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[2019] ZALAC 46
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Autozone v Dispute Resolution Centre of Motor Industry and Others (JA52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (13 February 2019)
IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA, JOHANNESBURG
Reportable
Case
no: JA52/2015
In
the matter between:
AUTOZONE
Appellant
and
DISPUTE
RESOLUTION CENTRE OF
MOTOR
INDUSTRY
First
Respondent
LUVUYO
QINA
N.O. Second
Respondent
ALLEN
SIKHAKHANE
Third
Respondent
Heard:
05 May 2016
Delivered:
13 February 2019
Summary:
Review of arbitration award – breakdown in the trust
relationship – employee dismissed for dishonesty –
commissioner upholding dismissal but Labour Court setting aside award
and reinstated employee – court finding that the evidence
as a
whole establishes on the probabilities that employee deliberately and
falsely misrepresented the amount to be paid to the
casual workers -
Held
that where the offence in question reveals a stratagem of dishonesty
or deceit, it can be accepted that the employer probably
will lose
trust in the employee, who by reason of the misconduct alone will
have demonstrated a degree of untrustworthiness rendering
him
unreliable and the continuation of the relationship intolerable or
unfeasible.
Dishonest
conduct, deceitfully and consciously engaged in against the interests
of the employer, inevitably poses an operational
difficulty. The
employer thereafter will be hard pressed to place trust in such an
employee. The finding to by the arbitrator is
one that a reasonable
decision-maker could reach. Labour Court to set aside and review
application dismissed.
Coram:
Tlaletsi DJP and Murphy AJA
JUDGMENT
MURPHY
AJA
[1]
This is an appeal against the judgment of the Labour Court (Molahlehi
J) handed down
on 16 February 2014 in which it reviewed and set aside
the award of the second respondent (“the arbitrator”),
reinstated
the third respondent (“Sikhakhane”) and
granted ancillary relief. The appeal was heard in 2016 and judgment
was reserved;
with Ndhlovu JA appointed as scribe to write the
unanimous judgment of the court. The unfortunate passing of Ndhlovu
JA regrettably
has delayed completion of the judgment.
[2]
The appellant (“Autozone”) is an auto spares company.
Sikhakhane commenced
employment with Autozone on 25 October 2004 and
at the time of his dismissal was employed as a driver at the Midway
branch in Johannesburg.
On 30 August 2010, Sikhakhane was dismissed
on grounds of dishonesty (theft, misappropriation of company funds or
attempted theft
or misappropriation).
[1]
[3]
The facts are straightforward and can be summarised as follows. On 5
August 2010,
the Regional Operations Manager, Mr. Alvin Govender,
instructed Sikhakhane to employ casual labour to clean up waste and
rubble
at the back of the store. Sikhakhane then recruited three
casual labourers (“casuals”). In the presence of
Sikhakhane,
Govender informed the three casuals that they would each
be paid R50 for the task. When the task was completed, Govender, in
the
presence of the branch manager, Mr. Paul Thakalani, instructed
Sikhakhane to obtain R150 from the cashier. Sikhakhane approached
the
cashier (Ms Thandi Mashego) and requested R180. After Govender had
left the branch, the three casuals approached Thakalani
and
complained that the payment to them of R50 was too little for the
work done. Thakalani was informed by Mashego that she had
in fact
handed R180 to Sikhakhane. Thakalani confronted Sikhakhane and asked
why he had requested R180 and only paid over R150.
Sikhakhane
responded by taking the R30 out of his pocket, but did not provide an
explanation at that point. Later he explained
that he had acted on
his own initiative to pay the casuals more and had withheld the R30
balance until the work was complete. This
version of events was
confirmed at the arbitration proceedings by Govender, Thakalani and
Mashego.
[4]
Sikhakhane testified at the arbitration that towards the end of the
day when the casuals
were about to complete the work, he asked them
for their identity documents. Without any reference to management, he
decided on
the amount to be paid. He then went and requisitioned
R180. When he came out to pay the casuals, he noticed that the work
was not
completed (two “things” had not been emptied). He
then gave each casual R50 and held back the balance until the last
task was completed. The casuals were unhappy at receiving only R60.
According to Sikhakhane they knew they were going to be paid
R60, and
saw him hold back the R30. He told them to speak to Thakalani. Later
he gave each casual the additional R10. Under cross-examination,
he
could not explain why he referred the casuals to Thakalani if he had
the authority to decide the amount of payment. Nor was
he able to
account for why the casuals complained about only being paid R50.
[2]
[5]
In a brief award, the arbitrator concluded that Autozone had
discharged its
onus
of proving on a balance of probabilities
that the dismissal was for a fair reason and on that basis held that
the dismissal was
substantively fair.
[6]
In his application for review, Sikhakhane denied that he had been
dishonest and reiterated
his version. Autozone defended the
reasonableness of the award. The Labour Court (without explicitly
finding as much) accepted
that the misconduct had been proven. It
made no attempt to analyse the evidence to determine the nature of
the transgression. Rather,
it merely assumed that it had occurred and
concluded:
‘
In
the present case the applicant was at the time of the incident
employed as a driver. He was, as stated earlier, required to
supervise the casual workers and ensure that they are, on completion
of their task, paid for their services. There is no evidence
that
shows how the conduct for which the employee was found guilty of
impacted on the relationship of trust relationship (sic)
between the
parties. In the absence of such evidence the proper approach which
the arbitrator ought to have adopted was that the
dismissal of the
employee was in the circumstances unfair because there was no proof
that the trust relationship between the parties
had broken down.’
[7]
The Labour Court accordingly set aside the award, reinstated
Sikhakhane to the date
of his dismissal, and ordered that Sikhakhane
should be issued with a written warning for the misconduct (thus
indicating that
it accepted that the offence had been proven).
[8]
In making its finding, the Labour Court relied on relevant authority
stating that
the test is whether the trust relationship has been
breached to the extent that the employment relationship has become
intolerable,
which is a question of fact to be established by
appropriate evidence.
[3]
[9]
In its notice of appeal, Autozone confined its grounds of appeal to
the issue of whether
the trust relationship had in fact broken down.
It alleged,
inter alia
, that the Labour Court erred in failing
to assess the facts and circumstances of the particular case and in
finding that on ac.count
of the fact that no specific evidence was
led relating to the trust relationship it followed that the dismissal
was substantively
unfair.
[10]
Although Sikhakhane did not file a cross-appeal regarding the
implicit finding of the Labour
Court that the misconduct had
occurred, he persisted before us with his denial of dishonesty. His
submissions in that regard are
unconvincing. The idea that he was
holding back the R30 until the job was completed is inherently
improbable. If the job was indeed
incomplete, it was more likely that
he would have held back the entire amount until the job was finished.
But, in any event, Govender
and Thakalani both testified that
Sikhakhane had been authorised to requisition R150. That evidence was
not seriously challenged.
As a driver he had no authority to
determine the amount of payment. Additionally, the complaint made by
the casuals to Thakalani
was that a payment of R50 was insufficient.
They were aggrieved at being paid R50, not R60, for the job. The
evidence as a whole
establishes on the probabilities that Sikhakhane
deliberately and falsely represented to Mashego that the amount to be
paid to
the casuals was R180 instead of R150 and that he intended to
pocket the difference for his own benefit. This was corroborated by
Thakalani’s evidence that Sikhakhane could not come up with a
plausible explanation at the moment he was confronted.
[11]
Consequently, the only issue on appeal is whether Sikhakhane’s
conduct breached the trust
relationship so as to render the
continuation of the employment relationship intolerable.
[12]
Undeniably, the evidence on the issue is somewhat thin. An employer
relying on irreparable damage
to the employment relationship to
justify a dismissal would be prudent normally to lead evidence in
that regard, unless the conclusion
that the relationship has broken
down is apparent from the nature of the offence and/or the
circumstances of the dismissal.
[4]
Where the offence in question reveals a stratagem of dishonesty or
deceit, it can be accepted that the employer probably will lose
trust
in the employee, who by reason of the misconduct alone will have
demonstrated a degree of untrustworthiness rendering him
unreliable
and the continuation of the relationship intolerable or unfeasible.
[13]
Dishonest conduct, deceitfully and consciously engaged in against the
interests of the employer,
inevitably poses an operational
difficulty. The employer thereafter will be hard pressed to place
trust in such an employee. It
will be difficult going forward for any
task involving a measure of discretion or reliance to be entrusted to
the deceitful employee.
The operational requirements of the employer
alone, therefore, may very well justify the dismissal. An employer is
entitled to
have a driver it can rely on to act in good faith to
advance and protect its interests. Sikhakhane’s conduct shows
that he
is not such a driver. It was not necessary for Autozone in
such circumstances to have produced evidence to show that the
employment
relationship had been irreparably destroyed.
[5]
The nature of the offence and the manner of its commission support a
conclusion that the continuation of the relationship had become
intolerable. The employer cannot reasonably be expected to retain
Sikhakhane in its employ. Hence, the finding to that effect by
the
arbitrator is one that a reasonable decision-maker could reach. There
was accordingly no basis for the Labour Court to set
aside the award.
[14]
In the premises, the appeal is well founded. This is not a case where
costs should be awarded.
[15]
The following orders are made:
15.1
The appeal is upheld.
15.2
The order of the Labour Court is set aside and substituted with an
order dismissing the application for review.
15.3
The dismissal of the third respondent is declared to have been
substantively fair.
_____________________
JR
Murphy
Acting
Judge of Appeal
I
agree
__________________
Tlaletsi
Deputy
Judge President
APPEARANCES:
FOR
THE APPELLANT:
Adv W J Hutchinson
Instructed
by Fluxmans Incorporated
FOR
THE THIRD RESPONDENT:
Adv SS Green
Instructed
by Mangena & Associates
[1]
The record does not disclose the precise offence with which
Sikhakhane was charged. However, the evidence discloses that he was
dismissed for some form of dishonesty in relation to the
misappropriation of petty cash.
[2]
Thakalani after confronting Sikhakhane paid the casuals an
additional R50 each.
[3]
Edcon
Limited v Pillemer N.O.
[2010] 1 BLLR 1
(SCA)
[4]
Grogan;
Dismissal
164-165.
[5]
See
Department
of Home Affairs v Ndlovu
[2014] 9 BLLR 851
(LAC);
Quest
Flexible Staffing Solutions (Pty) Ltd v Legobate
[2015]
2 BLLR 105
(LAC); and Grogan:
Doctored
CVs: Getting jobs by false pretences
Employment Law vol 30 part 5 October 2014.