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[2014] ZALAC 79
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Jonsson Uniform Solutions (Pty) Ltd v Brown and Others (DA10/2012) [2014] ZALAC 79 (13 February 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE LABOUR
APPEAL COURT OF SOUTH AFRICA,
JOHANNESBURG
Case no:
DA10/2012
DATE: 13 FEBRUARY
2014
Not Reportable
In the matter
between:-
JONSSON
UNIFORM SOLUTIONS (PTY)
LTD
.................................................................
Appellant
And
LYNETTE
BROWN
.....................................................................................................
First
Respondent
NATIONAL
BARGAINING COUNCIL FOR
THE CLOTHING
MANUFACTURING
INDUSTRY
(KZN)
...................................................................................................
Second
Respondent
RICHARD LYSTER
N.O
...........................................................................................
Third
Respondent
Heard: 5
September 2013
Delivered: 13
February 2014
Summary: Review
of jurisdictional findings- different tests applicable to factual and
jurisdictional findings- correctness test
applicable to legal and
jurisdictional findings- reasonableness test applicable to factual
findings. Labour Court misconstruing
the test applicable to
jurisdictional findings- appeal upheld- Labour Court judgment set
aside. Review application dismissed.
CORAM:
TLALETSI ADJP, C J MUSI
et
MOKGOATLHENG AJJA
JUDGMENT
C J MUSI AJA
[1]
This is an appeal against the judgment of the Labour Court (Cele J)
wherein it found that the first respondent was dismissed
and that
such dismissal was substantively and procedurally unfair. The
appellant was ordered to pay the first respondent R616 000,00
which
was the equivalent of eight months’ salary and outstanding
leave pay to the amount of R8 983,33. The appeal is with
the leave of
the court
a quo
.
[2] The appellant (a
clothing manufacturer whose place of business is in Durban) employed
the first respondent as its Managing Director.
She earned R77 000,00
per month.
[3] The appellant
was commissioned to manufacture uniforms for Pick ‘n Pay, a
national retail store. During the end of September
2008 or the
beginning of October 2008, the first respondent was informed about a
problem with the Pick ‘n Pay stock. They
did not manufacture
enough uniforms. She requested the Operations Director, Mr Hilton
Strauss and the Account Manager, Ms Stephanie
Horning, to explain the
lack of sufficient stock. She then asked another Account Manager,
Karen Oswald, to assist with the Pick
‘n Pay account. Ms Oswald
acquitted herself well and took all the necessary remedial steps. The
first respondent appraised
the Chief Executive Director of the
appellant, Mr Nick Jonsson about the status of the Pick ‘n Pay
account.
[4] On 3 October
2008, the first respondent went to Johannesburg to attend a meeting.
Whilst there, she was phoned by Oswald who
was very upset and told
her (first respondent) that they had a very unpleasant meeting with
Jonsson in Durban. She (first respondent)
telephoned Strauss and
requested him to explain to Jonsson what the situation was with the
Pick ‘n Pay account and to make
sure that Oswald was all right.
Whilst she was in the meeting, in Johannesburg, Jonsson called her
and said:
‘
Lynne,
Hilton told me that Karen’s upset and you’re upset,
what’s going on?’
She
responded by saying words to the following effect:
‘
Nick
I think it is out of line that Karen be criticised about the Pick ‘n
Pay (account) because she is a victim in the whole
situation, it was
Stephanie as I had told you who hadn’t kept a proper control of
the Pick ‘n Pay (account) and Karen
was asked to fix it up.’
According
to the first respondent Jonsson became angry and shouted:
‘
Who
do you think you are telling me that I’m out of line?’
She
responded by saying:
‘
Nick,
I didn’t say that you were out of line, I said the situation is
out of line, it’s not right.’
He
then told her that she was not at the meeting and that Ms Edwina
Watkins was more on the receiving side than Oswald. She told
him that
Watkins was also a victim, because she does production in accordance
with the information given to her by the account
manager. They agreed
to continue with the conversation on the succeeding Monday.
[5] Jonsson
confirmed that he had a meeting with some staff members whilst the
first respondent was at another meeting in Johannesburg.
He confirmed
that he was not happy because things were not going “according
to plan”. He was not aware that Oswald
was upset. Strauss
subsequently told him that the first respondent called and told him
that Oswald called her. The first respondent
told Strauss that she
was upset because of the manner in which Jonsson spoke to Oswald.
Jonsson called Oswald and apologised. He
then called the first
respondent who aggressively asked him how he dares deal with her
staff in that way and that he was out of
line. He told her that she
was not even at the meeting and that they should talk on the Monday.
He was angry. That, in a nutshell,
is the background to this dispute.
[6] The first
respondent testified that she went to Jonsson’s office on the
Monday morning. She greeted him, after entering
his office. He
angrily said: “I’m not going to be spoken to like I was
on Friday’. She kept quiet. He then said:
“this isn’t
working out (pointing his finger to her and him). So what are you
going to do about it.” She
told him that it is up to him.
He responded by saying:
‘
I
think you must resign, and you must resign immediately.’
According
to first respondent, she understood that to mean that she must leave
the premises immediately. She went to her office
and requested her
professional assistant, Bronwyn Turner to help her to pack her
things. She requested Turner to hand in her laptop
and to submit her
expense claim forms to Jonsson, whereafter she left the premises.
[7] She met with her
partner at La Lucia Mall and realised that she could no longer send
or receive e-mails on her phone. Her phone
was connected to the
company’s server and was disconnected. Whilst at the Mall, at
approximately 13H00 Jonsson’s executive
assistant called her
and informed her that Jonsson requested her to call the first
respondent and ask her to fax her resignation
letter because he wants
to make a company announcement. She said to the executive assistant:
‘
Sarah,
I haven’t resigned, please will you tell Nick that I’m
not sending in a letter of resignation as, in fact, I
am seeking
legal assistance and advice on my position.’
She
consulted Mr Ebbie Jamieson, an attorney.
[8] In the evening
she received an e-mail dated 6 October 2008 that was sent at 01:47PM
to the personnel by Jonsson, which reads:
‘
Dear
All,
As some of you
already know, Lynn Brown has resigned from the company with immediate
effect and has already left. I am contemplating
our next move, but I
can assure you that it is “business as usual” until then.
I am sure that you will all cope extremely
well, as you always did
before the appointment of a managing director. We are facing some
wonderful challenges with the imminent
role out of the new Pick ‘n
Pay G3 range followed by new Spur uniforms early in 2009, so it is
going to be an exciting period,
and we will need everyone to be at
the top of their game to ensure the success we are expecting.
Please feel free to
discuss with me any issues that may arise following Lynn’s
departure.”
[9] On 6 October
2008 at 18H58, she wrote the following e-mail to Jonsson:
‘
Reference
is made to the events which transpired at work today and your
Executive Assistants (sic) telephone call to me requesting
a
resignation letter so that you could make an announcement to the
company.
I am deeply shocked,
upset, humiliated and traumatised by your actions today. I have not
resigned, and am (sic) presently seeking
legal advice as to which
course of action I should follow.
All my rights are
reserved.”
[10] On 7 October
2008, Jonsson replied as follows:
‘
Your
sudden departure yesterday after our discussion was surprising to say
the least. We had a brief conversation regarding
your
insubordination and seemed to agree that your continued employment
here would be stressful. Seeing as you have not been dismissed
and
have not resigned you are officially still an employee of Jonsson
Uniform Solutions (Pty) Ltd. Therefore I would like you to
please
come and see met at 10:00 am on Thursday 9
th
October so we can resolve this matter in an amicable way.
I did call you on
your mobile at 5:00 pm to discuss this but there was no reply and I
left a message …’
[11] The first
respondent admitted that Jonsson called her twice on her mobile on 6
October 2008 and that she did not answer. She
testified that she was
in a meeting with Mr Jamieson at the time.
[12] In 9 October
2008, Mr Irvin Lawrence, the first respondent’s erstwhile
attorney wrote a letter on her behalf to Jonsson
wherein he set out
the background facts from his client’s perspective and ended it
as follows:
‘
Our
client construes your actions as having constituted her effective
dismissal from the company alternatively as having made her
continued
employment with the company intolerable.’
In these
circumstances, please indicate what the objective is of our client
meeting with you on Thursday, 9
th
October 2008 at 10h00.
Our client’s understanding is that the employment relationship
has been effectively severed.
That aside, it is, with respect
interesting to note, that while you contend that our client has not
been “dismissed”
there is no indication in your
correspondence that our client should return to work. This,
with respect, seems to accord
with our client’s version was
(sic) that her employment has effectively come to an end.
In these
circumstances we are instructed, to refer a dispute on behalf of our
client relating to the unfair termination of her employment.
We
will in due course be despatching the necessary documents referring
the dispute to your offices’.
[13] On 13 October
2008, she submitted a leave form requesting leave from 14 October
2008 to 24 October 2008 in order to go overseas.
[14] Jonsson
testified that first respondent threatened to resign on a previous
occasion because she did not get along well with
Mr Fortman, the
Chief Financial Officer of the appellant.
[15] He confirmed
the telephonic conversation, which occurred between him and the first
respondent, on the Friday.
[16] He confirmed
that he and the first respondent had a meeting on 6 October 2008 in
his office whereat, he told her that, it would
be very difficult for
them to work together if she was going to talk to, or behave towards,
him in that manner. She then said:
“Well I wouldn’t
like to let the company down or you down, shall I stay a month or
longer?” He then responded
by saying: “No, there’s
no need. If you want to resign you can go now.” He further
suggested to her that she
should go and think about it and come back
to see him after it had settled in. The first respondent left.
[17] He confirmed
that he requested his executive assistant to call the first
respondent and that the latter told her that she did
not resign. He
was surprised to hear that and called the first respondent but she
did not answer and he left a voice message on
her answering service.
He testified that her email account was not disconnected but her
emails were re-routed because they wanted
to avoid customers sending
emails to her and not receiving a response or receiving one late.
[18] He confirmed
that he sent the email informing the staff about the first
respondent’s resignation followed by a meeting
where he
informed them that they should see him to discuss any issues and that
it is business as usual.
[19] After receiving
the email from the first respondent on 7 October 2008, he solicited
legal advice as a result of which he responded
to her email on 7
October 2008 and invited her to a meeting. He confirmed that he
received the letter from Mr Lawrence on 9 October
2008.
[20] A clinical
psychologist, Mr Jean-Francois Deveaux Marigny was called by the
first respondent. He testified that he assessed
her and concluded
that she suffered from Post-Traumatic Stress Disorder as a result of
the manner in which she was treated and
dismissed by Jonsson.
[21] The appellant
also called Strauss and Fortmann to testify. Strauss mainly testified
about the telephone conversation between
him and the first respondent
on 3 October 2008 while Fortmann testified about his relationship
with the first respondent and her
previous threat to resign.
[22] On 4 November
2008, the first respondent referred the dispute to the Second
respondent. Conciliation could not yield a positive
result and a
certificate of non-resolution was issued. The first respondent then
referred the dispute to arbitration.
[23] The arbitrator
found that the meeting of 6 October 2008 caused a misunderstanding.
The first respondent believed that she was
being dismissed whilst
Jonsson believed that she was resigning voluntarily. He concluded
that a request by an employer to an employee
that she must resign
cannot constitute a dismissal and that the appropriate response by
the first respondent, a Senior Executive
of many years’
standing, should have been to tell Jonsson that she refuses to
resign. He considered the probabilities and
concluded that they
favour Jonsson’s version. He concluded that the first
respondent was not dismissed and that she must
be regarded as having
resigned. With regard to the claim for unpaid leave he found that the
first respondent’s claim for
12.5 days’ leave pay should
be set off against the undue salary that she received for October
2008. She was paid her full
salary whilst she worked until 6 October
2008. He therefore dismissed the first respondent’s claim.
[24] Dissatisfied
with the arbitrator’s decision, the first respondent launched a
review application against the award of
the arbitrator. She contended
that the arbitrator committed gross irregularities in the conduct of
the arbitration proceedings,
because he did not apply his mind
properly to the evidence presented. With regard to the finding that
the probabilities favoured
Jonnson’s version, it was contended
that the arbitrator overlooked important evidence and that his
failure to consider relevant
evidence constituted a misdirection. The
first respondent therefore contended that the arbitrator’s
decision is a decision
that a reasonable decision-maker could not
have reached.
[25]
The court
a
quo
applied the reasonable decision-maker test as set out in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others.
[1]
The court
a
quo
stated that:
‘
It
is noteworthy that the rightfulness or wrongfulness of the decision
reached by a commissioner is not part of the probe as to
whether such
a decision is one that a reasonable decision-maker could reach…’
[26] The court
a
quo
correctly stated that the first respondent bore the
onus
to prove the alleged dismissal and that where the probabilities were
evenly balanced, the application had to be dismissed.
[27] The court
a
quo
found that the basis on which the arbitrator accepted
Jonsson’s version leaves much to be desired. The court
a quo
was of the view that the arbitrator did not give any reason for his
finding that the probabilities favour the appellant’s
case.
[28] The court
a
quo
analysed the evidence and made the following findings:
·
If Jonsson was truly expecting a
resignation letter from the applicant, he ought not to have cut the
special means of communication
by which such letter would probably
have been sent to him. This fact alone, so the court a
quo
reasoned, disturbed the veracity of his
version.
·
Jonsson testified that he gave the first
respondent time to think but yet he cut her email. This conduct went
contrary to his version
that he gave her time to think about the
matter and come back to him.
·
His conduct after the encounter in his
office by telling Fortmann that the first respondent had resigned
clearly evinced that, at
the time, he believed that she was no longer
an employee.
·
The words: “I think you must resign
and you must resign immediately” can only be construed as a
dismissal.
·
Once she was dismissed, she sought legal
advice and thereafter accepted the repudiation of her employment
contract; the issue of
the leave she took could not resuscitate a
contract which had already ended.
·
The appellant paid her salary for October
2008 for which she did not work. She was entitled to 12.5 leave days’
pay but took
the overseas trip as leave. That period of leave “she
took after her dismissal has to be set off against her leave credit
leaving her with 3.5 leave days”.
·
She was dismissed and that such dismissal
was substantively and procedurally unfair.
[30] Strangely, the
arbitrator’s award, which was the subject of review, was not
set aside by the court
a quo.
There is therefore, currently, a
valid arbitration award dismissing the first respondent’s claim
and a court order, ordering
the appellant to pay the first respondent
compensation, emanating from the same set of facts.
[31] Ms Naidoo, for
the appellant, argued that the court
a quo
applied the
incorrect test. The test set out in
Sidumo supra
, so she
argued, was not applicable because the true question in this matter
was whether there was in fact a dismissal. If there
was no dismissal
then the second respondent would not have jurisdiction to adjudicate
the dispute. She submitted that the dispute
is therefore a
jurisdictional one and as such the correctness of the arbitrator’s
decision had to be determined from the
objective facts. That being
the case, the court
a quo
analysed and approached the matter
incorrectly. She contended that the court
a quo
assessed the
objective facts incorrectly because the probabilities in fact
favoured the appellant’s version. She submitted
that the words
you must resign immediately cannot be construed to be a dismissal.
[32] Mr Van Niekerk,
on behalf of the first respondent, was constrained to accept that the
court
a quo
applied the incorrect test. He however argued that
the court
a quo
approached and analysed the facts as if it
were an appeal and not a review. He submitted that even though the
court
a quo
applied the wrong test it inadvertently used the
right approach and therefore reached the right conclusion. He further
submitted
that the court
a quo
’s analysis of the
probabilities and its conclusions were correct.
[33]
The generally accepted view is that we have a bifurcated review
standard
viz
reasonableness
and correctness.
[2]
The test for
the reasonableness of a decision was stated in
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
as follows: “Is the decision reached by the commissioner one
that a reasonable decision-maker could not reach?”
[3]
[34]
In assessing whether the CCMA or the Bargaining Council had
jurisdiction to adjudicate a dispute, the correctness test should
be
applied. The court of review will analyse the objective facts to
determine whether the CCMA or Bargaining Council had the necessary
jurisdiction to entertain the dispute. See
SARPA
v SA Rugby (Pty) Ltd and Others; SA Rugby (Pty) Ltd v SARPU
.
[4]
[35]
The issues in dispute will determine whether the one or the other of
the review tests is harnessed in order to resolve the
dispute. In
matters where the factual finding of an arbitrator is challenged on
review, the reasonable decision-maker standard
should be applied.
Where the legal or jurisdictional findings of the arbitrator are
challenged the correctness standard should
be applied. There will,
however, be situations where the legal issues are inextricably linked
to the facts so that the reasonable
decision-maker standard could be
applied.
[5]
[36] It is therefore
important to determine whether the dispute, between the parties, is a
jurisdictional one or not. The dispute
to be resolved determines the
test to be applied. In this matter, the dispute between the parties
was whether there was in fact
a dismissal. If there was no dismissal
the Bargaining Council would not have jurisdiction. If there was a
dismissal the Bargaining
Council would have jurisdiction. The
existence or otherwise of a dismissal is therefore a jurisdictional
issue. The correctness
standard and not the reasonableness standard
should therefore be applied. The court
a quo
, as both parties
agreed, applied the wrong standard.
[37] The court
a
quo
relied heavily on the fact that the first respondent’s
email account was cut for its conclusion in relation to the
probabilities.
The court
a quo
concluded that the first
respondent’s access to emails was cut. This is incorrect. The
evidence of Jonsson is that the emails
were re-routed because she
left and there was a possibility that they had to respond to clients
who sent emails to her. This was
in my view a completely acceptable
and rational explanation for his conduct.
[38] According to
the court
a quo,
the only reasonable construction to place on
the words “I think you must resign and you must resign
immediately” is
that she was dismissed. I disagree. She was
requested to resign and that such resignation should be effective
immediately. She
had an option to refuse to resign. I agree with the
arbitrator that it was always open to her to say “I am
certainly not
resigning”. The first respondent was a senior
manager. She has operated on managerial level for many years.
According to
her, she has hired and fired employees in the past. She
could not reasonably have thought that she was being dismissed when
she
was asked to resign. In fact in her evidence-in-chief she clearly
stated that “I didn’t resign. I was asked to resign.”
[39] According to
the first respondent she was dismissed, there was no misunderstanding
or grey area. Her actions subsequent to
the incident in Jonsson’s
office however points in the opposite direction. When she spoke to
Sarah she said she did not resign.
Likewise when she wrote the email
on the 6 October 2008 she stated that she did not resign. It must be
remembered that she wrote
that email after consulting a lawyer. What
is strange is that she stated what she did not do instead of stating
what happened.
If she was dismissed one would have expected her to
say to Sarah “I am not going to submit a letter of resignation
because
I was dismissed.” So too would one have expected her to
state in her email to Jonsson, on 6 October 2008, that he dismissed
her.
[40] The first
respondent submitted a leave form, on 13 October 2008, requesting
leave from 14 October 2008 to 24 October 2008.
This is contrary to
her evidence that there were no grey areas and that she was certain
that she was dismissed. One does not request
leave from one’s
ex-employer.
[41] In the letter
that her erstwhile attorney wrote to Jonsson it was stated that “Our
client construes your actions as having
constituted her effective
dismissal from the company alternatively as having made her continued
employment with the company intolerable.”
This also shows that
there was uncertainty.
[42] When Jonsson
wrote her a letter requesting her to meet with him so that they could
address the problem amicably, she refused
to go. In the said letter
Jonsson categorically stated that she was still an employee of the
appellant because she was not dismissed.
[43] I agree with
the arbitrator that the probabilities favour the appellant’s
version. In my view the court a
quo
’s conclusion is
wrong.
[44] The first
respondent bore the burden of proving that she was dismissed. She did
not relieve herself of that burden. She did
not prove that she was
dismissed.
[45] The first
respondent was also awarded an amount of R8 983.33 as outstanding
leave pay. I agree with the arbitrator that the
12.5 days leave pay
should be set off against the salary that she received for October
2008 whilst she only worked for 6 (six)
days in October 2008. The
court a
quo
’s conclusion that she was officially on
leave from 14 October 2008 to 24 October 2008 is, based on my
conclusion that she
was not dismissed, erroneous.
[46] The
requirements of the law and fairness militate against a costs order
in this matter.
[47] In my view, the
appeal ought to succeed.
[48] I accordingly
make the following order
a. The appeal is
upheld
b.
The order of the court a
quo
is set aside and replaced with
the following:
The
review application is dismissed with no order as to costs.
c.
No order as to costs is made.
C.
J. Musi AJA
I
concur.
Tlaletsi
ADJP
I
concur.
Mokgoatlheng
AJA
APPEARANCES:
FOR
THE APPELLANT: Adv. Naidoo
Instructed
by Garlicke & Bousfield Inc
La
Lucia Ridge
FOR
THE RESPONDENT: Adv. Van Niekerk
Instructed
by Millar & Reardon Attoreys
Dursan
[1]
[2007]
28 ILJ 2405 (CC).
[2]
I
say generally because
of
the debate relating to the gross irregularity standard as enunciated
in
CUSA
v Tao Ying Metal Industries and Others
[2009] 1 BLLR 1
(CC) at para 76. See Myburgh: The test for review of
CCMA arbitration awards :an update. Contemporary Labour Law Vol 23
No. 4
November 2013 at page 31. That controversy, if it is one, is
beyond the scope of this judgment.
[3]
Supra
at para 110
[4]
[2008] ZALAC 3
;
(2008)
9 BLLR 845
(LAC) at para 40 and 41
[5]
In
many matters the admissibility of evidence, which is a legal
question, could be inextricably linked to the facts and the decision
of the arbitrator will be guided by the facts. The
determination of the admissibility of hearsay evidence is an example
of a legal question that is inextricably linked to the facts.