THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT PICK N PAY LANGENHOVEN PARK. Second Respondent

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1 THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG JUDGMENT Not Reportable Case no: JR 1534/15 In the matter between: ROYCE S FAMILY SUPERMARKET (PTY) LTD t/a PICK N PAY LANGENHOVEN PARK Applicant and DELL J N.O CCMA SWANEPOEL MARYANE ADRIANA First Respondent Second Respondent Third Respondent Heard: 07 June 2016 Delivered: 21 June 2016 Summary: An unopposed review application. The fact that a review application is not opposed does not as a matter of routine suggest that it is reviewable. Held: (1) Once a dispute is identified by the parties, a commissioner is duty bound to decide it for the parties. The fact that an employee pleaded guilty at the disciplinary enquiry does not suggest that the dismissal is fair in terms of substance. If dismissal is established, a commissioner is duty bound to determine the fairness of such a

2 2 dismissal. The first respondent did not fail to apply mind. (2) The review application was dismissed with no order as to costs. JUDGMENT MOSHOANA, AJ Introduction [1] This is an unopposed application to review and set aside an arbitration award in terms of which the commissioner found the dismissal of the third respondent to be substantively unfair and ordered the applicant to reinstate her with retrospective effect. Background facts [2] The applicant operates as a retail supermarket. In January 2007, it employed the third respondent as a cashier. On 11 March 2015, the third respondent was on duty as a cashier in the store kiosk. In the kiosk, the applicant sells pre-paid electricity vouchers to customers. Once a voucher is entered on the register, it cannot be voided. The money so registered will be due to a company called Centlec. [3] A customer approached the third respondent and requested a voucher of R It turned out that the customer only had R50.00 in his possession. The third respondent summoned Minah, the supervisor and Andrew van Wyk, the store manager. They both entered some codes on the till operated by the third respondent, after which she was able to continue and help other customers. However, the amount of R was paid to Centlec following the transaction. [4] As a result, the third respondent was charged with gross negligence in that she failed without proper cause to perform her duties with the proper care required in that she did not request the right amount of electricity and did not follow the correct procedure resulting in a R loss to the

3 3 applicant. On 6 May 2015, a disciplinary hearing was held. The third respondent pleaded guilty at the hearing. She was dismissed on 13 May Aggrieved by her dismissal, she approached the second respondent for assistance. The first respondent was appointed to resolve the dispute of unfair dismissal through arbitration. On 11 July 2015, the first respondent published an award. The award so published aggrieved the applicant and it launched the present application. The application stand unopposed. Grounds of Review [5] The applicant lamented that the award is not one that a reasonable decision maker could arrive at for the following reasons: 5.1 The first respondent failed to comply with the provisions of the Act, pertaining to the conducting of a fair and proper arbitration proceedings in terms of the Act; 5.2 Factual findings made by the first respondent herself, in fact did not correspond with the evidence and documents properly placed before the first respondent in this particular matter; 5.3 The first respondent exceeded her powers in terms of the Act; 5.4 The first respondent did not properly and rationally and justifiably apply her mind to the facts or the law in this instance; 5.5 The award made by the first respondent is not justifiable in relation to the reasons given for such award, such award is not rational or justifiable in its merits or outcome and is not an award a reasonable decision maker could arrive at; 5.6 The first respondent failed to properly apply her mind and failed to have a proper consideration of the facts and the law, in respect of the relief afforded to the third respondent in this instance and the first respondent exceeded her powers in this regard; 5.7 The first respondent failed to properly, justifiably and reasonably determine and assesses the evidence properly before the first

4 4 respondent in this matter, and the relevant provisions of the law, in particular with regard to the issue of the appropriate sanction. Evaluation [6] If a review application is unopposed, such does not suggest that it will be granted as a matter of course. A review court must still be satisfied that the award is reviewable in law. In court, Snyman, for the applicant, submitted that the award is founded on wrong premise, which led to a direct and material impact on the outcome. He submitted that the finding that the third respondent did not commit the misconduct because she was not aware of the rule flies in the face of the common cause fact that the third respondent pleaded guilty at the disciplinary hearing. In considering this issue, regard must be had to the award itself. It is indeed so that in the process of narrowing down the issues certain issues were not placed in dispute as having happened. [7] One such issue was that the applicant pleaded guilty on the charge in the disciplinary hearing. In addition, an issue that was placed in dispute was whether the third respondent was aware of the procedure of the respondent relating to the acceptance of cash or card prior to entering the transaction on 11 March [8] Since that issue was placed in dispute, evidence was required to prove it. On record, the first respondent mentioned to the parties the following: Commissioner: All right so the issues that I need evidence on from your side is not everything that happened on that day I need to know whether you were aware of the procedure of accepting cash and whether the correct procedure was followed and whether you are aware that that transaction was voided or not voided. Uhm do you agree sir that these are the issues that are in dispute or (interrupted by the respondents representative) Respondents representative: Yes. [9] Following that understanding, the applicant tendered evidence. The evidence of Kalake, the Frontline Coordinator was to the effect that the

5 5 procedure was sent by one Ansie Kotze on 24 November In order to ensure that all the cashiers were aware of the procedure, they signed acknowledgment on 16 March The third respondent testified that she only became aware of the rule that cash must be handed over to the customer prior to entering the transaction of the cash register on 16 March 2015, when Kalake requested that all cashiers sign the procedure. [10] In analysing the evidence, the commissioner dealt with the rule that was signed on 16 March 2015, which required cashiers to ask how a customer would be paying before entering in the register. In line with the evidence of Kalake and the third respondent, she concluded that the applicant failed to prove that the third respondent was aware of the rule. The evidence of the applicant was that the third respondent was negligent as she should have requested and received the money from the customer before she entered the transaction on the cash register. [11] The third respondent testified as to why she pleaded guilty at the disciplinary enquiry. She did so because the transaction happened on her cash register. In terms of section 192, once a dismissal is established, the employer must prove the fairness of the dismissal. Arbitrations are hearings de novo. All it means is that once dismissal is established, an employer so challenged must prove the fairness by adducing evidence to justify the dismissal. In this matter, the applicant led the evidence of Kalake to justify the dismissal. [12] The applicant did not seek to justify a dismissal by relying on the plea of guilty. Other than an acceptance that a plea of guilty was tendered at the hearing, there was no evidence that the third respondent was admitting guilt at arbitration. If that were the case, there would have been no need to lead the evidence of Kalake. In the light of the above, the finding that the applicant failed to prove that the applicant was aware of the rule before 11 March 2015 is sustainable and actually supported by the evidence presented.

6 6 [13] In my view the authority in Monare v SA Tourism and Others 1 is not of assistance to the applicant. I do not agree that the first respondent ought to have confined herself to the issue of the sanction only. The parties were in dispute that the rule was known. Such then required a decision by the first respondent. Where guilt is not admitted at arbitration, it remains incumbent on the employer to prove all the elements to determine substantive fairness as spelled out in Schedule 8 of the LRA. [14] I am unable to agree that the first respondent failed to apply mind. The issue of the awareness of the rule was squarely placed before her for determination. It was one of the disputed issues. The first respondent made a finding that the applicant (third respondent) was not negligent in anyway. Nowhere in her award does she deal with the harshness of the sanction of dismissal. The fact that she mentioned that dismissal is not the appropriate sanction ought to be understood within the context that she made a finding that the third respondent is not negligent at all. [15] Therefore, it was inappropriate to dismiss an employee who is not negligent and who was not aware of a rule. As a reviewing court, I need to ask myself a central question, is the conclusion reasonable and justifiable. If it is I cannot interfere. Quiet recently, the LAC in an unreported judgment of Ethekwini Municipality v Hadebe and Others, 2 had the following to say about the test: [25] Therefore, the upshot of both Herholdt and Goldfields is that a process failure on the part of a commissioner does not in itself render an award unreasonable. In order for it to be unreasonable, it has to be established that such failure caused the result of the award to be unreasonable. Thus, a process failure is of no consequences if the final result of the award is, nevertheless, capable of reasonable justification. [16] If a dismissal is found to be substantively unfair, reinstatement is the primary remedy. I am unable to agree with a submission that by affording 1 (2016) 37 ILJ 394 (LAC). 2 (DA17/14) [2016] ZALAC 14 (10 May 2016) at para 25.

7 7 the primary remedy, the first respondent committed a material irregularity. There is no evidence on record that a conduct of the third respondent at the disciplinary hearing made a continued employment relationship intolerable. Neither was there evidence on record that the employer and employee relationship was destroyed. [17] Accordingly, I am of a firm view that the award is not reviewable. It perfectly falls within the bounds of reasonableness. Order [13] In the results, I make the following order: 1. The application for review is dismissed. 2. There is no order as to costs. Moshoana, AJ Acting Judge of the Labour Court of South Africa

8 8 APPEARANCES For the Applicant: For the Respondents: Mr Sean Snyman of Snyman Attorneys No appearance