Toyota South Africa Motors (Pty) Ltd v Radebe and Others (DA2/99) [1999]…

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South Africa: Labour Court

Toyota South Motors (Pty) Ltd v Radebe and (DA2/99) [1999] ZALAC 42 (3 1999)

___________________________________________________________________________

ZONDO AJP

[1] This is an appeal against a of the Labour Court dismissing an brought by the appellant to review and set an arbitration award by the third in a dispute between the appellant and the respondent. I do not intend setting out the which gave rise to the as those have been set out well in the judgement of my Colleague, JA, which appears after judgement.

[2] I have had the pleasure of my Colleague’s judgement. I agree both his conclusion as well his for that conclusion. However, I it appropriate to add to his reasons. My addition with the reasoning of the commissioner led him to the implied conclusion that the was unfair.

[3] It appears to be necessary to the addition that I wish to in order to demonstrate that the ‘s reasoning in this case what Schreiner J, as he then would regard as latent irregularities. As Schreiner J pointed correctly in my view, that is the of gross irregularities which are ascertainable from the reasons by the decision- maker for his decision.

of the Commissioner’s reasoning

[4] A proper of the commissioner’s award in this reveals, in my view, that the if not the only, reason why the commissioner (by implication) the finding that the was unfair was the commissioner’s belief dismissal was not the only sanction to the appellant. The questions which out of this approach of the commissioner What does it mean to say was not the only sanction available to the Can it ever be said that is the only sanction available to an in any given case? If yes, can this be said to be the case?

[5] It be borne in mind that the did not qualify what he said in any way by to, for example, reasonableness. In other the commissioner did not say that he believed dismissal was not the only sanction available to the appellant. The commissioner’s needs to be tested.

[6] If an employee is of the most serious misconduct and he has in the employment of his employer for a short would the commissioner find the of such employee in such a unfair on the basis that was not the only sanction available to the or would he find the dismissal because the misconduct is the most one can think of? If the same employee had a service such as thirteen of service, but he had committed the most misconduct imaginable, and the employer such employee, would the have found the dismissal on the basis that dismissal was not the sanction available to the employer or he say the length of service renders the unfair even if the misconduct was the serious one could think of? below I consider specific


[7] Let us imagine a case where an rapes a female co-employee on the premisses (during a night and the employer dismisses the culprit. the commissioner find the dismissal because dismissal was not the only available to the employer? To take one step further, let us imagine the female employee who is the victim of a rape happens to be the daughter of the director of the employer company. The has 13 years of service and has a clean If the employer dismissed that would the commissioner find the unfair because dismissal was not the sanction available to the employer?

[8] example may still be warranted. An commits fraud involving an of R50 000,00 against his employer. The has 13 years of service and has a clean Would the commissioner find the of that employee unfair on the that dismissal is not the only available to the employer? Let us take a where an employee is guilty of one of the managers in a company in circumstances he has service of 13 years with a record but in this case he the manager for absolutely no reason. He has no or acceptable explanation for his misconduct. the commissioner find his dismissal because dismissal was not the only available to the employer?

[9] I am well that the examples I have are extreme cases. However, I done this deliberately not only do I regard the case the commissioner in this case had to with as an extreme one but the commissioner regarded it as an extreme one. I say because, in his award, he also the first respondent’s dishonesty was wilful and premeditated.

[10] In my gross dishonesty must as one of the extreme cases of serious which an employee may make guilty of, and, which an may have to deal with, in a It seems to me that the effect of the reasoning is that no matter how the misconduct committed by an employee is, an cannot dismiss such if dismissal is not the only sanction In my judgement that is absurd.

Quite apart from the that it is not clear when, on the reasoning, it can be said that is the only sanction available in any case, it is not our law and has never been our law if an employer dismisses an employee, he demonstrate that dismissal was the sanction available to him if the dismissal is to be as fair. This must not be with the principle that must be a sanction of last That is usually said in the of the corrective nature of progressive and it has never been suggested that approach precludes the of an employee for a first offence such offence is of a serious

[12] Even the Code of Practice on dismissal under the Act dismissal for a first offence in the situation. The Code goes on to examples of serious misconduct. One of the it gives is that of gross In such a case the Code dismissal for a first offence not be inappropriate.

[13] The Commissioner did to the provisions of the code which say I have just said in the paragraph. However, soon quoting the Code, the commissioner this was a case of willful and gross dishonesty, which the respondent nor the CCMA should When, later on, the commissioner the dismissal unfair, one would expected that, in the light of statement by him, he would how he reconciled such a finding his acceptance that this was of a gross nature which had premeditated, was wilful and which the employer nor the CCMA should However, he did not explain this. The of this is that his implied that the dismissal was unfair is completely unexplained when against that statement.

After carefully considering the reasoning and reading his award and over again, I still no idea what the commissioner by saying dismissal was not the only available to the appellant. The closest I can of is that he meant that the committed by the first respondent was not serious to justify his dismissal. If is what he meant, then, in my it would contradict his earlier that this was a case of dishonesty. As the commissioner had described the respondent’s dishonesty as gross, he have found the misconduct serious.

[15] Furthermore, the said that the first “made one error in thirteen of employment for which he was contrite.” statement suggests that the may have seen the length of of the first respondent as a mitigating even in the case of so serious an Although a long period of of an employee will usually be a factor where such is guilty of misconduct, the point be made that there are acts of misconduct which are of a serious nature that no of service can save an employee who is of them from dismissal. To my one such clear act of misconduct is dishonesty. It appears to me that the did not appreciate this fundamental

[16] I hold that the respondent’s length of service in the of this case was of no relevance and not provide, and should not have any mitigation for misconduct of such a nature as gross dishonesty. I am not that there can be no sufficient factors in cases of dishonesty nor am I dismissal is always an appropriate for misconduct involving dishonesty. In my the moment dishonesty is accepted in a case as being of such a degree as to be described as gross, dismissal is an appropriate and fair

[17] Another factor the commissioner seems to have to be a mitigating factor in addition to “clean” service is that, in the view the first respondent was about his misconduct. There was no for that finding. Whether or not the respondent was contrite depends on or not his version or that of the appellant be accepted as true on whether, the first respondent finally that his hi-jack story was a it was because, as he has suggested throughout, his got the better of him or whether, as the appellant he had realised that his story had discovered to be so highly improbable he could not persist in it.

[18] The believed that the reason why the respondent told the truth he did was that his conscience got the better of A court of appeal or a review will not lightly overturn a of fact made by a trier of who has had the benefit of hearing and seeing in the witness box except in certain cases. One of such cases is the probabilities clearly point the way. In my view this is a where the probabilities in support of the contention that the reason why the respondent told the truth was he realised that the game was up are so that this court be justified in interfering with the finding in this regard.

The first respondent had had a lot of opportunity to clean on his own and tell the truth if his was troubling him. The accident had around 17h00 or so on Sunday the 29 th 1997. After a whole sleep, he had an opportunity on Monday of changing his mind. He did not. He had the day on Monday the 30 th June 1997. he had not changed his mind. He had another sleep and an opportunity to reflect on his and decide not to persist with the He did not decide to come clean. On the 1 st July 1997 he had the whole day to clean and yet he still did not do so. He had another sleep on Tuesday night so first thing on Wednesday he could approach the appellant of his own, come clean. He did not do so.

By the time Mr Muller took the respondent to the spot where he had the vehicle, the first respondent had not clean. The first respondent did not on the way to the where he had abandoned the car tell Mr the truth. It was only when he was with the reality that the had been discovered and it was standing in of the two men with the key in the ignition and he was once asked to give an explanation he, for the first time, told the In the light of the above the probabilities support the version that the respondent’s telling the truth had to do with him being troubled by his and had everything to do with him having that his false story had discovered.

[21] This finding has implications for the first respondent. One of is that, notwithstanding his gross and his attempt to defeat the ends of with his hi-jack story, the respondent still continued to be to the appellant by falsely maintaining the reason why he told the truth was his conscience could not let him continue to lie and by saying precisely that, he was continuing to lie to the appellant.

[22] Not did the first respondent seek to the appellant in regard to this mentioned aspect, but, he has sought to mislead the Labour as well as this Court. I say because in par 4.10 of his answering in the review application he repeated his lie himself having told the because he could no longer lying.

[23] Quite from the first respondent’s lie being contrite and about prompted him to tell the truth, is another statement which the respondent made in the arbitration in my judgement, is clearly a lie. In his of the first respondent’s evidence in the proceedings, the commissioner says, other things, that the respondent testified that “ he that his company vehicle was a asset and therefore he parked the car in he considered to be a safe area.” The went on to say the first respondent that the keys were in the but testified that the car was locked.

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It seems to me that, in giving the referred to immediately above, the respondent sought to convince the that he did not intend to place the vehicle in danger of being That part of the first evidence does not make any to me. If, indeed, that part of his is true, what, then, was the point of driving the vehicle to the where he left it and of reporting it had been hi-jacked? It is clear the first respondent unashamedly with his dishonesty right up to Court in order to try and protect his In fact the commissioner’s finding the first respondent gave the of a credible and trustworthy witness me. In the circumstances of this case was simply no basis on which it be said that the first was contrite nor was there any basis for any that the first respondent was a witness.

[25] The commissioner stated that because the had once resorted to the idea of the lease benefits of the first this could be resorted to time as well so as to ensure there was no chance of the first causing another accident Seeing that evidence had led that this had been before and it did not seem to have in any way to the first respondent correcting his in regard to driving, the commissioner had no for using this measure to confirming that the dismissal was

[26] I have pointed out that the commissioner found the misconduct which prompted the to dismiss the first respondent was and premeditated gross dishonesty. In Motor Transport (Pty) Ltd Transport Commission and another SA156 (N) at 159 D Miller J expressed the that, when a decision is as grossly unreasonable in cases as the one he had to consider, that means the unreasonableness of the decision is of such a as to be indefensible on any legitimate ground. In the of this matter I would say when it is said that the respondent was guilty of gross that must mean of such a degree (if one can speak of of dishonesty) as to be completely indefensible on any To my mind that is a fitting for the misconduct of which the first was guilty .

[27] Where an has dismissed an employee for such misconduct and the commissioner accepts the employee is guilty of such but nevertheless concludes that the acted unfairly in dismissing employee (and such is not based on procedural grounds,) in my judgement, the inference is irresistible the commissioner completely misconceived his Otherwise his conclusion is completely When a commissioner has misconceived his in that way, it can be said the unsuccessful party has not been a fair hearing and that, a gross irregularity has been justifying the reviewing and setting of the commissioner’s award.

RMM ZONDO

Judge President

NICHOLSON J A

The first respondent was employed by the as a supervisor and assistant manager for 13 years and during this maintained a clean disciplinary As a term of the first respondent’s contract he enjoyed lease car which were suspended for a prior to the second half of During the period from 1996 to December 1996 respondent was involved in four involving the car he drove, pursuant to the lease scheme, with a cost of R 28 956,00.

[29] On 29 1997 first respondent was in a further accident. He drove the to a parking area in Amanzimtoti and it, leaving the keys in the ignition. On the day he reported the fact that the car had hi-jacked to the police. On the next day he his departmental manager and the appellant’s Division of the said hi-jacking. respondent admitted that he had about the hi-jacking to the appellant’s investigator on 2 July 1997.

The first respondent was charged at a enquiry with fraudulent and behaviour and negligent damage to property of a substantial nature. He was on 21 July 1997 and his internal failed on 1 August. The dispute regard to the dismissal of the first was referred to the second respondent for and failing that for arbitration by the respondent in terms of section 191 of the Relations Act, no 66 of 1995 Act’). The third respondent that the sanction of dismissal was too but imposed a sanction involving his This meant that he his past benefits, including accruing from 13 years of and he was penalised by a loss of pay prior to the (some three months and a loss of the car lease benefits he enjoyed. This re-employment was with a final warning for All these sanctions were in terms of section 193(1)(b).

[31] The appellant unsuccessfully the arbitration award in the Labour in terms of section 145 (2)(ii) and and section 158(1) of the Act. 158(1)(g) provides that the Court can review ‘the or purported performance of any function for in this Act or any act or omission of any person or in terms of this Act on any grounds are permissible in law’. This of review was the full form of previously referred to as common law The review mentioned in section 145 was on the Arbitration Act, no 42 of 1975, and is of a limited nature. The decision to both sections was quite given the conflict in the case law as to section was applicable where a sought to review an arbitration That conflict has now been It was properly conceded by both that the applicable section for a of an arbitration award is section See Carephone (Pty) Ltd v Marcus and Others (1998) 19 ILJ 1425 at 1433 H. Section 145 reads as

“ 145 Review of arbitration awards

(1) Any to a dispute who alleges a defect in any proceedings under the auspices of the may apply to the Labour Court for an setting aside the arbitration

within six weeks of the date the award was served on the applicant, the alleged defect involves or

if the alleged defect involves within six weeks of the date the applicant discovers the corruption.

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