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[2010] ZALCCT 19
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Idwala Lime, A Division Of Idwala Industrial Holdings (Pty) Ltd v CCMA and Others (C733/2008) [2010] ZALCCT 19 (23 August 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
OF
INTEREST TO OTHER JUDGES
REPORTABLE
CASE
NO: C 733 / 2008
IN
THE MATTER BETWEEN:
IDWALA
LIME,
A
DIVISION OF IDWALA
INDUSTRIAL
HOLDINGS (PTY)
LTD APPLICANT
AND
CCMA FIRST
RESPONDENT
COMMISSIONER
HENDRIK OLIPHANT SECOND
RESPONDENT
BAMCWU THIRD
RESPONDENT
GOTLIEB
SWARTS FOURTH
RESPONDENT
JUDGMENT
STEENKAMP
J:
INTRODUCTION
[1]
The fourth respondent, Gotlieb Swarts, was dismissed for gross
negligence. Swarts was a stores assistant / receiver. The reason
for
the dismissal was that he recorded on a “Goods Received
Voucher” (GRV) that a certain type of conveyor belt had
been
received when in fact this had not been the case.
[2]
Mr Swarts, assisted by his trade union, the Building, Allied, Mining
and Construction Workers Union (BAMCWU, the third respondent)
challenged the dismissal in an arbitration before the CCMA (the first
respondent) in Kimberley. The commissioner, Mr Hendrik Oliphant
(the
second respondent) declared the dismissal substantively unfair. He
ordered the applicant, Idwala Lime, to reinstate Swarts,
but without
arrear salary, as Swarts “was not completely innocent”.
[3]
The applicant seeks to review and set aside that award.
CONDONATION
[4]
Both parties applied for condonation. The application was brought
timeously. The supplementary affidavit in terms of rule 7A(8),
though, was about two weeks late. The fourth respondent’s
answering affidavit was about a year late. At the outset of the
hearing, though, both parties agreed that the matter should be fully
argued on the merits.
[5]
The delay
in filing the answering affidavit was occasioned mainly by the
tardiness of BCAMWU. Swarts was let down by his trade union,
eventually terminated its mandate, and instructed attorneys. The
attorneys were diligent in pursuing his opposition to the review
application. Regardless of my eventual finding on the merits in this
matter, I must take into account that Swarts must have been
persuaded
that his prospects of success were good, given that he was armed with
an arbitration award in his favour and that the
hurdle for the
applicant to be successful on review is a high one, given the test in
Sidumo v
Rustenburg Platinum Mines Ltd.
[1]
This
may seem anomalous, given my eventual finding on the merits, but in
the context of an application for condonation, I am satisfied
that
Swarts should not be barred from defending the application, despite
the length of the delay. His explanation was persuasive
and I do not
think it is in the interests of justice to penalise him for the
tardiness of his trade union. Both parties are granted
condonation.
BACKGROUND FACTS
[6]
On 25 February 2008, Swarts acknowledged receipt of conveyor belts to
the value of R591 471, 00. The belts had ostensibly been
supplied to
Idwala by Multi Supplies. Swarts signed a GRV to acknowledge receipt.
[7]
It was established subsequently, and it is common cause, that one of
the four conveyor belts was never supplied. Yet applicant
had paid
for it.
[8]
The applicant’s foreman, one Viljoen, also acknowledged receipt
of the belts. He was also dismissed. I was informed from
the bar –
and it appears from the affidavits filed in the review application -
that his dismissal stands.
[9]
The charge against Swarts in the internal disciplinary hearing was
one of gross negligence in the performance of his duties
by making a
representation that the goods had been “taken into receipt”
when in fact they had not been received.
[10]
The invoice for the goods was signed by Viljoen, the foreman. It is
unclear whether he signed the invoice before or after Swarts
signed
the GRV on 24 February 2008. What is common cause, is that payment
was approved on 3 March 2008 on the signature of Piet
Venter, the
applicant’s quarry manager, with a stamp noting “goedkeuring
vir betaling”. It is also common cause
that the applicant paid
for the belt as per that invoice.
[11]
It appears that Viljoen signed the GRV on 26 February 2008, ie after
Swarts had done so on 25 February.
[12]
The applicant’s witnesses testified at the arbitration that it
was vital for the ongoing and uninterrupted efficient
operation of
its business that back-up conveyor belts be readily available in the
event of breakages or breakdown. This was not
contested.
[13]
The non-delivery was only discovered when the applicant’s
quarry superintendent asked Roux, the administration manager,
about
it. The belt was needed to repair a section of the main conveyor belt
that conveyed ore from the quarry to the crushing section.
On 3 March
2008 the stores controller, Ms Lesch, asked Swarts if the conveyor
belt had been received, He confirmed that it had.
This was patently
false.
[14]
Multi Supplies subsequently issued the applicant with a credit note.
This was on 6 June. At the arbitration, Roux testified
that Swarts
had been involved in a similar incident previously. In December 2006
he had signed for goods without checking that
it had been received.
Roux had an informal discussion with Swarts and informed him that a
repeat offence could lead to his dismissal.
[16]
At the arbitration Swarts testified that it had been the practice
that he would sign off the GRV based on the foreman (Viljoen)’s
signature. This had been the practice for 13 years.
THE AWARD
[17]
The commissioner accepted that Lesch had told Swarts that he could
sign for and endorse deliveries on the signature of the
foreman,
Viljoen. He also accepted that, in this instance, Swarts had signed
the GRV before Viljoen had done so. In his view, however,
this “…does
not take the matter further as it was not disputed that the foreman
had received the items, which were
delivered inside the plant”.
[18]
The commissioner accepted that Swarts had been instructed by Lesch to
re-check the delivery and that he had informed her that
the delivery
had been received correctly. The commissioner then stated: “Based
on the above evidence I had properly before
me I find on a balance of
probabilities that Swarts was only guilty of failing to carry out an
instruction.”
[19]
Turning to sanction, the commissioner considered the applicant’s
argument that dismissal was appropriate as,
inter alia
, the
company had suffered a loss. The commissioner came to the conclusion
that this was incorrect as Multi Supplies had issued
the applicant
with a credit note.
[20]
Considering the previous similar incident, the commissioner stated
that Swarts was not guilty of “signing for goods he
had not
seen”, but that he was “only guilty of not re-checking
the delivery as instructed by Lesch”. He also
took into account
that there was no documentary evidence of a verbal warning. The
commissioner therefore viewed Swarts as having
had a clean record.
[21]
Based on the above, the commissioner concluded that the evidence
“only showed Swarts had failed to carry out an instruction”.
He concluded that the trust relationship had not been breached and
that Swarts was “not guilty of negligence.” He found
that
the dismissal was substantively unfair. He ordered reinstatement, but
ordered it to be without backpay as Swarts was “not
completely
innocent”.
WAS THE FINDING
REASONABLE?
[22]
The applicant argues that the award was so unreasonable that no
reasonable commissioner could have come to that finding had
he
properly applied his mind to the facts of the matter.
[23]
The applicant submits that the commissioner failed to:
23.1
apply the law of evidence in assessing Swarts’s credibility;
23.2
find on this basis that Swarts was dishonest, both in his conduct and
in his evidence before
the CCMA;
23.3
consider the probabilities;
23.4
consider the effect of a finding of dishonesty on the continued
employment of an employee
who had been employed in a position of
trust;
23.5
apply the substantive law of dismissal in cases of dishonesty;
23.6
apply his mind to all materially relevant factors.
[24]
Mr
Benade,
who appeared for the fourth respondent, argued that
dishonesty was not an element of the misconduct that led to Swarts’s
dismissal. Swarts was, indeed, dismissed for gross negligence. But
the argument of Mr
Stelzner
, who appeared for the applicant,
was a different one. He pointed out that, subsequent to signing the
GRV on 25 February, Swarts
was pertinently asked if the belts had
been received. He said that they had. This was not negligent conduct,
as in the case of
the 25 February signing off. This was dishonest.
And dishonesty is a relevant factor in deciding whether the employee
can be trusted,
and thus whether the employment relationship can
continue. Swarts deliberately misled the applicant, yet the
commissioner attached
no significance to this factor. Instead, he
found that Swarts “only failed to carry out an instruction”.
[25]
The commissioner also made contradictory findings in parapgraphs 13
and 14 of his award. In paragraph 13, he noted that Swarts
“stood
firm” in his evidence that the practice was that he would sign
off GRVs on the foreman’s signature –
on that basis he
found that Swarts had not been negligent. Yet, in the next paragraph,
he says that Roux and Lesch “stood
firm” in their
evidence. He makes no attempt to decide which of the witnesses is the
more credible. Instead, he dealt with
each incident in a piecemeal
fashion.
[26]
In
Freshmark
(Pty) Ltd v SACCAWU
[2]
the
court set aside the decision of a commissioner reinstating an
employee who had been dismissed for misappropriation of produce
and
deviation from a prescribed route. The award was set aside on the
grounds that the commissioner had approached the evidence
in a
piecemeal way and he had not applied his mind to all relevant
factors, including the events that gave rise to the suspicion
that
the employee had misappropriated produce and the impact this had on
the trust relationship. The deviation from the route occurred
on a
day when the truck contained extra unauthorized goods, and it was on
a day when the truck stopped near a produce stall where
the persons
at the stall behaved suspiciously. The court held that the only
answer to the question, “Was it fair to dismiss
the employee
for deviating from his route in circumstances in which the deviation
occurred on the day in question?” was “yes”.
[27]
In the current case, it is clear that Swarts deliberately misled the
applicant even after the non-delivery of the conveyor
belts came to
light. It was unreasonable for the commissioner not to have taken
this factor into account when deciding on the fairness
of the
sanction. Instead, the commissioner only found that Swarts had failed
to carry out an instruction. It went much further
than that. Swarts
deliberately misled his employer. Even though he was dismissed for
gross negligence, the commissioner’s
failure to take this
misrepresentation into account when deciding on the appropriate
sanction, was so unreasonable that no reasonable
commissioner could
have reached the same conclusion.
[28]
Turning to the question whether the company had suffered a loss, it
is so that the supplier issued a credit note subsequent
to payment
for the belts and subsequent to the dismissal of Viljoen and Swarts.
But is it clear, as the commissioner finds, that
“the employer
had up to now not suffer
[sic]
an actual loss”? I think
not. The evidence showed that the missing belt was never delivered.
The applicant ceased to do business
with the supplier. It had, in
fact, suffered a loss.
[29]
Mr
Benade,
for the fourth respondent, made much of Swarts’s
defence that it was only required of him to endorse the foreman’s
signature
acknowledging receipt of the goods. But even if this
practice had been established, in the present case it is not what
happened.
Viljoen signed the GRV only the day after Swarts had done
so. For the commissioner to find that this fact “does not take
the matter further”, cannot be a reasonable conclusion. It
undermines Swarts’s very defence.
[30]
On the evidence before the commissioner, Swarts’s acrions
clearly amounted to gross negligence. His subsequent conduct
was
dishonest. A finding that this was not sufficient to justify his
dismissal, is in my view, so unreasonable that no reasonable
commissioner could have come to the same conclusion. This is all the
more so when Swarts had previously been reprimanded for a
similar
offence. It seems to me to be a contradiction in terms for the
commissioner to have required “documentary proof”
of the
verbal reprimand occasioned by that incident.
[31]
I have come to the conclusion that the arbitration award should be
reviewed and set aside. All the evidence has been traversed
in the
disciplinary hearing, the subsequent arbitration and this
application. It would serve no purpose to remit it to another
commissioner.
[32]
With regard to costs, I take into account that Swarts was armed with
an arbitration award in his favour. His trade union did
not give him
the required assistance. He was compelled to incur the costs of legal
representation. I do not consider it appropriate,
in law or fairness,
to hold him responsible for the applicant’s costs. Nor did the
applicant persist with its prayer for
costs.
CONCLUSION
[33]
The award of the second respondent is reviewed and set aside. It is
substituted with an order to read: “The dismissal
of the fourth
respondent (Swarts) by the applicant (Idwala Lime) was fair.”
[34]
There is no order as to costs.
__________________________________
A.J.
STEENKAMP
Judge
of the Labour Court
Cape
Town
Date
of hearing:
12 August 2010
Date
of judgment:
23 August 2010
For
the applicants:
RGL
Stelzner SC
Instructed by Joubert
Galpin Searle, Port Elizabeth
For
the respondent:
E Benade
(heads of argument having
been drafted by G Leslie)
Instructed by Madisha
Legodi, Kimberley
[1]
(2007) 28
ILJ
2405
(CC)
[2]
(2009) 23
ILJ
341
(LC)