About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2016
>>
[2016] ZALAC 17
|
|
Barloworld Logistics v Ledwaba N.O. and Others (JA119/14) [2016] ZALAC 17 (11 May 2016)
INTHE
LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Not
reportable
Case
no: JA 119/14
In the
matter between:
BARLOWORLD
LOGISTICS
Applicant
and
ADVOCATE
LEDWABA N.O.
First Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE
ROAD FREIGHT INDUSTRY
Second Respondent
PRAGASEN
CLIVE NAIDOO
Third Respondent
Heard:
24 March 2016
Delivered:
11 May 2016
Summary:
Review of arbitration award – employee dismissed for conducting
a business without permission
- commissioner finding that dismissal
of employee too harsh a sanction and issuing final written warning –
no evidence led
that employee conducting business using employer’s
time and resources – employee obtaining verbal permission from
immediate
superior – sanction imposed by commissioner
commensurate for first time offender as contemplated by the employer
code of
conduct – commissioner’s award falling with the
band of reasonableness – Appeal dismissed.
Coram:
Tlaletsi DJP, C J Musi JA, and Murphy AJA
JUDGMENT
C J MUSI
JA
[1] This
appeal, which is with the leave of this Court, is against the
judgment of the Labour Court (Van Niekerk, J) wherein it
dismissed
with costs a review application brought by the appellant.
[2] The
third respondent was employed by the appellant as an accountant from
1 September 2006 until his dismissal on 30 April 2009.
He referred a
dispute to the second respondent, National Bargaining Council for the
Road Freight Industry (NBCRFI). Conciliation
failed and he
subsequently referred the dispute to arbitration. The first
respondent, (the Commissioner) found that he transgressed
a workplace
rule but found that dismissal was not an appropriate sentence. He
imposed a final written warning valid for six months.
He ordered his
retrospective reinstatement on the same terms as those that prevailed
prior to his dismissal.
[3] The
appellant launched a review application against the award. The Labour
Court dismissed the application with costs.
[4] The
proceedings before the Commissioner were mechanically recorded but
unfortunately, the cassettes could not be found. The
record was
reconstructed and the appellant used the reconstruction in the review
application.
[5] The
appellant employed the third respondent based on Ms Tracy Naidoo’s
recommendation after she recruited and interviewed
him. She was his
immediate line function manager. The salient terms of the employment
contract were as follows:
‘
This
appointment is subject to the terms and conditions noted herein and
in the attached addendum document. Your signature
on these
documents will signify your acceptance of the terms and conditions of
this appointment.
In the
following pages the essential duties and responsibilities flowing out
of this employment contract will be clarified.
This contract
cannot deal with every possible circumstance that may arise, but the
essential requirement is that you act in the
best interest of your
employer at all times. This requires trustworthiness, good
faith, honesty, respect, efficiency, competence
and good conduct in
all your dealings with customers, fellow employees and suppliers.
EXTRANEOUS
EMPLOYMENT
It
is your undertaking that during the duration of this employment
contract, no external employment or work may be undertaken by
yourself without prior consent of the employer, irrespective of
whether such work is undertaken during outside normal working hours.’
[6] On 26
March 2007, the third respondent and Tracy Naidoo registered a close
corporation named Godiva Financial Services (Godiva).
They also lived
in the same house. Their relationship is unclear.
[7] Mr
Watzlawick who was employed in the appellant’s human resources
division testified that the third respondent did not
obtain
permission to run Godiva because the practice was that permission
should be obtained from the company director. In light
of the fact
that the third respondent stated that he obtained verbal permission
from Tracy Naidoo he testified that permission
should have been
accelerated to a level higher than hers because she was conflicted.
[8] Ms
Heidi Meintjies testified that she is the appellant’s financial
manager. She checked the calls made from the third
respondent’s
landline and noticed that 84% of the calls made and received by the
third respondent were private calls. Most
of those calls were made
between the third respondent and Tracy Naidoo. She could not say
whether they discussed Godiva matters
or other matters. She could
also not dispute that the third respondent made official calls with
his cellular phone because she
did not check that data.
[9] Mr
Van Huysteen, the National Operations Manager of the appellant,
shared an office with the third respondent. He overheard
telephonic
conversations between the third respondent and third parties on two
occasions. On the first occasion in March 2009,
he heard the third
respondent talk to a Solly – which sounded like a bank manager
to him – complaining about an account
he had with the bank
which was not yet activated. On the second occasion, he heard him
complain about a quotation that he was supplied
for work to be done.
[10] Ms
Tracy Naidoo, who was employed by the appellant between 2005 and
2008, confirmed that she verbally gave the third respondent
permission to be a member of Godiva. She confirmed that she was also
a member of Godiva when she was still in the appellant’s
employ
and also that she did not seek permission to be such. She mentioned
two other employees of the appellant who conducted other
businesses
without ramification.
[11] The
third respondent testified that he obtained verbal permission from
Tracy Naidoo to be a member of Godiva. There is nothing
in the
contract of employment which states that the permission had to be in
writing or given by the director or executive. Godiva
was dormant and
never did any business in competition with the appellant. He denied
knowing about the disciplinary and grievance
procedure of the
appellant. He testified that there were other managers who had
business interests outside of the appellant. He
stated that he was
targeted because he discovered irregularities that were not in the
best interest of the appellant and its shareholdings
and was about to
expose it. He denied that the verbal permission given by Tracy Naidoo
should have been checked by someone in a
higher position.
[12] The
Commissioner correctly identified the issue that he had to decide was
whether the dismissal of the third respondent was
substantively fair
because the procedural fairness was admitted. He correctly stated
that due to the fact that the dismissal was
admitted, the
onus
to prove the substantive fairness thereof rested on the appellant.
[13] The
Commissioner found that there is nothing in the employment contract
or code of conduct that states that written permission
to conduct
extraneous business was needed and that it must be obtained from the
director or executive. He however found that the
third respondent,
given his position, ought to have known that getting permission from
a senior employee who is also a member of
Godiva would not be in the
best interest of the appellant. He found that such permission,
especially if it is verbal, has the potential
of defeating the very
aim of preventing conflicts of interest. He rejected the third
respondent’s version that he did not
know about the appellant’s
disciplinary and grievance booklet.
[14] The
court a
quo
in a short but well-reasoned judgment found that
the appellant did not attack the Commissioner’s finding in
relation to the
nature of the misconduct but only challenged the
remedy of reinstatement. The court
a quo
found that the
Commissioner, in essence, undertook the required assessment and
balanced the interest of employment, justice and
the need for the
efficient operation of the appellant’s business and decided on
a sanction short of dismissal. The court
a
quo
was of the view
that the Commissioner’s decision is one that a reasonable
decision-maker could make. I agree with the court
a
quo
’s
assessment.
[15]
The facts of this matter are cast in the same mould as those of
Sidumo
.
[1]
In
Sidumo,
it was said that “a commissioner has to determine whether a
dismissal is fair or not. A commissioner is not given the power
to
consider afresh what he or she would do, but simply to decide whether
what the employer did was fair. In arriving at a
decision a
commissioner is not required to defer to the decision of the
employer. What is required is that he or she must
consider all
the relevant circumstances.’
[2]
Navsa AJ set out some of the factors which a commissioner should
consider. He said the following:
‘
In
approaching the dismissal dispute impartially a commissioner will
take into account the totality of circumstances. He or she
will
necessarily take into account the importance of the rule that had
been breached. The commissioner must of course consider
the reason
the employer imposed the sanction of dismissal, as he or she must
take into account the basis of the employee’s
challenge to the
dismissal. There are other factors that will require consideration.
For example, the harm caused by the employee’s
conduct, whether
additional training and instruction may result in the employee not
repeating the misconduct, the effect of dismissal
on the employee and
his or her long-service record…’
[3]
[16] The
Commissioner had regard to the appellant’s Disciplinary and
Grievance Procedure. Schedule 1 thereof classified conducting
a
business for own or others account using the company’s time or
resources as a very serious offence. It however states that
in the
case of schedule 1 misconduct for a first offender, the minimum
sanction may be a final written warning with the maximum
sanction
being summary dismissal. The Commissioner found, correctly, that
dismissal is the most severe form of punishment and should
be used as
a last resort. Dismissal is indeed a very severe sanction which in
most cases has horrendous consequences. It should
not be resorted to
as a first option but as a last resort especially when other forms of
sanction have been identified as appropriate
by the employer. The
third respondent was a first offender. The Commissioner found,
correctly so, that there was no evidence that
the third respondent
conducted Godiva’s business using the time and resources of the
respondent. The conversations that Van
Huysteen overheard do not
prove that the third respondent was busy conducting Godiva’s
business. The account might have been
a personal account and the
quotation could also have been for personal work that he wanted done.
[17] The
Commissioner found that the submission of the appellant that there
was a conflict of interest is wrong. He cannot be faulted.
It was
undisputed that Godiva was dormant. The phone calls to Tracy Naidoo
were not proved to have been to further the interests
of Godiva.
Godiva was described as a financial service provider whereas the
appellant is a logistics company. The Commissioner
properly found
that there was no prejudice to the appellant.
[18]
There was also no dishonesty. The Commissioner found that the third
respondent failed to get permission from a person in a
higher
position to that of Tracy Naidoo. He was therefore only found guilty
of a failure to obtain permission from a person higher
than Tracy
Naidoo because of the conflicted position that Ms Naidoo was in. It
must be remembered that he could conduct extraneous
business with
permission.
[19] The
Commissioner also considered that the appellant alleged that it could
no longer trust the third respondent, and that the
third respondent
indicated that the trust relationship was broken down. In his heads
of argument at the NBCFRI, the third respondent,
who conducted his
own defence, admitted that the trust relationship had broken down
from the employer’s perspective. Much
was made of this during
argument before us. This admission must be contextualised. In the
same heads of argument, he requested
to be reinstated. He stated that
Heidi Meintjies and Carsten Schubert who alleged that the trust
relationship had broken down were
replaced in the business unit.
There was therefore, according to him, no reason to dismiss him based
on the evidence of Ms Meintjies.
[20] The
breakdown of the trust relationship is not solely dependent on what
the employer says. Irrespective of the employers’
testimony in
this regard, the Commissioner is still enjoined to enquire whether
that is indeed so. That enquiry is part of the
enquiry to determine
whether dismissal was a fair sanction. The appellant was of the view
that the trust relationship had broken
down because the third
respondent was dishonest. That would generally be a fair proposition.
In this case however there was no
evidence that the third respondent
was dishonest at all. A finding that the trust relationship has
broken down because he sought
permission from his senior who was also
a member of a dormant close corporation would be unreasonable.
Moreover, the third respondent
did not conceal the fact that he
registered a close corporation in order to conduct a business. His
evidence was that he spoke
openly with his co-employees about the
business that he intended to venture into.
[21] In
my view, the Commissioner considered all the relevant factors before
coming to the conclusion that dismissal was not a fair
sanction. His
conclusion is a decision which a reasonable decision-maker could
reach.
[22]
There was no appearance on behalf of the third respondent.
[23] I
therefore make the following order.
a)
The appeal is dismissed.
b)
No order as to costs is made.
_________________
C.
J. MUSI, JA
Tlaletsi
DJP and Murphy AJA agreed with C J Musi JA.
APPEARANCES
FOR THE
APPELLANT:
Adv. D. O. Pretorius
Instructed by
Fluxmans Incorporated
FOR THE
RESPONDENT:
No appearance
[1]
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[2007] 12 BLLR 1097 (CC);; 2008 (2) SA 24 (CC).
[2]
At para 79.
[3]
At para 79.