Mkhonto v Ford NO and Others (JA61/99) [2000] ZALAC 12 (30 March 2000)

About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2000
>>
[2000] ZALAC 12
|

|

Mkhonto v Ford NO and Others (JA61/99) [2000] ZALAC 12; [2000] 7 BLLR 768 (LAC); (2000) 21 ILJ 1312 (LAC) (30 March 2000)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
(Held
at Johannesburg)
CASE
NO.:JA61/99
In
the matter between –
M
MKHONTO
Appellant
and
B L FORD
N.O.
1
st
Respondent
THE
COMMISSIONER FOR CONCILIATION,
MEDIATION
AND ARBITRATION
2
nd
Respondent
MM DE
VILLIERS
3
rd
Respondent
JUDGMENT
CONRADIE JA
[1] The
appellant who is before us pursuant to leave granted by the court
a
quo
was dismissed on 13 October by her employer, the third
respondent, with effect from 23 December 1997. It is common cause
that the
dismissal was substantively fair. It is not disputed by the
third respondent that the dismissal was procedurally unfair, as
indeed
the first respondent found it was. The dispute centres around
an offer of reinstatement made to the appellant on 25 November 1997.
Revelas J decided that, such an offer having been made by the third
respondent, the appellant had been offered substantial redress
and
that the award of R7250.00 for her procedurally unfair dismissal was
insupportable. The appellant challenges this conclusion
on appeal.
[2] After
the appellant’s dismissal the third respondent who was, I would
imagine, concerned about the legality of what she had
done, consulted
her attorney. He drafted a letter which she was to hand to the
appellant. It read as follows –
‘
1. This
serves to inform you that your services have not been terminated as
alleged by yourself, or in any manner whatsoever.
2. I
therefore regard you as a full-time employee employed in terms of the
terms and conditions of employment which has(have) governed
our
relationship since your employment.
Inasfar as any
conduct of mine could reasonably be construed as conduct terminating
our employment relationship, which conclusion
I would dispute, I
hereby offer you unconditional reinstatement.’
[3] Mr Maluleke
for the appellant agreed that this reinstatement offer was a crucial
aspect of the case. It is common cause that the
third respondent on
25 November 1997 attempted to give this letter to the appellant who
refused to read or even take it. However,
the third respondent
testified that the content of the letter was conveyed to her.
[4] The
commissioner, the first respondent, does not deal with the offer of
reinstatement in her award at all. All that she says in
her reasons
in this regard is that the letter drafted by the third respondent’s
attorney is an indication that there had indeed
been a dismissal,
something which was in dispute at the arbitration hearing. She does
not mention the dispute of fact concerning
the handing over of the
letter or the communication of its content.
[5] The
inescapable conclusion is that the first respondent ignored this,
highly relevant, evidence. It is obvious that, to use the
terminology
of
Carephone (Pty) Ltd v Marcus NO & others
[1998] 11 BLLR
1093
(LAC), a conclusion cannot ‘rationally be connected to
material properly available to a decision-maker’ if the latter, in
arriving
at that conclusion, did not have regard to relevant
material.
[6] The
consequence of this misdirection was that the first respondent failed
to consider whether the reinstatement offer had been
conveyed to the
third respondent and, if so, what impact this might have on the
applicant’s claim for compensation. Without a consideration
of this
aspect of the case, the first respondent misconceived the whole
nature of the enquiry. The enquiry was not merely whether
the
appellant was entitled to compensation according to the formula in s
194(1) of Act 66 of 1955 (‘the Act’), but whether she
should have
received any compensation at all. (
Johnson & Johnson (Pty) Ltd
v Chemical Workers’ Industrial Union
(1999) 20 ILJ 89 (LAC) at
99 I – 100 A
[7] The finding
of the court
a quo
that the award fell to be set aside was
clearly correct. The order which the court then gave pursuant to this
finding, was not. The
learned judge referred the dispute back to the
CCMA for determination. On further reflection she formed the view
that she had erred
in remitting the dispute and said so in her
judgment granting leave to appeal against the order setting aside the
commissioner’s
award.
[8] The third
respondent cross-appealed against the remittal order. Mr Maluleke
argued that the cross-appeal was not properly before
us because no
leave to cross-appeal had been granted. In support of his argument he
referred to
National Union of Metalworkers of South Africa &
others v Henred Fruehauf Trailers (Pty) Ltd
[1994] ZASCA 153
;
1995 (4) SA 456
(A)
at 460 B where a cross-appeal against a costs order made by the
former labour appeal court was struck off the roll for want
of leave
to appeal having been granted. Rule 30 of the rules for the conduct
of proceedings in the labour court provides for an application
for
leave to appeal. There is no provision for an application for leave
to cross-appeal. The rules for the conduct of proceedings
in the
labour appeal court provide in rule 4 for a petition for leave to
appeal. Nothing is said about a cross-appeal. It is interesting
to
observe that rule 48 of the uniform rules of the high court provides
for the granting of leave to appeal. It then says that after
the
grant of leave a notice of cross-appeal is to be delivered within ten
days of delivery of the notice to appeal. Leave to cross-appeal
is
evidently not required in that forum. Although s 17 C of the Labour
Relations Act 28 of 1956 required leave for an appeal from
the labour
appeal court to the appellate division, nothing was said about leave
to lodge a cross-appeal. It may be that a wide interpretation
of the
expression ‘leave to appeal’ in rule 30 of the labour court rules
might encompass leave to cross-appeal. It is, however,
not necessary
to finally decide the point. It was conceded by Mr Maluleke that the
judge
a quo
, in virtually suggesting a cross-appeal can be
said to have impliedly granted leave to cross-appeal.
[9] The
resolution of the dispute of fact in this matter does not depend upon
the credibility of the witnesses. It can be achieved
by an evaluation
of the probabilities. We are thus in as good a position as the next
commissioner to decide the one factual dispute,
which is whether the
appellant was offered reinstatement. The appellant refused to take
the letter given to her by the third respondent;
the third respondent
had been to her lawyer for the express purpose of obtaining advice
and was provided with the text of a letter
to give to the appellant
informing her that, insofar as she might have been dismissed, she was
being unconditionally reinstated.
It is therefore in the highest
degree improbable that the appellant would not have been told by the
third respondent of the reinstatement
offer contained in the letter
when it became clear that she declined to read it.
[10] The refusal
to accept the reinstatement offer impacts upon the appellant’s
entitlement to compensation. The law, as it presently
stands, is that
a court may in respect of a procedurally unfair dismissal award
either the full compensation prescribed by s 194(1)
of the Act or
nothing at all.
(Johnson & Johnson (Pty) Ltd v CWIU
(supra)
was followed in
Whall v Brandadd Marketing (Pty) Ltd
(1999) 20
ILJ 1314 at 1323 (LC) and
Lorenzen v Sanachem (Pty) Ltd
(1999)
20 ILJ 1811 (LC).) The guiding principle is fairness. I should
therefore ask myself whether it would be fair to fully compensate
an
employee to whom an unconditional offer of reinstatement was made
before the effective date of her dismissal. If not, I must deny
her
compensation. I would think that the appellant ignored the offer at
her peril. She put herself in a position where ‘… the
employer’s
ability and willingness to make… redress is frustrated by the
conduct of the employee.’ (
Johnson & Johnson (Pty) Ltd v
CWIU
(supra) at 1220 D.) An employee’s refusal to allow an
employer to remedy a procedural defect may, depending on what is
fair, deprive
him or her of compensation which would otherwise have
been payable;
De Bruin v Sunnyside Locksmith Suppliers (Pty) Ltd
(1999) 20 ILJ 1753 (LC) at 1762 B – E.
[11] I
propose exercising the discretion conferred by s 194(1) of the Act
myself. It is in the interests of fairness that this trifling
dispute, which has already gone far further than it should have,
should not be allowed to go further still. The appellant’s refusal
to accept the reinstatement offer was grossly unreasonable. There are
doubtlessly cases where the circumstances of an unfair dismissal
are
so degrading that it would not be fair to expect an employee to
accept an offer of re-instatement. This is not such a case. The
appellant did not indicate that her remaining in the third
respondent’s employ for two months after having been told of her
dismissal
caused her any anguish.
[12] The
appellant’s conduct in the litigation leaves much to be desired.
Not only did she fail to proffer any reason for having
refused the
offer of reinstatement, but her evidence concerning the reinstatement
offer, the only factual issue in the case, was
patently false. I thus
see no reason for interfering with the order of the court
a quo
that the appellant should pay the third respondent’s costs. The
costs in this court, including the costs of the application for
leave
to appeal, are to be paid by the appellant. There is no reason in law
or fairness to order otherwise.
the appeal is
dismissed with costs;
the order of
the court
a quo
setting aside
the first respondent’s award is upheld;
referring the
dispute back to the CCMA for determination is overturned
_____________
CONRADIE JA
I
agree
_________________
ZONDO
AJP
I
agree
________________
WILLIS
JA
Date of
Hearing: 9 March 2000
Date
of Judgment: 30 March 2000
Attorney
for Appellant: Mr MD Maluleke from Newu
Attorney for
Respondent: DH Masher from Hofmeyer Herbstein Gihwala Cluver &
Walker Inc
Counsel for
Respondent: Adv le Grange