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Case-Law & Legislation Review: Trade union was ordered to pay the costs By Gary Watkins who can

be contacted at www.caselaw.co.za ; www.workinfo.com ---------------------------------------------------------------------MOSSAWU obo M. Shai vs. Amalgamated Beverage Industries Soft Drink Division of SAB Ltd Case No: GA 11687-03 Award Date: 17 June 2005 Jurisdiction: CCMA: Johannesburg Commissioner: N Johnston # SUBJECT: Practice and Procedure Costs ISSUE: The employee was charged with dishonesty and unauthorised consumption of the companys product. He was clearly aware of the rule, as it had been communicated widely to staff and the employer applied the rule consistently. The employee was notified of the hearing and given time to prepare, there was no truth in his assertion in his referral form that no procedures were followed. His intention was to wilfully misrepresent the facts in order to mislead the commission. His referral was frivolous and vexatious and the trade union was ordered to pay the costs of the arbitration. SUMMARY OF FACTS: The employee was employed on 16 November 1998 as a delivery driver, and was dismissed on 26 February 2003. He was charged with dishonesty and unauthorised consumption of the companys product. A hearing was held on 6 February 2003 where he was found guilty and the sanction of dismissal imposed. The evidence against the employee consisted of camera footage which showed him removing a pallet of energy drink and taking it behind the stack. 22 seconds later he came out empty handed. It was then established that 1 tin of the drink in question was missing. On 3 February 2003 the employee received notification to attend a disciplinary hearing and he was notified of his rights in this regard. The hearing was then held on 6 February 2003. The employee was represented by 2 shop stewards from the trade union FAWU, one of whom was the chairperson of the shop stewards council. He was present throughout the hearing and affirmed that the minutes of the hearing were a true and accurate reflection of what occurred. He

submitted closing arguments in writing which were signed by him and the 2 shop stewards. In this document he maintained that he did not drink the product. After being found guilty, the employee then submitted a document outlining his arguments in mitigation of sanction. This was signed by him and both his representatives, and in it he admits drinking the product and promises that he will not do so again. The employee denied that he admitted to this, saying that he did not read the document before he signed it. At a previous arbitration where a default award was issued, the employee denied that any procedure was followed before he was dismissed. SUMMARY OF JUDGEMENT: The employee admitted, in a signed statement to having consumed the product. His later protestations that he did not read the document before signing it were not credible. The rule was clearly reasonable, particularly as the company provided more than adequate supplies of cool drinks for employees, both for consumption while on duty as well as for their families. The employee was aware of this rule, but nonetheless broke a pack in the warehouse and drank it. The employee was clearly aware of the rule, as it had been communicated widely to staff. It appears that the employer applied the rule consistently, as evinced by the references to several other CCMA awards relating to dismissal for the same reason. During the arbitration process the employee contradicted his own prior sworn testimony, given both at the disciplinary hearing and the default arbitration. Accordingly, the Commissioner found that the dismissal was substantively fair. As to the procedural fairness, the employee attempted to explain away his untruthful claims that no hearing had taken place by alleging the previous Commissioner had fabricated this. This version was rejected and the Commissioner that there was not truth in any of the allegations of procedural unfairness as contained in the referral. Accordingly, the referral was frivolous and vexatious and in finding that the dismissal was also procedurally fair, the Union as ordered to pay the costs of the arbitration.
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