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[2012] ZALCD 7
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Toyota SA Motors (Pty) Ltd v Commission for Conciliation, Mediation and Arbitration and Others (D317/10; D276/10) [2012] ZALCD 7; (2013) 34 ILJ 179 (LC) (6 June 2012)
REPUBLIC
OF SOUTH AFRICA
IN THE LABOUR COURT
(HELD AT DURBAN)
Case: D 317/10
D276/10
Reportable
In the matter between:
TOYOTA S.A MOTORS (PTY) LTD
…....................................................
Applicant
and
COMMISSION FOR CONCILIATION,
MEDIATION
AND ARBITRATION
…...............................................................
First
Respondent
SULLIVAN, LESTER (
N.O.
)
…...............................................
Second
Respondent
BARENDSE, CHRIS
…..............................................................
Third
Respondent
Date of hearing: 23 September 2011
Date of judgment: 6 June 2012
Issues: (Double jeopardy –
employer convening a fresh hearing to review sanction – failure
of manager to advise IR of
intended deviation from code as required –
fresh hearing not procedurally unfair – arbitrator’s
finding of substantive
unfairness upheld)
JUDGMENT
LAGRANGE, J:
Introduction
There are two applications before the
court: one is to review and set aside the arbitration award handed
down by the second respondent
on 23 March 2010 under case number
KNDB7366-09 (‘the award’), the other is to make the
award an order of court.
Brief Chronology
Mr C Barendse, who is the third
respondent in the review application, was dismissed on 24 March 2009
for “effecting an unauthorised
repair to a company vehicle”.
In terms of the applicant’s disciplinary code, making an
unauthorised repair to a vehicle
warranted dismissal even for a
first offence. According to the company, the rule is important
because when a leased vehicle was
resold to a third party the
company had to provide a complete history of the vehicle, and
obviously if it was unaware that an
un-authorised repair had been
affected it might prejudicially affect its reputation and might
compromise the safety of the vehicle.
Evidence was tendered by the company
that other employees had been dismissed for making unauthorised
repairs to their vehicles.
Significantly, in those cases, the
unauthorised repair had only been discovered by the company when the
vehicle was inspected
at some later stage.
Barendse started working for the
applicant on 1 May 2004. He held the position of Senior Coordinator
and Trainer at the applicant’s
Dent Repair Training Centre.
One of the benefits Barendse enjoyed as a co-ordinator was the use
of a fleet car for his personal
use. In this instance Barendse had
leased a silver Toyota sedan from the applicant subject to the terms
of the TSA Fleet Division,
Durban, Controllers User Guide.
On Saturday, 1 November 2008,
Barendse damaged the vehicle at a residential complex when an
automated gate closed on the left
front fender and bumper of the
vehicle. Barendse pushed out the damaged fender so the car could be
driven. As a result of the
collision or as a result of manipulating
the fender, the paintwork on the fender was chipped. The next day
Barendse sanded down
the damaged paintwork and put primer on it to
ensure there was no further rust damage. He made no attempt to paint
over the primer
and the damage was readily visible.
On 3 November, Barendse left Durban
early to visit his mother, who was apparently seriously ill. During
his journey, he was phoned
by the firm’s investigator, Mr
Lovell, who enquired about the accident. Mr Lembede, an investigator
at the firm, had been
informed about the accident by the caretaker
of the premises where the gate had been damaged by the vehicle.
Barendse had provided
the caretaker with all his contact details
including his work details. After discussing the accident with
Lovell and with the
firm’s fleet department, Barendse said
that it had been agreed he should bring the vehicle in when he
returned from leave.
However, he also spoke to his line manager, Mr
de Witt, who told him to return immediately. He did so even though
he had already
reached Umtata by that stage. He arrived back in
Durban at 17h00 and took the vehicle to the fleet department the
following day.
Eventually, the fender was repaired by an authorised
repair company.
In a statement made by Barendse to
the security and loss control section of the company, he said,
amongst other things:
"It was difficult for me to be
mobile so I took the fender off and repaired and primed it so that it
would not rust. I know
that what I did is against company policy and
procedure and it won't happen again. On Monday I called fleet
department and was
advised to bring vehicle for inspection which I
did on 04/10/08. They then told me I was not supposed to tamper with
company property
and that I was liable for the excess."
On 19 February 2009 de Witt issued
Barendse with a written warning for making unauthorised repairs to
the vehicle. The written
warning issued by de Witt did not
specifically refer to the misconduct in the terms it is described in
the disciplinary code
but the description of the offence set out in
the warning is sufficiently clear. The details of the offence were
described in
the warning form as follows:
"On Saturday, 1 November 2008
Clinton had a sliding gate closed on his lease vehicle. In order to
drive his vehicle he bent
the fender back into position. He then
primed the fender to prevent rust without prior authorisation from
myself. The unit was
presented on the Monday for inspection. Doing
any repair further than is necessary to drive the vehicle must be
authorised prior
to repair.
It is understood that this was done
to prevent rust as he was on leave that week, but that cannot be
accepted."
In a memorandum dated 24 February
2009 and headed "Allegation of unauthorised repairs to company
vehicle" prepared by
de Witt for the company’s IR
department, de Witt detailed his investigations and reported the
following under the heading
'Finding/Conclusion':
"Company policy compels an
employee to report an accident and incident to TSA fleet within 48
hours (...). Mr Hill's phone
call to Barendse on November 3, being
within 48 hours of the incident effectively absolved Barendse from
this obligation.
One is left to ponder whether
Barendse’s ad hoc' partial repair' was the beginning of a
conscious and deliberate attempt to
undertake in unauthorised repair
to a company vehicle, or whether it is, as Barendse contends, an
honest and genuine attempt to
prevent unnecessary corrosion taking
place.
Having presented his vehicle for
inspection in a primed condition, one might conclude that there was
no attempt to' hide' the repair.
However, one is still left to
question whether Barendse would have presented his vehicle for
inspection had he not received a phone
call from Mr Hill. It would be
extremely difficult to prove that Barendse would not have reported
the incident and/or presented
his vehicle for inspection at TSA Fleet
within the specified time frame. I therefore can only conclude that
Barendse has no case
to answer in this regard.
However I consider the application
of primer to the unit as an extreme measure that should not have been
undertaken without authorisation
either from TSA fleet or myself.
Given Barendse's position within TSA, the application of primer may
be seen as a ‘minor'
repair in his eyes, I nonetheless judge
his action to be ill considered and thoughtless.
Barendse has, on numerous
occasions, contacted myself over weekends informing me of
work-related matters. I'm of the opinion that
he should have sought
authority to apply primer before doing so. I can find no reason why
he made no attempt to contact me. Barendse
himself can offer no
explanation.
It is therefore my intention to
issue Barendse with a written warning for' failure to follow company
standards and/or procedures’.”
It is apparent that de Witt was not
candid with the HR Department, because he had already issued the
warning to Barendse a few
days before this expression of his
‘intention’.
On 9 March 2009, the industrial
relations department of the company advised Barendse that the
decision relating to the matter
had been reviewed and set aside and
that a fresh hearing would be convened with an independent presiding
officer. The notice
to Barendse was specifically headed “
Re:
review of enquiry – unauthorised repairs to vehicle
.”
The letter also states: "
the matter will be heard afresh,
with an independent presiding officer. He will be advised of the
time and venue for the disciplinary
enquiry.
"
Barendse was issued with a notice to
attend a disciplinary enquiry on 12 March 2009. The charge he was
called to answer was: "
effecting unauthorised repairs to a
company vehicle under your control in violation of company policies
and procedures on 02.
11. 2008
."
Summarising de Witt’s evidence
at the fresh enquiry, the chairperson noted that in his discussions
with Lembede, de Witt
had said he did not regard it as a serious
case and Barendse had not made any attempt to hide the damage. The
chairperson also
records that de Witt used his managerial
prerogative and issued Barendse with a written warning. De Witt had
further testified
that he was asked to draft a memo to the HR
manager on which the IR manager would comment, following a meeting
he had with the
IR and HR managers. De Witt claimed that after two
days he phoned the IR manager, Ms Edy, and she indicated she had no
problems
with his actions. De Witt also confirmed that in his
opinion Barendse was not trying to deceive the company and had
intended
to contact it regarding the incident.
In fact, by the time de Witt had
advised Edy on 24 February 2009 of his ‘intention’ to
issue Barendse with a written
warning for failure to follow company
standards and, or alternatively, procedures, he had already issued
the warning to Barendse
on 19 February 2009. At the arbitration, Edy
claimed that de Witt had not told her that the fender had been
pushed out: he had
merely indicated that Barendse had applied some
primer to protect an area of rust where the paint had been chipped.
Dladla was a witness at the second
enquiry, but not at the arbitration. He confirmed the policy of the
company regarding repairs
to vehicles. He also confirmed that an
emergency repair was one that had to be made to allow the vehicle to
be used again, but
he was not in a position to say if emergency
repairs were justified in this instance. He accepted that Barendse
had not tried
to hide the damage and had been honest in his dealings
with him.
Barendse objected to the enquiry
proceeding because he was being subject to double jeopardy by being
disciplined for something
for which he previously been charged and
issued with a warning for. His protest was to no avail and the
chairperson proceeded
with the enquiry. In his findings, the enquiry
chairperson accepted that although Barendse did make unauthorised
repairs to the
vehicle he did not try to hide it. However, because
Barendse did not lead evidence in person to give the chairperson an
opportunity
to weigh the evidence he was satisfied that there was
not enough mitigating evidence to warrant a deviation from the
sanction
of dismissal. The chairperson was clearly influenced by the
notion that any deviation from the recommended sanction of dismissal
would erode the severity attributed by the firm to this kind of
misconduct. Consequently, he terminated Barendse’s services.
Barendse appealed against the finding
on the basis that the disciplinary process had been procedurally
unfair and that he had
been unfairly subjected to a second
disciplinary process in respect of the same misconduct. The appeal
was dismissed. On the
question of Barendse’s claim of double
jeopardy, the appeal chairperson maintained it was the company's
prerogative to
review a decision if the company felt the decision
was too lenient.
At this point it must be remembered
that no mention was made in the disciplinary enquiry of any welding
repairs having been made
to the vehicle, even though the IR
specialist, Ms Edy, said in her evidence at the arbitration that
they were aware of the welding
on the vehicle before the
disciplinary enquiry had been convened. However, it seems she must
have been referring to the arbitration
hearing and not the second
internal enquiry.
From the evidence of Kilian and Edy,
a principal reason for wanting to convene a fresh disciplinary
enquiry was that de Witt had
not consulted with the IR Department
before issuing a warning. Above the list of categories of
transgressions and the associated
disciplinary action, which appears
in the section of the Disciplinary Code dealing with transgressions,
the following is stated:
“
Should any deviation from this
code be anticipated the Industrial Relations Department must be
informed prior to taking a decision.
”
Another primary concern of the IR
department was that the sanction was too lenient in relation to the
company policy on unauthorised
repairs. Effecting unauthorised
repairs to company vehicles was classified as a category 4
transgression, which carried a sanction
of dismissal even for a
first offence. Although Barendse had been charged with this, de Witt
found him guilty of the less serious
offence of failing to follow
company standards and/or procedures. This misconduct was classified
as a category 2 transgression
carrying a written warning as the
sanction for a first offence.
According to Edy a further reason for
the second enquiry was that the repairs done by Barendse had been
more extensive than what
de Witt conveyed to her when they discussed
the matter together with the HR director on 24 March 2009. In this
regard, she testified
that she was under the impression that the
employee had simply applied a bit of primer to protect an exposed
area of chipped
paint from rusting, whereas the fender had been
pressed out and panel beaten.
Edy, who had approximately one year’s
service at the firm, denied there was a recognised allowance made
for so-called ‘emergency
repairs’ which could be
undertaken so the vehicle could be driven to an authorised repairer.
However, Killian, who had
worked at the firm much for about twenty
years, conceded that such an allowance was recognised. The
applicant’s representative
at the commencement of the hearing
also expressed the view that there were repairs which could be
classified as ‘emergency
repairs’ but contended that the
repairs made were not of an emergency nature. Barendse had said it
was necessary to bend
the fender back as it had caught on a tyre and
the vehicle could not be driven without bending it back.
One other consideration affecting the
decision to hold a fresh enquiry was that the IR department had been
advised that the majority
union at the workplace was showing an
interest in the case. Barendse appears not to have been a member of
the union. The union
had apparently expressed concerns about the
case and was watching to see what the final outcome would be. It
seems the union
believed that the applicant might have been treated
too leniently vis-a-vis other individuals who had been dismissed for
making
unauthorised repairs to their leased vehicles
From a policy perspective, the IR
Department was of the view that the misconduct described in Toyota’s
code made no reference
to whether or not the employee in question
had attempted to conceal the repair, and therefore it was irrelevant
that Barendse
had made no effort to conceal the repairs in this
instance. Despite interpreting the offence as one of strict
liability, Kilian
did concede that the persons, whom he could recall
being dismissed for making unauthorised repairs to vehicles, were
employees
whose unauthorised repairs were only discovered when the
cars were returned to Toyota.
At the arbitration hearing new
evidence on repairs to the car was led by a claims negotiator
employed by Alexander Forbes, Mr
Lovell, who processes Toyota’s
claims. He testified that when the vehicle was returned after a
month by the approved panel
beaters which had repaired it, it was
noticed that the fender was mis-aligned. The repairer was summonsed
and when the car’s
bonnet was opened it was realised that the
fender had been welded onto the wheel arch of the vehicle. According
to Lovell’s
hearsay evidence, the repairer’s
representative said he had not noticed the repair before. Welding
work also did not appear
on the invoice from the repair company.
Lovell claims that he had shown the
welding to Barendse, in Dladla’s presence, and Dladla had then
advised Barendse that
this was contrary to company policy and there
would be an investigation into it. Contrary to Lovell's testimony,
Barendse was
adamant that he was not shown the alleged welding work
on the vehicle. He pointed out that if welding work had been done on
a
car, it could just as well have been done by panel beaters who
repaired it. Barendse could only recall that Lovell had merely made
a remark that there was welding on the fender.
No witness was called from the repair
company to confirm that the welding had been done before it
conducted repairs. The applicant’s
representative at the
arbitration pressed Barendse on how it could have happened that the
fender had been welded onto the wheel
arch of the vehicle if he had
removed the fender to panelbeat it, unless he had thereafter welded
it himself. Barendse explained
that even though he had the expertise
to do the welding, he had neither the time nor the equipment to make
a welding repair that
weekend. Barendse did not investigate the
matter because he assumed that the repairs had been done by the
authorised repairer
so there was no reason for him to concern
himself with it. He assumed that the authorised repairs had been
done to the satisfaction
of the applicant’s fleet department.
The arbitrator's award
The arbitrator dealt with the matter
in two parts. Firstly he considered whether or not the decision to
hold a second hearing
was fair. Secondly, he considered whether the
decision to dismiss the third respondent for making an unauthorised
repair was
fair.
The fairness of the disciplinary
enquiry
According to the arbitrator, the
applicant’s justification for holding the fresh enquiry,
after Barendse had already been
issued with the warning by de Witt,
was
twofold. Firstly, de Witt had not advised the IR department that he
was intending to deviate from the guideline on the sanction
of
dismissal for the misconduct in question. Secondly, by failing to
dismiss Barendse, de Witt had not followed the recommended
sanction
of dismissal contained in the code. The arbitrator found that
neither of these justifications were sufficient to warrant
the fresh
enquiry which led to Barendse's dismissal.
The arbitrator considered the dictum
in
Branford v Metrorail
Services (Durban) & others
[2004]
3 BLLR 199
(LAC)
, in which
the Labour Appeal Court held that,
in
the circumstances of the matter before it,
"...
(i)t would manifestly be unfair for the company to be saddled with a
quick, ill informed and incorrect decision of its
employee who
misconceived the seriousness of the matter and hurriedly took an
inappropriate decision leading to an equally inappropriate
penalty."
1
The arbitrator found that in this
matter de Witt did not take a decision which was ill informed or
incorrect,
nor had he
misconceived the seriousness of the matter. He noted that de Witt’s
general manager, Mr H McAllister, had believed
that the original
decision de Witt had taken was correct. It is also clear from the
Killian’s evidence at the arbitration
that McAllister was not
willing to withdraw the warning unless instructed to do so in
writing.
The arbitrator concluded that the
real reason for holding the second enquiry was that the company was
unhappy with the sanction
of a warning and wanted a second
opportunity to secure the preferred sanction of dismissal. However
he did not attribute any
bad faith to the applicant, because he
accepted that Kilian genuinely believed it had the right to set
aside the initial warning.
The arbitrator qualified his conclusion
somewhat by saying that if de Witt had not been honest when he
issued the warning to
Barendse a second hearing might have been
acceptable. However he was persuaded that de Witt was an honest
witness and had issued
the warning in good faith. In any event, he
found the warning was substantively fair. The arbitrator then said
at paragraph 23
of his award:
"
Having found that the second
hearing was unfair, this would normally complete the award and the
applicant would be reinstated. However
I am aware there are factions
within the respondent who consider the sanction of the first warning
unfair. I will, therefore also
deal with what would be the sanction
even if there had been no previous hearing.
"
From the passage just quoted, it is
apparent that the arbitrator treated the very holding of the fresh
enquiry as something which
made the dismissal substantively unfair,
irrespective of whether or not a sanction of dismissal was
appropriate after hearing
the evidence at the arbitration. His
implicit finding that procedural unfairness made the dismissal
substantively unfair, appears
in the arbitrator’s mind to have
been a distinct basis for finding that the warning imposed by de
Witt was fair on its
own merits.
The fairness of the sanction of
dismissal
The arbitrator noted that the
applicant had classified the offence in the disciplinary guideline
as a category four offence which
warranted dismissal. The applicant
had emphasised the importance of the rule prohibiting unauthorised
repairs because it was
important for it to have a complete history
of the vehicle when the vehicle was sold. Unauthorised repairs could
also compromise
safety features of a vehicle.
The arbitrator accepted evidence of
Kilian that a number of people had been dismissed for making
unauthorised repairs to their
vehicles, but he noted that in those
cases the repairs had not been disclosed and had only been detected
when the vehicles were
inspected at a much later stage when the
vehicles were returned to the firm.
On the question of the gravity of the
offence, the arbitrator concluded that the sanction of dismissal in
the guideline was intended
to be applied to cases of employees who
deliberately concealed unauthorised repairs. In Barendse’s
case there was no prejudice
the company would suffer because it knew
of the accident and the vehicle was repaired by an approved
repairer. In the circumstances,
the arbitrator found that a sanction
of dismissal was totally inappropriate and the original sanction of
a first written warning
was in order.
The employer believed that Barendse
had been dishonest in a number of respects, namely that: it was
improbable that the fender
could have been damaged to such an extent
that it would have damaged the car tyre; the welding discovered on
the vehicle could
not be reconciled with the applicant's statement
that he merely pressed the fender back into shape and put some
primer on the
damaged paintwork, and he failed to disclose the
damage immediately to his superior, de Witt, at the time of the
incident, but
only did so after he had been contacted by the
investigating officer while he was en route to Port Elizabeth.
However, the arbitrator was clearly
impressed with his honesty as a witness. He also noted that there
was evidence from de Witt
that the fender could indeed have damaged
the tyre and could have been damaged by the gate as alleged by
Barendse. A factor that
weighed heavily with the arbitrator was that
Barendse made no attempt to conceal the damage to the paintwork nor
did he attempt
to conceal his identity from the caretaker of the
building where the gate was damaged. He accepted that Barendse could
have been
understandably distracted by concern for his mother, who
was seriously ill, and that might have affected his decision not to
phone his supervisor immediately.
The arbitrator then considered the
significance of the evidence of the alleged unauthorised welding on
the vehicle. Much was made
of this by the applicant in the review
proceedings. On the evidence, he concluded that Barendse had not
done the welding on the
vehicle, as he had neither the time nor the
tools nor the motive to do so. He also noted that even the
chairperson of the disciplinary
enquiry had found that Barendse did
not attempt to conceal the repairs he had made to the fender.
The arbitrator ordered the company to
retrospectively reinstate Barendse to the date of his dismissal.
Grounds of review
The applicant attacks the
arbitrator's award in a number of respects. It submits that the
arbitrator's primary finding that there
was a second enquiry which
rendered the dismissal unfair was unreasonable because, amongst
other things, there had in fact not
been an initial enquiry. The
basis for this contention was that the written warning had been
invalidly issued at a time when
de Witt was still in the process of
obtaining authority in terms of the disciplinary code under the
advice of the Industrial
Relations department to discipline
Barendse. The applicant claims that the arbitrator ought to have had
regard to the evidence
of Edy, on this issue.
In its supplementary affidavit, the
applicant raised additional grounds to justify the full disciplinary
enquiry. It argued that
the written warning was for a lesser charge,
and that when de Witt was liaising with the IR department he did not
convey the
full facts of the incident to it. In particular, it
argued that de Witt had not received all the facts from Barendse,
and he
had not considered the evidence of the welding, which meant
that the fender could not have been removed as alleged by Barendse.
The applicant also complains that the
arbitrator’s finding on the merits of the dismissal was
distorted by his alleged fixation
with the question of Barendse's
honesty. As a result of this, the applicant argues that the
arbitrator fundamentally misconstrued
the essence of the charge
which was mainly about whether or not an authorised repair had been
made, and not with any associated
dishonesty. In effect, the
applicant submitted that it had a right and a need to enforce an
absolute prohibition on the un-authorised
repair of vehicles,
because of its potentially unlimited liability to third parties it
might later sell its vehicles to.
While trying to downplay the
significance of Barendse’s honesty as a relevant factor, the
applicant also argued that it
was evident from the nature of the
repairs done that an attempt was made to conceal them. Therefore, in
so far as honesty was
a relevant issue in charactersing the
misconduct, Barendse’s conduct was sufficiently dishonest to
justify his dismissal.
It is apparent from the applicant's
formulation of this ground of review that it was also struggling to
separate the issue of
dishonesty from the making of unauthorised
repairs: on the one hand it wanted to emphasise a strict liability
approach based
on the policy prohibiting unauthorised repairs, on
the other it wanted to portray Barendse’s conduct in the same
light
as others who had made unauthorised repairs and had not
disclosed them.
In a related point, the applicant
also claimed that the Lovell’s evidence of the inspection of
the vehicle with the repairer,
cast serious doubt on Barendse’s
version. The applicant argues that the arbitrator failed to take
this into account when
he wholeheartedly accepted Barendse’s
version. It submits that he ought to have made an adverse
credibility finding against
Barendse instead. It maintains the
arbitrator overlooked the discrepancy between Barendse’s claim
that he removed the fender
to panel beat it, yet Lovell noticed that
the fender was welded to the wheel arch, which meant it could not
have been removed
as Barendse claimed, unless he welded it back on.
The applicant also claims that the
arbitrator simply ignored the evidence of Edy. It argued that her
evidence went to the heart
of what the arbitrator had to consider in
relation to De Witt’s evidence, namely his credibility and the
true nature of
the representations made by Barendse to him, on which
he had based the written warning. In particular, the applicant notes
that
De Witt had misrepresented to Edy that he was intending to
discipline Barendse when he had already done so.
Evaluation
The arbitrator’s finding that
there was a second hearing rendering the dismissal unfair
It is difficult to find fault with
the arbitrator’s finding that Barendse was subjected to a
second hearing on the same
issue. In the company’s closing
argument at the arbitration hearing it even stated in its written
heads of argument: “
The fact that the employee was afforded
a
fresh enquiry
before
another
chairperson is manifestly fair.”
(emphasis added).
Moreover, a sanction had been imposed on Barendse.
The real issue is whether or not the
fresh enquiry was justified. The company sought to rationalise the
second hearing on the
basis that the sanction imposed by de Witt
potentially exposed it to a claim of inconsistent treatment, and
this is what justified
it ‘reviewing’ the first sanction
after a fresh enquiry. The arbitrator was alive to the applicant’s
argument
that the alleged invalidity of the first warning arose
because de Witt had not complied with the requirement of submitting
the
matter to the HR department before determining that the sanction
was considered by the arbitrator, as paragraph 18 of his award
makes
clear:
“
In
support of its first claim that holding a second hearing was fair,
the respondent pointed out that its procedures had not been
followed.
Inter alia the person who had issued the first warning had not
followed procedures in advising the Industrial Relations
Department
that he intended deviating from the Guide which laid down the
applicant should have been dismissed for doing unauthorised
repairs.
Mr de Witt who had issued the final written warning, had also failed
to follow the Guide in ensuring the applicant was
dismissed.”
Although the code states that the
manager must inform the IR department of the intended sanction
beforehand if it deviates from
the code, the proviso itself makes it
clear that the decision still rests with the manager. Nothing
suggests that he needed ‘authorisation’
before he could
impose a lesser sanction than the one prescribed by the code. It
would be odd if it were otherwise, because then
it would mean the
sanction might be determined by someone other than the chairperson
without that person having heard the evidence,
and the chairperson
would have no discretion in determining an appropriate sanction
irrespective of mitigating and aggravating
factors. The disciplinary
code itself also does not contain any limitation on the powers of
managers to impose disciplinary action
and holds managers and
chairpersons of enquiries responsible for establishing guilt and
deciding on appropriate disciplinary
measures. Thus, even if he had
not notified the IR department of his intention in advance of
actually issuing the warning, there
is nothing in the code to
suggest it did not lie within the scope of his authority to do so.
Kilian did testify that a directive
existed to the effect that a full enquiry had to be convened in the
event that an employee
is charged with misconduct which could result
in dismissal or a final written warning. Howver no evidence of this
directive was
produced. The existence of the directive was also not
corroborated by any other witness nor did it arise in
cross-examination
of de Witt.
However, while I am not persuaded
that the requirement to inform the IR department of the sanction he
was intending to impose
before he did so, made the warning invalid
per se
,
I do believe that his failure to do so thwarted the operation of
mechanism which, in principle, was designed to reduce inconsistency.
In the circumstances, the employer was deprived of an opportunity to
use the mechanism and this was unfair. By so saying, I do
not want
to convey the impression that the IR department was deprived of
exercising a veto over the manager’s choice of
sanction: that
is an interpretation which the proviso cannot sustain.
Although the arbitrator was mindful
of this issue as mentioned above, his analysis on the fairness of
the second enquiry focussed
exclusively on the genuine character of
the first enquiry and the fairness of the sanction imposed by de
Witt. He appears not
to have considered the prejudice to the firm of
being deprived of using the regulating mechanism contained in the
proviso. If
one considers the broader justification for holding a
fresh enquiry which was emphasised in
Blanford’s
case - namely that the
test for determining when a fresh enquiry can be held is a matter of
fairness and not whether exceptional
circumstances exist
2
- I believe that the employer did
make out a case that it was fair to conduct a fresh enquiry at the
time, given de Witt’s
failure to advise the IR department of
his intention to deviate from the ordinary sanction before taking a
final decision.
The arbitrator’s failure to
consider this aspect of the employer’s justification for a
fresh hearing, deprived the
employer of a fair hearing on the issue
of the fairness of the second enquiry.
In view of this finding, strictly
speaking it is not necessary to consider some of the other grounds
of review relating to the
finding that the second hearing was
unfair. However, since the issues raised under those grounds of
review have some bearing
on the arbitrator’s findings on the
substantive fairness of the dismissal and the grounds of review
relating to that finding,
I address them below.
The arbitrator ignored the
different subject matter and charge under consideration in the fresh
enquiry
On the matter of whether the
arbitrator properly considered the supposedly distinct subject
matter of the two enquires, it is
true that de Witt found Barendse
guilty on a charge of not complying with company standards and, or
alternatively, procedures.
Nevertheless, in both inquiries the
applicant was charged with the same offence of making unauthorised
repairs to a company vehicle.
It was for this offence that he was
dismissed. In the circumstances, the arbitrator cannot be criticised
for not making a distinction
between the subject matter of the two
enquiries, as there was none to be made on this basis. Barendse
faced the same potential
sanction in both instances. The fact that
he was found guilty of a ‘lesser’ charge on the first
occasion does not
change the substantive nature of both enquiries.
In fact, in finding Barendse guilty of not complying with company
policies and
procedures, de Witt could not have reached that
conclusion without effectively finding that Barendse had made
unauthorised repairs.
The arbitrator failed to
consider that de Witt did not convey all the facts to the IR
department and he was unaware of the welding
of the fender
It is clear de Witt concealed from
the IR department the fact that he had already issued the warning.
The applicant also argued
that when de Witt was liaising with the IR
department he did not convey the full facts of the incident to it.
This referred to
the fact that the fender had been pressed back into
shape and not merely that some filler had been used to fill in a
dent. Edy
complained that in her meeting with de Witt on 24 February
2009 he did not convey the extent of the repair to her. However, as
she herself said, whether she even met with de Witt or not, it did
not matter at that stage because the warning had already been
issued. Thus any misrepresentation that might have been made to Edy
by de Witt about the extent of the repairs done by Barendse,
this
had no bearing on whether the warning had been issued in ignorance
of the extent of the repairs done. De Witt himself was
well aware
that the repair consisted of pressing out the panel and filling the
dent, as evidenced by his own letter to J Ngcobo
of the IR
department which he issued the same day he met Edy.
It is true de Witt was unaware of
evidence of the fender being welded to the wheel arch at that time.
Assuming the welding had
been done by Barendse, if de Witt had been
made aware of this at the time he investigated the incident, I agree
he would have
been less likely to have believed Barendse’s
version that he had merely performed some temporary repairs to
minimise further
damage and make the car drivable. However, the
welding work was only raised for the first time at the arbitration,
and therefore
it could not logically have been a reason which caused
the company to convene the fresh enquiry.
In passing, I observe that it is
remarkable that nobody raised the issue of welding on the wheel arch
by the time the fresh enquiry
was held, given that the authorised
repairs appear to have been made in November or December 2008 and
the fresh enquiry only
took place in March 2009. Moreover, Lovell
testified that Dladla had said the matter would be investigated, but
even though some
months elapsed from then until the fresh enquiry
took place, there was no evidence it was pursued further. Had it
been, it is
reasonable to suppose it would have featured prominently
at the second enquiry.
I have already
dealt with the reason why the arbitrator’s finding on the
fairness of the fresh enquiry should be set aside.
It also raised
another ground seeking to rely on an analogy between Barendse’s
matter and the case of
BMW
(SA) (Pty) Ltd v Van der Walt
(2000)
21 ILJ 113 (LAC).
In
the
BMW
matter
the employee in question had originally been disciplined on a lesser
charge in circumstances
where he
knew that the employer was labouring under the mistaken impression
that equipment removed from its premises belonged
to him, whereas it
still belonged to the company. However, in this instance the extent
of the repair known to de Witt was the
same as that which was
presented to the chairperson of the fresh enquiry, namely that the
fender had been pressed out and primer
applied to the dent. The
fresh inquiry was not instigated on the basis that the new evidence
of the welding had come to light.
The evidence of welding only came
to light in the arbitration. Consequently, there was no reason to
set aside the finding on
the fairness of the second enquiry on this
basis.
Evaluation of Barendse’s
credibility
In a related ground of review, the
applicant also claimed that the undisputed evidence of Lovell’s
inspection of the vehicle
with the repairer, cast serious doubt on
Barendse’s version. The applicant says the arbitrator failed
to take this into
account when he wholeheartedly accepted Barendse’s
version. It submits that he ought to have made an adverse
credibility
finding against Barendse instead. The applicant claims
the arbitrator overlooked the discrepancy between Barendse’s
claim
that he removed the fender to panel beat it, yet Lovell
noticed that the fender was welded to the wheel arch, which meant it
could not have been removed as Barendse claimed, unless he welded it
back on.
The arbitrator did assess Barendse’s
credibility. What was decisive for him was that the primer had not
been painted over
and the applicant had not attempted to conceal his
employer’s details from the caretaker of the premises where
the damage
was done to the gate. The arbitrator obviously felt that
if Barendse had intended to finish the repairs himself so they would
not be noticed, he would not have given the company details to the
caretaker.
It is true the arbitrator did not
specifically deal with the welding issue in relation to Barendse’s
credibility, but he
concluded that he had not performed welding
repairs on the vehicle because he had neither the motive, nor the
means, nor the
time to do it. In this regard, two aspects of the
evidence on the welding should be highlighted. There was no evidence
adduced
to contradict Barendse’s evidence that he did not have
welding equipment. Further, his evidence that the fender was
unbolted
and re-bolted to the body after it had been pressed out,
was corroborated by Mr Heath who assisted him, whereas the hearsay
evidence
of Lovell on whether the panelbeaters performed the welding
on the vehicle was uncorroborated.
It is correct as the firm’s
representative, Mr Maeso, put to Barendse that the only two
possibilities were that he had done
the welding or the panel beaters
had done so. Lovell said that the panelbeaters would have charged
for the welding, which was
outside the scope of the quotation. The
quotation from the panel beater indicated that repairs were to be
done to the fender
and the bumper. Under the item ‘strip &
assemble’ on the quote an entry for parts appears, which might
also suggest
that the panelbeaters would not simply have left the
fender panel in place. If they removed the panel then the welding
could
only have been done by them.
In the end, the issue of when the
welding was done was an issue to be determined on the probabilities.
The applicant would have
it that Barendse’s credibility should
have been determined on the basis of the probabilities on the
welding question. The
arbitrator clearly believed that the employer
had failed to establish as a matter of probability that Barendse had
done the welding.
It is possible, he might have concluded otherwise,
but his assessment of the probabilities on whether or not Barendse
or the
panelbeaters did the welding is not irrational on the
evidence before him. He did not have to decide who was right, but
merely
whether the firm’s version was the more probable
explanation. I do not believe his conclusion on this issue was one
that
no reasonable arbitrator could have reached, nor that his
assessment of Barendse’s credibility was unreasonable.
Arbitrator’s consideration
of Edy’s evidence
The applicant contends that if the
arbitrator had considered Edy’s evidence he would have been
compelled to make an adverse
credibility finding about De Witt. The
reasons it relies on are set out in paragraph [45] above.
The principal relevance of de Witt’s
evidence to the matter was threefold. Firstly, it concerned whether
he took disciplinary
action in terms of the code. Secondly, it
related to whether he had canvassed his intention to issue the
warning with the IR
department before he did so. Thirdly, it
concerned whether he had concealed the extent of the repairs to the
vehicle, which might
have justified the firm holding a fresh
enquiry.
All these issues have been canvassed
already in paragraphs [46] to [58] above. In the light of that
analysis, it is not clear
to me that Edy’s evidence could have
led to different conclusions being reached on those questions. I am
not persuaded
therefore that the arbitrator’s failure to deal
expressly with Edy’s evidence deprived the applicant of a fair
consideration
of evidence relevant to the determinative issues.
The arbitrator’s
independent findings on the merits
As mentioned, the arbitrator
considered the question of whether the sanction of dismissal was
appropriate, quite apart from his
finding that the holding of a
second enquiry rendered the dismissal substantively unfair in his
view. The applicant also complains
that the arbitrator was fixated
on whether there was an element of dishonesty in Barendse’s
act of making repairs to the
vehicle, when he ought to have realised
this was irrelevant to the charge of making unauthorised repairs.
The arbitrator firstly addressed the
claim that dismissal was the only appropriate sanction. He pointed
out that the disciplinary
code was intended to be a guide to fair
and progressive discipline as stated in clause 2 of the Guide. He
further found that
the sanction of dismissal was intended to be
applied to employee’s who deliberately concealed unauthorised
repairs, whereas
in Barendse’s case the prejudice the rule was
intended to prevent – namely the risk of the company selling
vehicles
without being aware of unauthorised repairs made to them –
was not present. On this basis he found the written warning issued
by de Witt was the correct sanction.
It is important to note that the
arbitrator did not find that the rule against making unauthorised
repairs only applied if such
repairs were not disclosed. He was
dealing with when it was appropriate for the sanction of dismissal
to be imposed without a
prior warning being issued. Given the
evidence that other employees who had been dismissed for breaching
the rule were employees
whose unauthorised repairs had been
discovered much later by the company, I cannot say his finding was
unreasonable.
One might quibble whether or not the
arbitrator should have found that the offence of which Barendse was
found guilty should have
been altered from a breach of company
policies and procedures to the more specific charge of making
unauthorised repairs, but
as discussed above, the finding that he
committed a breach is premised on a breach of the rule against
unauthorised repairs and
for the purposes of progressive discipline
that fact could hardly be ignored if he were subsequently charged
for making unauthorised
repairs. This is a matter on which two
arbitrators might reasonably differ. Likewise the fact that de Witt
only issued a written
warning rather than a final written warning as
a measure of the seriousness of the offence, is something on which
arbitrators
may reach different conclusions without being
irrational.
In the circumstances there is no
reason to interfere with his findings on substantive fairness or the
relief of reinstatement
which the arbitrator ordered.
Costs & Relief
Since the applicant is only
successful to a limited extent and the substantive findings remain
unchanged, I belief it is fair
and equitable for the applicant to
pay the third respondent’s costs.
The second respondent applied for the
award to be made an order of court. There is no reason not to make
the award an order of
court subject to the substitution of findings
which are set aside for the reasons cited above. Obviously, in
respect of the original
award of backpay, the amount stipulated in
the award dealt only with the backpay until the date of the award,
which was a period
of one year, but it follows from the order of
reinstatement that he is also entitled to claim backpay from the
date of the award
until the date of this judgment.
Order
It is ordered that:
The second respondent’s
findings that the third respondent’s dismissal was
procedurally and substantively unfair,
in so far as the third
respondent was subjected to a second disciplinary hearing, are set
aside for the reasons set out in
paragraphs [50] to [52] above, and
are substituted with a finding that the holding of a fresh enquiry,
in the circumstances,
was not procedurally unfair and did not
result in the third respondent’s dismissal being
substantively unfair for that
reason.
The application to review and set
aside the second respondent’s award in so far as he found
that the sanction of dismissal
was unfair on the alternative basis
set out in paragraphs 24 to 42 of his award is dismissed.
The application to review and set
aside the second respondent’s award, in so far as the relief
he awarded and the reasons
therefore, which are set out in
paragraphs 43 to 51 of his award, is dismissed.
The applicant must pay the third
respondent’s costs.
Subject to the substitution of the
second respondent’s findings set out in paragraph [74] a above
in this order, the second
respondent’s award is made an order
of court.
__________________________
R LAGRANGE
JUDGE OF THE LABOUR COURT
FOR THE APPLICANT: B Macgregor of
Macgregor Erasmus
FOR THE THIRD RESPONDENT: G O Van
Niekerk, SC instructed by
Derik Jafta & Co
1
At
209,[15]
2
Blanford
at 2278, [
15], viz:
“
Although
during the hearing of this appeal Mr Bingham, for the appellant,
contended that the test laid down in Van
der
Walt's case was that a second enquiry was permissible only in
exceptional circumstances, that is not borne out by the dictum
in
para [12] quoted above. In that paragraph it is quite clear that
Conradie JA considered fairness alone to be the decisive
factor in
determining whether or not the second enquiry is justified. The
learned judge of appeal mentioned the issue of exceptional
circumstances merely as one of the two caveats and not as the actual
or real test to be applied. Therefore, in my view, it is
incorrect
to contend that the test espoused in Van der Walt is that a second
enquiry would only be permissible in exceptional
circumstances. The
current legal position as pronounced in Van der Walt is that a
second enquiry would be justified if it would
be fair to institute
it.”