IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case Number: J1409/98
In the matter between

	South African Chemical Workers Union 					1st Applicant
	C. Ndaba		2nd Applicant
and
The Commission for Conciliation, Mediation and 
	Arbitration							1st Respondent
Commissioner Ingrid de Villiers NO 	2nd Respondent
Justine Avon (Pty) Ltd 	3rd Respondent

JUDGMENT

LANDMAN J

	[1]	The South African Chemical Workers Union, the first applicant, and Clemment Ndaba, the second applicant, bring an application for the review of a decision of the Commission for Conciliation, Mediation and Arbitration (“the CCMA”), the first respondent, and Commissioner Ingrid de Villiers NO, the second respondent, in a dispute with Justine Avon (Pty) Ltd, the third respondent.

	[2]	Several employees of Justine Avon were dismissed sometime in January or February 1998. However, this particular arbitration award is only concerned with Mr Ndaba.

	[3]	Mr Ndaba was dismissed because he had breached the company’s picking procedures. According to the employer the inference was drawn that Mr Ndaba’s intentions were dishonest.

	[4]	This dispute was referred to arbitration. A Senior Commissioner proceeded to hear the evidence. In her award she recorded the testimony that had been presented and then proceeded to analyse the evidence. As far as Mr Ndaba was concerned, he had been seen, and video-taped, putting certain items into his pockets. The Senior Commissioner found that he was guilty of picking contrary to the procedures of the employer. At least, that is what she said under the heading “Analysis of the Evidence”.
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	[5]	However, further in her award, the Commissioner said that the case of Ndaba was not so clear cut. Although she concluded that he had transported individual items in breach of the procedures, she said:

... I cannot infer dishonesty as the only possible or plausible motive for his moving product around in the way he described.

	[6]	She went on to say:

I am not convinced ... on a balance of probabilities, that Ndaba intended to steal the product he is seen placing in his pockets.

	[7]	She did say, however that:

... I do believe that, although dishonest intent has not been proved, there is, at the very least, a reasonable suspicion that Ndaba may have had a dishonest intention when he breached the procedures.

	[8]	The Commissioner then pointed out that there was a distinction to be drawn between being the existence of actual misconduct and the existence of a reasonable suspicion of misconduct. She said that where there is a case of reasonable suspicion of misconduct an employer is entitled to dismiss, not on the grounds of misconduct, but for operational requirements. She referred to Von Stein v L. Suzman Distributors (Pty) Ltd 1994 BLLR 14 (IC) where MSM Brassey, The New Labour Law, is quoted at 96.

	[9]	The Senior Commissioner came to the conclusion that the termination of the contract of employment of Mr Ndaba ought to have been effected in accordance with the procedures outlined in section 189 of the Labour Relations Act 66 of 1995 (“the Act”), and she then proceeded to make an award. She found that the dismissal of Clemment Ndaba was unfair because the employer had not followed a fair procedure, although the employer had proved that the reason for dismissal was a fair reason related to the employee’s conduct, and she then went on to award compensation to Mr Ndaba for the procedural unfairness. Mr Ndaba was dissatisfied with this outcome and applied to this court for a review of the award.

	[10]	The review is to be conducted in terms of section 145 of the Act, as explained in Carephone (Pty) Ltd v Marcus NO and Others 1998 (10) BCLR 1326 (LAC).

	[11]	The Labour Appeal Court referred in that case to the defects which must exist before a court may intervene and review an award, and stated that s145 must be read in terms of the Constitution of the Republic of South Africa, 1996, which means that the award must be a justifiable one. In applying the constitution, the question that must be asked is; is there a rational objective basis justifying the connection made by the administrative decision-maker between the material properly available to him and the conclusion he eventually arrived at? (See para 37 of the judgment).

	[12]	In the present case the Senior Commissioner was aware that she was dealing with a dismissal on the basis of misconduct. She found that there was no misconduct involving dishonesty, merely a suspicion of dishonesty. She did, however, find that there was a breach of the picking procedures. However, she did not consider whether the dismissal was substantively fair for being a breach of these procedures. Instead, she came to the conclusion that the employer would have been entitled to have dismissed the employee, Mr Ndaba, on grounds relating to operational requirements. This ground clearly had not entered into the mind of the employer. It was one dredged up by the Senior Commissioner. On this ground the Commissioner held that the dismissal was fair from a substantive point of view. She then proceeded to find that the employer, who had not thought of this ground, had committed a procedural irregularity and she compensated the employee for this failure.

	[13]	To my mind, the Commissioner’s reasoning is illogical. It is unfair towards the parties because it was not the case of the employer, nor was it the case which Mr Ndaba came to meet at the CCMA. In the circumstances, the award falls to be reviewed and set aside.

	[14]	The next question is, what is to be done? Should the award merely be set aside, which would mean that the employer would be obliged to reinstate the employee, or should the matter be referred back to the CCMA to deal with the question of the appropriate sanction for a breach of the picking procedure?
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	[15]	I am of the view that it would be fair to the parties to remit this matter to the CCMA to consider what an appropriate sanction would be for breach of the picking procedure.

	[16]	Should this matter be remitted to the Senior Commissioner or should the CCMA be directed to appoint another Commissioner to hear this matter? In my opinion, it would not be in the interests of the parties to have this matter conducted de novo, and I therefore order that it should be remitted back to the Senior Commissioner who originally heard the matter, with an instruction to simply consider what the appropriate sanction for breaching the picking procedures is.

	[17]	In the result, the award of the Senior Commissioner dated the 16th of March 1998, as far as it relates to the second applicant, is reviewed and set aside. The matter is remitted to the second respondent to consider an appropriate sanction for breach of the picking procedure and to make an award accordingly. The respondent is ordered to pay the costs of this application.

A A LANDMAN
Judge of the Labour Court

	DATE OF HEARING:	30 October 1998
	DATE OF JUDGMENT:	30 October 1998

	For the applicant:		Adv A Gevisser
	Instructed by:		Routledge-Modise

	For the respondent:	Mr Araujo of Webber Wentzel Bowens