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[2010] ZALAC 29
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Timothy v Nampark Corrugated Containers (Pty) Ltd (DA22/08) [2010] ZALAC 29; [2010] 8 BLLR 830 (LAC); (2010) 31 ILJ 1844 (LAC) (17 March 2010)
9
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT
:
JOHANNESBURG
CASE
NO
:
DA22/08
DATE
:
2010-03-17
In
the matter between
GORDON
TIMOTHY
…..............................................................
Appellant
And
NAMPAK
CORRUGATED CONTAINERS (PTY) LTD
…......
Respondent
Coram:
DAVIS
JA, JAPPIE JA, REVELAS AJA
J
U D G E M E N T
DAVIS
JA:
This
is an appeal against the decision of the court
a
quo
in
upholding an application for a review of the finding of third
respondent to the effect that the first respondent's dismissal
of
appellant was substantively unfair.
In
summary, the facts of the case can be summarised thus: Appellant was
employed by first respondent on 1 September 1994, initially
as a
warehouse distribution controller, subsequently as the waste manager
and finally he held a post of waste buster. It appears
that, in
January 2006, he generated a telephone call to Ms Brisley who was
employed by attorneys Beal Chaplin Hathorn as a collection
clerk. In
this telephone call, appellant raised a query about a Bradlows debtor
and purported to represent that he was Gordon Timothy,
an attorney.
Ms Brisley advised appellant that she could not give the balance
requested because of computer system problems with
Bradlows. Many
further questions were put by appellant but Ms Brisley informed him
that she was not able to provide him with privileged
information.
During
this conversation, as I have noted, appellant claimed he was an
attorney, acting on behalf of respondent and, further, on
behalf of a
Bradlows debtor, who too was an employee of first respondent. It
appears that, according to the evidence of Ms Brisley,
appellant
became very aggressive during this telephone call and insisted that
Ms Brisley was robbing his client. Notwithstanding
her attempts of an
explanation, he persisted with his abusive conduct.
During
the telephone conversation, Ms Brisley asked for details of
appellant's firm. He said that his firm was called Timothy and
Associates. According to Ms Brisley, because of this abusive
telephone conversation, the unreasonable conduct of appellant, and
his inability to understand the most elementary principles relating
to a garnishee order, which were relevant to the particular
case and
further, because she had never heard of a firm of attorneys called
Timothy and Associates and that first respondent would
be unlikely to
hire a new firm of attorneys, she telephoned the number which had
been given to her by appellant. This number proved
to be one of the
telephone numbers of first respondent. She was then put through to
appellant and again appellant became abusive,
screamed over the
telephone and resented the fact that he was being questioned by her.
Again he repeated that he was an attorney
based at first respondent's
premises and that he was acting on behalf of employees.
As
a result of these two telephone conversations, a letter was generated
from Ms Brisley's employer, the attorneys Beall
et
al,
on
5 April 2006. The relevant portion of that letter reads: "We
confirm that Mr Gordon Timothy has contacted a number of our
staff
employed in our garnishee order department and had represented to our
staff that he is an attorney acting on behalf of Nampak
and
representing various Nampak staff members. He has also represented to
our staff that he is a supervisor of Nampak at HR department.
On the
strength of his representations, he has demanded statements of
account and queried balances outstanding for Nampak an employee
who
was subject garnishee orders on behalf of our clients.
We
have no objection to supplying this information to the staff member
concerned or any authorities and qualified HR employee. However,
Mr
Timothy is aggressive, unreasonable and has on occasion threatened
court action on behalf of the person he represents.Please
take action
against Mr Timothy, failing which we will report him to the Law
Society who will charge him for impersonating an attorney."
Subsequent
thereto, a disciplinary hearing was conducted on 8 May 2006. Three
charges were brought against appellant, that he misrepresented
himself to be an attorney acting on behalf of Nampak, threatened
legal action on behalf of Nampak and its employees in the event
his
demands for certain information have been met and brought first
respondent into disrepute. He was found guilty on all three
charges
and subsequently dismissed.
The
appellant referred a dispute relating to his unfair dismissal to the
second respondent on 14 June 2006. A certificate of non
resolution
was issued by the second respondent on 11 July 2006. Arbitration
proceedings eventually were heard before third respondent
on 7
September and 6 November 2006.The award made by the third respondent
was to the effect that the dismissal have been substantively
unfair
and first respondent was thus ordered to reinstate appellant in its
employment upon the same terms and conditions he was
employed prior
to his dismissal effected on 7 August 2006.
The
application to which I have made reference earlier was then brought
before Molahlehi J. The learned judge examined the reasoning
of the
third respondent and applied, as he was obliged to do, the test of a
reasonable decision maker as set out by the Constitutional
Court in
Sidumo
v Rustenburg Platinum Mines & Others,
(2007)
12 BLOR 2405 (C). He found:
"In
the present instance, my view is
that
the award of the commissioner
is
unreasonable because the
commissioner
failed to look properly
evaluate
and take into account the
totality
of evidence placed
before
him. The Commissioner
misconstrued
the principles
applicable
to the assessment
and
evaluation of the fairness
of
the sanction". Molahlehi J, referred to the fact that the
conduct of the appellant was in contravention of Section 83(1)
of the
Attorneys Act, 53 of 1997. The conduct did not only constitute a
criminal offence but it was committed by a person studying
law, who
should have known that his conduct was unlawful. In the view of the
learned Judge:
"The
evidence before the commissioner
evidently
shows that the third
respondent
was guilty of placing
the
name of the applicant
in
disrepute by projecting himself as
an
attorney retained by the applicant
and
furnishing the telephone number
of
the applicant in this regard.
The
applicant's disciplinary code
specifically
makes it an offence to
wifully
brings the name of
the
applicant in disrepute." Molahlehi J, thus found that it was
unreasonable for third respondent to have concluded that the
dismissal was substantively unfair and further, given the nature of
the conduct that a dismissal was too harsh a sanction. In his
view:
"This
is not a decision a reasonable
Decision
could have reached in
the
circumstances of this case".
I
should add that, in evaluating the sanction Molahlehi J, also took
into account a further fact that appellant showed no remorse
with
regard to his conduct.
On
appeal to this court, Ms Bezuidenhout who appeared on behalf of the
appellant, accepted, contrary to the approach which was adopted
by
the third respondent, that the test as to whether an employee brings
an employer into disrepute is an objective test. In this
correct
concession, she brought into question the reasoning adopted by the
third respondent. Third respondent, in addressing the
charges,
concluded that there was only one real charge against the appellant
that is bringing the first respondent into disrepute.
For the
purposes of judgement, I do not propose to engage in an analysis of
whether there are implications concerning the fact
that the appellant
had initially been found guilty on three charges by the disciplinary
hearing. However, in dealing with the charge
of bringing the company
into disrepute, the third respondent said:
"I
am satisfied that he did not act wilfully.
He
had absolutely no intention
whatsoever
of bringing the company
into
disrepute and merely intended
to
obtain the balance of a debt
from
attorneys who had not provided
this
to a colleague of his. His sole intention
was
to use the weight of the company to
achieve
this end. Again the applicant
should
be re-instated". Given that this is an incorrect approach, the
award itself is susceptible to review. A reasonable decision
maker
would have engaged in an objective evaluation as to whether appellant
brought the company into disrepute.
Ms
Bezuidenhout sought to support her argument by reference to the
letter to which I have already made reference from the attorneys
to
first respondent in which there was no indication that they
considered the conduct of appellant to have brought first respondent
into disrepute. In addition, she placed emphasis on the evidence of
Ms Brisley to the effect that she did not think worse of first
respondent as a result thereof. With regard to this latter piece of
evidence , as Mr Vanas ,who appeared on behalf of the respondent,
correctly pointed out, Ms Brisley's evidence is not as clear as
suggested by appellant .There are indications in her evidence that
she had thought the conduct of the appellant had jeopardised the
reputation of first respondent.
That
of course is not the end of the matter. Even assuming that the
evidence of Ms Brisley is in favour of the appellant, an objective
test means that a decision maker has to examine the entire context in
which the conduct alleged, has taken place and the effect
thereof.
In
this case, the objective facts can be summarised thus:
Appellant
purported to represent himself as an attorney acting on behalf of his
employer and operating from the premises of his
employer. Apart from
the fact that that is a criminal offence for reasons that I have
already articulated, his conduct represents
a gross
misrepresentation, whereby although not an attorney, he purported to
represent that he conducted an attorney's practice.
The appellant
provided a telephone number of the first respondent to Ms Brisley
which only compounds the misrepresentation. In
addition, he became
abusive when Ms Brisley questioned his status as an attorney.
Objectively
this kind of dishonest conduct, which represents to the public at
large that an employee is conducting a legal practice
in
circumstances where it is illegal, has the potential, at the very
least, to call into question the reputation of the employer.
The
example only has to be compounded to a situation where an employer
finds itself with many employees behaving in this fashion.
On
appellant's argument so long as customers or recipients did not
consider that these employees have not brought the company into
disrepute, the court would be powerless to come to the employers
relief. The employer would effectively be without a remedy. That
cannot be so on an objective test which must be applied in these
cases. An objective test enjoins an examination, in all the
circumstances,
the nature of the conduct, evaluates the turpitude and
the seriousness thereof and then makes an evaluation as to whether
the charges
can be sustained.
Viewed
in this way, had a reasonable decision maker adopted an objective
test to the facts of this case, there is no doubt that
a conclusion
opposite to that reached by third respondent would have been
sustained. Once it is accepted that the appellant had
brought the
company into disrepute, by virtue of his dishonesty, the further
question arises as to the appropriate sanction.
Ms
Bezuidenhout correctly pointed out that dismissal is tantamount to
capital punishment in labour law. It should not be implemented
nor
imposed as a default position but rather only in cases which so
justify a serious sanction.
Accordingly,
she contended that, given the fact that the appellant had an
uunblemished record and that, until this point, there
was no
indication in his conduct of any dishonesty or any impropriety prior
to the events that gave raise to this dispute, a form
of progressive
sanction would have been more appropriate. I have no doubt that these
arguments would have carried far greater weight
had there been a
scintilla of recognition by the appellant of his wrongdoing. By
contrast, the appellant denied that any conversation
or conversations
had taken place with Ms Brisley. Throughout the disciplinary hearing
and the hearing before third respondent appellant
continued to take
the view that the allegations brought against him were no more than
lies. Appellant showed no remorse, no recognition
of misconduct, save
for a blatant and clearly dishonest denial. That places this case
into an order of different magnitude from
those urged upon us by Ms
Bezuidenhout.
Mr
Vanas thought to elevate the issue to a more conceptual debate. He
contended with justification that there are circumstances
where an
employee has committed an act of dishonesty. The decision maker who
has to decide whether an arbitration or court must
be cautious,
before simply assuming that disciplinary sanctions must always and
invariably be based on a progressive system. In
other words, in a
case such as the present, where there is an egregious act of
dishonesty, and I use that word advisably because,
as I have already
indicated appellant's conduct throughout this dispute constituted a
perpetuation of the dishonesty, by way of
a denial, conversely
complete a lack of acknowledgement of any wrongdoing, there is a
formidable obstacle in the way of the implementation
of a progressive
sanction. Progressive sanctions were designed to bring the employee
back into the fold, so as to ensure, by virtue
of the particular
sanction, that faced with the same situation again, an employee would
resist the commission of the wrongdoing
upon which act the sanction
was imposed. The idea of a progressive sanction is to ensure that an
employee can be reintegrated into
the embrace of the employer's
organisation, in circumstances where the employment relationship can
be restored to that which pertained
prior to the misconduct.
In
these circumstances, where there is nothing more than an aggressive
denial and a perpetuation of dishonesty, it is extremely
difficult to
justify a progressive sanction, particularly in a case where the
dishonesty is as serious as this dispute.
In
the result, I would dismiss the appeal with costs.
JAPPIE
JA: )
REVELAS
AJA
:
) Concurs
APPEARANCES
For
the Appellant: R. Bezuidenhout
Instructed
by: Umika Gopichundo Attorneys
For
the Respondent: Adv. M. Vanas Instructed by : Cliffe Dekker Inc.
Date
of Judgment: 17 March 2010