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K597257
J3877/99 1 JUDGMENT
Sneller Verbatim/MM CASE NO. J3877/99
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN
20001027
In the matter between:
VAAL TOYOTA (NIGEL) Applicant
and
MOTOR INDUSTRY BARGAINING COUNCIL Respondent
J U D G M E N T
Delivered on 30 October 2000
REVELAS J :
1.This is an application to review an award made in favour of the third
respondent, a former employee of the applicant. The award was made by
the second respondent, (“the arbitrator”), who conducted an arbitration
hearing after the third respon dent referred an alleged unfair dismissal
dispute to the first respondent (”the Council”).
2. The facts which gave rise to the dismissal dispute and this review
application, are briefly:
The third respondent was employed by the applicant as a motor
vehicle salesman at a salary of approximately R3 000 per month. He was
also paid a petrol and cell phone allowance. At some stage the third
respondent approached his direct supervisor, Mr Venter, to discuss the
possibility of an increase in salary with him. Mr Venter was not
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authorised to grant salary increases as he would
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have had to apply, on behalf of the third respondent,
to the managing director of the applicant. The increase would then need
to be confirmed by the Board of Directors of the Hallmark Motor Group
which consisted of inter alia, the applicant. The rele vance of this
aspect will become apparent below.
3. The applicant has a business practice in the form of, a special dis
count to customers. After a customer has paid the full purchase price
for a vehicle bought from the applicant, that customer would receive a
cheque for an amount (usually R500,00) from the applicant. The purpose
of this discount method is to facilitate sales. The practice is called
"overallowance" and is payable to customers only.
4.The applicant conducted certain investiga tions and it was established that
over a period of time subsequent to his request for an increase, the
third respondent was paid R500 per month which was reflected as an “over
allowance”.
5.The arbitrator was provided with exhibits of which “over allowances” on
certain transactions were identified. The amounts were R500 per
transaction. Some cheques were made out to the customers involved, and
others were made out to the third respondent personally.
6.It is also common cause that all the cheques, (also those made out to the
customers) were exchanged for cash by the third respon dent at the
driveway cashier of the applicant's garage where the third respondent
worked. This was done openly, for all to see.
7. The customers involved in the transactions giving rise to the “over
allowances” in question, never received these allowances. The were also
unaware that they were
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instrumental in allocating an “overallowance” to the third respondent.
8.The third respondent's explanation to the appli cant was that the payments
of R500,00 he received every month was
his salary increase which was arranged by Mr Venter. At the
arbitration hearing Mr Venter testified on the third respondent's behalf
and corroborated this version. In addition he stated that Mr Strydom,
(the Managing Director of the Hallmark Group) had in fact given him
verbal authorisation to arrange this increase for the third respondent.
10. Mr Venter resigned from the applicant's employ after the payments to
the third respondent were discovered.
11.It is common cause that no tax was paid on these amounts cashed by the
third respondent and it was never recorded anywhere as a salary in the
applicant's records. The applicant held the view that it was fraud and
a charge was laid with the South African Police Services.
12. At a disciplinary enquiry the applicant was found guilty of two
charges and on appeal only on one charge. He was dis missed by the
applicant.
13. There was evidence before the arbitrator that the third respondent
also claimed money for a petrol allowance which exceeded that which he
was entitled to. It was also common cause that the third respondent had
claimed certain cell phone monies to which he was not entitled.
However, the third respondent was not charged with these offences.
14. Mr Venter testified that he never told the third respo
ndent of his discussions with Mr Strydom. According to the third
respondent, he assumed that the manner of
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payment to him of his increase was approved by the
management and there was no need for him to investigate whether Mr
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Venter indeed had spoken to Mr Strydom or any other person of authority.
15.Mr Stry dom was not called by the applicant to corroborate this testi mony.
It was also not disputed that during a short tea adjourn ment in the
arbitration proceedings Mr Brits of the applicant's human resources
department established that Mr Strydom was at home and willing to
testify. It is also indicated that Mr Stry dom would refute what Mr
Venter had said.
16. An application was brought on behalf of the applicant to reopen its case
in order to call Mr Strydom as a witness to the arbi tration hearing.
This application was declined by the arbi trator on the basis that he was
not persuaded what Mr Strydom would testify about and that his testimony
would not make any difference. His reasoning was that the applicant
would have had to prove collusion between Mr Venter and the third
respondent in order to succeed and furthermore, that Mr Strydom would
not be able to shed any light on this aspect.
17. An application, at the onset of the arbitration hearing by the
applicant, to be legally represented was also turned down by the
arbitrator. The arbitrator did not reject the evidence of the
applicant's witnesses but found that on the probabili ties, the third
respondent did not have the necessary mens rea to act dishonestly and to
defraud his employer because he acted with Mr Venter's approval.
18.The arbitrator found that the dismissal was procedurally fair but
substantively unfair and awarded the third respondent compensation equal
to twelve months
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remuneration which amounted to R82 802,28.
The applicant contended that the arbitrator failed to apply his mind to the matter. Broadly
The applicant contended that the arbitrator failed to apply his mind to the matter. Broadly
speaking that was the main attack on the award. The applicant
advanced
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three grounds of review: the first being that it was an irregularity
committed by the arbitrator to disallow legal representation upon a
request to do so. Secondly, the appli cant contended that the arbitrator
committed a reviewable irregu larity in disallowing the applicant to open
its case and call Mr Strydom as a witness to testify on its behalf.
Thirdly, the third respondent contended that the arbitrator's
award is not rationally justifiable having regard to the
evidence before him.
20. I will first deal with the question of legal represen
tation. The matter before the arbitrator was not a complex issue. The
onus was on the applicant to show that on a balance of probabilities the
third respondent was dishonest in receiv ing cheques from the customers
as remuneration.
21.Mr Brits of the applicant's human resources department who represented the
applicant seemed quite capable of representing the applicant and did so
admirably, therefore I do not believe that this was a reviewable ground.
The Act disallows legal representation at an arbitration hearing and
confers upon the arbitrator an onus to when application is made to
refuse or grant the request. On the facts that were before the
arbitrator , my view, he properly exercised his direction in terms of
the Act and there is nothing about his reasoning which suggests that I
should intervene on this ground.
22.Insofar as the second two grounds are concerned, the
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applicant argued that because legal representation was refused there was
a greater duty on the arbitrator to ensure that the applicant was not
prejudiced by the
cant contended the arbitrator
failed to do, and this is borne out by his refusal to have the applicant
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reopen its case and the resul tant award. The applicant argued that the
three grounds were interwoven. With that contention I agree.
23. I will now deal with the submissions of the applicant and the evidence
which was before the arbitrator. Mr Venter was the applicant's direct
supervisor. He gave evidence at the arbitration hearing to the effect
that it was his idea to remunerate or give the third respondent an
increase in the manner described, this was also the
applicant's version. Mr Venter resigned before he could be disciplined.
In all pro bability he had lied about the fact that Mr Strydom had given
him the necessary authority to effect an increase for the third
respondent. In order to prove the charge of "falsely stating payments
(my emphasis) to customers thereby causing a loss to the company". The
applicant still had to prove that the third respon dent was dishonest in
receiving the payments. In order to show dishonesty, the applicant had
to prove that there was some form of collusion between the third respon
dent and Mr Venter. This would be a factual enquiry. Mr Strydom's
evidence, in my view, would have been of little assistance in such an
enquiry. He would only be able to show that Mr Venter was lying by
denying that any increase, but could with certainty prove any collusion
between Mr Venter and the third respondent.
22. In the absence of any facts to support the contention that there was
collusion, I carefully considered whether I
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could interfere with the arbitrator's findings on the basis that the
third respondent should have known that his conduct was dishonest and
could lead to his dismissal. I was also mindful not to substitute what
the arbitrator found with what I would have found.
Whereas one could criticise the third respondent's morals, particularly if one had regard
Whereas one could criticise the third respondent's morals, particularly if one had regard
to the fact that he claimed in excess in respect of cell phone and
petrol claims, the third respondent nonetheless had the support of his
supervisor for receiv ing the payments. It was his supervisor's idea in
the first place to remunerate him in this peculiar way. Furthermore,
the third respondent once a month cashed a cheque for the same amount at
his employer's
own cashier, for all to see. Everyone knew about it. One could perhaps
infer collusion and dishonesty if several cheques for different amounts
were cashed at irregular times at a bank or at some other venue. The
fact that the third respondent did not second guess Mr Venter and ought
to have ascertained whether he was entitled to the increase, does not
render the third respondent’s receipt of the payments, a dismissable
offence.
24. In my view, the refusal to let Mr Strydom testify could only have
been irregular if it prevented a fair trial of the issues. (See:
Goldfields Investment Ltd & Another v City Council of Johannesburg &
Another 1939 TPD 551 at 556, and Eastgate Agricultural Cooperative v Du
Plessis & Others (2000) 21 ILJ 1335 (LC) at page 1342 paragraph 33 to
35). I do not believe it did.
25.It would indeed have been very difficult for the arbitrator to find a
particular dishonest state of mind on the part of the third respondent
on the facts which
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were before him. Mr Venter was to blame for the
situation and I assume that is why he resigned. But on the facts before
the arbitrator, the applicant's offence was not dismissable, due to the
third respondents ignorance of Mr Venter’s authority or due to a lack of
mens rea as found by the arbitrator. In the circumstances the
application must fail.
26.I therefore make the following order, the application is dismissed with
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costs.
____________________
Revelas J
Obo Applicant: Adv. C.E. WattPringle
Instructed by: Deneys Reitz Att.
(Mr D. Hayward)
Obo Respondent: Adv. A.J.P. du Plessis
Instructed by: Hofmeyr Attorneys