Malapo Technology (Pty) Limited v Schreuder and Others (CA5/01) [2002] ZALAC 17 (8 August 2002)

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[2002] ZALAC 17
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Malapo Technology (Pty) Limited v Schreuder and Others (CA5/01) [2002] ZALAC 17; (2002) 23 ILJ 2031 (LAC) (8 August 2002)

IN
THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD
AT CAPE TOWN
Case
No: CA5/01
In
the matter between
MOLAPO
TECHNOLOGY (PTY) LIMITED Appellant
and
CHARNE
NICOLE SCHREUDER First Respondent
LANORE
ROUX Second Respondent
SHARON
JANE BOSHOFF Third Respondent
JACQUELINE
ELIZABETH WOOLLEY Fourth Respondent
_______________________________________________________________
JUDGEMENT
_______________________________________________________________
ZONDO
JP
Introduction
[1] This
is an appeal from a decision of the Labour Court in terms of which
that Court granted an application brought by the present
respondents
for certain declaratory orders against the present appellant. In
order to deal with the appeal properly, it is necessary
to first set
out the facts. As no request was made in the Court a quo for any
issues to be referred to oral evidence, such disputes
of fact as
there may be in the papers are to be dealt with on the basis of the
approach to be found in
Plascon
Evans Paints v Van Riebeeck Paints
[1984] ZASCA 51
;
1984 (3) SA 623
(A) at 634 E - 635
C
.
The
facts
[2] With
effect from the 1
st
April 2000 the appellant acquired a business known as IUVATEK
Electronic Services and its assets from Telkom SA Limited as a going
concern. The parties’ understanding of the effect in law of that
transaction on the contracts of employment of the employees who
were
employed by Telkom in that business unit is in line with the
understanding which appears in the minority judgement in
Nehawu
& others v University of Cape Town (2002)23 ILJ 306 (LAC) at
317-348
,
namely, that the contracts of employment of the employees employed in
a business that is being transferred from one person or company
to
another are automatically transferred to the purchaser or transferee
upon the transfer of the business.
[3] Prior
to this transaction , Telkom had offered voluntary retirement
packages to employees over the age of 50 who were employed
in the
IUVATEK business unit. Not enough employees volunteered to be
retrenched. After the transaction, the appellant also offered
voluntary retrenchment packages to employees who wished to apply for
voluntary retrenchment. It did this in consultation with trade
unions whose members could be affected. Again not enough employees
took this offer up.
The
events of the 28
th
April 2000
[4] On
the 28
th
April 2000 the second respondent was away from work on leave. The
first, third and fourth respondents were at work. At some stage
on
that day the first, third and fourth respondents were called by the
appellant’s management and told that they were being retrenched
with effect from the 30
th
April 2000. They were informed that they were going to be given
letters to this effect later and that, once they had received the
letters, they could leave immediately.
[5] The
first, third and fourth respondents were subsequently called in
individually and given letters of dismissal, their unemployment
cards
and their certificates of employment. They were informed that they
could leave early. The first respondent duly took the appellant
up on
this offer and left the appellant’s premisses soon after receiving
her letter of dismissal. The letters of dismissal were
to the effect
that the addressees were dismissed with effect from the 30
th
April 2000. In part each dismissal letter read thus:
“Your
position has been identified as being redundant and as such your
service with the [appellant] will be terminated on 30
th
April 2000".
As the second respondent was away on leave, she was not given any
letter of dismissal on this day. However, her father received a
telephone call from the appellant’s sectional manager who told him
that the second respondent had been retrenched and that she
should
come in on the 2
nd
May and collect her documentation.
[6] After
the third and fourth respondents had received their dismissal letters
and other documentation, they remained on the appellant’s
premises
while waiting for their transport to take them home. Before the third
and fourth respondents’ transport could arrive,
the appellant
decided that it was no longer going to pursue their dismissal and
decided effectively to withdraw its decision to
dismiss them. This
was still in the course of the 28
th
April.
[7] Pursuant
to that decision, there was interaction between the appellant and the
third and fourth respondents. There are certain
disputes of fact in
regard to what happened at this stage of the interaction. On the
third and fourth respondents’ version, while
they were waiting for
their transport, they were approached by Mr Van Rooyen at about 15h00
who told them that they were being reinstated
and
“instructed”
them
to return their dismissal documents. The third and fourth respondents
apparently stated that this was
“not
funny”
.
The appellant admits that a remark to this effect was made by the
fourth respondent. On the third and fourth respondents’ version
they were
“on
the verge of tears”
but
were taken by Mr Van Rooyen into a certain room from which he
telephoned the human resources manager, Mr Donald Peddie, and told
the third respondent to speak to him herself.
[8] The
appellant denies that the third and fourth respondents were in tears.
It also states that the third and fourth respondents
indicated that
they wished to speak to Mr Peddie to confirm what the true position
was. In my view nothing turns on whether it was
Mr Van Rooyen or the
two respondents who initiated the idea of speaking to Mr Peddie. As
to the allegation that the two respondents
were in tears, the matter
must be dealt with on the basis of the appellant’s version. The
third respondent then spoke to Mr Peddie.
She states that Mr Peddie
told her that he did not have time to speak because he had to go to a
meeting. She says that she, nevertheless,
asked him what was
happening as they had been dismissed but had now been told to hand
back the dismissal letters.
[9] According
to the respondents Mr Peddie told the third respondent that the
respondents’
“papers”
were being
“pulled
back”
and they should hand them back. Mr Peddie recalls the third
respondent speaking to him and that she asked what was going on. He
states
that he told the third respondent that their retrenchment was
no longer being proceeded with and they should hand the documentation
back. The third and fourth respondents then state that they remained
adamant that they had been dismissed but that Mr Van Rooyen
told them
that they were now being instructed to hand the papers back or else
they would
“face
discipline”.
The
respondents’ founding affidavit then reads:
“Third
and fourth [respondents] handed documents back under protest”
.
It does not say that, in handing the letters back, they told Mr Van
Rooyen that they were doing so under protest.
[10] Mr
Van Rooyen denies that he told the third and fourth respondents that
they would
“face
discipline”
if they did not return the documentation. His version is that the
third and fourth respondents handed the documentation back
voluntarily.
Mr Van Rooyen further states that the third and fourth
respondents did not inform him that they were handing the documents
back
under protest.
[11] In
the replying affidavit the respondents only say that, even on the
appellants’ version, the respondents were instructed to
hand the
documentation back. They state that the appellant approached the
matter on the basis of an employer giving employees an
instruction.
They give a general bare denial of the rest of the allegations in the
relevant paragraph of the appellants’ answering
affidavit. This
aspect of the matter must be decided on the appellant’s version,
namely that the third and fourth respondents handed
their
documentation back voluntarily and that they did not state that they
were doing so under protest. This must be the approach
because, to
the extent that there is any dispute of fact on this aspect, the
version of the party which was the respondent in the
Court below must
prevail. That party is the appellant.
The
events of the 2
nd
May 2000
[12] The
first working day after the 28
th
April 2000 was Tuesday the 2
nd
May 2000. On that day the first respondent received a message from a
neighbour to contact the appellant. She did so and spoke to
the
switchboard operator who told her that she needed to come to work or
else she would
“lose
money”.
Mr Van Rooyen had instructed the switchboard operator to contact the
first respondent and ask her to contact work. According to Mr
Van
Rooyen he did not want the first respondent to be staying at home
when she could be working and earning money since the appellant
was
no longer pursuing her retrenchment.
[13] The
first respondent went to work and was told to go and see Mr Van
Rooyen. Her version and that of the appellant about the content
of
the discussion that took place between herself and Mr Van Rooyen are
substantially similar. She enquired what the position was.
Mr Van
Rooyen told her that her dismissal was not being proceeded with, that
she was still employed by the appellant and that she
should return
the dismissal documentation. According to the appellant, the first
respondent told Mr Van Rooyen that she intended
to
“dispute
the situation”
.
This must obviously include instituting legal proceedings about the
situation. She maintained that she had been dismissed and had,
as a
result, become entitled to certain benefits. The first respondent
refused to hand back the dismissal documentation and has never
returned it. Mr Van Rooyen stated that she was not entitled to any
benefits because she remained in the appellant’s employment.
Mr Van
Rooyen told her that she could do whatever she liked but had to
return the documents. She refused to do so.
[14] Thereafter
the first respondent telephoned Mr Peddie. She states that he was
abrupt and could not explain to her how the appellant
could treat the
respondents the way it had. She states that he did, however, say to
her that she should return the dismissal documents
and that this was
an instruction. She states that she refused to return the documents
and said that she would not be returning to
work but would be going
home. Mr Peddie does not deny the first respondent’s version in
this regard. He recalls receiving the first
respondent’s telephone
call. He states that he told her that her retrenchment was not being
proceeded with and that, as she was
in the appellant’s continuous
employment, she should return the letter of retrenchment. He recalls
the first respondent mentioning
that she would be going home. In the
light of the fact that the appellant does not deny the first
respondent’s version of the content
of the conversation between
herself and Mr Peddie, the matter must be decided on the basis that
the first respondent’s version
is true. That version includes the
allegation that Mr Peddie told the first respondent that the
requirement that she hand back the
retrenchment letter was an
instruction.
[15] The
first respondent then had a further verbal exchange with Mr Van
Rooyen. Her version and that of the appellant on this aspect
converge
in all material respects. The first respondent continued with her
attitude that she would not return the dismissal documents
and
maintained that she had been dismissed and that she believed that, as
a result of the dismissal, she had become entitled to the
payment of
certain benefits and that she would go home.
[16]
Mr Van Rooyen told her that, if she went home when she was required
to be at work, she would be disciplined. The first respondent
then
states the following in par 34 of the founding affidavit:
“
I
really did not know what to do. Like the other [respondents] I am not
in a position to have no income. I was also extremely concerned
about
the threat of discipline as it was clear to me that what was being
conveyed was that I would be dismissed for misconduct and
would not
receive any severance pay”.
[17] A
further interaction occurred involving the first respondent, Mr Van
Rooyen and a shopsteward. The first respondent states that,
faced
with this difficult situation, she spoke to her shopstward who, after
speaking to Mr Van Rooyen, advised her that she could
reserve her
rights and return to work. She then states that she returned to work
under protest. The appellant does not deny any of
these allegations.
It admits that Mr Van Rooyen told her that, if she left her work
without permission, she would face disciplinary
action. The appellant
states that the first respondent told Mr Van Rooyen that she intended
taking the matter further. The appellant
states that the first
respondent then returned to work and continued to work.
[18] On
the respondents’ version the second respondent attended at the
appellants premises at about 09h45 on the 2
nd
May. She was called in by Mr Van Rooyen who told her that her
retrenchment had been “pulled back” and she was going to continue
working. The respondents’ founding affidavit then states:
“
[Second respondent] adopted the same position as we had.”
As
the position which the first respondent had adopted was not entirely
the same as the position which the third and fourth respondents
had
adopted, one does not know precisely what the position is that the
second respondent must be taken to have adopted when it is
stated in
the founding affidavit that she adopted the same position as the
first, third and fourth respondents.
[19] The
appellant’s version with regard to the second respondent is that
the second respondent together with her father attended
at the
appellant’s premises on Tuesday the 2
nd
May 2000. Mr Van Rooyen informed both of them that the appellant was
no longer proceeding with the retrenchment of the second respondent.
Mr Van Rooyen said to them that the second respondent remained in the
appellant’s employment. The appellant states that Mr Van
Rooyen
gained the impression that both the second respondent and her father
were happy with the fact that her employment had not
been terminated
and that she continued in the appellant’s employment. The appellant
states that thereafter the second respondent
resumed her duties and
has remained in the appellant’s employment since then.
[20] On
or about 15 May 2000 there was a work-related braai. At this braai
the respondents indicated to Mr Hart, who is chairman of
the
appellant, that they were unhappy about the appellant’s purported
withdrawal of their dismissal. Mr Hart apparently maintained
that the
dismissal had been withdrawn and the respondents continued to be in
the appellant’s employment. However, he also stated
that, if the
respondents wanted to leave the appellant’s employ on their own,
they could do so but, in that event, they would not
be entitled to
severance pay or any other benefits. The respondents also pointed out
to Mr Hart that there was no work for them to
do in the appellant’s
workplace and that all they were doing was sitting around and doing
odd jobs like moving tables and chairs.
The respondents believed that
the appellant was treating them in this manner in order to drive them
into resigning from its employment
so that their departure would not
entail any liability on the appellant’s part in respect of any
benefits. The appellant denies
that the respondents have no work to
do. It states that they are all gainfully employed by it and are
performing duties which are
consistent with and are required in the
positions in which they are employed. It goes on to detail the duties
which they perform.
This part of the matter must be decided on the
basis of the appellant’s version.
Proceedings
in the Labour Court
[21] The
respondents were aggrieved by the appellant’s conduct. Accordingly,
they brought an application to the Labour Court for
an order
declaring that their contracts of employment had been terminated by
the appellant on the 28
th
April 2000 due to the redundancy of their positions and/or the
reorganisation undertaken by the appellant and that they were
entitled
to payment of severance pay and costs in the event of
opposition. The appellant opposed the application. The Labour Court
found in
favour of the respondents and granted the declaratory orders
sought plus costs against the appellant. With the leave of the Court
a quo, the appellant now appeals to this Court against that judgement
and order.
The
appeal
The
Jurisdictional points
[22] It
appears that in the Court a quo the Court raised the question whether
or not it had jurisdiction in respect of this matter.
The appellant
had not in its answering affidavit taken the point that the Court a
quo did not have jurisdiction in the matter. However,
it appears from
the judgement of the Court a quo that in response to the question
raised by the Court a quo , it was argued on behalf
of the appellant
that the Court a quo lacked jurisdiction to deal with this matter on
the basis that what the respondents wanted
was severance pay and
that, in the light of sec 41(6) of the Basic Conditions of Employment
Act, 1997 (
“the
BCEA”
)
the Commission for Conciliation, Mediation and Arbitration (
“CCMA”
)
had jurisdiction to arbitrate it and the Labour Court had no
jurisdiction in respect thereof. Sec 41(6) reads:-
“
If
there is a dispute only about the entitlement to severance pay in
terms of this section the employee may refer the dispute in writing
to -
(a) a
council if the parties to the dispute fall within the scope of that
council or
(b) the
CCMA if no council has jurisdiction”.
[23] The
Court a quo held that it had jurisdiction to deal with this matter.
In support of this finding it relied on s41(10) and s77(3)
of the
BCEA. Sec 41(10) reads:-
“
If
the Labour Court is adjudicating a dispute about a dismissal based on
the employer’s operational requirements, the Court may
inquire into
and determine the amount of any severance pay to which the dismissed
employee may be entitled and the Court may make
an order directing
the employer to pay that amount.”
Sec
77(3) reads:
“
(31)
The Labour Court has concurrent jurisdiction with the civil courts to
hear and determine any matter concerning a contract of
employment,
irrespective of whether any basic condition of employment constitutes
a term of that contract.”
[24] The
Court a quo rejected the appellant’s reliance on sec 41(6) for the
contention that it did not have jurisdiction in respect
of the
matter. It effectively held that sec 41(6) refers to a situation
where the dispute is only about the entitlement to severance
pay. It
found that this matter was not only about entitlement to severance
pay. It said that the dispute related to a dismissal based
on the
employer’s operational requirements as well.
[25] On
appeal it was argued on behalf of the appellant that the Court a quo
had erred in finding that it had jurisdiction in regard
to this
matter. The one basis advanced in support of this contention was that
there had been no referral to conciliation of any dispute
about an
alleged unfair dismissal. This argument is based on the provisions of
s191(1) which are to the effect that, if there is
a dispute about the
fairness of a dismissal, the dismissed employee may refer the dispute
for conciliation to a council, if the parties
to the dispute fall
within the registered scope of the council, or, to the CCMA if there
is no such council. I think the answer to
this argument is that the
dispute that sec 191(1) requires to be referred to conciliation is a
dispute about the fairness of a dismissal.
In this matter there is no
dispute about the fairness of a dismissal. Accordingly the
appellant’s contention in this regard falls
to be rejected.
[26] Another
basis advanced in support of the contention that the Labour Court
did not have jurisdiction was that the second declaratory
order
sought by the respondents concerned an entitlement to severance pay
which dispute, so continued the argument, ought to have
been referred
to the CCMA for arbitration. The appellant did not specify any
statutory provision in support of this contention. The
only statutory
provision that I can think of which it could seek to rely upon is
that of sec 41(6) of the BCEA which has been quoted
above. That
section refers to a case where the dispute is only about
“the
entitlement to severance pay in terms of this section...”
[27] Unlike
the Court a quo I am not certain that it can be said that the dispute
between the parties in this matter is not a dispute
only about the
entitlement to severance pay. However, I do not consider it necessary
to express a definitive view on this aspect
of the matter. There is
another basis on which the argument can be disposed of. In my view,
if the appellant seeks to rely on sec
41(6) to contend that the
Labour Court had no jurisdiction in respect of this matter, the
appellant should satisfy the Court not
only that this dispute is only
about the entitlement to severance pay but also that the entitlement
to severance pay is
“in
terms of this section”
as prescribed in s41. I say this because the severance pay that sec
41(6) refers to is said to be one
“in terms of this section.”
It seems to me that where the severance pay that is claimed is not in
terms of s41 but is in terms of a contract or the Rules of
a Pension
Fund, it cannot be said that the claim is for the payment of
severance pay
“in
terms of”
sec
41.
[28] In
this matter not only did the respondents not rely on sec 41 for their
claim for severance pay but, in fact, they categorically
stated in
their founding affidavit that they sought severance pay and benefits
in terms of the Rules of the Telkom Pension Fund which
was the second
respondent in the Court a quo. They even attached to the founding
affidavit copies of certain pages of the Rules of
the Pension Fund
which they said contained provisions which applied to them as
retrenches. Furthermore, in the appellant’s own
letter of the 8
th
June 2000 addressed to the respondents’ attorney there is an
indication that the appellant’s understanding was also that the
respondents were seeking to claim
“termination
of service benefits”
from
the Telkom Pension Fund. In the second paragraph of that letter the
appellant wrote:
“We
have also notified the Telkom Pension Fund administrators that only
on official notification from ourselves of the termination
of any of
our employee’s services should they conduct any termination of
service benefits calculations and not on the request of
any of our
employees or their representatives.”
Dealing with its understanding of the purpose of the respondents’
application in the Court a quo the appellant had this to say
in par
4.7 of its answering affidavit:-
“
The
purpose of the application appears to be an attempt by the
[respondents] to obtain the payment of a severance pay from the
[appellant]
notwithstanding their continued on- going employment with
the [appellant]. It is further apparent that the application is
motivated
by an attempt by the [respondents] to obtain certain
payments from the Telekom Pension Fund of which they are members,
which payments
would arise if their services were terminated by the
employer as defined in the rules of the Telkom Pension Fund ‘as a
result of
the abolition of his post or a reorganisation of the
employer’s activities.’ This may result in a liability by the
[appellant]
to the Telkom Pension Fund which it could ill afford at a
time when it is attempting to transform the business it acquired into
a
viable entity.”
In the
light of all of this I am of the opinion that the appellant has
failed to show that the respondents’ claim falls within the
ambit
of sec 41(6) of the BCEA. In my view that section cannot apply when
it cannot be said that the dispute is about the entitlement
to
severance pay in terms of that section and that it is only about
severance pay.
[29] One
of the sections on which the Court a quo relied in support of its
finding that it had jurisdiction was s41(10) of the BCEA.
Sec 41(10)
provides that
“(i)f
the Labour Court is adjudicating a dispute about a dismissal based on
the employer’s operational requirements, the Court
may inquire into
and determine the amount of any severance pay to which the dismissed
employee may be entitled and the Court may
make an order directing
the employer to pay that amount.”
It
is noteworthy that s41(10) refers to a situation where the Labour
Court is
“adjudicating
a dispute about a dismissal”
and not to case where it is adjudicating a dispute
“about
the fairness of a dismissal”
which
is the phrase used in s191(1) of the Act. It appears to me that there
is significance to be attached to the fact that in sec
41(10) the
phrase used to describe the dispute is
“dispute
about a dismissal”
and not the phrase
“dispute
about the fairness of a dismissal”
as used in sec 191(1) of the Act. The significance is the recognition
that dismissal cases which the Labour Court may adjudicate
are not
confined to those where the dispute is about the fairness of a
dismissal and that there are other dismissal cases which the
Labour
Court may adjudicate where the fairness of the dismissal is simply
not in issue. Dismissal disputes that fall under the former
category
would be those contemplated in sec 191(5)(b)(ii) of the Act whereas
dismissal cases that fall under the latter category
would include
those dismissals where the issue is whether the dismissal complies
with the requirements for the termination of a contract
of employment
prescribed by s37 of the BCEA.
[30] With
regard to the latter category of dismissal disputes, the Labour Court
has exclusive jurisdiction in terms of s77(1). Sec
77(1) reads:
“Subject
to the Constitution and the jurisdiction of the Labour Appeal Court,
and except where this Act provides otherwise, the
Labour Court has
exclusive jurisdiction in respect of all matters in terms of this
Act, except in respect of an offence specified
in sections 43, 44,
48, 49, 90 and 92.”
Within the context of a dispute about whether a particular dismissal
complied with the notice requirements of s37 of the BCEA and,
if the
dismissal was due to a reason based on the employer’s operational
requirements, there could also be a dispute about whether
the
employee is entitled to severance pay. In such a case one question
that can arise is whether the Labour Court would have exclusive
jurisdiction in terms of sec 77(1) to deal with such dispute or
whether it would have jurisdiction to deal with such a dispute in
terms of its concurrent jurisdiction that it shares with the civil
courts in terms of s77(3) in any matter concerning a contract
of
employment. If it would have the concurrent jurisdiction that it
shares with the civil courts in terms of sec 77(3), the High
Court
would also have jurisdiction in respect of such dispute. However, if
it had its jurisdiction by virtue of sec 77(1), its jurisdiction
would be exclusive and the High Court would not have any jurisdiction
in respect of such a dispute.
[31] It
seems to me that the purpose of s41(10) is to ensure that, when the
Labour Court is adjudicating a dispute concerning a dismissal
for
operational requirements, it also has jurisdiction to dispose of the
issue of severance pay within the context of such dispute
whatever
the issues are in respect of such dismissal dispute. The mischief
that sec 41(10) sought to prevent is a situation where
the Labour
Court would have jurisdiction to deal with a dismissal dispute which
does not involve the fairness of a dismissal but
have no jurisdiction
to deal with the issue of severance pay connected with that
dismissal. The intention was to ensure that, if
a dispute relates to
a dismissal for operational requirements and severance pay is an
issue in the dispute, the Labour Court would
have jurisdiction to
deal with both the dismissal dispute as well as the issue of
severance pay. Had it not been for a provision
such as sec 41(10),
the Labour Court might not have had jurisdiction to deal with the
issue of severance pay in a dismissal dispute
where the dispute is
about, for example, the lawfulness or validity of a dismissal for
operational requirements which the Labour
Court would have
jurisdiction to deal with in terms of its civil jurisdiction
conferred by s77(3) but not about the fairness of the
dismissal.
[32] There
is no requirement in the BCEA or the Act that, where the entitlement
to severance pay is part of a dispute about a dismissal
for
operational requirements that is not alleged to be unfair, such
dispute must be referred to conciliation first before the Labour
Court can have jurisdiction to deal with it nor is there a
requirement that such dispute must be referred to arbitration. The
requirement
for the referral to conciliation is provided for in the
case of a dispute about the fairness of a dismissal (sec 191 of the
Act)
and where the dispute is only about an entitlement to severance
pay (s41(6)-(8) of the BCEA. The only provision in the BCEA that
requires a dispute relating to severance pay to be referred to
arbitration is s41(6) but that provision requires that the dispute
be
only about entitlement to severance pay in terms of section 41. That
is not the case here.
[33] I
have already indicated above that the Court a quo also relied on sec
77(3) to conclude that it did have jurisdiction. It is
not necessary
to quote sec 77(3) as it has already been quoted above. On appeal the
appellant sought to get around sec 77(3) by contending
that this
matter was not one concerning a contract of employment whereas sec
77(3) related to a matter
“concerning
a contract of employment”
.
On behalf of the appellant it was contended that this matter was one
concerning whether a dismissal had occurred. The distinction
that the
appellant sought to make between a matter that concerns a dismissal
and one that concerns a contract of employment does
not assist it in
any way. A dismissal dispute is a matter concerning a contract of
employment but a matter concerning a contract
of employment is not a
dismissal dispute.
[34] In
conclusion I am satisfied that, upon a proper consideration of the
provisions of the BCEA, the Labour Court did have jurisdiction
to
deal with this matter either under sec 41(10) or sec 77(1) or (77(3))
of the BCEA. Accordingly the appellant’s contention that
the Labour
Court did not have jurisdiction must fail.
The
merits
[35] The
next question for determination is whether the respondents were
dismissed. If they were dismissed, there is no doubt that
they were
dismissed for operational requirements as contemplated by the
provisions of s 41(2) of the BCEA. Whether or not the respondents
were dismissed depends on whether or not the interaction between the
appellant and the respondents after the issuing of letters of
dismissal by the appellant had the effect of preventing the dismissal
from taking effect. As the second respondent was not issued
with a
dismissal letter, the question of whether or not she was dismissed
depends on the effect of the interaction which took place
between
herself and the appellant after the appellant’s decision to dismiss
her had been conveyed to her. For convenience I shall
deal first
with the case of the third and the fourth respondents thereafter with
that of the second respondent and, finally, with
that of the first
respondent.
The
third and fourth respondents
[36] After
the third and fourth respondents had been given letters of dismissal
but before they could leave the appellant’s premises,
the appellant
decided to withdraw their dismissal and that of the other respondents
and to continue to employ them. The appellant
conveyed this decision
to the third and fourth respondents at about 15h00 on the 28
th
April. In terms of their dismissal letters the third and fourth
respondents’ dismissal was going to take effect on the 30
th
April 2000. At the stage that the third and fourth respondents were
told by the appellant that it was withdrawing its decision to
dismiss
them, they could have taken the attitude that they had been dismissed
and were not prepared to continue in the appellant’s
employment and
refuse to do so. If they did not take that attitude, they could
accept the appellant’s withdrawal of its decision
to dismiss them
and agree to continue in the appellant’s employment. Furthermore,
they could return to work under protest or with
a reservation of
their rights in respect of the appellant earlier decision to dismiss
them. In the latter case they would have had
to inform the appellant
of the basis on which they were seeking to return to its employment
because, if they did not do so, the appellant
would have been
justified in thinking that they had accepted its decision to withdraw
the dismissal. This could lead to the appellant
acting on this basis
to its prejudice.
[37] The
third and fourth respondents’ version is that they went back to
work under protest. This is disputed by the appellant.
As already
stated above, they do not say that they informed the appellant that
they were returning to the appellant’s employment
under protest.
What was required of the third and fourth respondents if they wanted
to reserve their rights was an unequivocal protest.
An unarticulated
mental reservation is not effective. (see
Hendricks
v Barnett 1975(1) SA 265(N) at 769 G-H
and the cases referred to therein.) The matter must be decided on the
basis that the third and fourth respondents did not reserve
their
rights and that they did not act under protest. In those
circumstances I am of the opinion that, although it is correct that
an employer is not entitled withdraw a dismissal unilaterally once
the decision has been conveyed to the employee, (see the as yet
unreported decision of this Court in
University
of the North v Franks & others
,
case no JA11/01 handed down on 29 May 2002), he can do so with the
consent or acquiescence of the employee. Consent may be given
either
expressly or by implication.
[38] This
matter must be determined on the basis of the appellant’s version
where there is a dispute of fact. That version is that
the third and
fourth respondents agreed to the withdrawal of the dismissal and that
their continuation in the appellant’s employment
was voluntary,
without any reservation of rights and was not under protest. In these
circumstances the legal position is that, with
their consent or
acquiescence, the third and fourth respondents’ dismissal was
withdrawn before the 30
th
April which is when the dismissal was going to take effect.
Accordingly, no dismissal took legal effect in respect of the third
and
fourth respondents. As their dismissal was withdrawn before it
could take effect, the third and fourth respondents were not
dismissed.
As they were not dismissed, they are not entitled to
severance pay or any benefits for which dismissal is a condition.
Dismissal
is certainly a condition precedent to entitlement to
severance pay in terms of sec 41 of the BCEA. They were, therefore,
not entitled
to any declaratory order in the Court a quo and their
application should have been dismissed.
The
second respondent
[39] As
already stated above, the second respondent was not at work on the
28
th
April. She was not given any letter of dismissal. However, the
appellant telephoned and left a message with the second respondent’s
father to inform the second respondent that she had been retrenched
and should come and collect her documentation. Her father conveyed
this information to the second respondent. The appellant did not
inform the second respondent prior to the 30
th
April that it was withdrawing the dismissal. In those circumstances
the dismissal took effect in law on the 30
th
April.
[40] On
the 2
nd
May the second respondent and her father proceeded to the appellant’s
premises. They met with Mr Van Rooyen. If there is a dispute
of fact
between the second respondent’s version and that of the appellant
about what occurred on that occasion, it is once again
on the
appellant’s version that the matter must be decided. On the
appellant’s version Mr Van Rooyen informed the second respondent
and her father that the appellant was no longer proceeding with the
second respondent’s retrenchment. He told them that the second
respondent remained in the appellant’s employment; that the second
respondent accepted what was conveyed to her, went back to work
and
has continued in the appellant’s employment ever since.
[41] It
seems to me that the most plausible conclusion to be drawn from the
interaction that took place between Mr Van Rooyen and
the second
respondent on the 2
nd
May is that they intended to, and, in fact did, revive the contract
of employment that had existed between the appellant and the
second
respondent prior to the 30
th
April and had ended on that date. In those circumstances, although
the second respondent had been dismissed with effect from the
30
th
April 2000, the dismissal only lasted upto the 2
nd
May. The second respondent can, therefore, not be entitled to
severance pay that is based on sec 41 of the BCEA because in law that
dismissal no longer stands.
The
first respondent
[42] I
now come to the case of the first respondent. As already stated
above, on the 28
th
April 2000 the first respondent left the appellant’s premises soon
after she had been given her letter of retrenchment. The appellant
did not before the 30
th
April contact her and tell her about its decision to withdraw her
dismissal. The 30
th
April was the date on which, according to the appellant, the
dismissal would take effect. She returned to the appellant’s
premises
on the 2
nd
May. By then the dismissal had taken effect in law.
[43]
The first respondent’s case is distinguishable from the case of the
rest of the respondents in the sense that for all intents
and
purposes the appellant does not deny the first respondent’s
version. She alleges that she was not prepared to agree to the
withdrawal of her dismissal. She says that the appellant told her
that she would be disciplined if she was not at work when she was
expected to be at work. The appellant has admitted that this was said
to her. She has alleged that she told the appellant that she
would
declare a dispute and the appellant has admitted this. She has said
that she initially took the attitude that she would go
home and not
resume work but she got advice from a shopsteward that she could
agree to return to the appellants employment but do
so under protest
and reserve her rights. She alleges that her return to work was under
protest. The appellant has not placed her
version in this regard in
dispute.
[44] She
said that she would take the matter further and the appellant did not
voice any objection to her going back to its employment
on this basis
and she did take the matter further to obtain clarity. In this regard
it may be appropriate to mention that, when the
first respondent
stated that she was returning to the appellant’s employment under
protest and with a reservation of her rights,
the appellant had a
right to reject these conditions and insist that she return to work
without any reservation of rights. It could
have done this if it felt
that it could not afford the uncertainty that this would create in
the employment relationship. But, if
it did not feel that this
prejudiced it in any way, it could allow her to continue in its
employment on the basis of such reservation
of rights. The appellant
raised no objection to this and actually allowed her to continue in
its employment on that basis.
[45] In
the light of the above I conclude that the first respondent was
dismissed with effect from the 30
th
April and that the reason for her dismissal was the one given by the
appellant in her letter of retrenchment, namely, redundancy.
Her
return to the appellant’s employment did not affect any of her
rights as she returned to work under protest. She clearly wanted
to
protect her interests pending whatever she intended to do including
the institution of these proceedings. She did not want to
fall
between two stools. She would have fallen between two stools if she
had not returned to work and was dismissed for misconduct
because,
then, she would not have been entitled to severance pay and she would
not have kept her job.
[46] That
the first respondent was dismissed and her dismissal did take effect
in law does not necessarily mean that she is entitled
to any
severance pay that is provided for in terms of sec 41 of the BCEA.
This is so because the appellant has offered to withdraw
her
dismissal and reinstate her. The first respondent has reserved her
rights pending the exhaustion the litigation process. Once
that
process has been completed, she will have to make up her mind about
that offer within a reasonable time. She will not be entitled
to
severance pay if she rejects the offer of reinstatement or if she
unreasonably refuses an alternative employment by the appellant
(sec
41(4) of the BCEA). This is certainly the case in so far as the
severance pay that the first respondent may seek is based on
sec 41
of the BCEA. In so far as she may seek other benefits based on, for
example, contract or other arrangements and not on sec
41, obviously
whether or not she is entitled to such benefits will depend on
whether she satisfies the requirements that she must
satisfy in terms
thereof before she can be entitled to the benefits. This is so
because an employer and employee are entitled to
enter into different
arrangements provided that such arrangements are not left favourable
to the employee than those provided for
in the BCEA. In the result I
am of the view that the first respondent is entitled to a declaratory
order to the effect that she was
dismissed with effect from the 30
th
April 2000 due to redundancy so that she knows where she stands. She,
however, not entitled to a declaratory order to the effect
that she
is entitled to severance pay in terms of sec 41 of the BCEA.
Costs
[47] The
Act requires that any order of costs that this Court makes must be
one that meets the requirements of law and fairness. What
order of
costs would meet the requirements of law and fairness in this matter?
It seems to me that the appellant is entitled to its
costs as against
the unsuccessful respondents and the first respondent is entitled to
her costs as against the appellant.
Order
[48] In
the result I make the following order:.
(a) The
appellant’s appeal against the order made by the Court a quo that
the first respondent was dismissed with effect from
the 30
th
April 2000 by the appellant is dismissed.
(b) The
appellant’s appeal against the order made by the Court a quo that
the first respondent is entitled to severance pay is upheld.
(c) The
appellant is ordered to pay the first respondent’s costs on appeal.
(a) The
appellant’s appeal against the declaratory orders made by the
Court a quo that the second, third and fourth respondents
were
dismissed by the appellant with effect from the 30
th
April 2000 and are entitled to severance pay is upheld.
(b) The
second, third and fourth respondents are ordered to pay the
appellant’s costs on appeal jointly and severally, the one paying
the others to be absolved.
The
order of the Court a quo is set aside and replaced by the following
order:
“
(a)
(i) The first applicant’s application for a declaratory order that
she was dismissed by the first respondent with effect from
the 30
th
April 2000 succeeds in part and is dismissed in part.
(ii) The
first applicant’s application for a declaratory order that she is
entitled to severance pay is dismissed.
(iii) It
is hereby declared that the first applicant was dismissed by the
first respondent with effect from the 30
th
April 2000 due to the redundancy of her post.
(iv) The
first respondent is ordered to pay the first applicant’s costs.
(b) (i) The
second, third and fourth applicants’ application for declaratory
orders that they were dismissed by the first respondent
with effect
from the 30
th
April 2000 and that they are entitled to severance pay is dismissed.
(ii) The
second, third and fourth applicants are ordered to pay the first
respondent’s costs jointly and severally, the one paying
the others
to be absolved.
”
_____________
ZONDO
JP
I
agree.
_______________
WILLIS
JA
I
agree.
_________________
VAN
REENEN AJA
Appearances
For
the Appellant Mr Carr
Instructed
by Bowman Gilfillan
For
the Respondent Mr R Lagardie
Instructed
by Murphy Wallace Slabbert
Date
of Judgement: 8 August 2002