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[2015] ZALCJHB 43
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Sikhakhane v Dispute Resolution Centre of the Motor Industry and Others (JR 881/11) [2015] ZALCJHB 43 (19 February 2015)
REPUBLIC OF SOUTH
AFRICA
THE
LABOUR COURT, JOHANNESBURG
Case
No: JR 881/11
DATE:
19 FEBRUARY 2015
Not
Reportable
In
the matter between
ALLEN
SIKHAKHANE
..................................................................
Applicant
And
DISPUTE
RESOLUTION CENTRE
OF
THE MOTOR INDUSTRY
...........................................
First
Respondent
LUVUYO
QINA N.O
.......................................................
Second
Respondent
AUTOZONE
.......................................................................
Third
Respondent
Heard:
May 2014
Delivered:
19 February 2014
Summary:
Review application. Failure to submit evidence regarding the
breakdown in the relationship. Absence proof that the relationship
has irretrievably broken down the arbitrator ought to have found the
dismissal to be unfair.
JUDGMENT
MOLAHLEHI
J
Introduction
[1]
This is an application to review the
arbitration award made by second respondent (“the arbitrator”)
under case number
MINT 25468D, in terms of which the dismissal of the
applicant (“the employee”) was found to have been
substantively
fair.
Background
facts
[2]
The third respondent is involved in auto
parts retail business throughout South Africa. The employee was prior
to his dismissal
employed as a driver. The employee was charged for
misappropriation of the third respondent’s funds and
dishonesty.
[3]
The incident that led to the dismissal
of the employee relates to the requisition of money which was to pay
three casual employees
whose services were engage for a day to clean
the rubble around the premises of the respondent. On the version of
the respondent,
the casuals were to be paid R50.00 each.
[4]
In addition to being required to
supervise the casual employees the employee was instructed to
requisition money for their payment
from the cashier.
[5]
The version of the respondent is that
the employee was authorized to requisition an amount of R150.00 from
the cashier but instead
requisitioned R180.00.
[6]
The employee withheld an amount of
R30.00 at the point of having to pay the casual employees. The
respondent discovered that the
employee had withheld the amount of
R30.00 when the casual employees complained that the amount paid to
them for the work done
was too little.
[7]
The employee explained that he withheld
R30.00 because one of the casual employees was still to complete his
task and had told him
that he would pay him once he had completed the
task.
The
ground for review
[8]
The applicant has raised several grounds
of review in challenging the arbitrator’s arbitration award.
The grounds of review
can be categorized into two categories, namely
that the arbitration award is unreasonable and secondly that the
arbitrator committed
gross-irregularity in the manner in which he
conducted the arbitration proceedings.
[9]
In relation to the issue of
gross-irregularity the employee complains that the arbitrator
misconstrued the nature of the enquiry
he was to conduct, ignored the
relevant evidence which was presented at the arbitration hearing and
failed to assess the evidence
on the probability.
The
arbitration award
[10]
As indicated earlier the arbitrator
found that the dismissal of the employee was substantively fair and
it was for that reason that
the employee’s claim was dismissed.
Evaluation
[11]
The question to be answered in
considering this review application is whether the conclusion reached
by the arbitrator is
one that a reasonable decision-maker
could not reach?
The question is answered by
considering the outcome of the arbitration award taking into account
the facts and the material that
served before the arbitrator.
[12]
In
determining whether the dismissal was fair, the arbitrator's first
task is to determine whether the misconduct upon which the
dismissal
is based on was committed. The next task is, if found that the
misconduct was committed, to inquire into whether the
sanction of
dismissal was fair. In determining the fairness of the sanction of
dismissal of the arbitrator it is required to investigate
whether the
trust relationship between the parties has irretrievably broken down
as a consequence of the misconduct. The question
of whether the
relationship between the parties has irretrievably broken down has to
be assessed on the evidence presented by the
employer. The test to
apply in determining whether the dismissal sanction was fair is
whether the misconduct rendered the continued
employment relationship
intolerable.
[1]
[13]
The
test to apply in determining whether the trust relationship had
broken down is set out in
SACCAWU
v OK Bazaars Kimberley
,
as follows:
[2]
"The
real test is whether the trust relationship has been breached to the
extent that the employment relationship has become
intolerable. ...
The question whether the trust relationship between employee and
employer has in fact broken down in a particular
case is a question
of fact and not a question of law. One must scrutinize the evidence
on record carefully ... "
[14]
The
approach to adopt in considering whether the relationship of trust
has broken down due to the misconduct received attention
in
Edcon
Limited v Pillemer N.O
,
[3]
where it was found that the dismissal of the quality controller who
failed to report that a company car she was using was involved
in an
accident was unfair. The involvement of the car in the accident was
discovered by the manager when it went for service. Initially
the
employee denied knowledge of the damage to the car. The employee was
before her dismissal charged with "failure to be
honest and act
with integrity… And this resulted in a breach of trust between
herself and the company." The arbitrator
found that the employer
had failed to show that the misconduct committed by the employee
broke down the trust relationship.
[15]
On appeal the Labour Appeal Court found
that the Commissioner's decision that the dismissal was unfair
because the employer had
failed to show that the breakdown in the
trust relationship could not be faulted. In this respect the Court
had the following to
say:
“
[20]
The gravamen of Edcon’s case against Reddy was that her conduct
breached the trust relationship. Someone in management
who had
dealings with Reddy in the employment setup, as already alluded to,
was required to tell Pillemer in what respects Reddy’s
conduct
breached the trust relationship. All we know is that Reddy was
employed as a quality control auditor; no evidence was adduced
to
identify the nature scope of her duties, her place in the hierarchy,
the importance of trust in the position that she held or
in the
performance of her work, or the adverse effects, either direct or
indirect, on Edcon’s operations because of her retention,
eg
because of precedent or example to others. In
De
Beers Consolidated Mines Ltd v CCMA & others
(2000)
21 ILJ 1051 (LAC) at paragraphs 17–27 [also reported at
[2007]
12 BLLR 1097
(
LAC)
– Ed], Conradie JA considered the relationship between an
employee’s dishonesty continued employment, the bearing
of such
factors as long service, which Pillemer also considered. In the
present context he said . . .
‘
The
seriousness of dishonesty – ie whether it can be stigmatised as
gross or not – depends not only, or even mainly,
on the act of
dishonesty itself but on the way it impacts on the employer’s
business.’
But
to get here, evidence showing adverse impact, if any, on the
“business” is critical.”
[16]
In dealing with the reasonableness or
rationality of the Commissioner’s finding that the
dismissal was unfair because
there was no evidence showing the
breakdown in the relationship the Court held:
“
[23]
. . In my view, Pillemer’s finding that Edcon let no evidence
showing the alleged breakdown in the trust relationship
is beyond
reproach. In the absence of evidence showing the damage Edcon asserts
in its trust relationship with Reddy, the decision
to dismiss her was
correctly filed to be unfair. She cannot be faulted on any basis and
had conclusion is clearly rationally connected
to the reasons she
gave, based on the material available to her.”
[17]
In the present case the applicant was at
the time of the incident employed as a driver. He was, as stated
earlier, required to supervise
the casual workers and ensure that
they are, on completion of their task, paid for their services. There
is no evidence that shows
how the conduct for which the employee was
found guilty of impacted on the relationship of trust relationship
between the parties.
In the absence of such evidence the proper
approach which the arbitrator ought to have adopted was that the
dismissal of the employee
was in the circumstances of this case
unfair because there was no proof that the trust relationship between
the parties had broken
down.
[18]
In light of the above I am of the view
that the applicant’s review application stands to succeed. I
see no reason why costs
should not follow the results in the
circumstances.
Order
[19]
In the premises I make the following
order:
1.
The arbitration award made by second
respondent under case number MINT 25468D is reviewed and set aside.
2.
The arbitration award is substituted
with the following award:
(i)
The dismissal of the Applicant, Mr
Sikhakhane was substantively unfair.
(ii)
The Respondent is to reinstate the
Applicant retrospective to the date of his dismissal without loss of
benefits.
(iii)
For the misconduct the Applicant should
be issue with a written warning.
3.
The third Respondent is to pay the costs
of the applicant.
E
MOLAHLEHI
Judge
of the Labour Court, Johannesburg
Appearances:
For the
Applicant: Mangena of Mangena & Associates Attorneys
For the
Respondent: D Mer of Fluxman Inc.
[1]
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13
ILJ
573 (LAC).
[2]
[1998]
7 BALR 887 (CCMA).
[3]
[2010]
1 BLLR 1
(SCA).