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[2007] ZALCD 12
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B v Eagle Ink Systems KZ Natal (Pty) Ltd (D781/05) [2007] ZALCD 12 (31 August 2007)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
IN THE LABOUR COURT OF
SOUTH AFRICA
HELD
AT DURBAN
REPORTABLE
CASE
NO: D781/05
Heard: 1-3, 10 August
2007
Delivered: 17 August
2007
Edited:
31 August 2007
In
the matter between:
B.
T.
B.
APPLICANT
And
EAGLE
INK SYSTEMS KZ NATAL (PTY)
LIMITED
RESPONDENT
JUDGMENT
PILLAY D, J
[1]
Was the dismissal of the employee for misconduct, his HIV status, or
both? That is the question for this court to answer
after a
three day trial.
[2]
The employee is Brian Thomas Bootes, the applicant. The
respondent, Eagle Ink Systems KZN (Pty) Ltd (“Eagle”),
employed him as a technical sales representative from 1 October
1999 to 16 May 2005.
[3]
Eagle is a subsidiary of Mimetes Holdings (Pty) Ltd. Samuel
Walter Hamman (“Hamman”) is the majority shareholder
of
Mimetes Holdings. He handled all the strategic and personnel
issues in Eagle.
[4]
Central to determining the true reason(s) for the employee’s
dismissal is the credibility of the witnesses for each party.
In this context the circumstances of the termination of the
employee’s services from his previous employment become
relevant.
Determining the credibility of the parties on that
issue is a curtain-raiser to the main issues.
[5]
The employee had previously been employed by Plascon.
Continental, another subsidiary of Mimetes, acquired the business
and
staff of Plascon with effect from 1 August 2004. Hamman was the
managing director of Continental. He became operationally
involved in Eagle from 1 March 2005.
[6]
The employee’s services with Continental terminated. The
circumstances of the termination are disputed. The
employee
alleges that he resigned because he found a job with Eagle.
Hamman persists that the employee resigned after being
confronted
with allegations of misconduct relating to his selling chemicals to
customers in competition with Continental.
[7]
Hamman testified that in August 1999 the employee was driving him
when he accidentally came upon a black note-book in which
the
employee had recorded his sales of chemicals. Continental also
sold those chemicals. Infuriated by his discovery,
Hamman
returned to his office in Johannesburg. After discussing the
matter with Jimmy Brink, the sales director, he summoned
the employee
to a meeting at the Spur in Durban the following day.
[8] He
put to the employee that he was competing with Continental. The
discussion became heated. It ended on the note
that the
employee should meet Hamman the next day with his lawyer to determine
the way forward.
[9]
The next day the employee and his attorney met Hamman. After
Hamman explained the circumstances, the attorney and the
employee
caucused. The employee agreed to resign. He faxed his
letter of resignation, Exhibit D, to Hamman on
3 September
1999. About the same time or soon thereafter Hamman learnt that
the employee had secured a job with Eagle, which
at that stage was a
competitor. Hamman demanded repayment of the additional leave
and sick leave and hospital expenses paid
on behalf of the employee.
This was an attempt to enforce the restraint of trade agreement on
the employee. These benefits
had been granted out of sympathy
for the employee. They totalled R9 600. Continental
abandoned this claim after its
initial demand.
[10]
That was Hamman’s version about how the employee’s
services with Continental ended.
[11]
The employee’s version was that he had informed Hamman that he
used to sell chemicals before he joined Plascon.
[1]
He denied that Hamman confronted him with the allegations of
misconduct and that he resigned on account of those allegations.
He resigned because he got a better job offer from Eagle.
[2]
The lawyer present at the meeting at which he resigned represented
Continental. So he testified.
[12]
The circumstance which resulted in the termination of the employee’s
services with Continental was a peripheral issue.
It was not
even pleaded. It became relevant to credibility when the
employee was cross-examined without objection from Ms
Nel
who represented him. She objected for the first time to
questions on this issue when Ms
Naidoo
,
who represented Eagle, led Hamman’s evidence-in-chief.
This evidence had already been adduced without objection. It
had
become relevant to the credibility of both parties. Consequently, the
objection was not sustained.
[13]
On the third day of the trial Ms
Nel
introduced Exhibit E, which is a bundle of correspondence exchanged
with the employee when his services with Continental terminated.
Hamman was recalled to be cross-examined on Exhibit E. The
employee did not offer to testify at all about Exhibit E.
His
version was put to Hamman and Brink.
[13]
One of the letters in Exhibit E is a notice dated 8 September
1999 from the employee to Hamman withdrawing and reinstating
his
resignation in terms of his contract of employment. The stated
purpose of the letter was to enforce the three months’
notice
required on termination of the contract. In his initial
resignation, Exhibit D, the employee tendered one month’s
notice.
[3]
As the
employee had failed to testify, his explanation for this change is
not before the Court. The only version
that the Court can rely
on is that of Hamman, which was subjected to cross-examination and
reinforced with corroboration from Brink.
[15]
When negotiating his resignation, Hamman acceded to the employee’s
demand that, firstly, there should be no deductions
against his
salary towards the restraint of trade claim and, secondly, that he
should be compensated for the use of Continental’s
car for one
month.
[4]
These concessions show
that Hamman was keen to release the employee and was prepared to pay
to see him go.
[16]
The probabilities are that Hamman and Brink did confront the employee
about allegations of misconduct. That triggered
his resignation
on one month’s notice. Within days he found a job with
Eagle. Even though he was due to start
at Eagle on 1 October
1999, Hamman wanted his resignation with immediate effect, so much so
that he might have been willing to
pay the full contractual notice of
three months. That would explain why the employee changed his
demand to three months’
notice pay.
[17]
The employee’s failure to take the stand to offer his
explanation counts heavily against him on this peripheral
issue. His
version is not credible.
[18]
Hamman also presented as a witness who had a propensity to mislead
the Court. In response to the employee’s resignation
he
wrote: “It was with great disappointment that we (CPI) have
accepted your resignation”. Under cross-examination
he
explained that his legal adviser had told him to word his response so
that the employee would not have a basis to institute
a claim for
constructive dismissal.
[5]
As Hamman wanted the employee to leave his “disappointment”
was false. Under re-examination he gave
another explanation.
He said that he was disappointed because the employee was doing a
“positive” job and that
he was being lost to the
opposition.
[6]
[19]
The reliability of the witnesses has to be tested for credibility on
each issue. A witness who lied about one issue may
not be lying
about others. The maxims “once untruthful, always untruthful”
and “false in one thing, false in
all” do not apply in
our law of evidence.
[7]
However,
this curtain-raiser has forewarned the court that both witnesses
could be dishonest about the main issues.
Did
the employee misconduct himself?
[20] Eagle charged the
employee on 5 May 2005 as follows:
“
2.1
Gross dishonesty in that you misused the company petrol card in
November 2004 by utilising it for a motor
vehicle other than yours.
2.2
Buying and selling in the first quarter of 2005 used printing
blankets during company hours to clients of the company
without prior
permission or agreement with management.
2.3
Due to the above, causing a serious breach of the trust
relationship with your employer and leading to the irreparable
break-down of the employment relationship.”
[21]
The hearing proceeded on 10 May 2005. On 16 May 2005 Eagle
dismissed the employee on the second and third charges.
On the
second charge Eagle proceeded almost exclusively on the version
tendered by the employee.
[22]
The employee testified that he noticed that Eagle’s customers
were not using some of their printing machines. He
learnt that
they were waiting for used printing blankets from Taiwan. He
offered to supply them with the blankets so that
by operating their
machines they would buy more ink from Eagle. So it happened
that for six years the employee supplied Eagle’s
customers with
used printing blankets as a “value added service”.
Eagle’s customer, Divpac, was eventually
his exclusive source
for these blankets. When they became a product in demand and
difficult to get, he started buying and
selling them to Eagle’s
customers for the same price at which he had bought them. Dan
Naidoo, the coating manager at
Divpac, charged him R80 for each
blanket. The blankets from Taiwan cost the customers R120
each. Naidoo offered the
employee 50% of the price of the
blankets as “an act of appreciation”. Altogether
the employee received R600
from the sale of the blankets.
[23] Eagle contended that
the transactions were not legitimate because:
23.1
Nampak, as the holding company of Divpac, would not have allowed its
production staff to give waste products
away. It had contracts
for waste removal.
[8]
23.2
Naidoo’s job would have been on the line if Divpac found out
about the deal.
23.3
There was no audit paper trail. If Eagle wanted blankets from
Nampak there would be an official purchase
order and invoice
reflecting zero or a nominal value and a gate release.
[9]
23.4
Even if Eagle employees were involved in the transaction for used
blankets without the audit paper trail,
it was wrong to receive money
for waste that was acquired free of charge.
[10]
23.5
The employee received money in his private capacity. He was
moonlighting.
[11]
Hamman
described “moonlighting” as “buying and selling
blankets without permission and getting money for
that”.
[12]
23.6
The employee was dishonest because he received money about which no
one else knew. He made a secret
profit.
[13]
23.7 He
acted against Eagle’s interests. If Nampak had discovered
the deal, it could have jeopardised
the R180 million contract
that Eagle was in the process of negotiating with Nampak at the time.
23.8
All in all, the employee broke the parties’ trust relationship.
[24] In his defence, the
employee contended that:
24.1
Eagle’s management knew that he was selling the blankets and
had on occasion participated by collecting,
delivering and invoicing
them and collecting money for them. He produced an invoice
which he alleged Trevor Gandy, the general
manager at the time, had
issued, as proof of Gandy’s knowledge of the deal. When
he was hospitalised in January 2005
Gandy and Nick Rose, the
administration manager, visited him and asked him to source blankets
for a customer. For these reasons
he contended that Eagle’s
management was aware of the deal.
24.2 He
did not receive any remuneration from the sale of the blankets.
24.3
Eagle was not prejudiced. On the contrary, it benefited as he
was able to sell more ink as the customer’s
printing presses
became operational after he had supplied the blankets.
24.4
None of the other employees was disciplined for their role in the
transaction.
[25] The Court finds
that:
25.1
The employee derived a personal benefit from buying blankets from
Naidoo and selling them to Eagle’s customers.
25.2
Divpac was not aware of the transaction and would not have sanctioned
it if it were. Naidoo would not have feared losing
his job if
Divpak had authorised the deal, or if he believed that the deal was
such that Divpak would have authorised it if it
knew.
25.3
Eagle was not aware of the deal. Gandy and other employees
knew that the employee had sourced blankets for
Eagle’s
customers. They may even have known that the employee sold the
blankets to them. What Gandy did not know
until February 2005
was that the employee derived a personal benefit from the sale.
He learnt of this when Botha of Southpoint,
a customer of Eagle, said
that he had money for the employee for the blankets.
[14]
25.5
The deal was underhand because neither Nampak nor Eagle was aware of
it at all, or that Naidoo and the employee were deriving
a benefit.
Neither Naidoo nor the employee disclosed its terms to their
respective employers.
25.6
The employee knew that the deal was underhand because he knew that
Divpac did not allow Naidoo to sell the blankets and that
Naidoo’s
job was at risk if Divpac found out.
25.7
The employee did not disclose the terms of the deal to Eagle, firstly
because he knew that it was underhand; secondly, Eagle
might have
stopped him from selling the blankets that should have been given
away free of charge; thirdly, he would not have been
allowed to
derive a personal benefit; and, fourthly, Eagle would not have
approved of a transaction with Naidoo without Divpac’s
or
Nampak’s approval.
25.8
Eagle only became aware of the full terms of the deal after it
instituted disciplinary proceedings. It is still not aware
of
the scale of the used printing blanket deal.
25.9
The deal was not a casual arrangement between Naidoo and the
employee. It was a firm deal in terms of which the employee was
entitled to 50% of the proceeds of the sale of the blankets.
The employee considered himself to be entitled to this amount,
hence
he deposited a cash cheque from one of the customers into his own
account. If his version namely, that payment was
an act of
appreciation, is to be believed, he would not have deposited the
cheque into his own account but handed it to Naidoo.
25.10 The employee was
evasive and contradicted himself about when he started selling the
blankets. Initially he said that
he started selling them in
2003. He changed that to 2004, then to the end of 2003 and,
eventually, to June 2004. As
it happened, Eagle had produced an
invoice for 7 June 2004 which established that at least by that date
the employee was selling
the blankets. The employee claimed not
to have the invoice book for the early period. He did not call
Naidoo to corroborate
his version about the terms of the deal.
As the blankets were sold since 2003, the probabilities are that the
employee received
more than R600 from the sale of blankets.
25.11 It is not the
employee’s case that he disclosed that he was receiving a
benefit from the sale of the blankets, nor is
it his case that he
obtained Eagle’s permission prior to making the deal. The
high watermark of his case is that Eagle
became aware in 2004 that he
was selling blankets to his customers. As the employee did not
make disclosure of the full terms
of the deal, Eagle could not have
authorised it.
25.12 The employee
therefore bought and sold printing blankets to Eagle’s
customers in the course of his work for Eagle without
the latter’s
prior agreement.
25.13
Eagle therefore proved all the allegations that constituted the
second charge of misconduct.
Is
the charge an offence?
[26] Eagle pleaded that
it was not relying on a breach of clause 10 of the contract of
employment. Clause 10 provided as follows:
“
10.1
The employee shall not enter into other employment without the
written consent of the group managing director.”
Eagle’s
case was not that the employee had other employment but that he was
moonlighting as Hamman defined the term.
[27]
Ms Naidoo submitted that good faith was implicit in every contract of
employment. Good faith requires employees to work
honestly and
faithfully, to work in and not against the employer’s
interest, to avoid conflicts between their
own interests and those of
their employer and not to derive a secret profit for themselves.
[28]
The Court accepts as a general proposition that a breach of good
faith could impair the relationship of trust between an employee
and
the employer. In this case the employee acted against Eagle’s
interests by selling blankets to its customers.
Eagle’s
interests would have been better served if the blankets had been
given free of charge to its customers. By
entering into the
deal with Naidoo, the employee created an avenue for Naidoo to
dispose of Divpac’s waste at a profit.
The employee could
have resisted the deal and avoided becoming a ready outlet for an
underhand deal. That would have served Eagle’s
interest better,
provided the supply of blankets continued. As sourcing the
blankets was becoming increasingly difficult,
the employee claimed
that the deal facilitated his access to the blankets. He would
have served Eagle’s interests better
if he had disclosed to
Eagle the opportunity that the deal presented for its business.
Eagle’s relationship with Nampak
could only have improved if it
tendered for its blankets at a mutual profit. Thus if the
employee had elected not to deal
with Naidoo but to formalise the
deal as between Divpac/Nampak and Eagle, he would have better served
Eagle’s interests.
There is no evidence that he
considered either of these two options. The option he exercised
is one that favoured him personally.
By exercising this option
he acted in conflict with the interests of Eagle and, consequently,
in bad faith.
[29]
The allegations against the employee constitute an offence that
resulted in a breach of trust. He is therefore guilty
of the
misconduct for which he was charged in the second and thirds
paragraphs of the disciplinary notice.
[30]
There was no need to discipline any of the other employees involved
with the blankets as they merely acted as “runners”
for
the employee. They did not receive any personal benefit from
the deal.
The
employee’s HIV-positive status
[31]
The employee was hospitalised on 10 January 2005. On 21 January
2005 he was diagnosed with full-blown AIDS. Gandy
and Rose
visited him in hospital. He had informed Gandy of his status.
Gandy was concerned about the customers that the employee
served.
The employee testified that if, as Gandy surmised, his status was
likely to impair the deal being negotiated with
Nampak, Gandy should
disclose his status to Nampak. On Gandy’s version, even though
the employee requested him to disclose
his status to all the
customers he served, Gandy informed only a few customers who needed
to know.
[32]
He returned to work on 14 February 2005. He sought and was granted
permission to address the staff about his status.
[33]
The employee pleaded the facts on which he relied to support his
submission that Eagle breached his confidence and privacy
by
disclosing his status to all its customers without his authority.
However, he did not plead the legal issues arising from the
facts nor
did he claim any relief arising specifically from the alleged
unauthorised disclosure. One can get past this technical
hurdle as
Ms
Naidoo
did not raise any objection on
this ground.
[34]
The employee alleged that Gandy broke his confidence because a
customer had informed him that Gandy had told the customer about
his
status. The employee did not lead the evidence of this customer. The
court disregards the evidence as hearsay.
[35]
As to whether Eagle’s management made any other unauthorised
disclosure, the court takes into account that the employee
himself
disclosed his status to the entire staff. He created a situation in
which his confidentiality could be breached easily
by any staff
member. Furthermore, he was not concerned about many people knowing
about his status. He did not testify that he had
asked the staff he
addressed to keep his disclosure confidential. Even if he had, he
cannot hold Eagle responsible if any of the
staff other than
management broke his confidence. In the circumstances the employee
has failed to prove that Eagle disclosed his
status without his
authority.
[36]
On the afternoon of his first day back at work after his
hospitalisation, Gandy offered the employee an internal
position
at the same package he was receiving in his capacity as a
technical sales representative. Gandy was unsure of the way
forward
as it was the first case he had to deal with of a white
person with AIDS. He informed the employee that he and the
directors
of Eagle felt that Nampak, amongst other customers of
Eagle, would be uncomfortable working with a sales representative who
had
AIDS.
[15]
Hence
Gandy placed him in a desk-bound position. The employee was not
happy about being desk-bound.
[37] On 19 February 2005
he was hospitalised again. Upon his return to work on 28
February he received a letter dated 24 February
2005. It read:
“
Dear
Brian,
In
light of the fact that your job requires a lot of driving and as the
company insures your car, the company and insurance company
require
written confirmation from your doctor stating that the medication you
are currently taking will not impair your ability
to drive. I
have telephoned your doctor twice requesting this information but he
does not return my call. The receptionist
advised me he will
only give this information to us with your consent. Based on
your information given to us that some of
the medication you are
taking makes you drowsy, we did offer you an internal sales
co-ordination/liaison post with no change to
your package. This
offer was not acceptable to you as you indicated that you did not
want to be desk-bound and needed to
be out of the office.
I
believe the company has been very generous to you in the situation
but need to advise that we as a company cannot and will not
be held
responsible for any situation that you find yourself in as we are in
no way forcing you or requiring you to undertake strenuous
driving in
your current state of health. Should you not be able to obtain
a clearance certificate from your doctor stating
that you are capable
of performing your normal duties as defined in your job description,
all risks and responsibilities lie with
yourself. I believe
that the company has and will continue to assist you where possible
but requires a commitment from yourself.”
[38]
Gandy had annoyed the employee’s doctor by seeking information
without the employee’s consent. In his letter
dated 1
March 2005 the doctor firmly declined to communicate with Gandy
unless the employee authorised him to do so. On the
employee’s
version, Gandy reacted abusively to the doctor when he, Gandy,
discussed his letter with the employee. Gandy
denied this when
he testified.
[39]
After consulting his doctor about his fitness for work, the employee
was satisfied that his condition and the medication he
took did not
create a risk for Eagle. He tendered the inserts from the medication
he was taking to Rose on 2 March 2005, but Rose
no longer wanted to
see them.
[40] The employee replied
to Gandy’s letter as follows:
“
I
refer to your letter dated 24 February 2005 (hand delivered on Monday
28 February 2005) and acknowledge the company’s request
for a
risk, if any, assessment of my driving capability in terms of my
prescribed medication. Your request has been taken
under
advisement and medical information relevant to the above has been
sought from my doctor. Note that the offer of an
alternative
position the company referred to in your letter has not been formally
considered by myself as the offer and the details
pertaining thereto
have not been made available to me in writing by the company. I
confirm that I am and will continue to
be a committed employee to the
company.”
[41]
Whether the employee was well enough to do his normal job was
disputed. Eagle’s witnesses alleged that he looked
and
said that he was weak. He did not work a full day. They
had the impression that he would not live long. The
employee
insisted that he was well enough to work normally. He denied
going home early on account of his health.
[42]
In the opinion of the Court the employee was not fit immediately
after he returned to work on 28 February 2005 to do his normal
work.
On this issue the corroborated evidence of Eagle’s witnesses
outweighs his evidence as a single witness.
The fact that he
had to be readmitted to hospital four days after returning to work on
14 February also points to him not being
well enough for normal
work. At that stage, he needed an accommodation. A
desk-bound job was an appropriate temporary
accommodation.
[43]
Subsequently, his health improved. Eagle subjected him to a
disciplinary enquiry without any doubts about his fitness to defend
himself. The transcript shows that he represented himself ably. In
court, he manifested no sign of the infection. He attempted
to
persuade Eagle that he was well enough to drive and retain his
position as a technical sales representative, but Eagle was not
interested in knowing about his condition. At no stage did Eagle get
a prognosis from a doctor about the employee’s health
status.
Despite this omission, Eagle proceeded to act against the employee in
the manner described below.
[44]
On 14 March 2005 Hamman and the employee met. There is a
dispute as to whether Hamman or the employee requested the meeting.
Hamman testified that he received a call from Gandy, informing him
that the employee wanted to see him. In his evidence-in-chief
Hamman testified that he did not know what the meeting was about
until it emerged during the discussions that the employee was
unhappy
with the letters that he received from Gandy.
[16]
[45]
Under cross-examination, Hamman reflected that Gandy would have
informed him that the purpose of the meeting was to discuss
the
employee’s illness.
[17]
Hamman prepared extensively for the meeting by getting information
from Old Mutual about medically boarding the employee.
[46]
Eagle admitted in its pleadings that Rose required the employee to
meet Hamman.
[18]
[47]
The Court finds that Eagle initiated the meeting of 14 March 2005
with the employee. This finding is fortified by Hamman’s
evidence on the content of the discussion. Hamman began the
meeting. He started discussing the employee’s health
and
urged him to apply for medical boarding. He drew the employee’s
attention to Eagle’s group life benefits
and urged him to apply
for them.
[48]
On the employee’s version, Hamman insisted on getting the name
and number of his attorney, Mr Rob Casasola, and called
him
immediately to discuss the disability claim as an option. On
Hamman’s version, the employee simply gave him Casasola’s
number and he, Hamman, left a voice message for Casasola.
[49]
The employee then informed him about Gandy’s letter offering
him the desk-bound job and his unhappiness with that offer.
Hamman did not know about the letter and the offer. He
continued to tell the employee that Eagle wanted him to do his job
diligently, that, for Eagle to succeed, its employees must give
“above average results and (they) must move the average
performance upwards. Alternatively, (they) are dead”.
Hamman re-emphasised the need for “above average results”
and likened it to playing rugby or soccer with sick people.
Sales people, Hamman said, had to go out and see people from
9.00 in
the morning to 8.00 in the evening. They should not be sitting
in the office taking calls. Eagle could “get
a girl for
that”, he said.
[19]
On that basis, he initially testified, he retracted the offer of the
desk job. Later he watered it down to say that
he did not retract it
but merely did not agree with it. He left the medical boarding
application forms with the employee.
On his version, the
meeting ended on the note that the employee would consider medical
boarding. For the employee, medical boarding
was not an option. It
was common cause that nothing was agreed at that meeting.
[50]
On 22 March 2005 Gandy told the employee to take leave until 1 April
2005. On Gandy’s version, he did so on
Hamman’s
instruction. On Hamman’s version, he was merely agreeing
to Gandy’s request to pay the employee
during his leave.
In any event, after the employee returned to work on 1 April he was
again told to go on involuntary paid
leave “until it was all
over”.
[20]
[51]
The probabilities favour Gandy’s version because he was willing
to accommodate the employee in a desk job and would not
have chosen
to impose involuntary leave on the employee. Hamman did not agree
with the accommodation and retracted it by instructing
Gandy to put
the employee on paid leave.
[52]
In the meantime, Hamman held discussions with Casasola. On
Hamman’s version, Casasola had proposed on behalf of
the
employee that Eagle pay him the equivalent of three years’
remuneration which Eagle could reclaim when the employee’s
death benefits were paid. Hamman rejected the proposal.
The employee denied instructing Casasola along those lines.
[53]
Annexure G2 to the employee’s amended statement of claim
records at paragraph 32 that there was a meeting between Hamman
and
Casasola to settle the matter but that their attempts were
unsuccessful.
[54]
The Court accepts that Casasola had asked Eagle to advance the
employee’s death benefits. The tenor of Hamman’s
evidence
as regards this proposal has a ring of truth. Furthermore, as such
discussions took place between Casasola and Hamman
in the absence of
the employee, the latter could not rebut Hamman’s evidence
unless he called Casasola to testify. The employee
had terminated
Casasola’s mandated on unfriendly terms and could not secure
his co-operation for the trial
[55]
The proposal could have been with the employee’s instructions.
Alternatively, in the nature of discussions of this
kind it could
have emerged as an option. If the employee did give such a
mandate, he either did not recall it or selectively
chose to forget
it as it was not in his interest to advance a case that he was
prepared to accept the termination of his service
on some basis.
[56]
Hamman testified that the employee had said in February that he would
not last another two months and that he wanted to retire
to the
Berg. From that Hamman gathered that the employee had a limited
time to live and that he wanted to “die in quiet”.
[21]
Hamman’s perception persisted during the meeting of 14 March
2005.
[57]
However, the employee maintained that he always tendered to work his
normal job and that he did not want to be medically boarded.
Sensing that his job security was threatened, he instructed his
attorney to write to Eagle. An advocate drafted a letter
which
recorded the events up to 4 April 2005, pointed out that the employee
was not disabled, that his medication did not make
him drowsy during
the day and that his ability to drive was not impaired, that he was
opposed to being medically boarded and that
Eagle was discriminating
against him on the grounds of his HIV status. The employee
demanded that he be allowed to continue
working normally, failing
which his dismissal would be challenged as being automatically
unfair.
[58]
Eagle denied receiving this letter. As he had terminated
Casasola’s mandate, the employee could not prove that
he had
sent the letter. The draft letter is nevertheless relevant as a
contemporaneous record of the employee’s mindset.
[59]
On 5 May 2005 the employee was summoned to work and served with the
notice to attend a disciplinary inquiry on 10 May 2005.
The
inquiry concluded with the dismissal of the employee.
What
was the true reason for dismissing the employee
?
[60]
About February 2005 Gandy discovered that the employee was receiving
money from the sale of blankets to Eagle’s customers.
He
investigated the matter by checking to whom Eagle supplied the
blankets and how payments were made. He spoke to the dispatch
staff who informed him that the blanket sales had been going on for
some time. He did not say when he began doing the
investigation.
However, it could not have been immediately
after his discovery in February as he was busy with more pressing
issues that arose
from Mimete’s take-over of Eagle. He
explained further that he alerted Hamman to the offence in April
because he had
only completed the investigation by then. He did not
testify to taking any further steps to investigate the matter other
than those
mentioned above.
[61]
If Eagle had considered the offence to be so serious and one that
could result in an irretrievable break-down of the employment
relationship, it would have investigated the matter sooner. If
it viewed the offence as seriously as it subsequently claimed,
it
would have prioritised the investigation.
[62]
Objectively viewed, the nature of the offence was not one that
involved any loss to Eagle, nor were large amounts of money
involved. It impinged on the question of good faith and
ethics. Dishonesty was not obvious. The position would have
been different if Eagle had asked the employee for an explanation and
he lied. The first and only occasion he was asked for an
explanation
was at the enquiry.
[63]
Another mitigating factor was that the employee had skills which
Eagle needed. He testified that whilst he was at his
desk-bound
job he had to go to Nampak as he was the only one who could attend to
that problem.
[64] A
sanction short of dismissal would have been appropriate. The
misconduct could therefore not have caused the employee’s
dismissal. In so far as it did, it was unfair.
[65]
The Court finds for the following reasons that Eagle dismissed the
employee because it did not want to employ an HIV-positive
technical
sales representative:
65.1
Hamman did not want to employ anyone who could not render
above-average performance. That was the central theme
and
overriding message that he conveyed to the employee at the meeting of
14 March 2005. He had set a precedent by having
an employee who
had lost his arm medically boarded. Persons with disabilities
were not his concern.
65.2
Eagle’s management believed that its customers would be fearful
and unwilling to be served by an HIV-positive person.
Rose
conceded this but Hamman and Gandy denied that this was a concern.
65.3
Eagle tried to keep the employee away from his work for as long as
possible. His leave from 22 March 2005 was not
at his instance;
it was imposed on him. Eagle was prepared to pay to keep him
away. If Eagle wanted to employ him,
it would have accommodated
him in the desk-bound job, for then it would have been getting some
value in return for paying him.
65.4
Eagle would have made some effort to obtain a prognosis of his
condition before acting against him if it had any intention
of
retaining his services
65.5
By May the employee was still employed at his normal package.
He had not died within two months, as Hamman had expected.
He
was not willing to apply for medical boarding and Eagle was not
prepared to accommodate him in an alterative position.
The only
option left for Eagle to get rid of him was to dismiss him.
Dismissal for incapacity would have been hard to prove
as the
employee was not incapacitated. Dismissal for misconduct then
presented itself as the only option.
65.6
Eagle embarked on the misconduct proceeding determined to dismiss the
employee. It “threw the book” at him,
so to say.
The discrepancies which founded the first charge relating to the
petrol expenses came to light during a due diligence
which ended in
March 2005. They could have been cleared quite easily, as Ms
Naidoo
conceded, by simply asking the employee for clarification. At
the inquiry Eagle accepted the employee’s explanation
without
question. In fact, it was only when the employee pointed out to
Hamman, who chaired the inquiry as one of three panellists,
that they
had not dealt with the first charge, that Hamman elicited the
employee’s explanation. Equally, Eagle could
have asked
the employee for an explanation for the sale of blankets as soon as
Gandy made the discovery. Obtaining a statement
from the
employee should have been done in the normal course of conducting his
investigations. Eagle was set on holding the
inquiry to justify
the predetermined dismissal.
65.7
The court’s view is fortified by the belligerent attitude that
Hamman maintained throughout the inquiry. He conceded
during
the trial that he should not have chaired the inquiry. His
explanation for his behaviour was that he had only been
involved in
two hearings and was therefore inexperienced. Inexperience is
no excuse for being abusive. Hamman had remarked
at the
beginning of his evidence at the trial that he took charge of the
personnel function personally because his philosophy was
that Eagle’s
most important asset was its people. These remarks ring hollow
in the light of his behaviour at the inquiry
and after he learnt of
the employee’s HIV status.
The
Law
[66]
Today many jurisdictions prohibit discrimination based on a person’s
HIV status. Dismissal of employees because of their
HIV status is
widely acknowledged as discrimination unless the employer can show
that being free of HIV is an inherent requirement
of the job.
[22]
Some jurisdictions elevate the protection of persons with HIV to
constitutional
[23]
or
statutory law
[24]
, whilst for
others it remains soft law in codes and policy
[25]
.
Disconcertingly, not a single international labour Convention or
Recommendation specifically regulates HIV in the workplace.
[26]
Hopefully, the momentum that is developing amongst member states of
the ILO will cause its Governing Body to amend its Discrimination
(Employment and Occupation) Convention, 1958 No 111, amongst others,
to list HIV as a prohibited ground of discrimination. In the
meantime, the ILO’s Code of Practice on HIV/AIDS and the World
of Work will have to suffice.
[67]
Relative to people living with HIV in many other jurisdictions,
people in South Africa have the advantage of a constitutionally
entrenched right not to be discriminated on the grounds of their HIV
positive status. Furthermore, legislation facilitates proof
of
discrimination firstly by defining discrimination to include HIV as a
prohibited ground of differentiation.
[27]
Secondly, dismissal of the employee on account of his HIV status is,
by definition, an automatically unfair labour practice.
[28]
These three measures together impose an enormous burden on anyone who
discriminates against an HIV positive person. Justifying
discrimination on the grounds of an employee’s HIV positive
status is a hard row to hoe. Not surprisingly, employers try
to avoid
basing a dismissal on an employee’s HIV status.
[68]
Despite these formal advances in South Africa and internationally, in
reality, dismissal remains a major side effect of HIV
infection.
[29]
The pressure to dismiss may be external e.g. from customers or
internal e.g. when other employees in the enterprise demand the
dismissal of an infected employee. Often these demands stem from fear
that is either rational or irrational.
[30]
[69]
In 1995 the Tokyo District Court issued a landmark decision in a case
which academics generally refer to as the Aids Dismissal
Case.
[31]
The court rejected the employer’s attempt to justify the
dismissal on the ground of the employee’s “defiant”
attitude and refusal to come into the office. It found that the
underlying reason for the dismissal was the employee’s HIV
status. It declared the dismissal to be “feeble,” totally
divergent from any common societal expectations, illegal,
and thus a
tort.
Finding
[70]
Camouflaging discrimination under the cloak of misconduct is one of
the most insidious forms of unfair labour practices.
Quick to
perceive the unfairness, employees struggle to prove it. As
Eagle denied that the reason for dismissing the employee
was his HIV
positive status, it bore the onus of proving the true reason for
dismissing the employee to justify its fairness.
[32]
It failed to prove that misconduct was the real reason for dismissing
the employee. Eagle’s management created a pattern
of conduct
that leads to only one reasonable conclusion: Eagle dismissed the
employee on account of his HIV status. As it denied
that that was its
reason for the dismissal, questions of rationality and justification
do not arise. In the circumstances, Eagle
failed to discharge the
constitutional and statutory onus of proving that the dismissal was
not discriminatory.
Compensation
[71] In assessing the
amount of compensation payable to the employee, the Court takes into
account the following:
71.1
Eagle impaired the dignity of the employee by instructing him to take
leave when he wanted to work, by subjecting him to an
abusive
disciplinary inquiry, by dismissing him and finally, by attempting to
camouflage its unfairness, lack of compassion and
insensitivity under
the employee’s misconduct.
71.2
HIV remains a highly stigmatised infection that continues to
marginalise its weak and vulnerable victims. Employers must be
deterred from discriminating against employees on the basis of their
HIV positive status.
71.3
The employee has been found guilty of two counts of misconduct for
which he was charged.
The
misconduct was not such that it did or could reasonably have caused a
breakdown in the relationship.
71.4
Both parties tailored their evidence when it suited them.
71.5
The employee has found alternative employment.
[72] The order the Court
grants is the following:
72.1
The dismissal of the applicant was automatically unfair.
72.2 The employee is
awarded compensation being the equivalent amount of
sixteen months’ remuneration at the rate
of R20 772,80 per
month.
72.3 Eagle is ordered to
pay the employee’s costs.
-
- - - - - - - - - - - - - - - - - - - - - - -
______________________
PILLAY
D, J
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE NO: D781/05
DATE:
2007/08/17
In
the matter between:
BRIAN
THOMAS
BOOTES
APPLICANT
And
EAGLE
INK SYSTEMS KZ NATAL (PTY)
LIMITED
RESPONDENT
BEFORE THE HONOURABLE
MADAM JUSTICE PILLAY
ON
BEHALF OF THE APPLICANT:
MS
C NEL
ON
BEHALF OF THE RESPODENT:
MS
L NAIDOO
EXTRACT
judgemnt
delivered on 17 August 2007
[1]
Volume 1, page 63, lines 5 – 6.
[2]
Volume 2, pages 196 – 7.
[3]
Volume 2, page 219, line 10 – 25.
[4]
Volume 2, page 199.
[5]
Volume 2, page 263, line 17.
[6]
Volume 2, page 274, line 5.
[7]
Schwikkard and v d Merwe
Principles
of Evidence
(2002) 503; Hoffmann and Zeffertt
The
South African Law of Evidence
(1992) 611;
Rex
v Levy
1943
AD 558
;
Rex
v Kristusamy
1945
AD 549
;
Santam
BPK v Biddulph
2004
(5) SA 586 (SCA)
[8]
Volume 2, page 156; Volume 1, page 90, line 17.
[9]
Volume 2, page 157, line 19.
[10]
Volume 2, page 158, line 24.
[11]
Volume 2, page 159, line 7.
[12]
Volume 2, page 161, line 11.
[13]
Volume 2, page 163, lines 11 – 12.
[14]
Volume 1, page 15, line 5; Volume 2, page 232, line 20;
Volume 2, page 234, line 12.
[15]
Gandy denied saying this to the employee.
[16]
Volume 2, page 172, line 7.
[17]
Volume 2, page 170, line 3.
[18]
Paragraph
25, page 39; paragraph 25, page 74 of the pleadings bundle.
[19]
Volume 2, page 179, lines 1 – 5.
[20]
Volume 3, page 300, lines 5 – 10.
[21]
Volume 2, page 174, line 24.
[22]
Jane
Hodges
InFocus
Programme on Social Dialogue
,
Labour Law and Labour Administration ILO Geneva 2004
[23]
Such
as the constitutional right to equality in the South Africa;
Hoffmann
v South African Airways
2001
(1) SA 1 (CC)
[24]
Hodges
above;
Marie-Claude
Chartier Legal Initiatives to address HIV/AIDS in the World of Work
.
The protection may be couched in specific aids laws, labour laws,
anti-discrimination and human rights laws, disability laws
and
insurance laws.
[25]
E.g.
Botswana, Hodges above 31
[26]
Hodges
above 9
[27]
Section 6
of the
Employment Equity Act No 55 of 1998
[28]
Section 187
(1)(f) of the
Labour Relations Act No 66 of 1995
[29]
Hodges
above 32
[30]
R A Watt
HIV,
Discrimination, Unfair Dismissal and Pressure to Dismiss
HeinOnline 21 Indus. L.J. 280 1992
[31]
Marc
Lim
The
First Step Forward--The Aids Dismissal Case And The Protection
Against Aids-Based Employment Discrimination In Japan
Pacific
Rim
Law
and Policy Journal March, 1998
[32]
Section 192
of the LRA.