Toyota South Africa Manufactures (Pty) Limited v Radebe and Others (D417/98) [1998] ZALC 30 (15 June 1998)

IN THE LABOUR COURT OF SOUTH AFRICA

(Held at Durban)

CASE NO D417/98

DATE 1998/06/15

In the matter between:

TOYOTA S A MANUFACTURING (PTY) LIMITED Applicant

and

DOUGLAS RADEBE First Respondent

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION Second Respondent

P STONE N.O. Third Respondent

JUDGEMENT

REVELAS J:

[1] This is an application for a review of an arbitration award made by the third respondent, a commissioner appointed by the second

respondent (the “CCMA”). The application is brought in terms of section 158(1)(g) of the Labour Relations Act, No 66 of 1995 (hereafter “the Act”). The common cause facts found by the third respondent as arbitrator were the following :

[2] Mr Douglas Radebe, the first respondent, had been in the employ of the applicant for 13 years when his services were terminated for misconduct relating to dishonesty. He was employed as a supervisor, also referred to as an assistant manager by the applicant. He had a clean disciplinary record prior to the misconduct which ultimately led to his dismissal.

[3] The first respondent had, as counsel for the applicant put it, an “abysmal record of damage to his leased car,” one of the benefits of his employment contract. He was involved in no less than four accidents during the period 1 September 1996 to 14 September 1996. Consequently his car lease benefits were suspended for one year.

[4] Unfortunately the first respondent had a further accident on 29 June 1997, when the vehicle he was travelling in and which was part of his car lease benefits, was involved in another accident, causing severe damage thereto. It is this accident that forms the subject matter of the review before me now.

[5] Following the accident, the first respondent drove the car to a parking area in Amanzimtoti where he abandoned the car with the keys still in the ignition. The first respondent dishonestly reported that the car had been hijacked. He made this report to the South African Police Services on 29 June 1997. On 30 June 1997, the first respondent reported that the car had been hijacked to the applicant's. The first respondent then reported the alleged hijacking to his departmental manager.

[6] On 2 July 1997 the applicant's security investigator confronted the first respondent and took him to the place where he had abandoned the car. Faced with this confrontation as well as the abandoned car, the first respondent admitted that he lied about the hijacking. The purpose of the first respondent’s abandonment of the motor vehicle and making a false report to the police and to his employer was plainly to cover up the fact that he had had yet another accident with the motor vehicle.

[7] The first respondent was charged with fraudulent and dishonest behaviour. The applicant formulated the charge

against the first respondent as follows:

"You damaged your leased vehicle and then reported to the SA Police and TSA Fleet that the said vehicle was hijacked. Negligent damage to company property of a substantial nature."

[8] After a disciplinary inquiry, held on 18 July 1997, the first respondent was dismissed with effect from 21 July 1997. The first respondent pleaded guilty. On 1 August 1997 the first respondent's dismissal was upheld following an appeal hearing.

[9] The third respondent found that the dismissal had been unfair and he ordered the applicant to re-employ the first respondent within five days of the receipt of the award on terms and conditions no less favourable than the first respondent enjoyed prior to his dismissal. The applicant was however exempted from the obligation to pay the first respondent remuneration for the period from the date of dismissal to the date of re employment.

[10] The third respondent found that the applicant was entitled to issue the first respondent with a final warning, valid for 12 months, in respect of dishonesty. In terms of the award, the applicant was also entitled to withdraw the first respondent's car lease benefits for an indefinite period.

[11] The third respondent made the following findings :

- The evidence showed that the first respondent made one error in his thirteen years of employment, for which he was contrite.

- The error was gross, but that there was no evidence of a propensity for dishonesty.

- The first respondent, in testifying on his own behalf, gave the appearance of a trustworthy and credible witness and expressed his total commitment to the applicant.

- The initiator, Mr Schultz who, incidentally, was the first respondent's supervisor and the person to whom the third respondent

directly reported to, motivated an argument for leniency at the disciplinary inquiry. He also testified that the first respondent

was one of his best supervisors. According to Mr Richardson, one of the applicant’s witnesses, the third respondent had been “a good and valued performer”.

[12] The third respondent was not convinced that the primary objective of the applicant, in dismissing the first respondent, was

related to the fact that the trust relationship could never be mended. He found that this might take a period of time but he stated

that did not gain the impression from the applicant's witnesses that the breach of the trust relationship was irretrievable. In this regard he, once again relied on the evidence of the first respondent’s supervisor who testified that the relationship

was not irretrievably breached but that the relationship could take some "substantial" time before such a relationship could be built up again. He also took into account that the applicant was justifiably anxious not to send a message through its organisation that employees could embark on actions of gross dishonesty and find themselves immune from meaningful disciplinary action.

[13] The third respondent took into account that the first respondent had a poor track record of negligence in terms of his leased vehicle, referring to all the accidents. He further found that this has "little or nothing to do with his employment relationship with the company". The first respondent was not required to drive in his work situation. In this regard he referred to the sanction of withdrawing the applicant's lease benefits from the first respondent as a measure of sanction, as suggested by the first respondent’s supervisor, Mr Schultz.

[14] The third respondent also found that the first respondent's performance as a driver does not go to the heart of the employment

relationship and stated further:

"However, it is in my view critical for sound labour relations within the respondent's organisation that the

applicant should be appropriately disciplined for his acts of gross dishonesty. Nevertheless, I do believe that there is an opportunity for disciplinary action short of dismissal to ensure that the respondent (the applicant in this matter) is both reasonably protected from the probability of future similar acts on the part of the applicant, or from unreasonable exposure to similar acts of dishonesty on the part of other employees as a result of the outcome of this case. I therefore find that the appropriate disciplinary sanction in this case is re-employment rather than a reinstatement, which represents a suspension without pay, together with loss of service benefits, together with a final warning to the applicant in respect of dishonesty."

[15] The third respondent relied on the suggestions made by the supervisor of the first respondent, that the first respondent’s

car benefits should rather be released instead of dismissing him. Mr Schultz was, in real terms, the prosecutor at the disciplinary

hearing. He was also the person who enforced discipline in the first respondent’s working environment and the person to whom the first respondent had to report. In my view, the third respondent was entitled to give more weight to his evidence than that of a person to whom the first respondent did not report to directly.

[16] It was strongly argued by the applicant that the award issued by the third respondent warranted intervention by the Court. It was argued that if the Court adopted the wider test of review in terms section 158(1)(g) of the Act the Court was bound to set aside the award in question. It was argued that the third respondent did not take trite principles developed over years in respect of dishonesty cases into account, and should further have taken into account that it is mostly found in these matters, that dismissal was the only appropriate sanction for dishonesty on the part of employees.

[17] I have no quarrel with the aforesaid principles referred to by the applicant. I accept that these principles are widely applied and accepted in disciplinary hearings and disputes between parties regarding dishonesty.

[18] However, these principles do not dictate that mitigating circumstances such as taken into account by the third respondent,

should not influence the result or sanction that should be applied. In other words, dismissal is not knee-jerk response to all cases of dishonesty, without exception. This is exactly what the third respondent illustrated in this matter. He took into account

mitigating circumstances, presented on the evidence before him, and he found that a sanction other than dismissal should be applicable in this matter.

[19] The applicant's case is directed at the outcome of the arbitration and not the method by which the result was obtained. The third respondent wrote a well-reasoned award, and came to a conclusion which does not strike me as shocking as the applicant

would have it.

[20] Mr Tanner, on behalf of the third respondent, urged me to find that section 145 of the Act was the appropriate section applicable to the review of awards of the

CCMA.

[21] Counsel on behalf of the applicant contended that section 158(1)(g) of the Act was the test applicable for the review of such awards. In this regard I was referred to the matters of :

Kynoch Feeds V CCMA and others [1998] 4 BLLR 384 (LC),

Standard Bank of South Africa Limited V CCMA and others LC (unreported), case number J 642/97 dated 13 March 1998,

Shoprite Checkers (Pty) Ltd V CCMA and others LC (unreported), case number J852/97 dated 11 March 1998.

[22] It was argued by Counsel for the applicant that, should I find that the approaches adopted in the aforesaid matters, namely that the wider test for review found in section 158(1)(g) of the Act is applicable,then the award in question should be set aside.

[23] I cannot agree with the aforesaid approach. Whereas I agree that section 158(1)(g) is applicable, and the above-mentioned

judgements are correct in this regard, it does not follow that I should set this award aside. I am still duty bound to apply the test for review properly.

[24] Tip AJ, in the Standard Bank case (referred to above) said the following :

“ Where a commissioner sitting as Arbitrator had misconstrued oral or documentary evidence, or has ignored or misapplied relevant legal principles to an extent that it is inappropriate or unreasonable, then such a commissioner has failed in the task assigned under the Act. It cannot be said that the legislator contemplated that an aggrieved party in such circumstances would find itself without relief. The relief lies in a review application to this court. The ambit thereof must be necessarily correspondingly broad. That is precisely what section 158(1)(g) contemplates and is intended to achieve.”

[25] Before an award of a Commissioner sitting as Arbitrator can be set aside, it must be shown that the award is so grossly

unreasonable and as such does not satisfy the requirements of section 33 of the Constitution. The award must be justifiable in relation to the reasons given for it.

[26] These are essentially the principles adopted in respect of reviews, in the cases relied upon by the applicant and which I accept as correct.

[27] The three cases referred to above illustrate that sections 158(1)(g) and 145 of the Act are confusing. However section 145 is still part of the Act and has not been repealed by Parliament. In my view, when applying the review test as set out in section 158(1)(g) of the Act, section 145 of the Act should serve as a reminder, that review proceedings under section 158(1)(g) should not be regarded as appeal proceedings. What is intended in this section is a review.

[28] The third respondent was entitled to take mitigatory factors into account when determining whether the sanctions imposed on the first respondent was fair. He relied on evidence which was led before him. The fact that he took into account the first respondent’s supervisor’s evidence does not mean that he ignored the evidence presented by the applicant’s other witness. He also found that the employee’s conduct was wilful and that the applicant did not want to send a message to other employees that they could misconduct themselves in the way the first respondent had done.

[29] I believe that this case is distinguishable from the Standard Bank Limited case (referred to above) where the Commissioner in question re-instated a bank employee who was guilty of dishonesty. The employee was in a position of trust at the bank. The behaviour of the cover-up and the subsequent lies thereto by the first respondent was not premeditated behaviour in my view. It was not akin to a premeditated fraud or a fraud perpetrated to financially gain from the situation. The first respondent must have been very scared and lied in a panic. There were also strong mitigating factors present in this case, which were not present in the Standard Bank matter. The court does not find that the third respondent’s findings were so unreasonable as to find that the third respondent

didn’t apply his mind or that he ignored the facts before him.

[30] For all the aforesaid reasons, the Court is not prepared to interfere with the third respondent’s well reasoned award.

[31] It is ordered that the application is dismissed with costs.

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E REVELAS

ON BEHALF OF APPLICANT :

MR G. O VAN NIEKERK

instructed by

SHEPSTONE & WYLIE

ON BEHALF OF THIRD RESPONDENT :

MR TANNER

CHENNELLS AND ALBERTY ATTORNEYS

DATE OF JUDGMENT :15 June 1998.