IN THE LABOUR COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case no. J3313/99
ORANGE TOYOTA (KIMBERLY) Applicant
AND
MR JOHN TREVA VAN DER WALT Respondent
JUDGEMENT
MOLAHLEHI AJ
INTRODUCTION
This an application in which the Applicant Orange Toyota (Kimberly)
sought to review and set
aside an award of the second Respondent Motor Industry Bargaining
Council (Athe Bargaining
Council@). In the award Advocate Van Zyl seating as an arbitrator,
concluded that the dismissal
of Mr Van Der Walt, the first respondent, was unfair and ordered re-
employment. He imposed
a final warning which is valid for a period not exciding six months from
the day of the re-
employment.
APPLICATION FOR CONDONATION
The Labour Appeal Court in the case of Queestown Fuel Distributors CCV
Luschagne No & others (2000) / BLLR 45 (LAC) set aside the decision of
the court quo which refused to grant condonation for a late filling of a
review application. The court a quo had refused to grant condonation on
the basis that it had no power to do so in the absence of an express
provision in section 145 of the Labour Relations Act No 66 of 1995 as
amended (the Act). The Labour Appeal Court held that the time limit of
six weeks provided for under section 145 of the Act which is plainly
modelled on section 33 of the Arbitration 42 of 1996 was peremptory and
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not mandatory. (CHECK SECTION 38 OF ARBITRATION ACT).
In this regard conradie JA stated: (at 53 - H) AIt follows, however from
what I have said above that condonation in the case of disputes over
individual dismissal will not be readily granted. The excuse for non-
compliance would have to be compelling, the case for attacking a defect
in the proceedings would have to be cogent and the defect would have to
be of a kind which would result in a miscarriage of justice if it were
allowed to stand.@
The reason for the late application according to the applicant was
occasioned by the departure of Mr Neck Barnaschone, one of the senior
partners of the attorneys of record who used to be responsible for dealing
with labour. He was also responsible for dealing with this matter before
his relocation to Cape Town. The delay occurred as he was winding up his
practice in preparation to leave. He took instructions from the applicant
regarding this matter but had to pass the file to someone else in the
process of his arrangement of relocating to Cape Town. In essence this is
the reason for the two weeks delay in filing the review application.
I am satisfied that a case for granting condonation for the late filing of the
review application has been made out. Taking into account the
circumstances of this case two weeks is not unreasonably too long and I
belief the excuse to be compelling and the reason for attacking the defect
I cogent. The condonation for late filling of the review application was
accordingly granted.
The facts
The facts are simple and common course. The first respondent was
employed by the applicant as a Service Advisor at its Kimberly branch.
During March 1999 the respondent was advised to attend a course in
Bloemfontein. He was advised that the participants of the course would
have to pay for their lunch meal. He raised this issue with Mr Viljoen who
have to pay for their lunch meal. He raised this issue with Mr Viljoen who
authorised that an amount of R150,00 be issued to both the respondent
and Mr Van Herden another employee who attended the course with him.
At the end of the course on the 10 March 1999 both first respondent and
Mr Van Herden stoped at as three places where they had drinks and food.
Their first stop was at the Waterfront in Bloemfontein where they had
some drinks and thereafter they proceeded to Sportmans Bar where they
again consumed more drinks. Their last stop was at Olien Hotel at
Delseville where they again took some more drinks and had something
to eat. At this stage the respondent realised that he no longer had money
and decided to create fictitious cash slips in order to justify the
expenditure in the amount of R150,00.
The following day the applicant confronted the first respondent and
inquired from him as to whether they had ACalamari@ and ADon
Pedros@. The respondent denied this and indicated that they only had
ASteak and Chips@.
Grounds for review
The grounds for review are based on the allegation that, the arbitrator
failed to apply his mind to the issue at hand and if did he would he would
not have made the award he did, namely re- employment of the
respondent. It was submitted in this regard that by ordering re-
employment he had failed to take into account clearly established
principle that dishonesty undermines the trust upon which an employment
relationship is built and that under the circumstances summery dismissal
was justified.
The facts being common course, the arbitrator had two issues to consider
being:
A(1) was sanksie van ontslag te hard en
(2) Was daar konsekwente optrede deur die werkgewer A
It is not necessary in this review to deal with the second issue referred to
above as nothing turns on it. I confine myself to the arbitrator=s finding
that the applicant did not take into account mitigating factors when it
imposed the sanction - resulting in the dismissal being too harsh. In this
regard the arbitrator ruled as follows:
A Quote last paragraph on page page 68 second paragraph up to the end
The arbitrator arrived at the above conclusion on the basis that
the applicant did not take into account mitigating factors in
favour of the respondent. (Check repetition).
He also found that the applicant applied the policy against theft rigidly
without regard to the surrounding circumstances. The arbitrator took into
account the following mitigating circumstances in ordering the re-
employment of the respondent:
Qute last paragraph on 67 ending on page 68
Deal with the issue of applying the same atandards tot arbitration
arwqards issued by bargaining council
One of the basic standard in the employment relationship recognised by
our law is that an employee has a duty to act in good faith and honestly
to his or her employer. (See Standard Bank of South Africa Ltd v CCMA &
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others [1998] 6 BLLR 622 (LC) ). In the absence of special circumstances a
breach of this duty is generally visited with the ultimate sanction of
dismissal. The severity of the punishment is generally determined by the
presence or absence of mitigating factors. In Toyota South Africa (PTY)
LTD v Radebe & others (2000) BLLR 243 (LAC) Nicholson AJ said at
paragraph 44:
AIt is not an invariable rule that offences involving dishonesty necessarily
incur the supreme penalty of dismissal. The facts of every case must be
assessed and mitigating features taken into account.@
In dealing with the issue of whether or not an arbitrator should interfere
with a decision of an employer in dismissal for misconduct cases the court
in County Fair Foods (Pty) Ltd v CCMA & others [1999] 11 BLLR 1117
(LAC) held that:
AIt remains part of our law that it lies in the first place within the province
of the employer to set the standard of conduct to be observed by its
employees and determine the sanction with which non -compliance with
the standard will be visited, interference therewith is only justified in the
case of unreasonableness and unfairness.@
As stated above the arbitrator interfered with the sanction imposed by
the employer on the basis that the applicant applied the policy regarding
theft rigidly and failed to take into account mitigating factors when it
arrived at the decision to dismiss the respondent. It is apparent to me that
the arbitrator applied his mind before interfering with the decision of the
employer. This, I belief is a justifiable ground upon which the arbitrator
was entitled to interfere with the decision of the employer.
Having regard to the material placed before the arbitrator, I am not
shocked or alarmed by his decision. In my view, the arbitrator in arriving
at his decision as he did took into account factors relating to the fairness
of the dismissal imposed by the employer.
of the dismissal imposed by the employer.
In the premises the application to review the award handed down by the
arbitrator in this matter is dismissed with costs. However paragraph 3 of
the award is replaced with the following:
AThe first respondent is to receive a final written warning valid for six
months from the date of his return to work, which will concern any breach
of his employer=s workplace concerning any form of dishonest
misconduct.@
I am of the view that it cannot be said that the senior
commissioner exceeded his powers in coming to the conclusion
that it was appropriate to impose suspension without pay and to
do so in terms which sought to give effect to this.
Molahlehi AJ
Date of Hearing
Date of Judgement
For the applicant Advocate JP Daffue instructed by G Chemary and
H Cilliers
For the respondent Mr Attorney Thompson
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