Autozone v Dispute Resolution Centre of Motor Industry and Others (JA52/2015) [2019] ZALAC 46; [2019] 6 BLLR 551 (LAC); (2019) 40 ILJ 1501 (LAC) (13 February 2019)
An employer relying on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible.
Facts:
The employer's Regional Operations Manager instructed the employee to employ casual labour to clean up waste and rubble at the back of the store. The employee then recruited three casual labourers. In the presence of the employee, the Regional Operations Manager informed the three casuals that they would each be paid R50 for the task. When the task was completed, the Regional Operations Manager, in the presence of the branch manager, instructed the employee to obtain R150 from the cashier. Despite this instruction, the employee approached the cashier and requested R180.
Later the three casuals approached the branch manager and complained that the R50 payment to each of them was too little for the work done. When the branch manager was informed by the cashier that she had in fact handed R180 to the employee, he confronted the employee and asked why he had requested R180 and only paid over R150. The employee responded by taking the R30 out of his pocket and later explained that he had acted on his own initiative to pay the casuals more and had withheld the R30 balance until the work was complete. The employee was dismissed on grounds of dishonesty (theft, misappropriation of company funds or attempted theft or misappropriation).
At arbitration, the arbitrator concluded that the employer had proved that the dismissal was for a fair reason and held that the dismissal was substantively fair. On review, the Labour Court held that there was no evidence that showed how the misconduct impacted on the trust relationship between the parties. In the absence of such evidence, the arbitrator ought to have found that the dismissal unfair because there was no proof that the trust relationship between the parties had broken down.
On appeal, the Labour Appeal Court held that the evidence as a whole established that the employee deliberately and falsely represented that the amount to be paid to the casuals was R180 instead of R150, and that he intended to pocket the difference for his own benefit. The LAC said that it was not necessary for the employer in such circumstances to have produced evidence to show that the employment relationship had been irreparably destroyed. The nature of the offence and the manner of its commission support a conclusion that the continuation of the relationship had become intolerable. The LAC upheld the appeal and overturned the LC order, the effect of which was to confirm the arbitrator's award that the dismissal was fair.
The LAC did say, in line with the judgment in Woolworths (Pty) Ltd v Mabija and Others (PA3/14) [2016] ZALAC 5 (19 February 2016), that an employer relying on irreparable damage to the employment relationship to justify a dismissal, would be prudent normally to lead evidence about that, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals dishonesty or deceit, the LAC accepted that the employer probably will lose trust in the employee due to the untrustworthy behaviour, rendering a continued relationship intolerable.
Extract from the judgment:
Murphy AJA:
[10] Although Sikhakhane did not file a cross-appeal regarding the implicit finding of the Labour Court that the misconduct had occurred, he persisted before us with his denial of dishonesty. His submissions in that regard are unconvincing. The idea that he was holding back the R30 until the job was completed is inherently improbable. If the job was indeed incomplete, it was more likely that he would have held back the entire amount until the job was finished. But, in any event, Govender and Thakalani both testified that Sikhakhane had been authorised to requisition R150. That evidence was not seriously challenged. As a driver he had no authority to determine the amount of payment. Additionally, the complaint made by the casuals to Thakalani was that a payment of R50 was insufficient. They were aggrieved at being paid R50, not R60, for the job. The evidence as a whole establishes on the probabilities that Sikhakhane deliberately and falsely represented to Mashego that the amount to be paid to the casuals was R180 instead of R150 and that he intended to pocket the difference for his own benefit. This was corroborated by Thakalani's evidence that Sikhakhane could not come up with a plausible explanation at the moment he was confronted.
[11] Consequently, the only issue on appeal is whether Sikhakhane's conduct breached the trust relationship so as to render the continuation of the employment relationship intolerable.
[12] Undeniably, the evidence on the issue is somewhat thin. An employer relying on irreparable damage to the employment relationship to justify a dismissal would be prudent normally to lead evidence in that regard, unless the conclusion that the relationship has broken down is apparent from the nature of the offence and/or the circumstances of the dismissal. Where the offence in question reveals a stratagem of dishonesty or deceit, it can be accepted that the employer probably will lose trust in the employee, who by reason of the misconduct alone will have demonstrated a degree of untrustworthiness rendering him unreliable and the continuation of the relationship intolerable or unfeasible.
[13] Dishonest conduct, deceitfully and consciously engaged in against the interests of the employer, inevitably poses an operational difficulty. The employer thereafter will be hard pressed to place trust in such an employee. It will be difficult going forward for any task involving a measure of discretion or reliance to be entrusted to the deceitful employee. The operational requirements of the employer alone, therefore, may very well justify the dismissal. An employer is entitled to have a driver it can rely on to act in good faith to advance and protect its interests. Sikhakhane's conduct shows that he is not such a driver. It was not necessary for Autozone in such circumstances to have produced evidence to show that the employment relationship had been irreparably destroyed. The nature of the offence and the manner of its commission support a conclusion that the continuation of the relationship had become intolerable. The employer cannot reasonably be expected to retain Sikhakhane in its employ. Hence, the finding to that effect by the arbitrator is one that a reasonable decision-maker could reach. There was accordingly no basis for the Labour Court to set aside the award.
[14] In the premises, the appeal is well founded. This is not a case where costs should be awarded.
[15] The following orders are made:
15.1. The appeal is upheld.
15.2. The order of the Labour Court is set aside and substituted with an order dismissing the application for review.
15.3. The dismissal of the third respondent is declared to have been substantively fair.