Shoprite Checkers v Commission for Conciliation Mediation and Arbitration and Others (D1288/2018) [2022] ZALCD 13 (24 March 2022)

Shoprite Checkers v Commission for Conciliation Mediation and Arbitration and Others (D1288/2018) [2022] ZALCD 13 (24 March 2022)

The court found that the commissioner misconceived the nature of the inquiry and arrived at an unreasonable result. The evidence established that the missing R10,000 could only have gone missing while in the possession of the third respondent, as the cash bags were intact when collected and delivered to the bank, and the bank's processes and audit trail were secure. The circumstantial evidence supported the inference that the third respondent was grossly negligent in her duties. The procedural fairness of the dismissal was upheld, as the disciplinary process afforded the third respondent a fair opportunity to state her case, and the introduction of polygraph evidence did not prejudice...

Citation
[2022] ZALCD 13
Parties
Applicant: Shoprite Checkers; Respondent: Commission for Conciliation, Mediation and Arbitration; Respondent: Ravitha Maharaj N.O.; Respondent: Thabile Millicent Ngcobo
Court
Labour Court Durban
Jurisdiction
South Africa
Judgment Date
24 March 2022
Case Number
D1288/2018
Procedural Posture
Review Application / Judgment on Review of Arbitration Award
Outcome
The application for review is granted; the arbitration award is reviewed and set aside; the dismissal of the third respondent is found to be substantively and procedurally fair; no order as to costs.
Judges
Hiralall
Legal Topics
Review of Arbitration Award, Gross Negligence, Procedural Fairness, Circumstantial Evidence
Labour Law Civil Procedure Review of Arbitration Award Gross Negligence Procedural Fairness Circumstantial Evidence

Case Brief

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Parties

Shoprite Checkers

Applicant

Commission for Conciliation, Mediation and Arbitration

Respondent

Ravitha Maharaj N.O.

Respondent

Thabile Millicent Ngcobo

Respondent

Procedural Posture

Review Application / Judgment on Review of Arbitration Award

Legal Issues

  1. 1 Whether the arbitration award issued by the second respondent was one that a reasonable decision-maker could reach.
  2. 2 Whether the dismissal of the third respondent was substantively and procedurally fair.
  3. 3 Whether the circumstantial evidence supported the inference of gross negligence by the third respondent.

Ratio Decidendi

The court found that the commissioner misconceived the nature of the inquiry and arrived at an unreasonable result. The evidence established that the missing R10,000 could only have gone missing while in the possession of the third respondent, as the cash bags were intact when collected and delivered to the bank, and the bank's processes and audit trail were secure. The circumstantial evidence supported the inference that the third respondent was grossly negligent in her duties. The procedural fairness of the dismissal was upheld, as the disciplinary process afforded the third respondent a fair opportunity to state her case, and the introduction of polygraph evidence did not prejudice...

Court Disposition

The application for review is granted; the arbitration award is reviewed and set aside; the dismissal of the third respondent is found to be substantively and procedurally fair; no order as to costs.

Orders

  • The application for review of the second respondent’s award is granted.
  • The second respondent’s award under case number KNDB 578-17 is reviewed and set aside.