South Africa: Johannesburg Labour Court, Johannesburg

THE LABOUR COURT OF SOUTH AFRICA,

HELD AT JOHANNESBURG

Not reportable

Case no: JR1672/15

In the matter between:

Heard:           15 November 2016

Delivered:     18 November 2016

summary:      (Review – failure to consider material factors such that outcome would have been different if they had been considered)

JUDGMENT

LAGRANGE J

Introduction

[1] The arbitrator had found that the dismissal of the first respondent was substantively unfair, but had declined to reinstate her as she had not been entirely honest when confronted about an alleged theft even though she was not found guilty of theft. Consequently, the arbitrator awarded the employee 4 months compensation.

[2] The arbitrator’s reasoning in arriving at her findings is contained on paragraphs 33 to 40 of her award, and I do not intend to repeat those here.

Grounds of review

[3] The review application is unopposed.

[4] The applicant contends that the arbitrator acted outside of her jurisdiction by considering whether the employee had fully understood stood the implications of pleading guilty in the disciplinary enquiry, even though the question of procedural fairness was not before her. I do not understand the arbitrator’s reasoning to hinge on a finding of procedural unfairness but rather that it concerned an enquiry into whether or not the employee’s admission of guilt at the disciplinary enquiry should be determinative of, or of great weight, the question of whether or not she was guilty of the charge of theft. As such this ground of review is not valid, though indirectly, it might point to a failure on the part of the commissioner to consider material evidence.

[5] The applicant argues that, in any event, the Commissioner decided that the chairperson of the disciplinary enquiry had failed to ensure that the employee understood all the elements of the charge of theft which he pleaded guilty to, without that issue being canvassed in evidence at the arbitration and without the Commissioner alerting the parties to the fact that she was going to consider this issue. There is certainly merit in this ground though all it means is that, the arbitrator’s finding that the employee was not aware of the charge is probably unfounded.

[6] Further, the applicant also argues that if the Commissioner had considered the nature of the charge which was spelt out in great detail and the fact that the chairperson had asked the employee if she understood the charges, the Commissioner could not have avoided the conclusion that the employee had pleaded guilty to a charge which she understood. The evidence tends to support this contention. The applicant’s explanation for her concessions made during the disciplinary enquiry is that she recognised that she ought not to have removed the bag before it had been paid for and accepted that the store construed this as theft, even though it was her intention not to pay for it. The remainder of her defence to the charge was that she had genuinely believed that her manager had paid for the bag on her behalf and provided evidence of WhatsApp communications to corroborate this. What she was unable to adequately explain was, why she took the item on a Saturday without anyone’s permission, when there was considerable evidence about the procedure to be followed which she did not dispute. The arbitrator appears to have placed greater evidence on every element of the criminal charge of theft being proved, without appreciating the implications of every employee deciding to take an item from the store without using the normal channels of obtaining approval on the basis that they would regularise the ‘transaction’ later.

[7] The applicant contends that the arbitrator also committed a gross irregularity in deciding that she had to accept the employee’s defence that she had paid for the bag she was accused of stealing on the basis that such evidence was unchallenged, whereas it was consistently the applicant’s case that the employee pleaded guilty, had understood that it amounted to theft if she took something out of the shop without paying for it and that, by implication the employee’s version was challenged. I do not think it follows that a failure to challenge a specific defence is excused simply because the applicant relies on other grounds to dispute an employee’s claim that she did not commit theft especially when those other grounds do not establish a counterfactual version to facts advanced by the employee.

[8] The applicant also attacks the arbitrator’s conclusion that dismissal was not an appropriate remedy for the employee’s failure to report misconduct by her manager. In my view, the arbitrator’s justification for her conclusion is not without merit and certainly is not one that can be said to be wholly irrational. It was not disputed that the employee had raised concerns about the handling of cash with regional staff. It was not as if the employee simply remained silent and abetted her former manager’s suspect conduct.

[9] The applicant argues that the arbitrator also committed a reviewable irregularity in taking account of the evidence of WhatsApp messages between the employee and her former manager. The objection to the introduction of the evidence was based on the claim that the manager to whom the messages were sent could not be questioned. It appears that the messages had previously been tendered by the employee in the disciplinary enquiry. There are factual inferences which may be drawn from the evidence of the messages. What was not challenged was the fact that such messages were a record of communication between the employee and her former manager. As such, they constituted evidence of what she had said to him about payment being made for the bag and his assertion that he had indeed paid for it. Accordingly, whether or not it is true that he had in fact paid for the bag on her behalf, it was certainly evidence of her belief at the time that he had indeed done so. Nevertheless, it does not explain why she thought she could remove the bag without permission in anticipation of obtaining authorisation after the fact.

[10] In conclusion, while not all grounds of review relied on are sound, it does seem that in relation to the main charge the arbitrator adopted a criminal law approach in her analysis and overlooked the flagrant disregard of discount purchase procedures which the employee admitted knowing and did not adequately explain her non-compliance with. If she believed she could not get permission on Saturday, why was it necessary to take the bag then, when she could have set it aside and obtained permission on Monday before removing it?. Such conduct necessarily compromised the trust relationship between the employee and the applicant and it is difficult to see how the arbitrator could have concluded that it did not warrant dismissal.

[11] Moreover, if one has regard to the employee’ s explanation for admitting guilt having had a genuine opportunity to  consider what the charge entailed her somewhat contrived explanation of what she thought she was admitting to stretches one’s credulity and should have made the arbitrator very reluctant to accept it.

[12] In the circumstances, I am satisfied that if the arbitrator had given more consideration to these material facts, she would not have come to the conclusion she did, certainly, in relation to the main charge and sanction of dismissal.

Order

[13] The arbitration award of the third respondent under case number GATW 12776-14 dated 31 August 2015 is reviewed and set aside.

[14] No order is made as to costs.

_______________________

Lagrange J

Judge of the Labour Court of South Africa

Appearances:

APPLICANT:             WJ Van Wyk instructed by Coetzee & Louw Inc.