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[2012] ZALCCT 55
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Toyota South Africa Motors Ltd v Lewis and Others (D994/09) [2012] ZALCCT 55 (27 January 2012)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT OF
SOUTH AFRICA, CAPE TOWN
JUDGMENT
Reportable
Of interest to other
Judges
C
ase
no: D 994/09
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
:
27 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
[1]
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.
[2]
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).
[3]
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’.
[4]
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).
[5]
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.’
[6]
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.
[7]
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.
[8]
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]
[9]
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:
9.1
Re: Applicants opening statement:
9.1.1
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);
9.1.2
He had the intention to deceive the
applicant;
9.2
Re: The first respondent’s opening
statement:
9.2.1
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);
9.2.2
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;
9.2.3
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.
[10]
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.
[11]
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.
[12]
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:
12.1
Firstly charge 1.1: ‘The DN Couriers
contract’;
12.2
Secondly charge 1.2: ‘The
Diners credit card’;
12.3
Thirdly charge 1.3: ‘Voyager miles’.
[13]
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”
[14]
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.
[15]
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”
[16]
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]
[17]
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”.
[18]
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]
[19]
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”
[20]
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.
[21]
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.’
[22]
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.
[23]
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.
[24]
The issue therefore is simply whether or
not the second respondent’s ruling that the dismissal was
unfair is reviewable.
[25]
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.
[26]
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..
[27]
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]
[28]
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.
[29]
Regarding costs, there is no reason why the
costs should not follow the result.
[30]
I, accordingly, make the following order:
1.
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.