FOQDCON
(PTY) LTD versus AMOYRE SCHWARTZ

CASE NO. LCA
23/98 Silungwe.
J. 2000.05.08

LABOUR LAW
--
Employer/employee relationship - dishonest conduct - employer should
feel confident it can trust employee not to steal or in any way to be
dishonest - employee's dishonesty destroys or substantially dimishes
confidence in the employer/employee relationship and has the effect
of rendering the continuanation of such relationship intolerable -
Theft is theft regardless of value of item stolen - Trust is the core
of employment relationship -Dishonest conduct is breach of such trust
- it is immaterial that the employee has hitherto been a person of
good character or that his/her breach of trust is a solitary act -
such breach will justify dismissal.

CASE
NO. LCA 23/98 IN
THE LABOUR COURT OF NAMIBIA

In
the matter between:

FOODCON
(PTY) LTD APPELLANT

and

AMOYRE
SCHWARTZ RESPONDENT

CORAM:
SILUNGWE,
J., PRESIDENT

Heard
on: 1999.09.13 Delivered on: 1999.09.29 JUDGMENT

SILUNGWE,
J.:
This
is an appeal against a judgment of the District Labour Court at
Walvis Bay wherein the following order was made:

1.
that the complainant is guilty of misconduct in respect of
counts 3 and 4, i.e.

1. 
   unauthorised
   absence and delaying a vessel; and

   
   

2. unauthorised
   possession of company property;

   
   

3. 
   that
   the complainant should be reinstated;

   
   

4. 
   that
   summary dismissal as a sanction is replaced with a final warning
   which will come into force on a date that the complainant resumes
   his duties; and

   
   

5. 
   that
   the respondent pays the complainant the equivalent of 6 months wages
   and emoluments on the basis of his monthly average earnings at the
   time of dismissal.

   
   

Mr
Dicks represents the appellant and Mr Shikongo appears for the
respondent.

A
brief background of the case is that the respondent had been employed
by the appellant for about 4 years up to the time that his contract
of employment was terminated on March 26, 1997. By then, he was a 2^nd
Engineer and, as such, he was an officer and a crew member.

On
February 2, 1997, the respondent was found in possession of biscuits,
oros cooldrink and a tin of beef as he went past security at the end
of his work. This was a violation of the appellant's disciplinary
code.

On
March 26, 1997, 4 disciplinary charges were leveled against the
respondent including the two already referred to in order 1.1 and 1.2
above. He pleaded guilty, inter
alia, to
having been found in unauthorised possession of company property and
was, at the end of the disciplinary hearing, found guilty on all the
counts and the sanction meted out against him was one of dismissal.

Thereafter,
the appellant brought the matter before the District Labour Court
which, after evidence had been led by both sides, overturned findings
of guilty on the first two counts but upheld the findings on the
remaining two counts as reflected in order 1.1 and 1.2. In the
result, the respondent's dismissal was set aside on the ground that
this sanction was substantively unfair and the order to which
reference has already been made was put in place.

The
appeal is against the setting aside of the respondent's dismissal and
the order made by the Court a
quo.

In
arguing this appeal, Mr Dicks confines himself to the issue of the
respondent's dishonesty which he contends was the thrust behind his
dismissal, following the disciplinary hearing.

The
crux of the matter, so submits Mr Dicks, is: what was the effect of
the respondent's misconduct upon the employer/employee's
relationship? He claims that this was not considered by the Court a
quo when
it overturned the disciplinary sanction of dismissal. According to
him, the confidence that the appellant had had in the respondent was
destroyed or substantially diminished on a realization that the
respondent was a dishonest person and, as such, the respondent's
relationship with the appellant became intolerable in the eyes of the
appellant.

Mr
Shikongo, on the other hand, submits that, although theft of an
employer's property is viewed in a serious light and will normally
justify dismissal, it is contended that, in the present case, the
Learned Chairperson correctly found that the dismissal of the
respondent was substantively unfair, regard being had to the
circumstances of the case, namely, that this was a case of petty
pilfering since the value of the property stolen was small.
Consequently, he continues, despite the seriousness of the crime of
theft, dismissal was not warranted and, therefore, continued
employer/employee relationship cannot be said to be intolerable. He
points out that the nature of the items stolen, their value and the
fact that they were retrieved from the respondent, are some of the
factors that operate in his favour and thus militate against his
dismissal.

I
am much indebted to both Messrs Dicks and Shikongo for the assistance
they have accorded to me and particularly for drawing relevant
authorities to the Court's attention.

I
accept Mr Dicks' submission that the Learned Chairperson in the
District Labour Court did not consider the effect that the
respondent's dishonest conduct had, and still has, upon the
employer/employee relationship, looked at from the appellant's point
view.

Although
we are here concerned with a labour matter, as opposed to a criminal
one, this is in effect a clear case of theft and was ostensibly the
most serious disciplinary charge laid against the respondent and, as
such, must have weighed heavily on the mind of Mr Thomas Bergman, the
appellant's Operations Manager, who presided over the disciplinary
proceedings and ordered the respondent's dismissal from his
employment.

The
maintenance of confidence in an employer/employee relationship is so
vital that it must enjoy an abiding nurturing. A violation of such
relationship will normally be visited with severe sanctions at the
hands of an employer, not to mention dismissal.

In
Anglo
American Farms t/a Boschendal Restaurant v Komjwayo 1992,
13 LLJ 573 at 574 I and 575 A the Labour Appeal Court observed that -

"Where
the relationship between an employer and its employee is of such a
nature that, for it to be healthy, the employer must, of necessity,
be confident that it can trust the employee not to steal its
stock-in-trade and that confidence is destroyed or substantially
diminished by the realization that the employee is a thief, the
continuation of their relationship can be expected to become
intolerable, at least for the employer. Thenceforth the employer will
have to check continually whether the employee is being honest. That
the thing stolen is of comparatively little value is not relevant;
the correct test is whether or not the employee's misconduct has had
the effect that the continuation of the employer/employee
relationship has been rendered intolerable."

Thus,
where an employee ruptures the trust reposed in, or expected of,
him/her, such rupture may result in the termination of his/her
contract of employment. Central
News Agency (Pty) Ltd v Commercial Catering and Allien Workers Union
of SA and Another (1991)
12 ILJ 340 (LAC) at 344F-G is a case in point where the following was
stated:

"In
my view it is axiomatic to the relationship between employer and
employee that the employer should be entitled to rely on the employee
not to steal from the employer. This trust which the employer places
in the employee is basic to and forms the substratum of the
relationship between them. A breach of this duty goes to the root of
the contract of employment and of the relationship between employer
and employee."

Such
a result may flow from an employee's breach of trust, notwithstanding
the fact that he/she has hitherto been of good character or that
his/her breach is a solitary act. See, for example, General
Industrial Union of SA and Another v
VM
Construction (1994)
5(12) (SALLR.)l(IC) where the following was observed:

"Notwithstanding
that dismissal is seen as an extreme sanction and one not to be
imposed lightly, there are cases in which the single act of an
employee breaching a rule will justify dismissal."

Any
form of dishonesty tends to undermine trust in an employee/employer
relationship. As it was fittingly put in Metcash
Trading LTD t/a Metro Cash and Carry v Fobb and Another (1998)
ILJ 1516 (LC):

"Theft
is theft. It does not became less so because the value of the items
stolen. Trust is the core of employment relationship. Dishonest
conduct is a breach of that trust. Accordingly dismissal is the
appropriate action."

In
the case under consideration, there is cogent evidence on record to
show that the appellant had established a disciplinary code of
conduct for the observance of its employees, inclusive of the
respondent, and that despite what the respondent said in the District
Labour Court, its rules were published at the work place strictly
forbidding the taking away of any of the appellant's items of
property, save perishable food items which were given, or taken away
with the appellant's permission. Thus, the respondent knew, or ought
to have known, that items of the otherwise forbidden food allocated
to employees had to either be consumed on the premises or left
behind. The fact that the property was recovered in full or, as we
have seen, that its value was modest, is immaterial, for dishonesty
is dishonesty.

In
any event, and since the respondent was a relatively senior member of
the crew, it was particularly incumbent upon him to set and maintain
a good personal example to others, especially to his subordinates; in
this, he was found sadly lacking. All employees, especially those in
senior and/or more responsible positions ought, like Caesar's wife,
to be above suspicion.

Ultimately,
I have no difficulty in coming to the conclusion that, in
casu, the
respondent's dismissal was justified since there was nothing improper
that was occasioned to the respondent at the disciplinary hearing. In
the premises, the Learned Chairperson of the District Labour Court
was in error when he set aside the respondent's dismissal.

During
the course of presenting his argument, Mr Dicks has alluded to the
standard of proof.

In
my view, there can be no doubt that, although the principal
disciplinary charge had criminal connotations, the respondent was not
tried criminally; he was tried civily and, consequently, the usual
standard of proof in a civil matter applied. Proceedings in Labour
and District Labour Courts are civil proceedings, as opposed to
criminal proceedings. Hence, the standard of proof is on balance or
preponderance of probabilities. As it was succintly stated in Anglo
American Farms, supra:

"In
my view, the proceedings in industrial courts are accordingly to be
categorised as being civil or civil in nature or character, other
than criminal, even though the misconduct with which the respondent
was charged constituted a criminal offence, viz theft. This being so,
the appropriate measure of proof was proof on preponderance of
probabilities.."

In
so far as the reinstatement part of the Learned Chairperson's order
is concerned, it cannot conceivably stand in the light of my decision
to uphold the respondent's dismissal.

I
now turn to the 4^th
part
of the order made by the Court a
quo to
recompense the respondent. As Mr Dicks properly contends, there was
no evidence or any basis upon which this award could be made and,
consequently, it too must fall away.

In
any event, the respondent did not discharge his onus of proof.
However, what I said here should not in anyway be construed to mean
that, if the respondent is entitled to any relief against the
appellant, he is precluded from pursuing it before a court of
competent jurisdiction.

In
conclusion, I made the following order:

6. 
   The
   appeal succeeds,

   
   

7. 
   the
   termination of the respondent's contract of employment with the
   appellant is confirmed;

   
   

8. 
   the
   order to give the respondent a final warning is set aside and so
   also is the order to award compensation to him; and

   
   

9. 
   there
   shall be no order as to costs.