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[2012] ZALCJHB 136
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Toyota South Africa Motors Ltd v Lewis and Others (J 1031/10) [2012] ZALCJHB 136 (1 January 2012)
REPUBLIC OF
SOUTH AFRICA
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of interest to other Judges
case no: j 1031/10
In the matter between:
TOYOTA SOUTH AFRICA MOTORS LTD
................................................................
Applicant
and
DAVID KEITH LEWIS
...................................................................................
First
Respondent
HILDA GROBLER N.O.
...........................................................................
Second
Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION
..............................................................
Third
Respondent
Heard
:
23 September 2011
Delivered
:
January 2012
Summary: Review of award of compensation: Commissioner’s
finding that applicant unable to establish that respondent guilty
of
the misconduct with which charged not reviewable. Application
Dismissed,
JUDGMENT
GUSH J
The applicant applies for the second respondent's arbitration award
under case number KNDB11986/07 that the first respondent’s
dismissal was unfair be reviewed and set aside and that the the
award be substituted with an award confirming that the dismissal
of
David Keith Lewis (first respondent) was procedurally and
substantively fair.
The arbitration award made by the second respondent followed an
arbitration which took place on 9 and 10 July 2008, 8 and 9 December
2008, 6 and 7 April 2009, 26 October 2009 and 26 November 2009.
(Whilst the final award is dated 21 April 2009, it would appear
that
on 21 April 2009 the second respondent concluded that the first
respondent’s dismissal was unfair and directed that
the matter
be set down for argument to determine the appropriate relief which
took place on 26 November 2009).
On 26 November 2009, the parties having argued what would constitute
appropriate relief the second respondent granted the applicant
the
following relief: ‘The respondent is directed to pay the
applicant compensation in the amount of R186, 942’.
The first respondent had been employed by the applicant during
February 1996 and at the time of his dismissal on 18 September
2007
was employed as a financial manager in the applicant’s the
tool and die division (TDM).
The applicant’s dismissal followed a disciplinary enquiry at
which which enquiry the applicant was charged with the following
misconduct and:
‘
CHARGE:
dishonesty including but not limited to misrepresentation with the
intention of deceiving the company in that:
during 2001 and 5 January 2004
you entered into contracts and agreements with DN Couriers in
violation of company policy and procedures
and which resulted in the
financial prejudice to TSAM the financial prejudice refers to: –
fuel cards issued to DN
couriers although not part of the 2004 contract was unlimited fuel
usage.
The sale of two vehicles to DN
couriers to a flawed process.
You utilised TSAM diners and
credit cards one authorised purposes: –
payment of study she is for
Brandon van der Bank instead of following the policy in terms of
Study Assistance Program.
Car hire whilst on vacation in
the UK
personal items - resulting in
an interest-free loan.
Goods for TDM without adhering
to the procurement process.
On 15 April 2005 you entered
into a transaction with Avalon Travel whereby you "sold"
your voyage miles to cover the
cost of N Singh’s airfare and
trained a refund from TSAM via a cheque requisition (check number
119493) for personal gain.’
At the conclusion of the disciplinary enquiry the applicant found
the first respondent ‘guilty of dishonesty as charged
by the
company’ and the applicant dismissed the first respondent. The
first respondent unsuccessfully appealed against
his dismissal, and
thereafter referred the matter to the third respondent.
After conciliation, the matter was referred to arbitration before
the second respondent. At the arbitration, both the applicant
and
the first respondent were legally represented and agreed with the
consent of the second respondent that the arbitration be
conducted
in two stages. The first stage was to determine whether the first
respondent’s dismissal was fair. If the dismissal
was found to
have been unfair, the second stage of the arbitration would proceed
to determine the appropriate relief.
From the record of the arbitration and the second respondent’s
award, it is clear that the primary issue in dispute at
the
arbitration was not simply whether the first respondent was guilty
of misconduct but specifically whether the respondent
was guilty of
dishonesty as opposed to misconduct involving a breach of the
applicant’s policies and procedures. The second
respondent in
her award recorded the issue to be determined as ‘[i]n essence
the applicant was charged with dishonesty
while his defence is that
he should have been charged with not following the company policies
and procedures.’
1
The second respondent’s summary of the main contentions of the
parties as set out in the opening statements of the respective
parties at the arbitration (with which neither party has taken
issue) records:
Re: Applicants opening statement:
The dismissal was fair in that the first respondent was and was
found guilty as charged (viz. dishonesty including
misrepresentation
with the intention to deceive);
He had the intention to deceive the applicant;
Re: The first respondent’s opening statement:
The incidents recorded in the charge sheet were common cause but
the circumstances under which the infractions were committed
were
in dispute (viz. that first respondent was not dishonest nor was
the first respondent guilty of misrepresentation with
the
intention to deceive);
The practices of which he was accused were common practice amongst
his colleagues and that fellow employees who had followed
these
practices had not been disciplined;
In any event unless the applicant could prove dishonesty (that the
first respondent was dishonest in his failure to comply
with the
policies and procedures) the appropriate sanction according to the
applicant’s code was a written warning.
Both the applicant and the first respondent led extensive evidence
at the arbitration; the applicant called three witnesses and
the
respondent gave evidence himself and called four witnesses.
None of the of the applicant’s witnesses gave direct evidence
of dishonesty on the part of the first respondent and the
main issue
addressed both in the evidence and in chief and cross examination of
the applicant’s as well as the first respondent’s
witnesses was directed at whether or not the actions of the first
respondent amounted to breaching the applicant’s rules
and
proceedures. During his evidence, the first respondent conceded that
he had not complied with certain of the applicant’s
policies
and procedures but steadfastly maintained that his failure to so
comply was not dishonest nor did it amount to a misrepresentation
with the intention of deceiving the company. It is not necessary to
summarise the evidence of the witnesses and the first respondent.
In
her award the second respondent has done so in great detail, with
reference to extracts from the record before thoroughly
analysing
the evidence and argument of both parties.
Referring to the charge sheet the second respondent, in her award,
divides the charges and the sub categories under each charge
into
“three legs”
2
which she numbered and indentified as follows:
Firstly charge 1.1: ‘The DN Couriers contract’;
Secondly charge 1.2: ‘The Diners credit card’;
Thirdly charge 1.3: ‘Voyager miles’.
In the second respondent’s award, in respect of each of the
charges, bearing in mind the issue in question, the second
respondent has carefully and thoroughly analysed the evidence and
concluded as follows in respect of each charge:
Re Charge 1.1: “The DN Couriers contract”
The second respondent found that the applicant had failed to
discharge the onus of proving that the first respondent was
dishonest
in respect of this charge. Taking into account the
applicant’s case before the arbitrator was that the first
respondent
was guilty of ‘dishonesty including but not limited
to misrepresentation with the intention of deceiving the company’
the conclusion reached by the second respondent is entirely
justified based on the evidence placed before her.
In its founding affidavit, the applicant submits that the conclusion
reached by the respondent is reviewable in that ‘a
proper
examination of this evidence would have alerted the second
respondent to the fact that the first respondent was guilty
of a
number of acts of misconduct placed the applicant at risk’.
3
This is a far cry from the essence of the misconduct for which the
first respondent was dismissed viz. dishonesty.
Re Charge 1.2: “the Diners credit card”
The second respondent concluded her analysis of the evidence by
stating that ‘... there was not a shred of evidence that
pointed to any dishonesty, or any attempt to deceive the
[applicant]’.
4
Based on her conclusion the second respondent found ‘...that
[applicant] has failed to discharge the onus to show that
the [first
respondent] was guilty of dishonesty or misrepresentation with the
intention of deceiving the company in respect of
the manner in or
the purpose for which he use his company credit’.
5
Seemingly ignoring that, based on its own case the applicant bore
the onus to establish that the first respondent acted dishonestly
the applicant in its founding affidavit merely describes the first
respondents conduct as “questionable”.
The main issue or act of misconduct that the applicant relies on is
the hiring of a motor vehicle on the credit card for the
purpose of
visiting a client. It transpired that the respondent having hired
the vehicle, due to a major traffic disruption was
unable to get to
the clients premises and duly returned the car. The applicant’s
evidence regarding this issue was that
he had booked the car for the
specific purpose of undertaking the trip to the client which had
been approved by his manager.
When the trip to the client could not
take place, he had returned the car and had paid for the petrol and
ancillary costs himself.
The first respondent had only hired the car
because of the approved intended business trip when the trip did not
materialise
he had himself paid for the petrol and ancillary charges
and the applicant had paid for the hire charge.
6
When the first respondent was cross examined it was never put to him
that his explanation was unacceptable or that his actions
regarding
the hire of the car amounted to dishonesty or a misrepresentation
with the intention of deceiving the company.
7
Charge 1.3: “Voyager miles”
The second respondent in analysing the evidence adduced by the
applicant in respect of the charge relating to the sale of the
voyager miles pointed out that the applicant’s witness, Ward,
was ‘not in a position to answer questions that are
of
material importance ...’ In fact it was put to the first
respondent in cross examination that Ward’s evidence
was to
the effect that there was no rule in place specifically preventing
the sale of voyager miles to the applicant, it was
simply against
the spirit of the scheme.
The second respondent found that the applicant had ‘failed to
discharge the onus to prove that the applicant was guilty
of
dishonesty or misrepresentation with the intention of deceiving the
company in this regard.’
Based on the above findings and her conclusion that evidence that
suggested that the applicant's ‘policies and procedures
were
not followed to the letter and that when employees deviated from
these policies and procedures for what was ostensibly a
good reason,
the deviation was at least tacitly approved or condoned’ and
the concession by the applicants witness, Ward,
that the first
respondent ‘was guilty of no more than a failure to follow
company policies and procedures’,
8
the second respondent found that the first respondent’s
dismissal was unfair.
It appears from the record that at the commencement of the
arbitration, first respondent sought a reinstatement order so as to
benefit from an enhancement paid to employees of the applicant who
changed from the pension fund to a provident fund shortly
after the
first respondent’s dismissal. Subsequent to the finding that
the first respondent’s dismissal was unfair
and prior to the
award of compensation, the parties submitted written representations
to the second respondent. At this stage
however the first
respondent, having been retrenched from the position he had moved to
shortly after his dismissal, now sought
reinstatement in the normal
course. The applicant’s heads of argument concentrated on
submissions that reinstatement was
inappropriate in the
circumstances inter alia that the division in which the first
respondent had been employed had been closed.
In the absence of any
record of what transpired during the argument on the appropriate
relief and in the absence of a cross review
by the first respondent,
it must be assumed that the first respondent is content with the
award of compensationAs regards the
award of compensation (an amount
equivalent to six months remuneration) it is clear from the
applicant’s application that
its review was confined to the
relief it specifically sought in its notice of motion viz. to set
aside the award in so far as
the dismissal was found to be unfair
and for it to be substituted with an order that the first
respondent’s dismissal be
declared procedurally and
substantively fair. In fact the only reference in the applicant’s
papers to the compensation
awarded by the second respondent appears
in the founding affidavit when the applicant states: ‘[t]o
award compensation
in excess of two months is on this evidence alone
unjustifiable’.
9
Other than this bald averment the applicant has not addressed the
award of compensation and in particular, has not dealt with
the
quantum of compensation awarded the first respondent.
The issue therefore is simply whether or not the second respondent’s
ruling that the dismissal was unfair is reviewable.
In its heads of argument the applicant correctly submitted that the
second respondent's task was to decide on the evidence whether
there
was a fair reason for the dismissal of the first respondent. The
applicant submitted further that while employers often
fall short in
drafting charge sheets in an attempt to categorise the misconduct,
as long as the employee knows what the essence
of the misconduct is
this should not detract from the enquiry as to whether there was a
fair reason for the dismissal based on
the facts placed before the
Commissioner. The applicant avers that the second respondent’s
award did not take these issues
into account.
What the applicant failed to appreciate is that at the outset of the
arbitration the crisp issue was specifically defined. The
issue to
be determined was whether the respondent was guilty of dishonesty as
opposed to a breach of the applicant’s policies
and
procedures. The applicant made it abundantly clear that it had
dismissed the first respondent for dishonesty including
misrepresentation with the intention of deceiving the applicant, and
that accordingly it bore the onus to prove exactly that. The
second
respondent justifiably and reasonably came to the conclusion that it
had not discharged that onus based on the material
placed before
her..
The gist of the applicant’s argument and averments made in its
affidavits is that the second respondent was wrong in regard
to her
findings based on the evidence presented. Had this been an appeal
such an approach may have been appropriate. However
the this is a
review brought in terms of the Labour Relations Act and the test to
be applied in determining whether an award
is reviewable is not the
same test which is applied had this been an appeal against the award
of the second respondent. The test
on review was succinctly set out
in
Edcon Ltd v Pillemer NO and Others
,
10
where the court held:
‘
Reduced
to its bare essentials, the standard of review articulated by the
Constitutional Court is whether the award is one that
a reasonable
decision maker could arrive at considering the material placed before
him.’
11
Applying this test to the second respondent’s award, it is
clear that the award is one that a reasonable decision maker
could
arrive at considering the material placed before her. I am not
satisfied that the applicant has established that the second
respondent’s award, that the dismissal of the first applicant
was unfair, is reviewable, neither has the applicant succeeded
in
establishing that the compensation awarded the first respondent is
neither just nor equitable.
Regarding costs, there is no reason why the costs should not follow
the result.
I, accordingly, make the following order:
The applicant’s application is dismissed with costs.
_______________________
D H Gush
JUDGE OF THE LABOUR COURT
APPEARANCES
APPLICANT: Adv D Crampton
Instructed by: De Jager Clemens and Associates
FIRST RESPONDENT: Mr M Maeso: Shepstone and Wylie
1
Arbitration
Award: Indexed pleadings page 28 para 10
2
Arbitration
Award: Indexed pleadings page 53 para 28
3
Indexed
pleadings at page 15, para 37
4
Arbitration
Award: Indexed pleadings page at 57, para 30.15
5
Arbitration
Award: Indexed pleadings at page 57, para 30.16
6
Transcribed
record at pages 23 - 25
7
Transcribed
record at pages 118 - 119
8
Arbitration
Award: Indexed pleadings page 5 para 34 - 37
9
Indexed
pleadings at page 23, para 62.
10
(2009)
30 ILJ 2642 (SCA)
11
Id
at para 15.