DISHONESTY – ATTENDING RUGBY MATCH WHEN OFF SICK
Woolworths v CCMA [2021] ZALAC 49
Mr Alexander advised one of the managers that he was ill and that he would not be attending work on that day, but he and his father travelled for at least an hour to attend a rugby match. When he returned to work he told a manager that, although not well, he had attended a rugby match. He was found guilty of gross misconduct and dismissed. At the CCMA the dismissal was found to be substantively and procedurally unfair and reinstatement was ordered. The Labour Court found that the CCMA commissioner had erred in finding the dismissal procedurally unfair, but that the dismissal was substantively unfair.
Davis JA finds that there was little dispute about the dishonesty of Mr Alexander’s action [9] and that the lenient approach to dishonesty of the commissioner cannot be countenanced [12]-[13].
The appeal is upheld and the order of the court a quo replaced with one reviewing the arbitration award and replacing it with one finding that the dismissal was substantively and procedurally fair.
(Waglay JP and Savage AJA concurred.)
[15] For the appellant to adopt the approach that the third respondent was required to act with integrity and abide by the appellant’s policies, procedures and codes is manifestly justifiable.
[16] In the circumstances, it is clear that the relationship of trust as a result of his initial unreliability and now dishonest conduct had broken down. Viewed from the record of this employee, dismissal was clearly the appropriate sanction.
COMPULSORY PRIVATE ARBITRATION POLICY
Gerber v Stanlib Asset Management [2021] ZALAC 51
Mr Gerber appeals the Labour Court’s order upholding Stanlib’s jurisdictional point and staying the proceedings, which were referred to arbitration in terms of the company’s compulsory private arbitration policy. The court found that by signing his letter of appointment, he had accepted the terms and conditions of employment, and specifically the disciplinary code and procedure, as published on the intranet, which he was urged to read.
Kubushi AJA discusses whether there was a validly enforceable compulsory private arbitration between the parties; the construction of the letter of employment signed by Mr Gerber and whether such letter, by reference, incorporated the compulsory private arbitration agreement in his employment contract; and whether the court a quo exercised its discretion, in terms of s 158(2) of the Labour Relations Act, judicially; and Mr Gerber’s contention that the compulsory private arbitration procedure does not apply because at least one of his claims is one of automatically unfair dismissal, a matter that ought to be dealt with by the court.
The appeal is dismissed, with no order of costs.
(Waglay JP and Davis JA concurred.)
AMENDMENT – A NEW CAUSE OF ACTION AND PRESCRIBED?
De Abreu v Pestana Family Meat and Chicken [2021] ZAGPJHC 840
Plaintiff alleges that the parties entered an agreement for the sale of a business called Sportsmen’s Bar and Restaurants, but that the liquor licence was never transferred, so the defendant was in breach. Plaintiff claims the deposit of R1,5 million plus submitted post-dated cheques. After testifying, plaintiff introduced an amendment as a new paragraph to the particulars of claim, which asserted that the parties entered into a written declaration of sale recording payments which the plaintiffs had made. Defendants raised a special plea that the amendment had prescribed in that it amounted to a new cause of action introduced more than eight years after it arose.
Victor J discusses whether the amendment introduces a new cause of action; whether the second written contract is really a form of evidence supporting the initial cause of action; and the defendants contention that the plaintiffs now rely on a second written agreement that differs substantially from the alleged first agreement originally pleaded.
The court finds that the second agreement supports the initial claim or cause of action pleaded in the first agreement, that the sale failed. That much is common cause because the liquor licence could not be transferred. It is the components of the two agreements that are differently comprised, but the “claim” is essentially the same.
The special plea is dismissed with costs.
In short, the word “debt” does not refer to the “cause of action”, but more generally to the “claim”.
Harms JA in Drennan Maud & Partners v Pennington Town Board [1998] ZASCA 29
ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Louis Case Law
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