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[2007] ZASCA 52
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Old Mutual Life Asurance Co SA Ltd v Gumbi (211/2006) [2007] ZASCA 52; [2007] 4 All SA 866 (SCA); [2007] 8 BLLR 699 (SCA); 2007 (5) SA 552 (SCA); (2007) 28 ILJ 1499 (SCA) (17 May 2007)
Links to summary
THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
Reportable
CASE NO
211/2006
In the matter between
OLD MUTUAL LIFE ASSURANCE CO SA LTD
..........................
Appellant
and
THAMELA ADVOCATE GUMBI
..........................
Respondent
Coram: Howie P, Cameron, Brand, Cloete and Jafta JJA
Heard: 23 MARCH 2007
Delivered: 17 MAY 2007
Summary:
Dismissal – procedural fairness – employee’s
deliberate absence from a disciplinary enquiry not affecting
validity
of ensuing dismissal
Neutral
citation: This judgment may be referred to as
Old
Mutual v Gumbi
[2007] SCA 52 (RSA)
___________________________________________________________
JUDGMENT
___________________________________________________________
JAFTA JA
[1] The central issue in this appeal is
whether the termination of the respondent’s employment by the
appellant (Old Mutual),
was procedurally fair. The respondent (the
employee) does not contend that the employer lacked a fair reason to
dismiss him. His
attack was confined to the process that culminated
in his dismissal. Initially Old Mutual raised jurisdictional and
other challenges
to the claim, all of which it has abandoned. The
sole focus of the appeal – given that the employee eschewed his
statutory
remedies under the Labour Relation Act, Act 66 of 1995 (the
LRA) (compare
Transnet Ltd v Chirwa
2007 (2) 198 (SCA)) – was therefore the employee’s
right to a pre-dismissal hearing under the common law.
[2] On 29 April 2004 Old Mutual dismissed the respondent
following a disciplinary enquiry in which he was found guilty of
misconduct
and dismissal was recommended as the appropriate sanction.
He instituted an application in the Transkei High Court challenging
the
dismissal on the basis that the enquiry was held in his absence,
and as a result he was denied a hearing before the decision to
dismiss
was taken. Miller J dismissed the application on, inter alia,
the ground that the employee had ‘wilfully and voluntarily
excluded
himself from the disciplinary hearing’ because he
failed to return to it after a short adjournment.
[3] The employee appealed to the Full Court. Maya J
(Kemp AJ concurring) reversed the decision of the court of first
instance. The
learned Judge held that the employee’s absence
from the disciplinary hearing was neither wilful nor voluntary, and
that the
medical certificate, handed to the disciplinary tribunal by
his representative, could not be rejected when its authenticity and
correctness
had not been disputed at the hearing. In a dissenting
judgment Somyalo JP found that the employee ‘evinced a
determination
to postpone, stampede and/or derail the disciplinary
enquiry’, and that his absence from the hearing was wilful and
voluntary.
The present appeal is with the special leave of this
court.
[4] An employee’s entitlement to a
pre-dismissal hearing is well recognised in our law. Such right may
have, as its source,
the common law or a statute which applies to the
employment relationship between the parties (
Modise
and Others v Steve’s Spar, Blackheath
2001
(2) SA 406
(LAC) at para 21 and the authorities collected there). In
cases such as the present, the parties may opt for certainty and
incorporate
the right in the employment agreement (
Lamprecht
and Another v McNeillie
[1994] ZASCA 45
;
1994 (3) SA 665
(A)
at 668).
[5]
In
Slagment
(Pty) Ltd v Building, Construction and Allied Workers’ Union
and Others
1995 (1) SA 742
(A) this court
stated the principle in the following terms at 755B-C:
‘
It
is within the province of the employer who holds a disciplinary
enquiry to determine its form and the procedure to be adopted,
provided always that they must be fair. Fairness requires, inter
alia, that the employee should be given an opportunity of meeting
the
case against him: the employer must obey the injunction
audi
alteram partem.’
Slagment
and
other previous cases in this court concerned the right to a hearing
developed under the old Labour Relations Act, 28 of 1956.
It is clear
however that coordinate rights are now protected by the common law:
to the extent necessary, as developed under the constitutional
imperative (s 39(2)) to harmonise the common law into the Bill of
Rights (which itself includes the right to fair labour practices
(s
23(1)).
[6] In recognising this right our law is consistent with
international law relating to pre-dismissal hearings as set out in
Article
7 of the International Labour Organisation (the ILO)
Convention on Termination of Employment 158 of 1982. It provides:
‘
The
employment of a worker shall not be terminated for reasons related to
the worker’s conduct or performance before he is provided
an
opportunity to defend himself against the allegations made, unless
the employer cannot reasonably be expected to provide this
opportunity.’
Two observations may be made in this regard. The first
is that South Africa is a member of the ILO and our Constitution
requires the
courts to have regard to international law when
interpreting legislation, including the common law (s 233). The
second is that the
convention itself recognises that the right is not
absolute: there are circumstances where it may not apply.
[7] Of importance is the fact that by
extending the requirement of the
audi alteram
partem
principle to employment relationships,
our law promotes justice and fairness at the workplace. In doing so,
the law promotes the primary
objects of the LRA, namely, giving
effect to South Africa’s obligations as a member state of the
ILO and promoting social justice
at the workplace (s 2 of the LRA).
In this context fairness must benefit both the employee and the
employer. The process of determining
the actual content of fairness
in matters such as this involves the balancing of competing and
sometimes conflicting interests of
the employee, on the one hand, and
the employer on the other. The facts of a particular case determine
the weight to be attached
to such interests on each side of the
scale. Expressing the view of this court on this topic in
National
Union of Metalworkers of SA v Vetsak Co-operative Ltd and Others
[1996] ZASCA 69
;
1996 (4) SA 577(A)
Smalberger JA said at 589C-D:
‘
Fairness
comprehends that regard must be had not only to the position and
interests of the worker, but also those of the employer,
in order to
make a balanced and equitable assessment. In judging fairness, a
court applies a moral or value judgment to established
facts and
circumstances….
And in doing so it must have due and
proper regard to the objectives sought to be achieved by the Act. In
my view, it would be unwise
and undesirable to lay down, or to
attempt to lay down, any universally applicable test for deciding
what is fair.’
[8] The right to a pre-dismissal hearing
imposes upon employers nothing more than the obligation to afford
employees the opportunity
of being heard before employment is
terminated by means of a dismissal. Should the employee fail to take
the opportunity offered,
in a case where he or she ought to have, the
employer’s decision to dismiss cannot be challenged on the
basis of procedural
unfairness (
Reckitt &
Colman (SA) (Pty) Ltd v Chemical Workers Industrial Union &
Others
(1991) 12 ILJ 806 (LAC) at 813C-D).
[9] In the present case Old Mutual had offered the
employee a chance to defend himself against the allegations of
misconduct which
led to his dismissal. The employee did not take the
opportunity. The crucial question is whether his absence from the
hearing was,
in the circumstances of this case, justified; or,
differently put, whether fairness to both parties demands that his
dismissal be
set aside or not. In order to determine this issue a
comprehensive summary of the facts is necessary.
[10] Old Mutual appointed the employee as a sales
advisor on 1 February 1995. He was stationed at its branch
in Mthatha
and Mr Sandile Ntombela, the sales manager, was his
superior. The evidence led at the hearing held on 29 April 2004
reveals
that on 5 March 2004, the employee submitted claims
for subsistence and travelling expenses which had to be perused by
his superior before payment could be authorised. His superior spotted
a discrepancy in the distance allegedly travelled by the employee
from Mthatha to Mqanduli. He then invited the employee to his office
to discuss the matter. The latter refused to have any discussion
with
him. Later in the day the employee confronted him in his office about
why he had not authorised payment of the claim. When he
said he
needed some explanation regarding the claim, the employee became
aggressive, shouted and threatened him with assault.
[11] Following this behaviour, charges of misconduct
were preferred against the employee. He was notified of the charges
and invited
to a disciplinary hearing set down for 31 March 2004.
The employee produced a medical certificate before the enquiry
commenced
and he failed to attend. He was summarily dismissed
following the hearing which proceeded in his absence. His
representative made
written representations to Old Mutual for his
reinstatement. In the light of the fact that he did not attend the
hearing, apparently
due to illness, Old Mutual withdrew the dismissal
and reinstated him but with a view to recharging him. He returned to
work on 25 April 2004
and on the next day he was given
notice of a disciplinary enquiry to be held on 29 April.
[12] At the enquiry the employee was represented by Mr
Balekile Mbebe, who described himself as a public defender. From the
moment
the hearing started, the employee’s representative
adopted an aggressive and combative attitude towards the disciplinary
tribunal.
He raised spurious objections which were designed to stop
the tribunal from proceeding with the hearing. First, he demanded
that
the chairman should produce a letter by the employer appointing
him to preside over the hearing. When this was overruled he
complained
that the employee was given short notice and that he had
not been furnished with the information he had requested from the
employer.
The information in question included copies of statements
by the employer’s witnesses and a document authorising that the
employee
be recharged.
[13] Displaying contempt for the tribunal, Mbebe stated
that the hearing could not proceed without him being furnished with
statements.
In this regard the oral exchange between him and the
chairman went as follows:
‘
Mr
Mbebe: We don’t continue if there are no statements, we can’t
hide information.
Mr Mfaise [the chairman]: I don’t
think we can deny witnesses the right to give evidence verbally.
Mr Mbebe: They must give statements and
then come verbally. [If] you refuse to give us those statements then
I will ask for 10 minutes.
Mr Mbebe: You know why we came here; we
said we wanted to go to court, that is real law.
Mr Mbebe: If you call your witnesses then
we will just keep quiet and we will take this matter to court.’
[14] The chairman granted an adjournment for the
employee to consult with Mbebe. The employee failed to return and
because of Mbebe’s
lateness the hearing resumed half an hour
late. He produced a medical certificate the contents of which I refer
to more fully below.
It referred to ‘tension headache and
enteritis’. Having perused it the chairman adjourned the
hearing further for about
an hour to enable the employee time to
recover. The chairman had hoped that the hearing could resume
provided that the employee had
recovered from the alleged tension
headache.
[15] Mbebe, whose intention was clearly to prevent the
hearing, was unimpressed by the chairman’s gesture. He made it
plain
that neither he nor the employee would return. At that stage of
the proceedings the following oral exchange occurred between him
and
the chairman:
‘
Mr
Mfaise: Welcome back, thank you Mr Mbebe for coming back, according
to this medical certificate Mr Gumbi is suffering from tension
headache and I will give you until 14h00 for your client to take
headache tablets, so that by 14h00 we may come back, hopefully he
would have recovered as that is an hour from now.
Mr Mbebe: I won’t be coming back as
my client is booked off sick, so you may continue without me.
Mr Mfaise: You say we may continue
without you?
Mr Mbebe: Yes you may continue.’
[16] The court below held that the
representative’s ‘consent’ that the hearing should
continue in their absence
did not constitute waiver of the right to a
hearing. I agree. The employee’s conduct as a whole was
inconsistent with waiver.
At the moment he challenged the first
dismissal, the employee’s complaint was that he had been denied
a hearing and therefore
that the dismissal was invalid for that
reason alone. In essence what he was saying was that he was denied a
chance to defend himself.
However, when Old Mutual offered that
opportunity to him, the employee had a complete change of heart which
was evidenced by the
following facts. He refused to take the notice
for the second hearing; and with the intention of stopping the
hearing, his representative
raised spurious objections of all sorts
and was guilty of aggressive and contemptuous behaviour towards the
tribunal, threatening
it with legal action. All these facts
ineluctably lead to the conclusion that the employee wanted to have
the hearing aborted so
as to prevent the fulfilment of the condition
– a fair disciplinary hearing – upon which dismissal by
the employer was
contractually dependent. In our law a contractual
condition is deemed to have been fulfilled where a party deliberately
frustrates
its fulfilment. By analogy this may also be the position
in a statutory setting. In
Scott and Another v
Poupard and Another
1971 (2) SA 373(A)
Holmes
JA said at 378G-H:
‘
I
come now to the issue of fictional fulfilment of the condition upon
the occurrence of which the money was to be paid and the shares
to be
transferred to Poupard and Lobel, ie to say, the grant of mining
rights….
In essence it is an equitable doctrine,
based on the rule that a party cannot take advantage of his own
default, to the loss or injury
of another. The principle may be
stated thus: Where a party to a contract, in breach of his duty,
prevents the fulfilment of a condition
upon the happening of which he
would become bound in obligation and does so with the intention of
frustrating it, the unfulfilled
condition will be deemed to have been
fulfilled against him.’
See also
South
African Forestry Co Ltd v York Timbers Ltd
2005
(3) SA 323
(SCA) in paras 33-36.
[17] Returning to the medical certificate, I agree with
the finding by Somyalo JP that little evidential value can be
attached
to it. It does not reflect an independent medical diagnosis
of the illness or an opinion as to the fitness of the employee to
perform
his normal work, let alone his fitness to attend a
disciplinary hearing. The certificate appears to be in standard form
containing
printed and handwritten parts. It reads:
‘
MEDICAL CERTIFICATE
Undersigned hereby certifies that
THAMELA GUMBI
was examined by me on
2004/04/29
(date of first
examination)
and again on
____________ (date of last examination)
According to my knowledge, as I was informed he/she was
unfit to work
from
2004/04/29
to ________________
due to ILLNESS / OPERATION / INJURY
Nature of illness / operation / injury
TENSION HEADACHE
ENTERITIS’
The printed words are in ordinary script and the
handwritten insertions are in bold.
[18] As was found by Somyalo JP with whose finding I
agree, as I have said, the chairman of the inquiry justifiably
doubted the reliability
of the medical certificate and inferred that
the employee was malingering. The question whether the employee was
really so ill that
he could not attend the hearing must also be
assessed against his entire conduct towards the inquiry. I have
already found that both
his conduct and that of his representative at
the hearing established clearly that he intended to prevent the
hearing from being
held. This must be considered together with the
fact that he and his representative contradicted each other about the
time at which
he became affected by illness. The employee said he was
already ill when he woke up on the morning of the hearing whereas his
representative
said he fell ill during consultation after the first
adjournment. The employee also said he was taken home by his
representative
after seeing the doctor but the latter said he did not
know where the employee went. The employee made this allegation in
his founding
affidavit, contrary to what was said by his
representative in the record of the enquiry, which he attached as an
annexure to the
same affidavit. The relevant part of the record reads
as follows:
‘
Mr
Mfaise: Welcome back from this recess, which was supposed to take 30
minutes.
Mr Mbebe: We were still consulting as we
requested and my client felt sick and most unfortunately I had to
rush him to the doctor
and here is a medical certificate he is booked
off.
Mr Mfaise: When did he get sick?
Mr Mbebe: Today.
Mr Mfaise: Where is he now?
Mr Mbebe: I don’t know, hasn’t
he got home? May be he went home.’
[19] It was the duty of the employee to ask for a
postponement of the hearing if he was unable to attend due to
illness. This he failed
to do despite the matter having been
adjourned for the second time due to his absence. Instead, his
representative dared the chairman
to continue with the hearing in
their absence. A mere production of the medical certificate was not,
in the circumstances of this
case, sufficient to justify the
employee’s absence from the hearing. As the certificate did not
allege that he was incapable
of attending at all, the chairman was
entitled to require him to be present at the resumed hearing so as to
himself enquire into
his capacity to participate in the proceedings.
These facts play a major role in determining unfairness when the
interests of both
parties are taken into account.
[20] Before us the employee (through
counsel) attempted to distance himself from the unacceptable
behaviour of his representative.
In my view, he cannot do that at
this stage. He did not disapprove of the representative’s
conduct at the hearing while he
was present nor did he do so in his
founding affidavit after reading the record of the enquiry. Moreover,
the representative was
his agent of choice and when he appeared at
the tribunal he was acting on his behalf. His conduct must be
attributed to him (cf
Saloojee and Another v
Minister of Development
1965 (2) SA 135
(A)
at 141C-E).
[21] When all these facts are viewed objectively, it
cannot be said that Old Mutual has acted procedurally unfairly in
continuing
with the hearing in the employee’s absence and
dismissing him for the misconduct of which he was found guilty. The
employee
and his representative are the only persons to blame for his
absence. It follows that the appeal must succeed.
[22] The following order is made:
1. The appeal is upheld with costs.
2. The order of the court below is altered to read:
‘
The appeal is dismissed with
costs.’
____________________
C N JAFTA
JUDGE OF
APPEAL
CONCUR: ) HOWIE P
) CAMERON JA
) BRAND JA
) CLOETE JA