Barlworld Logistics v Ledwaba No and Others (JR3438/09) [2014] ZALCJHB 408 (13 October 2014)

REPUBLIC OF SOUTH AFRICA

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

NOT REPORTABLE

CASE NO JR 3438/09

In the matter between:

BARLWORLD LOGISTICS

APPLICANT

and

ADV LEDWABA N.O

1ST RESPONDENT

NATIONAL BARGAINING COUNCIL FOR

THE ROAD FREIGHT INDUSTRY

2ND RESPONDENT

PRAGASEN CLIVE NAIDOO

3rd RESPONDENT

Application heard: 9 October 2014

Reasons for judgment delivered: 13 October 2014

REASONS FOR JUDGMENT

VAN NIEKERK J

Introduction

[1] On 10 October 2014 I made an order dismissing with costs the present application, an application to review and set aside an arbitration award issued by the first respondent. These are my reasons for that order.

Review application

[2] The award under review is one in which the third respondent was reinstated subject to a final written warning valid for a period of six months. That sanction was issued after the first respondent found that he (the third respondent) had committed an act of misconduct by failing to obtain permission to engage in what was termed external employment. The terms of the third respondent’s contract of employment provided that during the duration of his employment with the applicant, no external employment work could be undertaken by him without the prior consent of his employer, irrespective of whether such work was undertaken during or outside normal working hours.

[3] The relevant factual circumstances are reflected in the award under review and I do not intend to repeat them here. It is sufficient to record that the applicant charged the third respondent for dishonest conduct in circumstances where he had registered a close corporation and where it was alleged that he had conducted business through that entity during working hours. The third respondent contended that he had turned the verbal consent of his immediate line manager to register the close corporation and that in any event, the close corporation was dormant.

[4] The first respondent found, as I have indicated, that the third respondent had breached a workplace rule, at least to the extent that he should have known that the permission he said he secured from his line manager, in circumstances where she herself had an interest in the same close corporation, was inadequate and in fact served to defeat the purposes of the policy concerned.

[5] In these proceedings, the applicant does not attack the first respondent findings in relation to the existence of any misconduct;

it is only in the remedy of reinstatement that is sought to be reviewed and set aside. That being so, the case is brought squarely

within the ambit of the approach established by the Constitutional Court in Rustenburg Platinum Mines and another v Sidumo & others [2007] 12 BLLR 1097 (CC). In that case, the court held that a reviewing court's capacity to interfere with an arbitrator's award in relation to sanction was limited to the extent that interference is justified if and only if the decision by the arbitrator is so unreasonable having regard to the available material that no reasonable decision-maker could come to that decision. Subsequent decisions have confirmed that the degree of deference to be afforded arbitrator’s rulings on sanction is substantial, and that a court may not interfere even if would have come to a different conclusion on the same facts.

[6] In the present instance, the first respondent recognised that dismissal is the most severe form of punishment and should be used as a last resort. Where dismissal is the inevitable sanction for particular misconduct, this should be clearly conveyed to the employee concerned. In the present instance, the first respondent noted that the applicant's disciplinary code provides for a final written warning as an optional sanction in circumstances such as those relevant to these proceedings, with dismissal as the maximum sanction. The first respondent recorded that there were different views as to whether the third respondent's conduct had breached the trust relationship between him and the applicant and concluded that a final written warning was a fair sanction having regard to the nature of the offence and all of the relevant circumstances.

[7] In essence, the first respondent undertook the required assessment and balancing of the interests of employment justice and the need for the efficient operation of the applicant's business. He considered that the balance came down in favour of a sanction short of dismissal. In my view, having regard to the nature of the misconduct found to have been committed (and bearing in mind that this was limited ultimately only to a failure to obtain permission prior to conducting extraneous business) the first respondent's decision cannot be said to be so unreasonable so as to fall outside of the band of decisions to which reasonable people could come. Particularly relevant is the fact that in terms of the applicant and disciplinary code, the penalty of a final written warning was competent and that no element of dishonesty was proved. While it is correct that the relationship of employment is one of the utmost good faith and that trust and confidence in an employee is a necessary element of that relationship, it does not necessarily follow that the failure to seek permission to conduct extraneous business is in itself a fundamental breach of trust. Had the third respondent been found to have competed with his employer or to have engaged in extraneous business during working hours to the extent that his obligations to his employer were compromised, the situation may well have been different. However, as I have indicated, there is no attack in the present proceedings against the first respondent's factual findings on the nature and extent of the third respondent misconduct and on that basis, and having regard to the applicable threshold, the first respondent’s ruling stands to be upheld.

[8] Finally, in relation to costs, there is no reason why costs ought not to follow the result.

[9] For these reasons, I made the order reflected in paragraph 1 above.

ANDRÉ VAN NIEKERK

JUDGE OF THE LABOUR COURT

REPRESENTATION

For the applicant: D Pretorius, Fluxmans Inc

For the third respondent: Adv E Tolmay, instructed by Webber Wentzel.