The facts of the case: Mr J van der Merwe vs Mosselbay Muncipality (2009) 18 SALGBC 8.23.3
Johan Leon van der Merwe, a manager for socio-economic development, was employed on 1 October 2007. At the time of applying for the position, he stayed in Oudtshoorn. He thought he could travel from Oudtshoorn to Mosselbay on a daily basis. The total distance was 101km.
After a week, van der Merwe realised it was difficult and decided it would be best to rent a flat closer to work. He signed a rental agreement and received a subsidy of R250 a month from the company.
In terms of the company's policy an applicant who applied for a subsidy must provide proof of the rental agreement. Van der Merwe signed the agreement for the period 8 October 2007 – 8 February 2008. The subsidy payments reflected on his payslips every month.
But he'd had been claiming this subsidy when he wasn't even staying in the flat. The company charged him with gross dishonesty and fraud. He was dismissed on 5 August 2008.
Van der Merwe said he thought they'd automatically stop paying the subsidy and didn't check his payslip.
'Stop paying subsidies! He's not living in the house...'
Van der Merwe didn't come to work on 4 April 2008. Edward William Jantjies, a director to whom Van der Merwe reported to, had an important tender and needed Van Der Merwe's assistance. He couldn't get hold of van der Merwe and asked the salaries department to check if van der Merwe's address was correct. He saw they were still paying the subsidy even though van der Merwe told him in November 2007 that he had trouble with his children and would go back to travelling from Oudtshoorn to Mosselbay after the rental agreement expired. Jantjies told the salaries department to stop subsidy payments to van der Merwe.
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Van der Merwe made no attempt to stop the subsidy
Jantjies regarded this dishonesty as a serious matter and that he couldn't trust van der Merwe. Johannes Jacobus Ebersohn, a practicing attorney, signed the rental agreement with van der Merwe. He said that on 7 January 2008 van der Merwe told him that he wasn't going to continue with the rental agreement. Ebersohn made a note on the rental agreement that van der Merwe had ended the agreement verbally.
The results of the case:
The arbitrator found van der Merwe's argument about not checking his payslip an unlikely story. He also stated that van der Merwe had no intention or made any efforts to stop the subsidy payments. The suggestion that van der Merwe thought they'd automatically stop payments was unproven. Being a manager, the onus was on him to ensure the subsidy was stopped.
Jantjies proved that van der Merwe committed an act of gross dishonesty and so his dismissal was substantively and procedurally fair.
There are five serious offences that in most cases deserve instant summary dismissal, even for a first offence:
• Gross dishonesty;
• Gross insubordination;
• Deliberate damage to company property;
• Putting other employees at risk; and
• Unprovoked assault.
Before you decide whether or not to dismiss
an employee for gross dishonesty, make sure you've followed a fair procedure.