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1999
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[1999] ZALAC 22
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Gal Marine (Pty) Ltd v Barend Cronje and others (CA3/99) [1999] ZALAC 22 (16 September 1999)
IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
HELD AT CAPE TOWN
CASE NO.: CA3/99
In the matter between:
GAL MARINE (PTY) LTD
Appellant
and
BAREND CRONJE
1
st
Respondent
D.I.K. WILSON N.O.
2
nd
Respondent
________________________________________________________________
JUDGMENT
________________________________________________________________
CONRADIE JA
[1] Following upon the termination of the first respondent
=
s
employment with the appellant, he alleged before a commissioner of
the commission for conciliation mediation and arbitration (
>
the
CCMA
=
)
that the termination had been substantively and procedurally unfair.
The commissioner found in his favour and awarded him compensation
of
R 103 827.46. Being dissatisfied with this award, the appellant
brought it on review before the labour court which declined
to
interfere. Still dissatisfied, the appellant is now before us where
the contention is that the court
a
quo
erred in failing to
find that the commissioner had so grievously misconstrued the
evidence before him that the award should be
set aside.
[2] The first respondent had for
personal reasons resigned from the appellant
=
s
employ in December 1995. He had been employed as a mining engineer
in the appellant
=
s
business of recovering marine diamonds. During September 1996 the
appellant
=
s
managing director, Mr Ben-Tovim, approached the first respondent to
become a unit manager in overall charge of one of the appellant
=
s
diamond mining vessels. The first respondent accepted the offer and
rejoined the appellant in this capacity from 1 October 1996.
[3] On 18 December 1996 an incident
occurred which lead to the termination of the first respondent
=
s
employment. There is a massive dispute of fact about what precisely
happened. The first respondent testified that he had for some
time
been working under such great strain that it began taking its toll
on his health. On the morning of 18 December he woke up
ill. During
the course of the day he decided that he had better consult a
medical practitioner. This was awkward because he had
the previous
day been requested to travel to the Namibian port of Luderitz to
meet his employer
=
s
diamond mining vessel, Shelf Explorer. He advised the appellant
=
s
human relations manager, Ms Barbara Stewart- Roberts, that he was
too ill to fulfil this duty. She refused to believe him and
instructed him to proceed to Luderitz. He, in turn, refused to do
so. He had arranged to see his doctor the next day and did not
believe that it was all that important for him to meet the ship on
that day, rather than the next day, which had been the earlier
instruction given to him. He regarded the later instruction as
unreasonable.
[4] Ms Stewart-Roberts
=
s
version, on the other hand, was that - surprisingly, since he was a
hardworking employee who took his work seriously - the first
respondent on this occasion said that he would not carry out her
instruction since if he did so he would not be back in Cape Town
for
the week-end or for Christmas, she was not sure which.
[5] Ms Stewart-Roberts reported her
discussion with the first respondent to Mrs Ben-Tovim, the wife of
Mr Ben-Tovim. She was also
a director of the appellant. A heated
discussion between her and the first respondent ensued, during the
course of which the latter
said things to her that might as well
have remained unsaid. This discussion, as well as the information
given to her by Ms Stewart-Roberts,
was conveyed by Mrs Ben-Tovim to
her husband when he returned from a business journey later that
evening. There can be little doubt
that what was conveyed by Mrs
Ben-Tovim to her husband was the material which he used for writing
a letter to the first respondent
in which the latter was informed
that he had been relieved of his duties as unit manager.
[6] The appellant disputed both that
the first respondent had been dismissed and that he had not been
afforded a fair opportunity
of stating his case. The first
contention was based on the proposition that the first respondent
had repudiated his employment
obligations, that the appellant had
accepted the repudiation and that it was in these circumstances not
required to afford the
first respondent a hearing of any kind.
[7] I agree with the court
a
quo
that there was a clear
dismissal. There was, even on the appellant
=
s
version, not that unequivocal expression of an intention not to
comply with a contractual obligation which is the essence of a
repudiation. A repudiation can only be said to occur in cases of
aggravated breach of contract such as desertion. I do not support
the proposition that insubordination would normally amount to a
repudiation of contract. For although it is a breach of contract
the
employee who refuses to obey a lawful instruction does not, by his
conduct, usually mean to indicate that he will never again
perform
any of his contractual obligations.
[8] The dismissal letter had been
written without any input from the first respondent. It was before
the commissioner, before the
judge
a
quo
and before us his
principal complaint that he had been dismissed without having been
heard. The dispute of fact about what had
occurred between Ms
Stewart-Roberts and the first respondent could not properly have
been resolved by the decision maker, Mr Ben-Tovim,
without having
had the version of both participants to the quarrel before him. He
was not entitled to make up his mind, as he did,
on the one version
alone. Indeed, he could not even have decided whether there had been
a repudiation without having investigated
the circumstances from
both sides.
[9] Mr Elliot for the appellant
argued that the first respondent had had an adequate opportunity of
being heard when he was, in
the course of the discussion between him
and Ms Ben-Tovim, in a position to explain why he refused to comply
with the instruction
to meet the ship on 19 December. The argument
may have been acceptable if the initial discussion had been with the
decision-maker
himself. But once the discussion was reported to the
decision-maker, he had only the reporter
=
s
version before him. He was not entitled to assume that the report
was infallible. As I pointed out earlier, there were huge disputes
of fact about the content of the discussion. Mr Ben-Tovim had no
opportunity of exercising his mind on this. He should have given
himself that opportunity. Not to have done so was unfair. The
commissioner
=
s
decision that it was, was not reviewable under
s145
of the
Labour
Relations Act 66 of 1995
[10] The compensation which was
awarded does not exceed that to which the first respondent would
have been entitled for a procedurally
unfair dismissal. There is
accordingly no point in coming to a firm conclusion on the
commissioner
=
s
decision that the dismissal had also been substantively unfair. I am
inclined to think that it was but that is by the way.
The appeal is dismissed with costs.
_______________
CONRADIE
JA
I agree
_____________
NICHOLSON JA
I agree
_____________
MOGOENG AJA
Date of Hearing: 2
September 1999
Date of Judgment: 16
September 1999
Attorney for
Appellant: Deon Visagie from Mallinks Inc.
Appearance for
Appellant: Adv. Elliot
Attorney for
Respondent: Mr JP Van Wyk from Syfret Godlonton - Fuller Moore
Inc.
Appearance for
Respondent: Adv. M W Janisch