JDG Trading (Pty) Ltd t/a Price 'n Pride v Van Den Heever (JA1/2000) [2000] ZALAC 13 (8 June 2000)

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[2000] ZALAC 13
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JDG Trading (Pty) Ltd t/a Price 'n Pride v Van Den Heever (JA1/2000) [2000] ZALAC 13; [2000] 12 BLLR 1397 (LAC) (8 June 2000)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NO: JA 1/2000
In the matter between:
JDG TRADING (PTY) LTD t/a PRICE ‘n
PRIDE
Appellant
and
MICHAEL CONRAD, VAN DEN HEEVER
Respondent
JUDGMENT
NICHOLSON JA
[1] The Respondent was employed by the
Appellant as a warehouse manager from 1 March 1994. On 16 February
1996 he was suspended from
duty and an enquiry was held on 6 March
1996 after which his services were terminated.
[2] The Respondent was
found guilty of misappropriating company property, valued at R 22
171-00, by having a lounge suite and coffee
table at his house,
without the authorised documentation or authority, thereby enriching
himself at the expense of the Appellant.
[3] The Respondent
instituted proceedings in the Industrial Court which found that his
dismissal was procedurally and substantively
unfair and awarded him
compensation of R 127 400-00, as well as Magistrates Court costs, on
the attorney and client scale. The Appellant
challenges these
findings on appeal.
[4] It was common cause
that the Respondent was in possession of a Jennifer three piece
sitting room suite and four Sorento coffee
tables, which belonged to
the Appellant, from prior to Christmas 1995 until 14 February 1996,
when they were returned.
[5] These items
emanated from the Louis Trichardt warehouse of the Appellant, where
the Respondent was the warehouse manager. The
Respondent said that
they came to be in his possession, because his wife wanted to buy the
said items, but she could only pay for
the items at the end of
February 1996. This was contradicted by Respondent’s own witness
Mrs de Beer who said payment was to be
effected at the end of
December.
[6] The Respondent said
that the Respondent’s wife approached Mr Stippek, a regional
manager of the Appellant, who authorised the
removal. The Respondent
testified that a waybill was completed and that the goods were
removed to his house by his wife and mother-in-law
in his private
vehicle.
[7] It was common cause
that no invoice or delivery note was generated and the reason given
by Respondent was that the computers were
down. The procedure which
should have taken place was that invoices, delivery notes and
waybills should have been created manually,
i.e. in writing and then
the data captured on the computer when it came on line again.
[8] The Respondent made
use of the furniture in his house.
[9] It is clear,
therefore, that the Respondent’s explanation for why he had the
items in his possession was that he had purchased
them.
[10] It was the Appellant’s case that
Respondent had stolen the items or
alternatively
had misappropriated them. It is necessary to investigate whether a
genuine sale took place or whether they were stolen or
misappropriated.
[11] The return of the furniture was effected
after two of Appellant’s employees came to the warehouse to
investigate losses which
were occurring. It was common cause that the
Appellant suffered severe losses as a result of the disappearance of
stock.
[12] As a result of the
visit by the two head office investigators, including a Mr Pickles,
the Respondent was placed on suspension
by Stippek. On this occasion
Respondent told Stippek that he wanted to pay for the items. This was
a strange response from a person
who had received the goods as a
result of a credit sale. He ought to have told Stippek that he had
purchased the goods and was to
pay at the end of February for them.
[13] Stippek, on
Respondent’s own version, had authorised this “sale” and should
then have allowed the Respondent to complete
the necessary invoice
and make payment. Stippek would not allow the Respondent to pay and
said: “Nee, dit gaan beter wees dat jy
dit terugbring.”
[14] The response by
Stippek totally undermined the alleged “sale” that had taken
place and cast grave doubts on its authenticity.
It will be recalled
that the furniture was in use at Respondent’s house and it was
never his case that it was on loan to him by
the Appellant.
[15] The suspicious
nature of the whole transaction is fortified by the fact that on
Respondent’s own version he then said to Stippek:
“Dit gaan
moeilikheid veroorsaak as ek dit terugbring.” The reason he said
this was obvious, namely, that it would not square
with his version
that it was a genuine sale.
[16] To establish
bona
fides
on his own version, the
Respondent needed the permission of Stippek and the necessary
documentation. This permission had to be on
the basis that Stippek
was authorising a genuine sale albeit a credit sale. If Stippek
genuinely agreed to the sale his conduct thereafter
should have been
consistent with this sale.
[17] When the
Respondent told him that he foresaw problems should he return the
goods Stippek told him: “Wie gaan weet as jy dit
terugbring?”
Clearly he intended that the furniture be surreptitiously returned
with no documentation so that no-one would be the
wiser.
[18] This
modus
operandi
i.e. the absence of
documents evidencing transactions, is a feature of the case and this
chance comment speaks volumes. Stippek,
who I gather was also fired
for having furniture at his home without the necessary documentation,
owed a duty of care to the Appellant.
The secret return of goods to
the warehouse was for one purpose only; to thwart the head office
investigators. It was of course totally
destructive of the version of
a credit sale.
[19] There is another
feature which casts serious doubt on the alleged “sale”. When
Stippek told Respondent he was suspended he
gave no reasons for the
suspension, nor did the Respondent have an inkling of what he had
done. Despite this fact the first matter
that came to the mind of
Respondent was the furniture in his home. Had this been a genuine
sale he would surely have racked his brain
for some other misdemeanor
that had incurred the wrath of his employer.
[20] He thought of the
presence of the furniture at his home because he knew he had either
stolen it or misappropriated it. The fact
that Stippek connived at
committing the offence with him does not make the former’s
permission sufficient to ensure a valid credit
sale.
[21] Respondent’s
case was that a waybill was sufficient documentation for a credit
sale.
[22] Reference was made
during the proceedings to section 10.12 of the Staff Code of Conduct
which provides that: “no employee may
be in possession of unpaid
property without the authority of the manager and the correct
documentation.”
[23] I have indicated
that the authority of Stippek, given his role, was no authority at
all. Respondent claimed that none of the
manuals or directives were
available in his warehouse and that he was not aware of section 10.12
of the Staff Code of Conduct. I
can accept that he could not quote
chapter and verse but he must have known he had to have the right
documentation.
[24] It goes without
saying that anyone in the furniture business must be aware of at
least three documents; the invoice, the delivery
note and the
waybill. The invoice would be of great importance to the credit
control of the Appellant and the auditors. The Respondent
claimed
that the waybill was the “correct document” for his “credit
sale”. Other evidence from the Appellant’s witnesses
contradicted
this in convincing fashion. He needed to have an invoice and a
delivery note as well.
[25] I believe the
Respondent was not telling the truth when he said the waybill was the
only document necessary. It, no doubt, helped
to secure the exit of
the goods from the warehouse. No trace has been found of the waybill
and the Respondent was in charge of the
premises where it was kept.
It was certainly in his interest that it disappeared. Although we
have our suspicions about this no positive
finding can be made.
[26] In an unguarded
moment when speaking to Stippek and offering to pay for the furniture
the respondent said: “Kan ons nie teruggaan
dat ek dit dan betaal
nie, dat ons die ‘invoice’ uitmaak?” This was his own evidence
and clearly showed that he knew that an
invoice was necessary to
effect a sale.
[27] It was also clear
that purchases could not be made from the warehouse.
[28] What the
Respondent did constituted theft to all intents and purposes. At best
for him it amounted to use of furniture in a manner
which breached
the rules of the Appellant. Two managers, Venter and K van den
Heever, acknowledged that such conduct warranted dismissal.
I agree
with them. A warehouse manager is in a special relationship of trust
with his employer. He must guard his employer’s goods
and take all
reasonable steps to protect the employer’s interests. To act as the
Respondent did was to totally subvert his most
important duty.
Dismissal was warranted and the appeal on the substantive issue must
succeed.
[29] The Industrial
Court found four grounds for concluding that there was procedural
unfairness in the dismissal. It was submitted
that witnesses were
intimidated not to testify in Respondent’s case at the enquiry. No
case was made out, however, that they had
any knowledge of the
furniture he took to his home. Their evidence would not have assisted
the Respondent.
[30] It was submitted
that Respondent had insufficient information and time to prepare his
defence. On the charge of misappropriating
the furniture the evidence
was clear and arose out of facts which were common cause. The
Respondent knew of the charges and had volunteered
the information
about the furniture, because of the pressure of the investigators. He
gave his explanation that he had permission
from Stippek and that the
waybill constituted the correct documentation. There was nothing else
he could add. This explanation was
properly rejected by the
disciplinary hearing and the appeal, for reasons I have mentioned.
[31] No transcription
was necessary for his appeal and the facts were summarised in the
documents. No procedural unfairness has been
proved and the appeal
must succeed on this ground as well.
[32] The Appellant has
been considerably remiss in various procedural matters and seeks
condonation for the late filing of its heads
of argument, the power
of attorney and the record including the exhibits. The exhibits have
never been found and, fortunately, the
appeal could be disposed of
without reference to them. No objection was raised to the heads which
were a day or two late.
[33] The record was
filed on 24 January 2000, the decision having been given by the
Industrial Court on 2 April 1998. A series of
letters to the
Secretarial Services dating from 5 May 1998 establish that the fault
lay with them rather than Appellant or its attorneys.
[34] The power of
attorney was only filed on 3 May 2000, the day before the hearing of
the appeal. This power of attorney gave authority
to bring the appeal
and ratified the earlier steps taken by Appellant’s attorneys to
prosecute the appeal. An affidavit by the
Human Resources Director of
Appellant Lindsay Mentor dated 5 May 2000 confirmed that
authorisation was given to Appellant’s attorneys
to prosecute the
appeal from the end of April1998.
[35] The late filing of
the heads, the record and the power of attorney is condoned.
[36] In the result, the
appeal succeeds with costs and the order of the Industrial Court is
altered to read “The application is
dismissed”.
SIGNED AND DATED AT JOHANNESBURG ON THIS 7
TH
DAY OF JUNE 2000.
Nicholson JA
Zondo JP
Nugent AJA
Date of hearing: 4 May 2000.
Date of judgment: 8
June 2000.
For the Appellant: Adv
A. J. Nel instructed by Snyman van der Heever Heyns.
For the
Respondent: Adv J. Nel instructed by Steytler, Nel & Partners.