Bakenrug Meat (Pty) Ltd v The Commission for Concialiation Mediation and Arbitration and Others

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Waglay JP and Davis JA and Savage AJA
• Judgment Date: 18 January 2022
• Docket Number: CA8/2020
• Hearing Date: 25 November 2021
• Court: Labour Appeal Court
• Citation: 2022 JDR 0102 (LAC)

Davis JA:

Introduction:

[1]

This appeal concerns the determination of the scope of the duty of good faith owed by an employee to an employer. In this case, the employee (third respondent), was employed as a sales representative by the appellant on 28 October 2013. Appellant conducts a business which produces and then sells a range of meat products. On 10 October 2016, she was dismissed, after having been found guilty of a charge of dishonesty because she failed to inform the appellant that she operated a business of her own which marketed dried meat products and thus had failed to give full attention to marketing the meat products produced by the appellant.

[2]

Upon being dismissed, the third respondent referred an unfair dismissal dispute to the first respondent. An arbitration hearing was conducted by the second respondent.

[3]

The second respondent heard evidence relating to the charges which had been brought against the third respondent, being:

'1. (she) took on employment while you were also working in other capacity.

2. (she) undertook that she would be physically calling weekly + on regular basis but as today it was found that she hadn't been calling.'

[4]

The second respondent found that the third respondent's dismissal was substantively fair for the following reasons:

'In this instance, the applicant operated a formal business with at least one full- time employee from rented premises and marketed dried meat products. The respondent marketed meat products and at the very least it should have been aware of the applicant's activities so that it could decide whether the applicant's activities were in conflict. The applicant chose to not tell the respondent. It was dishonest not to do so.

2022 JDR 0102 p3

Davis JA

The effect was that she could not have given full attention to her duties. The respondent provided evidence that it was constantly attempting to impress upon the applicant that she was not performing her duties.

The fact that the applicant believed that the respondent should have known what she was doing because Wesley knew, and he did not testify to this, is unacceptable. The fact that the respondent may not have marketed biltong prior to September 2016 is also not an acceptable excuse for the applicant to operate a formal business, marketing meat products, without telling the respondent.

I find that the applicant has acted in a dishonest and an unacceptable manner.'

[5]

The third respondent then launched a review application before the court a quo. Her application proved to be successful and accordingly, the arbitration award of the second respondent was reviewed and set aside. It is against this decision, with the leave of this Court, that the appellant contends that the decision to dismiss the third respondent was substantively fair and hence the order of the court a quo stands to be...