Transvaal Mattress & Furnishing Company Limited v Commission For Conciliation, Mediation and Arbitration and others (JA16/99) [1999] ZALAC 23 (28 September 1999)

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[1999] ZALAC 23
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Transvaal Mattress & Furnishing Company Limited v Commission For Conciliation, Mediation and Arbitration and others (JA16/99) [1999] ZALAC 23; [1999] 12 BLLR 1266 (LAC) (28 September 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
CASE NO.:JA16/99
In the matter between:
TRANSVAAL MATTRESS & FURNISHING
COMPANY LIMITED
Appellant
And
COMMISSION FOR CONCILIATION,
MEDIATION
& ARBITRATION
1
st
Respondent
VAN
DER MERWE N.O.
2
nd
Respondent
PAPER PRINTING WOOD & ALLIED
WORKERS’ UNION
3
rd
Respondent
MDLALOSE,
A
4
th
Respondent
JUDGMENT
CONRADIE JA
[1] This is an appeal from a decision
of Revelas J. She declined to interfere with the award of a CCMA
commissioner who imposed on
the fourth respondent what amounted to a
four month suspension without pay.
[2] The fourth respondent, who was a
driver employed by the appellant, had been dismissed for having made
unauthorised use of a
delivery vehicle belonging to the appellant.
He was at a disciplinary enquiry charged with and found guilty of
having privately
used the vehicle and having kept it at his home
overnight. The second component of the offence was common cause. The
first was
not admitted. However, when the dismissal came to be
considered by a commissioner of the CCMA, it was not suggested in
evidence
by Mr Dube, the respondent’s assistant who accompanied
him on the day in question, how the eighty-eight kilometres, which
were
on the respondent’s delivery schedule unaccounted for, might
have been recorded. The commissioner found on the evidence before
him that the vehicle had probably travelled this distance when the
driver’s assistant was taken from Soweto to his home in Daveyton
near Benoni. He nevertheless concluded that the fourth respondent
had to be given ‘the benefit of the doubt.’ It was contended
by
Mr Franklin for the appellant that in so doing the commissioner
applied the wrong standard of proof. The submission is obviously
correct but I do not think that it is of any consequence. The
commissioner decided that he could not say for certain that the

eighty-eight kilometres had been travelled in taking Dube to his
home in Daveyton. He did not, on a careful reading of his judgment,
mean to say that the fourth respondent had not at some stage of his
journey driven eighty-eight kilometres which he should not
have. I
can therefore not agree with Mr Franklin that the commissioner
proceeded to determine the propriety of the fourth respondent’s
sanction on the footing that he had been guilty only of keeping the
vehicle at his home.
[3] The driver’s erstwhile
immediate supervisor testified that all drivers were well aware that
a contravention of the rule against
the unauthorised use of a
vehicle – whether in the form of using the vehicle for private
purposes or keeping it at home overnight
- was a serious
disciplinary offence which could result in dismissal. He
nevertheless found that ‘it could not have been expected
of him to
have been alert to all the possible consequences of non-compliance.’
The reason for this finding is articulated as
follows –
‘
There is no indication on the part
of the company that non-compliance would be regarded as a
dismissable offence at the first instance.
There was no agreement
with the employees or with their union in regard to appropriate
sanctions in the event of non-compliance.
In short, the rules were
not plainly and clearly set out in writing and publicised so that
every driver knew about them without
any doubt. Possible or definite
consequences of the unauthorised use of company vehicles were not
brought unequivocally to the
attention of employees.’
[4] I do not think that it is all
that hard to discern what the commissioner was attempting to say. He
dealt pertinently with dismissal
as a sanction for a first offence
of unauthorised use of a company vehicle. Although the language is
diffuse, the thrust of the
reasoning is clear enough. For dismissal
to have been a fair sanction for a first offence, the commissioner
would have liked to
have seen a greater emphasis by the appellant on
the seriousness of the transgression. One way of doing this would
have been to
commit the rules to writing. Another would have been to
debate the rules - and this rule in particular - with the employees
or
their union. Evidence that this had been done would have been
more cogent than that of the fourth respondent’s supervisor whose
testimony concerning how others understood the rule would inevitably
have been coloured by his own perceptions.
[5] Mr Van der Riet for the third and
fourth respondents argued that central to the commissioner’s
difficulty with the dismissal
was the familiar problem of the
setting of standards. An employer is entitled to set its own
standards for the workplace having
regard to the exigencies of the
business. That much is trite. For example, in mines where there is a
danger of escaping methane
gas, a miner would almost certainly be
dismissed for a first offence of having matches or cigarettes on his
person when going underground.
The rule is severe, but it is
necessary. It has been brought home to everyone and everyone accepts
the standard.
[6] In the present case the
commissioner was doubtful whether, as a matter of objective fact,
the disciplinary standard, the level
of severity, had been
sufficiently well embedded in the minds of the appellant’s
drivers. The group industrial relations executive
of the appellant’s
parent company says in the founding affidavit that the supervisor’s
evidence that all drivers knew that
they could be dismissed if they
made unauthorised use of the appellant’s vehicles was not properly
challenged in cross-examination.
The witness was, however, in
cross-examination referred to a memorandum issued a day after and
probably pursuant to the disciplinary
enquiry. It was, he said, a
re-affirmation of a long-standing system. A startling feature of the
memorandum (having regard to its
timing and purpose) is that it did
not ‘re-affirm’ the appellant’s policy on dismissal for the
unauthorised use of motor
vehicles, much less make it clear that
there was a serious risk of dismissal even in the case of a first
offence. If the memorandum
is indicative of the level of precision
in communicating disciplinary standards to the drivers, I am not
surprised that the commissioner
remained unpersuaded of the
appellant’s communicative powers. In these circumstances I am not
satisfied that the fourth respondent’s
failure to give evidence
should be counted against him. It cannot be said that the
appellant’s case on this topic cried out for
an answer.
[7] Mr Franklin for the appellant did
not argue that if the commissioner did not gravely misunderstand the
evidence, the court
a quo
should have interfered with his
award. Unless this were so, there would have been no misdirection
sufficiently serious to qualify
as a gross irregularity or as an
abuse of power in terms of
s 145(2)
of the
Labour Relations Act 66
of 1995
. The Commissioner, on what I consider to be perfectly
rational grounds, found the sanction to have been too severe. The
court
a quo
was not at liberty to substitute its discretion
for his. No interference on review would have been permissible. The
court
a quo
was correct in deciding not to interfere.
[8] In conclusion I ought to mention
that none of the parties filed a power of attorney. They were given
leave to file such powers
of attorney accompanied by an application
for condonation by no later than one day after the hearing of the
appeal. Condonation
is granted. The problem is, however, endemic.
Few practitioners seem to pay any regard to
rule 6
of the rules of
this court. Continuing disregard of the rule will inevitably lead to
a greater reluctance to grant condonation.
The appeal is dismissed with costs
including the costs of the application for leave to appeal.
____________
CONRADIE JA
I agree
______________
NICHOLSON JA
I agree
­­­­­­­­­­­­­­­­______________
MOGOENG AJA
7