In the case of Percy v Two Rivers Platinum Mine and Others (JR1777/19) [2023] ZALCJHB 31 (6 March 2023) the employee was suspended after which he was charged with dishonesty. The employee had utilised company and contractor employees and facilities at the salvage yard for repairs and renovations to his private truck. He used the profile created for the “vendor bidding process” to purchase items instead of using his own profile.

The employee was found guilty of the two charges and dismissed. The Commissioner at the Commission for Conciliation, Mediation and Arbitration (CCMA) found the employee’s dismissal both procedurally and substantively fair.

The matter was referred to the Labour Court (LC) in an application to review and set aside the arbitration award issued by the CCMA.

The LC found that the Commissioner understood the evidence of the witnesses and found there to be discrepancies between the employee’s witnesses.

Regarding the fictitious profile created by the employee, it was testified that the employee was tasked to use the fictitious profile to ensure that collusion did not take place. The intention was not for the employee to use this account for personal purchases. The employee evidently knew the purpose of the creation of the account, however, he elected to utilise the account for purposes other than its intended purpose.

As head of the salvage yard, the employee inherently had information that the other bidders did not have. The decision to purchase items at an auction with the fictitious profile was clearly to the employee’s advantage.

The CCMA found that the grounds on which the employee challenged the procedural fairness of the disciplinary hearing held no merit.

The LC agreed with the Commissioner. It held that the manner in which the employee conducted himself during his disciplinary hearing and arbitration was not compatible with that of a person who is remorseful. For instance, there were discrepancies in the evidence of the employee’s witnesses, and his own evidence indicated that he elected to deny any wrongdoing and blamed the subordinates. The employee took the posture of an innocent bystander. The evidence did not support this posture.

In the circumstances of this case, it would have been both unfair and unreasonable to expect the employer to reinstate the employee.

Dishonesty in the employment context is unacceptable. Dismissal is generally justified in all cases of serious dishonesty, not merely those in which employees enrich themselves materially at the expense of their employer. The LC found that the employee’s conduct was grossly dishonest, and dismissal was, therefore, an appropriate sanction.

The LC found that the ruling of the CCMA was reasonable. The employee’s review application was dismissed and there was no order as to costs.

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