Workplace rules must be clear and consistently applied, and not only exist on paper, the Labour Court has ruled in upholding a CCMA ruling that the dismissal of an employee for using a vehicle without permission is substantively unfair.

In coming to the aid of Pumeza Poswa, the Johannesburg Labour Court dismissed a review application by Europcar South Africa, a division of Motors Group Limited (the employer), for an order that Poswa should be fired.

Europcar South Africa operates in the vehicle rental business. Its vehicles constitute revenue-generating assets at the core of its operations.

A central submission by the employer is that employees may only use company vehicles with proper authorisation. Unauthorised use of such vehicles is expressly recorded in the disciplinary code as a serious offence warranting dismissal.

While vehicles could occasionally be used by employees, such use was permitted only subject to strict conditions, Europcar said.

Acting Judge S Rajah noted that in this case, it appears from the evidence that these lines had, over time, become blurred. This ambiguity complicates the assessment of whether the employee’s conduct concretely amounted to misconduct, the judge added.

Poswa had been employed by Europcar since 2010 and had been promoted to the position of supervisor. In his supervisory role, he was required from time to time to utilise company vehicles, on the condition that the vehicle be returned promptly thereafter.

The charge of misconduct against him, for which he was eventually fired, related to his use of a company vehicle without prior authorisation from his manager for personal purposes.

According to the evidence, one evening while Poswa was working a late shift, a vehicle in the vicinity of his residence had broken down with a flat tyre, and he took a company vehicle to assist.

The employer emphasised throughout that the vehicle in question remained a revenue-generating vehicle and should have been available for rental purposes.

The commissioner could not find that the employee’s conduct rendered the employment relationship intolerable, and concluded that the dismissal was substantively unfair.

In mitigation, reliance was placed by the commissioner on the employee’s previously unblemished disciplinary record.

The employer’s submission was that there is a clear link between dishonesty and unauthorised use of company property, which ordinarily warrants dismissal where the rule is clear, consistently applied, and goes to the heart of the employment relationship.

Europcar, meanwhile, emphasised that the rule prohibiting personal use of company vehicles must be enforced strictly, allowing for no deviation “not even by an inch”.

It was argued that once the boundary is blurred, it becomes impossible to determine whether unauthorised use within or beyond the province could be condoned, undermining the trust relationship.

Judge Rajah noted the commissioner’s reasoning, and he is inclined to agree with it. “There is no question that the rule prohibiting unauthorised use of company vehicles is important, given the nature of the employer’s core business and the revenue-generating purpose of its fleet.”

However, the judge added, in the overall circumstances, the conduct in issue does not justify the conclusion that the employment relationship had become intolerable.

“The true question for this court is whether the rule was sufficiently clear and consistently applied to prohibit the employee’s conduct in an unequivocal manner. While the rule may have existed in written form, the evidence suggests that, in practice, the line between permitted and prohibited use had become blurred by the conduct of both employer and employee,” the judge said.

zelda.venter@inl.co.za

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