Zitha v Commission for Conciliation, Mediation and Arbitration and Others (JR2224/15) [2017] ZALCJHB 350 (3 October 2017)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not reportable

Case no: JR2224/15

In the matter between:

THEMBISILE

ZITHA Applicant and

COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION First Respondent

COMMISSIONER AKIM, N.O. Second Respondent

EDCON

LIMITED Third Respondent

Heard: 24 August 2017

Delivered: 3 October 2017

Summary: Section 145 review – commissioner finding employee guilty of gross negligence for failing to verify that merchandise properly returned before authorising refund of cash to customer and that dismissal appropriate – award found reasonable

JUDGMENT

MYBURGH, AJ

Introduction and background

[1] The employee seeks to set aside on review the commissioner’s award, in terms of which he found that the employee’s dismissal by the company for gross negligence was substantively fair. The review application is opposed by the company.

[2] The essential background is this.

a) The employee appears to have been initially employed at Edgars, Maponya Mall as a retail associate. On 3 April 2011, she underwent

multi-skilling training and signed receipt of a standing instructions policy addressing key risk factors for service centre operators

(SCOs) (“the policy”). The policy addresses, inter alia, “processing a cash credit”, albeit that at the time, this was not part of the employee’s duties.

b) In October 2011, the employee appears to have transferred to Edgars, Westgate Mall, where she took up the position of a sales specialist working on the floor. In May 2014, following a large-scale retrenchment exercise, the employee was reassigned to the credit office at the store and worked as a credit officer,[1] reporting to Ms Mishoene, the credit manager.

c) As this involved a move from the sales floor to working on a terminal, Ms Mishoene (on her version) trained the employee in the operation of the terminal. Once she was competent in performing all the relevant transactions, Ms Mishoene then gave her authority to authorise returns (see below) – this in circumstances where Ms Mishoene found herself too busy to attend thereto personally.

d) By at least December 2014, the employee had been given a returns password (effectively an authorisation code) by Ms Mishoene, which enabled her to authorise returns and the paying out of cash to customers (or otherwise crediting them). Such a transaction would be processed by a terminal operator (a SCO), who would then call upon the employee to authorise the transaction.

e) The employee then attended to performing these duties. By way of example, on 31 December 2014 alone, the employee authorised scores of return transactions. All returns are captured by way of video surveillance, which is monitored and evaluated by the control room. Up until the date of the incident in question (see below), none of the return transactions authorised by the employee was picked as being irregular by control room personnel.

f) On 21 February 2015, the employee authorised a cash credit transaction without checking / verifying the returned item, which resulted in a loss of R1999 to the company. The SCO involved was one Gemina. The irregular transaction was picked up by the control room, which led to an investigation of the transaction.

g) This gave rise to the employee being charged with gross negligence, which was said to have breached the trust relationship.

h) On 11 May 2015, following a disciplinary enquiry at which she was found guilty as charged, the employee was dismissed. Gemina was also dismissed.

i) At the ensuing CCMA arbitration before the commissioner, the employee admitted (at least) the factual component of the charge against her, i.e. that she had entered her authorisation code without checking / verifying the returned item / transaction at all. But she contended that her dismissal was substantively unfair because: (i) she was not aware of the policy / rule which regulates the authorisation process; and (ii) she was not given sufficient training to enable her to perform her duties properly, with the result that the sanction of dismissal was (allegedly) inappropriate.

j) The controversy boiled down to this. According to the company, when it came to returns, what was required of the employee was this: she had to check the returned item/s against the customer’s till slip and what was captured on the system, and, if they corresponded, enter her authorisation code on the terminal operated by the SCO before cash was paid out to the customer. (This is referred to below as “the rule” and accords with the relevant text of the policy referred to above.) According to the employee, on the other hand, she was simply required to enter her authorisation code when requested to do so by the SCO, and was under no obligation to check / verify the transaction in any way.

k) Underlying this controversy was, inter alia, whether or not Ms Mishoene had given the employee on-the-job training on the aforesaid rule – as contended by Ms Mishoene, but denied by the employee.

l) At the arbitration, Ms Mishoene testified for the company, whereupon the employee gave evidence in her defence. As stated above, in his award, the commissioner found that the employee’s dismissal was substantively fair.

The commissioner’s award

[3] As a point of departure, the commissioner was critical of the employee’s evidence that she had only become aware of the policy during her suspension in 2015, when it was clear (as she went on to concede) that she signed receipt of the policy in 2011. This led the commissioner to find that this was “not consistent with [the employee’s] contention that she was not aware of the policy”.

[4] Turning to the issue of training, the commissioner found that the employee’s signature of the policy in 2011 also established that her “excuse that she was not trained [was] unjustifiable”. In relation to whether Ms Mishoene had provided the employee with on-the-job training, the commissioner found as follows:

“Agnes [Mishoene] testified that she provided the [employee] with an on the job training when she gave her an authorizing password. This version was placed in dispute. The [employee’s] version [was] that when Agnes gave her the password to authorise, she advised her that there was no need for her to be careful. I find it improbable in that this version was not put to Agnes.”

[5] In circumstances where the commissioner found that the employee was aware of the policy and had been given on-the-job training by Ms Mishoene, he appears to have concluded that the employee was guilty of gross negligence.

[6] Dealing pertinently with the issue of sanction, the commissioner recorded his rejection of the employee’s central attack on the fairness of the sanction of dismissal, namely that she had (allegedly) not been trained. In addition, the commissioner had regard to the loss suffered by the company, Ms Mishoene’s evidence that the trust relationship had been destroyed through the employee’s conduct, and to the fact that the company’s disciplinary code provides for dismissal for a first offence of gross negligence. In the result, the commissioner concluded that the sanction of dismissal was appropriate.

Grounds of review: analysis and evaluation

[7] In her founding and supplementary affidavits, the employee is critical of the commissioner’s award, contending that, in certain respects, he misunderstood / misconstrued the evidence, misinterpreted the evidence, failed to apply his mind to the evidence or attached insufficient weight to it, and that he failed to consider various considerations relevant to the issue of sanction.

[8] In argument before me, Ms Maharaj (who appeared for the employee) correctly accepted that, in circumstances where the employee ultimately attacks the reasonableness of the outcome of the award on review, the onus is on her to establish that – irrespective of the errors and misdirections that a fine tooth comb analysis of the award may uncover – the result of the award is, nevertheless, incapable of reasonable justification. Put differently, even if the commissioner’s award is open to criticism (as it is in certain respects), the question is whether the result of the award (i.e. that the dismissal was substantively fair) is one that a reasonable commissioner could not reach on all the material before him.[2] Only then will the award be reviewable for want of reasonableness.

[9] In circumstances where the employee admitted to not having checked / verified the return transaction at all on 21 February 2015 before authorising it by entering her authorisation code, her defence in relation to the issue of guilt was essentially that she did not know that she had to verify / check the transaction, because she was unaware of the rule and had not been trained on it (which effectively amounts to the same thing). In relation to sanction, insofar as she was guilty of misconduct, the thrust of the employee’s defence was that the absence of training rendered the sanction of dismissal inappropriate. The issue of training thus spanned both the issue of guilt and sanction.

[10] While the commissioner’s finding that the employee had knowledge of the rule contained in the policy as a result of having received training in 2011, at a time when the employee was in a different role, is open to criticism, to my mind, the key issue is whether the commissioner’s finding that Ms Mishoene gave the employee on-the-job training at the time of giving her the authorisation code in or about December 2014, is reasonable.

[11] In this regard, Ms Mishoene was unwavering in her evidence that she had given the employee such training and explained the rule to her, and that it would have made no sense for her to have given the employee the authorisation code on the basis that she should simply (blindly) enter it whenever asked to do so by a SCO. Under cross-examination, the employee experienced difficulty in explaining the purpose of entering a (secret) authorisation code, if it were not a double-checking mechanism. She also stated under cross-examination

that when Ms Mishoene gave her the authorisation code, she asked her what she was supposed to do with it; that Ms Mishoene had said that she must authorise return transactions; that she asked whether this would get her into trouble; and that Ms Mishoene had said, “I must not worry because I must just put [in] my number and my password only”. Quite correctly, the company’s representative put it to the employee at the arbitration that this conversation had not been put to Ms Mishoene under cross-examination.[3] Although the commissioner’s description of what was not put to Ms Mishoene (see para 4 above) may be inarticulate, he was correct in finding that a material aspect of the employee’s defence was, in fact, not put to Ms Mishoene. This raises a question mark about the credibility of the employee’s version – this in addition to the fact that it appears at odds with the inherent probabilities.

[12] In these circumstances, I am of the view that the commissioner’s finding that the employee was given on-the-job training by Ms Mishoene was not unreasonable. This is further borne out by the fact that, as submitted by Ms Oosthuizen (who appeared for the company), it is unlikely that the employee’s blind authorisation of returns would not have been picked up by the control room if she had done so since December 2014, which was implicitly her case. Instead, it appears more likely that the employee had properly acquitted herself in the past, but misconducted herself on 21 February 2015, for a reason that went unexplained by her.

[13] Once it is accepted that the employee was given on-the-job training (or that the commissioner’s finding to that effect was reasonable), then it seems to me that a finding (implicitly made by the commissioner) that the employee was grossly negligent on 21 February 2015 is also not unreasonable. In effect, the employee was guilty of a dereliction of her duties, such as to qualify as gross negligence.

[14] What remains is to determine whether the upholding of the sanction of dismissal was reasonable in all the circumstances. While one may well argue, as Ms Maharaj did, that the sanction of dismissal for a first offence by an employee with a clean record and long service was unfair, in order to succeed, the employee in this matter must go further and establish that a reasonable commissioner could not have come to a different conclusion, i.e. that the decision on sanction fell outside of a range of reasonableness.

[15] To my mind, the employee has fallen well short of establishing this. Indeed, where an employee is entrusted with authorising the payment of cash out to customers who return merchandise in the retail sector – which self-evidently requires the verification / checking of the legitimacy of the transaction – and inexplicably fails to acquit herself of that duty, thereby causing a loss to her employer of some R2000, one can easily conceive of many reasonable and fair-minded commissioners upholding the sanction of dismissal. In the result, as with his determination of guilt, I am of the view that the commissioner’s determination of sanction was not unreasonable.

Order

[16] In the circumstances, the following order is made:

a) The review application is dismissed;

b) There is no order as to costs.

________

Myburgh, AJ

Acting Judge of the Labour Court of South Africa

Appearances

For the applicant: N Maharaj of Legal Aid South Africa, Johannesburg Justice Centre

For the third respondent: V Oosthuizen of Shepstone & Wylie

[1] Also referred to in evidence as a credit assistant or associate.

[2] Sidumo & another v Rustenburg Platinum Mines Ltd & others [2007] 12 BLLR 1097 (CC) at para 110; Herholdt v Nedbank Ltd (Congress of South African Trade Unions as amicus curiae) [2013] 11 BLLR 1074 (SCA) at para 25.

[3] What had been put to Ms Mishoene under cross examination was simply this: “Zitha [i.e. the employee] will testify and dispute that you ever showed her that she should each and every time check.”