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FLYNOTES: LABOUR – Dismissal – Gross dereliction of duty – Mandatory personal and physical client engagement – Alleged breach due to client complaint – Failure to adhere to six-week client call system – Award finding failure did not amount to gross dereliction – Failure to consider mandatory call-cycle – No material regard to evidence – Legal meaning applied to gross dereliction of duty incorrect – Misdirection – Led to an unreasonable conclusion – Award reviewed and set aside.

THE LABOUR COURT OF SOUTH AFRICA, GQEBERHA

 

Not Reportable

Case No: PR322.22

 

In the matter between:

 

MONTEGO PET NUTRITION (PTY) LTD                                       Applicant

 

and

 

COMMISSION FOR CONCILIATION, MEDIATION

AND ARBITRATION                                                                      First Respondent

 

TEBOGO MORAJANE N.O.                                                          Second Respondent

 

FREDERICK JOHANNES DANIEL MULLER                               Third Respondent

 

Heard:         3 July 2024

Delivered:   25 July 2024 (This judgment was handed down electronically by emailing a copy to the parties. The 25 July 2024 is deemed to be the date of delivery of this judgment).

Summary:

 

JUDGMENT

 

Jessop, AJ

 

Introduction

 

[1]  This is an opposed review application concerning an arbitration award issued by the Second Respondent acting under the auspices of the First Respondent.

 

[2]  In terms of the award, the Second Respondent found the dismissal of the Third Respondent by the Applicant to be substantively unfair.

 

[3]  The Applicant was ordered to reinstate the Third Respondent on 2 January 2023, on the same terms and conditions governing the employment relationship, before the Third Respondent’s dismissal.

 

[4]  The Applicant did not have to pay the Third Respondent back pay for the reasons expressed in the award.

 

[5]  The Applicant submits that the award should be reviewed and set aside.

 

Historical Background

 

[6]  The Applicant, Montego Pet Nutrition (Pty) Ltd is a manufacturer of pet nutrition products.

 

[7]  It has a substantial sales and distribution network throughout South Africa inclusive of the Free State Province.

 

[8]  The business of pet nutrition is highly competitive and the leadership of the Applicant held the view that it was essential to maintain and ensure good customer relations in the market as an imperative to the survival of the Applicant in the pet nutrition industry.

 

[9]  The Applicant’s methodology includes a mandatory ‘client call-cycle’ which in essence prescribes the cyclical regularity with which a sales consultant such as the Third Respondent must interact with customers in person.

 

[10]  It is thus obligatory for a sales consultant to physically visit a client at least once within a six-week call-cycle.

 

[11]  This strategy had as design the fostering of good relations with the clients of the Applicant.

 

[12]  The strategy requires a sales approach premised upon sight, touch and sound.

 

[13]  There must be personal and physical engagement with the clients and specifically the Branch Managers.

 

[14]  The strategy entails the following:

‘So, ja, that is in the industry that we are in, is very important to show the clientele what you are selling and for us being in a very volatile market in the pet food industry, every month there is a new product launching. So, it is important for us to keep an eye on that and visit the stores to see what is going on inside the store, to shake hands with the clients in the store, to show them that: ‘we are here to help and support you with anything’ but ja, mostly – mostly for the source of income at Montego’s side, it is important to keep clientele’s trust by visiting them.[1]

Oh, so, he visits the stores. He tells them about products, if we are launching new products, if we are not. So, ja, if we are not launching any new products at that moment, we do not have any points of sale, he goes in the stores. He checks is the stock okay, is the client still happy with your service, did the deliveries take place like it should have happened, and he tries to bargain for – or not tries, he bargains for floor space because dog food being a bulky item, you need to ensure that you have got plenty of floor space and prime floor space.’[2]

 

[15]  This strategy was communicated to the sales consultants including the Third Respondent.

 

[16]  This strategy formed part of the Third Respondent’s KPIs:

 

[17]  [1]Transcript, at page 25, lines 13 to 22.

 

[18]  [1] Transcript, at page 40, lines 15 to 24.

‘Customer visits is just as important as sales.’[3]

 

[19]  A sales consultant, like the Third Respondent, was thus obligated to discharge the cyclical client calls as per the directive from Senior Management.

 

[20]  It is clear that the objectives of the sales strategy referred to herein before, cannot be met by a mere telephone call, instead of a physical and in person visit.

 

[21]  On 17 January 2022, the Applicant received a complaint from Kobus Theron, Regional Sales Manager of all the Oranje Vrystaat Kooperasie (OVK) branches.

 

[22] The complaint was about the lack of service and focuses on the failure of the Third Respondent to regularly attend upon the OVK branches.

 

[23]  The complaint contains a threat to withdraw OVK’s business from the Applicant across all its branches.

 

[24]  The Third Respondent was suspended from duty and then disciplined.

 

[25]  The Third Respondent’s suspension was lifted on 9 February 2022 and he received a final written warning.

 

[26]  The Applicant was charged with gross dereliction of duty.

 

[27]  At the core of the charge was the Third Respondent’s failure to discharge his job specifications and requirements in not visiting various branches of OVK as per the six-week ‘client call-cycle’. The failure to visit and thus service the branches led to an estimated loss of R204,000.00 together with a threat to withdraw and suspend all future orders from the Applicant at the instance of OVK.

 

[28]  The provisions of the Applicant’s disciplinary code provide for summary termination in cases of ‘gross dereliction of duty’.

 

[29]  The Third Respondent accepted the final written warning and acknowledged the seriousness of the matter.

 

[30]  The final written warning was thus implemented and would be valid for a period of twelve months.

 

[31]  In addition, the Third Respondent forfeited his commission for the ensuing seven months in order to rectify the loss, or portion thereof, suffered by the Applicant.

 

[32]  On 10 February 2022 and after the third respondent’s return from suspension, the Divisional Manager of the Applicant had a meeting with the sales component of the Applicant.

 

[33]  Pursuant to that meeting, the Divisional Manager directed an email to various employees including the Third Respondent, in his capacity as a sales consultant, enclosing a summary of the meeting.

 

[34]  As per the meeting, Hinterland and OVK were to be the big focus in the Third Respondent’s area.

 

[35]  The sales consultants, including the Third Respondent and others, were to provide exceptional service in the area to OVK and Hinterland which would include:

35.1  Branch managers were the first to be greeted on-site.

35.2  Constructive business discussions were to be held with the branch managers.

35.3  Solve problems with immediate effect.

35.4  Review supplies and sell-by dates.

35.5  Take action relative to products near the sell-by date.

35.6  Review supplies and for any damages and expired .

35.7  Create a paper trail.

 

[36]  On 21 February 2022, the divisional manager, André Nortje submitted an email to various employees, including the Third Respondent, which email, summarised the important points that required attention and implementation in relation to OVK branches.

 

[37]  The email, inter alia, again emphasised the exceptional importance of the regular and constructive visits to the OVK branches and the building and maintaining of good relations with the branch managers.

 

[38]  On 22 June 2022, the Third Respondent was suspended on full pay, pending the outcome of a disciplinary enquiry.

 

[39]  The allegations leveled against the Third Respondent were misconduct – gross dereliction of duty. This is very much the same as his previous misconduct for which the third respondent had received a final written warning.

 

[40]  At the core of the case against the Third Respondent, was his failure to visit clients every six weeks in terms of his route plan/client call-cycle.

 

[41]  The Applicant alleged, inter alia, that the Third Respondent failed to visit eighteen OVK branches within the six-week cycle as per the Applicant’s requirements.

 

[42]  At the time, the Third Respondent was still subject to the terms of the final written warning for the same misconduct earlier in the year.

 

[43]  As per the evidence led at the arbitration, there was an average of two to three months’ failure to visit critical clients in the OVK group.

 

[44]  Pursuant to the disciplinary enquiry, the Third Respondent’s services were summarily terminated.

 

[45]  The Third Respondent referred an unfair dismissal claim to the First Respondent.

 

[46]  The Third Respondent admitted the final written warning.

 

[47]  The Third Respondent admitted that the six-week client call-cycle provided him with sufficient time to visit each client within the six-week period.

 

[48]  He prepared his own route plan which provided for a three-week turnaround period, but he was given six weeks for the completion of the call-cycle. This extra time would make provision for his attendance at any shows, promotions and general sales attendances.

 

[49]  The Third Respondent admitted that he did not adhere to the six-week client call system.

 

[50]  The Third Respondent, however, submitted that he had made telephonic contact with some of the smaller clients.

 

[51]  The Third Respondent also submitted that he participated in various promotions and shows and went on leave which reduced the time available to him but nonetheless, met his sales targets.

 

The Award

 

[52]  The Second Respondent found that the Third Respondent’s failure to adhere to the call-cycle did not amount to a culpable inefficiency warranting a charge of gross dereliction of duties.

 

[53]  For the most part, the Second Respondent’s reasoning is premised on the basis that the failure, despite the final written warning, was reasonable and justifiable and not culpable.

 

[54]  The Second Respondent found that the Third Respondent had telephonically made contact with OVK branches, grew his sales and contributed to the income growth generation of the Applicant. This, so the Second Respondent reasoned could never amount to a culpable inefficiency.

 

[55]  In addition, the Third Respondent’s non-adherence to his duties during his leave could not amount to a culpable inefficiency as he was entitled to leave.

 

[56]  The Second Respondent furthermore found that the letter of complaint dated 17 January 2022, was not capable of being submitted as proof of a potential loss of a customer. The Second Respondent reasoned that the letter formed part of the final written warning and the same letter could not be utilised as proof of potential loss of a customer for the period, post the final written warning.

 

[57]  The Second Respondent then postulates about why a similar letter of complaint had not been received and perhaps it was on account of the telephonic consultations made by the Third Respondent.

 

[58]  The Second Respondent concludes thus that the Applicant did not prove the potential loss it had suffered.

 

[59]  As to the appropriateness of sanction, the Second Respondent finds that the actions of the Applicant, in deviating from the call-cycle to focus on bigger sales, has its aim of generating more sales and income growth for the Applicant and thus it cannot be a cause of potential loss or imminent loss and cannot be regarded as willful abandonment of duties.

 

[60]  Gross dereliction, although a serious offence, cannot be an offence committed by the Applicant.

 

[61]  As to the relationship of trust, the Second Respondent finds that the Applicant’s deviation from the call-cycle to generate more sales and to generate income for the company, cannot be regarded as an act that will result in a breach of a trust relationship.

 

[62]  The Second Respondent then reinstates the Third Respondent but without back pay.

 

The Review

 

[63]  The Applicant submits that the Second Respondent committed misconduct and material irregularities in the course of the proceedings, misconceived the nature of the issues that arose for determination, incorrectly determined the issues that she had been called upon to determine, committed material errors of law and consequently arrived at an outcome that no reasonable commissioner could have reached on the evidentiary material properly before her.

 

[64]  The Second Respondent disregarded relevant material evidence, advocated her fundamental responsibility to access the totality of the evidence in a fair and balanced fashion and ultimately denied the Applicant its right to a fair hearing.

 

[65]  In amplification of the above, specific submissions were made to the effect that:

65.1  The Second Respondent failed to appreciate that the Applicant had exhausted progressive discipline.

65.2  The Second Respondent arrived at the conclusion that the Third Respondent was not guilty of gross dereliction of duty which conclusion was unreasonable and unsustainable on the evidentiary material properly before her.

65.3  The Second Respondent misinterpreted the authorities relative to what constitutes a gross dereliction of duty.

65.4  The Second Respondent arrived at a conclusion in respect of sanction that is both unreasonable and unsustainable on the evidentiary material.

65.5  The Second Respondent had no material regard for the unchallenged evidence concerning:

·  the volatility of the market;

·  the marketing strategy adopted and implemented via the call-cycle;

·  that the call-cycle formed part of his KPIs and that the Third Respondent was duty bound to fulfill them;

·  that the call-cycle was established and prepared by the Third Respondent himself and provided for a three week turn around period although he was only expected to complete each call-cycle within a six-week time period, thereby allowing for extra time in relation to promotions shows and the like;

·  that the Third Respondent was directed by the Divisional Manager of the Applicant to focus on exceptional service to OVK and Hinterland with personal visits being a high priority;

·  that the Third Respondent had never approached the Applicant with any problems regarding the  of his call-cycle;

·  that he admitted non-compliance with  of the six-week call-cycle;

·  that implementation of the call-cycle strategy was a potent catalyst for generating sales;

·  that failure to discharge the call-cycle would have a negative impact on the Applicant’s business;

·  that the potential for damages was high given the incident that culminated in the final written warning; and

·  lastly, the Second Respondent had no regard to the absence of any testimony from the Third Respondent gainsaying the breakdown in the trust relationship as testified by Jonker and Victor.

 

Relevant Legal Principles

 

[66]  This is an outcomes-based review.

 

[67]  In Herholdt v Nedbank Ltd,[4] the test has been more clearly defined as follows:

67.1  In terms of his or her duty to deal with the matter with the minimum of legal formalities, did the process that the Second Respondent employed, give the parties a full opportunity to have their say in respect of the dispute?

67.2   Did the Second Respondent identify the dispute he or she is required to arbitrate?

67.3   Did the Second Respondent understand the nature of the dispute he or she is required to arbitrate?

67.4   Did he or she deal with the substantial merits of the dispute?

67.5   Is the Second Respondent’s decision one that another decision-maker could reasonably have arrived at based on the evidence?

‘The failure by a Second Respondent to apply his or her mind to issues which are material to the determination of the case would usually be an irregularity… before such an irregularity will result in the setting aside of the award, it must in addition, reveal a misconception of the true enquiry or result in an unreasonable outcome.’

 

Application to the Facts

 

[68] The process employed by the Second Respondent gave the parties a full opportunity to have their say in respect of the dispute.

 

[69]  The Second Respondent did identify the dispute that she was required to arbitrate in that it is clear that she was to determine whether or not the termination of the Third Respondent’s services were, in the circumstances of the matter, unfair or fair.

 

[70]  However, for the reasons set out herein before in terms of the grounds of review and herein below, the Second Respondent did not understand the nature of the dispute she was required to arbitrate and/or she did not deal with the substantial merits of the dispute and/or she arrived at a decision of the kind that could not be made by a reasonable decision maker.

 

Her failure to consider the mandatory call-cycle

 

70.1  She failed to have material regard and to attach sufficient weight to the uncontested evidence of the Applicant to the effect that maintaining, ensuring and expanding good customer relations in the highly competitive market of pet nutrition, was imperative for the survival of the Applicant.

70.2  She failed to appreciate the importance of the mandatory ‘client call-cycle’, which required a sales consultant, such as the Third Respondent, to visit the customers, physically and in person, with cyclical regulatory.

70.3  She failed to have regard to the uncontested evidence that the Applicant required its sale consultants to develop and grow good relationships with the branch managers of their clients.

70.4  It was an indispensable requirement of the strategy that the sales consultants with cyclical regulatory would attend, in person and physically, at the premises of the customers and engage personally, intently and constructively on business and the resolving of problems.

70.5  Such on site attendances would also require a review of the stock in trade, forthcoming expiry dates, spoiled/expired/tainted stock and the presence of any competing products.

70.6  This marketing strategy, had at its forefront, a personal touch, a handshake and constructive engagement on the growth of the business and any problems.

70.7  A mere telephone call cannot meet the dictates and demands of the Applicant’s marketing strategy.

70.8  Of such importance, was the strategy that formed part of the Third Respondent’s KPIs. The Third Respondent was thus obliged, by virtue of his employment, to discharge the call-cycle every six weeks.

70.9  It formed part of the Third Respondent’s duties, just as the generation of sales and the mandatory call-cycle forms part of the Third Respondent’s duties as a sales consultant.

70.10  Her misdirection in this regard renders an unreasonable result.

70.11  The Second Respondent finds that the Third Respondent’s growth in income and in sales, by telephone calls and means other than applying the mandatory call-cycle, a ground of justification excluding guilt on gross dereliction of duty.

70.12  Otherwise, the generation of income and growth in sales could never amount to culpable inefficiency.

70.13  She arrives at that conclusion precisely because she fails to understand that, in addition to generating sales in the normal course, it was his duty and part of his KPI to implement the call-cycle which he did not do. In fact, the Second Respondent ultimately conflated the call-cycle with a generation of sales and that she treated it as one duty where it is quite clear, in the circumstances, that the call-cycle was a separate important and independent duty which the Third Respondent was required to fulfill.

70.14  By excusing his behaviour on this ground of justification, the Second Respondent has condoned non-compliance with the Applicant’s marketing strategy, an act which appears to be outside of her powers and an act that threatens to render the Applicant’s marketing strategy nugatory if employees such as the Third Respondent could decide on their own course of action relevant to marketing strategies within the business.

70.15  This result would also threaten the administration and discipline within the Applicant’s organisation.

70.16  Her finding that the Third Respondent’s failure to adhere to the call-cycle did not amount to a culpable inefficiency and that his generation of sales over the period, was a ground of justification, enabling a finding of not guilty of gross dereliction of duty, is a finding that is irrational, unreasonable and unsustainable on the facts of this matter.

70.17  This is even more so in light of the Third Respondent’s admission that he did not  his six-week call-cycle and therefore did not fulfil his duty in relation to eighteen OVK branches.

70.18  On the evidence, it is clear that he did not discharge the duty of visiting eighteen OVK branches within the six-week call-cycle.

70.19  That is evidence of dereliction of duty.

70.20  Even without considering whether the evidence constitutes gross dereliction of duty, or not it would warrant a finding of guilty, based upon dereliction of duty.

70.21  Yet, the Second Respondent appears to find the Third Respondent not guilty at all which is an entirely unreasonable result.

70.22  She returns the Third Respondent to work without a finding of misconduct and without a penalty in circumstances where he re-offended against the backdrop of a final written warning.

70.23  The Second Respondent then furthermore does not honour back pay because of the Third Respondent’s re-offence in the light of the final written warning.

70.24  The outcome is one that is irrational, at odds with the evidence, a contradiction in terms and unreasonable.

70.25  At best for the Second Respondent, the generation of sales and the meeting of targets and growth in sales, could have been considered as a mitigating factor, not an exculpatory one.

70.26  Although argument was submitted on behalf of Applicant’s counsel that to just do your job should, not in itself, constitute mitigation.

 

Gross dereliction of duty

 

[71]  In analysing whether or not the Third Respondent was guilty of gross dereliction of duty, the Second Respondent failed to appreciate and/or had no material regard for the following evidence:

 

71.1  The six week call-cycle formed part of the Third Respondent’s KPIs and was a duty on its own aside from the attainment of general sales.

71.2  The Third Respondent prepared a route plan for purposes of the call-cycle which provided for a three-week turnaround period.

71.3  The Applicant enforced a six-week call-cycle and not a three-week call-cycle thereby making provision for any time that may be lost relative to the call-cycle due to attendances at promotions, shows and general sales work.

71.4  Properly considered, the Third Respondent had more than enough time at his disposal to discharge his call-cycle obligations.

71.5  The Third Respondent received a final written warning in February 2022 for gross dereliction of duty in not discharging his call-cycle.

71.6  This caused the company a loss of approximately R204,000.00.

71.7  The Third Respondent repaid some of the damages/loss from his commission payments.

71.8  The company’s disciplinary code provides for dismissal and by all accounts, he had a lucky escape in February 2022 and could be left under no illusion that a repeat offence would culminate in termination of his services.

71.9  The air was pregnant with the withdrawal of OVK business from the entire group.

71.10  On the back of the final written warning, the Divisional Manager issued a directive calling for focus and exceptional service in the Hinterland and OVK business sector. He did this on two occasions.

71.11  The Divisional Manager emphasised the importance of in-person site visits as per the call-cycle.

71.12  The Third Respondent did not do his call-cycle in relation to eighteen OVK branches.

71.13  This evinces a grand degree of risk taking on the Third Respondent’s part in relation to his duties in terms of the call-cycle, given the directives of the Divisional Manager of the Applicant, by correspondence and in a meeting and the threat from OVK to remove all their business from the Applicant. All this against the backdrop of a final written warning.

71.14  The failure to complete the call-cycles was on average between two to three months.

71.15  The Third Respondent presented as an excuse, participation in promotions, shows and chasing general sales targets.

71.16  The evidence presented evinced that notwithstanding his attendance relevant to shows and promotions, there was sufficient time available to him to conclude the six-week client call-cycle as his own route plan showed that it could be done within three weeks.

71.17  In addition, the Third Respondent testified that the conditions of the road were problematic and he chose to place telephone calls from time to time as opposed to the in-person visits.

71.18  In context, the Third Respondent chose not to discharge his duties in terms of one of the KPIs namely, the six-week call-cycle. He chose not to do it in relation to eighteen OVK branches against the express direction of the Divisional Manager of the Applicant and the terms of a final written warning.

71.19  The fact that he made the target through other means is not a ground of justification for non-compliance with his duties but at the very best, could be a factor for mitigation but even then, not of any great import as he would just have been doing his job.

71.20  In the context of the threat posed to cancel the OVK business due inter alia to the Third Respondent’s failure to visit OVK branches, the final written warning, the Divisional Manager’s express directives regarding the focus and exceptional service required in relation to OVK, the Third Respondent’s choice not to discharge the terms of his six week call-cycle, in excess of two – three months, cannot be seen as anything other than a gross dereliction of duty.

71.21  The Second Respondent’s finding that his sales generated is justification for it not being a gross dereliction of duty, is an unreasonable conclusion, removed from the facts.

 

Legal position for gross dereliction

 

[72] The Second Respondent misdirected herself as to the legal position.

 

72.1  The Second Respondent summarises gross dereliction as follows:

‘a.  An employee must deliberately, consciously, willfully or intentionally abandon his duties;

b.  The duties must be performed in a culpably inefficient manner; and

c.  There must be imminent harm, consequences of potential harm that the employer will suffer because of employee’s intentional failure to do his or her duty.’

72.2  In applying the requirement that the employee must deliberately, consciously, willfully or intentionally abandon his duties, the Second Respondent finds that there was no malice, intentional, willful or conscious abandonment of duties on the part of the applicant.

72.3  Malice is akin to an intention to do harm and is not indicative of a dereliction of duty.  In my view malice would be a charge of sabotage.

72.4  For the Second Respondent to expect the applicant to thus prove that the Third Respondent was malicious in abandoning his duties and/or not fulfilling his duties relative to the mandatory call-cycle, is setting the bar too high. In addition, the Second Respondent seems to elevate the term ‘culpable inefficiency’ to an independent requirement in the test for gross dereliction.

72.5  In reality, it is no more and no less than an alternative to deliberate conscience, willful and intentional abandonment of duties.

‘A dereliction of duty means that an employee willfully, wantonly or negligently failed to perform his or her duties or performed them in a culpably inefficient manner. In order to establish this form of misconduct, an employer must, in clear terms, establish the duties of an employee charged and thereafter present evidence which proves on a balance of probabilities that the employee derelicted those established duties. Where an employer alleges grossness, the suggestion is that the dismissed manager failed to perform purposefully.’[5][own emphasis added]

72.6  In the context of this matter, there can be no doubt that:

72.7  The Third Respondent knew that he was obliged to complete his mandatory call-cycle in-person within six weeks.

72.8  He knew that his failure to conduct the mandatory call-cycle could compromise the business interests of the Applicant such is the experience wrapped up in the final written warning where his failure to service OVK client and others, resulted in a R204,000.00 loss to the Applicant.

72.9  He knew, as per the provisions of the final written warning, the repayment of the loss via his commission and the terms of the Applicant’s disciplinary code that a repeat offence would culminate in dismissal.

72.10  He knew that he had sufficient time to conclude the six week call-cycle, notwithstanding participation in shows, programmes and general sales.

72.11  He chose to make telephone calls as opposed attend to the call-cycle.

72.12  He took leave during the time period when he was behind in his call-cycles.

72.13  The state of the South African roads made him not want to travel.

72.14  All these facts point to the Third Respondent failing to discharge the call-cycle ‘purposefully’.

72.15   In addition to the above, ‘imminent harm’ or ‘potential harm’ is not a requirement to establish gross dereliction of duty.

72.16   At best, it would form part of aggravating factors.

72.17   Even if I am mistaken in this regard, then there is sufficient evidence to the effect that the consequence of not completing a six-week client call-cycle could result in great loss occasioned by the cancellation of OVK business, is in itself potential harm.

72.18   The Second Respondent’s exclusion of the potential cancellation of the OVK business across the board, on the basis that if formed part of the Third Respondent’s final written warning, is unreasonable. The atmosphere remained pregnant with a threat to cancel OVK business across the board should the Third Respondent not pay attention to the OVK branches and visit them as per the call-cycle. That is precisely the reason the Divisional Manager followed up with specific directives on the provision of exceptional service, focusing on personal visits to those branches.

72.19   To expect an additional letter threatening cancellation or cancellation itself, would be to set the bar too high for the Applicant.

72.20   The Second Respondent’s approach to the legal meaning of ‘gross dereliction of duty’ and what had to be established at the arbitration was incorrect and this led to an unreasonable conclusion.

 

Relationship of Trust

 

[73]  In this regard and with reference to the Second Respondent’s findings, it is difficult to understand the logic of the Second Respondent.

 

[74]  Having found the Third Respondent not guilty of gross dereliction of duty and having not found him guilty of any competent verdict, such as negligent dereliction of duty, then the issue of an appropriate sanction should not arise.

 

[75]  Nonetheless, the Second Respondent in her analysis in this regard, did not provide sufficient attention and give enough weight to the existence of the final written warning, the importance of the Applicant’s strategic marketing plan, the non-compliance of the mandatory call-cycle, the importance of OVK, as a client and the non-compliance of the call-cycle visit requirements in relation to eighteen OVK branches.

 

[76]  The provisions of the final written warning, read with the Applicant’s code, read with the specific directives of the Divisional Manager by email and otherwise, highlighting the focus and exceptional service required for the OVK and Hinterland projects, make it clear that this would be a case where dismissal would follow on confirmation of repeat misconduct.

 

[77]  Those facts, on their own, warrant the termination of the relationship of trust, without further evidence of the breakdown of the trust relationship.

 

[78]  The conclusion arrived at by the Second Respondent that the mere fact that the Third Respondent deviated from the call-cycle to generate more sales and income for the company must be seen as a financially positive act and therefore cannot result in a breach of trust, losses sight of the importance of the mandatory client cycle, its consequences, the directives issued by the Divisional Manager and the final written warning.

 

[79]  Given the above, it was not incumbent on the Applicant to show that the relationship of trust had been destroyed. That much follows from the circumstances surrounding the misconduct in this matter.

‘[65]  The Applicant argued that there was no evidence led by the Third Respondent about the destruction of the trust/employment relationship. I must immediately mention that this was not pertinently raised as ground of review, but even if considered, it is my view that the serious nature of the misconduct, as coupled with a final written warning and complete lack of remorse would carry the day to justify dismissal. The point is that certain cases of misconduct speak for themselves, and it is not always an imperative to lead evidence about the destruction of the trust relationship. As pertinently said in Impala Platinum Ltd v Jansen and Others:

‘Since Edcon, this ourt has repeatedly stated that where an employee is found guilty of gross misconduct it is not necessary to lead evidence pertaining to a breakdown in the trust relationship as it cannot be expected of the employer to retain a delinquent employee in its employ.’[6]

 

[80]  And in Woolworths (Pty) Ltd v Mabija and others[7], the Court held:

‘The fact that the employer did not lead evidence as to the breakdown of the trust relationship does not necessarily mean that the conduct of the employee, regardless of its obvious gross seriousness or dishonesty, cannot be visited with a dismissal without any evidence as to the impact of the misconduct. In some cases, the more outstandingly bad conduct of the employee would warrant an inference that the trust relationship has been destroyed…’[own emphasis added]

 

[81]  For the reasons set out herein before, the Applicant’s misconduct constitutes gross dereliction of duty. Against the backdrop of a final written warning, directives from the Divisional Manager to focus on OVK branches, he purposefully does not discharge his six week call-cycle in relation to eighteen OVK branches. It follows, that the trust relationship is brought to an end by that type of misconduct.

 

[82]  In any event, in addition to the above, the Second Respondent pays no regard to the evidence of the Applicant and the case made out on behalf of the Applicant to the effect that the relationship of trust had broken down.

 

[83]  This case was made out in the opening statement of the Applicant as well as in the testimony of Jonker and Victor.

 

[84]  Mr Jonker testified that it was incorrect that the trust relationship had not been broken.

 

[85]  Mr Victor, the Sales Manager who serviced the Third Respondent’s area, found it difficult to trust the Third Respondent given how matters developed with the Third Respondent.

 

[86]  The arbitrator/Second Respondent ignored this evidence.

 

[87]  In conclusion, this is an award that a reasonable arbitrator could not have made.

 

Costs

 

[88]  I am not inclined to grant costs as there is nothing in equity that persuades me to do so.

 

Order

1   The award issued by the Second Respondent under the auspices of the First Respondent, in favour of the Third Respondent is hereby reviewed and set aside.

2   The following order is substituted in its place:

2.1   The dismissal of the Third Respondent, Frederick Johannes Daniël Muller, by the applicant, Montego Pet Nutrition (Pty) Ltd is substantively fair.

2.2   There is no order as to costs.

 

C Jessop

Acting Judge of the Labour Court of South Africa

 

Appearances:

For the Applicant:             Adv Le Roux

Instructed by:                   Chris Baker Attorneys

 

For the Respondent:        Devon Basson

Instructed by:                   Solidarity

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