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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case number: JR166/2006

In the matter between:

TOWN TALK FURNISHERS Applicant

And

MANNDE, CHRISTOPHER N.O First Respondent

COMMISSION FOR CONCILIATION,

MEDIATION AND ARBITRATION Second Respondent

RATSAKA, MOKOU THOMAS Third Respondent

___________________________________________________

JUDGEMENT

___________________________________________________

NGALWANA AJ

[1] This is an application for the review and setting aside of an arbitration award made by the first respondent in his capacity as commissioner under the second respondent’s auspices on 3 November 2005 in which he found the third respondent’s dismissal to have been substantively unfair, ordered re-instatement of the third respondent in the same or similar position and on the same terms and conditions as at the date of his dismissal (on 22 April 2005). He also ordered that the applicant pay the third respondent R25 900 being the equivalent of seven months of the third respondent’s remuneration.

[2] Section 145 of the Act on which the applicant relies for this review application requires the applicant to prove one of four grounds of review. These are misconduct on the arbitrator’s part in relation to his duties as an arbitrator; gross irregularity in the conduct of arbitration proceedings; ultra vires conduct by the arbitrator in the exercise of his powers and an improper obtaining of the award. On a conspectus of all the cases, however, it seems to me the permissible grounds of review are wider than those set out in section 145 of the Act and can perhaps be reduced to this: for the applicant to succeed the decision must be shown to be irrational (in the sense that it does not accord with the reasoning on which it is premised or the reasoning is so flawed as to elicit a sense of incredulity) and unjustifiable in relation to the reasons given for it (Crown Chickens (Pty) Ltd t/a Rocklands Poultry v Kapp NO (2002) 23 ILJ 863 (LAC) at paragraph [19]; Shoprite Checkers (Pty) Ltd v Ramdaw NO and Others (2001) 22 ILJ 1603 (LAC) at paragraph [26]; Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC) at paragraph [37]; Pharmaceutical Manufacturers’ Association of SA and Others: In re Ex Parte Application of the President of the RSA and Others [2000] ZACC 1; 2000 (3) BCLR 241 (CC)). It is not the reviewing court’s task to consider whether or not the decision is correct in law as that would be an appeal (Minister of Justice and Another v Bosch NO and Others (2006) 27 ILJ 166 (LC) at paragraph [29]).

[3] In argument the applicant cited two grounds upon which the third respondent had been dismissed. The one was suspicion of theft and the other was failure to follow the applicant’s policy rules and procedures which counsel for the applicant submits were drawn up in order to protect the applicant’s customers from fraud and also the applicant’s employees and the applicant itself against theft and fraud.

[4] The third respondent was employed as an accounts inspector and his duties included following up on arrear customer accounts, collecting outstanding payments from defaulting customers and, in some instances, repossessing items from customers who continue to default on their repayments. He had been in that position for 14 years. One of the strict policy rules that the applicant insisted are obeyed is the issuing of receipts for every cash amount collected. There is no dispute that the third respondent was aware of this rule. He was alleged to have accepted R200 cash from a customer’s girlfriend without the permission of his manager and without issuing a receipt therefor. The third respondent says he had the manager’s permission to accept the money and that he received it as “security” in order to secure the customer’s attendance at the applicant’s offices to discuss the television set in respect of which the customer’s repayments were in arrears.

[5] Counsel for the third respondent submitted that the reason no receipt was issued was that the third respondent was not sure in whose name to issue same since the girlfriend was not the applicant’s customer. He referred to the transcribed record of the arbitration proceedings as proof that the third respondent had obtained his manager’s permission to receive the R200 cash from the customer’s girlfriend. But the passage referred to shows that the permission came not from the manager but from the customer.

[6] The first respondent found that the R200 cash did not belong to the applicant; that, for that reason, the third respondent did not have to follow the applicant’s policy and procedure; and that there was no misappropriation since the R200 cash was found in the third respondent’s desk draw at the applicant’s premises. The question that arises is whether these findings are justifiable in relation to the evidence and material advanced before the first respondent.

[7] In my view the first respondent’s findings are not justifiable if one has reference to the evidence led. The R200 cash was clearly paid by the customer’s girlfriend not with a view to some “security” for her boyfriend to attend a meeting with the third respondent but rather with a view to ensuring (on the third respondent’s own evidence) that the television set account is transferred into her name. That is why she insisted on a receipt being issued in her name and not that of the customer. Counsel for the third respondent noted this evidence in his heads of argument as being “significant”. After all, the customer and the girlfriend appear to have been fighting over ownership of the television set (even though it was purchased on instalment in the customer’s name) which was at that time at the girlfriend’s residence. She testified that she was of the opinion that she would “have to keep the television” because when he bought it the customer said he was buying it for her. In those circumstances, it is inconceivable that she would have parted with R200 cash just as security for her boyfriend’s attendance at the applicant’s offices or store to discuss arrear payments on the television set. The more probable version (to which she testified) is that she was hoping to keep the television set by continuing the instalments.

[8] How the first respondent came to the conclusion that the R200 did not belong to the applicant in these circumstances is inexplicable. There was a television set which had been purchased on instalments by a customer who apparently complained to the third respondent that he had no access to it because her girlfriend is refusing to hand it back. He was already in default with his payments on the television set. The girlfriend then pays R200 and insists on a receipt in her own name which the third respondent refuses to give. The third respondent conceded that there are instances when payments or instalments for items are received from persons other than the customers themselves. Clearly the payment of the R200 cannot be divorced from the television set in these circumstances.

[9] In the result, it is the finding of this court that the first respondent’s decision is not justifiable in relation to the evidence advanced before him. As regards the appropriateness of sanction the third respondent has not advanced any argument. It is not in dispute that the third respondent comes into this saga with a clean record after 14 years of service. But the applicant’s counsel has indicated that the applicant takes issues of trust, especially with account inspectors who handle money, very seriously. I am, however, not satisfied that I have before me sufficient material to decide the question of the appropriateness of the sanction of dismissal, the recent decision of the Supreme Court of Appeal in Rustenburg Platinum Mines in relation to the application of the “reasonable employer test” notwithstanding. It seems to me that question can be decided after a full factual assessment of the third respondent’s history with the applicant and the applicant’s own view of the third respondent’s conduct judged in the backdrop of his conduct since joining it. It is for that reason that I consider it desirable that the matter be remitted to the second respondent for a de novo determination before a different commissioner.

[10] In the result, the first respondent’s decision is reviewed and set aside as being unjustifiable in relation to the evidence advanced before him and referred back to the second respondent for a de novo determination before a different commissioner. The third respondent is to pay the applicant’s costs of this application.

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Ngalwana AJ

For the applicant: Mr C Orr

Instructed by: Bowman Gilfillan Incorporated

For the 3^rd respondent: Mr PM Sejaphala

Instructed by: Jacky Magashoa Attorneys

Date of hearing: 13 June 2007

Date of judgment: 15 June 2007

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