JDG Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon (JA70/98) [1999] ZALAC 40 (21 October 1999)

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[1999] ZALAC 40
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JDG Trading (Pty) Ltd t/a Price 'n Pride v Brunsdon (JA70/98) [1999] ZALAC 40; [2000] 1 BLLR 1 (LAC); (2000) 21 ILJ 501 (LAC) (21 October 1999)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
Held at
Johannesburg
Case No.: JA70/98
In
the matter between:
JDG
Trading (Pty) Ltd t/a Price ‘n Pride Appellant
and
E.K.
Brunsdon
Respondent
JUDGMENT
Zondo
AJP:
INTRODUCTION
[1] This
is an appeal by the appellant against a determination made against it
by the industrial court in terms of section 46(9)(c)
of the now
repealed Labour Relations Act 1956 (Act No. 28 of 1956) (“the old
Act”) in a dispute between the appellant and the
respondent. The
dispute was about whether the respondent’s dismissal by the
appellant constituted an unfair labour practice. Before
proceeding to
consider the appeal, there are two matters of a procedural nature
that, I think, would be more conveniently dealt with
at this stage of
the judgment than later. I propose dealing with them first. The first
relates to a power of attorney filed by the
appellant. The second
relates to what appears to be a failure on the appellant’s part to
deliver the record of the appeal within
the time specified in the
rules of this Court.
The
power of attorney:
[2] At the
commencement of his argument, Counsel for the appellant informed the
Court that, as he had been unable to establish that
the appellant’s
attorney had filed a power of attorney in this matter, he had
arranged for one to be made available. A power of
attorney was then
handed up in Court without any objection from the respondent’s
Counsel. Counsel for the respondent did not seek
to take any point
about the filing or the timing of the filing of the power of
attorney. Appellant’s Counsel also handed up a substantive
application by the appellant for the condonation of the filing of the
power of attorney at the stage at which it was filed. Again
there was
no objection from the respondent’s Counsel.
[3] Counsel
for the appellant then presented argument in support of the
appellant’s application for condonation in respect of the
power of
attorney. Argument then proceeded on both matters relating to the
delivery of the record at the time it was delivered as
well as to the
merits of the appeal. Thereafter the Court reserved judgment. This
then is the Court’s judgment. I deal first with
the issue of the
power of attorney.
Power
of attorney
[4] In
the rules of this Court, the only rule which provides for the filing
of a power of attorney is rule 6. The rules of this Court
were
published under GN No 1666, GG 17495 of 14 October 1996 as amended by
GN R961, GG18142 of the 11
th
of July 1997. In all probability rule 6 is the rule which Counsel for
the appellant had in mind as the rule, which he was submitting,
had
not been complied with by the appellant in not filing the power of
attorney. It is also the rule that the appellant’s previous
attorney, who, apparently, now practices as an advocate, had in mind
when he deposed to an affidavit on behalf of the appellant seeking
condonation for what he saw as the late filing of the power of
attorney.
[5] The
first question that needs to be decided is whether rule 6 applies to
a case such as this one, namely, an appeal to this Court
against a
judgment of the industrial court because, if that rule does not
apply, and if no applicable rule requires the filing of
a power of
attorney in an appeal such as this one, then the appellant does not
require any condonation.
[6] Rule 6
reads as follows:
“
Powers of attorney
A power
of attorney
authorising a representative to prosecute the appeal or the
cross-appeal must be delivered within 10 days of the delivery
of any
notice of appeal or cross-appeal.
If there is no cross-appeal, a
power of attorney to oppose an appeal must be filed with the
registrar by the respondent’s representative
when copies of the
respondent’s main heads of argument are filed under rule 9.
The State Attorney or any
attorney acting on behalf of the Republic of South Africa or the
government of any province need not file
a power of attorney.”
[7] It
is clear from a reading of all the rules of this Court that they were
designed for the processing of appeals to this Court
against
judgments emanating from the Labour Court and not from the industrial
court. One such indication is rule 5(9) which requires
that the
record which is delivered to the registrar of this Court must be
certified by the registrar of the Labour Court as correct.
However,
there is rule 5A which bears the heading: “
Appeal
from the industrial court
”.
That rule was inserted, probably as an afterthought, in order to deal
with appeals to this Court against judgments of the industrial
court.
It was inserted in the midst of rules governing appeals emanating
from the Labour Court.
[8] Rule
5A does not contain any provision which requires the filing of a
power of attorney. Subrules (1), (2) and (3) of rule 5A
deal with the
noting of an appeal and a cross-appeal against judgments of the
industrial court as well as the contents of such notices.
Sub-rule
(4) seeks to make certain rules governing appeals to this Court
against judgments of the Labour Court applicable to appeals
against
judgments of the industrial court.
[9] Rule
5A(4) reads thus:
“
When an appeal has been
noted, the provisions of Rule 5(7) to (22) apply
”.
The provisions of rule 5(7) to
(22) do not anywhere deal with the filing of a power of attorney. It
is clear from the provisions of
Rule 5A(4) that rule 6 is not one of
the rules of this Court which sub-rule (4) seeks to make applicable
to appeals against judgments
of the industrial court.
[10] The
question which arises is whether rule 6 applies to appeals against
judgments of the industrial court in the light of the
provisions of
rule 5A. Subject to what I will say later on in this judgment, it
appears that there are two possible interpretations
of the rules of
this Court in regard to this question. For convenience I will call
the one interpretation the wide interpretation
and, the other, the
narrow interpretation. Let me begin with the narrow interpretation
and then the wide interpretation.
[11]
The
narrow interpretation
The narrow interpretation is that
rule 5A was intended to do no more than to make provision for the
noting of appeals and cross-appeals
against judgments of the
industrial court and to regulate the delivery of the record and
matters connected with the delivery of the
record. In terms of this
interpretation the rest of the rules of this Court dealing with other
issues relating to appeals apply to
appeals against judgments of the
industrial court with the result, therefore, that rule 6 would also
apply to such appeals.
[12] Fundamental
to this interpretation is the notion that the Rules Board realised
that there would be logistical difficulties in
applying rule 5(1) to
appeals against judgments of the industrial court and decided to make
provisions in rule 5A which would easily
apply to such appeals. The
difficulty which the Rules Board would have realised in rule 5(1) is
that in fixing the period within
which an appeal should be noted,
rule 5(1) requires such period to be calculated from the date of the
granting of leave to appeal
- a date which would not exist in respect
of appeals against judgments of the industrial court because parties
do not require leave
to appeal against judgments of that tribunal.
[13]
The
wide interpretation
The wide interpretation is that,
subject to such practice directions as the Judge-President has power
to issue under rule 12(2) of
the Rules of this Court, the appeal
procedure provided by rule 5A is the whole appeal procedure governing
appeals to this Court against
judgments of the industrial court. This
would mean that, in so far as rule 5A read with rule 5(7) to (22)
does not make provision
for certain matters of practice and
procedure, such matters could be dealt with by way of practice
directions issued by the Judge-President.
This may be understandable
if regard is had to the fact that such appeals were of a temporary
nature.
[14] Which
of the two interpretations is the correct one may not be decisive of
the question whether in this case a power of attorney
was required to
have been filed and at what stage it was required to have been filed.
I say this in the light of the provisions of
section 173(3) of the
Act. Section 173(3) provides as follows:
“
An
appeal to the Labour Appeal Court
must be noted and prosecuted as if it were an
appeal to the Appellate Division of the High Court in civil
proceedings, except that
the appeal must be noted within 21 days
after the date on which leave o appeal has been granted.”
[15] Whether
or not rule 6 applies, or, indeed, whether or not the rules of this
Court as published under GN 1666, GG 17495 of 14
October 1996, as
amended, govern appeals to this Court may well depend on what the
effect of section 173(3) is in law. It could be
that its effect is
that the rules of the Supreme Court of Appeal governing civil appeals
also govern appeals to this Court. In that
case rule 6 would not
apply.
[16] If
the rules of the Supreme Court of Appeal govern appeals to this
Court, then rule 4(3)(b) and (c) of those rules would apply.
Those
provisions contain a requirement for the delivery of a power of
attorney by each side to an appeal. Supreme Court of Appeal
rule
4(3)(b) and (c) provide:
“3(b)
If the notice of appeal or cross-appeal is lodged by an attorney, he
shall within 20 days thereafter lodge with the registrar
a power of
attorney authorising him to prosecute the appeal or the cross-appeal.
(c) Where there is no cross-appeal, a power of attorney
to oppose an
appeal shall be lodged with the registrar by the respondent’s
attorney when copies of the respondent’s main heads
of argument are
lodged under rule 8.”
[17] From
a reading of the provisions of Supreme Court of Appeal rule 4(3)(b)
and (c), it is clear that its provisions substantially
correspond to
those of rule 6(1) and (2) of the rules of this Court except for the
period as well as the reference to an attorney,
in the one, when, in
the other, there is a reference to a representative. Whether rule 6
of the rules of this Court or rule 4(3)(b)
and (c) of the Supreme
Court of Appeal rules applies, one thing is clear, namely, that the
filing of a power of attorney is required,
and, in this case, should
have been filed much earlier than it ultimately was filed.
[18] From
the affidavit filed by the appellant’s previous attorney in support
of the application for condonation, it would appear
that the failure
to file a power of attorney earlier than was done was due to
oversight. The respondent has not taken the point and
does not oppose
the condonation application. In the light of this I am of the opinion
that this Court should, in so far as this may
be necessary, grant
condonation for the late delivery of the power of attorney,
especially, as there seems to be some uncertainty
about which rules
govern appeals to this Court. (See the discussion of this issue in
the judgment of this Court in
Xaba
v Portnet Limited
Case no: DA20/98 paragraphs 3.5 - 3.38).
[19] With
reference to the third paragraph of the separate judgment of my
Colleague, Conradie JA, it seems appropriate for me to point
out that
I do not say in this judgment that
Leonard
Dingler (Pty) Ltd v Ngwenya
[1999] 5 BLLR 431
(LAC) was wrongly decided in so far as it said rule
6 of the rules of this Court applied to appeals against judgments of
the industrial
court. What I do say in this judgment is that whether
it is the provisions of rule 6 of the rules of this Court or those of
the rules
of the Supreme Court of Appeal which apply is academic for
purposes of this judgment because both do require the filing of a
power
of attorney. At any rate it needs to be borne in mind that the
Court in
Leonard
Dingler
does not
appear to have been aware of the provisions of section 173(3) of the
Act because it did not deal with them. I have no doubt
that, if it
was aware of those provisions, it would have dealt with them in the
judgment.
[20] Lastly
I mention that I will give consideration to the question whether, in
order to achieve certainty about the requirement
of powers of
attorney in appeals to this Court, I should not issue an appropriate
practice direction.
The
delivery of the record and the appellant’s application for
condonation:
[21] The
appellant believes that it delivered the record of appeal out of time
in this matter. As a result of this, it has made a
substantive
application for condonation for the delivery of the record at the
time that it delivered it. Counsel for the appellant
presented
argument in support of such condonation. As this is an appeal against
a judgment of the industrial court in terms of section
17(21A) of the
old Act, read with section 212(2) and (3) of the Act and Item 22(5)
of Schedule 7 to the Act, rule 5(A) of the rules
of this Court
applies. For reasons that will be apparent shortly, I must add that
that is on the assumption that the rules of this
Court and not those
of the Supreme Court of Appeal apply to appeals to this Court.
[22] The
provisions of rule 5A of the rules of this Court do not require the
delivery of the record. However, rule 5A(4) seeks to
make certain
provisions of the rules of this Court governing appeals emanating
from the Labour Court applicable to appeals from the
industrial
court. Rule 5A(4) says: “
When
an appeal has been noted, the provisions of rule 5(7) to (22) apply
.”
Sub-rule 8 of rule 5 is one of the rules which Rule 5A(4) seeks to
make applicable to an appeal such as this one.
[23] Rule
5(8) reads as follows:
“
(8)
The
record must be delivered within 60 days of the date of the order
granting leave to appeal, unless the appeal is noted after a
successful petition for leave to appeal, in which case the record
must be delivered within the period fixed by the court under rule
4(9).”
[24] There
are a number of issues which arise with regard to the consideration
of the delivery of the record in appeals against judgments
of the
industrial court. These entail the interpretation of rule 5A and rule
5 of the rules of this Court as well as the provisions
of section
173(3) of the Act. For the reasons I gave in
Xaba
v Portnet Ltd
, a
judgment of this Court under case number DA20/98, I am of the opinion
that:-
if the rules of this Court apply
to appeals against decisions of the industrial court, in which case
rule 5(7),(8),(9),(10) and
(17) will apply, the record of appeal
was not delivered outside the prescribed period because such period
has never commenced;
if the rules of this Court do
not apply but those of the Supreme Court of Appeal dealing with
civil appeals do, I am of the opinion
that the delay should be
condoned partly because of the benevolent approach referred to in
Xaba,
which I propose should be adopted, as well as because, for the
reasons that will be apparent below, the appellant has appreciable
prospects of success in the appeal.
[25] In
conclusion on the issue of the record, it remains to point out that,
although in
Leonard
Dingler
(
supra
)
this Court, in dealing with rule 5(8) at 437J - 438A, this Court
dealt with the problem presented by rule 5(8) on the basis that
the
period of 60 days referred to in rule 5(8) must be calculated from
the date of the noting of the appeal, it is clear that that
decision
was
obiter
because the Court found that the record had been delivered timeously.
Furthermore, the Court gave no reason providing the legal basis
for
reading 60 days from the date of the noting of the appeal into rule
5(8) when the language of rule 5(8) is so clear and unambiguous
that
the period is 60 days from the date of the granting of leave to
appeal.
The
Appeal:
[26] The
determination of the industrial court was given by one Professor
Cloete, who was an additional member of the industrial court.
The
determination itself related to a dispute between the appellant and
the respondent on whether or not the appellant’s dismissal
by the
respondent, who had been one of its managers, constituted an unfair
labour practice, and, if so, what relief, if any, the
respondent was
entitled to. This appeal itself comes to this Court in terms of
section 17(21A) of the old Act read with section 212(2)
and (3) of
the Act and Item 22(5) of Schedule 7 to the Act.
[27] It is
necessary to give a brief factual background to the dispute. In the
light of the basis on which, it seems to me, this appeal
can be
decided, I do not consider it necessary to refer to various incidents
that characterised the employment relationship between
the appellant
and the respondent. I propose referring only to those facts which are
strictly necessary for purposes of this judgment.
[28] The
respondent was employed by the appellant from the 2
nd
of August 1986 up to the 15
th
of February 1996 when he was dismissed by the appellant. When the
respondent commenced employment with the appellant, his position
was
that of a salesman. He was subsequently promoted to the positions of
sales manager, branch manager and general manager, but,
about four
weeks before he was dismissed, he was appointed to the position of
General Manager: Credit and Administration, which is
the position he
occupied at the time of his dismissal.
[29] The
events surrounding the dismissal of the respondent can conveniently
be divided into those which occurred before the 15
th
January 1996 and those which occurred between that date and the 15
th
February 1996. The 15
th
January 1996 and the 15
th
February 1996 are, in my view, the most crucial dates to be borne in
mind in regard to determining the fairness or otherwise of the
respondent’s dismissal.
[30] There
is not much in regard to the period before the 15
th
January 1996 that needs to be recited, save to say that, for some
time up to that date, the respondent’s position was that of General
Manager. In regard to that period I am also prepared to accept that
the respondent’s performance in that position left much to
be
desired or was poor.
[31] Before
dealing with the events after the 15
th
of January 1996, it is necessary to deal first with what occurred on
the 14
th
and 15
th
of January 1996. On the 14
th
of January the respondent received a call from the appellant’s
operations manager, Mr John Hall. Mr Hall asked the respondent to
see
him at the appellant’s head office in Johannesburg the following
day, namely, the 15
th
of January 1996. The respondent agreed.
[32] On
the 15
th
of January 1996 Mr Hall and the respondent met in Johannesburg. It is
not necessary to go into details about the discussion between
the two
men, save to say that it revolved around the performance of the
stores of the appellant which fell under the respondent.
There can be
no doubt that Mr Hall thought that the respondent’s performance was
not satisfactory. Indeed, Mr Hall told the respondent
that they (i.e.
Mr Hall and the respondent) needed to convince Mr Nel, the chief
executive officer of the appellant, that the respondent
needed to be
given about five months to ensure that there was improvement in the
areas falling under him. Apparently Mr Nel had paid
a visit to the
North-Eastern Transvaal Region, which fell under the respondent,
before and had come back very unhappy about the respondent’s
performance.
[33] While
Mr Hall and the respondent were busy trying to formulate proposals to
put to Mr Nel, Mr Nel entered the office and joined
the discussion.
Mr Nel made it clear to the respondent that he was very unhappy about
the respondent’s performance and that he
thought the respondent was
not the right person to solve the problems in the region which fell
under him. Mr Nel told the respondent
that he had come to the
conclusion that the respondent could not work with people.
[34] Mr
Hall then offered to remove the respondent from the position of
General Manager which he was occupying at that time and appoint
him
to the position of General Manager: Credit and Administration. Mr Nel
sought to justify this by saying the latter was a more
specialised
position which did not demand the same skills as the position of
General Manager or which did not demand them to the
same extent.
Initially the respondent did not seem to be very happy with this but
ultimately he accepted the offer. It was then agreed
between the
parties that the respondent would immediately take leave for a few
days. The respondent took leave from that same day
up to the 27
th
of January 1996.
[35] When
the respondent returned from leave on the 28
th
of January 1996, he was asked to attend a “bosberaad” of the
appellant’s management. The “bosberaad” began on the 29
th
of January and went on until the 31
st
of January. The venue of the “bosberaad” is said to have been
somewhere in the vicinity of the Hartebeespoortdam. The respondent,
it appears, commenced duties in his new position on the 1
st
of February 1996, although, when he attended the “bosberaad”, he
attended it in his new capacity.
[36] On
the 14
th
of February 1996, a month to the day since Mr Hall’s call to the
respondent in respect of the meeting of the 15
th
of January 1996, the respondent received a call while he was on a
visit to Price n’ Pride, Giyani, from Mr Tokkie Combrinck, the
Executive Head: Credit and Administration, of the appellant. Mr
Combrinck instructed the respondent to attend a certain meeting at
the respondent’s head office in Johannesburg the following morning,
namely, on the 15
th
of February 1996. The respondent asked Mr Combrinck what the meeting
was about but all Mr Combrinck said in reply was that there
were a
couple of matters that needed to be discussed and did not disclose
the nature of those issues.
[37] On
the morning of the 15
th
of February 1996 the respondent proceeded to the meeting at the
respondent’s head office in Johannesburg. Present at the meeting
were Messrs Nel, (the CEO), John Hall, Tokkie Combrinck, Donny and
McCullock. In his statement of case the respondent says that,
after
he had greeted everyone at the meeting and sat down, he was informed
by Mr Nel that the executive team of the respondent had
come to the
conclusion that, for reasons which Mr Hall would explain to him, the
company no longer had a position for him. Mr Nel,
who appeared for
the appellant before us, conceded during argument, in my view
correctly so, that in all probability the decision
to dismiss the
respondent was taken either prior to the meeting or just before the
respondent entered the room where the meeting
was held.
[38] In
paragraph 4.17 of his statement of case the respondent made the
following allegation:
“Mnr
Nel het voortgegaan deur te se dat die besluit geneem is tot beswil
van besigheid en dat hulle nie die huidige pos wat die
applikant
beklee het vir hom sou aanbied indien sekere feite tot hulle
beskikking was nie. Dit was dus duidelik dat die besluit reeds
geneem
is voor die vergadering.
”
In replying to this allegation, the appellant stated in its statement
of defence that it was denying any allegations which were
contrary to
its version that it was faced with certain problems arising out of
the respondent’s failure to perform his duties properly
and that Mr
Nel informed the respondent that it was evident that the respondent
did not possess the skills and abilities required
for the performance
of his “
current
duties
”. The
allegations in paragraph 4.17 of the respondent’s statement of case
are not contrary to that version of the respondent
and must,
therefore, be taken as not denied.
[39] The
appellant then went on in paragraph 25.2 of its statement of defence
and said: “
Any
contrary allegations contained in the paragraphs under reply to what
is stated above are denied
.”
This was still part of the appellant’s reply to the respondent’s
allegations contained in paragraph 4.17 of his statement
of case.
Again the respondent’s allegations in paragraph 4.17 of the
respondent’s statement of case are not contrary to or inconsistent
with the appellant’s version.
[40] I
have stated above that the respondent stated in his statement of case
that when Mr Nel told him of the decision which had been
taken about
him, he had said that that decision had been taken for reasons which
Mr Hall would explain to him. In paragraphs 4.18.1
up to 4.18.3 of
his statement of case, the respondent gives his version of what the
reasons were which Mr Hall then told him at the
meeting. According to
the respondent (see paragraphs 4.18.1 to 4.18.3 of his statement of
case), the following are the reasons for
the respondent’s dismissal
as given by Mr Hall at the meeting:
“
4.18.1 Na ‘n besoek deur
Mnr Hall en Mnr Nel in die Noord Transvaal was hulle baie ongelukkig
oor die toestand van sekere winkels
onder andere die Louis Trichardt
pakhuis waar hulle gevind het dat baie van die voorraad beskadig is
en dat die voertuie nie in ‘n
goeie toestand was nie. Daar is vir
hulle gese dat hierdie probleme by die Applikant aangemeld was, maar
dat die Applikant niks gedoen
het om die probleme op te los nie. Daar
is ook aan hulle gese deur sekere takbestuurders wat van die pakhuis
gebruik maak, dat die
probleme in die pakhuis tot gevolg gehad het
dat hulle baie besigheid oor die kerstyd verloor het en dat dit die
rede vir ‘n daling
in hulle verkope was.
4.18.2 Gedurende besoek aan die
Swazilandstreek was daar ook aan hulle gese dat die Applikant se
ondersteuning aan die streek nie
voldoende was nie en dit was
aangevoer as een van die redes waarom die streek nie so goed gevaar
het nie.
4.18.3 Daar is ook volgens Mnr
J Hall tydens ‘n vergadering met area bestuurders wat aan Applicant
rapporteer het, duidelike tekens
dat hulle verlig was dat die
Applikant nie meer in beheer van die streek was nie
.”
In paragraph 26 of its statement
of defence the appellant admitted that these were the reasons which
Mr Hall gave the respondent at
the meeting.
[41] After
Mr Hall had told the respondent the appellant’s reasons for its
decision, the respondent was given an opportunity to
react to what
had been said. The respondent told the meeting that he could not see
his way to reacting to what had been said as he
had not been given an
opportunity to prepare himself for this and seeing that he had
already been told that the company no longer
had work for him.
Thereafter Mr Nel told the respondent that he would be paid up to the
end of March 1996 and that, if he wished
to, he could purchase the
company car that he had been using. Mr Nel told the respondent that
the respondent did not need to serve
his notice period which was up
to the end of March 1996. In essence that is what transpired at the
meeting.
[42] It
would appear that the appellant thereafter continued to seek to hear
what the respondent had to say about what the management
had said at
the meeting, but the respondent never used that opportunity -
probably for the same reasons that he had stated at the
meeting of
the 15
th
February 1996. The only communication the appellant received after
the 15
th
of February from the side of the respondent was an attorney’s
letter in which apparently an exorbitant demand for a severance
package
was made. The appellant was not prepared to accede to that
demand. Subsequently the respondent lodged an unfair labour practice
claim
in the industrial court.
[43] The
industrial court heard evidence and reserved judgment. Thereafter it
handed down a determination to the effect that the respondent’s
dismissal was without a valid reason and without a fair procedure. It
did not order the respondent’s reinstatement, but ordered
payment
by the appellant to the respondent of an amount of R241 500,00 as
well as costs as between attorney and client on the B-scale
of the
Magistrate’s Court. It gave no reasons for its determination. Even
when the appellant’s attorneys formally asked the industrial
court
to furnish its reasons for its determination, these were not given.
[44] After
about eight months of waiting in vain for the reasons, the appellant
gave up and proceeded to file its notice of appeal
and grounds of
appeal without the benefit of the industrial court’s reasons for
the determination. No explanation appears to have
ever been given why
the industrial court member concerned did not give his reasons. The
industrial court’s failure to give reasons
for its determination
especially when asked to do so by the party against whom it had
already given judgment must be deprecated in
the strongest possible
terms.
[45] The
appellant has appealed to this Court against the finding that the
dismissal was without a valid reason, that it was without
a fair
procedure, the order that the appellant pay to the respondent the
amount awarded by the industrial court as well as the attorney
and
client costs order. All of these will be dealt with below.
Was there a valid reason for
the respondent’s dismissal?
[46] The
appeal was argued by Mr Nel on the basis that the respondent’s
dismissal was justified because the respondent lacked the
skills and
abilities required of him in order to perform his duties. This raised
the question as to what those skills and abilities
were. In this
regard Mr Nel argued the appellant’s case on the basis that it was
the inter-personal skills which the respondent
did not have. There
was also mention of the fact that at the “bosberaad”, the
respondent had not made any contribution.
[47] The
reasons which were given to the respondent at the meeting of the 15
th
of February 1996 by Mr Hall as the reasons for his dismissal do not
include his failure to make a contribution at the “bosberaad”.
Accordingly, in my view, it can be safely accepted that, on its own,
the respondent’s failure to make a contribution at the “bosberaad”
did not form part of the real reasons for the dismissal. A finding
that places much reliance on the respondent’s failure to make
a
contribution at the “bosberaad” would, in my view, be to
disregard the issues as circumscribed by the parties in the pleadings
because the reasons given in the pleadings for the respondent’s
dismissal are not in dispute. A court is not entitled to disregard
issues as set out in the pleadings. At any rate, even the appellant
says in paragraph 6 of its Counsel’s heads of argument that
the
“deciding factor” in the conclusion of the appellant to dismiss
the respondent was the “respondent’s inter-personal skills”.
I
think
lack
of interpersonal skills was intended. (my underlining).
[48] The
difficulty I have with the appellant’s reason, namely, a lack of
interpersonal skills, is that it was accepted by the appellant
that
this was the same reason why the respondent had been removed from the
position of General Manager which he was occupying as
at the 15
th
January 1996. He was told that he was being offered the new position
of General Manager: Credit and Administration because in it
he would
not need the same skills or would not need them as much as he would
for the position of General Manager. Of course, that
reasoning makes
perfect sense. An employer who, when faced with an employee who lacks
the skills required in a particular position,
looks around to place
such employee in another position which may not require the same
skills rather than dismiss such employee must
be commended as a good
employer.
[49] It
is common cause that on the evidence before us there is nothing that
the respondent can be said to have done from the time
he assumed duty
in the new position to the date of his dismissal which could be said
to prove that he did not have skills required
for the new position.
Such lack of interpersonal skills or poor performance as the
appellant relies upon to justify the dismissal
relates to the
respondent’s performance as General Manager prior to the 15
th
of January 1996 and not as General Manager: Credit and
Administration. In fact the reasons which Mr Hall gave to the
respondent for
the latter’s dismissal at the meeting of the 15
th
February all relate to the period prior to the 15
th
of January 1996 when he was still General Manager.
[50] Mr
Nel himself had told the respondent (and this is referred to even by
the appellant’s Counsel in his heads of argument),
that he (i.e. Mr
Nel) had specifically created a position for the respondent in a more
specialised field because the respondent’s
lack of interpersonal
skills made him unsuitable for the position of General Manager. This,
quite clearly, implied that in the new
position such interpersonal
skills were not a significant requirement. In my view this meant that
a fact which was common cause between
the parties ran directly
contrary to the very basis of the appellant’s Counsel’s argument,
namely, the argument that the respondent
was dismissed from the new
position because he lacked interpersonal skills - the very skills the
appellant’s CEO had said were
not required in any significant way
in the new position.
[51] In
the light of what, it is common cause, the CEO had said to the
respondent in regard to interpersonal skills and the new position
when he appointed the respondent to it and the argument that the
latter was, nevertheless, dismissed for lacking interpersonal skills,
the question arises whether the new position required possession of
interpersonal skills as much as did the position of General Manager
or in any significant way. For the appellant to remove the respondent
from the position of General Manager on the basis that he lacked
interpersonal skills and appoint him to another position which also
required the same skills to the same extent would not only have
made
no sense but also it would have been illogical. I am of the opinion
that there is nothing in the record which would justify
a conclusion
that the appellant or Mr Nel could act in that manner. Accordingly
the matter must be decided on the basis that the
new position did not
require interpersonal skills to any significant degree. If that is
so, then the appellant must show to what
extent such skill was
required and where the respondent fell short. This has not been
shown.
[52] What
I think may well have happened in this case is that, after the
appellant had made the deal of the 15
th
January 1996 with the respondent, for some reason it changed its mind
about keeping the respondent - maybe because someone did not
agree
with Mr Nel’s decision to give the respondent another position or
maybe because the full extent of the respondent’s lack
of skills or
of his poor performance as General Manager was only discovered after
the deal and it was thought that he did not deserve
to have been
given the new position but should have been dismissed. In those
circumstances the decision was then taken to dismiss
the respondent.
Unfortunately for the appellant, by that time, in my view, it was too
late. The respondent had already been offered
by the appellant, and
he had accepted, the new position. He had already had a deal with the
appellant.
[53] The
appellant should have waited until it completed its investigations
into the respondent’s performance as General Manager
before it
could decide whether to offer the respondent another position or
whether it would dismiss him because, if the results of
the
investigation showed him as not suitable for any other position in
the company, the appellant would have been fully justified
in
dismissing him. The appellant did not do this. In those circumstances
it is understandable that the respondent should feel aggrieved
when
he finds himself dismissed after completing only two weeks in the new
job and before he has heard his superiors complain about
his
performance in the job.
[54] In my
judgment once the appellant had removed the respondent from the
position of General Manager on grounds that he lacked certain
skills
required for the position and had made a deal with the respondent in
terms of which the latter was appointed to a different
position, the
appellant could only dismiss the respondent for poor performance or
lack of skills if such poor performance or lack
of skills related to
the new position. In fact once the respondent had assumed duties in
the new position which gave him a “lifeline”
with the appellant,
the respondent was entitled to expect that he would not be dismissed
for poor performance or lack of skills before
he could prove himself
one way or the other in the new job.
[55] It
was not suggested on the appellant’s behalf, and in my view it
could not be justifiably suggested, that the period of two
weeks that
the respondent had in the new position before he was dismissed, had
been a reasonable opportunity for the respondent to
prove himself.
Indeed, there is not even evidence before us that during that period
of two weeks, there was anything that the respondent
did wrong or
failed to do, nor is there evidence that during that period occasions
arose which had required him to use skills in
the new job which he
had been unable to demonstrate. In those circumstances I am unable to
interfere with the finding of the industrial
court that the
respondent’s dismissal was without a valid reason.
The
attack on the finding of absence of a fair procedure:
[56] When
it is contemplated that an employee may lose his job because of poor
performance, he is entitled to be afforded an opportunity
to be heard
before the decision is taken to terminate his services. Although
Lanzerac Manor
(Pty) Ltd v de Vries & Others
(1996) 17 ILJ 11 (A) related to retrenchment, the decision as to
which employees were going to be selected for retrenchment was based
on performance. At 17B - C in that case, Grosskopf JA said:
“
In my opinion the affected
employees should have been afforded a proper opportunity to make
representations and deal with any unfavourable
conclusions regarding
their work performance, before any final decision on their
retrenchment was made.”
In my view those remarks apply
with equal force to the case before us.
[57] As
already stated above, the decision to dismiss the respondent was
taken prior to him being given an opportunity to state his
case. In
the light of this I asked appellant’s Counsel whether that did not
constitute a failure to observe the
audi
alteram partem
rule which would render the dismissal unfair. Counsel for the
appellant submitted that in our law it was permissible for an
employer
to take a decision to dismiss an employee before complying
with the
audi
alteram partem
maxim in certain circumstances. Counsel for the appellant ended up
submitting that the circumstances where that is permissible are
those
to be found in
Blue
Circle Materials v Haskins
(1992) 1 LCD (6) (LAC). That is a judgment of the old Labour Appeal
Court.
[58] In
my view appellant’s Counsel’s submission cannot be sustained. As
a general rule, where the
audi
alteram partem
rule applies, it must be complied with prior to the decision being
taken unless exceptional circumstances exist (see Corbett CJ in
Administrator of
the TVL & Others v Traub & Others
(1989) 10 ILJ 823 (A) at 828J - 829C). As Corbett CJ found in
Traub
at 829C - D, in this case I also find that there were no exceptional
circumstances justifying the taking of the decision to dismiss
before
the respondent could be heard. Accordingly even on that ground alone
the dismissal of the respondent was procedurally unfair.
[59] Appellant’s
Counsel also sought to argue that, in the light of the poor
performance of the respondent, even if he had been
given an
opportunity to be heard before the decision was taken, this would
have made no difference and the result would have been
the same. He
submitted that in those circumstances it could not be said that the
appellant acted unfairly. This submission attempts
to resurrect the
‘no difference’ rule. In my view, that rule has no place in our
law and should be rejected. (See
Administrator,
Tvl & Others v Zenzile & Others
(1991) 12 ILJ 259 (A) at 273C - 274A).
[60] Appellant’s
Counsel finally submitted that the respondent could not be heard to
complain about non-compliance with the
audi
alteram partem
rule because he was given an opportunity to be heard but he did not
make use of it. In my view the answer to this is that the respondent
was being offered an opportunity to be heard in a manner which
rendered his right to
audi
alteram partem
rule illusory. In such a case the respondent was entitled to reject
such an opportunity. The appellant had taken its decision already
and
it would have been an exercise in futility for the respondent to make
representations in those circumstances (see
Nkomo
& Others v Administrator, Natal & Others
(1991) 12 ILJ 521 (N) at 528 I - 529 A). The respondent cannot be
blamed for not utilising an opportunity to be heard which was so
manifestly unfair and inadequate (see also Colman J in
Heatherdale
Farms (Pty) Ltd v Deputy Minister of Agriculture
1980 (3) SA 476
(T) at 486 D - G).
[61] Some argument was also
advanced by the appellant’s Counsel that the respondent was
employed as a senior manager and that he
knew what his shortcomings
were. That an employee is a senior manager does not, in my view, give
the employer the licence to dispense
with the observance of the
audi
alteram partem
rule. Such an employee is also entitled to the observance of the
audi
alteram partem
rule. What may be relaxed in the case of a senior manager may be the
form which the observance of the rule may take (see what Vivier
JA
said in
Unilong
Freight Distributors (Pty) Ltd v Muller
(1998) 19
229
(SCA) at 238 A - B).
[62] The opportunity which is
given to a senior employee must still meet at least the two basic
requirements of the
audi
alteram partem
rule,
namely, he must be given notice of the contemplated action and a
proper opportunity to be heard. The reference to “
notice
of the
contemplated
action
”
necessarily implies that the action has not been decided upon finally
as yet but that it is one which may or may not be taken
depending on
the representations which the affected person may give. In this case
the opportunity to be heard which the appellant
purported to give to
the respondent did not meet any of these two basic requirements (see
Smalberger JA in
Administrator,
Tvl & Others v Thelestane
(1991) 12 ILJ 506 (A) at 519D - E; - although this passage is in the
minority judgment, it was not dissented from by the majority
- see
also what Colman J said in
Heatherdale
Farms
, supra, at
486F - G). In my judgment the appellant’s failure to afford the
respondent a proper opportunity to be heard rendered
the dismissal
unfair.
Relief:
[63] The
industrial court ordered payment of an amount which this Court was
told by Counsel was the equivalent of the salary the respondent
would
have earned from the date of dismissal to the hearing in the
industrial court. This dismissal has been confirmed to have been
unfair both substantively and procedurally. Subject to the proviso
that the respondent should not be paid twice for, for example,
the
month of March 1996, which was his notice period, I can see no reason
to interfere with that amount.
[64] With
regard to costs, there was clearly no basis for a costs order which
was on the attorney and client scale. Even Counsel for
the respondent
indicated that he was unable to justify such a costs order. We are
satisfied that at best for the respondent costs
should have been
party and party costs. We will amend the order of costs
appropriately.
[65] With
regard to costs in this Court, I am of the opinion that the
requirements of law and fairness dictate that the appellant
should be
ordered to pay the costs of the appeal.
[64] In
the result the order I make is the following:
Subject to paragraph 2 below,
the appeal is dismissed with costs.
The costs order made by the
industrial court is amended by the deletion of the reference to
attorney and client.
RMM Zondo
Acting
Judge President
I concur
C R
Nicholson
Judge of
Appeal
CONRADIE
JA
[65] I
respectfully disagree with certain aspects of the judgment of my
brother Zondo which I have read with great interest.
[66] I
have difficulty with the notion that rule 6 of the rules of this
court does not apply to appeals from the industrial court.
As
recently as February of this year it was decided in
Leonard
Dingler (Pty) Ltd Ngwenya
[1999] 5 BLLR 431
(LAC) at 435 E-F that ‘it is clear that rule 6(1)
does prescribe the filing of a power of attorney in respect of any
and every
appeal to this court.’
[67] Although
the question has not yet, as far as I am aware, arisen in this court,
I am strongly of the view that - particularly
in the light of the
provisions of
s 167(3)
of the
Labour Relations Act 66 of 1995
establishing the labour appeal court as a superior court with the
inherent powers and standing of the supreme court of appeal –
this
court should, like the supreme court of appeal, not depart from one
of its own judgments unless it is convinced that it was
clearly
wrong. (See:
Ellispark
Stadion Bpk v Minister van Justisie
1990 1 SA 1038
(AD) at 1051 H – I. The corollary of this is that a
previous decision considered to be wrong is normally unequivocally
overruled.
[68] As
I read the judgment of Zondo AJP his conclusion is that the filing of
a power of attorney is required, either by virtue of
rule 6
of the
rules of this court or by virtue of
rule 4(3)(b)
and (c) of the rules
of the supreme court of appeal. Faced with an earlier positive
finding that
rule 6
applies and a later finding that it may or may
not apply, I would not think that the earlier decision has, as a
matter of
stare
decisis,
been overruled. In my view, therefore, it is still the law that
rule
6
of the rules of this court governs the filing of powers of attorney
in appeals from the industrial court. Nothing makes me recoil
from
this conclusion since I do not, on reflection, consider that
Dingler’s
case is clearly wrong.
[69] I
do not take the same disconsolate view of the capacity of the
drafters of this court’s rules as Zondo AJP does. I would hesitate
to conclude that they were, by early 1997, not aware of the fact that
provision was to be made in such rules for appeals from the
industrial court. It may be that the drafters of the rules initially
overlooked this, but when they came to insert
rule 5A
in the text of
the rules in February 1997, they had, on this assumption, clearly
recognised their error and were attempting to put
it right. If one
supposes that, in doing so, they intended
rule 5A
to be the
only
rule applicable to appeals from the industrial court, one would have
to attribute to them at the same time the intention that the
remaining rules, for example those relating to powers of attorney
(rule 6)
, the delivery of heads of argument
(rule 9)
and the
consequences of a failure to appear at an appeal hearing
(rule 11)
should
not
be applicable to appeals other than those from the labour court. I
would feel awkward in attributing such a curious intention to
the
rule-makers. I think it far more likely that (whatever they may at
first have thought) by the time they came to incorporate
rule 5A
,
they realised that the rules had to cater for both types of appeals
and made what they thought was adequate provision for that.
I prefer
to think, therefore, that when
rule 5A
was inserted in the rules and
the wording of
rule 6(1)
and (2) was left unaltered this was done
intentionally. They refer to a power of attorney for the prosecution
of ‘the appeal or
cross-appeal’ and to ‘a power of attorney to
oppose an appeal.’ The word ‘appeal’ must, I think, refer to
appeals for which
provision has been made in
rules 5
and
5A
.
[70] As
for the late filing of the record I am, of course, bound by the
decision in
Xaba
v Portnet
(case no.: DA 20/98, judgment delivered on 19/10/99). Save,
therefore, to record my respectful disagreement with the conclusion
that
the rules if this court, on a proper interpretation, fail to
make provision for a vital procedural stage in the prosecution of an
appeal, I say no more about it.
[71] I
would think that where an employer on reasonable grounds comes to the
conclusion that a senior management employee is unsuited
to the
position which he holds, the scope for having such a conclusion
overturned in a court of law is small. It is in the highest
degree
desirable that an employer should, in the interests of efficiency, be
entitled to chose with as much freedom as is compatible
with the
honest exercise of a discretion, who it wants at or near the helm of
its enterprise. Qualities like leadership, resolve,
business acumen,
judgment and effective administration are not readily provable in a
court. A deficiency in such qualities is not
readily provable either.
[72] I
agree with what is said in Smith & Wood’s
Industrial
Law
(6
th
ed.) p. 405:
‘
In
the realm of dismissal for incapability, it is important that the
employer’s business should not have to suffer, to the detriment
of
all concerned, through the ineptitude or inefficiency of a particular
employee. However, it is also important that the employee
whose work
is causing dissatisfaction should be treated fairly. The question for
the tribunal is whether the employer has satisfied
them that he
genuinely believed on reasonable grounds that the employee was
incapable.’
[73] On
the evidence the appellant genuinely believed on reasonable grounds
that the respondent was incapable of properly performing
his duties
in the positions he had previously occupied. It then decided, I think
magnanimously, to try a solution which was jettisoned
before it had
been established whether it would work or not. Blowing hot and cold
like that is not fair to any employee. Once the
respondent had been
promised a (last) chance, he should have been given that chance. He
was, after all, not being dismissed from
his old job (at which he had
failed) but from the new one in which he had not yet had the
opportunity of proving himself.
[74] As
for procedural unfairness, it is unfair to expect an employer to
apply to a senior executive those guidelines regarding counselling
which have been worked out by the courts in relation to workers who
wear blue collars and those who wear no collars at all (
Stevenson
v Sterns Jewellers (Pty) Ltd
(1986) 7 ILJ 318 (IC) at 324 D – E). An experienced executive who
needs to be counselled on fundamental job skills is probably
not fit
to be an executive. He is there to oversee others. He cannot do that
if he cannot even oversee himself. Prof. M P Olivier
some years ago
wrote an interesting article in the industrial law journal entitled
‘The Dismissal of Executive Employees’. It
is to be found at
(1988) 9 ILJ 519. I agree with him that the courts have in the case
of senior employees (I would say correctly)
taken a more flexible
attitude in the application of the unfair dismissal guidelines.
Nevertheless, in the case of all employees
poor work performance is a
problem to the solution of which the incumbent whose work is under
scrutiny must be allowed to contribute.
In the present case the
respondent was, as regards his new job, not given that opportunity.
I
agree with the orders given by Zondo AJP.
_____________
CONRADIE
JA
Date of
Hearing: 25 August 1999
Date of
judgment: 21 October 1999
For the
Appellant: Mr Nel
Instructed
By: Snyman Van Der Heever Heyns Inc
For the
Respondent: Mr Blignaut
Instructed
By: Andre Van Dyk Attorneys