Parbanath v Lever Pond's (Pty) Ltd (: DA1/98) [1998] ZALAC 21 (14 August 1998)

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[1998] ZALAC 21
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Parbanath v Lever Pond's (Pty) Ltd (: DA1/98) [1998] ZALAC 21 (14 August 1998)

IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN DURBAN
Case Number: DA 1/98
In
the matter between
ROHAN PARBANATH
and
LEVER POND’S (PTY)
LTD
JUDGMENT
[1] This
is an appeal from the industrial court to this Court in terms of the
transitional arrangements set out in
section
22 of schedule 7 to the
Labour Relations Act 66 of 1995
(‘the new Act”). In terms thereof the matter must be dealt with
in terms of the
Labour Relations Act
28 of 1956
(“the old Act”).
[2] The industrial
court found that the appellant had been unfairly dismissed and
ordered the respondent to pay him compensation in
the sum of R 18
600.00, the equivalent of six month’s salary. The appeal is
directed against the form of this relief: the appellant
seeks
reinstatement, not compensation.
[3] The respondent led
no evidence on the issues relating to the kind of relief that should
follow upon a finding that the appellant
was unfairly dismissed.
Appellant gave evidence that he had been employed from early 1990
until his dismissal by the respondent
at the end of 1995. At that
time he was earning a salary of R 3 100.00 per month. He was not
cross-examined on the basis that he
had not properly performed his
functions during that period, nor was it suggested to him that there
would be any difficulty in reinstating
him.
[4] What the appellant
was dismissed for was that he allegedly stole a lawnmower from the
respondent. The industrial court found
that it was not shown that
the appellant did, in fact, steal the lawnmower. Consequently the
matter should be approached on the
basis that he was not guilty of
theft.
[5] The presiding
officer in the industrial court considered three factors to be
important in deciding to award compensation instead
of reinstatement.
Each will be dealt with in turn.
[6] The first was that
“it will be unjust to impose a sanction of reinstatement, as the
time period that has expired since the [appellant’s]
dismissal
during November 1995 to present is so long that it would impose
tremendous difficulties on the Respondent to make provision
for [his]
return”. The respondent led no evidence to this effect, nor was
the possible difficulty even canvassed in the cross-examination
of
the appellant. While the length of the delay between dismissal and a
court hearing is self evident, the difficulty in reinstating
an
employee is not. It might conceivably present no problem at all.
There is, in my view, no justification to assume that reinstatement
will be difficult where there is nothing on record to that effect.
[7] Reference was also
made in the judgment of the presiding officer in the industrial court
to the appellant’s failure to explain
why “a three month period
elapsed, during which this matter was not pursued at all”. The
appellant was dismissed on 14 November
1995. He requested a
conciliation board meeting on 28 March 1996 and the conciliation
board was established on 3 April 1996. Conciliation
failed and the
proceedings in the industrial court were initiated on 16 August 1996.
It is not clear to which period reference was
made in the judgment,
but, apart from that, once again the delay, its cause and its effect
were not raised and debated in evidence
or in the cross-examination
of the appellant. Without that, as is the case with the effluxion of
time, there is no factual foundation
upon which to make an automatic
finding adverse to the appellant.
[8] After his dismissal
the appellant sought other employment. On 10 June 1996 he obtained
employment with Pepsi Cola, which lasted
until May 1997 when the
company (or at least its South African front) was liquidated. At
Pepsi he earned a salary of R 3 500.00
per month. The salary
he received was slightly more than he had received at the respondent.
The appellant was cursorily cross-examined
on this aspect, the
suggestion being that he would have remained at Pepsi had it not been
liquidated.
[9] The appellant did
not concede that he would have remained at Pepsi had the latter not
been liquidated. The relevant portion in
cross-examination on this
aspect reads as follows:
“
Okay.
That’s what the question I put to you. So had Pepsi Cola not been
liquidated, you would be employed today at a greater salary
than what
you earned at Lever Brothers?
.... I am not sure.
Okay,
on your evidence, you said that you earned R 3 100.00
.... Okay, right.
You would still
be employed today and you would probably want to stay there?
---Yes.
Okay.
So if the Court finds that your dismissal was unfair, what do you -
ow do you comment to my argument that the Court should
only
compensate you from November ‘95 to May ‘96? Can you comment on
that? If you don’t want to comment, you can say, “No
comment”?
--- no, I wouldn’t take it for .... (Inaudible).
Would you want Lever
Brothers to pay you after your job at --- for the period after - that
you lost your job at Pepsi?
Would you want Lever
Brothers - if the Court finds that your dismissal was unfair and the
Court decides to award you compensation,
would you expect the Court
to award you compensation for the period after liquidation of Pepsi,
that is from May this years onwards?
--- thank you.
No further questions, thank you”.
If the italicised portion clearly referred to
the work at Pepsi there might have been substance to the submission
that he conceded
the point, but it does not. The appellant earned R
3 100.00 whilst working for the
respondent
,
not as an employee at Pepsi.
[10] There is no other
basis on record to conclude that the appellant abandoned his claim
for reinstatement whilst working for Pepsi.
He initiated proceedings
in the industrial court for reinstatement (not compensation) whilst
he was employed by Pepsi; conduct which
can hardly be described as
consistent with a desire not to return to his erstwhile employment.
[11] The mere fact that
appellant might have continued working at Pepsi had it not been
liquidated (which was not conclusively established
in
cross-examination) is not, in itself, sufficient reason for refusing
reinstatement. The presiding officer in the industrial court
implied
that it was, saying that the respondent could not be penalised
“because of the fact...that...Pepsi Cola was liquidated.”

Appellant’s continued employment with Pepsi would preclude
reinstatement only if it was shown that such employment effectively
amounted to a waiver by the appellant of his claim to reinstatement.
To establish such a waiver would be difficult in circumstances
where
an employee who has been unfairly dismissed, is nevertheless under a
duty to mitigate his possible damages by seeking alternative
employment until he obtains the necessary redress. No clear evidence
to establish such a waiver was presented in the industrial
court.
The cross-examination of the appellant on this aspect elicited, at
best for the respondent, an ambiguous reply. The appellant’s
consistent insistence on reinstatement as the sought-after relief for
his unfair dismissal points the other way.
[12] The factors relied
upon in refusing reinstatement are thus, in my view, not persuasive.
No other compelling reason can be advanced
for refusing
reinstatement.
“
Where
an employee is unfairly dismissed he suffers a wrong. Fairness and
justice requires that such wrong be redressed. The Act
provides that
the redress may consist of reinstatement, compensation or otherwise.
The fullest redress obtainable is provided by
restoration of the
status quo ante
.
It follows that it is incumbent on the Court when deciding what
remedy is appropriate to consider whether, in the light of all
proved
circumstances, there is reason to refuse reinstatement.” (
per
Nicholas A J A in
NUMSA v Henred Fruehauf Trailers (Pty)
Ltd
1995 (4) SA 465
(A) at 462J-463A; (1994) 15 ILJ 1257
(A) at 1263C-D)
[13] The appellant
should therefore have been reinstated in his employment with the
respondent.
[14] The appeal
succeeds with costs. Para (i) of the order in the industrial court
is confirmed, but para (ii) is set aside and replaced
with the
following:
“ii. The respondent is ordered to reinstate
the applicant in its employ on the terms and conditions that obtained
at the date of
his dismissal”.
[15] The appellant is
to present himself for reinstatement at the respondent within 14 days
of the date of this judgment. The reinstatement
is to operate from
the date of the industrial court order being 27 November 1997.
Froneman D J P
I
agree
Myburgh
J P
I agree
Cameron
J A
Date of Hearing: 13
August 1998
Date of Judgment: 14
August 1998
Counsel for
Appellant: Mr S M Govender instructed by Jay Reddy
Counsel for
Respondent: Mr A E Franklin instructed by Deneys Reitz
This judgment is
available on the Internet at: http://www.law.wits.ac.za/labourcrt