A cellphone which a visiting student to the University of the Witwatersrand forgot in a toilet cubicle and which was picked up by the cleaning supervisor, but not handed to security, has resulted in legal proceedings after the supervisor, who worked for the university for 30 years, was fired.
The matter went to arbitration, where the arbitrator found the firing of the woman to be substantively unfair. The employee was awarded retrospective reinstatement with the university.
The latter turned to the Labour Court, Johannesburg, in which it asked for an order overturning the finding by the arbitrator.
The employee commenced her employment with the university in 1989 and at the time of her dismissal, she occupied the position of a cleaning supervisor. She was dismissed for the alleged theft of the cellphone, alternatively the unauthorised possession of the phone.
It was not in dispute that the employee retrieved a cellphone she found in the female toilets. She did not hand the phone to security either at the time she found the phone or when leaving the employer’s premises at the end of her shift.
The following day, during her shift, the employee did not inform anyone that she was in possession of the phone. It was only at the end of her shift that the university became aware of the fact that the phone was at her home.
Another cleaning supervisor, on the instruction of the university, accompanied the employee to her house to retrieve the phone. Upon returning the phone, it was discovered that the phone’s SIM card and memory card were removed and all pictures stored on the phone were deleted.
The phone was returned to the rightful owner who was a visiting student from another province.
In explaining her conduct, the employee testified that she found the phone in the bathroom situated in the science block. She immediately took it to the science block security room; however, there were no security officers in the room, and therefore she kept the phone with her.
During the day, she received a call informing her that her niece had been involved in a car accident. The employee said she was traumatised by the news and as a result, forgot to hand the phone to security when leaving the employer’s premises at the end of her shift.
The following day, she used a different handbag to work and forgot to transfer the phone from the handbag she used the previous day. She explained that the phone was similar to her phone and it was possible that her son found it in her handbag and when playing with the phone, removed both the SIM and memory card and deleted all the photos from the phone. However, it emerged her son was 21 years old.
At arbitration, there was a dispute about whether the employee approached the security office the following day and informed them about the phone or whether, as was the university’s version, the employee was approached first and when questioned about the missing phone, the employee “confessed” to the misconduct.
In his findings, the arbitrator accepted the facts but found that the university only established a suspicion that the employee stole the phone or was in unlawful possession of it. This, according to the arbitrator, did not, on a balance of probabilities, establish that the employee was guilty of either of the two offences.
Acting Judge M Naidoo, however, during the review judgment, said on the common cause facts before the arbitrator, the court accepted that the university put up a prima facie case of misconduct against the employee.
The judge said it is not in dispute that the worker took the phone from the toilet cubicle, took it home, and never brought it back the next day. It is also not in dispute that the pictures and SIM card were removed from the phone.
The judge referred the matter back to the CCMA to be reconsidered, this time before another arbitrator.
WhatsApp your views on this story at 071 485 7995.
Pretoria News