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[2010] ZALCD 2
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Mabuza v CCMA and Others (D85/07) [2010] ZALCD 2 (6 June 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA HELD IN DURBAN
CASE
NO: D85/07
HEARD AND DELIVERED:23
APRIL 2010
EDITED: 7 JUNE 2010
NOT REPORTABLE
M B
MABUZA
APPLICANT
And
CCMA
FIRST
RESPONDENT
COMMISSIONER
MARY ERLANK
SECOND
RESPONDENT
METCASH
TRADING AFRICA (PTY)
(LTD)
THIRD
RESPONDENT
JUDGMENT
PILLAY
D, J
This
is an application to review and set aside the award of the second
respondent Commissioner. The applicant employee challenged
his
dismissal on procedural and substantive grounds. The procedural
grounds were that he had not been given sufficient opportunity
to
prepare for his case, and that he was not allowed to have
representation at the disciplinary inquiry.
The
evidence shows that the inquiry was set down for the 14 August 2006.
On that occasion it was postponed to the 21 August
2006, The
record shows that the chairperson of the disciplinary inquiry gave
him an opportunity to look at the documents
in order to prepare
himself for the hearing. He indicated that he was ready to
proceed. In those circumstances he cannot
now complain that he
did not have a sufficient opportunity to prepare for the arbitration.
As
regards representation, he wanted to be represented by a trade union
official because he is a manager. The employer was
not prepared
to adjourn the proceedings to enable a trade union official to become
available to attend the proceedings. In
any event he had no
automatic right to representation by a trade union official. His
right was to be represented by another employee
or a shop steward.
On that ground too the arbitrator found that there was no procedural
unfairness. The arbitrator
concluded that it was the employee’s
responsibility to ensure that his representative was available on the
date of the disciplinary
hearing and that he had enough opportunity
to secure such attendance.
As
regards the substantive fairness of his dismissal, the employee was
charged as follows:
“
(1)
Gross misconduct- of company rules and regulations in that you failed
to request permission to conduct a business [Prima Liquors]
(2) Dishonesty - in
that you did not inform the company that you were conducting a
similar business to what you are managing
at Metro [Liquor Warehouse]
Manguzi, thus causing a conflict of interest.
(3)
Misrepresentation - in that you requested permission from P Sharman
to have the 3 August 2006 off to take your
child to a
doctor, whilst in the meantime you were going to Durban as part of
your business venture.
(4) Misappropriation - in
that you put to use property belonging to the company for your own
benefit.”
The
questions that arise from the evidence are firstly, whether the
employee conducted a liquor business. His evidence was
that his
spouse, Thokozile Mabuza, worked as the manageress for Mr Rama
Moonsamy who was the proprietor of Prima Liquor Store.
Moonsamy
was evicted from the premises where he ran this business as a result
of not paying the rental. Mabuza took over the premises
from which
she ran a clothing retail business. The employee denied that he
owned, managed or conducted a bottle store business.
The
second question is whether Mabuza conducted a business. At the
arbitration she testified that she managed the liquor business
for
Moonsamy. She also testified that she bought the licences from
Boxers another bottle store for R3 000. She
also bought
the Prima Liquor Store licence. The Prima Liquor Store licence
was transferred to her in November 2005.
She sold clothes
between June 2004 and June 2005. From June 2005 she managed
Prima Liquor Store and owned the licence for
Prima from November
2006. The employee was dismissed on the 1 September 2005.
The Boxer licence was issued on the 1
October 2005 in her favour.
The
employer’s witnesses testified that the operational manager
confronted the employee on two occasions at the beginning
of 2005
with information that the employee was running or owning a liquor
store business. On both occasions the employee
denied this.
The operational manager and the regional loss control manager
testified that the workplace rule prohibited the
employee and any
relative from conducting business in conflict with the employer
without the employer’s permission.
The employee denied
any knowledge of this rule. He denied having received copies of
the policy which the operational manager
said had been handed to all
managers at a monthly meeting and emailed to each of them
subsequently.
Whether
the employee saw the documentation is immaterial, for it is a rule of
the common law that employees shall not conduct their
affairs in
conflict with those of the employer. More telling of the
employee is the manner in which his representative cross-examined
the
employer’s witnesses. Significantly, he did not put the
employee’s version to any of the witnesses.
Such version
as he did put did not come even close to the employee’s
testimony when he did testify. The representative
suggested to
the employer’s witnesses that the employee’s spouse might
have been employed at a hotel or a tavern.
The operational
manager pointed out that whether it was a tavern or a bottle store it
was still a business that would have been
in conflict with the
employer’s business; for that the employee had to get
permission.
The
employee’s financial records show that he paid the rental for
the Prima Liquor Store premises. He also used the
company’s
email and telephone facilities for Prima Liquor Store. Whether
the email facility was in a neighbouring business
or in his office is
immaterial; it was the employer’s facility that he used for the
Prima Liquor Store business. The
entire dispute might not have
arose at all if the employee had simply made a clean breast of his
involvement in the business before
he got involved in it.
In
all the circumstances the Court finds that the award is unassailable.
The arbitrator’s findings of fact squares with the
evidence led
at the arbitration. The application for review must be
dismissed on the merits. It also follows that the
condonation
application fails. The order I grant is the following:
The
applications for condonation and review are dismissed with costs.
Pillay
D
Judge