SELECTED CCMA ARBITRATION AWARDS JULY DECEMBER 2008

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1 SELECTED CCMA ARBITRATION AWARDS JULY DECEMBER 2008 INDEX Breach of trust Constructive dismissal... 2 Desertion Dishonesty 6 Dismissal or resignation 8 Fixed term contract. 9 Fraud. 10 Incapacity. 12 Independent contractor or employee Insubordination Jurisdiction Misconduct.. 16 Misuse of Negligence Poor work performance. 21 Retrenchment. 22 Theft. 23 Strike Unfair dismissal. 28 Unfair labour practice 29 1

2 BREACH OF TRUST ECPE Coyle- Dowling v Midcoast Leisure CC t/a Midcoast Boards - Commissioner: Loock Dismissal - Employee alleged to start business in competition with employer Breach of trust relationship - Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and procedurally fair. The respondent claimed that the applicant was dismissed for attempting to set up a business in competition with it, while still in its employ. It testified that the applicant contacted it telephonically to discuss about a timber board business venture. Furthermore, the respondent testified that the applicant had admitted during a disciplinary hearing that he had approached it to start a business as his relationship with the respondent had soured. The applicant claimed that the respondent had breached the contract of employment as he did not compensate him. He contended that as he was dissatisfied with the respondent s conduct he approached its client in order to start his own business. The applicant claimed that he held two meetings with the new partner, but had decided not to proceed with the business. Noted: That a contract of employment imposes both parties a duty to have good faith to each other. Also noted: That the applicant had an intention to setup a business in competition with the respondent. Held: That the relationship between the applicant and respondent was intolerable. The applicant had breached the employment contract. The application, was therefore, dismissed. County Fair Foods (Pty) Ltd v CCMA & Others (1999) 20 ILJ 1701 (LAC) Korsten v Macsteel (Pty) Ltd & Another (1996) 8 BLLR 1015 (IC) Movie Camera Company (Pty) Ltd v van Wyk & Another (2003) 2 All SA 291 (C) SAPPI Novoboard (Pty) Ltd v Bolleurs (1998) 5 BLLR 460 (LAC) Scholtz v Commissioner N Maseko (2000) JOL 7152 (LC) CONSTRUCTIVE DISMISSAL KNDB Bux v Mr Price (Gateway- Clothing) - Commissioner: Grobler Dismissal - Employee accused of fraud - Employee resigned - Constructive dismissal proved. The commissioner had to determine whether the applicant was constructively dismissed. The applicant resigned after the area manager had accused him of fraud. He alleged that he was constructively dismissed. The applicant claimed that when he refused to confess to the fraud allegedly committed, his hands were tied behind his back and he was detained for several hours in a storeroom. The applicant decided to resign as the working relationship was intolerable. The respondent contended that the applicant committed a fraud. It claimed that the applicant was suspended for fraud and notified for a disciplinary hearing but he resigned a day before the disciplinary hearing. Noted: That the respondent had ordered the security guard to handcuff the applicant. The applicant s body integrity was infringed when his hands were tied behind his back. Also noted: That the applicant was assaulted, unlawfully detained and humiliated. The respondent had detained the applicant without properly investigating the matter. 2

3 Held: That the applicant s resignation had constituted constructive dismissal. The commissioner ordered the respondent to compensate the applicant an amount equivalent to 12 months salary. Jooste v Transnet Ltd t/a South African Airways (1995) 16 ILJ 629 (LAC) Le Monde Luggage CC t/a Pakwells Petje v Commissioner Dunn & Others (2007) 10 BLLR 909 (LAC) GAJB Mbele v Woolworths (Pty) Ltd - Commissioner: Boyce Dismissal - Employee resigned Employee claiming employer rendered employment relationship intolerable No proof of constructive dismissal. The applicant, a store manager, was transferred from one of the respondent s stores to another. He decided to resign because of the management style at the new store which negatively affected his performance. The applicant challenged that he had been constructively dismissed. The respondent claimed that the applicant s performance was below the standard. It denied that it had made the applicant s work intolerable. The respondent also denied that the applicant was given short deadlines, but the deadlines were similar to that of other heads of departments. The applicant claimed that he had raised his unhappiness with the human resources department and he was promised that he would be transferred to another branch after two months. He continued to work in the same store but felt that he was victimised and decided to resign. Noted: That the applicant was given warnings for poor work performance, given deadlines for completing certain tasks and his problems had been discussed with human resources. The applicant s problems did not constitute victimisation. Also noted: That there was no proof that the applicant s working conditions were intolerable. Held: That the applicant s resignation did not constitute constructive dismissal. The application was dismissed. Amalgamated Beverage Industries Limited v Jonker (1993) 14 ILJ 1232 (LAC) Jooste v Transnet Limited t/a South African Airways (1995) 5 BLLR 1 (LAC) Pretoria Society for the Care of Retarded v Loots (1997) 6 BLLR 721 (LAC) Quince Products CC v Pillay (1997) 12 BLLR 1547 (LAC) Sappi Kraft (Pty) Ltd t/a Tugela Mill v Majake NO & Others (1998) 19 ILJ 1240 (LC) GAJB UCIMESHAWU obo Amin v Talk 2 US - Commissioner: Raffee Dismissal - Employee alleged that she was forced to resign - Constructive dismissal not proved. The commissioner was called upon to determine whether the applicant was constructively dismissed. The applicant challenged that he was constructively dismissed and sought an appropriate relief. The applicant testified that she resigned because the working environment was hostile and the management was uncooperative. She further testified that the working conditions were unbearable and she was emotional and distressful. She contended that after returning from leave, she found that her computer was taken away on her desk and that was a proof that she was no longer required. The respondent had testified that the applicant had been sending confidential and derogatory electronic s relating to the respondent s project outside third parties using the respondent s systems. It contended that the applicant had intention to resign. Noted: That the applicant did not lodge a grievance to show that the working environment was intolerable. The applicant lodged a letter of complaints on the day she resigned. 3

4 Held: That the applicant s resignation did not constitute constructive dismissal. There was no proof of constructive dismissal. The application was dismissed. FS Masoeu v Nortje Kabinet Makers Bk - Commissioner: van Aarde Dismissal - Employee alleged she was assaulted - Constructive dismissal proved. The commissioner was called upon to decide whether the dismissal of the applicant was fair. The applicant claimed that she was constructively dismissed, challenged her dismissal as unfair and sought an appropriate relief. The applicant had testified that on the day in question, she was busy scouring the door frame as there were wood in the holes. She filled it up with wood-filler and the respondent approached and reminded her for wrongdoings and then slapped her on the shoulder. The respondent further testified that the respondent told her that if she repeats the same mistake, she will continue to beat her. She decided to leave the workplace and report the case to the police. The respondent had testified that he instructed the applicant to scour a doorframe. It contended that the applicant used a filler to fill up the holes in the wood. The respondent further testified that the applicant had continued doing the same mistake, it slapped her on the shoulder. It further contended that the applicant walked away from work but was not dismissed. Noted: That the respondent slapped the applicant as she did not listen to its instruction. Also noted: That the respondent did not treat the applicant with respect which she deserves by assaulting her. The respondent was supposed to give an employee a warning or called her for a disciplinary hearing if she did something which was unacceptable. Held: That the respondent had made employment relationship intolerable. The respondent was ordered to compensate the applicant an amount equivalent to twelve months salary. Modumise v ADG Printers (1996) 7 SALLR 29 (CCMA) Minister of Home Affairs v Hambridge & Other (1999) 20 ILJ 2632 (LC) Negro v Continental Spinning & Knitting Mills (Pty) Ltd 1954 (2) SA 203 (W) Peers v Minolow (Pty) Ltd (2000) 9 CCMA Puren v Victoria Express (1998) 19 ILJ 404 (CCMA) Pretoria Society for the Care of the Retarded v Loots (1997) 18 ILJ 981 (LAC) NC AMG Vermeulen v Vryland Beleggings cc t/a Colesberg Lodge - Commissioner: Osler Dismissal - Employee alleged that he was forced to resign - Constructive dismissal not proved. The applicant, a manager, alleged that he was forced to resign by the respondent. He challenged his dismissal as unfair and sought for compensation as a relief. The applicant testified that he was forced to resign for various reasons. He handed his resignation letter and started to look for an alternative employment but without success. The applicant alleged that the respondent did not comply with Sectoral Determination for the Hospitality Industry. He further alleged that the respondent had forced him to take unfair disciplinary action against another employee who later won the case at the CCMA. The respondent testified that the problems started when it discovered that there were some irregularities in the bar. When it made some investigations, the applicant was unhappy. It argued that it was its responsibility to check up irregularities. The respondent contended that the applicant never raised some of the concerns he raised when he was still employed by the respondent. It also argued that it had applied for exemption concerning Sectoral Determination for Hospitality Industry. 4

5 Noted: That the applicant did not take any step to show that he was not happy. The applicant was supposed to lodge a grievance against the respondent. Also noted: That it was the responsibility of the Department of Labour to investigate about non-compliance with the sectoral determination. Held: That the applicant had failed to prove that he was constructively dismissed. The application was dismissed. Case reference Murray v Minister of Defence (2008) 6 BLLR 513 (SCA) GAPT van Loggerenberg v South African Post Office (Pty) Ltd - Commissioner: Mokwena Dismissal - Employee alleged that he was constructively dismissed No proof of constructive dismissal. The commissioner was called upon to determine whether the applicant was constructively dismissed. The applicant alleged that he was constructively dismissed and sought for an appropriate relief. The applicant claimed that he was doing the work of three portfolios, which all need the full time managers. He further claimed that he notified management that his workload was intolerable in several meetings, but nothing was done. The applicant further claimed that he felt humiliated by management. The applicant testified that he resigned because his working conditions were unbearable and nobody was listening to him. The respondent testified that the applicant did not do his work properly. It argued that the applicant was given two staff members to work with him as a relief. It also argued that if the applicant was not happy at work, he was supposed to lodge a grievance. Noted: That the applicant had managed three portfolios that need full time managers. The respondent seconded two staff members to relieve the applicant for his workload. Also noted: That the applicant was held accountable for all things that went wrong in those portfolios. The applicant was unhappy but did not lodge a complaint and decided to resign on his free will. Held: That the applicant s resignation did not amount to constructive dismissal. The application was dismissed. DESERTION GAPT FEDCRAW obo Nyalunga v Edgars (Edcon Group) (Pty) Ltd Commissioner: Sikwane Desertion Employee did not return to work Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and substantively fair. The applicant, a permanent part time employee, was dismissed for alleged absenteeism without permission. She challenged her dismissal as unfair and sought reinstatement as a relief. The applicant testified that she went on leave and did not know when to return for duty because she relied on the respondent to tell her when to report for duty. She claimed that she made an enquiry when she was supposed to return to work but did not receive any answer from the respondent. The applicant claimed that when she was on leave, she felt ill and went to the traditional healer. The respondent contended that the applicant was absent from work without permission and her services were terminated. It argued that it sent one of the employees to check why the applicant was not reporting for work and it was informed that she was sick. The applicant did not produce a medical certificate as requested, she claimed that she had consulted a traditional healer. Noted: That the applicant knew company policy concerning absenteeism. 5

6 Also noted: The respondent tried by all means to contact the applicant while she was not at work, but she did not bother to come to work. The applicant acknowledged that the receipt of communication from the respondent. Further noted: That the applicant had known that festive seasons were the busiest time of the year and that her services were required tremendously. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. DISHONESTY KNDB Pillay v University of Kwazulu Natal - Commissioner: Grobler Dismissal Employee dismissed for lying under oath during disciplinary hearing - Dismissal fair. The commissioner was called upon to determine whether the applicant was unfairly dismissed. The applicant was dismissed because he allegedly lied under oath before the tribunal which was appointed by the respondent. The respondent claimed that the applicant was subject of investigations concerning the acquisitions of his qualifications and intimate relationship with his examining professor. A tribunal was appointed by the respondent in order to investigate the allegations. The tribunal found that the allegations were true and recommended that a formal disciplinary action be taken against the applicant. After the disciplinary enquiry, the applicant was found guilty and dismissed. The applicant contended that the matter should have ended with the first enquiry. He claimed that he had been subjected to double jeopardy. The applicant also contended that the respondent refused to pay his legal costs. He further claimed that the presiding officer misconstrued the evidence, disregarded his version and had failed to consider mitigating factors. Noted: That arbitration under the Labour Relations Act 66 of 1995 (LRA) is a hearing de novo. The Commissioners must determine the fairness of dismissals on the basis of evidence presented at arbitration. Also noted: That the norm assessing whether the applicant was guilty of an offence was conducted with the employer s disciplinary code. The applicant was subjected to only one hearing and the respondent had not infringed the double jeopardy rule. Held: That the dismissal of the applicant was fair. The application was dismissed. Amalgamated Engineering Union of SA & Others v Carlton Paper of SA (Pty) Ltd (1998) 9 ILJ 588 (IC) BMW (South Africa) (Pty) Ltd v van der Walt (2000) 21 ILJ 113 (LAC) Frost v Telkom SA (2001) 22 ILJ 1253 (CCMA) Maliwa v Free State Consolidated Gold Mines (Operations) Ltd (1989) 10 ILJ 934 (IC) Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR 1097 (CC) FS Nthinya v Old Mutual - Commissioner: Venter Dismissal Employee dismissed for assault committed eight years before commencing service - Dismissal unfair. The applicant, a financial advisor, was dismissed after serving the respondents for few months. He challenged his dismissal as being both procedurally and substantively unfair and sought compensation as a relief. The applicant testified that he had completed security declaration as part of his application. He argued that he was never charged with criminal offence and on the declaration form he marked that he was criminally convicted for assault. The applicant contended that he could not be charged with dishonesty as he mentioned on the declaration form. 6

7 The respondent claimed that the applicant dishonestly claimed that he qualified under the Financial Advisory and Intermediary Services Act 37 of 2002 (FAISA), because the FAISA precludes persons with criminal records from acting as financial advisors. It argued that the applicant was not fit and the proper person to work as a financial advisor because he was dishonest. Noted: That the applicant was dismissed for dishonesty and his fitness to be a financial advisor. The applicant was previously convicted for assault and he could not be accused of dishonesty on that score. Also noted: That according to FAISA, a person is deemed to be unfit to act as a financial advisor if he/she had been convicted of an offence involving dishonesty in the previous five years. Further noted: That FAISA presupposes that an enquiry must be conducted before a person is pronounced unfit. The applicant was informed telephonically about his dismissal and there was no hearing. Held: That the dismissal of the applicant was both procedurally and substantively unfair. The commissioner ordered the respondent to compensate the applicant an amount equivalent to five months salary. Case reference Avril Elizabeth Home for the Mentally Handicapped v CCMA & Others (2006) 9 BLLR 833 (LC) WE Diamouangana v EY Grand Cape Hospitality & Transport Services (Pty) Ltd - Commissioner: Bennet Dismissal Employee dismissed for using respondent s client vehicle without permission Employee involved in vehicle collision - Dismissal fair. The commissioner was called upon to decide whether the dismissal of the applicant was fair. The applicant was dismissed for allegedly using the respondent s client vehicle that involved in collision. He challenged his dismissal as being unfair and sought compensation as a relief. The applicant testified that on the day in question he felt ill while working on a night shift. He claimed that he had forgotten his medicine at home and he took the respondent client s vehicle to drive home as it would have taken him three to five minutes to walk to his car as it was parked outside the workplace. The respondent argued that if the applicant was seriously ill, he would not be able to drive a vehicle. It contended that the applicant had breached the rule which stipulates that he was not permitted at any time to use the client s vehicle for personal reasons unless permitted to do so by the management staff. It further argued that the applicant had known the rule but he had disobeyed it. Noted: That the applicant had breached the rule he had known. The applicant breached the trust relationship between the respondent and its client. Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. NC NUM obo Makinana v De Beers Kimberley Mines - Commissioner: Osler Dismissal Employee dismissed for allegedly cheating in assessment test - Dismissal fair. The applicant, a mechanical operator, was dismissed for allegedly cheating during an assessment test. He challenged his dismissal as being unfair and sought for reinstatement as a relief. The respondent testified that all employees sent for training courses were told that no cheating was allowed. It contended that on the day in question the applicant was found cheating during an assessment. The applicant was disqualified for completing the assessment. The respondent argued that the dismissal was a normal sanction for dishonesty because the applicant would portray himself as competent person and qualified beyond his capacity which would result in poor work performance related problems. 7

8 The applicant denied that he was cheating on the day in question. He argued that cheating does not amount to dishonesty, and was not in the company s policy. The applicant testified that he took his personal notes into an assessment room in order to revise before the test started. He contended that cheating took place in the training college not at the workplace. The applicant further claimed that the chairperson of the disciplinary hearing was biased as he was briefed about the matter before the disciplinary enquiry. Noted: That the courts stressed repeatedly that employees can be dismissed fairly for serious offences that are not contained in the employer s disciplinary code. Also noted: That cheating in an assessment is a form of dishonesty and is a dismissible offence. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. Cronje v Toyota Manufacturing (2001) 3 BALR 213 (CCMA) Hoch v Mustek Electronics (Pty) Ltd (1995) 16 ILJ 462 (IC) Nasionale Parkeraad v Terblanche (1999) 6 BLLR 545 (LAC) Nedcor Bank Ltd v Frank & Others (2002) 23 ILJ 1243 (LAC) SA Breweries v FAWU & Others (1992) 1 LCD 16 (LAC) Sidumo & Another v Rustenburg Platinum Mines Ltd & Others (2007) 12 BLLR 1097 (CC) DISMISSAL OR RESIGNATION LP Maila v Dynamic Marketing Corporation - Commissioner: Mello Dismissal Employee dismissed for alleged abscondment due to illness - Dismissal unfair. The commissioner was called upon to determine whether the applicant was dismissed or resigned. The applicant was dismissed after he was hospitalised. He challenged his dismissal as unfair and sought compensation as a relief. The applicant testified that he started experiencing health problems while working. He submitted a medical certificate which was accepted by the respondent. The applicant further testified that when he report for work, the respondent requested him to fill resignation form. He contended that the respondent told him to stay at home. The respondent argued that the applicant was not dismissed but absconded from work. It contended that the respondent disappeared from work without authorisation. Noted: That the applicant wanted to continue to work and did not have intention to resign. The applicant was dismissed but not resigned. Also noted: That the respondent no longer wanted the applicant in its employ due to continuous poor health. Held: That the dismissal of the applicant was both procedurally and substantively unfair. The respondent was ordered to compensate the applicant an amount equivalent to 10 months salary. Case reference Fijen v Council for Scientific & Industrial Research (1994) 15 ILJ 759 (LAC) NW Ntekiso v Anglo Ashanti t/a Tau Lekoa - Commissioner: Matlala Dismissal - Employee alleged he was dismissed Employee resigned - No proof of dismissal. The commissioner was called upon to determine whether the applicant was dismissed or had resigned. The applicant claimed that he was told by his supervisor that he was no longer fit to work and must apply for medical boarding so that he could not lose his benefits. After the company doctor had examined him, he was told that he could not be 8

9 recommended for medical boarding as he was still fit to work. Later on, he was advised to consult his private doctor, who also did not recommend him for medical boarding. The respondent s witness claimed that he had promoted the applicant to his current position, had a good relationship with him and that he would never dismiss him. He testified that an audit in the applicant s section had revealed several discrepancies in his job. The applicant was given a final written warning for poor work performance after counselling and a disciplinary hearing was held. The witness also testified that later on, the applicant had developed epilepsy, which became worse and he was hospitalised. The witness further testified that the applicant had come to his office with his union representative and told him that he wanted to resign. Noted: That if the applicant had thought that he was forced to resign, he would have pursued a case of constructive dismissal. Held: That the applicant was not dismissed, but had resigned on his own free will. The application was dismissed. NW Fourie v J.P.R. Construction - Commissioner: Mashigo Dismissal - Employee alleged he was dismissed No proof of dismissal. The commissioner was called upon to determine whether the applicant s dismissal was fair. The applicant alleged that he was unfairly dismissed and sought an appropriate relief. The applicant testified that he was injured at work and reported the incident to respondent. He alleged that the respondent became aggressive and swore at him. He was booked off for the whole week by the doctor, when he returned to work, he was dismissed. He contended that the applicant refused to complete the workmen s compensation form for him as requested by his doctor. The respondent testified that the applicant was a volatile person that could not have a decent conversation with other people. It argued that it did not dismiss the applicant, but he left on his will. The respondent denied that it refused to complete workmen s compensation forms for the applicant. Noted: That the applicant was a difficult person to communicate with. Also noted: That the respondent knew the procedure to be followed before an employee is dismissed. Held: That the applicant had failed to prove that he was dismissed. The application was, therefore, dismissed. FIXED TERM CONTRACT KNDB Ngcobo v Walter Sisulu University - Commissioner: Dalasile Fixed term contract Employee alleged that he was unfairly dismissed No proof of dismissal. The applicant was employed as a director of human resources on two year fixed term contract and alleged that he was unfairly dismissed and sought that his contract be extended. The applicant claimed that he thought that his contract would be extended. He further claimed that he settled many cases at the CCMA for the respondent while previous directors failed to settle and he was praised by the principal (vice chancellor). The respondent contended that the employment contract stipulated clearly that it was a fixed term contract, no mention of renewal. Noted: That there was nothing in the contract which stipulated that there was a renewal of the contract. Also noted: That the applicant was not promised that his contract would be renewed or extended. Held: That there was no proof that the applicant was dismissed. The application was dismissed. 9

10 Dierks v University of South Africa (1999) 4 BLLR 304 (LC) Malandoh v SABC (1997) 18 ILJ 544 (LC) McInnes v Technikon Natal (2000) 6 BLLR 701 (CC) SA Rugby (Pty) Ltd v CCMA & Others (2006) 1 BLLR 27 (LC) Swanepoel v Western Region District Council & Another (1998) 19 ILJ 1418 (SE) Wyngaardt v UNISA (2006) 1 BALR 91 (CCMA) FRAUD NW NUM obo Seabeng v Eskom Holdings Ltd Commissioner: van Eck Dismissal Employee charging members of public for own gain - Employee dismissed for fraud - Dismissal fair. The applicant was dismissed for allegedly accepting money from members of the public to connect their electricity for his own gain. He challenged his dismissal as being both substantively and procedurally unfair. The applicant denied that he had done anything wrong. He claimed that the respondent s witnesses were accusing the wrong person because his colleague used his bakkie from time to time as they used to work in the same department. The applicant argued that the employment relationship was not breached because he was allowed to continue with his duties after he had been given a letter of suspension. The respondent testified that his clients had complained that they had paid the applicant some money, but he did not install their meter boxes. The respondent s witnesses also testified that the applicant and his colleague had asked them for money to replace meter boxes, but nothing was done. Noted: That the applicant had dishonestly accepted money from members of the public. The applicant had acted contrary to the respondent s values and ethics. Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. Case reference Rustenburg Platinum Mines Ltd (Rustenburg Section) v NUM & Others (2001) 12 (2) SALLR (LAC) LP Makubedi v Masstores t/a Builders & Tile Warehouse - Commissioner: Ledwaba Dismissal Employee dismissed for allegedly processing fraudulent transaction Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was both procedurally and substantively fair. The applicant was dismissed for allegedly processing fraudulent transaction. He challenged her dismissal as being unfair and sought compensation as a relief. The respondent testified that the applicant was dismissed for processing a fraudulent transaction. Due to the applicant s actions, the company lost substantial cash. The respondent further testified that the applicant did not cooperate during the investigation. The applicant testified that her work responsibilities include signing of delivery notes, collection notes and refund vouchers. She further testified that she was doing floor work when she was confronted by a colleague, who requested her about a password for a worker who was not at work. The applicant contended that she gave a colleague the password as requested. She testified that she was informed about the fraud that occurred due to the use of the password. Noted: That the applicant had breached the company s rule by processing a fraudulent transaction using a till of the cashier who was absent. The rule was known to the applicant. 10

11 Held: That the applicant was aware of the fraudulent transaction. The dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. NC NUM obo Gaotsenwe v DVD Engineering - Commissioner: Mocwaledi Dismissal Employee dismissed for time keeping fraud Dismissal fair. The applicant was dismissed for allegedly defrauding the respondent s clocking system. He challenged his dismissal as being unfair and sought reinstatement as a relief. The respondent testified that it noted a suspicious clocking timesheet of the applicant. It did an investigation into a clocking history of the applicant. The respondent contended that one of the managers visited the applicant at his workstation and found that he was absent. It alleged that on numerous occasions the applicant came to work late and left early. The applicant denied that he sometimes arrived late and left work early. He argued that he had a clean disciplinary record and was not allowed to be represented by his union official during a disciplinary hearing. Noted: That there was no collective agreement that the applicant must be represented by a union official at the disciplinary hearing. Only shop stewards are required to be represented by a union official. Also noted: That the applicant had arrived late and left work early on several occasions without a valid reason. There was overwhelming evidence that the applicant frequently committed fraud. Held: That the dismissal of the applicant was fair. The application was, therefore, dismissed. GAJB PSA obo Sebastio v SARS - Commissioner: Mbelengwa Dismissal Employee allegedly received child support grant while employed Dismissal fair. The commissioner was called upon to decide whether the dismissal of the applicant was substantively fair. The applicant was dismissed for alleged fraud and misrepresentation. She challenged her dismissal as being unfair and sought reinstatement as a relief. The respondent testified that the applicant received a child support grant for fifteen months while she was not entitled to. It contended that it came to know about the situation when it received a report from the Special Investigation Unit. The respondent argued that the applicant breach the respondent s strategic plans of collecting revenue to be used to provide services to the citizens of the country. It further argued that social grants were for the poor needy people not people who are employed. The applicant acknowledged applying and receiving child support grant for her two children. She argued that she had received the grants because she was going through a divorce and her ex-husband was not paying maintenance. The applicant contended that the Special Investigation Unit issued her with a fine and she had repaid all the money. She further argued that the respondent was inconsistent in application of discipline because a colleague who committed a similar offence was issued with a final written warning. The applicant further argued that her actions were not work related and she had a clean disciplinary record. Noted: That the applicant had acknowledged that she had misrepresented herself when applying for the child support grant. The applicant committed a fraud and she did not show any remorse. Also noted: That the respondent was an organ of the state that is responsible for collecting revenue for the state. The revenue collected is used to fund child support grants which only unemployed mothers are entitled to. Held: That the applicant had breached the company s Code of Conduct which she signed and pledged to abide by it. The dismissal of the applicant was fair. The application was, therefore, dismissed. 11

12 GAJB Mhlongo v City Power - Commissioner: Mbekwa Dismissal Employee dismissed for reconnecting respondent s client electricity illegally Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was fair. The applicant was dismissed forillegally reconnecting electricity illegally for the respondent s client. He challenged his dismissal as being unfair and sought an appropriate relief. The respondent testified that the applicant was dismissed for reconnecting electricity illegally at one of the respondent s client who owed the respondent. It argued that reconnecting electricity to the house which still owes the respondent was against the company s rules and regulations. The applicant testified that he reconnected the house as instructed by his supervisor. He claimed that he did not know that the client was in arrears for electricity payments. Noted: That the reconnection of electricity to the house was illegally as was not authorised by the respondent. Held: That the applicant had breach the company rule which he knew. The application was dismissed. INCAPACITY WE Steyn v South African Airways - Commissioner: Goldman Dismissal Employee injured on duty- Employee dismissed for poor work performance - Dismissal unfair. The commissioner was called upon to decide whether the dismissal of the applicant was both procedurally and substantively fair. The applicant was dismissed for incapacity after undergoing a knee operation which rendered her unable to perform flight duties almost two years. The respondent claimed that the applicant was counselled on several occassions before her dismissal. It further claimed that it advised her to apply for a ground post, but she did not do so. The applicant testified that the respondent did not do anything to assist her when she returned from work after undergoing a surgery on her knee. She contended that she did not apply for ground position as advised due to that fact that she wanted to resume her flying duties as she believed that she would be able to do so. The applicant was dismissed before the doctor submitted his report to the respondent. Noted: That at the time of the dismissal, neither party was able to confirm whether the applicant would be able to resume flying duties. Also noted: That the respondent had ignored the advice of its own aviation medical specialist who recommended that the applicant must be sent to an occupational therapist. Held: That the dismissal of the applicant was both substantively and procedurally unfair. the respondent to reinstate the applicant to the same position with no lost of benefits. The commissioner ordered CWIU & Others v Latex Surgical Products (Pty) Ltd (2006) 27 ILJ 292 (LAC) Hendricks v Mercantile & General Reinsurance Co of SA Ltd (1994) 25 ILJ 304 (LAC) National Union of Mineworkers & Another v Libanon Gold Mining Co Ltd (1994) 15 ILJ 585 (LAC) 12

13 INDEPENDENT CONTRATOR OR EMPLOYEE KNDB Cox v Clark t/a Charlescor- Commissioner: van Zyl Dismissal Contract of employment - Employee received message saying he had been relieved of his duties Dismissal unfair. The commissioner was called upon to determine whether the applicant was an employee or independent contractor. The applicant started to work as a sales agent and later became a personal assistant for the respondent. The applicant testified that she was asked to sign a new employment contract but she refused as the job responsibilities included sales functions. She also testified that she signed it after being warned that if she does not do so, she would loose her job. The applicant also contended that the respondent accused her of seeking work somewhere and told her to leave. She claimed that later on, she received sms saying that she had been relieved from her duties. The respondent had claimed that the applicant was an independent contractor. It contended that the applicant had planned to start a business in competition with it and had left when it was investigating the issue. Noted: That the contract the applicant signed before the termination of the relationship could not determine the nature of the preceding relationship. Also noted: That the applicant was on call for 24 hours a day, performed both office and personal duties for the respondent. Further noted: That the respondent had accused the applicant of planning to leave to start a new business. Held: That the applicant s dismissal was both procedurally and substantively unfair. The respondent was ordered to pay the applicant compensation equivalent to two months salary. Bargaining Council (Southern & Eastern Cape) v Melmons Cabinets CC & Another (2001) 22 ILJ 120 (LC) Borcherds v CW Pearce & J Sheward t/a Lubrite Distributors (1993) 14 ILJ 1262 (LAC) Hydraulic Engineering Repair Services v Ntshona & Others (2008) 29 ILJ 163 (LC) Liberty Life Association of Africa Ltd v Niselow (1996) 17 ILJ 673 (LAC) Rumbles v Kwa Bat Marketing (Pty) Ltd (2003) 24 ILJ 1587 (LC) SABC v McKenzie (1999) 20 ILJ 585 (LAC) SA Broadcasting Corporation v McKenzie (1999) 20 ILJ 585 (LAC) INSUBORDINATION GAJB Malangeni v Murray & Roberts Cementation (Pty) Ltd - Commissioner: Oosthuizen Dismissal - Employee failed to follow instructions - Dismissal fair. The applicant was dismissed for failing to follow instructions. He challenged his dismissal as being both procedurally and substantively unfair and sought an appropriate relief. The respondent testified that as it was going to open a new site, the applicant did not supply necessary paperwork of policies and procedures as requested. It contended that the applicant took leave without completing a leave form. He was charged with refusal to obey instructions, found guilty and dismissed. The applicant argued that he was not given an opportunity to ask questions during a disciplinary hearing. He contended that he was not given copies of a case book during the hearing as it was a company policy. The applicant further argued that he was not informed of the reasons for his dismissal. 13

14 Noted: That the applicant had failed to follow company s lawful instructions. The applicant did not inform his supervisor that he will be on leave. Also noted: That the applicant was well informed of the decision and reasons for his dismissal during disciplinary hearing. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was, therefore, dismissed. GAJB Zhou v Focus Connection (Pty) Ltd - Commissioner: Lucwaba Dismissal - Employee failed to follow lawful instructions - Dismissal fair. The commissioner was called upon to decide whether the dismissal of the applicant was substantively fair. The applicant was dismissed for allegedly failing to follow lawful instructions. The respondent testified that the applicant was called to attend a meeting with other staff members but he refused to do so. It also testified that the applicant had failed to produce a future stock demands and debtors list. The respondent argued that it was the company policy that if there was a staff meeting, all staff members must attend. The applicant had argued that the meeting was called during lunch time. He contended that he could not stop eating and go to the meeting. The applicant further argued that it was not his responsibility to compile a debtors list. Noted: That the applicant was given enough time to complete the task but he did not meet the deadlines. Held: That the applicant did not follow instructions and the dismissal of the applicant was fair. The application was dismissed. NW FAWU obo Caleni v Vector Logistics (Pty) Ltd - Commissioner: MacGregor Dismissal - Employee allegedly failed to follow instructions - Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was fair. The applicant was dismissed for allegedly failing to follow instructions. He challenged his dismissal as being unfair and sought reinstatement as a relief. The applicant testified that on the day in question, he requested for permission to go to fetch medication at home. He argued that he reported for duty while he should have stayed at home because he was sick. The applicant also argued that he had informed his supervisor about his whereabouts. The respondent claimed that the applicant asked for permission and promised to come back to work, but he did not return. It testified that the applicant was supposed to work overtime for stock taking. It argued that the applicant was called for a disciplinary hearing but he did not attend. Noted: That the applicant did not return to work as agreed when he left. The applicant did not inform his supervisor that he would not return to work. Also noted: That the applicant was aware of company rules. The applicant did not come for a disciplinary hearing as he was invited. Held: That the dismissal of the applicant was fair. The application was dismissed. 14

15 GATW Masenya v Eldo Crete CC - Commissioner: Richter Dismissal - Employee allegedly left work early without permission - Dismissal fair. The commissioner had to decide whether the dismissal of the applicant was being both procedurally and substantively fair. The applicant was dismissed for leaving work early and not coming to work on the following day. He challenged his dismissal as unfair and sought compensation as a relief. The respondent testified that the applicant left work early without permission on the date in question and he did not return to work the following day as he was notified to do so. It contended that the applicant had previous warnings for the same offence. The applicant claimed that he reached an agreement with his co-workers that he would leave early as he was going to apply for a house. He argued that other employees sometime leave early but were not disciplined. Noted: That the applicant left work early without authorisation and was informed to come to work the following day did not arrive. Also noted: That the applicant had previous warnings for the same offence. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was, therefore, dismissed. JURISDICTION KNDB Mzila v Lusitania Food Services - Commissioner: Grobler Jurisdiction CCMA lacks jurisdiction to entertain matter. The commissioner was called upon to determine whether CCMA had jurisdiction to entertain the matter. The applicant referred the matter to the CCMA, but did not proceed because the notice was not served to the respondent. When the matter was supposed to proceed again, it was postponed because the applicant s representative was not available. After the matter was set to proceed yet again, the applicant failed to appear and the matter was dismissed. An application for rescission of that ruling was rejected. The applicant then applied to another commissioner to rescind the first rescission ruling. The respondent contended that the second ruling was irregular because it had not been given notice to that application. Noted: That in terms of the CCMA Rules, an applicant for rescission must give notice to all affected parties and was not done so. Also noted: That the commission lacks jurisdiction to rescind a rescission ruling issued by the commissioner. A commissioner considering an application for rescission of an earlier rescission ruling must effectively review the earlier decision, a task falling exclusive jurisdiction of the Labour Court (LC). Further noted: That the commissioner who had rescinded the first rescission ruling had merely accepted a claim by the applicant s union representative that the notice of set down had not been sent to the applicant. The second commissioner had not dealt with the second leg on which the first ruling rested, that prospect of success was weak. Held: That the first ruling had been issued in error. The matter must set down for arbitration again. Further held: That if both rescission rulings were irregular, the decision to dismiss the matter because of the applicant s non-appearance still stood. The commissioner held that the CCMA lacked jurisdiction to entertain the matter. The application was dismissed. 15

16 De Wet & Others v Western Bank Limited 1979 (2) SA 1031 (A) Foschini Group (Pty) Ltd v CCMA & Others (2002) 23 ILJ 1048 (LC) Halcyon Hotels (Pty) Ltd t/a Baraza v CCMA & Others (2001) 8 BLLR 911 (LC) Kaefer Insulation (Pty) Ltd v President of the Industrial Court & Others (1998) 19 ILJ 567 (LAC) Mimmo s Franchising CC & Others v Spiro & Others (2000) 21 ILJ 2065 (LC) Northern Province Local Government Association v CCMA & Others (2001) 5 BLLR 539 (LC) Tao Ying Metal Industry (Pty) Ltd v Pooe NO & Others (2007) 16 (SCA) WE IMATU obo Mortimer v Stellenbosch Municipality - Commissioner: Bulbring Jurisdiction CCMA lacks jurisdiction to entertain the matter- Matter referred to council. The commissioner had to decide whether CCMA had jurisdiction to entertain the matter. The applicant, a director of corporate services of the municipality, was suspended on full pay pending the investigation on charges of misconduct. He referred a dispute to CCMA for unfair labour practice. During conciliation, the respondent contended that the CCMA lacked jurisdiction to entertain the matter because both parties fell within the scope of local government bargaining council. Noted: That the applicant s contract of employment recorded the parties consent to the jurisdiction of the CCMA in respect of any claim arising from the contract of employment. Also noted: That a council agreement provided that employment contracts of municipal managers or employees reporting directly to municipal managers should recognise CCMA s jurisdiction. Held: That both parties cannot confer jurisdiction on the commission while it lacked it. The council agreement provided that all disputes between municipalities and their employees must be referred to the council. The matter was, therefore, referred to the council as the commission lacks jurisdiction. MISCONDUCT GAJB Ntuli v Seton S.A. - Commissioner: Hintsho Dismissal Employee dismissed for allegedly fighting and assaulting with colleague - Dismissal unfair The commissioner was called upon to determine whether the dismissal of the applicant was fair. The applicant was dismissed for allegedly fighting with a colleague. He challenged his dismissal as being unfair and sought reinstatement as a relief. The respondent testified that the applicant was dismissed for disorderly behaviour and fighting with a colleague. It contended that the applicant was given an opportunity during a disciplinary hearing to defend himself. The respondent argued that the applicant had a bad record for disorderly behaviour. It testified that the applicant had been warned previously that his behaviour was unacceptable, if he repeats, he will be dismissed. The applicant had testified that he sprinkled a colleague with water by mistake. He testified that the colleague left for a while, when he returns he called him short finger and short finger is troublesome. The applicant contended that he had told the colleague that he does not like to be called short finger and he grabbed him. Noted: That the applicant grabbed colleague in retaliation for having been called by names which he did not prefer. The applicant scratched the colleague and assaulted him. The company s policy stated that assault is a dismissible offence. Also noted: That there was no evidence to show that the applicant was provoked by the colleague. Further noted: That the applicant had a history of disorderly behaviour at work. 16

17 Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. GAJB Mathuloe v Lapace Construction (Pty) Ltd - Commissioner: Sesani Dismissal for misconduct - Employee dismissed for fighting - Dismissal fair. The commissioner was called upon to decide whether the dismissal of the applicant was fair. The applicant was dismissed for allegedly fighting at work. She challenged her dismissal as being unfair and sought an appropriate relief. The applicant alleged that she was busy washing one of the respondent s client s vehicle when a co-worker assaulted her. She testified that she reported the incident to the respondent, but it said that they must sort their problems themselves. The applicant also testified that she reported the matter to the police due to the nature of the injuries she sustained. The respondent testified that it received a call from its client that two employees were fighting while on duty. It called them for a disciplinary hearing, found guilty and were both dismissed. Noted: That both employees were found guilty and were dismissed. The company policy stated that fighting on duty was a dismissible offence. Also noted: That the applicant did not submit any documents to proof that she reported the incident to the police. Held: That the dismissal of the applicant was fair. The application was, therefore, dismissed. KNRB Sibiya v SAB t/a ABI (Amalgmated Beverage Industries) - Commissioner: Vermaak Dismissal Employee dismissed for allegedly intimidating colleague Dismissal fair. The commissioner had to determine whether the dismissal of the applicant was being both procedurally and substantively fair. The applicant was dismissed for allegedly intimidating a colleague. He challenged his dismissal as unfair and sought for an appropriate relief. The respondent s witness testified that on the day in question, the applicant told her that he is going to hit her. It testified that the applicant throw the bowl of sugar on the colleague. The respondent contended that the applicant had received a final warning previously for fighting with another colleague. The applicant denied that he intimidated or assaulted a colleague. He argued that the counter was slippery and caused the sugar to fall when he placed it on the counter. Noted: That the applicant was previously issued with a final written for fighting at work. The applicant was supposed to be aware that his behaviour was unacceptable. Held: That the applicant had intimidated a colleague and acted in a violent manner. The dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. Case reference SAAWU & Others v Dorbyl Automotive Products (Pty) Ltd (1988) 9 ILJ 680 (IC) NW Mdaka v Rustenburg Platinum Mines - Commissioner: Ramotshela Dismissal for misconduct Employee arrested while on leave - Employee did not report for his whereabouts - Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was both substantively and procedurally fair. The applicant was detained while on leave, he did not report to work and he was dismissed. He challenged his dismissal as being both substantively and procedurally unfair and sought appropriate relief. 17

18 The applicant had admitted that he was absent from work as alleged by the respondent. He also admitted that he did not inform the respondent about his whereabouts. The applicant contended that the penalty of dismissal was too harsh. The respondent testified that the applicant was dismissed for not reporting to work. It contended that the applicant did not notify it of its whereabouts, he only return to work after two months. Held: That it would be unreasonable and burdensome for the respondent to keep the applicant s position vacant. It was held that the dismissal of the applicant was both substantively and procedurally fair. The application was, therefore, dismissed. GAPT Ramporo v Protea Security Group - Commissioner: Tsabadi Dismissal for misconduct Employee allegedly drove customer client s vehicle without permission - Dismissal fair. The commissioner was called to decide whether the dismissal of the applicant was being both substantively and procedurally fair. The applicant was dismissed for allegedly driving a respondent s client vehicle without permission. He challenged his dismissal as unfair and sought reinstatement as a relief. The respondent testified that the client left the car and keys with the applicant for service to be done for the following day. It claimed that when the client had left, the applicant took the vehicle and drove it. The respondent argued that it was the applicant s responsibility to protect the property of its client and customers. It contended that the applicant was not allowed to drive the client s vehicle or those belonging to the client s customers as per the respondent s policies and procedures. The applicant denied that he drove the same vehicle that was mentioned by the respondent but he drove a different vehicle. He claimed that he was requested by the client to drive the car. Noted: That the applicant s main function was to protect the property of the client and its customers. The applicant was aware of the rules and regulations concerning the respondent s customer and clients vehicles. Also noted: That the applicant had admitted driving the customer s client vehicle during the disciplinary hearing. The applicant s conduct had irretrievably damaged the relationship of trust. Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. MISUSE OF GAPT Maumakwe v Vodacom - Commissioner: Ferreira Dismissal for misuse of company property Employee allegedly sent derogatory to customer - Dismissal fair. The commissioner was called upon to decide whether the dismissal of the applicant was being both substantively and procedurally fair. The applicant was dismissed for allegedly sending derogatory message by to the respondent s customer. She challenged her dismissal as unfair and sought for an appropriate relief. The respondent contended that it had received a message from the customer who was complaining about the sent. The respondent argued that it had a strict policy about unauthorised access of customer s information. It contended that it could lose its licence as it was regulated by strict laws of Independent Communications Authority of South Africa (ICASA). The applicant denied that he had done anything wrong and claimed that the respondent had framed him to get rid of him. He claimed that he had a clean disciplinary record and dismissal was too harsh. Noted: That the applicant had claimed that there was conspiracy against him but he could not provide any further evidence to substantiate the allegation. Also noted: That the applicant was aware of the company rules that regulates the usage of s. 18

19 Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was, therefore, dismissed. Anglo American Farms t/a Boschendal Restaurant v Komjwayo (1992) 13 ILJ 573 (LAC) Gerber v Algorax (Pty) Ltd (1999) 20 ILJ 2994 (CCMA) Malelane Toyota v CCMA (1999) 6 BLLR (LC) NUM & Others v Free State Consolidated Gold Mines (Operations) Ltd (1995) 12 BLLR 8 (AD) NEGLIGENCE NC NUM obo Motala v Nare Diamond Mining - Commissioner: Kayster Dismissal Employee dismissed for being under the influence of drugs - Dismissal unfair. The applicant, a dump truck operator was dismissed for negligence and for being under the influence of drugs. He challenged his dismissal as substantively unfair. The respondent testified that the applicant was seen smoking dagga while driving the truck and caused accident due to his negligence. It claimed that there was a strict rule against the smoking of dagga which all employees knew about it. The respondent also claimed that other employees had been dismissed for negligent driving. The applicant denied that he smoked dagga on the day in question but claimed that he was smoking a cigarette. The applicant mentioned that he was not aware of any policy relating to the smoking of dagga. He testified that having dreadlocks did not mean that he smokes dagga, it was just a hairstyle. The applicant claimed that he was following his conductor s instructions, the ground was not level and the accident occurred. Noted: That the evidence of the respondent was confusing and contradictory. The mere fact that the applicant wore dreadlocks was insufficient to prove that he smoked dagga. Also noted: unstable. That at the time of the incident, the soil had been removed from the base of the ramp rendering it Held: That the applicant was innocent for charge and the dismissal was substantively unfair. The applicant was, therefore, reinstated. GAJB Makhetha v Cyber Cleaning & Security - Commissioner: Smith Dismissal Employee dismissed for failing to follow company rules and procedures - Dismissal fair. The commissioner was called upon to determine whether the dismissal of the applicant was both being substantively and procedurally fair. The applicant was dismissed for negligence. He challenged his dismissal as unfair and sought appropriate relief. The applicant testified that he did not attend the hearing as he was unfamiliar with the venue. He contended that he was not given enough time to prepare for the hearing. The applicant also testified that he was given and forced to sign a notice of attendance of the hearing. He argued that he was singled out as the culprit while other employees were not charged. The respondent contended that the applicant failed to active the security sensors for a period of four hours on the day in question. It testified that the applicant was aware of the procedures to be followed. The respondent s client was not sure whether the applicant was at work or not and it decided to terminate the contract with the respondent. Noted: That the applicant did not dispute that he had failed to activate the sensor buttons nor that he was familiar with the procedures to be followed. 19

20 Also noted: That the applicant was served with a disciplinary notice. If he was not prepared, he should have attended the hearing and request for a postponement. Held: That the dismissal of the applicant was both substantively and procedurally fair. The application was dismissed. KNDB Mkhize v Pick n Pay - Commissioner: Balkaran Dismissal Employee dismissed for till shortage - Dismissal fair. The applicant was dismissed for till shortage. She challenged her dismissal as being unfair and sought reinstatement. The respondent testified that the applicant had been issued with several warnings for till shortages previously. It also testified that the applicant had been transferred to other departments as a recommendation from the doctor that she was required to do less stressful work. The applicant s salary was unchanged. It further testified that the applicant was transferred to her original position at the time of her dismissal due to negligence. The applicant testified that she had stress related problem that affected her performance. She argued that the sanction of dismissal was too harsh. Noted: That the applicant did not deny that she had several incidents of till shortages and several warnings. The respondent had accommodated the applicant by transferring her to less stressful position. Also noted: That the applicant was aware of the company policy related to till shortage. Held: That the dismissal of the applicant was fair. The application was, therefore, dismissed. ECEL SATAWU obo Nel v Vehicle Delivery Services (Pty) Ltd - Commissioner: Cahill Negligence Employee dismissed for ignoring safety rules Employee causing accident while offloading vehicle - Dismissal fair. The applicant, a carrier driver, was dismissed after a vehicle transported in his carrier was damaged in an accident while he was offloading it. He challenged his dismissal as being both procedurally and substantively unfair. The applicant testified that on the day in question, the dealership where he was supposed to deliver the vehicles was already closed, but he decided to offload their units. One of the vehicles was a non-runner. He claimed that he contacted his supervisor by cell phone, but he did not answer. Later on, he started to offload the vehicle. The applicant also claimed that in terms of the applicable company procedures, he untied the anchor straps of all four wheels as the car was stable. He contended that he opened the driver s door so as to push the car. He further claimed that as he was pushing the car backwards with his right foot, his foot slipped, causing all his weight to shift to his right hand side. He indicated that he only recalls lying on the ground when the rescue team arrived to assist him. The respondent s witness testified that he had initiated an investigation on the same day that he became aware of the applicant s accident. He claimed that he inspected video footage of the incident. Subsequent to that, the applicant was called to a disciplinary hearing and charged with: gross negligence in that he had caused extreme damage to the respondent s vehicle, failure to comply with a direct instruction, and breach of internal safety rules in that his actions placed himself and fellow employees lives at risk. Noted: That the applicant did not comply with the rule which required that a non-runner vehicle must be firstly engaged in a gear, and the hand brake must be pulled up fully before the driver undo anchor straps. Had the applicant complied with the procedure, the vehicle would not have run down the ramp on its own. Also noted: That the applicant had never lost consciousness after the accident, he knew exactly what had happened. Held: That the dismissal of the applicant was both procedurally and substantively fair. The application was dismissed. 20

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