TR Liquor t/a Solly Kramers Parkhurst v Tau and Others (JR 2739/18) [2020] ZALCJHB 123 (13 August 2020)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: JR 2739/18

In the matter between:

TR LIQUOR t/a SOLLY KRAMERS

PARKHURST Applicant

and

ABEDNIGO TAU First

Respondent

COMMISSION FOR CONCILIATION

MEDIATION AND ARBITRATION Second

Respondent

COMMISSIONER XOLANI ALFRED

NYAMEZELE N.O. Third

Respondent

Enrolled: 8 July 2020

Decided on the papers

Delivered: In view of the measures implemented as a result of the Covid-19 outbreak, this judgment was handed down electronically by circulation to the parties' representatives by email. The date for hand-down is deemed to be 13 August 2020.

Summary: Review application – employer failed to prove a case of theft – award unassailable.

JUDGMENT

NKUTHA – NKONTWANA, J

Introduction

[1] This is a review application in terms of section 145(1)(a) of the Labour Relations Act[1] (LRA). The applicant is challenging the arbitration award dated 7 December 2018, with case number GAJB25069-18 issued by the fourth respondent (Commissioner) under the auspices of the third respondent, Commission for Conciliation Mediation and Arbitration (CCMA). The Commissioner found that the dismissal of the first respondent was procedurally fair but substantively unfair and ordered the applicant to pay the first respondent compensation of R32 000.00 which is equivalent to eight months’ salary.

[2] The application is opposed by the first respondent, Mr Abednigo Tau.

Factual background

[3] The first respondent was employed by the applicant in March 2018 as a General Assistant and he was dismissed by the applicant on 1 November 2018 on allegations of theft or attempted theft of a cell phone that belonged to a staff member of one of the applicant’s customers, Andiccio 24. The applicant received a call from Andiccio 24 alleging that when the applicant and his assistant were making deliveries, a cell phone disappeared and was later found in their delivery vehicle. The police were called but there was no criminal charge laid against the first respondent.

[4] Andiccio 24’s management wrote a letter of complaint to the applicant over the incident and suggested that the first respondent be dismissed as his conduct jeopardised their relationship. The applicant led evidence to the effect that the first respondent was subjected to the polygraph test which he failed. As such, the decision to dismiss the first respondent was informed by the polygraph results. The applicant further contended that it was not for the first time that the first respondent had failed a polygraph test. Previously, he had been warned that if he was found guilty of theft, he would be dismissed. It is common cause that the first respondent had a history of transgressions which led to written and final written warnings.

[5] The first respondent denied any wrong doing. It was his evidence that on the day in question, his assistant was the first person to take the goods they were be delivering inside Andiccio 24 and he remained in the vehicle. When the assistant came back, it was his turn to go inside to drop the remainder of the goods. When he went inside, he was then accused of stealing the cell phone. He was searched and nothing was found on him. Andiccio 24’s staff members escorted him to the vehicle and started searching

inside the vehicle. One came back with the cell phone and said that he had found it behind the vehicle seat. The third respondent denied that he stole the cell phone even though he failed the polygraph test.

Analysis

[6] Strangely, Andiccio 24’s management did not want to be involved in the arbitration proceedings in order to assist in proving the case of theft against the first respondent. The only evidence that was led is what was reported to the applicant by Andiccio 24 and the polygraph test. There was no reason given as to why Andiccio 24 did not wish to be part of the arbitration proceedings when it was the complainant, so as to justify accepting the hearsay evidence. Also, the Commissioner took a view that the polygraph test constitutes an expert evidence and failure to lead evidence of the expert that conducted the test was fatal to the applicant’s case.

[7] In the end, the commissioner was left with the first respondent’s version of defence that was not disputed. He correctly found that the applicant failed to prove a case of theft or attempted theft. I note that in its replying affidavit, the applicant, for the first time, asserts that the first respondent was not dismissed for theft but for bringing its name into disrepute. Obviously, the applicant is just clutching at straws.

[8] The review test is settled.[2] In my view, this is one of the many unmeritorious review applications which borders on the abuse of court process. The Commissioner clearly understood the nature of the enquiry, succinctly addressed himself to the evidence that was before him and arrived at a reasonable result.

Conclusion

[9] In all the circumstances, the award is unassailable and must stand. The first respondent did not pursue costs as he is not legally represented.

[10] In the premises, I make the following order:

Order

1. The review application is dismissed.

2. There is no order as to costs.

__________________

P Nkutha-Nkontwana

Judge of the Labour Court of South Africa

[1] Act 66 of 1995, as amended.

[2] See: Sidumo and Another v Rustenburg Platinum Mines Ltd and Others (2007) 28 ILJ 2405 (CC); see also: Head of Department of Education v Mofokeng and Others (2015) 36 ILJ 2802 (LAC) at para 32 to 33; Palluci Home Depot (Pty) Ltd v Herskowitz and Others [2015] 5 BLLR 484 (LAC); (2015) 36 ILJ 1511 (LAC) at paras 15 to 16.