BMW (South Africa) (Pty) Ltd v L Van Der Walt (JA10/99) [1999] ZALAC 28 (18 November 1999)

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[1999] ZALAC 28
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BMW (South Africa) (Pty) Ltd v Van Der Walt (JA10/99) [1999] ZALAC 28; [2000] 2 BLLR 121 (LAC); (2000) 21 ILJ 113 (LAC) (18 November 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT JOHANNESBURG
CASE NO.: JA10/99
In the matter between:
BMW (SOUTH AFRICA) (PTY)
LTD
Appellant
and
L VAN DER WALT
Respondent
CONRADIE JA
[1] The appellant dismissed the
respondent on 28 February 1995 after he had, at a disciplinary
enquiry, been found guilty on a charge
of ‘misrepresentation by
removing two FMC wheel alignment equipment to Garaquip for repairs’.
The wheel alignment equipment
had early in 1994 been declared
redundant by the appellant. When the respondent came to hear of this
it aroused his interest in
acquiring the equipment. He set about
having a scrap authorisation form completed. This was the first step
in obtaining an invoice
which would serve as a gate pass and enable
the respondent to remove the equipment from the appellant’s
premises. Much to the
respondent’s surprise the scrap
authorisation form, and consequently the invoice, did not reflect a
value for the equipment.
[2] The fact that the equipment had
been designated as scrap did not mean that it was valueless.
Moreover, it was the appellant’s
policy not to permit any
employee to acquire any asset of the appellant for nothing. It was
later discovered that the equipment
had mistakenly been given a nil
valuation by the finance department. It is probable that the
respondent realised at the time that
a mistake had been made. He
nevertheless did nothing to put the mistake right. He requested a Mr
Labuschagne, who was the managing
member of a close corporation
called Garaquip South Africa (‘Garaquip’) (the South African
agent for the FMC wheel alignment
equipment) to come to the
appellant’s premises to give him a quotation for the repair of the
equipment. In the course of inspecting
the equipment Labuschagne
mentioned that he thought it might be worth R 15 000.00. If this
turned out to be the case the respondent
stood to make quite a
profit. He was not sufficiently dismayed by this prospect to then
take the matter up with the appellant.
Instead, he concealed the
fact that he had acquired the equipment. He did so by approaching
the finance department and requesting
another invoice which might
serve as a gate pass to get the equipment out of the premises. This
invoice reflected that the equipment
was to be taken to Garaquip for
repairs. The information on the invoice could only have come from
the respondent who knew, of course,
that it was false. One would not
have thought that the respondent would give false information to the
finance department unless
it served some purpose. The purpose which
it served is reasonably clear. It would avoid the risk of queries by
the security personnel
at the exit from the appellant’s premises,
who might, if they looked at the nil value invoice, have become
concerned at the breach
of the appellant’s standard procedure and
might also have been alarmed at the fact that a very large piece of
equipment – indeed
two large pieces of equipment – were said to
have no commercial value.
[3] The other person whom it was, in
furtherance of the respondent’s scheme, prudent to deceive was
Labuschagne. If the respondent
had given him the nil value invoice
with which to remove the equipment from the premises he might very
well have realised that
it was unlikely that the appellant could
have assigned a nil value to equipment which he, at the first
inspection thereof, considered
to be worth R 15 000.00. If he were
to take up the matter with the appellant the respondent’s scheme
would founder. The respondent
resolved, as he put it, under no
circumstances to disclose to Labuschagne that he was the owner of
the equipment. Labuschagne did
not ask him who the owner was, but
given the circumstances under which he found the equipment, it is
highly unlikely that he could
have believed that it did not belong
to the appellant.
[4] The equipment was removed by
Labuschagne’s men, using the false invoice which the respondent
had supplied. On 9 August 1994
Garaquip quoted R 11 000.00 for the
repair of the equipment. The quotation was, naturally enough,
addressed to the appellant
but marked for the respondent’s
attention. Not having the money to pay for the repairs, the
respondent then requested Labuschagne
to value the equipment.
Garaquip offered to buy the equipment for R 50 000.00. The delight
which the respondent no doubt experienced
at learning this news was,
I would think, tempered by the realisation that it was now, more
than ever, essential to conceal from
Labuschagne that he had
acquired the equipment. He accordingly resorted to the stratagem of
telling Labuschagne that he would be
contacted by a company which
had bought the equipment. The ‘company’ was no company at all.
The respondent seems to have been
the sole proprietor of the
business. The respondent and a friend, one Karl Filter, had from
time to time done business under the
trading name of Danheimer. A
banking account was conducted by the respondent under this name and
when, on 24 August 1994, an invoice
for R 50 000.00 in the name of
Danheimer was faxed to Garaquip, it gave as the account into which
the purchase price had to be
deposited, the number of this very bank
account.
[5] As it happened, the supposed
acquisition by a company of the equipment after it had been sent for
repairs (for this is what
Labuschagne was asked to believe) excited
the latter’s suspicion. He accordingly contacted the person with
whom he had dealt
in originally selling the equipment to the
appellant, who in turn alerted the appellant’s security
department.
[6] The probabilities leave little
doubt that the respondent took the opportunity which he thought the
nil valuation of the equipment
provided to enrich himself at the
expense of the appellant. He was surprised when he first received
the nil valued invoice. He
said so himself in evidence. His surprise
must have turned into astonishment when he heard the first valuation
figure of R 15 000.00.
Each of these occasions presented an
opportunity for him to fulfil the fiduciary duty which he owed to
his employer and tell the
appellant that a serious mistake appeared
to have been made. He was not a junior employee. He held a
responsible position as a
road testing manager. He compounded his
lack of candour by his disgraceful conduct in seeking to conceal the
appellant’s mistake
well-knowing that if it was discovered, it
would mean the end of his windfall.
[7] Where there is calculated silence
in the face of a duty to speak, one has to do with that species of
fraudulent misrepresentation
known as fraudulent concealment or
fraudulent non-disclosure. In my view the respondent was guilty of a
fraudulent misrepresentation
by non-disclosure. His explanation for
having requested the second invoice and for having concealed the
true position from Labuschagne
is not plausible. It was, in my view,
correctly rejected by a second disciplinary enquiry held into the
respondent’s conduct.
[8] The judgment of the industrial
court contains no explicit order in relation to the claim based on
procedural unfairness. The
closest the presiding member comes to a
conclusion is this:
‘
It would accordingly be of lesser
significance to deal with procedural issues at length, as yet, but
one has to agree with Mr Jonker
that what had transpired on that
score cannot have been above criticism.’
I doubt whether this comment in
passing by the presiding member can be equated to a finding that the
respondent’s dismissal had
been procedurally unfair. It seems to
me that, having found the dismissal to have been substantively
unfair, the presiding member
found it unnecessary to come to a firm
conclusion on the question of procedural fairness. The appellant
seems to have read the
judgment in this way for there is no appeal
against any finding of procedural unfairness. The respondent’s
attorneys (at the
time he was still represented) appear to have read
the judgment differently: there is no cross-appeal against the
failure or refusal
of the member to grant the respondent’s prayer
for an order that he had been substantively
and procedurally
unfairly dismissed. For the sake of full ventilation of the dispute,
I am, despite my doubt, prepared to consider the matter as
though
there had been a finding of procedural unfairness.
[9] The removal of the wheel
alignment equipment had led to another, earlier, disciplinary
enquiry on 10 January 1995 at which
the respondent had been charged
with having –
a. Committed a fraud by arranging or
having arranged that the appellant’s procedures were not adhered
to when the equipment was
scrapped;
b. Committed a fraud by arranging for
the equipment after it had been scrapped to leave the appellant’s
premises to Garaquip;
c. Committed a fraud by informing
Garaquip that the equipment had been bought by Karl Filter of
Danheimer.
The disciplinary finding was that the
respondent had not made himself guilty of any transgression save for
‘a misrepresentation
by him when removing the equipment for
repairs.’ No sanction was imposed on the respondent. From this it
is to be inferred that
the respondent was not considered to have
committed any disciplinary offence.
[10] The appellant alleged in its
statement of case before the industrial court that ‘subsequent to
the hearing on or about 11
January 1995, further and new information
became known to the respondent and on or about 17 February 1995,
applicant was charged
with a new and different charge of misconduct
in that it was alleged that applicant made certain
misrepresentations when the wheel
alignment equipment in question
was removed from respondent’s premises to Garaquip.’
[11] The ‘new and different charge
of misconduct’ is the one cited at the beginning of this judgment
on which the respondent
was found guilty. The ‘further and new
information’ was a quotation for the repair of the equipment from
Garaquip addressed
to the appellant, and marked for the attention of
the respondent. This quotation brought home to the appellant the
enormity of
the respondent’s deception. Up till then it was
thought that the equipment had been acquired by the respondent. It
is true that
the scrapping procedures had not been meticulously
followed and that a false invoice had, on the respondent’s
instructions, been
made out, a transgression which the respondent
had, at the earlier disciplinary hearing been found to have
committed, but the quotation
seems to have alerted the appellant to
the fact that the respondent had either considered the equipment
still to belong to the
appellant or was concealing that it did not.
If the respondent was to have attempted to sell equipment belonging
to the appellant,
it would obviously be a serious transgression
whereas selling his own equipment would not have been an offence at
all. The Garaquip
quotation made it look as if the respondent had
smuggled the appellant’s equipment out of the premises and then
attempted to
sell it. The attempted sale of the equipment now took
on a different colour. It demonstrated fraudulent intent far beyond
making
a false representation in order to move his own goods out of
the premises.
[12] Whether or not a second
disciplinary enquiry may be opened against an employee would, I
consider, depend upon whether it is,
in all the circumstances, fair
to do so. I agree with the dicta in
Amalgamated Engineering Union
of SA & Others v Carlton Paper of SA (Pty) Ltd
(1988) 9 ILJ
588 (IC) at 596 A – D that it is unnecessary to ask oneself
whether the principles of
autrefois acquit
or
res
iudicata
ought to be imported into labour law. They are public
policy rules. The advantage of finality in criminal and civil
proceedings
is thought to outweigh the harm which may in individual
cases be caused by the application of the rule. In labour law
fairness
and fairness alone is the yardstick. See also
Botha v
Gengold
[1996] BLLR 441
(IC);
Maliwa v Free State
Consolidated Gold Mines (Operations) Ltd
(1989) 10 ILJ 934 (IC))
I should make two cautionary remarks. It may be that the second
disciplinary enquiry is
ultra vires
the employer’s
disciplinary code (
Strydom v Usko Limited
[1997] 3 BLLR 343
(CCMA) at 350 F – G. That might be a stumbling block. Secondly, it
would probably not be considered to be fair to hold more than
one
disciplinary enquiry save in rather exceptional circumstances.
[13]
In casu
the appellant was
perfectly
bona fide
throughout. The respondent was the one
who concealed what he had done. That concealment was carried into
the first disciplinary
enquiry. It may be that the appellant should
have seen through the respondent’s scheme sooner than it did, but
that did not make
it fair that the respondent should have come away
scot free. Although the charges both involved misrepresentation, the
full import
of the deception was not realised at the first
disciplinary enquiry. It would be unfair to compel an employer to
retain an employee
in whom it has justifiably lost all confidence.
That must have been the case here when the full extent of the
respondent’s deceit
became apparent. And since this loss of
confidence justifiably occurred only after a first disciplinary
enquiry had been held,
I do not consider that it was be unfair to
hold another. In my view the respondent’s dismissal was both
substantively and procedurally
fair.
[14] There is a good explanation for
the appellant’s failure to have filed a power of attorney. The
failure is therefore condoned.
The appeal succeeds with costs.
The order of the industrial court is
set aside and replaced by an order reading: ‘The application is
dismissed with no order as
to costs.’
_____________
CONRADIE JA
I agree
______________
ZONDO DJP
I agree
______________
NICHOLSON JA
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