IN THE LABOUR COURT OF SOUTH AFRICA
(Held at Cape Town)
Case No:
C 98/98
In the matter between:
Applicant
and
THE SOUTH AFRICAN WOODWORKERS UNION Respondent
JUDGEMENT
REVELAS J
[1] The applicant had been in the employ of the
respondent, a trade union, as an organiser since
February 1986 until he was dismissed on 10 October
1997, following charges of inter alia ,
misappropriating and making unauthorised
deductions from an employee’s settlement award.
[2] A disciplinary hearing was held on 26 August 1997
at the premises of the respondent. Both parties
were legally represented and the chairman of the
hearing was an independent third party with no
interest in the matter.
[3] The chairman of the disciplinary enquiry found that
“a complete breakdown of the employment
relationship and breach of trust” had occurred and
recommended the dismissal of the applicant.
[4] It was the case for the applicant that the
respondent had initiated a process of
victimisation and discrimination against him on
the basis of his views and beliefs in the union.
The applicant saw the institution of disciplinary
action against him as a mere part of the greater
process of victimisation and discrimination. The
applicant challenged the fairness of his dismissal
and referred his dispute to the Commission for
Conciliation, Mediation and Arbitration (“CCMA”),
where conciliation failed. Thereafter the matter
was referred to the Labour Court for adjudication.
[5] It was part of the applicant’s case that Mr Noel
Maart, the respondent’s Secretary-General,
perceived him as a rival candidate for the
position held by him. The applicant contended that
he was a better candidate for the position of
Secretary- General since he was their incumbent
for that position at the time and had more
experience than Mr Maart.
[6] The facts which gave rise to the dispute are the
following:
It is common cause that the applicant represented
a certain Mr A Dush, who was dismissed from the
employ of a company called Wynberg Joinery Works
(Pty) Ltd. Mr Dosh challenged the fairness of is
dismissal and the dispute was referred to the
Building Industry Bargaining Council for
conciliation. Mr Dush was represented by the
applicant at the conciliation meeting. A
settlement agreement agreement was reached between
the parties.
[7] At the time of his dismissal, Mr Dush was not a
member of the respondent. The applicant did not
have Mr Dush sign up as a member of the
respondent, as was the normal practice in the
respondent.
[8] The settlement agreement reached at the Building
Industry Bargaining Council was to the effect that
Wynberg Joinery Works would pay Mr Dush R 2 177-30
(plus holiday fund stamps) in full and final
settlement of the dispute between the parties.
[9] It is common cause that the applicant insisted
that the cheque to be paid in full and final
settlement of the dispute, be made out to him
personally. It is also common cause that the
applicant gave Mr Dush only R 1 000-00 on 1 July
1997, being the day after the conciliation meeting
and the day upon which Mr Currie, of Wynberg
Joinery Works, handed over the cheque to the
applicant.
[10] The cheque for R 2177-30 was deposited into the
applicant’s personal account held at ABSA Bank. At
the trial the applicant gave evidence that he
deposited the cheque in the presence of Mr Dush
and at the same time withdrew R 1 000-00 and gave
it to Mr Dush. According to the applicant he
deposited the cheque at an ABSA branch in Cape
Town. During the disciplinary he testified that
the cheque was deposited at Paarl, where he lives,
also in the presence of Mr Dush. In other words,
Mr Dush had travelled all the way from Cape Town
where the cheque was received, to Paarl to have it
deposited in the applicant’s account and have his
money withdrawn from the Paarl branch according to
the applicant.
[11] The applicant explained that he insisted that the
cheque in question, be made out to him personally,
because he feared that Mr Currie, who was hostile
to Mr Dush and with whom Mr Dush had a bad
relationship, would stop the cheque. The applicant
also gave evidence to the effect that Mr Dush was
physically barred from entering the Wynberg
Joinery Works premises by Mr Currie during that
time. This was denied by Mr Curried who gave
evidence who also disputed any hostility on his
part.
[12] The applicant further explained that he could not
withdraw from his own account the full amount in
cash, to hand over to Mr Dush, as was his
intention, because he only had R 1 000-00 in his
bank account at the time and he had to wait for
the cheque to be cleared by his bank before he
could pay out the remainder of the amount to Mr
Dush, who desperately needed the money to pay his
creditors and who was facing eviction.
[13] The applicant also testified that Mr Dush insisted
that the applicant should keep R 100-00 of the
total amount for himself, as a gift to show Mr
Dush’s gratitude for the services rendered to him
by the applicant.
[14] Mr Maart, testified that the matter of Mr Dush
came to his attention when he received a letter
from a Mr H Tepper, the labour consultant for
Wynberg Joinery Works (Pty) Ltd. In this letter Mr
Tepper expressed his concern about the fact that
the applicant insisted on the settlement cheque,
being made out to him personally. This letter
relates that when Mr Currie who negotiated the
settlement, wanted an explanation from the
applicant for this strange arrangement, the
applicant contended, that if the cheque was made
out to the respondent, certain union fees would
become payable which he wanted to save Mr Dush. Mr
Tepper did not seem to know that Mr Dush was not a
union member.
[15] Attached to Mr Tepper’s letter was a copy of the
settlement agreement in question and a copy of the
cheque.
[16] The letter was dated 7 July 1997. Mr Tepper also
requested Mr Maart to contact him directly on his
cell phone and provided the telephone number.
Thereafter Mr Maart phoned Mr Tepper because he
said he was also concerned and he reported the
matter to the police. Upon the advice of the
police Mr Maart contacted his attorneys of record.
About two days later, he managed to get hold of Mr
Dush with whom he made an appointment to come and
see him on 11 July 1997.
[17] Mr Maart testified that when settlement agreements
are reached between an employer and an employee,
negotiated by a union official, the normal
practice would be that any cheque made out in
terms of the settlement agreement, would be
payable to the employee personally or to the
union. The employee would thereafter collect a
cheque from the union and this would occur on the
same day or at the very latest the following day.
The respondent kept two bank accounts. This
evidence was confirmed by Ms Chantal Motto, Mr
Maart’s personal secretary.
[18] Mr Maart also testified that the normal practice
when a non-union member, such as Mr Dush was,
approached the union for assistance, such a
prospective member would immediately be signed up
as member. The only administration fees for which
such a member would be liable, would be a joining
fee of R 7-00 and the normal subscription fee of R
2-50 and any arrears. There were no arrears
applicable since Mr Dush was represented by the
applicant, and never was a member.
[19] When Mr Dush visited Mr Maart at the respondent’s
offices on 11 July 1997, Mr Maart questioned and
listened to Mr Dush’s version of events, which he
took down in writing. He requested Mr Dush to
rewrite, in his own handwriting, his version. Mr
Dush wrote down his version in a letter addressed
to “whom it may concern”.
[20] In this letter, Mr Dush confirms that the
applicant went to a bank and gave him R 1 000-00
of which he gave R 100-00 to the applicant and
they went their separate ways.
[21] He stated further that on 9 July 1997 he was
phoned by Mr Maart who requested him to attend at
the respondent’s offices urgently. An arrangement
was then made to meet with Mr Maart on 11 July
1997. When he arrived at the respondent’s offices
he found the applicant waiting for him. He stated
that he was very surprised. Mr Dush stated that he
and the applicant then went to the applicant’s car
where the applicant allegedly told him that the R
1000-00 was not the amount that he was supposed to
receive and that the “real amount” was R 2 177-30.
[22] According to Mr Dush, the applicant then gave him
the “rest of the money” which was R 1 177-30.
[23] He stated that he then came back to the
respondent’s office with the applicant who
requested him to sign a document which he refused
to sign since he felt that Mr Maart was not in the
office and he was the person that he came to see
about the money.
[24] Mr Dush also says the following in his letter:
“ I do think that what Mr Matthew did was wrong, because he
tried to swindle me out of my money. I think he is truly
regret (sic) what he has done. I plead with you not to be
hard on Mr Matthews.”
[25] According to the testimony of Mrs Motto, Mr Dush
visited the offices of the respondent, and
requested to see Mr Maart who was not in the
office at the time. She was requested him to wait
for Mr Maart. However he was approached by the
applicant who wanted Mr Dush to sign a document,
which Mr Dush refused to sign.
[26] According to Mrs Motto, Mr Dush was very nervous
and wanted to know from her whether he had done
something wrong. He had also requested her to
speak to her in private which they did when the
two of them left the office. Mr Dush also told Ms
Motto, according to her evidence, that the amount
reflected on the document, was not the amount
which he received from Mr Dush.
[27] She also saw Mr Dush get into a car with the
applicant and Mr Poni, a union official who also
gave evidence at the trial on behalf of the
applicant.
[28] On 23 July 1997, Mr Dush wrote a letter to the
executive of the respondent, in the form of an
affidavit which was attested to at the South
African Police in Strand Street. In sharp contrast
to the relatively unsophisticated statement
written at the union’s offices on 11 July 1997,
the relevant part of this letter reads as follows:
“(1) On Friday, 5 July 1997, Mr Maart in the offices of S A
Woodworkers Union put extreme pressure on me to write the
attached letter.
(2) I knew what settlement amount I should receive from
Wynberg Joinery Works and further swear that the settlement
amount was paid out to me.
(3) I hereby swear that Mr R C Matthews never asked for any
compensation for duties performed but that I begged him to
take the R 100-00 because I was grateful for what the had
done for me.
(4) Due to the fact that I was not a member of S A
Woodworkers union at the time I lodged the complaint to Mr R
Mathews on instructions of the shop steward Mr I . Belelie,
and due to the gross maltreatment by the management of
Wnyberg Joinery Works...
After taking all the above-mentioned factors into account
and the hostility shown by Mr Curries towards me I, Mr Able
Dush gave Mr R Matthews a full mandate to represent me which
include negotiating and receive settlements on my behalf.
I, Mr Able Dush, hereby withdraw the statements
made in the attached letter and swear that the
contents of this letter is a true reflection of
the proceedings.
I further apologise to Mr R C Matthews for any
harm done.
Signed on 23 July 1997 at Cape Town”
[29] Attached to the aforesaid letter, was the previous
letter or statement made by to Mr Maart, which was
written, according to Mr Maart, on 11 July 1997,
and not on 5 July 1997 as suggested in the second
letter.
[30] According to the applicant, his meeting with Mr
Dush was not on 11 July 1997, but some days
earlier, on 5 July 1997. He testified that Mr Dush
always knew that he would receive the remaining R
1 177-30 at the respondent’s offices.
[31] Mr Dush did not testify at the hearing.
[32] Much evidence was led as to the alleged arbitrary
discrimination against the applicant.
[33] The applicant gave evidence that at a meeting held
in Elsie’s Rivier, a Mr Opperman, on the
instructions of Mr Maart arrived to disrupt the
meeting and had threatened the applicant that his
employment with the respondent would be
terminated. He also swore at the applicant.
[34] The applicant also complained of the fact that the
respondent’s attorney phoned him at home and told
him that if he did not resign, disciplinary steps
would e taken against him and criminal charges
would be laid against him. The respondent’s
attorney, who appeared on behalf of the respondent
during the trial, put it to the applicant that he
never said so.
[35] According to the applicant and Mr Poni, Mr Poni
was also threatened by a member of the
respondent’s executive that he would be dismissed
if he represented the applicant. This was also
denied..
[36] It was further the applicant’s case that Mr Maart
and those members of the executive committee who
were loyal to Mr Maart, convened a special meeting
of the respondent for the purpose of deciding on
the institution of disciplinary action against the
applicant, and excluded branch committees. The
respondent known by Mr Maart to be loyal to the
applicant and in doing so Mr Maart had acted
contrary of the respondent’s constitution. This
was a further factor which illustrated the
respondent’s determination to get rid of the
applicant, according to the applicant.
[37] It was further contended on behalf of the
applicant that Mr Maart had at various times
accused the applicant of inciting other of the
respondent’s members against him.
[38] It was further the applicant’s case that the
chairman failed to take into account relevant and
material mitigating factors when deciding on the
sanction and that the factors that should have
been taken into account, and which were brought to
his attention at the disciplinary hearing included
:
(1) The personal circumstances of the
applicant.
(2) The long service and experience of the applicant.
(3) The otherwise clean record of the applicant.
[39] The further argument was that any breakdown in the
relationship of trust between the applicant and Mr
Maart was immaterial when viewed against the
relationship of the applicant to the respondent as
a whole.
[40] The applicant does not seek to be reinstated but
seeks compensation in terms of section 194(3) of
the Labour Relations Act, No 66 of 1995 (“the
Act”), alternatively he wants compensation in
terms of section 194(2) as read with section
194(1) of the Act.
[41] It was argued on behalf of the applicant that the
chairman of the disciplinary enquiry erred in his
findings of guilt as well as sanction, in as much
as the applicant was not in fact found guilty of
any of the charges proffered against him.
[42] It was argued that a finding of a breach of trust,
such as found by the chairman during the
disciplinary enquiry, was not a competent finding
to make on the charges levelled against the
applicant since he purported to find the applicant
“not guilty of fraud or theft”. It was also argued
that his finding, of the trust relationship being
broken down was not supported by any evidence led
at the disciplinary enquiry.
[43] In so far as an attack is launched on the
chairman’s findings, I believe it necessary to
quote the relevant passages from his
recommendations:
“After hearing the witnesses for and on behalf of both Mr
Matthews and SAWU I made the recommendation that I found Mr
Mathews guilty of a breach of trust. I therefore called for
both partied to lead any argument or lead any witnesses,
with regard to mitigation or aggrivation, before making
recommendations to the Committee of the Union.
I stated that I would let both parties know in writing why I
believed that there was a breach of trust in this matter and
I outlined as follows:
(1) Firstly, it appears that Mr Matthews represented an employee
who was not a member of the union, but did so purely on the
basis that this employee would eventually become a member of
the union. However, when the time came for this person to
become a member of the union and to have all his dues
deducted Mr Matthews specifically avoided these deductions ;
(2) Mr Matthew then entered into a strange arrangement whereby he
would receive the cheque in his own account and would
thereafter account to the employee;
(3) Furthermore, Mr Matthews then chose to divide the payouts of
these monies in two pay outs to the employee with another
strange explanation;
(4) The employee thereafter complained and ...thereafter...
discussions with Mr Matthews, withdrew the complaint.”
All the abovementioned factors very convincingly lead me to
believe that there is a complete breakdown of the employment
relationship and a reach of trust.
After hearing the evidence in mitigation, as follows:
(1) Mr Matthews had ten years service;
(2) Mr Matthews had no previous warnings;
(3) Mr Matthews was married with five children and his wife was
not working and he was the sole bread winner;
(4) He had substantial debts, ie a bond on his house.
Furthermore, after hearing the argument such as the fact
that Mr Matthews was not found guilty of theft or fraud and
other arguments stating that the union, being a political
animal, has a change of executive and therefore the trust
would maybe not stretch into the next era, I still have
enormous difficulty in seeing how all the above could mend
the employment relationship...
I, despite the evidence in mitigation, recommend that the
union dismiss Mr Matthews on two months calender notice.”
[44] A proper reading of the above shows that the
chairman, although he found that there was a
breach of trust, he did not, as argued by the
applicant, find that the applicant was not guilty
of any of the charges proffered against him. There
appears to be no reasoned finding as to specific
facts which make up the different charges, but
there is certainly not a finding of “not guilty”as
suggested.
[45] The issue which I have to decide is whether the
dismissal of the applicant was for a fair reason
and whether the applicant was discriminated
against on an arbitrary basis by the respondent.
If I find that there was arbitrary discrimination
against the applicant, the dispute over the
dismissal of the applicant falls to be decided
under section 187(1)(f) of the Act, as an
automatically unfair dismissal.
Alleged Misconduct
[46] The applicant himself conceded that it was highly
unusual for a union member to accept a gift of
R 100-00 from an employee for services rendered.
[47] He also stated that it was not the normal practice
for employers to write out settlement cheques in
favour of the union officials who conduct the
settlement negotiations.
[48] In my opinion, it would be highly undesirable if
union officials were permitted to accept cheques
made out to them, personally, on behalf of the
employee whom they represented. It is only logical
that there would be a normal fear that such
practices could lead to employees being exploited.
Consequently opportunities for such exploitation
are limited.
[49] For the same reason, there are strict Bar Council
rules pertaining to advocates, and strict
legislation in respect of the management of trust
monies by attorneys. Strict liability is
applicable in most breaches of this nature.
Although there is no legislation in place with
regard to the representation of employees by trade
unions, the same principles should apply, in my
opinion.
[50] The applicant’s excuse for his conduct was that he
had a special arrangement with Mr Dush, who had
given him a mandate to accept the money in the
manner which took place. The reason behind this
special arrangement, was that Mr Currie, the
manager of Mr Dush’s erstwhile employer, would
have stopped the cheque.
[51] Mr Currie’s undisputed evidence was that he
retrenched Mr Dush for operational requirements.
He denied that he barred Mr Dush from entering his
premises. There was no allegation of any
misconduct on the part of Mr Dush according to Mr
Currie. On the probabilities there is no reason
why I should believe that Mr Currie would have
stopped a cheque made out to Mr Dush, but not one
made out to the applicant.
[52] It is very significant that the applicant did not
sign up Mr Dush as a union member before
representing him as is the ususal practice. By not
involving the respondent, the applicant was
clearly in a better position to make clandestine
arrangements with Mr Dush.
[53] I also find it very curious that the applicant
should enter into an arrangement were he draws the
last R 1 000-00 in his account to give to a
man, whom he just met, when on his own version,
his salary was less than R 4 000-00 per month. On
the evidence before me the applicant’s wife was
unemployed and he had five children to support.
[54] According to the applicant, he did not request the
cheque to be made out to the union, because he
believed that there would not be a person
available to sign a cheque made out to Mr Dush,
once the cheque which has been made out to the
respondent union, is deposited. It was common
cause that two signatories were required for such
a cheque. Mr Maart stated that there would have
been someone to sign such a cheque.
[55] The applicant says that because Mr Dush was in
dire straits financially and had been threatened
with eviction, he therefore needed the money
urgently, and couldn’t wait until the following
day.
[56] On the probabilities Mr Dush’s best interests
would have been best served if the cheque had been
made out to the respondent. Even if Mr Dush
received his money only the following day, he
would then at least have received the full amount
with which he could pay his creditors, immediately
avoid eviction. The method of payment allegedly
followed by the applicant, would cause Mr Dush to
wait at least for another four or five days for
the greater part of his money. Therefore this
arrangement makes no sense to me.
[57] Although there was evidence that Mr Dush was
present at the conciliation meeting where the
settlement agreement was reached, Mr Currie’s
evidence was that Mr Dush was not present when the
cheque was handed to the applicant. Apparently Mr
Dush waited outside while the conciliation meeting
was in progress.
[58] The settlement agreement is not signed by Mr Dush,
but by the applicant himself. The agreement
appears to have been concluded in the absence of
Mr Dush. This evidence together with the evidence
with Ms Motto, leads me believe that Mr Dush did
not know at the time what the amount on settlement
was. If he did know, the probabilities dictate
that it is doubtful whether he would have entered
into the type of payment arrangement described by
the applicant. It is also highly improbable that
an unemployed, indigent man, facing eviction, who
had just received only R 1 000-00, would wish to
part with R 100-00 (10% thereof) as an expression
of gratitude for services rendered.
[59] Mr Dush did not testify, and there are indeed two
conflicting versions by him in two different
letters. Yet my opinion, it is significant, that
the second letter, retracting his former
statements, alleges that Mr Maart had pressurised
him to make a statement on 5 July 1997, which was
denied. The applicant contends that Mr Dush came
to the respondent’s offices on 5 July 1997. In his
first letter, Mr Dush states that Mr Maart phoned
him on 9 July 1997 and a meeting was arranged for
11 July 1997.
[60] Mr Maart testified that Mr Dush visited him after
receiving Mr Teppers letter dated 7 July 1997.
[61] On the probabilities, Mr Maart would have phoned
Mr Dush after 7 July 1997, the date on which the
incident in question came to his attention through
Mr Tepper’s letter. There was only one visit by Mr
Dush to the respondent’s offices on the versions
of both parties.
[62] There was also nothing about Mr Maart’s evidence
which led me to believe that he was not telling
the truth about Mr Dush’s visit.
[63] On the other hand, the applicant had a motive to
create the impression that the incident occurred
on 5 July 1997. That would support the view that
he had made an arrangement with Mr Dush to the
effect, that as soon as the cheque cleared, which
would be approximately five days after it had been
deposited, he would pay Mr Dush his money.
Furthermore, it would bolster the applicant’s case
if it would appear that Mr Dush was paid his money
prior to Mr Tepper raising the question in his
letter dated 7 July 1997.
[64] This reference to 5 July 1997, leads me to believe
that the applicant had a greater hand in Mr Dush’s
second statement, than he would like to admit. The
applicant also testified that he promised Mr Dush
that he would help to find him a job. This
evidence and the evidence of Ms Motto to the
effect that Mr Dush appeared very scared, and the
fact that Mr Dush indicated in his first
statement, that he did not want the respondent to
be “hard” on the applicant, supports the view that
Mr Dush’s second letter contains false statements.
[65] Mr Dush did not give evidence. According to Mr
Maart he could not get hold of Mr Dush. The
applicant proffered no explanation as why he did
not call Mr Dush as a witness.
[66] A further indication that the applicant
misconducted himself, is that the applicant did
not bring it to the union’s intention that he had
entered into this extraordinary arrangement with
Mr Dush. In my view, this is just another aspect
of the clandestine nature of the arrangement. It
also remains unexplained why Mr Currie, whose
evidence I have no reason to disbelieve, testified
that the applicant’s reason for insisting on
personal payment was to circumvent union
deductions, and then accepts R 100-00 as a gift
from Mr Dush. Mr Dush’s alleged financial
difficulties also flies in face of the applicant’s
version that Mr Dush wanted to give him a gift.
[67] On the evidence before me, it appears more
probable that the only reason why the applicant
handed over to Mr Dush the full amount of money in
the end, was when he realised that an
investigation was in progress.
[68] He probably did not expect Mr Tepper, upon being
informed by Mr Currie of what happened, would
write a letter to the respondent.
[69] Mr Dush was not a member of the union when he was
represented by the applicant and because the
applicant had his own arrangement with Mr Dush he
probably never expected that there would be any
further communication between Mr Dush and the
respondent about the money.
[70] The charges levelled against the applicant at the
disciplinary enquiry were the following :
“(i) Misappropriation of an employee’s funds in that on or
about 1 July 1997 you unlawfully and intentionally
withheld an amount of R 1 177-30 from one A Dush;
(ii) Bringing the union’s name into disrepute by withholding
A Dush’s settlement award from Wynberg Joinery without
authorization; and
(iii) Making unauthorised and unlawful deduction from A
Dush’s aforesaid settlement award by withholding
R100-00 for services rendered.”
[71] In my view, the explanation offered by the
applicant for his actions is highly improbable.
[72] The applicant could not explain why he led
evidence at the disciplinary enquiry that he
deposited the cheque in the presence of Mr Dush,
at Paarl, whereas he later testified that it
occurred in Cape Town. There were also other
contradictions.
[73] The probabilities in this matter indicate to me
that the applicant attempted to defraud an
employee whom he represented and who trusted him.
His conduct was dishonest at the least.
[74] Mr Dush did not give evidence to confirm his later
statement, whereas Mr Maart gave evidence that the
version contained in Mr Dush’s first statement,
was conveyed to him personally. He actually penned
down what Mr Dush told him and this information
was repeated in a letter written by Mr Dush in his
own handwriting, at Mr Maart’s behest. Therefore I
attach greater weight to the first statement.
[75] No trade union who represents employees can be
expected to keep in its employ a person, who
represents employees, who are often illiterate,
and who then conducts themselves in a manner such
as the applicant had done.
[76] The applicant’s explanation for his actions, is
fraught with improbabilities.
[77] In my opinion, the applicant was guilty of serious
misconduct which in fact led to a total breakdown
of the trust relationship between himself and the
respondent. Where there is dishonesty on the part
of the employee, the trust relationship is
invariably destroyed.
[78] The fact that Mr Maart said that he believed that
the trust between himself and the applicant could
be restored doesn’t mean there was no breakdown of
trust. This breach of trust which the chairperson
correctly found to exist, does not pertain solely
to Mr Maart, but to the respondent as a whole,
because it is the respondent’s duty to protect all
of its members from being exploited by its own
officials.
[79] Insofar as the allegation is concerned that the
applicant was discriminated against in an
arbitrary fashion, this allegation, is not
supported by the evidence before me.
[80] Mr Maart explained that he could not obtain the
presence of all the executive branch members for
the meeting where it was decided that disciplinary
action should be taken against the respondent. The
constitution of the respondent makes no provision
for a specific quorum for such a meeting. It is
not necessary, in my opinion, for any employer,
to obtain the presence of an employee at the
meeting were the decision is to be taken, whether
or not to introduce disciplinary action.
[81] The applicant was duly notified of the charges
levelled against him and had ample time to prepare
his defence. The fact that he, as a senior member
of the respondent, was not informed of the
aforesaid decision in a meeting, in my view, does
not constitute discrimination.
[82] In fact, what the applicant wants me to find, is
that, because he was a senior member, he should be
treated differently from anyone else. There
apparently has also been no similar case such as
the one in question, where such a high ranking
member of the union was involved.
[83] Insofar as the comments of Mr Opperman at the
Elsie’s Rivier meeting were concerned, Mr Opperman
later resigned. In any event the applicant did not
persuade me that it was Mr Maart who instructed Mr
Opperman to disrupt the meeting.
[84] I gained a strong impression from the evidence
that there were problems between Mr Mart and the
applicant.
[85] On the applicant’s own version, he felt that he
was better qualified and more suited for the
position of Secretary-General of the respondent.
This position had been taken by up by Mr Maart.
Clearly the applicant felt aggrieved about this.
It is therefore understandable that such a
situation would lead to conflict between the
applicant and Mr Maart and their respective
supporters within the respondent. The applicant’s
general demeanour and his evidence on this aspect,
led me to believe that he harboured more ill
feelings towards Mr Maart, than Mr Maart towards
him.
[86] Insofar as the phone call from the respondent’s
attorney is concerned, the respondent’s attorney
denied that he threatened the applicant in any
way. No discriminatory action can be attributed to
the respondent for having its attorney phone the
applicant. The respondent was going to take
disciplinary steps against the applicant. That was
decided at a meeting. To give an employee the
option of resigning before with proceeding with a
disciplinary enquiry regarding allegations of a
very serious nature, does not constitute
discrimination.
[87] The applicant committed a serious offence by
withholding an employee’s money from him. The fact
that the respondent chose to discipline him for
this offence, does not constitute discrimination
either.
[88] The respondent, in my view had a fair reason to
dismiss the applicant. Accordingly, the
application falls to be dismissed.
[89] There is also no reason why costs shouldn’t follow
the result in accordance with the normal
principles which pertain to the aspect of costs.
There are no circumstances indicating that the
applicant should not pay the costs of this
application. Consequently, I make the following
order:
The application is dismissed with costs.
----------------
E REVELAS
For the applicant:
Mr van der Schyff of Van der Schyff, Roelf &
Associates
For the Respondent:
Mr J Whyte of Chennels Albertyn
Date of Judgement: 22 February 1999
This Judgement is also available on the Internet
at the following Website:
http//www.law.wits.ac.za/labourcrt