Law Reports – May 2011

Advocate Nicolene Erasmus

Unauthorized removal of company property – dismissal justified

Rainbow Farms (Pty) Ltd v CCMA & others [2011] 5 BLLR 451 (LAC)

The employee, Mr Ngubane, was found by the security of the employer (Rainbow Farms) in possession of a litre of milk as he was leaving the premises of the company. The milk was part of the “free issue” items which employees were entitled to consume whilst at work. There was an existing rule which prohibited employees from removing free issue items from the company premises unless written authority had been obtained.

Ngubane was charged with “unauthorised possession/removal of company property”. Following a disciplinary hearing, he was found guilty and dismissed. At the commencement of the arbitration proceedings, the issue of whether Ngubane had removed milk from the premises was not placed in dispute – the basis upon which the substantive fairness of dismissal was being challenged was that although there was a rule which prohibited the removal of company property, the rule did not extend to “free issue”.

The arbitrator therefore found that on the evidence, the rule prohibiting the removal of free issue milk existed. It also found that Ngubane had clearly infringed the rule when he attempted to remove the milk from the premises of the employer. She, however, reasoned that the manner in which Ngubane had openly attempted to remove the milk was indicative that he genuinely believed that he was entitled to remove same and that the belief was reasonably held and found the dismissal to be unfair.

The employer brought a review application to the Labour Court, interclaimingalia that the arbitrator had committed a gross irregularity in finding that notwithstanding the fact that Ngubane had been found to have breached the rule prohibiting the removal of free issue milk from the premises, his conduct of openly removing same was indicative of his genuine belief that an exception to the rule was observed by the employer. The review application was dismissed with costs. The court found that as the chairperson of the inquiry had found Ngubane guilty of unauthorised removal of company property, the issue relating to unauthorised possession had fallen away. It therefore found that Ngubane did not remove the milk from the company premises and did not complete the misconduct with which he was later found to have perpetrated. It also found that the chairperson had erroneously taken into account Ngubane’s previous record in order to arrive at the sanction of dismissal.

On appeal the court agreed that the removal of the milk by Ngubane from the kitchen was in itself sufficient to constitute unlawful removal of the company property. With reference to the difference between removal or attempted removal and being in unauthorised possession, the court found that the question whether Ngubane had removed the milk or not from the employer’s premises, is a factual question. The test to distinguish between completed and uncompleted acts of appropriation is whether at the time the wrongdoer was apprehended, the company had lost control of the property whether the wrongdoer had effectively gained control of the property. In the context of this case, when Ngubane removed the milk from the kitchen and went past the first set of security gates up to the main gate, the employer ceased to exercise control over the milk and Ngubane exercised effective control over the milk. The court a quo’s finding that the act of removal had not been completed and that Ngubane did not remove the milk from the premises is therefore plainly wrong and should be set aside.

As far as the test to apply when the decision of the arbitrator is sought to be reviewed, the court noted that the only question that remains to be answered is whether the decision made by the arbitrator that Ngubane’s dismissal was not substantively fair, is a decision that a reasonable decision maker could not reach. The court held that the answer to this question is that the decision of the arbitrator is not a decision that a reasonable decision maker, having regard to all the facts of the case, could reach.

The appeal succeeded, and the order of the Labour Court was set aside and substituted with the following: “The award handed down by the second respondent under CCMA case number KNDB 6418–04 dated 30 May 2005 is hereby reviewed and set aside and substituted with the following: The dismissal of the employee party was both substantively and procedurally fair.”

HIV status, discrimination and compensation

Allpass v Mooikloof Estates (Pty) Ltd t/a Mooikloof Equestrian Centre [2011] 5 BLLR 462 (LC)

The employee, Gary Allpass, was employed as stable yard manager and horse riding instructor. His letter of appointment confirms his appointment commencing on 1 November 2008 “on a temporary basis for a period of three months, where after the position will (sic) reviewed.” His duties were, inter alia:

• managing and overseeing the Mooikloof Equestrian Centre in close cooperation with Aletta Herbst;
• horse grooming, care and supervision (24 hours);
• crisis management of horses and clients;
• assisting the veterinarian; and
• reporting to Dawie Malan on all aspects.

In his pre-employment interview Allpass stated that he was in good health, had a bond over an immovable property, was a homosexual in a same-sex civil union and that he was agnostic. His responses were not seen in an unfavourable light – in fact, the employer had already employed a same-sex couple. A week after the employee’s appointment, he and the members of the other civil union were asked to complete “personal particulars” forms in which they were asked to list allergies and chronic medications they were taking. The employee disclosed that he was HIV positive and was taking retroviral drugs. The day after he handed in his form, he was told that he had been dismissed – “the basis on which you are being dismissed from your temporary appointment at the Mooikloof Equestrian Centre is because you were dishonest in the interview.”

The issues to be determined by the court were:

A: whether the dismissal of the employee was automatically unfair, or alternatively procedurally and/or substantively unfair, and if so, the appropriate measure of compensation to which he is entitled; and

B: whether the employee was unfairly discriminated against on the basis of his HIV status and if so, the appropriate relief to which he is entitled.

As far as A is concerned, the court found that the real reason for the employee’s dismissal was the fact that he had not disclosed his HIV status. That being the case, the employee’s dismissal was automatically unfair, and the employer is burdened with an evidentiary burden to prove that the discrimination was justified, meaning that employee’s termination was justified based on an inherent job requirement. The employer failed to do this.

With reference to claim B, the court noted that the employee sought relief in the form of a solatium for the injuria or damages to his humiliating treatment based on his sexual orientation and his homeless status following his dismissal, as well as the unfair discrimination and loss of dignity arising from the expectation that he should have disclosed his HIV status at the interview.

According to the court the incidents surrounding his eviction could not be attributed to the employer because the security guard who removed him was acting on the instructions of the homeowners’ association. But even if it could be, the court could not entertain the claim arising from the eviction because it occurred after the employee’s dismissal.

With regard to relief, the court noted that the compensation for an automatically unfair dismissal must be “just and equitable in all the circumstances, but not more than the equivalent of 24 months’ remuneration”. Referring to Davis AJA in Kroukam v SA Airlink (Pty) Ltd [2005] 12 BLLR 1172 (LAC) the court quoted that compensation for an automatically unfair dismissal should be no less than the amount the employee would have been entitled to receive if reinstatement had been sought and should reflect the serious nature of the transgression. The fact that the employee was employed on a three month temporary employment contract, subject to review at the end of that period, was taken into consideration.

The employee was granted compensation equivalent to 12 months’ remuneration for his automatically unfair dismissal. His claim for unfair discrimination was dismissed.

Licence fraudulently obtained

City of Cape Town v SALGBC & others [2011] 5 BLLR 504 (LC)

The employee, Ncamane was dismissed for gross dishonesty. Nine years prior to her dismissal she had submitted her phony Namibian driver’s licence to the South African authorities, who accepted the documentation and issued her with a driver’s licence. According to the Namibian Roads Authority the licence was issued to a certain Awala and not to the employee, who then alleged that she was tested in the prescribed manner. The E-Natis system was then accessed and it was determined that the origin of the employee’s driver’s licence was a conversion of the driver’s licence that was issued by the Namibian Roads Authority. She was never tested and had in fact applied for her had applied for a learner’s licence on no fewer than four occasions, which was eventually issued to her on 13 December 1999.

The arbitrator concluded that Ncamane “was party to the fraudulent issue of a driver’s licence…” and that she “holds a senior management position requiring a high degree of trust” but ruled dismissal too harsh a penalty because:

• the fraud was not committed in the workplace;
• the fraud did not relate to the employee’s duties;
• the employer had not considered whether a lesser sanction might be appropriate;
• the offence had been committed nine years earlier.

On review the important question to be considered is whether or not the arbitrator arrived at a reasonable decision – “is the decision reached by the commissioner one that a reasonable decision maker could not reach?” In evaluating the reasonableness of sanction it the court took into consideration the fact that the employee had fraudulently obtained a South African driver’s licence by representing to the licensing authority that she had a valid Namibian driver’s licence. As such her actions entailed a high degree of dishonesty and also an element of corruption insofar as she could not have obtained her Namibian licence without some complicity on the part of the relevant issuing authority. The employee had been using this fraudulently obtained driver’s licence on an ongoing basis for nine years until 2008 when her fraud was uncovered. Had she not been caught out she probably would have continued to use this licence.

The court held that The City of Cape Town as an organ of state is entitled to expect of an employee, especially where the employee (who was entrusted with dealing with public funds) is employed in a position of trust. Ncamane’s fraud was characterised by a high degree of dishonesty and corruption, and she showed no remorse for her actions. The fact that she was only found out after nine years certainly cannot be a mitigating factor as was held by the arbitrator. The fact remains that Ncamane benefited from her (criminal) conduct on an ongoing basis.

The award was reviewed and set aside and replaced with a finding that the dismissal was substantively fair.

For more information contact Nicolene Erasmus [email protected]