About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Durban Labour Court, Durban
SAFLII
>>
Databases
>>
South Africa: Durban Labour Court, Durban
>>
2008
>>
[2008] ZALCD 3
|
|
Hanekom v Stone NO and Others (D111/01) [2008] ZALCD 3 (16 May 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD IN DURBAN
CASE
NO
D111/01
16
MAY 2008
IN THE MATTER BETWEEN:
FRANCOIS HANEKOM
Applicant
and
PAT STONE
N.O
First
Respondent
COMMISSION FR
CONCILIATION,
MEDIATION AND
ARBITRATION
Second
Respondent
SOUTH AFRICAN POST
OFFICE Third
Respondent
JUDGMENT
PILLAY
D, J
This application for review is prefaced
by an application for condonation for the late filing of the record.
The applicant
employee contended that the application for condonation
was not necessary as the rules impose no time limit to file his
record.
A six year delay in filing the record is, in the
opinion of the Court, extraordinary and does call for an application
for condonation.
The Court considers the prospects of success
on the merits before turning to other aspects of the condonation
application.
The
first respondent arbitrator confirmed the dismissal of the
applicant/employee on the singular issue of his dishonesty.
The
background to the misconduct proceedings against the employee was
that he had obtained permission from the third respondent
employer to
do private remunerative work. In his motivation to do such
work, dated 11 September 2005, the employee had submitted
that he
would spend about two hours on Saturday mornings and that that would
not impair his productivity in relation to his work
for the
employer. In an earlier motivation dated 10 May 1995, the
employee had said that as a psychologist, the private work
helped him
keep up with developments in the field. He also assured the
employer that the employer was not involved in any
way. (Page
21 of the exhibits bundle).
After
investigating his submission, the employer granted permission by a
letter dated 10 September 1996 on the basis of the employee's
1995
motivation. A material condition of the permission was that the
employee would firstly, adhere to the employer's policy
on
remunerative outside work and secondly, that the outside work would
not affect the normal office work. (Page 19 of the
exhibits
bundle).
A
material term of the policy was that employees had to declare their
interest in outside work "immediately and in writing".
The policy further states:
"It should be made
abundantly clear to each and every employee that in the event of it
becoming known at a later date that
he/she failed to make use of this
opportunity to declare his/her interest in the mentioned activities,
severe disciplinary action
– which does not exclude dismissal –
will be taken against him/her. In view of the importance of
this matter,
it is suggested that each employee should acknowledge in
writing (on the back of a copy of this memo) that he/she is aware of
the
requirements."
The
employer notified the employees of this policy on 19 May 1005.
The
employee was charged as follows:
1.
Misappropriation of the employer's
stationery, other equipment, including its psychometric testing
material;
2.
Abuse of his position as manager to
instruct or allow junior employees to do private work for his account
during official working
hours; and
3.
Instructing, alternatively allowing a
junior employee to misappropriate devices of the employer, including
its licensed psychometric
testing materials for his financial gain.
The
common cause evidence was that:
1.
the employee used the employer's equipment
for private remunerative work;
2.
the employee used another employee to
assist him in such private work;
3.
that employee did some of the private work
during normal working time.
The
arbitrator discounted this evidence which proved the charges.
Instead, he honed in on the dishonesty of the employee for
failing to disclose fully his interest in outside work. (Page
23 of the pleadings bundle). This reasoning is unassailable.
In
so far as I may be wrong, and in so far as it is necessary to
consider the other aspects of the application for condonation,
I turn
to consider firstly, the delay in filing the record. The award
was issued on 26 November 2000. The record
was filed six
years later. This is an extraordinary period of delay.
Furthermore, the review is being considered more
than seven years
after the award was issued and almost eight years after the employee
was dismissed. The employee did not
do enough and certainly did
not act expeditiously to ensure that the record was compiled and
filed timeously. While a respondent
party to a review has a
duty to co-operate in compiling the record, the
onus
always remains on an applicant for review to ensure that a proper
record is delivered. In this case it is hardly open to
the
employee to assert that the employer cannot rely on prejudice because
of the delay as it did not compel the employee to deliver
the record,
especially when the employee itself did nothing to compel the
Commissioner to deliver the record.
The
explanations for the delay, namely the difficulties in locating the
arbitrator and compiling the record are unacceptable.
The delay
of seven years is excessive. The employer will be prejudiced if
this matter were to be returned for rehearing.
THE
APPLICATION FOR REVIEW IS DISMISSED WITH COSTS
.
________________
Pillay
D, J
Date
Edited: 4 August 2008
APPEARANCES
For
the Applicant:
Adv
L Naidoo
Irvin
Lawrence c/o Garlicke & Bousfield
For
the Respondent:
Attorney H
Schensema
IN
THE HIGH COURT OF SOUTH AFRICA
DURBAN
AND COAST LOCAL DIVISION
HELD
AT DURBAN
CASE
NO
:
D111/01
DATE
:
16 MAY 2008
F
HANEKOM
versus
CCMA
& ANOTHER
BEFORE
THE HONOURABLE MS JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
MS L NAIDOO
ON
BEHALF OF RESPONDENT
:
MS H SCHENSEMER
INTERPRETER
:
NOT REQUIRED
JUDGMENT
REPORT ON
RECORDING
CLEAR
CERTIFICATE
OF VERACITY
This
is, to the best abilities of the transcriber and proofreader, a true
and correct transcript of the proceedings,
where
audible
, recorded by means of a
mechanical recorder in the matter:
F
HANEKOM v CCMA & ANOTHER
CASE
NO
:
D111/01
COURT
OF ORIGIN
:
DURBAN
TRANSCRIBER
:
S VILJOEN
DATE
COMPLETED
:
8 JULY 2008
NO
OF TAPES
:
CD
NO
OF PAGES
:
6