By Talita Laubscher and Monique Jefferson
The applicant in DHL Supply Chain SA (Pty) Ltd v De Beer NO and Others [2013] 1 BLLR 20 (LC) was involved in the warehousing and distribution of cigarettes. The third respondent employees, Dube and Masinga, were employed as cage loaders with six other employees. During June 2008 DHL noticed a substantial increase in stock losses. Approximately R 14 500 worth of stock was lost over a period of five days in June 2008, despite high levels of security. No one knew exactly how the stock was removed or where it went. The video surveillance did not show any employees removing stock and no employees were caught with stock in their possession.
All eight of the employees who were on duty at the time the stock losses occurred were sent for polygraph testing. The employees had a clause in their contracts of employment obliging them to undergo polygraph testing. Six of the employees passed the polygraph test, but Dube and Masinga failed. Following a disciplinary inquiry, Dube and Masinga were dismissed.
They contested the fairness of their dismissals at the relevant bargaining council and the commissioner held that their dismissals were procedurally fair but substantively unfair and ordered their reinstatement with back pay. In doing so, the commissioner examined the law on polygraph testing and held that the result of such a test is merely one evidentiary fact to be considered. It cannot, in itself, prove guilt. In the absence of the polygraph result, the evidence against the employees was that –
These factors did not convince the commissioner that the employees were guilty, particularly because the evidence showed that the theft did not stop completely and, since the employees’ dismissals, DHL had suffered about R 10 million worth of stock loss in 2009. What could have happened was that the real culprits were ‘lying low’ for a while, and additional security measures could also have accounted for the reduction in stock losses.
DHL took the matter on review to the Labour Court and argued, inter alia, that the commissioner committed a reviewable irregularity in that she failed to look at the evidence holistically and allow the most probable inference, namely that Dube and Masinga were involved in the stock losses.
The Labour Court, per Boqwana AJ, held that the test was whether the commissioner’s decision was reasonable. If she failed to take account of a relevant factor or did not apply her mind to the issues, the decision would be unreasonable. The court accepted that evidence other than the polygraph test results was put before the commissioner. However, these factors did not circumstantially point to the guilt of Dube and Masinga. Therefore, without the polygraph test results it was not possible to point to any evidence that separated Dube and Masinga from the employees who were not dismissed. The court further confirmed that the commissioner was correct when she asked whether there was any other evidence supporting a guilty finding, and she correctly found there was not.
In the circumstances, the review application was dismissed with costs.
Fixed term employment contracts
In Morgan v Central University of Technology, Free State [2013] 1 BLLR 52 (LC) the applicant applied to the Labour Court in terms of s 77(3) of the Basic Conditions of Employment Act 75 of 1997, alleging that his employment contract was unlawfully terminated.
He claimed that he was entitled to damages equal to the amount of salary he would have earned if the employment contract had not been unlawfully terminated, namely an amount equal to 48 months’ remuneration. The applicant had been employed as deputy vice-chancellor: Resources and operations in terms of a five-year fixed term contract of employment from 1 January 2010 to 31 December 2014.
On 20 December 2010 the respondent gave the applicant notice of its intention to terminate the employment contract with effect from 31 December 2010, thus 48 months prior to the agreed expiry date.
The Labour Court, per Daniels AJ, held that to succeed in a claim for damages, the following must be proven –
The employment contract provided that either party was entitled to terminate the contract by giving the other three months’ written notice. In the event that the respondent terminated the contract on notice, it was required to follow a substantively and procedurally fair process. The contract expressly provided that the contract could be terminated for misconduct, medical unfitness, operational requirements or incompetence. (The respondent terminated the employment contract on the basis of the applicant’s performance and an unfair dismissal claim was referred to the Commission for Conciliation, Mediation and Arbitration in this regard.) The respondent did not give the applicant the required three months’ notice and thus, in the alternative, the applicant claimed damages equal to the amount of remuneration that he would have earned during the notice period, being three months’ remuneration.
This case was distinguished from Buthelezi v Municipal Demarcation Board [2005] 2 BLLR 115 (LAC), in which the court was, in principle, prepared to award compensation for the balance of the contract. In that case the contract had been silent on its early termination and did not contain a notice provision.
The Labour Court instead considered previous cases in which it was held that, where an employment contract has a notice clause in terms of which the contract may be terminated prior to the expiry date, the quantum of damages at common law is limited to what the employee would have earned during the notice period.
Daniels AJ went on to say that, even if this was incorrect, the applicant had failed to prove that he had suffered damages beyond the notice period. This was because the applicant had obtained alternative employment approximately one week before the notice period would have ended and therefore could not prove damages beyond the notice period.
Daniels AJ also considered the fact that the applicant had stated that he did not accept the respondent’s repudiation of the contract; however, by accepting alternative employment, the applicant had demonstrated that he had accepted the repudiation as he had made it impossible to abide by the contract.
The Labour Court concluded that there was no basis to award more than three months’ remuneration. Further, the applicant took up alternative employment before the three-month notice period had lapsed and thus he was awarded three months’ remuneration less the salary he would have earned during the period of notice actually given and one week’s remuneration in respect of the week in which he commenced alternative employment.
Talita Laubscher BIur LLB (UFS) LLM (Emory University USA) is an attorney at Bowman Gilfillan in Johannesburg.
Monique Jefferson BA (Wits) LLB (Rhodes) is an attorney at Bowman Gilfillan in Johannesburg.
This article was first published in De Rebus in 2013 (May) DR 52.
