ARBITRATION AWARD Commissioner: Jonas Shipalana Case No.: LP1033-03 Date of Award: September 5, 2003 In the ARBITRATION between: Garth van der Walt (Union / Applicant) and Fastrak Trading t/a Nandos Messina - The Manager (Respondent) Union/Applicant's representative: Union/Applicant's address: P O BOX 814 Louistrichardt 0920 Telephone: N/A Telefax: N/A Respondent's representative: Respondent's address: P O BOX 1079 Musina 0900 Telephone: 015 534 1320 Telefax: 015 534 1097 IN THE COMMISSION FOR CONCILIATION, MEDIATION AND ARBITRATION LIMPOPO PROVINCE HELD AT LOUIS TRICHARDT Case No LP 1033-03 In the matter between Garth van der Walt Employee -and- Fastrak Trading as Nandos Messina Employer ARBITRATION AWARD DETAILS OF HEARING AND REPRESENTATION: The hearing was held at the Department of Labour in Louis Trichardt on the 27th August and 20th October 2003. On the 27th August Mr Lee Daubermann represented the employer company and Mr Mitchell, a share holder in Nandos Musina, conducted the case on his own on the last instance of the hearing. Mr Boshoff from Deon Retief Attorneys in Musina represented the employee party throughout the proceedings. ISSUE IN DIPSUTE: I have to determine whether or not Mr Garth Van der Walt was dismissed from employment, and if so, whether such dismissal is fair. In the event that I find the dismissal to be unfair I must then determine a proper relief for the dismissed employee. BACKGROUD TO THE DISPUTE: Mr Van der Walt was a shift leader at Nandos Musina at the time of his alleged dismissal. However, at the time that he started working for the company he was employed as manager but subsequently demoted to a shift leader, the position that he occupied at the time of his dismissal. The dispute in this matter arose on the 28th February 2003 when Mr Mitchell, a share holder in the business, could not agree with Mr Van der Walt about working beyond certain a time of the day on this particular day. Mr Mitchell placed in dispute at the commencement of the arbitration hearing that he dismissed Mr Van der Walt. SURVEY OF EVIDENCE AND ARGUMENT: Garth Van der Walt: He testified that he started working for Nandos in June 2002 at Louis Trichardt and at the time of his commencement he was made an offer to purchase share in the undertaking and he was late transferred to Musina. He signed a contract of employment which was never implemented and later signed a second one in terms of which he was appointed as shift leader, his working hours started at 7H00 and sometimes knocking off at 23H00. He referred to a shift roster and pointed out used to work long hours, a practice to which he later objected and he was subsequently dismissed for refusing to work overtime without remuneration for the extra hour. He further stated that at the end of November 2002 he was paid an amount of R3 500 (THREE THOUSAND FIVE HUNDRED RANDS) instead of an agree amount of R6 174.00 (SIX THOUSAND ONE HUNDRED AND SEVENTY FOUR RANDS). With regard to the dismissal, he testified that on the evening of 28th February 2003 Mr Mitchell asked to see him after he finished of doing the normal stock take, yet it was after normal working hours and he had worked overtime in the past notwithstanding that he was not remunerated for the overtime hours. As he took a computer print out to Mr Mitchell, the latter asked him to sit down, but he refused and left for home. Mr Mitchell then sent Solly, also an employee of Nandos to go and fetch the keys for the alarm system. Minutes later Mr Mitchell then phone to ask how the alarm worked. After he finished explaining to him how the alarm system works, Mr Mitchell then told him that his services were terminated. The following day he went to work but when he arrived, Freddy Ndlovu, also an employee at Nandos, told him that Mr Mitchell had instructed them not to allow him behind the counter as he had been dismissed. Cross-examination: Mr Van der Walt was cross-examined at length by both Mr Daubermann and Mr Mitchell, however, what follows hereunder are only those questions and respective answers I consider pertinent to the issues in dispute. Mr Mitchell asked Mr Van der Walt why he left without downloading sales and monetary reconciliations on the 28th February 2003, and he replied that Mr Ndlovu would do the task the next morning. Mr Mitchell then asked him why Ndlovu had to download the printout when he was not the shift leader and, if whether Mr Van der Walt had an arrangement with Ndlovu to carry out the task of him. Mr Van der Walt replied that if the report had been downloaded on the 28th February it would not have included the last day, and he also stated that he had arrangement with Mr Ndlovu to carry out the task on his behalf. Mr Mitchell put it to him that it was his responsibility to do the monetary report as he had done in the previous instances. Mr Van der Walt replied that he did not do it because he was not going to be paid for overtime. Mr Mitchell put it to Mr Van der Walt that it was the standard procedure for the shift leader to do the report, and he replied that it was the manager's duty not the shift leader's, to print the report. He then put it to him that in the past he had done it. Mr Van der Walt confirmed that he indeed he had printed the report but at the same time pointed out that it was because Mr de Jager did not know the system. Mr Mitchell then asked him if he had not had a problem in printing the report in the past because it was at the time part of his responsibilities, and Van der Walt confirmed the statement. Mr Mitchell put it Mr Van Der Walt that in the past he had worked beyond 10' o'clock in the evening without a problem. Van der Walt replied that had not yet become aware that Mr Mitchell did not care about his employees. Mr Mitchell further put it that Van der Walt was simply not prepared to work under the conditions put to him at that time and that. Van der replied that he did not agree to work under the circumstance but added that he had made arrangements the he would be there the following day. Mr Mitchell reminded Mr Van der Walt that the latter agreed to shuffle his working hours after Jerry, also an employee at Nandos, was suspended. Mr Van der Walt confirmed the agreement but added that he had made it a condition that the day of the 28th February 2003 should not be included in the new arrangement. Mr Mitchell asked many other questions that did not specifically pertain to whether or not Mr Van der Walt was dismissed, although captured in the arbitration notes I shall note repeat those here. After re-examination Mr Boshoff asked Mr Van der Walt in re-examination he stated that there were two sets of keys to for the shop, one which used to be kept by Jeremiah before his suspension, and he handed them him when he was suspended. This was the same set that he Mr Mitchell took from him. He further stated that the reason why Mr Mitchell disarmed him of the keys was to make sure that he cannot gain access to the shop. The employer's case: Mr Mitchell testified that the reason for Mr Garth Van der Walt leaving employment was due to the fact that he was not prepared to work under the prescribed conditions necessary of him to fulfil his duties either as manager or shift leader. Their (management's) efforts to encourage and coax Mr Van der Walt to carry out his duties in a responsible manner had failed to produce the desired results, and Mr Van der Walt's unwillingness to had resulted in insufficient stock take on numerous occasion and the matter had been addressed with him, there had been poor gross performance profit during Mr Van der Walt's period of employment resulting in stock loss of up to R80 000,00 (EIGHTY THOUSAND RANDS), he had failed to comply with Nandos hygiene standards and procedures. In reply to Mr Van der Walt's case that he was dismissed, Mr Mitchell replied that the former left employment on his own accord due to the unaccounted stock loss reconciliation report that was needed in order to close the month end report. On the day that Mr Van der Walt left due to a crisis situation in they were, Mr Mitchell said he had openly told Mr Van der Walt that if he were to leave under those conditions, he would be loosing his employment with Nandos; and at that time Mr Van der Walt had replied that he was leaving irrespective of Mr Mitchell's wishes that he should not go. With reference to the keys, he stated that he did not have a copy of the set of keys to lock the shop after Mr Van der Walt had left, so he decided to drive Solly to Mr Van der Walt's place to collect the keys from the latter. He stated that he has reason to believe that Mr Van der Walt left employment due to the fact that knowledge of the Vega hygiene report that he withheld would have been reason enough for a formal dismissal. Cross-examination: Mr Boshoff asked Mr Mitchell what reason he had given the other shareholders as the reason for Mr Van der Walt leaving the Nandos. Mr Mitchell replied that he had given Mr Van der Walt a choice, to stay and work overtime or leave and get dismissed, and Mr Van der Walt had taken the last option. Mr Boshoff put to him that the Unemployment Insurance Fund card with Department of Labour reflects that Mr Van der Walt was dismissed as the reason for termination given by Ms Van Staden, a shareholder in the undertaking. Mr Mitchell replied that he agreed with the statement but maintained in the context in which it occurred he gave Mr Van der Walt an option. ANALYSIS OF EVIDENCE AND ARGUMENT AND FINDING: The essence of the testimonies of the Mr Van der Walt and Mr Mitchell is the same. Being that Mr Mitchell required Mr Van der Walt on the 28th February 2003 to work overtime. What necessitated Mr Mitchell to give the instruction that Van der Walt should work overtime is because there was outstanding work to be done, namely a report that had to be printed from the computer. However, Mr Van der Walt felt that it was unreasonable for his employer to expect him to work overtime yet he would not pay for the overtime, and he left. It is further the evidence of both witnesses that Mitchell later went to Van der Walt home to fetch the keys to the shop in order to make sure that he could not gain access to the shop. In addition to this testimony Van der Walt testified that when he went to the shop the following day his colleagues informed him that they had been instructed not allow him behind the counter. Mr Mitchell did not comment on this statement. He also did not call any witness to rebut it. However, Mitchell argued that it is not correct for Van der Walt to claim that he was dismissed. He based his argument on the fact that he did not expressly tell Van der Walt that he was dismissed, but he instead gave him an option, either agree to work overtime for which he would not be paid, or leave the shop and consider himself dismissed. I think is proper that I first make a finding on whether or not Mr Van der Walt's refusal to work overtime in this circumstance that he did is unreasonable and thereby justifying Mr Mitchell's argument that he did not dismiss him. In terms of section 10(a) of the Basic Conditions of Employment Act 75 of 1997 an employer may not require an employee to work overtime except in accordance with an agreement. Mr Van der Walt testified that Mr Mitchell required not to leave, and that when he was informed of this decision it was at the time that he was about to knock off for the day. He did not agree to stay for the period that his employer had wanted him to stay and thereby refusing to work overtime. Mr Van der Walt stated that he so refused because his employer would not pay him for the overtime. In view of the section 10(a) of the Basic Conditions of Employment I am of the opinion that his refusal was not unreasonable in the circumstance. The employer's argument that Mr Van der Walt exercised an option is not valid because the options from which he had to choose have no basis neither in the Basic Conditions of Employment nor the Labour Relations Act. Mr Van der Walt testified that he went to work a day after the exchange during which Mr Mitchell told him that he would not have a job if he left, and colleague told him that he had been instructed not to allow him behind the counter. This to me was confirmation of Mr Van der Walt's dismissal after the keys to the shop were taken from him the previous day. Mr Mitchell testified that he went to take the keys from Van der Walt because he did not have another set with which to lock when he knocked off. If this was true he would not have given an instruction the following that Van der Walt should not be allowed behind the counter. In the above premise I find that Mr Van der Walt was dismissed and that hi dismissal is unfair in the circumstances. AWARD. Having found that Mr Van der Walt was dismissed and that his dismissal is also unfair, I order the employer to pay him as compensation, two months salary in the amount of R12 348.00 (TWELVE THOUSAND THREE HUNDRED AND FOURTY EIGHT RANDS) representing two months salary calculated at his rate of remuneration at the time of his dismissal. The above compensation must be paid to the employee on or before the 30th December 2003. CCMA Commissioner: Jonas Shipalana Sector: Retail ?? ?? ?? ?? Page 2 of 5 Page 1