J1213/200-ASS
Sneller Verbatim/ASS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J1213/2000
2000-02-05
In the matter between
STER KINEKOR (PROPRIETARY) LIMITED Applicant
and
DAKA, KELVIN 1st Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION 2nd Respondent
MOJAPELO, WJ NOMINE OFFICII
________________________________________________________________
J U D G M E N T
Delivered on 9/02/2000
________________________________________________________________
REVELAS J:
1.This is an application in terms of section 145 of the Labour Relations Act,
66 of 1995 (“the Act”). The applicant seeks to set aside an award made
by the second respondent (the Arbitrator) made in favour of the first
respondent, the erstwhile employee of the applicant.
2.The first respondent, Mr Daka, was found guilty and dismissed for the
following charges of misconduct:
"1. Misrepresentation and withholding of important information regarding the
insurance claim.
2. Dishonest and not disclosing full details relating to the insurance
claim, i.e. not disclosing that he was under the influence of liquor at
the time of the accident and that he was arrested at the scene of
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accident.
3. Breaking the trust relationship of Ster Kinekor by not providing all the
facts and withholding of important information."
3.It is common cause that the first respondent after a function at work,
drove home under the influence of liquor, caused an accident, was
arrested at the scene and had his blood tested. A court date was set as
he was to be criminally charged.
4.It is also common cause that the first respondent informed his supervisor,
Mr Jagga, of the fact that he was under the influence of liquor when he
made the accident. Mr Jagga advised him to complete an insurance claim
form, titled "Accident Claim Form."
5.The first responded completed such a form. A question was posed on the
form as to whether the person involved in the accident was subjected to
drug or alcohol tests. The first respondent did not fill that portion
in. Neither did he mention the fact that a court case was pending
arising from the accident. However, what the first respondent did do
was to fill in the case number issued in respect of the criminal court
matter relating to the incident. He felt that since he did not have the
outcome of his blood results yet, there was no duty on him to complete
the form at that stage. He also felt that any enquiries could be made
by reference to the case number.
6.The applicant is selfinsured to the extent of R100 000,00. For any claims
exceeding that amount, the applicant was covered by the insurance
company in question.
7.The investigator of the insurance company notified the applicant that the
first respondent did not complete the form in full. The Arbitrator
found as follows regarding that aspect:
"According to the affidavit of Mr Jagga the finding of the chair person of the disciplinary
hearing and the recorded evidence of the applicant, the same Monday after the incident,
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hearing and the recorded evidence of the applicant, the same Monday after the incident,
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informed Mr Jagga of the incident and the court case.
I do not hereby suggest that because the respondent was self insured there was no
obligation on the part of the applicant to complete the claim form truthfully. It does,
however, seem that the respondent employer was entitled to expect the truth from the
applicant was indeed informed when applicant informed Mr Jagga of the accident as well as
the pending court case.
Had applicant perhaps not indicated the case number of the accident report it would in my
view possibly amount to a misrepresentation in the form of an omission to disclose the true
facts. Even such a conclusion would be doubtful in view of the applicant's report to Jagga.
However, with the case number applicant indicated contained all the required information
an insurer would need including the facts of a pending possible prosecution.
I am satisfied having regard to the circumstances of this particular case, the report to Mr
Jagga, the fact that the case number was indicated, the absence of an outside insurer and
the knowledge by some senior officials that the applicant had been drinking that the
dismissal is substantively unfair."
The first respondent was then reinstated by the Arbitrator.
8.The main complaint or ground of the view on behalf of the applicant is that
the finding made by the third respondent or the Arbitrator is not
supported by the facts as well as other incidents of irregular conduct
by the third respondent as will appear from the founding affidavit.
9.Unfortunately despite the various efforts of the applicant no record was
produced by the CCMA. The tapes could not be found and it appears that
the commissioner kept no notes. There is thus no record. It would be
difficult to establish without a record what irregularities alleged by
the applicant occurred.
10.Furthermore the Arbitrator gave sound reasons as appears from his award
for the conclusion he came to. Most of the facts on which he based his
findings were common cause as it would appear from the award and the
founding affidavit of the applicant.
11.In my view, the complaints of the applicant amount to no more than an
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appeal. This is not a matter where dishonesty was conclusively proved
in which case interference on review would be justified. In the
circumstances there is no reason, particularly in the absence of a
record why I should interfere in the award on review.
12.The application is dismissed with costs.
________________
E. Revelas
On behalf of SterKinekor: Mr N Greyline
On behalf of Kelvin Daka: In person
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