IN THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

Not Reportable 
CASE NO: PR69/20

In the matter between:

VOLKSWAGEN GROUP SOUTH AFRICA (PTY) LIMITE	Applicant

and

NATIONAL UNION OF METALWORKERS OF
SOUTH AFRICA (NUMSA) 				First Respondent

VELEPHI NYAWO 						Second Respondent

COMMISSION FOR CONCILIATON,
MEDIATION AND ARBITRATION 			Third Respondent

JONATHAN GRUSS N.O 					Fourth Respondent

Heard: 9 February 2022

Delivered: This judgment was handed down electronically by circulation to the Applicant's and the First Respondent Trade Union's Representative by email, publication on the Labour Court website and release to SAFLll. The date and time for handing - down is deemed to be 12h00 on 1 July 2022.

JUDGMENT

LALLIE J

[1] This is an application to review and set aside an arbitration award of the fourth respondent who will be referred to as the commissioner in its judgment. It is opposed by the first respondent on behalf of the second.

[2] The applicant is a motor vehicle manufacturer. A number of its employees enjoy the benefit of leasing its vehicles. Mr Tyopo (Tyopo) who was employed by the applicant as an Industrial Engineer enjoyed the benefit. On 17 March 2017 Tyopo made a report at the Hum.ewood Police Station that his lease vehicle had been hijacked. The police interrogated him and he made a confession to the effect that in August 2015 he had allowed an unauthorized third party to drive the lease vehicle. The third party was involved in an accident which left the vehicle damaged. In terms of the applicant's policies, disciplinary action had to be taken against Tyopo for allowing an unauthorised person to drive the vehicle. In addition, the repairs of the vehicle which Tyopo was responsible for had to be done by approved body repairers. Tyopo was not willing to face the consequences and discussed his problem with the second respondent. He informed the police that the second respondent had told him that her boyfriend Mr Magala (Magala) who was involved in car hijacking activities could have the car hijacked. He confessed that the hijacki ng he had reported was, in fact staged.

[3] Disciplinary action which led to Tyopo's dismissal was taken. The applicant took a decision to discipline the second respondent for her participation in Tyopo's misconduct but he refused to testify against her. The applicant consequently preferred the following charge against the second respondent:

'It is alleged that you have committed misconduct in that you sought to circumvent the Company's Policies and Procedures in facilitating'-the purported repair of a lease vehicle of an employee of the Company, by a person not authorised to do so, despite knowing full well that the  Company's Vehicle Lease Scheme requires repairs to lease vehicles to be facilitated through the Company's Insurers, and to be done by approved body repairers.'

[4] In his reasons for his decision the commissioner found that the second respondent was aware that a person leasing a vehicle was prohibited from having it fixed or worked on by an unauthorised person. He, however, found that the second respondent was dismissed for facilitating a third party to breach the rule by introducing Tyopo to Magala who would fix the damaged vehicle. The commissioner further accepted that the vehicle Tyopo was talking about was a lease vehicle. The commissioner made a finding that the applicant had no written policy which dealt with the reasons for the second respondent's dismissal. He found her dismissal substantively unfair and ordered the applicant to re-employ her. He did not grant the relief of reinstatement because the second respondent had been dishonest when giving evidence. She denied knowledge of the rule against having lease vehicle repaired by unauthorized persons. She also denied having knowledge that the vehicle Tyopo need assistance with was a lease vehicle.

[5] The applicant's main grounds for review were that the commissioner erred in finding that the second respondent did not breach a rule of conduct regulating the employment relationship. It was submitted that the error is demonstrated by a number of findings. The findings are that the applicant's shop stewards were unaware of any rule for which the second respondent was dismissed. The commissioner found questions of honesty andi  integrity irrelevant in determining whether the second respondent had committed misconduct. The absence of the implied duty to disclose information of misconduct by a fellow employee and that only Tyopo breached the lease rules. It was argued that the findings are irrational, inconsistent with evidence and resulted in an unreasonable decision. A further attack on the award is based on the relief the commissioner granted.

[6] This application turns on whether the applicant discharged the onus of proving the substantive fairness of the second respondent's dismissal by proving that she committed the misconduct she was dismissed for. The commissioner found that the applicant did not discharge the onus of proof and the first and second respondent contended that the commissioner's decision is correct and reasonable. It is trite that the test for review is whether the decision reached by the commissioner is one that a reasonable decision-maker could not reach based on the evidence tendered at arbitration. The reasonableness of the decision is based on the totality of the evidence tendered at arbitration.
 
[7] It is common cause that the second respondent knew that having a lease vehicle repaired by an unauthorised person constituted misconduct for which an employee could be dismissed. The commissioner found that the second respondent was dismissed for facilitating the breach of the rule by Tyopo. He expressed the view that the rule the second respondent was dismissed for breaching did not form part of the applicant's written policies and was not even known by shop stewards.	

[8] I accept the applicant's version that the commissioner erred in finding the second respondent's dismissal substantively unfair. The evidence which the commissioner accepted proved that the second respondent facilitated Tyopo's misconduct. She made it possible. The applicant argued, correctly, that she aided and abetted it. By introducing Tyopo to Magala for purposes of having the lease vehicle repaired by an unauthorised person, the second respondent facilitated the misconduct by Tyopo. The failure to present a written policy against facilitating commission of misconduct is of no moment. It is common cause that the second respondent was aware that she was facilitating the commission of serious misconduct.

[9] The applicant submitted that the commissioner 's reliance on Nation Union of Metal Worker of SA obo Nganezi and Others v Dunlop Mixing and Technical Services (Pty) Ltd  was misplaced . The commissioner found that in terms of that judgment fiduciary duty is not implied by law into all employment relationships. It may be inferred from employment contracts and moral notion of trust, confidence, loyalty and good faith. He relied on the finding that the contractual duty of good faith does not imply the imposition a unilateral fiduciary obligation on employees to disclose known information of misconduct of their co-employees to employers. Reliance of the above authority overlooks the fact that the second respondent was not dismissed for a passive act of not disclosing known information of misconduct by a fellow employee. She was dismissed for actively facilitating an act of misconduct by a fellow employee.

[10] Defending the correctness and reasonableness of the award the first respondent argued that the second cannot be an accomplice to misconduct Tyopo did not commit. Reliance was placed on Minister of Justice and Constitutional Development v Nomtombi Masingili and Others where an accomplice is defined as 'someone whose actions do not satisfy all the requirements for criminal liability in the definition of an offence, but who nonetheless intentionally furthers the commission of a crime by someone else who does comply with all the requirements (the perpetrator). The intent required for accomplice liability is to further the specific crime committed by the perpetrator'. The authority is distinguishable from the matter at hand. Firstly, it is based on the definition of an accomplice in section 1( ) (b) of the Criminal Procedure Act which is not relevant in this matter. Secondly, the applicant did not charge and dismiss the second respondent for being an accomplice. The authority can therefore not assist the first and second respondent.

[11] I have taken into account the submissions on behalf of the first respondent in defence of the finding on the substantive fairness of the second respondent's dismissal. None refuted the applicant's submissions proving the unreasonableness of the finding. The totality of the evidence tendered at arbitration proves that the applicant discharged the onus of proving the substantive fairness of the second respondent’s dismissal. In the circumstances the commissioner had no legal grounds to grant the second respondent relief. The decision granting the second respondent the relief of re­employment is unreasonable.	

[12] The applicant sought an order correcting the arbitration award. Based on the submissions before me and the papers filed of record the decision on the fairness of the second respondent's dismissal can be properly and fairly made. The second respondent was dismissed in 2016. Her dispute was arbitrated and the arbitration award was reviewed and set aside. It was arbitrated de nova and the second arbitration award was again challenged in review application at hand. Fairness requires that the matter be brought to finality. The papers filed of record and the submission made before me prove, for the reasons already given that the applicant discharged the onus of proving the substantive fairness of the second respondent's dismissal.

[13] I could find no reason in fairness to grant a costs order against the first respondent.

[14]	In the premises, the following order is made:
 
Order:

1.	The arbitration award issued by the fourth respondent under case number ECPE854-17 dated 24 March 2020 is reviewed and set aside and substituted with the following:

1.1	The dismissal of Velephi Nyawo by Volkswagen Group South Africa

1.2	There is no order as to costs

Z. Lallie
Judge of the Labour Court of South Africa

Appearances

 For the Applicant: 			Advocate Le Roux
Instructed by				Chris Baker & Associates

For the First Respondent: 	Mr Mogare of Numsa