Toyota S.A. Motors (Pty) Ltd v Commission for Conciliation Mediation and…

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Toyota SA

South Africa: Durban Court, Durban

Toyota Motors (Pty) Ltd v Commission for Mediation and Arbitration and Others (D D276/10) [2012] ZALCD 7; 34 ILJ 179 (LC) (6 June 2012)

There are two applications before the one is to review and set aside the arbitration handed down by the second on 23 March 2010 under number KNDB7366-09 (‘the the other is to make the award an of court.

Brief Chronology

Mr C who is the third respondent in the review was dismissed on 24 March 2009 for an unauthorised repair to a company In terms of the applicant’s disciplinary making an unauthorised repair to a warranted dismissal even for a offence. According to the company, the is important because when a vehicle was resold to a third the company had to provide a complete of the vehicle, and obviously if it was unaware an un-authorised repair had been it might prejudicially affect its and might compromise the safety of the

Evidence was tendered by the company other employees had been for making unauthorised repairs to vehicles. Significantly, in those the unauthorised repair had only discovered by the company when the was inspected at some later

Barendse started working for the on 1 May 2004. He held the position of Coordinator and Trainer at the applicant’s Repair Training Centre. One of the Barendse enjoyed as a co-ordinator was the use of a car for his personal use. In this Barendse had leased a silver sedan from the applicant to the terms of the TSA Fleet Division, Controllers User Guide.

On 1 November 2008, Barendse the vehicle at a residential complex an automated gate closed on the front fender and bumper of the Barendse pushed out the damaged so the car could be driven. As a result of the or as a result of manipulating the fender, the on the fender was chipped. The next day sanded down the damaged and put primer on it to ensure there was no rust damage. He made no to paint over the primer and the was readily visible.

On 3 November, left Durban early to his mother, who was apparently seriously During his journey, he was phoned by the investigator, Mr Lovell, who enquired the accident. Mr Lembede, an investigator at the had been informed about the by the caretaker of the premises where the had been damaged by the vehicle. had provided the caretaker with all his details including his work After discussing the accident Lovell and with the firm’s department, Barendse said it had been agreed he should the vehicle in when he returned leave. However, he also to his line manager, Mr de Witt, who him to return immediately. He did so even he had already reached Umtata by stage. He arrived back in at 17h00 and took the vehicle to the department the following day. the fender was repaired by an authorised company.

In a statement made by to the security and loss control of the company, he said, amongst things:

It was difficult for me to be mobile so I the fender off and repaired and primed it so it would not rust. I know what I did is against company and procedure and it won’t happen On Monday I called fleet and was advised to bring vehicle for which I did on 04/10/08. They told me I was not supposed to tamper company property and that I was for the excess.

On 19 February 2009 de issued Barendse with a warning for making unauthorised to the vehicle. The written warning by de Witt did not specifically refer to the in the terms it is described in the disciplinary but the description of the offence set out in the warning is clear. The details of the offence described in the warning form as

On Saturday, 1 November 2008 had a sliding gate closed on his vehicle. In order to drive his he bent the fender back position. He then primed the to prevent rust without authorisation from myself. The was presented on the Monday for inspection. any repair further than is to drive the vehicle must be prior to repair.

It is understood this was done to prevent as he was on leave that week, but cannot be accepted.

In a memorandum 24 February 2009 and headed of unauthorised repairs to company prepared by de Witt for the company’s IR de Witt detailed his investigations and the following under the heading

Company policy compels an to report an accident and incident to TSA within 48 hours (. ). Mr Hill’s call to Barendse on November 3, within 48 hours of the incident absolved Barendse from obligation.

One is left to ponder Barendse’s ad hoc’ partial was the beginning of a conscious and deliberate to undertake in unauthorised repair to a vehicle, or whether it is, as Barendse an honest and genuine attempt to unnecessary corrosion taking

Having presented his vehicle for in a primed condition, one might that there was no attempt hide’ the repair. However, one is left to question whether would have presented his for inspection had he not received a phone from Mr Hill. It would be difficult to prove that would not have reported the and/or presented his vehicle for at TSA Fleet within the specified frame. I therefore can only that Barendse has no case to in this regard.

However I the application of primer to the unit as an measure that should not been undertaken without either from TSA fleet or Given Barendse’s position TSA, the application of primer may be as a ‘minor’ repair in his eyes, I judge his action to be ill considered and

Barendse has, on numerous contacted myself over informing me of work-related matters. of the opinion that he should sought authority to apply before doing so. I can find no why he made no attempt to contact me. himself can offer no explanation.

It is therefore my intention to issue with a written warning failure to follow company and/or procedures’.”

It is apparent de Witt was not candid with the HR because he had already issued the to Barendse a few days before expression of his ‘intention’.

On 9 March the industrial relations department of the advised Barendse that the relating to the matter had been and set aside and that a fresh would be convened with an presiding officer. The notice to was specifically headed “ Re: of enquiry unauthorised repairs to .” The letter also the matter will be heard with an independent presiding He will be advised of the time and for the disciplinary enquiry.

Barendse was with a notice to attend a enquiry on 12 March 2009. The he was called to answer was: unauthorised repairs to a company under your control in of company policies and procedures on 02. 11. .

Summarising de Witt’s evidence at the enquiry, the chairperson noted in his discussions with Lembede, de had said he did not regard it as a serious and Barendse had not made any attempt to the damage. The chairperson also that de Witt used his prerogative and issued Barendse a written warning. De Witt had testified that he was asked to a memo to the HR manager on which the IR would comment, following a he had with the IR and HR managers. De Witt that after two days he the IR manager, Ms Edy, and she indicated she had no with his actions. De Witt confirmed that in his opinion was not trying to deceive the company and had to contact it regarding the incident.

In by the time de Witt had advised Edy on 24 2009 of his ‘intention’ to issue with a written warning for to follow company standards or alternatively, procedures, he had already the warning to Barendse on 19 February At the arbitration, Edy claimed that de had not told her that the fender had pushed out: he had merely that Barendse had applied primer to protect an area of where the paint had been

Dladla was a witness at the second but not at the arbitration. He confirmed the policy of the regarding repairs to vehicles. He confirmed that an emergency was one that had to be made to allow the to be used again, but he was not in a position to say if repairs were justified in instance. He accepted that had not tried to hide the damage and had honest in his dealings with

Barendse objected to the enquiry because he was being subject to jeopardy by being disciplined for for which he previously been and issued with a warning His protest was to no avail and the chairperson with the enquiry. In his findings, the chairperson accepted that Barendse did make unauthorised to the vehicle he did not try to hide it. However, Barendse did not lead evidence in to give the chairperson an opportunity to the evidence he was satisfied that was not enough mitigating evidence to a deviation from the sanction of The chairperson was clearly influenced by the that any deviation from the sanction of dismissal would the severity attributed by the firm to kind of misconduct. Consequently, he Barendse’s services.

Barendse against the finding on the basis the disciplinary process had been unfair and that he had been subjected to a second disciplinary in respect of the same misconduct. The was dismissed. On the question of Barendse’s of double jeopardy, the appeal maintained it was the company’s prerogative to a decision if the company felt the was too lenient.

At this point it be remembered that no mention was in the disciplinary enquiry of any welding having been made to the even though the IR specialist, Ms said in her evidence at the arbitration they were aware of the on the vehicle before the disciplinary had been convened. However, it she must have been to the arbitration hearing and not the second enquiry.

From the evidence of and Edy, a principal reason for to convene a fresh disciplinary was that de Witt had not consulted the IR Department before issuing a Above the list of categories of and the associated disciplinary action, appears in the section of the Disciplinary dealing with transgressions, the is stated: “ Should any from this code be the Industrial Relations Department be informed prior to taking a ”

Another primary of the IR department was that the sanction was too in relation to the company policy on repairs. Effecting unauthorised to company vehicles was classified as a 4 transgression, which carried a of dismissal even for a first Although Barendse had been with this, de Witt him guilty of the less serious of failing to follow company and/or procedures. This was classified as a category 2 transgression a written warning as the sanction for a offence.

According to Edy a further for the second enquiry was that the done by Barendse had been extensive than what de conveyed to her when they the matter together with the HR on 24 March 2009. In this she testified that she was under the that the employee had simply a bit of primer to protect an exposed of chipped paint from whereas the fender had been out and panel beaten.

Edy, who had one year’s service at the firm, there was a recognised allowance for so-called ‘emergency repairs’ could be undertaken so the vehicle be driven to an authorised repairer. Killian, who had worked at the firm for about twenty years, that such an allowance was The applicant’s representative at the commencement of the also expressed the view there were repairs could be classified as ‘emergency but contended that the repairs were not of an emergency nature. had said it was necessary to bend the back as it had caught on a tyre and the could not be driven without it back.

One other consideration affecting the to hold a fresh enquiry was the IR department had been advised the majority union at the workplace was an interest in the case. Barendse not to have been a member of the The union had apparently expressed about the case and was watching to see the final outcome would be. It the union believed that the might have been too leniently vis-a-vis other who had been dismissed for making repairs to their leased

From a policy perspective, the IR was of the view that the misconduct in Toyota’s code made no to whether or not the employee in question had to conceal the repair, and therefore it was that Barendse had made no to conceal the repairs in this Despite interpreting the offence as one of liability, Kilian did concede the persons, whom he could being dismissed for making repairs to vehicles, were whose unauthorised repairs only discovered when the were returned to Toyota.

At the hearing new evidence on repairs to the car was led by a negotiator employed by Alexander Mr Lovell, who processes Toyota’s He testified that when the was returned after a month by the panel beaters which had it, it was noticed that the fender was The repairer was summonsed and when the bonnet was opened it was realised the fender had been welded the wheel arch of the vehicle. to Lovell’s hearsay evidence, the representative said he had not noticed the before. Welding work did not appear on the invoice from the company.

Lovell claims he had shown the welding to Barendse, in presence, and Dladla had then Barendse that this was to company policy and there be an investigation into it. Contrary to testimony, Barendse was adamant he was not shown the alleged welding on the vehicle. He pointed out that if work had been done on a it could just as well been done by panel who repaired it. Barendse could recall that Lovell had made a remark that was welding on the fender.

No witness was from the repair company to that the welding had been before it conducted repairs. The representative at the arbitration pressed on how it could have happened the fender had been welded the wheel arch of the vehicle if he had the fender to panelbeat it, unless he had welded it himself. Barendse that even though he had the to do the welding, he had neither the time nor the to make a welding repair weekend. Barendse did not investigate the because he assumed that the had been done by the authorised so there was no reason for him to concern with it. He assumed that the repairs had been done to the of the applicant’s fleet department.

The award

The arbitrator dealt the matter in two parts. Firstly he whether or not the decision to hold a hearing was fair. Secondly, he whether the decision to dismiss the respondent for making an unauthorised was fair.

The fairness of the disciplinary

According to the arbitrator, the applicant’s for holding the fresh enquiry, Barendse had already been with the warning by de Witt, was Firstly, de Witt had not advised the IR that he was intending to deviate the guideline on the sanction of dismissal for the in question. Secondly, by failing to Barendse, de Witt had not followed the sanction of dismissal contained in the The arbitrator found that of these justifications were to warrant the fresh enquiry led to Barendse’s dismissal.

The arbitrator the dictum in Branford v Metrorail (Durban) others [2004] 3 199 (LAC) . in which the Labour Court held that, in the of the matter before it, . (i)t manifestly be unfair for the company to be with a quick, ill informed and decision of its employee who misconceived the of the matter and hurriedly took an decision leading to an equally penalty. 1 The arbitrator found in this matter de Witt did not a decision which was ill informed or nor had he misconceived the seriousness of the matter. He that de Witt’s general Mr H McAllister, had believed that the decision de Witt had taken was It is also clear from the evidence at the arbitration that was not willing to withdraw the warning instructed to do so in writing.

The arbitrator that the real reason for the second enquiry was that the was unhappy with the sanction of a and wanted a second opportunity to the preferred sanction of dismissal. he did not attribute any bad faith to the applicant, he accepted that Kilian believed it had the right to set aside the warning. The arbitrator qualified his somewhat by saying that if de had not been honest when he the warning to Barendse a second might have been However he was persuaded that de was an honest witness and had issued the in good faith. In any event, he the warning was substantively fair. The then said at paragraph 23 of his

Having found that the hearing was unfair, this normally complete the award and the would be reinstated. However I am there are factions within the who consider the sanction of the first unfair. I will, therefore deal with what be the sanction even if there had no previous hearing.

From the just quoted, it is apparent the arbitrator treated the very of the fresh enquiry as something made the dismissal substantively irrespective of whether or not a sanction of was appropriate after hearing the at the arbitration. His implicit finding procedural unfairness made the substantively unfair, appears in the mind to have been a basis for finding that the imposed by de Witt was fair on its own

The fairness of the sanction of dismissal

The noted that the applicant had the offence in the disciplinary guideline as a four offence which dismissal. The applicant had emphasised the of the rule prohibiting unauthorised because it was important for it to have a history of the vehicle when the was sold. Unauthorised repairs also compromise safety of a vehicle.

The arbitrator accepted of Kilian that a number of had been dismissed for making repairs to their vehicles, but he that in those cases the had not been disclosed and had only detected when the vehicles inspected at a much later when the vehicles were to the firm.

On the question of the gravity of the the arbitrator concluded that the of dismissal in the guideline was intended to be to cases of employees who deliberately unauthorised repairs. In Barendse’s there was no prejudice the company suffer because it knew of the and the vehicle was repaired by an approved In the circumstances, the arbitrator found a sanction of dismissal was totally and the original sanction of a first warning was in order.

The employer that Barendse had been in a number of respects, namely it was improbable that the fender have been damaged to an extent that it would damaged the car tyre; the welding on the vehicle could not be reconciled the applicant’s statement that he pressed the fender back shape and put some primer on the paintwork, and he failed to disclose the immediately to his superior, de Witt, at the of the incident, but only did so after he had contacted by the investigating officer he was en route to Port Elizabeth.

the arbitrator was clearly impressed his honesty as a witness. He also that there was evidence de Witt that the fender indeed have damaged the and could have been by the gate as alleged by Barendse. A that weighed heavily the arbitrator was that Barendse no attempt to conceal the damage to the nor did he attempt to conceal his identity the caretaker of the building where the was damaged. He accepted that could have been distracted by concern for his mother, who was ill, and that might affected his decision not to phone his immediately.

The arbitrator then the significance of the evidence of the alleged welding on the vehicle. Much was of this by the applicant in the review On the evidence, he concluded that had not done the welding on the vehicle, as he had the time nor the tools nor the motive to do so. He noted that even the of the disciplinary enquiry had found Barendse did not attempt to conceal the he had made to the fender.

The arbitrator the company to retrospectively reinstate to the date of his dismissal.

Grounds of

The applicant attacks the arbitrator’s in a number of respects. It submits the arbitrator’s primary finding there was a second enquiry rendered the dismissal unfair was because, amongst other there had in fact not been an enquiry. The basis for this was that the written warning had invalidly issued at a time de Witt was still in the process of authority in terms of the disciplinary under the advice of the Industrial department to discipline Barendse. The claims that the arbitrator to have had regard to the evidence of on this issue.

In its supplementary the applicant raised additional to justify the full disciplinary It argued that the written was for a lesser charge, and that de Witt was liaising with the IR he did not convey the full facts of the to it. In particular, it argued that de had not received all the facts from and he had not considered the evidence of the welding, meant that the fender not have been removed as by Barendse.

The applicant also that the arbitrator’s finding on the of the dismissal was distorted by his alleged with the question of Barendse’s As a result of this, the applicant that the arbitrator fundamentally the essence of the charge which was about whether or not an authorised had been made, and not with any dishonesty. In effect, the applicant that it had a right and a need to an absolute prohibition on the un-authorised of vehicles, because of its potentially liability to third parties it later sell its vehicles to.

trying to downplay the significance of honesty as a relevant factor, the also argued that it was from the nature of the repairs that an attempt was made to them. Therefore, in so far as honesty was a issue in charactersing the misconduct, conduct was sufficiently dishonest to his dismissal. It is apparent from the formulation of this ground of that it was also struggling to the issue of dishonesty from the of unauthorised repairs: on the one hand it to emphasise a strict liability based on the policy prohibiting repairs, on the other it wanted to Barendse’s conduct in the same as others who had made unauthorised and had not disclosed them.

In a related the applicant also claimed the Lovell’s evidence of the inspection of the with the repairer, cast doubt on Barendse’s version. The argues that the arbitrator to take this into when he wholeheartedly accepted version. It submits that he to have made an adverse finding against Barendse It maintains the arbitrator overlooked the between Barendse’s claim he removed the fender to panel it, yet Lovell noticed that the was welded to the wheel arch, meant it could not have removed as Barendse claimed, he welded it back on.

The applicant claims that the arbitrator ignored the evidence of Edy. It that her evidence went to the of what the arbitrator had to consider in to De Witt’s evidence, namely his and the true nature of the representations by Barendse to him, on which he had the written warning. In particular, the notes that De Witt had to Edy that he was intending to discipline when he had already done so.


The arbitrator’s finding there was a second hearing the dismissal unfair

It is difficult to fault with the arbitrator’s that Barendse was subjected to a hearing on the same issue. In the closing argument at the arbitration it even stated in its written of argument: “ The fact the employee was afforded a fresh before another chairperson is fair.” (emphasis added). a sanction had been imposed on

The real issue is whether or not the enquiry was justified. The company to rationalise the second hearing on the that the sanction imposed by de potentially exposed it to a claim of treatment, and this is what it ‘reviewing’ the first sanction a fresh enquiry. The arbitrator was to the applicant’s argument that the invalidity of the first warning because de Witt had not complied the requirement of submitting the matter to the HR before determining that the was considered by the arbitrator, as paragraph 18 of his makes clear:

“ In of its first claim that a second hearing was fair, the pointed out that its procedures had not followed. Inter alia the who had issued the first warning had not procedures in advising the Industrial Department that he intended from the Guide which down the applicant should been dismissed for doing repairs. Mr de Witt who had issued the written warning, had also to follow the Guide in ensuring the was dismissed.”

Although the code that the manager must the IR department of the intended sanction if it deviates from the code, the itself makes it clear the decision still rests the manager. Nothing suggests he needed ‘authorisation’ before he impose a lesser sanction the one prescribed by the code. It would be odd if it otherwise, because then it mean the sanction might be by someone other than the without that person heard the evidence, and the chairperson have no discretion in determining an sanction irrespective of mitigating and factors. The disciplinary code also does not contain any on the powers of managers to impose action and holds managers and of enquiries responsible for establishing and deciding on appropriate disciplinary Thus, even if he had not notified the IR of his intention in advance of actually the warning, there is nothing in the to suggest it did not lie within the scope of his to do so.

Kilian did testify that a existed to the effect that a enquiry had to be convened in the event an employee is charged with which could result in or a final written warning. no evidence of this directive was The existence of the directive was also not by any other witness nor did it arise in of de Witt.

However, while I am not that the requirement to inform the IR of the sanction he was intending to impose he did so, made the warning invalid per se . I do that his failure to do so thwarted the of mechanism which, in principle, was to reduce inconsistency. In the circumstances, the was deprived of an opportunity to use the mechanism and was unfair. By so saying, I do not want to the impression that the IR department was of exercising a veto over the choice of sanction: that is an which the proviso cannot

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Although the arbitrator was mindful of issue as mentioned above, his on the fairness of the second enquiry exclusively on the genuine character of the enquiry and the fairness of the sanction by de Witt. He appears not to have the prejudice to the firm of being of using the regulating mechanism in the proviso. If one considers the broader for holding a fresh enquiry was emphasised in Blanford’s case namely that the test for when a fresh enquiry can be is a matter of fairness and not whether circumstances exist 2 — I that the employer did make out a that it was fair to conduct a enquiry at the time, given de failure to advise the IR department of his to deviate from the ordinary before taking a final

The arbitrator’s failure to consider aspect of the employer’s justification for a hearing, deprived the employer of a hearing on the issue of the fairness of the enquiry.

In view of this strictly speaking it is not necessary to some of the other grounds of relating to the finding that the hearing was unfair. However, the issues raised under grounds of review have bearing on the arbitrator’s findings on the fairness of the dismissal and the grounds of relating to that finding, I them below.

The arbitrator the different subject matter and under consideration in the fresh

On the matter of whether the arbitrator considered the supposedly distinct matter of the two enquires, it is true de Witt found Barendse on a charge of not complying with standards and, or alternatively, Nevertheless, in both inquiries the was charged with the same of making unauthorised repairs to a vehicle. It was for this offence he was dismissed. In the circumstances, the arbitrator be criticised for not making a distinction the subject matter of the two enquiries, as was none to be made on this Barendse faced the same sanction in both instances. The that he was found guilty of a charge on the first occasion not change the substantive nature of enquiries. In fact, in finding guilty of not complying with policies and procedures, de Witt not have reached that without effectively finding Barendse had made unauthorised

The arbitrator failed to consider de Witt did not convey all the facts to the IR and he was unaware of the welding of the fender

It is de Witt concealed from the IR the fact that he had already the warning. The applicant also that when de Witt was with the IR department he did not convey the facts of the incident to it. This to the fact that the fender had pressed back into and not merely that some had been used to fill in a Edy complained that in her meeting de Witt on 24 February 2009 he did not the extent of the repair to her. as she herself said, whether she met with de Witt or not, it did not at that stage because the had already been issued. any misrepresentation that might been made to Edy by de Witt the extent of the repairs done by this had no bearing on whether the had been issued in ignorance of the of the repairs done. De Witt was well aware that the consisted of pressing out the panel and the dent, as evidenced by his own letter to J of the IR department which he issued the day he met Edy.

It is true de Witt was of evidence of the fender being to the wheel arch at that Assuming the welding had been by Barendse, if de Witt had been aware of this at the time he the incident, I agree he would been less likely to believed Barendse’s version he had merely performed some repairs to minimise further and make the car drivable. However, the work was only raised for the time at the arbitration, and therefore it not logically have been a which caused the company to the fresh enquiry.

In passing, I that it is remarkable that raised the issue of welding on the arch by the time the fresh was held, given that the repairs appear to have made in November or December and the fresh enquiry only place in March 2009. Lovell testified that had said the matter would be but even though some elapsed from then the fresh enquiry took there was no evidence it was pursued Had it been, it is reasonable to suppose it have featured prominently at the enquiry.

I have already with the reason why the arbitrator’s on the fairness of the fresh enquiry be set aside. It also raised ground seeking to rely on an between Barendse’s matter and the of BMW (SA) (Pty) Ltd v Van der Walt 21 ILJ 113 (LAC). In the BMW matter the employee in had originally been disciplined on a charge in circumstances where he that the employer was labouring the mistaken impression that removed from its premises to him, whereas it still to the company. However, in this the extent of the repair known to de was the same as that which was to the chairperson of the fresh enquiry, that the fender had been out and primer applied to the dent. The inquiry was not instigated on the basis the new evidence of the welding had come to The evidence of welding only to light in the arbitration. Consequently, was no reason to set aside the finding on the of the second enquiry on this

Evaluation of Barendse’s credibility

In a ground of review, the applicant claimed that the undisputed of Lovell’s inspection of the vehicle the repairer, cast serious on Barendse’s version. The applicant the arbitrator failed to take into account when he accepted Barendse’s version. It that he ought to have an adverse credibility finding Barendse instead. The applicant the arbitrator overlooked the discrepancy Barendse’s claim that he the fender to panel beat it, yet noticed that the fender was to the wheel arch, which it could not have been as Barendse claimed, unless he it back on.

The arbitrator did assess credibility. What was decisive for him was the primer had not been painted and the applicant had not attempted to conceal his details from the caretaker of the where the damage was done to the The arbitrator obviously felt if Barendse had intended to finish the himself so they would not be he would not have given the details to the caretaker.

It is true the did not specifically deal with the issue in relation to Barendse’s but he concluded that he had not performed repairs on the vehicle because he had the motive, nor the means, nor the time to do it. In regard, two aspects of the evidence on the should be highlighted. There was no adduced to contradict Barendse’s that he did not have welding Further, his evidence that the was unbolted and re-bolted to the body it had been pressed out, was by Mr Heath who assisted him, the hearsay evidence of Lovell on the panelbeaters performed the welding on the was uncorroborated.

It is correct as the firm’s Mr Maeso, put to Barendse that the two possibilities were that he had the welding or the panel beaters had so. Lovell said that the would have charged for the which was outside the scope of the The quotation from the panel indicated that repairs to be done to the fender and the bumper. the item ‘strip assemble’ on the an entry for parts appears, might also suggest the panelbeaters would not simply left the fender panel in If they removed the panel the welding could only been done by them.

In the the issue of when the welding was was an issue to be determined on the probabilities. The would have it that credibility should have determined on the basis of the probabilities on the question. The arbitrator clearly that the employer had failed to as a matter of probability that had done the welding. It is possible, he have concluded otherwise, but his of the probabilities on whether or not Barendse or the did the welding is not irrational on the evidence him. He did not have to decide who was but merely whether the firm’s was the more probable explanation. I do not his conclusion on this issue was one no reasonable arbitrator could reached, nor that his assessment of credibility was unreasonable.

Arbitrator’s consideration of Edy’s

The applicant contends that if the had considered Edy’s evidence he have been compelled to an adverse credibility finding De Witt. The reasons it relies on are set out in [45] above.

The principal of de Witt’s evidence to the matter was Firstly, it concerned whether he disciplinary action in terms of the Secondly, it related to whether he had his intention to issue the warning the IR department before he did so. Thirdly, it whether he had concealed the extent of the to the vehicle, which might justified the firm holding a enquiry.

All these issues been canvassed already in [46] to [58] above. In the of that analysis, it is not clear to me Edy’s evidence could led to different conclusions being on those questions. I am not persuaded that the arbitrator’s failure to expressly with Edy’s deprived the applicant of a fair of evidence relevant to the determinative

The arbitrator’s independent findings on the

As mentioned, the arbitrator considered the of whether the sanction of dismissal was quite apart from his that the holding of a second rendered the dismissal substantively in his view. The applicant also that the arbitrator was fixated on there was an element of dishonesty in act of making repairs to the vehicle, he ought to have realised was irrelevant to the charge of making repairs.

The arbitrator firstly the claim that dismissal was the appropriate sanction. He pointed out the disciplinary code was intended to be a to fair and progressive discipline as in clause 2 of the Guide. He further that the sanction of dismissal was to be applied to employee’s who deliberately unauthorised repairs, whereas in case the prejudice the rule was to prevent namely the risk of the selling vehicles without aware of unauthorised repairs to them was not present. On this he found the written warning by de Witt was the correct sanction.

It is to note that the arbitrator did not that the rule against unauthorised repairs only if such repairs were not He was dealing with when it was for the sanction of dismissal to be imposed a prior warning being Given the evidence that employees who had been dismissed for the rule were employees unauthorised repairs had been much later by the company, I say his finding was unreasonable.

One might whether or not the arbitrator should found that the offence of Barendse was found guilty have been altered a breach of company policies and to the more specific charge of unauthorised repairs, but as discussed the finding that he committed a is premised on a breach of the rule unauthorised repairs and for the purposes of discipline that fact hardly be ignored if he were charged for making unauthorised This is a matter on which two might reasonably differ. the fact that de Witt issued a written warning than a final written as a measure of the seriousness of the offence, is on which arbitrators may reach conclusions without being

In the circumstances there is no reason to with his findings on substantive or the relief of reinstatement which the ordered.

Costs Relief

the applicant is only successful to a extent and the substantive findings unchanged, I belief it is fair and for the applicant to pay the third respondent’s

The second respondent applied for the to be made an order of court. is no reason not to make the award an of court subject to the substitution of which are set aside for the reasons above. Obviously, in respect of the award of backpay, the amount in the award dealt only the backpay until the date of the which was a period of one year, but it from the order of reinstatement he is also entitled to claim from the date of the award the date of this judgment.

It is that:

The second respondent’s that the third respondent’s was procedurally and substantively unfair, in so far as the respondent was subjected to a second hearing, are set aside for the reasons set out in [50] to [52] above, and are with a finding that the of a fresh enquiry, in the circumstances, was not unfair and did not result in the third dismissal being substantively for that reason.

The application to and set aside the second respondent’s in so far as he found that the sanction of was unfair on the alternative basis set out in 24 to 42 of his award is dismissed.

The application to and set aside the second respondent’s in so far as the relief he awarded and the reasons which are set out in paragraphs 43 to 51 of his award, is

The applicant must pay the third costs.

Subject to the substitution of the respondent’s findings set out in paragraph a above in this order, the respondent’s award is made an of court.


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Toyota cars catalog with specifications, pictures, ratings, reviews and discusssions about cars Toyota.