THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

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Not Reportable

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Case no: JR 1924/19
In the matter between:

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CLICKS RETAILERS (PTY) LTD Applicant

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TSHEPANG VINCENT MADIKWE First Respondent
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XOLANI NTULI Second Respondent

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THE CCMA Third Respondent

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NOMSA MBILENI N. O Fourth Respondent

Heard: 09 March 2023

Delivered: 14 March 2023
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Summary: A review is different from an appeal. The trite test for review is not
one of correctness, which obtains in an appeal, but one of reasonableness of
the decision. The impugned arbitration award falling within the bands of
reasonableness. Held: (1) The application for review is dismissed. (2) There is
no order as to costs.
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JUDGMENT

MOSHOANA, J

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Introduction

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[1] This is an application seeking to review and set aside an arbitration award

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issued by Madam Commissioner Nomsa Mbileni (Mbileni) in terms of which
she found that the dismissal of both Mr. Tshepang Vincent Madikwe

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(Madikwe) and Xolani Ntuli (Ntuli), hereafter collectively referred to as the
(dismissed managers), was substantively unfair. She ordered the applicant,
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Clicks Retailers (Pty) Ltd (Clicks) to reinstate the dismissed managers
retrospectively and to backpay them. Clicks was displeased and launched the
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present application. The application is duly opposed by the dismissed

managers.
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Background facts
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[2] The dismissed managers were employed by Clicks as Assistant Managers

effective from February and August 2011 respectively. Around October 2018,
Standard Bank alerted Clicks’ banking reconciliation department (BRD) of the
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fact that there were several shortages in the cash banking of the Clicks store
located at Eastgate. The BRD forwarded the queries to the store at Eastgate
and requested an explanation of the shortage and the submission of
supporting documentation. The explanation and the responses provided by
the management team was found to be inadequate and not satisfactory by the
BRD.
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[3] Resultantly, the BRD escalated the matter to the Regional Operations
Manager (ROM), one Mr. Lwazi Soko for further handling of the queries. The
ROM was not satisfied with the responses he received. As a sequel, he
decided to engage the services of a forensic investigator, one Mr. Willem Nel
(Nel) to launch an investigation into the cash shortages. Indeed, Nel launched
the investigation and discovered that an amount of R831 592.94 went missing
from the Eastgate store. He reached a conclusion that the reason for the

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disappearance of the stated amount was due to theft which was enabled by
the consistent failure to follow the Standard Operating Procedures (SOP) in

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respect of banking and cashing.

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[4] Following the forensic findings, Clicks decided to subject the entire

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management team to a disciplinary process. The dismissed managers were
charged on or about 19 December 2018. The allegations placed before them
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were couched in the following terms:
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“Gross dereliction of duty in that you failed to ensure that Standard

Operating Procedures were upheld in Clicks Eastgate during October
2018 – November 2018 which led to the loss of R831 592.94”
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[5] After the disciplinary process both the dismissed managers were found guilty
and dismissed on 28 December 2018. Displeased with their respective
dismissal they referred a dispute to the Commission for Conciliation,
Mediation and Arbitration (CCMA) and alleged an unfair dismissal.
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Conciliation failed to resolve alleged dispute. They requested that the dispute
be resolved by way of arbitration. Mbileni was appointed to resolve the
dispute through arbitration. As indicated above, she resolved the dispute in
favour of the dismissed managers. Her arbitration award in that regard is
presently impugned before me.

Grounds of review
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[6] In the founding affidavit, Clicks accuses Mbileni of various forms of

misconduct. In summary, Clicks alleges that Mbileni failed to bring her mental
faculties to bear, otherwise failed to apply mind, to the evidence adduced
before her as a result of which she arrived at a decision that no reasonable
decision maker may reach. Further, she failed to properly take certain detailed
evidence into account when she reached her conclusions.

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Evaluation

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[7] The review test by now is trite. The question to be asked by the review Court
is whether the decision reached by an arbitrator is one that no other

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reasonable decision maker may reach. Differently put, the decision falls
outside the bands of reasonableness. It is not about the correctness of the
decision.
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[8] Clicks accuses Mbileni of failure to apply mind. Failure to apply mind
manifests itself by when the decision maker takes into account irrelevant
consideration and ignoring the relevant ones. Ordinarily a failure to apply mind
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is observed by having regard to the contents of the impugned decision. When

one reads the arbitration award in casu, one is unable to observe any failure
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to apply mind. The accusation baldly made by Clicks is that Mbileni failed to
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apply her mind to the evidence before her. This accusation lacks merit when
regard is had to fact that Mbileni did not only analyze the evidence but she
also surveyed the evidence of all the witnesses that testified before her;
namely; Soko; Nel (for and on behalf of Clicks); and the dismissed managers;
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Ms. Madlalose (Store Manager) and Mr. Matikane. It must follow that this
ground of failure to apply mind must fail. It is predicated on nothing. On the
contrary, the contents of the impugned arbitration award demonstrate that
there was application of mind to the evidence. Otherwise, what could have
been the purpose of summarizing the testimony of each witness in the body of
the arbitration award? Such can only exhibit one thing and one thing only, she
was applying her mind to the evidence.
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[9] The allegation that she failed to properly take into account certain evidence is
made in hollow and actually is an appeal in disguise. The crux of Clicks’ case
is that since the dismissed managers were part of management, where any of
the SOPs records the following, it refers to the dismissed managers:

“Responsibility
It is the responsibility of Management (Full time/ Temporary/ Contract/

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Part Time/ Inter-training/ Staff relieving at the Checkout) to ensure that

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this standard operating procedure is followed.”

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[10] The difficulty with this contention is that Clicks seek to implore this Court to
read that portion of the document in isolation. It is by now rested law that

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when interpreting any document, text, context and purpose must be
considered symbiotically by reading the document as a whole. The
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interpretation proffered by Clicks leads to absurdity. It suggests that where
there are 10 members of the management team all of them as a unit are
tasked to ensure that the SOP is followed. This in instances where the SOP
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for instance singles out a Store Manager or one or two managers to do certain
things. At arbitration it became common cause that the dismissed employees
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reported to the Store Manager and were tasked by the Store Manager as their
supervisor. If management is seen as a unit, one fails to understand how
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accountability can be achieved.

[11] The dismissed managers were dismissed for dereliction of duty. A dereliction
of duty means that an employee willfully, wantonly or negligently failed to
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perform his or her duties or performed them in a culpably inefficient manner.

In order to establish this form of misconduct, an employer must, in clear
terms, establish the duties of an employee charged and thereafter present
evidence which proves on a balance of probabilities that the employee
derelicted those established duties. Where an employer alleges grossness,
the suggestion is that the dismissed manager failed to perform purposefully.
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[12] During argument, Mr. Navsa appearing for Clicks attempted a submission that
the dismissed managers had failed to report failures to follow the SOPs to the
ROM. However, Mr. Navsa was quick to concede that the dismissed
managers were not charged and dismissed for such a failure. Mbileni was
mindful of the allegation that certain SOPs were not observed by the
dismissed managers and that they had a joint responsibility. Having
acknowledged the allegation, Mbileni reached the following reasonable

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conclusion:

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“[28] I cannot, however, ignore the fact that they were still

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subordinates to the Store Manager and they were working under her
instructions and control. The fact that she was the Store Manager

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meant she assumed ultimate control in terms of her position and
status. In spite of the responsibilities of the applicants which were
outlined in the advert for the position, she still had the power and
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control over what applicants could or could not do in the store.

[33] I don’t see how the applicants were expected to observe the
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Standard Operating Procedures and also comply with the instruction

of their Superior (which was not unlawful)”
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[13] Veritably, the question is not whether her finding is correct or not or this Court
could have reached the same conclusion, but whether the conclusion is one
that a reasonable decision maker may not reach. In support to that finding she
reflected on the testimony of the Store Manager, who admitted that she took
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responsibility for the office administration which included all the SOPs that
related to banking and cashing up. The Store Manager admitted that she was
negligent in carrying out her duties.

[14] This Court must ask itself the question whether a reasonable decision maker
faced with the same evidence may reach the above finding. If the answer is in
the affirmative, then this Court must not interfere. Clicks seem to fudge the
distinction between misconstruction of evidence and a wrong interpretation of
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a document. Before me, Clicks did not suggest that the evidence of the Store
Manager was misconstrued. A misconstrue happens if words are interpreted
wrongly. Nowhere in the papers does Clicks allege that the evidence of the
Store Manager was misinterpreted. Instead the salvo is that some evidence
was not taken into account. Failure to take evidence into account is markedly
different from misconstruing evidence. In a failure to take into account
situation, the decision maker simply ignores the evidence. In misconstruing of

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evidence, the decision maker considers the evidence but misinterpret the
words as uttered during deliverance of the evidence.

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[15] Regard being had to case of Clicks as a whole, the real complaint is that of
wrong interpretation of the word ‘management’ as employed in the various

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SOPs used to support its case. As it is said interpretation is a matter of law
and not evidence. Therefore, in effect, Clicks is alleging an error of law. It is
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settled law that only a material error of law which is capable of distorting the
outcome is relevant. In this Court’s view, to interpret the word ‘management’
to mean a unit amounts to an absurdity when the document is read as a
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whole as required.
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[16] Ultimately, the finding is that the dismissed managers are not guilty of
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dereliction of duties, and such finding is consistent with the testimony

tendered. The evidence of Soko was more of expressing his opinion than
giving an account as to what was happening at the store. When compared to
the evidence of the Store Manager, his evidence comes second best. The
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evidence of the forensic investigator is more speculative than real. He

speculates that the theft occurred as a result of failure to follow SOPs. This is
nothing but inferential reasoning. Thus the core of this dispute is the failure to
ensure the following of the SOPs. The evidence of Soko about collective
responsibility simply attempts to bolster an interpretation of the SOPs as
contended for by Clicks. As pointed out, interpretation is a matter of law and
not evidence.
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[17] The conclusion to reach is that the finding that the dismissal of the dismissed
managers is substantively unfair is capable of justification and falls within the
bands of reasonableness. It is then unassailable or impeachable in law.
Recently the Labour Appeal Court (LAC) remarked in Makuleni v Standard
Bank of South Africa Ltd and Others1 as follows:

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“[4] … The court asked to review a decision of commissioner must
not yield to the seductive power of a lucid argument that the result

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could be different. The luxury of indulging in that temptation is
reserved for the court of appeal. At the heart of the exercise is a fair

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reading of the award, in the context of the body of evidence adduced
and an even-handed assessment of whether such conclusions are
untenable. Only [if] the conclusion is untenable is a review and setting
aside warranted.

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[13] … To meet the review test, the result of the award has to be so
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egregious that, as the test requires, no reasonable person could reach

such a result…”.
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[18] The arbitration award of Mbileni when assessed even-handedly does not
produce untenable conclusions and it is not so egregious that no reasonable
person could reach it. As cautioned by the LAC, this Court is not to succumb
to the alluring power of luminous argument that ‘management’ must be
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afforded a meaning punted for, which if afforded such a meaning a different

result shall emerge.

Conclusions

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(JA125/2021) [2023] ZALAC 4 (8 February 2023)
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[19] For all the reasons set out above, this Court arrives at a conclusion that the
award issued by Mbileni is unassailable. It does fall within the bands of
reasonableness and is capable of justification when regard is had to the
evidence and the material properly placed before Mbileni. Accordingly, the
applicant is bound to fail in its quest.

[20] In the result the following order is made:

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Order

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The application for review is dismissed.
There is no order as to costs.
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_______________________
G. N. Moshoana
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Judge of the Labour Court of South Africa

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Appearances:

For the applicant: Mr Z M Navsa

Instructed by: BCHC Attorneys, Cape Town

For the 1st Respondent: Mr T Simani

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Instructed by: Mamilasigidi Attorneys

For the 2nd Respondent: Mr N T Jongwana

Instructed by: Legal Aid South Africa

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