About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Labour Appeal Court
SAFLII
>>
Databases
>>
South Africa: Labour Appeal Court
>>
2006
>>
[2006] ZALAC 8
|
|
Fidelity Springbok Security Services (Pty) Ltd v Radebe (JA51/2004) [2006] ZALAC 8 (8 March 2006)
21
IN THE LABOUR APPEAL COURT OF SOUTH AFRICA
HELD IN JOHANNESBURG
Case No: JA51/2004
In the matter between
FIDELITY SPRINGBOK SECURITY SERVICES
(PTY) LTD APPELLANT
And
e. RADEBE Respondent
______________________________________________________
_
JUDGMENT
COMRIE AJA
[1] The respondent was employed by the appellant as a
security officer. She claimed in the court
a quo
to have been
dismissed by the appellant with effect from 30 October 2001. Todd AJ
held that the respondent had indeed been dismissed
on that date. He
found that the dismissal was both substantively and procedurally
unfair. He ordered retrospective reinstatement
coupled with
compensation. The appeal is with leave granted by the court
a quo
on 30 November 2004.
[2] Also before us are too related applications. The
first, filed on 23 March 2005, is by the respondent and seeks an
order in effect
declaring that the appellant has abandoned the
appeal. The second, filed on 23 May 2005, is by the appellant and
seeks an order
condoning the late filing of the appeal record, which
only occurred on 11 May 2005. I should mention that when that record
was
filed, it was incomplete. Omitted was perhaps the most important
document of all, namely the judgment under appeal. It was attached
to
the appellant’s heads of argument, accompanied by this cryptic
statement
:
“In so far as it may be required,
condonation will be sought at the hearing of this matter for this
error.”
Dismissal
[3] The factual background to the matter is as follows.
The respondent was stationed at the M-Net site where she had been
deployed
for about two years. On 8 October 2001 she was instructed by
the appellant’s site manager, a Mr Jenkins, to return to the
appellant’s office. This was allegedly pursuant to a request by
the client, M-Net, that the respondent be removed. The fact
of such
request, and the underlying reason therefor (if one was required),
were never proved. It was stated by the appellant’s
witness
that a client had an absolute right to call for the removal of a
guard, and the client’s request would not be challenged
unless
it happened often. It was also stated that a guard should not be
situated at one site for too long as that tended to breed
familiarity, which was not a good thing in the security business. The
respondent claimed that Mr. Jenkins was fairly new to the
site and
had his own agenda for removing long- service staff there.
[4] Be that as it may, the respondent reported to the
appellant’s office where she was seen by Ms. Nel, the personnel
manager.
Ms. Nel handed the respondent a letter dated 8 October 2001
reading as follows:
“
RE: REDUNDANT POSITION – POSSIBLE
RETRENCHMENT
Due to the client requesting your immediate removal
from the M-Net contract and the unavailability of posts at Fidelity
Springbok
Security services, your position will possibly become
redundant and it is possible that you will unfortunately be
retrenched effective
30 October, 2001.
Donette Nel will be available to meet with you and
your representative at 08h00 on Tuesday 16 October, 2001 to discuss
the relevant
issues, which will include amongst others:
Proposed date, if retrenchment becomes unavoidable:
The obvious search for an alternative to your
retrenchment;
Discussions concerning any retrenchment payment;
Any assistance that may be afforded by the company
to you.
Should any other issue arise with reference to
section 189
of the
Labour Relations Act 66 of 1995
, this also will
obviously form part of your discussion.
Should an alternative not be found and a retrenchment
be effected, this letter will serve as notice of termination of
service.”
[5] This was apparently a standard form of letter used
by the appellant in such circumstances. Ms. Nel stated in evidence
that,
despite the letter’s terms, she had previously never had
to dismiss a “removed” employee; a position at another
site had always been found, unless the employee took voluntary
retrenchment. However, the respondent, realising that her job was
in
jeopardy, consulted her union which, on 15 October, wrote to Ms. Nel
alleging victimisation and threatening “
to refer a matter of
unfair suspension to the CCMA.”
The union had in
mind
“
the reinstatement of our client to her post”
(ie. the M-Net post)
.
It was common cause that the
respondent called at the appellant’s office on 16 October. What
happened on that occasion was
in dispute. The trial court found that
the respondent had been uncooperative and caused a commotion, but
that her conduct had been
exaggerated by Ms. Nel. On this finding it
should be accepted that Ms. Nel was not able to “
consult
”
with the respondent, nor to tell her that an alternative position had
been found. That position fell away but, according
to Ms. Nel,
another post later became available at Kyalami Estates for a female
guard. Female guards are in short supply and the
post, according to
Ms. Nel, would have been offered to the respondent had she reported
to the office.
[6] On the same day, 16 October, Ms. Nel wrote to the
union in a firm tone. She refuted the allegation of victimisation.
She recorded
that the respondent had not reported to the office on a
daily basis as requested. She said that in two and half years she had
never
had to retrench an employee except on a voluntary basis. The
letter continued:
“
Alternative positions have been found for Miss
Radebe, however, her serious allegations and total untrue statements
in my office
this morning has left me doubting her honesty and my
Managers mistrusting her ability.”
The respondent’s disruptive conduct was
particularised. The letter ended by recording that the respondent had
intimated that
future dealings must be with her attorneys, whose
identity was requested.
[7] This letter elicited an acerbic response from the
union dated 18 October 2001. No point is served by summarising it. I
quote
the penultimate paragraph:
“
Indeed if you do not inform us of when Ms.
Radebe is to report to work by close of business today, we will have
no other alternative
but to refer a dispute for unfair suspension;
and should you not have responded within 30 days from [9 October],
would refer an
unfair dismissal (operational requirements) to the
CCMA”.
It is possible, in the context of the whole letter, to
read this paragraph as continuing to insist on reinstatement to the
M-Net
post.
[8] On behalf of the appellant its “
Group I R
Director,
” Mr Myburgh, replied on 23 October 2001. The
letter is worth quoting in full, but I invite particular attention to
paras.
5 and 7:
“My department will communicate with you in
future.
Your letters dated 15 October 2001 and 18 October
2001 refers.
We wish to advise as follows:
As a result of the client requesting the replacement
of the compliment of security officers, Miss. Radebe’s
position at
M-Net has become redundant which obviously makes her a
candidate for possible retrenchment if an alternative is not found.
We do not share your legal opinion with regard to
the LRA.
The Personnel Department has been instructed to
proceed with the consultation process. In this regard we wish to
point out that
Miss. Radebe has neglected to report to the office of
Ms. Donette Nel as instructed. As she does not meet the requirements
of
a “spare” as defined in Sectoral Determination 3, she
is consequently not entitled to payment whilst without a post.
She
has not been suspended.
Miss Radebe has been disrupting the consultation
process and has in fact stated that she would have no further
dealings with the
Personnel Office, and preferred to deal through her
attorneys.
The fact that Miss. Radebe is a member of good
standing at SERTAWU does not reflect from our financial records in
terms of
stop orders and it is suggested that you submit proof of
same.
We deem it unnecessary to respond to other
allegations contained in your letters, and our choice to do so
should not be interpreted
as an admission of any statement of fact.
Miss. Radebe will not be re-instated in her post at
M-Net. If an alternative is not found, she will be retrenched, in
absentia,
if necessary, should she choose not to partake in the
consultation process.
Please advise Miss. Radebe to be co-operative and
report to the office of Donette Nel. We are not prepared to debate
this issue
with you further by means of correspondence.”
[9] Whether or not the respondent reported to the
office and saw Ms. Nel on 25 October was also in dispute at the
trial. The respondent
claimed in evidence that she did so, that
nobody paid any attention to her, and that Ms. Nel did no more than
take a quick peek
at her. The allegation that she so reported did not
form part of the respondent’s statement of claim. It first
surfaced,
a year later, in an application for condonation. Ms. Nel
seriously doubted the truth of the allegation and said that she
“would like to see the book.”
The attendance
register was not adduced in evidence. The trial court acceptance that
the respondent did in fact attend at the appellant’s
office on
25 October, though no communication with Ms. Nel occurred.
[10] As I have said earlier, Ms. Nel testified that an
alternative position was found for the respondent at the Kyalami
Estates
site. This was nor communicated to the respondent (or her
union) because, it was claimed, the respondent failed to report to
the
office. Ms. Nel could not explain why Mr. Myburgh (who did not
testify) had not offered the post in his letter to the union. The
30
th
of October 2001 came and went, and nothing overtly
happened. The respondent did not tender her services again. The
appellant did
not consciously decide to dismiss or retrench her; it
wrote no letter to that effect, either to her or the union; and the
respondent’s
name remained on the appellant’s payroll
records for several months before it was removed for administrative
reasons (because
she had not reported for work).
[11] The trial court found that on a proper construction
of the correspondence in the factual context, the appellant in fact
dismissed
the respondent with effect from 30 October 2001. This
conclusion was not altered by the facts that the appellant did not
write
a confirmatory letter or remove the respondent’s name
from the payroll. The learned Judge said:
“
Quite simply, if the [appellant] had decided,
following the letter of 23 October 2001, that it would not dismiss
the [respondent]
it must necessarily have written to her to
communicate this to her. In the absence of doing so, the letters of
8… and 23
October 2001 served to terminate the [respondent’s]
employment on the grounds of operational requirements with effect
from
30 October 2001”
It is clear from another passage in the judgment that
this was the key finding, namely: that the respondent was taken to be
dismissed
unless advised by the appellant, in writing, to the
contrary (which admittedly did not happen). Another witness, Mr.
Vetter, said
that the appellant did not operate in this way and that
a dismissal, if it occurred, would have been communicated by a
separate
letter.
[12] I turn to consider the soundness of the trial
court’s conclusion. I have earlier quoted both the letters of 8
and 23
October in full. It will be recalled that the first letter
purported to invoke
s. 189
and concluded with this sentence:
“
Should an alternative not be found and
retrenchment be effected, this letter will serve as notice of
termination of service”
Mr. Myburgh’s letter of 25 October concluded:
“
6. Miss. Radebe will not be re-instated in
her post at M-Net. If an alternative is not found, she will be
retrenched, in absentia,
if necessary, should she choose not to
partake in the consultation process.
Please advise Miss. Radebe to be co-operative and
report to the office of Donette Nel. We are not prepared to debate
this issue
with you further by means of correspondence.”
[13] It is evident that, whoever’s fault it may
have been, there was no real consultation between the parties with
regard
to finding an alternative position for the respondent; and
that such a position (whether at Kyalami Estates or elsewhere) was
nor
offered to the respondent and therefore was not accepted by her.
The respondent was not reinstated in her post at M-Net; nor was
she
appointed to another post. In these circumstances it seems to me that
the two letters clearly conveyed to the respondent that
she was
dismissed with effect from 30 October 2001. It may be, as Mr. Vetter
testified, that this was not in accordance with the
appellant’s
usual procedure, and it may even be that privately the appellant did
not intend to dismiss the respondent. However,
as Wessels JA observed
in a slightly different context:
“
The law does not concern itself with the
working of the minds of the parties to a contract but with the
external manifestation of
their minds”.
South African Railways & Harbours v National Bank
of South Africa Ltd
1924 AD 704
at 715.
Here the
external manifestation of the appellant’s mind is to be found
in the two letters. Their effect was to tell the respondent
that
unless she was appointed to another post (which did not happen), she
was dismissed; that such dismissal would be effected
in absentia, if
necessary; and that a further letter of termination would not be
required.
[14] To determine whether on not the respondent was
dismissed (as distinct from fairly dismissed), it matters not in my
view: that
the respondent might have continued to insist on
reinstatement in the M-Net post; or that she might not have attended
the Robertville
office on 25 October (contrary to the trial court’s
finding); or that she might have refused the Kyalami Estates post had
it been offered to her (she stated in evidence that she would have
accepted). These matters may or may not be germane to fairness.
They
detract in the context from the issue of dismissal. I should add that
in this case there can be no question of the two letters
having been
written without the authority of the appellant’s management.
The letter of 8 October, according to Ms. Nel, was
in standard form,
and was part of the company’s policies and procedures. The
author of the letter of the 23 October, Mr.
Myburgh, was
“
Group
I. R. Director
”,
an apparently senior position. I
conclude that the trial court was correct in finding that the
respondent was dismissed with effect
from 30 October 2001 (an issue
on which she bore the
onus
of proof).
Fairness
[15] The appellant bore the
onus
of proof on this
issue. The trial court found that it had failed to discharge that
onus,
which is not so surprising given the appellant’s
case that it had neither dismissed the respondent, nor intended to do
so.
A fair reason for the dismissal was not contended before Todd AJ.
On appeal, however, Mr Hutchinson urged in the alternative that
the
dismissal (if such it be) was substantively fair. He relied on the
respondent’s insistence on reinstatement in the M-Net
post
which, he submitted, would have continued had she been offered the
Kyalami Estates post. He relied too on the respondent’s
uncooperative attitude on 16 October 2001. And he submitted that the
court
a quo
was wrong in finding that the respondent had
reported to the Robertville office on the 25 October 2001. I deal
with the last point
first. I have reservations about the correctness
of the finding in question, given that such a significant event did
not feature
in the statement of claim, as one would have expected,
but was first alleged a year later. On the other hand the attendance
register,
a mandatory record in terms of the applicable Sectoral
Determination, was not adduced in evidence. On balance I think this
finding
of fact cannot be said to have been clearly wrong. As such it
cannot be reversed on appeal.
[16] In my opinion a primary difficulty with fairness
lies in the procedure adopted by the appellant when an employee (such
as the
respondent) is removed from a guarding site in circumstances
where no disciplinary action (or at any rate no serious disciplinary
action) is contemplated. The standard procedure, which was followed
in this case, is to issue the employee with a letter in terms
of s.
189 of the Labour Relations Act 66 of 1995 (in this case the letter
of 8 October 2001). While this procedure may be technically
competent, it flies in the face of the evidence of Ms. Nel that
compulsory retrenchments never happened for this reason, and that
alternative positions were always found (unless the employee chose
voluntary retrenchment). Why, one wonders, was such a letter
issued
in the first place when compulsory retrenchment was no more than a
remote possibility? Ms. Nel could not explain it, since
she had not
devised the policy. She claimed in evidence that M-Net had given a
reason, via Mr. Jenkins, for requesting the respondent’s
removal from the site, but she could no longer remember the reason.
Indeed, no reason was presented to the trial court (or, as
far as we
know, to the respondent), and the appellant was not in the habit of
challenging a client’s request.
[17] It must come as a considerable shock to an employee
(such as the respondent) who is removed from a site, without a given
reason,
to be told by management that in consequence your job is in
serious jeopardy. It is little wonder that the respondent was cross
and uncooperative and sought independent advice. The position is
aggravated rather than mitigated by the fact that on the evidence,
the letter of 8 October does not really mean what it says. The
reference in the first paragraph to
“
the
unavailability of posts at Fidelity Springbok”
was a gross
overstatement; especially in the case of a female security officer (I
have already noted the short supply). The statements
in the same
paragraph that
“
your position will possibly become
redundant”
and that
“
it is possible
that you will unfortunately be retrenched”
were
statements of remote possibility rather than of practical reality.
The issuance of the letter of 8 October 2001 was inappropriate
in the
circumstances under review, and it got the parties off to a bad
start. The position was not eased when the respondent took
umbrage
and consulted a union, which took a tough stance. The appellant’s
attitude in turn hardened. None of this was conducive
to sensible or
sensitive labour relations.
[18] Why then was the respondent dismissed? It was not
for the lack of an alternative position; we have Ms. Nel’s word
for
that. It was because the respondent was not offered, and
therefore could not accept (or refuse), an alternative position that
was
available. Mr. Myburgh wrote to the union on 23 October:
“We
are not prepared to debate this issue with you further by means of
correspondence”.
That was unfortunate because, in
the tense relationship that prevailed, it should have not in my view
have been above Mr. Myburgh
(or Ms. Nel on his behalf) to communicate
the Kyalami Estates position to the respondent in writing via her
union. We know that
the position was not communicated to her on 25
October, whatever the reason may have been. Having inappropriately
initiated a s.189
process, with which the respondent was less than
cooperative, the appellant dismissed the respondent for failing to
accept a position
which was not in fact offered to her, although it
should have been. In my judgment that cannot be a fair reason for the
dismissal.
The position is not saved for the appellant by the
possibility that the respondent (contrary to her evidence) might have
turned
down the Kyalami Estates position, had it been offered to her.
That was not established on the probabilities; and even if it had
been established, other aspects (such as propriety of the removal)
would have come into sharper focus.
Relief
[19] At the time of the trial and judgment (October
2004), three years after the dismissal, the respondent was roughly
half way
through a 12 month contract with another employer. The court
a quo
fashioned the following order:
“
3. The respondent is ordered to re-instate the
applicant retrospectively on the terms and conditions of employment,
and in the same
or similar position and at the same level of
remuneration, as applied at the time of her dismissal. The Respondent
shall satisfy
its obligations to pay arrear remuneration arising from
the retrospective effect of this order by paying to the Applicant a
fixed
amount of R 25 956.00. The amount of R 25 956.00 shall be paid
to the Applicant within 14 days of this order irrespective of whether
the Applicant tenders her services as a result of her re-instatement
in terms of this order.
If the Applicant wishes to take up employment with
the Respondent as a result of her re-instatement in terms of this
order, she
is required to present herself to the Respondent’s
head office and tender her services by no later than 14 days
following
the date of this order, failing which the Respondent shall
not be required to re-instate her, but this will not release the
Respondent
from its obligations referred to in paragraph 3 of this
order.”
[20] I should make two comments. The first is that the
sum of R 25 956.00 represented retrospective compensation for 12
month’s
remuneration and no more. The second comment is that
para. 4 of the order put the employee to her election: either to
claim reinstatement
and give up her temporary job, or to forego
reinstatement and continue in her temporary job.
[21] Mr. Hutchinson’s sole attack, as I
understood him, was on the back- pay of R25956.00. He invoked the
very recent decision
of this Court in
Chemical Workers Industrial
Union and Others v Latex surgical Products (Pty) Ltd
(judgment
dated 25 November 2005, as yet unreported) from para. 103. At para.
116 Zondo JP, writing for the Court, concluded as
follows:
“
116. In the light of all the above I conclude
that it is not competent to order a retrospective operation of a
reinstatement order
(even if limited) which is in excess of twelve
month’s in an ordinarily unfair dismissal case. Accordingly, in
this matter,
retrospective operation of the order of reinstatement
that I propose to grant has to be 12 months or less but not more.
That is
part of the limitation on my discretion to order that the
reinstatement of the individual appellants operate with retrospective
effect.”
[22] Mr. Hutchinson accepted the obvious, namely that
Todd AJ had not exceeded the 12 months’ limitation. He referred
us,
however, to passages in the judgment of the court below
indicating that the learned Judge proceeded from the assumption that
it
was competent for him to order more that 12 months. The argument
is well founded. Indeed the court below said:
“
justifies a conclusion that the Applicant
should not receive a full indemnity for the income that she has lost
during the period
since her dismissal.”
It follows that Todd AJ misdirected himself as to the
extent of his discretion, and that his order is in his respect open
to reconsideration
on appeal. It does not follow that we must adopt
the same yardstick as the court below (which Mr. Hutchinson suggested
was one
third of 3 years). On appeal we must exercise our own
discretion and substitute it for the discretion of the trial court.
[23] The respondent’s dismissal was both
substantively and procedurally unfair. It was precipitated by the
appellant’s
unwise and inappropriate invocation of s. 189. It
culminated in the appellant’s failure to offer an available
alternative
position to the respondent, either by letter to the union
or in person when she reported at the office on 25 October. By the
time
of the trial and order the respondent had been unemployed for
approximately 30 out of 36 months. Moreover, having eventually
obtained
an alternative position elsewhere, the order put her to an
uncomfortable election. It is true, as the court below observed, that
she and the union can be criticised for lack of cooperation. I do not
consider that this is worth much, if any weight in the overall
assessment. I would award the full 12 months’ permitted by the
statute and I would accordingly not interfere with the order
made by
the court
a quo.
Condonation
[24] Leave to appeal was granted by the court below on
30 November 2004. The record of appeal should have been filed by 30
January
2005. The transcribers were promptly instructed to prepare
the record. Due to an error on their part, only the leave to appeal
proceedings were transcribed, which transcription was delivered on 28
January 2005. The transcribers were thereupon instructed to
prepare
the complete record. The appellant’s attorneys then applied for
an extension until 1 March 2005. Although the application
was filed
at the Labour Court, Johannesburg, it does not appear from the file
that any order was made. However, the transcription
was not completed
until the end of April 2005. Thereafter the record had to be
“compiled, indexed, paginated, copied and served and
filed.”
It
was filed
on the 11 May
2005, thus 3 ½ months late. The filed record was incomplete:
omitted was the judgment under appeal. That omission
was inexcusably
slack. The record itself,
sans
judgment, is not lengthy; it
runs to some 250 pages.
[25] On 23 May 2005 the appellant’s attorneys
filed an application for condonation of the late filing of the record
of appeal.
It described the delay as
“minimal”
and laid all the blame at the door of the transcribers. We are
not told what steps the attorneys took to hurry the transcribers
up
in the three months after 30 January, by which time the record was
already late. There is no confirmation before us from the
transcribers accepting any or all of the blame. There is no formal
application for condonation of the incomplete record; nor are
we told
how the omission of the judgment under appeal came about.
[26] Against these imperfect explanations we must weigh
the prospects of success on the merits
. Melane v Santam Insurance
Co. Ltd
1962 (4) SA 531
(A). I have already considered the merits
in detail and I have concluded, for the reasons set out earlier, that
the appeal must
fail. The prospects of success are therefore nil. I
would accordingly refuse condonation in the several respects in which
it is
sought. It is unnecessary to rule on the respondent’s
application dated 23 March 2005.
Order
[27] The order is as follows:
Condonation in the several respects sought by the
appellant is refused with costs;
No order is made on the respondent’s application
dated 23 March 2005;
3. (a) The appeal is dismissed with costs;
The periods of 14 days mentioned in paragraphs 3 and 4
of the order of the court
a quo
are directed to run from the
date of the handing down of this judgment.
________________________
COMRIE AJA
I agree
________________________
NICHOLSON JA
I agree
________________________
McCALL AJA
Appearances:
For the Appellant: Mr. B Hutchinson instructed by Snyman
Attorneys
For the Respondent: Mr. S Sebola of the Retail and
Allied Workers Union
Date of Hearing: 7 December 2005
Date of Judgment: 8 March 2006