Shoprite Checkers (Pty) Ltd v Makaloi and Others (PR98/23) [2024] ZALCPE 36; [2024] 12 BLLR 1312 (LC) (26 August 2024)

FLYNOTES: LABOUR – Dismissal – Consumption of stock – Substantive fairness – Employee made no concession that he consumed any of the applicant’s trading stock – Whether sugar was from employee’s own provision or from applicant’s cannister – Video doesn’t show location from which sugar was taken – No live and direct evidence of consumption – Applicant failed to prove that employee had consumed foodstuffs in undesignated area – Application dismissed.

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable

Case No: PR98/2023

In the application between:

SHOPRITE CHECKERS (PTY) LTD Applicant and GODFREY MAKALOI First Respondent ZOLISWA TABO N.O. Second Respondent COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (‘CCMA’) Third Respondent

Heard: 3 July 2024

Delivered: 26 August 2024

JUDGMENT

SMITH, AJ

Introduction

[1] This matter was enrolled and heard by me on 3 July 2024 in the unopposed motion court. Thereafter, judgment was reserved. The application is an unopposed review, in which the Applicant seeks to set aside an arbitral award which was made by the Second Respondent under the auspices of the Third Respondent.

[2] The impugned award relates to an unfair dismissal dispute which was referred by the First Respondent employee. In place of the award, the Applicant urges me to either substitute a decision of procedural and substantive fairness or to remit the dispute back to the Third Respondent for consideration afresh before a different commissioner.

[3] Mr Grobler appeared before me to argue the application. He also prepared the Heads of Argument and Practice Note.

Litigation history

[4] The First Respondent, to whom I shall refer to as the “employee” throughout, was employed as a baker by the Applicant employer at its bakery at one of its Shoprite stores in Kimberley.

[5] This application originated from the Applicant’s loss of sugar in its bakery. The employee was charged with serious misconduct. This took the form of the stirring of sugar into the employee’s warm drink on company time in an area which was undesignated for the consumption of food or drink. The direct evidence on the latter point is security CCTV footage. However, the video evidence fails to capture the employee drinking his warm drink. An inference was made by the Applicant’s management that the employee drank this sugared drink. One of the charges preferred against the employee at the disciplinary hearing stage is the consumption of company stock (i.e. the sugar from a company store adjacent to the bakery).

[6] The employee was dismissed after an internal disciplinary hearing. He referred an unfair dismissal dispute to the Third Respondent Commission. After conciliation failed, it was arbitrated before the Second Respondent, to whom I shall refer to as the “Commissioner” throughout. Procedural and substantive fairness were placed in issue before the Commissioner.

[7] In her 10-page arbitral award, the Commissioner finds that the employee was procedurally fairly dismissed, but that this dismissal was substantially unfair. His award made provision for the calculation of back-pay of some 3 months and 2 weeks; reinstatement to his previous position, with effect from 10 January 2023.

[8] The procedural fairness of the award is not under challenge.

[9] In its founding affidavit, the Applicant’s HR manager, Mr Stander, (who also represented it during the arbitration proceedings) complains that the decision reached by the Commissioner is not one which a reasonable decision-maker could have reached on the evidential material which was placed before her for determination.

[10] Essentially, the Commissioner determined that the Applicant had not proved to a sufficient standard that the employee had consumed foodstuffs in an area which I will refer to as the “undesignated area”.

[11] It is this principal finding to which the Applicant has mounted its challenge on the reviewability of the Commissioner’s decision.

[12] The Applicant elected not to file a Supplementary Affidavit in which it sought to broaden its challenge to the Commissioner’s outcome, after receipt of the record from the Commission.

[13] I have read each of the service affidavits deposed to by various employees at the Applicant’s attorney of record’s firm. I am satisfied that notice of this application has been brought to the attention of the employee’s union, SACCAWU. Whether it has brought the application to the attention of its member cannot be determined.

[14] I turn now to the material facts which served before the Commissioner and then I shortly will turn to a summation of the Applicant’s principal arguments before me.

Material facts

[15] As mentioned by me, the employee is a baker, having been so employed since 1991. He has a clean record of service.

[16] This application turns on an analysis of video footage, and the inferences and conclusions of law to be drawn therefrom.

[17] Video footage shows an unidentified person stirring something into a mug of either tea or coffee. The employee stipulated that the person depicted in that video was him. He also admitted that the substance which was stirred into that warm drink was sugar. The video doesn’t show the person drinking the warm drink, only him holding the mug. The employee made no concession that he drank the warm drink; and therefore consumed any of the Applicant’s trading stock.

[18] I now turn to the sugar. Employees at this Shoprite store may request provisions from what is known from the Record as the ‘cash office department’. Sometimes employees bring their own containers which are used to collect perishables such as tea, coffee, sugar and powdered milk. These items may take some days for each employee to consume. When not used, these perishables would be kept in the employees’ individual lockers for their later use.

[19] On this occasion, the employee’s own provision of sugar was kept inside the store within the bakery area. It is also in this same store that the Applicant’s large cannister (about 25kgs) of sugar is kept. It is from this cannister that bakers would use the sugar for the production of the bakery’s baked goods for sale to customers.

[20] The legal question for determination by the Commissioner was from whence did this sugar come? The answer is from one of two alternatives: The employee’s own provision, or from the Applicant’s cannister. No direct evidence was on point, only circumstantial. I return to this later.

The employee’s version

[21] The employee admitted, during the arbitral proceedings, that he used sugar in his warm drink. However, he denied that this sugar was taken from the Applicant’s cannister (which was referred to in the transcribed record as “department sugar”).

The Applicant’s argument

[22] The Applicant criticised the Commissioner for her failure to assess the material evidence properly. This caused the Commissioner to reach an unreasonable result and one which a reasonable arbitrator couldn’t reach on the evidential material which was placed before her.

[23] There were two main grounds of contention pressed in written argument: The first being that the Commissioner failed to have clear regard to Mr Beukes’s[1] live evidence on the location and ownership of the sugar which was stirred into the warm drink. The second ground was the Commissioner’s

failure to resolve competing, destructive versions.[2]

Charges which were preferred against the employee

[24] The employee was charged with serious misconduct. He was alleged to have, between 17.10.2022 and 22.10.2022, (1) consumed the Applicant’s stock, in an undesignated area; (2) his failure to follow staff buying procedures; and (3) which caused the Applicant stock shrinkage.

Application of the admitted, or common ground facts, to the law

[25] Mr Grobler points to the live evidence of Mr Beukes, the grocery manager, who gave evidence of the location and ownership of the sugar stirred into the warm drink, as being dispositive of the question of consumption. Namely, that the sugar which was taken, was Shoprite’s sugar and not the employee’s own provision.

[26] I have difficulty with this submission for the following reason: Mr Beukes’s evidence was not direct evidence. It was an inference which he made unreasonably. His logic suggests that because the sugar was stirred-in inside the store, it must therefore have come from the 25kg cannister and not from the employee’s packet. Two equally possible inferences arise – either the sugar was taken from Shoprite’s cannister or from the employee’s own provision.

[27] The inference is not the most probable inference to be drawn from the admitted or common ground facts.[3]

[28] The Commissioner correctly and reasonably identifies the true nature of the inquiry at paragraph 28 of her Award. At her paragraph 31 thereof, she correctly records that the video doesn’t show the location from which the sugar was taken and then stirred-in the warm drink. The employee never admitted to taking sugar from the department’s cannister. No live, direct evidence could be led on this topic by the Applicant. From the admitted documentary exhibits presented to the Commissioner, there was no record of a stock-take on the sugar in the department’s store which reveals the existence of stock-shrinkage. The Commissioner’s analysis of the evidence before her, at this crucial stage, is neither unreasonable, nor does it produce an unreasonable outcome.

[29] The live evidence of Mr Beukes’s on the location and ownership of the sugar which was stirred into the warm drink is, in my view, immaterial as it was an impermissible inference which was drawn by him.

[30] It should be recalled that the employee was charged with the consumption of the Applicant’s stock. The Applicant could offer no evidence of consumption – irrespective of whether it be sugar from the 25kg cannister or the employee’s own provision. Neither the video evidence nor direct evidence could demonstrate the employee taking a sip from the mug. At most for the Applicant, the employee admitted stirring his own sugar into a warm drink. The ordinary dictionary meaning of consumption is “to eat; to drink or to ingest (food or drink)”. In my view, because consumption cannot be proven, it is a redundant task to now determine whether the consumption occurred in a designated area (i.e. the staff canteen) or on the sales floor (i.e. the bakery).

[31] I therefore find the outcome, and process of reasoning, to be reasonable by the Commissioner. Her finding that the Applicant failed to discharge the onus of proof, namely; to prove firstly, the existence of the rule; and secondly, its contravention, cannot be faulted.

[32] Because the Applicant, which bore the onus to prove the fairness of the dismissal failed to mount a prima facie case against the employee, any criticism of his representative’s failure to put the employee’s version is unwarranted. The employee’s representative did challenge Mr Beukes’s live evidence on the employees’ ability to drink on the sales floor in the early morning.

[33] For Counsel to style the dispute between the two parties as being mutually irreconcilable, and that resort ought to have been had to the Stellenbosch Farmers’ Winery Group Ltd and Another v Martell et Cie and Others (SFW)[4] decision by the Commissioner tends to overstate the argument.

[34] It must be borne in mind that the emphasis is on the outcome of referral and not on the reasons given for arriving at the outcome[5].

[35] What follows next is the charge that the employee didn’t follow staff buying and cancelling procedures. The employee gave evidence on this aspect, as did his witness, Mrs van Staden, who confirmed that she gave the employee his own provision of sugar from the cash office department. She was not cross-examined to any significant degree by the Applicant’s representative. Certainly, her evidence was not the subject of any specific challenge by the Applicant.

[36] Therefore, the Commissioner’s finding on Charge 2 cannot be faulted as an unreasonable outcome, bearing in mind the evidential material which was before her on this charge.

[37] Lastly, the charge which relates to the employee’s causing loss to the Applicant. The charge of consumption and the failure to follow staff buying procedures are relevant to this charge. As neither of these two charges could be proven by the Applicant, it stands to reason that the employee has caused no loss to the Applicant.

[38] Again, the Commissioner’s finding on Charge 3 cannot be faulted as an unreasonable outcome, bearing in mind the evidential material which was before her on this charge.

En passant

[39] In preparation of this judgment, I noticed that the award was received by the Applicant on 12 April 2023; that the review application was hand-delivered on 22 May 2023 to all three respondents and issued out of this Court by its Registrar on 30 May 2023. By my rough calculations, the application has been applied for outside the statutory six weeks[6] provided for in s 145(1)(a) to the Labour Relations Act, Act 66 of 1995. In the absence of a substantive application to condone the statutory non-compliance, this is a further ground upon which to dismiss this application. Were it not for a submission by Counsel at paragraph 3 of his Heads of Argument that the application was hand-delivered timeously, I would’ve inspected the aspect of service more closely. Even if I am wrong in my decision on the reviewability of the Commissioner’s decision, this application falls to be dismissed

on the basis that it has been brought out of time.

Conclusion

[40] I therefore intend on making no order in favour of the Applicant in its Notice of Motion. My order follows underneath.

[41] The following order is issued:

Order

1. The application is dismissed.

D. A. Smith

Acting Judge of the Labour Court of South Africa

Appearances:

For the Applicant: Mr S. Grobler

Instructed by: Lovius Block Attorneys, Bloemfontein

c/o Kaplan Blumberg Attorneys, Gqeberha

[1] Mr Beukes is the Applicant’s grocery manager.

[2] This relates to Mr Beukes’s version and that of the employee’s.

[3] AA Onderlinge Assuransie-Assosiasie Bpk v De Beer 1982 (2) SA 603 (A); [1982] 4 All SA 169 (AD).

[4] 2003 (1) SA 11 (SCA); [2002] ZASCA 98 at para 5.

[5] Fidelity Cash Management Service v Commission for Conciliation, Mediation and Arbitration and others (2008) 29 ILJ 964 (LAC); [2008] 3 BLLR 197 (LAC) at para 100.

[6] Madlala v Nampak Sacks (Pty) Ltd and others [2008] 3 BLLR 267 (LC); Zululand Anthracite Colliery v Commission for Conciliation, Mediation and Arbitration and another (2001) 22 ILJ 1213 (LC); [2001] ZALC 6. The date upon which the application ought to have been served and filed is by 21 May 2023.