|Bitmap| ARBITRATION AWARD IN THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION (HELD AT JOHANNESBURG) Case no:GA29469-01 In the matter between: NUFBWSAW obo NGWENYA APPLICANT And NANDO'S CHICKEN LAND RESPONDENT (PTY) LTD. ARBITRATION AWARD DETAILS OF HEARING AND REPRESENTATION This arbitration matter was heard on the 11th August 2003 at 09:00am at the CCMA offices in Johannesburg. The applicant (Victoria Ngwenya) appeared and was represented by Mr. Julius Mano, union official, while Mr. L Daubermann, HR Manager appeared for and on behalf of the respondent party (Nando's Chicken Land). These proceedings were electronically recorded and by means of hand written notes. ISSUE TO BE DECIDED The issue to be decided is whether the applicant's dismissal on December 12, 2002 for misconduct was substantively fair, and if not to determine an appropriate relief. BACKGROUND TO THE MATTER The applicant had been in the employ of the respondent since September 03, 1992. At the time of termination of her services, she was employed as a Cashier earning a salary of R1 640.00 per month. After what she considered as unfair dismissal, she referred a dispute to the CCMA. The matter was conciliated on the 12th February 2003 and a certificate of unresolved matter was issued. The matter was properly referred to this arbitration. RESPONDENT'S CASE The respondent in this matter is Nando's Chicken Land (Pty) Ltd. It was submitted on behalf of the respondent that the applicant was dismissed for misconduct relating to the following offenses, * Gross misconduct in that she consumed company property, more specifically butter, without having obtained the necessary or required permission from Management. * Gross misconduct in that she was in possession of company property without having the necessary or required permission from Management. * Gross misconduct in that she stole company property, Butter. * Gross misconduct in that she had through her actions irretrievably broken down the continued trust as well as the employment relationship between the parties to the employment relationship. The respondent submitted that the applicant admitted guilty on the 2nd charge, but was nevertheless found guilty on the other charges warranting a summary dismissal. It was the respondent's submission that the dismissal was instituted procedurally and substantively fair. The respondent submitted a bundle of documents and led the evidence of one witness. EVIDENCE IN CHIEF LUCAS MOKOENA Mr. Mokoena testified that he is currently employed as an Assistant Manager, and he was a Trainee Manager at the time of the applicant's dismissal. It was his testimony that on the 11th December 2002 while he was working, Marinus (Manager) called him to the office to witness an incident of the applicant eating butter without permission. He testified that upon his arrival, he found that the butter was half used and the applicant admitted that she used the butter without permission. Mr. Mokoena testified that the rules and regulations of the company contained in the bundle of documents are displayed on the wall inside the store. It was his testimony that the applicant breached par. 4.5 (Theft or unauthorized consumption of company property) and par. 4.6 (Unauthorized possession of company property). It was further his testimony that the applicant by her conduct breached par. 1.8 relating to Nando's house rules providing that (No food or any other items whatsoever may be unlawfully removed or eaten by any employee). He submitted that in terms of the disciplinary code of staff, such misconduct warrants a summary dismissal and the value of the product is immaterial. He confirmed that a photocopy on page J1 and the exhibit presented in the proceedings represent the product that was found in the applicant's possession. He testified that he did not witness the eating, but he only saw the used product. CROSS-EXAMINATION Under cross-examination, it was his testimony that upon arrival, he saw the eaten butter on the table. He confirmed that the rules and regulations do not deal with "Left overs", but an employee is also required to obtain permission to consume left overs. It was his testimony that he never came across anyone in the store consuming left overs. He testified that there is no written policy on left overs, but through informal communication the staff is made aware that they should obtain permission to consume left overs. It was his testimony under re-examination, that his interpretation of par.1.8 of Nandos's rules (No food or any other items whatsoever may be unlawfully removed or eaten by an employee) also includes left overs. He indicated that the product in question was about 8g. APPLICANT'S CASE The applicant in this matter is Victoria Ngwenya. It was submitted on behalf of the applicant that the termination of her services was procedurally and substantively unfair. A bundle of documents was submitted on behalf of the applicant and she testified as the only witness in support of her case. The applicant prays for retrospective reinstatement. EVIDENCE IN CHIEF The applicant testified that as a Cashier she was responsible to work on the till, serve customers and to be a waitress. It was her testimony that on the 11th December 2002 at about 13:00pm, Marius (Manager) called her to the office and showed her a mini half used butter. She indicated that Mr. Mokoena was also called to be a witness. She testified that she was told that a disciplinary action will be instituted, because she consumed the butter without permission. According to the applicant, she told Marius that the butter was a left over, to which the latter said it was immaterial. The applicant testified that she told Marius that since 1992 employees used to consume left overs. According to the applicant, the butter was a left over, and it had melted. She submitted that she did not steal or hide the butter. It was her testimony that in her knowledge, there is neither a policy nor a rule prohibiting the consumption of left overs. It was her testimony that most employees used to consume left overs and the Manager (Marius) was aware of this practice since June 2002. It was her testimony that she was not aware of par.1.8 of Nando's house rules. She disputed that the rules were displayed on the wall. She confirmed that the product on page J1 is the same one found in her possession. UNDER CROSS-EXAMINATION She testified under cross-examination that the butter in question was found in the storeroom, on top of the refrigerator. It was her testimony that she told Marius that she consumed the butter because it was a left over. She indicated the butter was closed, but it had melted. She admitted that she is aware of the disciplinary rules and regulations and more specifically rule 4.5 that, theft or unauthorized consumption of company property is prohibited. She further admitted that she did not obtain permission, as employees have always been allowed to consume left overs. It her testimony that Marius once told her that he will dismiss her if she does not listen to his instructions. She indicated that Marius told employees to eat in the storeroom. She confirmed that employees are not allowed to consume products without the Manager's permission. She indicated that she was only issued a warning relating to an incident of a client complaining about the Magnum ice cream. She submitted that Marius gave employees permission to consume left overs. Under re-examination, she testified that Marius victimized her, as they did not have a good working relationship. SURVEY OF EVIDENCE AND ARGUMENTS It is trite that in determining the fairness or otherwise of a dismissal, one should be guided by the principles of substantive and procedural fairness encapsulated in schedule 8 of the LRA no.66, 1995 as amended. It was submitted on behalf of the respondent that the applicant was charged and found guilty for gross misconduct warranting the termination of her services. It was further submitted that the termination was instituted procedurally and substantively fair. The applicant confirmed that the procedure is not in dispute, but placed substantive fairness in dispute. SUBSTANTIVE FAIRNESS It was the respondent's submission that the applicant was fairly dismissed for gross misconduct relating to theft, unauthorized possession of company property and for consumption of company product (butter) without permission. The respondent led the evidence of Mokoena, who testified that on the day in question (11 December 2002) the applicant consumed company product (butter) without having obtained the necessary permission. Mokoena further testified that the applicant breached of par.4.5 (theft or unauthorized consumption of company property) and 4.6 (unauthorized possession of company product) of the company disciplinary rules and regulations warranting a summary dismissal. It was Mokoena's evidence that employees are required to obtain permission for consuming left overs, but however admitted that there is no written policy on left overs. It was Mokoena's evidence that all employees are aware of the company's rules and regulation. The applicant led evidence to the effect that employees have been allowed to consume left overs, and that Marius (Manager) has always been aware of such practice. It was her evidence that she did not steal the product in question. It was her evidence that she was not aware that consuming left overs was prohibited, as there is no such provision in the rules and regulations. ANALYSIS OF EVIDENCE AND ARGUMENTS In terms of section 192(2) of the LRA no.66, 1995 as amended the respondent bears the onus to prove the fairness of the dismissal. It was the respondent's contention that the applicant breached a rule in that she consumed company product without permission. It is common cause that the applicant consumed the product in question without having obtained the necessary permission. The applicant contended that the said product was a left over and employees have been allowed to consume such products. It was the applicant's submission that Marius was aware of such practice. It was further the applicant's submission that the absence of such rule in the policy and Management's acceptance of the practice, created the impression that no rule existed against such practice. It is my opinion that the absence of Marius to refute these allegations leaves the applicant's evidence undisputed. It is further my opinion that the absence of a written rule in the policy also encouraged such practice. The respondent's contention that par.1.8 of the house rules also include left overs, is not sufficient to constitute an explicit rule and is subject to subjective interpretation. I therefore do not concur that an employee should reasonably be expected to be aware of the existence of such a rule. After careful consideration of the evidence submitted by the respondent in proving the alleged misconduct, it is my opinion that the respondent failed to prove on balance of probabilities that the applicant was aware of the rule or was reasonably expected to be aware. The respondent furthermore failed to prove that the rule has been consistently applied. The applicant's evidence suggesting that this was a common practice remained undisputed. It is therefore my opinion that the applicant's conduct under the circumstances did not constitute contravention of a rule regulating conduct in the workplace. It is accordingly my opinion that her conduct cannot be said to have irretrievably broken a trust relationship between both parties. It is my conviction that if employees are expected to observe the rules and regulations, such rules and regulations should be formulated in a manner that is clear and without ambiguity. The following award would therefore be just and equitable. AWARD 1. The applicant's dismissal on December 12, 2002 was substantively unfair. 2. The applicant is accordingly entitled to the relief she seeks being retrospective reinstatement. 3. The respondent is ordered to reinstate the applicant into her original position and to pay her compensation equal to R13 120.00 being the equivalent of 8 months salary within a period of 21 days after receipt of this award. 4. The applicant shall present herself for duty within 48 hours after receipt of this award. 5. There is no order as to costs. Thus done and signed at the CCMA, JHB on this day 29th August 2003. RAYMOND HLONGWANE PART-TIME COMMISSIONER CCMA GAUTENG PROVINCE ?? ?? ?? ?? Page 2 of 7 Page 1