Manhattan Motors Trust v Abdulla (JA31/01) [2002] ZALAC 14 (11 July 2002)

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[2002] ZALAC 14
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Manhattan Motors Trust v Abdulla (JA31/01) [2002] ZALAC 14; [2002] 10 BLLR 930 (LAC); (2002) 23 ILJ 1544 (LAC) (11 July 2002)

IN THE LABOUR APPEAL COURT OF
SOUTH AFRICA
HELD IN JOHANNESBURG
Case no: JA31/01
In the matter between:
MANHATTAN MOTORS
TRUST APPELLANT
and
MSH ABDULLA RESPONDENT
________________________________________________________________
JUDGMENT
_______________________________________________________________
COMRIE AJA:
The appellant trust carries on
business in Pretoria as a dealer in used motor cars. The trustees
and proprietors are Mr Noormahomed
and his wife. From April 1995 the
trust employed the respondent as a salesman and later as a senior
salesman or sales manager.
He was recommended by Mr Amod, a brother
in law to Noormahomed, as a mechanic. He was taken on as such, but
was rapidly transformed
into a successful salesman. Amod, himself an
experienced salesman, left the business in 1995 to pursue other
interests. The business
prospered and in August 1999 Amod re -
joined it as a salesman. Notwithstanding the introduction in 1995,
and his prior experience,
Amod was regarded as junior to respondent.
The employment relationship
between the appellant and the respondent came to an end on 15
December 1999. The respondent (as applicant
in the Labour Court)
claimed that on that day Noormahomed terminated his employment for
operational reasons, but did so without
having regard to the
provisions of
s.189
of the
Labour Relations Act 66 of 1995
. The
respondent accordingly contended that his dismissal was unfair, and
he claimed compensation.
The appellant denied any
dismissal. It averred that the respondent become disgruntled by
inter alia
the success achieved by the recently re -
appointed Amod; that the respondent told Noormahomed to choose
between him and Amod;
and that when Noormahomed declined to make
that choice, the respondent ‘walked out on his job”.
After hearing evidence the trial
Court (
Maleka AJ
) accepted the respondent’s version on a
balance of probabilities. It found that the respondent had been
dismissed by the appellant;
that such dismissal was for operational
reasons; and that the dismissal was unfair for want of any
compliance with
s.189.
Compensation was awarded. There was no order
as to costs.
The appellant appeals with leave
granted by the Court
a quo
. It may be noted that the notice
of appeal does not attack the
quantum
of compensation which
was awarded, a position which was confirmed by counsel for the
appellant during argument. There is an appeal
and a cross - appeal
with regard to costs.
Four witnesses testified at the
trial They were the respondent and his witness Mr Ramanani, who
testified about a conversation which
took place on 12 November 1999
in the evening at the respondent’s home; and for the appllent,
Noormahomed and Amod. All four
witnesses were found by the trial
Court to be:
“
credible. They impressed me as
being honest. Where necessary they made relevant concessions during
their evidence. They testified
logically and their evidence did not
manifest any demonstrable attempt to mislead me or to embellish their
versions. I therefore
find that these witnesses were credible and
therefore rejected criticism levelled by Mr Coetzee against the
[respondent’s] credibility.
In my judgment such criticism
.......... is unfounded”.
The Court accordingly held that
the case had to be resolved “ on the assessment of the
probabilities”. As I have said already,
it was held that the
probabilities favoured the respondent’s version.
With regard to the termination of
the respondent’s employment and the reason therefor, the issues
were entirely factual. The normal
rules pertaining to appeals on
fact are therefore applicable, namely: that the trial Court’s
findings of fact and credibility
are presumed to be correct; and
that these findings will only be disturbed on appeal if there is a
material misdirection or if
they are clearly wrong.
Toyota
South Africa Motors (Pty) Ltd v Radebe and Others
[2000]
3 BLLR 243
(LAC)
at para 39. The trial Courts’ conclusions
resting on its assessment of the probabilities, are themselves
findings of fact and
subject to the aforegoing rules on appeal. On
these factual issues it was common cause that the respondent
employee bore the
onus
of proving his dismissal on a balance
of probabilities in terms of
s.192(1).
I turn to consider the facts. At
the outset one observes an irony not unprecedented in litigation.
The respondent’s evidence disclosed
little or no cogent reason for
the appellant to have dismissed him. On the other hand Noormahomed’s
evidence, supplemented by
that of Amod, did disclose a reason for
the dismissal, even though the appellant claimed that the respondent
resigned. The trial
Court had to make the best it could of this
situation; so too must we on appeal. The clue to the case in my view
is that the appellant
was a family owned business. It was common
cause in the evidence: firstly, that the respondent was a successful
salesman; and secondly,
that on his return to the business in August
1999, Amod succeeded as well, especially in the sale of smaller
vehicles. The respondent
handled the larger, more expensive models.
The respondent maintained that after Amod’s return all went well,
and in particular
that he had a good relationship with Amod. The
respondent admitted to some hypertension brought on, it would seem,
by his duties
as chairman of the body corporate of Himalaya Heights,
the residential complex where he lived. This led to occasional
absences
from work. Also, he did not take paid leave. But, he said,
these matters did not adversely affect his performance in the
workplace
where, indeed, he concluded many sales and was favoured
by the finance houses. Moreover, in November 1999, Noormahomed
promoted
him to sales manager or senior sales manager. It was then
that he was informed that Noormahomed would be undertaking a three
week
pilgrimage to Mecca from 18 December 1999. The respondent was
to be left in charge of the business. He stated that he was not
given
an increase in salary at that point. Yet out of the blue, on
the morning of 15 December 1999, three days before his departure for
Mecca, Noormahomed (according to the respondent) arrived at work and
told him that his services were no longer needed.
Noormahomed and Amod painted a
different picture. They testified that after Amod’s successful
return to the business, the respondent
become demotivated, perhaps
out of jealousy or anxiety. He continually squabbled and bickered
with Amod, and would not help him.
Amod stated that their
relationship soured. Himalaya Heights was taking its toll on the
respondent, whose sickness and absenteeism
began to take on
worrisome proportions. By November Noormahomed had decided on the
pilgrimage to Mecca. There was sufficient concern
on Noormahomed’s
point to warrant a visit to the respondent at his home after mosque
in the evening of Friday 12 November 1999.
It was a deputation of
three consisting of Noormahomed, Amod and Noormahomed’s young son,
who seems to have worked part - time
for his parents. What
precipitated the meeting, according to the appellant’s witnesses,
was the fact that the respondent had
not returned to work after
prayers or lunch that afternoon, and had given the keys to the
premises to Amod with the message that
he would not be coming back
to work. This part of the story was not squarely canvassed with the
respondent in cross - examination.
It was clearly designed to lend
credence to the appellant’s version of what happened later on 15
December. It was so central
to the appellant’s case that I cannot
credit that cross - examination was omitted inadvertently. I am
disposed to accept that
it was a false afterthought.
Nevertheless the Friday evening
meeting is highly significant in my opinion. It was on the face of
it a remarkable event. Noormahomed
and the respondent did not
socialise outside of the business context. Yet at a relatively late
hour, on a Friday, Noormahomed led
a deputation of three to call on
the appellant at his home. As far as I can make out there was no
prior invitation or arrangement.
On Noormahomed’s mind, it seems
clear, was his impending absence and who would look after the “shop”
while he was away. He
testified - and here I believe him as a matter
of probability - that he tried to motivate the respondent. He
disclosed the planned
pilgrimage to Mecca; he promoted the
respondent and gave him a substantial salary increase; and told him
that he would be in charge.
The fact of the visit, and its attendant
circumstances, demonstrates serious concern on the part of
Noormahemed and his perception
that there was a real problem.
According to the appellant’s
witnesses, the respondent did not improve after 12 November. His
attitude, sickness and absenteeism
persisted. He was eventually only
paid for five days’ work in December. The problem did not resolve
itself.
Noormahomed suggested that the
respondent opportunistically timed his ultimatum, three days before
the departure for Mecca, as a
means of getting rid of a rival in the
form of Amod. I think this is unlikely. Amod was the brother in law;
he was experienced
in the trade; and on his return to the business
in August 1999, he was successful. In these circumstances the
respondent could
not realistically have entertained the idea that
Noormahomed would fire Amod, even with Mecca looming. It is far more
likely in
my view that Noormahomed reasoned to himself: “I cannot
responsibly leave Abdulla in charge of the business during my
absence.
It is too risky. Abdulla must go, and Amod must take over”.
It may be noted, in passing, that Amod was appointed senior sales
manager in about August 2000.
There are two other features
which point strongly in the same direction. In the first place
annual bonuses were normally paid in
mid - December. Amod, who had
only worked part of the year, received a bonus soon after 15
December. The respondent was entitled
to expect a bonus as well.
Despite suggestions to the contrary, I am satisfied that the
respondent was not financially flush. I
find improbable that in
addition to putting his job in jeopardy, the respondent would have
been prepared to forego the imminent
bonus. Secondly, when he was
eventually paid, the respondent received severance pay calculated
according to his years of service.
He would not have been entitled
to such pay had he resigned voluntarily. Noormahomed’s explanation
for the severance pay was
that he relied on his book keeper or
accountant, to whom he relayed the facts. It may be that the
accountant was insufficiently
apprised of the labour law, in which
event I would expect him to have directed appropriate enquiry to
those better informed than
he. However, the accountant was not
called as a witness to confirm his instructions from Noormahomed or
to explain the ostensible
error away. As I see it, the accountant
was an obvious and necessary witness to be called for the appellant.
There was no indication
that he was unavailable to testify. The
inference which I would draw, from the failure to call the
accountant, is that he would
not have corroborated Noormahomed. The
further inference is that Noormahomed reported to his accountant
that he had to let the
respondent go for sound business reasons (
which were construed as operational reasons).
Other points were advanced in
evidence and by Mr Boda ( for appellant) and Mr Koekomoer ( for the
respondent)in the comprehensive
heads of argument which each of them
filed. I consider these points to be of lesser weight than those
which I have emphasised.
My conclusion on all the evidence is that
there is a marked and substantial preponderance of probabilities in
favour of the respondent’s
version that he was dismissed. That
balance is sufficient to persuade me that the appellant’s version
- the resignation - is
false. It follows that in my judgment the
Court
a quo
did not err in reaching the same conclusion,
albeit for somewhat different reasons. It matters not at this stage
whether the grounds
for the dismissal were correctly classified as
operational reasons: the Labour Court admittedly had jurisdiction
and the
quantum
of compensation is not under attack on
appeal.
The costs. The legal
representatives were agreed that the costs of the appeal should
follow the result. With regard to costs in
the Court below,
Maleka
AJ
furnished no reasons for not awarding them.
From the recorded argument it appears that Mr Boda’s predecessor
submitted that costs
should not be awarded either way. In response
to a contrary submission by Mr Koekomoer, the learned Judge
observed:
“
No, this court does [not] want
to discourage litigants to advance their case or their defence simply
because of the aspect of costs.
I mean it is quite clear that I can
only order costs when there is some element of vexatious or [ bad
faith?] on the part of the
litigant”.
If that reflected the learned
Judge’s eventual reasoning, he was in error. The discretion
regarding costs is far wider than that,
and includes fairness among
other considerations. See Landman and Van Niekerk:
Practice in the
Labour Courts,
at A - 61. In my view the outcome of the trial
and the dictates of fairness indicate that the respondent should have
been awarded
his trial costs.
I would accordingly dismiss the
appeal and uphold the cross - appeal. I would make the following
order:
The appeal is dismissed with
costs, including the costs of the application for leave to
appeal;
The cross - appeal succeeds.
Paragraph (c) of the order granted by the Court
a quo
is
set aside and replaced by:
“
(c) The Respondent is to pay
the costs of suit”.
____________________
R.G.
Comrie
Acting
Judge of Appeal
I agree.
____________________
C.R.
Nicholson
Judge of
Appeal
I agree.
__________________
M.T.R.
Mogoeng
Judge of
Appeal
Appearance:
For the Appellant: Adv. F.A. Boda
Instructed
by: R. Ebrahim & Associates, Pretoria
For the
Respondent: Mr W. Koekomoer of William Koekomoer Attorneys, Pretoria
Date of
hearing: 10 May 2002
Date of
judgment: 11 July 2002