Edcon employee wants his job and wages back

A REVIEW of a CCMA award – that a Phoenix man be reinstated and compensated for more than R100 000 in loss of wages – was argued in the Labour Appeal Court recently.

The case against Deon Kisten Munien, 42, of Trenance Manor, was dismissed in 2016.

He was accused of manipulating systems and processes by remunerating and incentivising staff with 100% discounted gift cards between June and August 2015.

Munien had been working at Edgars in Chatsworth at the time as a store administration manager.

He disputed his dismissal and took his former employer, Edcon Limited, to the Commission for Conciliation, Mediation and Arbitration (CCMA).

Munien, who earned a monthly salary of R25 000, claimed he had acted on the instructions of his superior and that the issuing of gift cards was a common practice.

He won the case after the commissioner found the company had failed to prove the facts on which they relied in terminating his services.

It was ordered that Munien be reinstated and paid wages in arrears (R143 270.63). However, the matter was placed on review.

Edcon Limited, represented by Verlie Oosthuizen of Shepstone and Wylie attorneys, argued that the arbitration award be set aside.

She said Munien had caused financial prejudice to the store and had been in breach of the trust relationship between company and employee.

“The first respondent admitted giving gift cards as an incentive without head office or divisional authorisation. In his statement, he also confirms that the gift cards were used to motivate the staff in the form of staff incentives for going the extra mile in staying late at night to clean up the store and unpack boxes.

“If employees worked in excess of their normal working hours, they are entitled to be remunerated at overtime rates and paid accordingly. The value of the gift cards was far less than the wages that the employees would have been entitled to had they worked overtime.”

Oosthuizen further argued that Munien claimed he was instructed by the store manager to issue the gift cards, but he had failed to call her as a witness.

“The first respondent’s explanation is inherently improbable. It suggests that the store manager would request employees to perform work in their own time without reaching any agreement with those who were prepared to do so. The entire process is illogical, lacks credibility and ought to have been disregarded.

“Furthermore, without the store manager being called to give evidence, the second respondent (Commissioner Vino Subramoney of the CCMA) unreasonably concluded that the probabilities were that the store manager instructed the first respondent to issue the gift cards in lieu of remuneration or overtime worked.”

Munien, represented by advocate Deshan Pillay, of Pillay Cohen Attorneys, submitted that the allegations did not constitute reviewable grounds.

“The first respondent gave unchallenged evidence that he would follow the instructions of his line manager at the time, Kathy Forster, who was employed with the applicant for approximately 30 years.

“It is common cause that the applicant failed to call Forster to rebut any of the first respondent’s evidence, the practice within the store, or that there was a breakdown of the trust relationship, bearing in mind that she was the first respondent’s direct line manager.”

Pillay went on to argue that there were other instances when gift cards were issued without authorisation or adherent to the company’s policy, yet no action was taken against other employees.

“During the period September 19, 2015, and January 19, 2016, there were 39 transactions where employees received gift cards, and that one Prakash and Wesley had authorised these transactions.

“The applicant failed to provide any explanation or adduce evidence why Forster or the employees who collectively authorised gift cards were not disciplined.”

Pillay added that Subramoney had concluded during the arbitration that a breach in company procedures attracted a sanction of a final written warning.

“It is contended that there is no merit in the review application, and the application should be dismissed with costs.”

Judgment was reserved.