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[2007] ZALCJHB 8
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Siddiz v Ralefatane NO (JR1556/04) [2007] ZALCJHB 8 (7 February 2007)
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1556/04
DATE
:
2006-12-
In
the matter between:
M
SIDDIZ
Applicant
and
W
M RALEFATANE
.N.O Respondent
J
U D G M E N T
PILLAY
D, J
:
This is an application to review and set aside the award of the first
respondent, the Arbitrator. The court must at the outset
dispose of a preliminary matter and that is the representation of the
employee, the second respondent, by NEWU.
The
court having read the papers was not disposed to granting the review
application and would have dismissed it without having
heard NEWU. A
number of technical objections were raised between the parties about
the authority of NEWU to represent the employee.
Those
objections were withdrawn and the applicant was willing to proceed
with the matter with Mr Maluleke representing the employee.
That being the background to the case, the court wishes to place on
record that this is no precedent for hearing Mr Maluleke in
future
matters. The court is aware that the status of NEWU is
questionable and each case in which it appears will have to
be
decided as and when it occurs depending on its status at that time.
A
further consideration is that the court, having formed a
prima
facie
view on the basis of the
pleadings and the heads of argument filed by the applicant, deduced
that the employee would suffer the
greatest prejudice if the matter
was not disposed of expeditiously or if it had to be delayed because
he was not properly represented
in these proceedings. That then
is the background against which the court allowed Mr Maluleke to
address it in these proceedings.
On
the merits of the matter, the challenge against the Arbitrator’s
decision is both on his findings of procedural and substantive
fairness. The facts were that the employee was engaged as a
sales representative for a short period. One of the conditions
of his employment was that he would have his own transport.
When he took up his employment his car had been stolen
and he
commenced working as a sales representative using the employer’s
vehicle. In that regard there appeared to have been
some
accommodation by the employer of the employee’s
circumstances.
One
of the charges against the employee was that he gave a customer
credit and a discount for goods sold to the customer. The background
to that transaction was that the employee delivered a substantial
amount of goods to a customer without collecting any payment
for the
delivery. The employer was angry about that. The employee
returned to the customer and urged him to sell the
goods. As an
incentive for that the employee took it upon himself to offer the
customer a R2,00 discount on each box sold.
In total it came to
about R40.00. The granting of the discount also angered
the employer as it was without his authority.
In
all the circumstances there is no suggestion that the employee acted
dishonestly. He tendered the R40,00 out of his own
pocket to
the employer. The employer had not sustained any loss as a
result of the granting of the discount. The incident
occurred
at a formative stage of the employment relationship. It was in
the interest of both the employer and the employee
that the goods
were sold as the employee earned a commission and the employer needed
to get rid of his stock. On those facts
the Arbitrator came to
the conclusion on the substantive fairness of the dismissal that it
was unreasonable to dismiss the applicant.
Assuming
that the Arbitrator had not interpreted or made the correct
inferences from the facts presented at the arbitration, his
conclusion is not so far fetched against the background sketched.
It was also not entirely clear what the rule was, whether
the
applicant was aware of it and whether he was mindful of the
consequences of not abiding by the rules in relation to the granting
of credit and discount.
There
is also no evidence on the record that the employee was put on terms
to get a replacement vehicle or else he would no longer
be employed
before steps were taken against him on that account. In any
event, it is debatable as to whether his failure
to provide his own
transport amounted to a ground for dismissal. On the
substantive grounds, therefore, the court is satisfied
that the
Arbitrator’s findings are not assailable.
The
principle concern that the court has with the procedure is that the
Arbitrator found that the employer initiated the disciplinary
enquiry
because he feared that the employee would take him to court or to the
Department of Labour and that that motivation vitiated
the procedural
fairness of the disciplinary enquiry.
Ordinarily,
the employer’s motive may not impact on the steps taken in the
disciplinary proceedings. However, in this
case the court takes
note that the employer appointed the Chairperson of the enquiry.
There is no evidence that the Chairperson
of the enquiry was
necessarily independent of the employer or not influenced him.
Although there is no evidence as to what
might have transpired
between the employer and the Chairperson of the enquiry, the fact
that the penalty of dismissal was imposed
for an offence that did not
warrant a dismissal suggests that it was not so far fetched that the
Chairperson could have been influenced
by the employer’s
motivation in instituting the disciplinary enquiry, namely his
concern that he might be reported to the
Department of Labour.
Furthermore,
the procedure adopted during the disciplinary enquiry also shows that
the Chairperson of the enquiry did not manage
the process as
efficiently as an independent Chairperson would have. For
instance, the employee was invited to state his
case first before the
employer could present the evidence to the Chairperson. The
switching of the tape recording on and
off also created the
impression that the Chairperson did not want certain aspects of the
enquiry to be recorded.
The
transcript of the proceedings however, do not bear out the
Arbitrator’s finding that the employee was not given an
opportunity
to cross-examine witnesses. Based on the main finding of
the Arbitrator that the motivation of the employer influenced the
finding
of procedural fairness, the court is satisfied that overall
the finding of procedural unfairness by the Arbitrator can also not
be set aside. In the circumstances, the application for review
must be dismissed.
Finally,
it remains for the court to point out that the award directs the
employer to pay to the applicant, not his representative,
the amount
of R36 000,00 as 12 month’s compensation. The employer should
abide strictly by that without further delay.
The court
declines to make any order as to costs given the fact that the
employee is represented by a trade union. The application
is
dismissed with no order as to costs.
---oo0oo---
______________
Pillay
D, J
7
February 2007