidence presented is one which no other reasonable decision-maker could have arrived at.[2] In determining whether the outcome is unreasonable, the court must consider whether, apart from the commissioner’s flawed reasons or any irregularity committed by the commissioner, the outcome could nevertheless be reasonable considering the issues and the evidence[3]. In Makuleni, it was held that the primary enquiry before a reviewing court is not whether the result arrived at by the commissioner could have been different, as that is an issue reserved for the court of appeal. Thus, the reviewing court is required to engage in a fair reading of the award in the context of the body of evidence adduced, and assess whether the conclusions of the commissioner are untenable. Only if the conclusion is untenable would a review and setting aside be warranted[4].

[17] Against the above principles and upon the evidence adduced and a perusal of the record, it follows that the first ground of review is clearly meritless. The transcribed record reflects that the Commissioner through an interpreter explained the process to the parties after legal representation was not allowed[5]. I did not understand anywhere from the record where the applicant had indicated that she was not able to follow the proceedings or how she was required to present her case.

[18] There is however merit in the applicant’s assertion that the Commissioner made conclusions on her alleged prior transgressions in the absence of evidence to that effect. Mahlangu had testified that upon statements having been received from the applicant and Bheki, the matter was not taken further. In my view this incident had no bearing on the second issue, nor could inferences be drawn therefrom.

[19] Even if the Commissioner committed an irregularity in having regard to the first alleged transgression, this cannot be said to have rendered the overall outcome as unreasonable. This is so in that the Commissioner had regard to other aspects of the evidence from which mutually destructive versions arose. In this regard, the principles set out in Stellenbosch Farmers' Winery Group Ltd and Another v Martell Et Cie and Others[6] found application. Thus, in making findings on the disputed facts, the Commissioner was obliged to do so having regard to the credibility of the various factual witnesses; their reliability; and the probabilities.

[20] To reiterate, the disputed facts related to whether there was a shouting match between the applicant and Abednego, and whether the applicant had amidst that argument, taken off her pants on her shop floor. In the disciplinary enquiry, the applicant had conceded that she took off her jeans to prove to Abednego that the missing cash was not on her person. Clearly the Commissioner had regard to the probabilities of the applicant’s version at arbitration proceedings, and that of her witness, Moopa, who on the other hand had testified that the applicant had merely unfastened her belt and was about to undress when he intervened. The Commissioner had rejected the evidence of Moopa on the basis that it was contradictory, and inconsistent with that of the applicant. Furthermore, there were inconsistencies and contradictions regarding how Abednego had conducted a search on the applicant, and whether he had searched her jeans and touched her upper body, or whether as Moopa had asserted, she was touched on her buttocks and thighs. It

was on this basis that the Commissioner found the evidence of Moopa to be unreliable.

[21] In the end however, the fact remains that because of the missing cash and the loud arguments between the applicant and Abednego, and further on the applicant’s own version and her initial concessions at the internal enquiry which the Commissioner was

obliged to have regard to, she had indeed taken off her jeans on the shop floor. Her explanation that she was forced by Abednego because he was aggressive and angry, or that she did so to demonstrate that she was not concealing the missing cash, is clearly improbable. As a supervisor, she was aware of what the searching procedures at the workplace were and she ought to have acted appropriately,

notwithstanding her desire to prove that she had not concealed the missing cash. There was clearly no basis for her as senior to

Abednego, to allow herself to be searched by him, let alone yield to his demands to take off her jeans on the shop floor. What led to the applicant’s version lacking more in credibility was that when asked under cross-examination why she had allowed Abednego to search her, her response was that she did not allow him and had told him that they could not search each other[7]. This was despite her earlier version in examination in chief, when she testified that Abednego had proceeded to search her on her upper body and breasts.

[22] Against the conflicting and contradictory versions of the applicant and Moopa, in line with the approach in Stellenbosch Farmers' Winery[8], clearly the Commissioner’s conclusions are unassailable, as she had indeed assessed the probabilities and credibility of the parties’ versions, and preferred the evidence of Nevhondo, since it was consistent and therefore manifestly credible and reliable.

[23] Equally, the Commissioner cannot be faulted for her conclusions that the applicant’s conduct was so unbecoming that it destroyed the trust relationship between the parties. This was so since she was a supervisor with other employees reporting to her, and her conduct ought to have been exemplary. Even on her own version, the internal procedures regarding how issues of missing monies and conflict in that regard were to be dealt with, combined with searching procedures, were well known to her. In such instances, the undisputed evidence was that the matter must be reported to the immediate supervisor, and in an event of a non-resolution, to be escalated to the assistant manager and then to the store manager. There was therefore no need for her to engage in loud arguments with Abednego or to submit to his demands that she should subject herself to a search by him.

[24] Since Abednego and Sonto were also dismissed, clearly there was consistent application of discipline in respect of the incident in question. In these circumstances, I agree with the conclusions of the Commissioner that in view of the applicant’s position and her knowledge of the procedures, the impugned conduct was therefore gross to an extent that it necessitated her dismissal. In the end, the Commissioner’s award is unassailable as it is supported by the evidence which served before her. The award therefore falls within the bands of reasonableness and it follows that the review application ought to fail.

[25] I have further considered the requirements of law and fairness in respect of the issue of costs. Upon a consideration of the circumstances of this case, in particular the applicant’s personal circumstances, I am of the view that a costs order is not warranted.

[26] Accordingly, the following order is made:

Order:

1. The applicant’s application to review and set aside the arbitration award dated 13 May 2017 under case number GATW 1906 issued by the second respondent is dismissed.

2. There is no order as to costs.

Edwin Tlhotlhalemaje

Judge of the Labour Court of South Africa

APPEARANCE: For the Applicant: B. Khanyile, of Khanyile M.B. Attorneys Incorporated. For the Third Respondent: M.G. Maeso, of Shepstone and Wylie Attorneys.

[1] The allegations of misconduct read as follows: Gross misconduct in that on 19 October 2016, you acted inappropriately when you: 1. You were arguing with a store associate (Abednigo) as the cash desk. And/or 2. You took your jeans off at the cash desk.

[1] The allegations of misconduct read as follows:

Gross misconduct in that on 19 October 2016, you acted inappropriately when you:

1. You were arguing with a store associate (Abednigo) as the cash desk.

And/or

2. You took your jeans off at the cash desk.

[2] See Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC) at para 110.

[3] Head of the Department of Education v Mofokeng and Others [2015] 1 BLLR 50 (LAC) at para 30 - 33

[4] Makuleni v Standard Bank of South Africa Ltd and others [2023] 4 BLLR 283 (LAC) at para 4.

[5] See page 6 (5) of the transcribed record, lines 20 - 24.

[6] 2003 (1) SA 11 (SCA) at para 5, where it was held; “On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral

areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.” or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction”

[6] 2003 (1) SA 11 (SCA) at para 5, where it was held;

“On the central issue, as to what the parties actually decided, there are two irreconcilable versions. So too on a number of peripheral

areas of dispute which may have a bearing on the probabilities. The technique generally employed by courts in resolving factual disputes of this nature may conveniently be summarised as follows. To come to a conclusion on the disputed issues a court must make findings on (a) the credibility of the various factual witnesses; (b) their reliability; and (c) the probabilities. As to (a), the court’s finding on the credibility of a particular witness will depend on its impression about the veracity of the witness. That in turn will depend on a variety of subsidiary factors, not necessarily in order of importance, such as (i) the witness’s candour and demeanour in the witness-box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence, (iv) external contradictions with what was pleaded and its evaluation of the general probabilities in another. The more convincing the former, the less convincing will be the latter. But when all factors are equipoised probabilities prevail.” or put on his behalf, or with established fact or with his own extracurial statements or actions, (v) the probability or improbability of particular aspects of his version, (vi) the calibre and cogency of his performance compared to that of other witnesses testifying about the same incident or events. As to (b), a witness’s reliability will depend, apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the opportunities he had to experience or observe the event in question and (ii) the quality, integrity and independence of his recall thereof. As to (c), this necessitates an analysis and evaluation of the probability or improbability of each party’s version on each of the disputed issues. In the light of its assessment of (a), (b) and (c) the court will then, as a final step, determine whether the party burdened with the onus of proof has succeeded in discharging it. The hard case, which will doubtless be the rare one, occurs when a court’s credibility findings compel it in one direction”

[7] Page 52 of the transcribed record, lines 19 24

[8] Ibid.