DISMISSAL – TRUST RELATIONSHIP – FAILING BREATHALYSER
Route Management v Goldschmidt NO [2022] ZALCCT 14
The company manufactures truck equipment and uses cutting equipment such as large saws, highly flammable torch cutters, welding equipment, and large machines that press parts and mould metal. Mr Douw’s main job was to operate a band saw and the working environment is dangerous and requires employees to have their faculties intact to prevent injury or death. The company reduced its injuries on duty by zero tolerance to safety protocols, in particular to alcohol and drugs. Mr Douw failed a breathalyser test and following a disciplinary hearing was dismissed. The commissioner at the bargaining council found the dismissal substantively unfair and ordered required the company to reinstate Mr Douw and pay him three months’ retrospective pay.
Haffegee AJ notes that the Commissioner recognised the company’s zero-tolerance policy as a crucial disciplinary tool, but that it was still necessary for chairpersons of disciplinary hearings to apply their minds to the circumstances of each case rather than using a blanket rule that every transgression must result in dismissal. The Company’s policy said that progressive discipline would not apply for contravention of its zero-tolerance policy relating to alcohol, however, the policy stated that employees may be summarily dismissed for transgressions and not that employees will be dismissed.
The court discusses the commissioner’s reliance on the case of Shoprite Checkers v Tokiso and finds that the commissioner clearly applied his mind to the company’s reason for adopting a zero-tolerance policy and made decisions that a reasonable decision-maker could make in finding that the relationship had not broken irretrievably, despite the company being disappointed with Mr Douw.
The application to review the award is dismissed.
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CONSUMER PROTECTION ACT – CANCELLED GOODS
Adlam v Fabri South Africa [2022] ZAGPJHC 206
Ms Adlam concluded agreements with Fabri for the installation of various premium kitchen sinks and cupboards, bedroom doors and tops and other fittings and work. Ms Adlam made deposits of R538,000. Not long after that she asked Fabri to hold off on the project because of a dispute that had arisen between her and the developer of her property. Fabri said that it would refund half of the deposit because of materials ordered. Ms Adlam lodged a claim with the Consumer Goods & Services Ombud and the matter was referred to the National Consumer Commission, which issued a notice of non-referral. She approached the High Court, but her application was dismissed and she now appeals to the full bench.
Mdalana-Mayisela J discusses whether the Consumer Protection Act (CPA) is applicable; the claim that the goods were ordered from a catalogue and not altered; the contention that the cancellation of the order was lawful, being permissible in terms of the CPA; the argument that Fabri’s redress was limited to a reasonable cancellation charge as per s 17(3)(b) of the Act; Fabri’s argument that the goods are special-order goods in accordance with the customer’s specifications and floor plan; and the meaning of “special-order goods” in s 1 of the Act.
The appeal is dismissed with costs. (Opperman J and Meersingh AJ concurred.)
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JUST AND EQUITABLE RELIEF – SALE OF STRATEGIC OIL STOCK
Central Energy Fund v Venus Rays Trade [2022] ZASCA 54
The Strategic Fuel Fund (SFF) is responsible for the country’s strategic stock of oil and is a wholly owned subsidiary of the Central Energy Fund (CEF). The High Court reviewed and set aside the controversial rotation of the stock of some 10 million barrels of crude oil and the transactions that followed. The court found that the decisions related to the national interest and that the illegalities were serious and pervasive with wholesale disregard of corporate governance and transparency, with bribes accepted to procure some of the transactions. It made an order granting certain oil traders (among the respondents) compensation for their storage fees and out-of-pocket-expenses as contemplated in s 172(1)(b) of the Constitution and s 8(1)(c) of the Promotion of Administrative Justice Act (PAJA). The issue at the Supreme Court of Appeal is whether that order was appropriate.
Schippers JA discusses the principles of just and equitable relief; that the Constitution confers on the courts very wide powers to craft an appropriate or just remedy even in exceptional, complex or apparently irresoluble situations; that s 8(1) of PAJA gives effect to this wide remedial discretion; and the corrective principle and the no-profit-no-loss principle. The court notes that the appellants’ case is based on the misconception that the award of out-of-pocket expenses amounted to compensation akin to damages for the loss of the contracts in question. But properly understood, requiring the SFF to repay those expenses is a consequence of restitution: it serves to restore the respondents to the status quo ante. The obligation to repay out-of-pocket expenses accords with the guiding principles for crafting appropriate relief. A balance had to be struck, taking into account the public interest, and whether the status quo ante could be restored to an equitable extent. The appeal is dismissed.
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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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