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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

Case No : JR 110/03

In the matter between:

AUGUST LÄPPLE (SOUTH AFRICA) (PTY) LTD APPLICANT

and

SCHALK ANDRIES JACOBUS PIENAAR FIRST RESPONDENT

J MPHAHLANI SECOND RESPONDENT

THE MOTOR INDUSTRY BARGAINIG THIRD RESPONDENT

COUNCIL (“MIBCO”) – DISPUTE RESOLUTION

CENTRE (“DRC”) OF SOUTH AFRICA

J U D G E M E N T

LEEUW AJ:

Introduction

[1] This is an application for Review in terms of section 145 of the Labour Relations Act No 66 of 1995 (the Labour Relations Act) brought by the Applicant seeking an order setting aside the Arbitration Award granted by the Second Respondent (“the Arbitrator”).

[2] The First Respondent (Pienaar) was employed and dismissed by the Applicant after having been convicted at a disciplinary enquiry of the following charges of misconduct:

1. Unauthorized use of the Applicant’s property, to wit a Mercedes Benz truck;

2. Authorizing the use of the Applicant’s generator, to a certain Vermaak, which equipment was destined for use for Pienaar’s benefit at his plot; and

3. Using the Applicant’s property and labour to repair, manufacture and build a water tank stand and a door for a container on Applicant’s premises without authority.

[3] Pienaar was dismissed by Applicant. He thereafter referred the dispute to the Third Respondent (“MIBCO”) for conciliation and arbitration, on the basis that his dismissal was both procedurally and substantively unfair. The Arbitrator ruled that Pienaar’s dismissal was procedurally fair but substantively unfair.

Factual Background:

[4] Pienaar was employed as a Facilities and Engineering Manager and directly reported to the Deputy Managing Director Mr Jurgen Gurt. (“Gurt”). He admitted that he requested Mr Jacques Vermaak (Vermaak), who reported directly to him, to erect a steel structure for him at his property after normal working hours. He also admitted authorizing Vermaak to build a water tank stand for him at the Applicant’s premises and during normal working hours. Vermaak corroborated Pienaar’s evidence and added that he performed some private work for other Applicant’s Managers, namely Mark Venter, K Lang and Dennis Toff, over a period of six (6) years. Pienaar further admitted instructing one Britton, also an employee of Applicant, to repair his (Pienaar’s) generator during normal office hours. The water tank stand was transported to his plot using the Mercedes Benz truck of the Applicant. He also authorized Vermaak to take the Applicant’s generator out of the premises, which generator was taken for the purpose of performing Pienaar’s private work by Vermaak at Pienaar’s plot.

Submissions at the Arbitration hearing:

[5] Pienaar nevertheless averred that it was normal practice and in actual fact a benefit which was made available to him and the Senior management staff in the Applicant’s employ, to utilize occasionally, the Applicant’s equipment, property and personnel for private purposes. He furnished a detailed list of private jobs that were performed by him using Applicant’s resources on behalf of other Senior managers of Applicant.

[6] He admitted that Applicant’s permission was necessary and required for the purpose of doing private jobs for one’s own benefit using Applicant’s equipment, labour and resources. He alleged that he was granted oral permission by Mr Chris Short (Short), his immediate senior during December 1999, to build the water tank stand during that period. With regard to the use of Applicant’s equipment, he claimed to have obtained a “Gate Pass” with a purpose of removing the equipment from the Applicant’s the premises.

[7] Applicant concedes that at all material times, Senior Management had the benefit of using its resources for private benefit, with the necessary permission or authority being sought and granted in accordance with the company policy. However, Applicant’s submission with regard to the use of the generator and the building of the water tank stand at the Applicant’s premises, is that the necessary authority was not obtained by Pienaar in view of the following:

7.1 The incidents happened during the shutdown period, which is mid-December to the second week of January, when senior managers would normally be on leave. It was also a time when Pienaar would be required to be on duty because he was responsible for general maintenance at Applicant’s premises, and

7.2 Pienaar gave permission to Vermaak to use the generator which in actual fact was to be utilized by Vermaak for the benefit of Pienaar.

Arbitrator’s analyses of Issues:

[8] The Arbitrator stated the following in respect of the generator in question:

“…….even during the 05^th January 2001, in a desperate attempt to heed to the Respondent’s permission or authority practice, the Applicant (referring to Pienaar) signed a Gate Pass authorizing VERMAAK to “loan” a generator for a weekend, although the generator was used for Applicant’s benefit.”

[9] According to the Arbitrator, because of the fact that the Gate Pass did not stipulate that the lent equipments should be exclusively used by the employee to whom the equipment was allocated, there was therefore nothing wrong with Pienaar using the generator. This despite the fact that Vermaak was granted authority by Pienaar to use the generator for the benefit of Pienaar.

[10] The Arbitrator further held that Pienaar was granted permission by Mr Chris Short (Short) his immediate supervisor, to build the water tank stand. He held the view that until May 2000, it was uncertain as to who was authorized to give permission for the usage of the Applicant’s assets or equipment in view of the contradictory evidence presented by Applicant’s witnesses. Furthermore, because of the long established practice of allowing senior personnel of Applicant to use its equipment or assets for own or private use, and after making a positive credibility finding about Pienaar’s evidence, he concluded that it was probable that Pienaar had been granted permission to use Applicant’s equipment.

[11] The Arbitrator further found that none of the Applicant’s witnesses testified that Pienaar did not have authority to use the Applicant’s equipments viz the Mercedes Benz truck, generator, welding machine, steel plate and personnel of the Applicant.

[12] The Arbitrator made a finding that the Applicant failed to discharge the onus of proving that the dismissal was substantively fair. He accepted Pienaar’s “undisputed version that he had obtained the requisite authority to build a water tank stand from Chris Short.”

Grounds for Review:

[13] The Applicant’s grounds for review are that :

“27.1 Second Respondent did not apply his mind to this particular issue properly or at all. In fact ……. taking the finding of the Second Respondent into consideration, the conclusions that he reached are totally absurd;

2. Second Respondent clearly misdirected himself regarding the factual circumstances which were put before him and …. submit that it clearly shows that the Second Respondent misconducted himself, alternatively; Second Respondent committed gross irregularity, and

2. In addition to or alternatively to the grounds raised above …. Regarding this particular issue, the findings of the Second Respondent are not rationally connected to the evidential material which was placed before him.”

[14] The Applicant submits that the Arbitrator’s finding that Pienaar did authorize Vermaark to use the generator for his (Pienaar’s) benefit, was highly irrational and artificial, in view of the fact that Pienaar’s conduct was dishonest and fraudulent and aimed at circumventing the established rule laid down by the Applicant; and further

[15] That the evidential burden shifted to Pienaar prove that he did receive the necessary permission to build the water tank stand by calling Mr Short to corroborate his evidence.

Analyses of Issues:

[16] It is common cause between the parties hereto that Pienaar had to obtain authority from his immediate senior if he were to use Applicant’s assets, equipment and labour for his own benefit.

[17] It is also common cause that there was an established practice amongst the senior personnel of the Applicant to use its resources for their own benefit only after having obtained the necessary permission or authority.

[18] With regard to the use of the generator, it is apparent that Pienaar had wanted to use the generator himself. He did not obtain authority from his immediate supervisor, but instead granted authority to his junior, Vermaak, with the aim or intention of himself using the generator for his personal benefit.

[19] I agree with Counsel for the Applicant that Pienaar’s conduct smacks of dishonesty on his part. It cannot, under the circumstances be said that Pienaar had the necessary authority to use the generator for himself. I am of the view that the Arbitrator misdirected himself and exceeded his powers in that regard, and had no basis whatsoever for interfering with the decision of the Applicant’s disciplinary tribunal on this aspect.

[20] As to whether or not Pienaar was granted permission to build a water tank stand at the Applicant’s premises, it was necessary to obtain corroboration from Mr Short on this issue. The Arbitrator did not make a finding with regard to whether or not Pienaar was granted permission by Mr Short to build the water tank stand and transport same to his plot by using Applicant’s Mercedes truck, but rather held that Pienaar’s immediate senior at the time was Mr Short.

Onus

[21] In terms of section 192 (2) of the Labour Relations Act, the applicant, as the employer bore the onus of proving that Pienaar’s dismissal was both substantively and procedurally fair. This onus was clearly defined by Davis AJA in the case of Pillay v Krishna and Another 1946 AD 946 at pp 952 – 3, which was quoted and approved by the Court per Corbett JA in the case of South Cape Corp v Engineering Management Services 1977 (3) SA 534 at 548 A as follows: “the word onus has often been used to denote, inter alia, two distinct concepts:

(i) the duty which is cast on the particular litigant, in order to be successful, of finally satisfying the court that he is entitled to succeed on his claim or defence, as the case may be; and

(ii) the duty cast upon a litigant to adduce evidence in order to combat a prima facie case made by his opponent. Only the first of these concepts represent onus in its true and original sense.

[22] Corbett JA goes further to add “the onus can never shift from the party upon whom it originally rested. The second concept may be termed, in order to avoid confusion, the burden of adducing evidence in rebuttal (“weerleggingslas”). This may shift or be transferred in the course of the case, depending upon the measure of proof furnished by one party or the other. See also Trepea and Another v Godart and Another, 1939 AD 16 at p 28; Marine and Trade Insurance Co Ltd v Van der Schyff, 1972 (1) SA 26 (AD) at pp 37 – 39). (My emphasis)

[23] Pienaar decided not to call Short. His reason for not calling him was that when he spoke to him, he (Short) indicated that he did not recall granting him authority to erect the water tank stand.

[24] Short’s evidence was crucial for the purpose of clearing this issue and it could not under the circumstances be expected of the applicant to prove this fact. Applicant had established that its equipment and facilities were used and whoever used them for own benefit had the duty or “burden of adducing evidence in rebuttal” to establish that the necessary authority or permission was obtained or granted. Compare Janda v First National Bank (2006) 27 ILJ 2627 (LC) at par [5] onwards and cases therein referred to.

[25] The Applicant has the onus, in terms of section 192 (2) of the Labour Relations Act, to prove that Pienaar’s dismissal was fair, and on the basis of the evidence presented by the Applicant, it is evident that Pienaar used its equipment and labour. It was therefore upon Pienaar to present evidence which indicated that he was granted the necessary permission to use such equipment and labour by the Applicant or its authorized agent.

[26] I am of the view that Pienaar failed to produce the required proof as aforesaid. The Arbitrator failed to establish this fact during the proceedings and thus committed a gross irregularity by not applying his mind to this issue which was of vital importance for establishing whether or not Applicant’s dismissal of Pienaar was fair. For these reasons, I am of the view that the Arbitration Award stands to be set aside.

Conclusion:

[27] The evidence presented before the Arbitrator is sufficient to enable me to decide on the dispute in accordance with section 145 (4) (a) of the Labour Relations Act. I am satisfied that on the substantive issues, the Arbitration Award stands to be reviewed and set aside based on the fact that the Arbitrator did not apply his mind properly in considering the issues herein; he misdirected himself on the facts and his conclusion is not rationally connected to the evidential material placed before him. See Carephone (Pty) Ltd v Marcus NO and Others (1998) 19 ILJ 1425 (LAC), Shoprite Checkers (Pty) Ltd v Ramdaw N O and Others (2000) 22 ILJ 603 (LAC) par [17] – [18] and Trinity Broadcasting (Ciskei) v ICASA 2004 (3) SA 346 (SCA) par [4] and Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and Others (2006) 27 ILJ 2076

With regard to the Sanction imposed:

[28] The Arbitrator has indicated, correctly in my view, that the trust relationship between Applicant and Pienaar has irretrievably broken down. Reinstatement would thus in the circumstances not be appropriate and the Courts cannot interfere with the employee’s sanction in that regard. See Rustenburg Platinum Mines Ltd (Rustenburg Section) v CCMA and Others supra at par [42] – [47] and the cases therein referred to. This is a matter where costs should follow the result.

[30] I accordingly make the following order:

1. The Arbitration Award dated 9 December 2002 is hereby reviewed and set aside.

2. The First Respondent is ordered to pay the costs of this Application.

_______________________

M M LEEUW

ACTING JUDGE OF THE LABOUR COURT

APPEARANCES:

COUNSEL FOR THE APPLICANT:

COUNSEL FOR THE 1^ST RESPONDENT: F W BOTES

ATTORNEYS FOR THE APPLICANT: T DU PRĖ LE ROUX

MacROBERT INC

23^RD Floor, SAAU Building, Cor Andries & Schoeman Street

PRETORIA 2001, TEL: 012 – 339 8311 FAX: 0866 125 015

REF: TLR/608202

ATTORNEYS FOR THE 1^ST RESPONDENT: c/o GOUWS & ASSOCIATES

426 Braam Pretorius Street, Arcadia Att: Charissa le Roux

Fax: 012 – 543 1020

ATTORNEYS FOR 2^ND & 3^RD RESPONDENTS: DRC

6^TH Floor, Benstra Building, 473 Church Street, PRETORIA, 2001

FAX: 012 – 341 1716

Date of hearing : 02 November 2006

Date of judgement : March 2007

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