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[2014] ZALAC 110
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Nicholl v Du Plessis N.O and Others (PA6/12) [2014] ZALAC 110 (5 August 2014)
REPUBLIC OF SOUTH AFRICA
THE LABOUR APPEAL COURT OF SOUTH
AFRICA, PORT ELIZABETH
JUDGMENT
Not
Reportable
Case no: PA6/12
In the matter between:
SHANON
NICHOLL
Appellant
and
BOTHA DU PLESSIS
N.O
First Respondent
COMMISSION FOR
CONCILIATION
MEDIATION AND
ARBITRATION
Second Respondent
MTN SERVICE
PROVIDER
Third Respondent
Heard: 26 November
2013
Delivered: 05 August
2014
Summary: Dismissal-
Onus-- Employee bearing the onus of proving that dismissal occurred-
Employee claiming to have been offered
a contract of employment and
then dismissed prior to commencing employment. Commissioner finding
that there was no dismissal. The
Labour Court upholding the
arbitration award. Appeal: Employee failing to prove the existence of
a contract of employment- Employee
failing to discharge onus of
proving dismissal- Appeal dismissed.
Coram: Tlaletsi ADJP,
Musi et Mokgoatlheng AJJA
JUDGMENT
TLALETSI ADJP
Introduction
[1]
In
this matter, the appellant contends that she had been offered a
contract of employment by one of the third respondent
’
s
managers and after accepting the said offer, she was dismissed before
she could even assume her new employment. The third respondent
(the
respondent) disputes that the appellant was offered any employment by
any of its managers. The respondent contends that she
was only
offered an opportunity to apply for a position at the respondent and
that the said offer, for some reason, did not materialise.
[2]
The
appellant referred a dispute of unfair dismissal to the second
respondent, the Commission for Conciliation, Mediation and
Arbitration
(the CCMA). Her dispute was arbitrated by the first
respondent (
“
the
commissioner
”
)
after it could not be successfully conciliated. The commissioner
rejected the appellant
’
s
contention that she was employed and dismissed her claim of unfair
dismissal. Aggrieved by the award of the commissioner, she
instituted
review proceedings in the Labour Court seeking to review and set
aside the award. The Labour Court (per Bhoola J) dismissed
the
appellant
’
s
application for review and upheld the commissioner
’
s
finding that there was no dismissal. The appellant was further
aggrieved by the order of the Labour Court and came to this Court
with leave of the Court
a
quo.
Background facts
[3]
The
following brief background is necessary for a better understanding of
the dispute. The appellant had previously been employed
by the
respondent for 12 years. She was charged with misconduct and left the
employment of the respondent, in October 2008, pursuant
to a
separation settlement agreement between the parties.
[4]
It
is common cause that months after the settlement agreement, Rajen
Ryan (
“
Ryan
”
)
who was the respondent
’
s
Regional Manager in the Eastern Cape arranged a meeting with the
appellant on 9 March 2009 to discuss her potential employment.
Ryan,
together with Van der Merwe, represented the respondent at the
meeting. The appellant was accompanied by her husband. There
were
various positions available at the time to which the appellant was
qualified to be appointed. None of the positions had been
advertised.
Ryan discussed with the appellant the two available positions of bank
administrator and the applicable salary band.
The details of the
discussions are crucial since the parties have divergent versions of
what was discussed and on what note they
parted. I will revert to
this aspect in the cause of my judgment. It must be mentioned though
that it was not uncommon at the respondent
to earmark a person for a
position. It is however common cause that there were certain
processes that had to be followed by the
Human Resource (HR)
department of the respondent to finalise an appointment of an
employee.
[5]
It
is further common cause that later in the day after the parties to
the meeting had parted, the Human Resources Manager, Themba
Nyathi,
sent an email to Ryan stating that:
'Based
on the discussion that we had in the morning, Shannon can be hired
back only if she resigned voluntarily. However, it seems
as if she
was charged and as such settled with the organization. Based on that
she cannot be hired back. All staffs charged with
insubordination,
gross dereliction of duty and bringing the organization into
disrepute are incompatible with MTN culture.
She can apply but
will not be taken back due to serious nature of her charges. Upon
advice I am told that we might as well consider
all staffs dismissed
for theft, fraud, poor performance etc.
I know that you
are compassionate however, we have to be fair to all other staffs who
left under similar considerations.
’
(sic)
[Emphasis provided.]
[6]
Reacting
to the email, Ryan called the appellant the same day and informed her
that
“
Johannesburg
”
was
not happy with employing her. By this, he meant that his head office
did not want the appellant to be reemployed for the reasons
stated in
the above quoted email. It was this call that triggered the referral
of a dispute of an alleged unfair dismissal to the
second respondent,
which was arbitrated on 28 July 2009 and 4 December 2009.
[7]
At
the arbitration, the respondent agreed to present its case first and
led the evidence of one witness, namely, Ryan. For the purpose
of
this appeal, it is important to limit his testimony to issues
necessary for the determination of this appeal. Ryan testified
in
respect of the meeting of 9 March 2009 that the appellant was invited
to the meeting in which meeting various vacancies available
within
his department were discussed. He maintained, specifically, that the
appellant was offered an opportunity to apply for the
vacant position
of banking administrator.
[8]
Ryan
further testified that the appellant was asked to apply for the
position of banking administrator because she possessed the
necessary
expertise having previously worked in the said department. Asked
whether they discussed the remuneration for the position,
Ryan
answered in the affirmative and mentioned that he did not disclose
the exact salary payable because he is prohibited from
doing so by
the respondent
’
s
recruitment policy. He however did indicate the salary band and the
level an employee in that position could possibly earn. He
made no
salary offer to her.
[9]
Asked
whether there was an offer of employment, Ryan testified that there
was no offer of employment but an opportunity to apply
for a
position. He mentioned that the appellant was required to apply for
vacant positions as required by the respondent
’
s
Human Resources policies. As regard the reasons why Ryan called the
meeting of 9 March, he testified that he wanted to resolve
the
animosity that existed between Manie van der Merwe and the
appellant
’
s
husband by offering a job opportunity to the appellant. Apparently,
the appellant
’
s
husband believed that his wife had been treated badly at the
respondent in the past and he was prepared to fight for her
“
until
the bitter end
”
.
Ryan insisted that the appointment would have had to follow the
recruitment process but was prepared to make a positive
recommendation
for her employment. He insisted that the appellant
knew the respondent
’
s
recruitment processes quite well. She knew that he could only
recommend and not appoint an employee. He further testified that
on 9
March 2009, after discussions with the HR Manager about the
possibility of employing the appellant, he was given the go ahead
with the proposal to allow the appellant to apply for a vacant
position.
[10]
Ryan
testified that the four parted on the understanding that the
appellant
’
s
husband was going to consult with his attorney on the possibility of
him ending the legal process he had instituted against the
respondent
and for the appellant to formally apply for the position as
discussed. However, later in the day he received an email
from Mr
Nyathi stating that the appellant could not be hired as she was
charged for misconduct and she left as a result of a settlement
agreement. This is the email quoted above. He concluded that he
telephoned the appellant to convey the message and he, in return,
received an SMS message from the appellant stating that she
understood and thanked him for his efforts.
[11]
Appellant
’
s
evidence before the arbitrator was that she previously had a fairly
good working relationship at the respondent as an employee
and she
would enjoy if she could return to the establishment. She confirmed
that she was phoned by Ryan on the 6
th
of March who wanted to resolve the animosity between her husband and
Manie van der Merwe by offering her a job. Ryan told her that
there
was a vacancy which was created by a transfer of an employee. He
wanted a meeting to discuss the offer and the legal issues
relating
to her husband and wanted to know whether she was available to attend
a meeting on the 9
th
.
She testified that Ryan called again the same day and mentioned that
he wanted to make it clear that it was a new contract and
not a
reinstatement. At 20h00 her husband sent an SMS message to Ryan
confirming that they would attend the meeting as proposed.
[12]
The
appellant testified that Ryan opened the meeting by stating that
“
there
is this offer in exchange for her husband to withdraw the animosity
”
,
that it was the position of banking administrator and the salary
offer was R12 300.00 plus benefits. The working hours were discussed
and she was to work on Saturdays only. The banking she was supposed
to do was for 33 stores. Ryan asked her whether she was happy
and she
confirmed that she was. She was then told that she would be informed
when to come for an interview to keep everything above
board, but
that the position was hers. She was further told that she would be
informed when to start work which was to be either
April or May and
further that the
“
paperwork
”
could
take some time. She mentioned further that Ryan told her that his
seniors were happy to have her back and that they would
deal with the
“
gossip
”
(skindernuus)
that may arise as a result of her appointment. He further maintained
that the HR Manager authorised their discussions
and the meeting.
They shook hands and parted. There was nothing that was reduced to
writing.
[13]
The
appellant testified that a few hours later, Ryan called her husband
stating that there was no offer of employment. No one spoke
directly
to her about the fact that there was no offer of employment. She
confirmed that for her first employment she had to go
through the
normal recruitment process which included her being subjected to an
interview. However, in this instance an interview
process was merely
intended to make her appointment
“
legitimate
”
as
she was already assured that she was employed.
Arbitration award
[14]
The
thrust of the appellant
’
s
case was that she was offered a contract of employment which was
later withdrawn and that such withdrawal constituted an unfair
dismissal. In the award, the commissioner recorded that the issue to
be decided was whether the appellant had been dismissed and
if so,
whether the dismissal was fair. He recognised that there were two
conflicting versions in the case and he would
inter
alia
,
rely on the probabilities to decide the matter. He remarked that the
appellant
’
s
husband was present at the meeting of 9 March 2009 but was never
called as a witness to corroborate the appellant
’
s
evidence. The commissioner drew an adverse inference for such failure
to call him as a witness. However, on the failure by the
respondent
to call Nyathi as a witness, he rejected the submission that an
adverse inference should be drawn because it was the
appellant who
carried the
onus
to prove that the dismissal was fair. He further found that Ryan was
an experienced manager and most of his evidence was not challenged.
He referred to the fact that he was not challenged on his version
that he received an SMS message from the appellant stating that
she
understood and accepted what Nyathi said and thanked Ryan for his
efforts. He further held that the appellant
’
s
evidence was that they were still to consider abandoning the
pursuance of any further case against the respondent should she be
successful in her application for employment and that Ryan contacted
her husband indicating that the arrangement could not be continued.
By this time the appellant and her husband were still considering the
proposal to cease any legal proceedings should the appellant
’
s
application for employment be successful. The commissioner found this
aspect to be playing a significant role in determining the
dispute.
[15]
The
commissioner held further that the thrust of the appellant
’
s
case was that in her mind a firm offer was made to her. That belief
means that she possibly misconstrued the intention of the
respondent
during the discussions at the meeting. This, according to the
commissioner, is an indication that there was no valid
contract
concluded. He mentioned further that there was no commencement date
agreed to by the parties in this case. The commissioner,
in
conclusion, preferred the evidence of the respondent over that of the
appellant and held that the appellant was still to apply
for the
position and to attend an interview. The commissioner found that the
appellant failed to prove that a contract of employment
had been
concluded between the parties and that the appellant was not entitled
to any relief. He made no order as to costs.
The court
a quo
[16]
The
appellant sought to review the commissioner
’
s
award on the grounds that the commissioner misconstrued the evidence;
reached a conclusion that was unsupported by the evidence;
failed to
apply his mind to the evidence presented and disregarded relevant
evidence.
[17]
The
nub of the reasons why the Labour Court dismissed the review
application is to be found in the following extract from the
judgment:
‘
the
arbitrator
’
in
clear and cogent reasoning, states that he is faced with two
conflicting versions, and that he accepts the version of the third
respondent on the probabilities. In my view he was justified in
drawing a negative inference from the failure to call the
[appellant
’
s]
husband as a witness to corroborate her version of the events. In
these circumstances the [appellant
’
s]
submissions that the job offer must on the probabilities have been a
quid pro quo for withdrawal of his dispute with the third
respondent
can be dismissed as pure speculation. There were no probabilities in
this regard that the arbitrator failed to consider
given the evidence
was not before him.
It is clear that at common law a
contract of employment is concluded when the contracting parties
reach consensus on the essential
terms. He finds that no offer was
made and there could therefore have been no acceptance, let alone a
contract. This finding is
reasonable based on his conclusion that
Ryan did not concede that a firm offer of employment was made,
although a number of issues
were discussed.
In my view the
award must withstand scrutiny under the Sidumo test as being one that
could have been made by a reasonable decision-maker
on the evidence
before him. There is no reason in law of fairness to depart from the
general rule that costs follow the result
.
’
The appeal
[18]
In
this Court, the appellant raised the same grounds as in the court
below as her grounds of appeal. The main contention of the
appellant
was that the arbitrator did not apply his mind to the evidence before
him by misconstruing the evidence in circumstances
where he was faced
with two diametrically opposed versions of the event. It was
submitted in this regard that the arbitrator failed
to make
credibility findings to the effect that the probabilities favoured
the appellant
’
s
versions that her husband would abandon his dispute against the third
respondent in return for the employment for his wife. Consequently,
the appellant contended, the Labour Court erred in finding that the
commissioner
’
s
acceptance of the respondent
’
s
version was clearly and cogently reasoned on the probabilities.
[19]
The
respondent opposes the appeal. It was contended that the appellant
failed to establish a
prima
facie
case that a valid contract of employment was entered into with the
respondent. In this respect, it was submitted that Ryan had
no
authority to employ anyone as recruitment of personnel was the
responsibility of the Human Resources department of the respondent.
It was further contended that the commissioner was justified in
drawing a negative inference from the appellant
’
s
failure to call her husband as a witness to corroborate her version
of events.
[20]
It
is trite that the
onus
to prove the existence of the dismissal lies first on the employee.
In
CWU
v Johnson and Johnson (Pty) Ltd,
[1]
the
court held that the use of the word
“
must
”
indicates
that the provisions of section 192(1) and (2) of the Labour Relations
Act 66 of 1995 (LRA) are peremptory. The employee
must establish on a
balance of probabilities that the dismissal took place. The employee
must set out the facts and legal issues
which substantiate that
termination of employment occurred. Once the employee has proved that
dismissal did take place, the
onus
is shifted to the employer to prove that the dismissal was for a fair
reason. In order to prove that there is a dismissal, an employee
should establish in the first place that an employment relationship
existed.
[21]
The
question whether there was an employment relationship in existence
between the parties is fundamental because it raises the
question
whether the commissioner had jurisdiction to arbitrate the
appellant
’
s
alleged unfair dismissal dispute referral. In the absence of an
employment relationship, the commissioner would not have had the
jurisdiction to arbitrate the dispute as there would not have been a
dismissal. The test is in essence not whether the decision
by the
commissioner to the effect that it did not have jurisdiction to
arbitrate the dispute is justifiable, rational or reasonable.
The
question is whether objectively speaking, the facts which would give
the CCMA jurisdiction existed. A finding by the commissioner
that it
did not have jurisdiction when in fact such facts existed would not
divest the CCMA of its jurisdiction to determine the
dispute.
[2]
[22]
In
this matter, the arbitrator was faced with two conflicting versions.
The appellant contended that she had been offered a contract
of
employment at the meeting of 9 March 2009 whilst the third respondent
contended that no such offer was made but an opportunity
to apply for
vacant positions with the support of Ryan. It was further contended
by the third respondent that the appointment of
the appellant had to
follow its long established recruitment process.
[23]
In
deciding which of the two versions was more plausible, one must first
consider the common cause facts found on the two versions.
It is
common cause that the meeting was held at the instance of Ryan in
order to resolve the tension that existed between the appellant
’
s
husband and Manie van der Merwe. At this stage, no agreement for her
employment had been reached. What Ryan had in mind was to
propose an
employment or job to the appellant in order to resolve the tensions.
Ryan had at this stage obtained authorisation from
Nyathi to have
discussions for appellant
’
s
employment.
[24]
In
my view, it is reasonable to find that the parties had agreed that
the pending litigation between the appellant
’
s
husband and the respondent could only be discontinued once the
appellant had been employed. It would not make sense to agree to
withdraw the litigation whilst the appellant was still to undergo an
interview process and without first having consulted their
legal
advisor who was handling the matter on their behalf. Similarly, I
find it difficult to believe that despite making an offer
of
employment to the appellant her husband was going to continue
litigating against the third respondent when it is common cause
that
the main reason for the employment of the appellant was to end the
animosity between her husband and the respondent. On a
balance of
probabilities, it is reasonable to find that the offer was made in
exchange for the appellant
’
s
husband
’
s
abandonment of the legal proceedings against the respondent and when
they parted the appellant and her husband were still to consider
the
proposal.
[25]
The
question that remains is whether a clear employment contract was
entered into on that day. The commissioner
’
s
conclusion that there was no valid contract of employment concluded
has merit. The conclusion is supported by the evidence on
record. The
email from Nyathi supports the view that it had not been agreed with
the respondent that she must be employed. That
explains why Nyathi
indicated in his email to Ryan that she may go through the process
but she would not be employed because of
the circumstances in which
she previously left her employment with the respondent. It would also
not make sense for Ryan to tell
the appellant that her interview
would be merely to go through the motions when it was a process to be
conducted by the HR department
and not him. It is also not unusual
for the parties to discuss the details relating to salary and working
conditions pertaining
to the prospective position before a
prospective candidate is formally interviewed for the position. Such
a discussion would assist
the prospective candidate to decide whether
it is worth applying for the position or not. Such discussions do not
necessarily mean
that there is agreement on the salary payable when
there is still to be a formal interview to be conducted.
[26]
The
evidence of Ryan that the appellant had prior knowledge of the
respondent
’
s
recruitment process was not disputed. His evidence about the normal
processes followed on recruitment of staff was also not disputed.
His
evidence accords with what according to Ryan happened and was still
to happen. The respondent
’
s
policy required that all recruitment and selection practices must be
equitable and transparent; that prior to any employment offer
for all
positions pre-employment reference checks and qualification
verifications had to be conducted and that any re-employment
must be
authorised and approved by the Managing Director. It is common cause
that Ryan did not have any authority by the Managing
Director to
re-employ the appellant. He could therefore not conclude a valid
contract of employment with the appellant without
such authorisation.
[27]
On
the evidence on record, I am unable to find that the appellant has
shown that she was an employee of the respondent for her to
be a
candidate for dismissal. On the contrary, Ryan out of his good heart,
wanted to resolve the animosity that was in existence
by facilitating
a process of the appellant
’
s
employment. However, because of the historical reasons, the
employment could not materialise. It makes good sense why the
appellant
sent him a message that she understood and appreciated his
efforts. He was not to be blamed for the ultimate failure to employ
her. The Labour C
ourts
’
preference
of the respondent
’
s
version under the circumstances cannot be faulted. Furthermore, no
reasonable explanation was offered why the appellant
’
s
husband who was present at all material times and whose role relating
to the cessation of further legal action in exchange of
employment
was not called to testify. His evidence would
not
only
have
served
to
corroborate
the evidence of the appellant but would also have provided some other
independent and objective facts relating to the
circumstances that
led to the meeting and thereafter
.
[28]
For
the above reasons, the appeal must fail. It would be in accordance
with the requirements of the law and fairness that there
be no order
as to costs.
[29]
In
the result, the following order is made
The
appeal is dismissed with no order as to costs
.
Tlaletsi
ADJP
Musi et
Mokgoatlheng AJJA concur in the judgment of Tlaletsi ADJP
APPEARANCES:
FOR THE
APPELLANT:
Adv Dyke
Instructed by
Brown Braude & Vlok Inc.
FOR THE
RESPONDENT:
Adv AM Mthembu
Instructed by
Mashiane, Moodley & Monama Inc.
[1]
CWU
v Johnson and Johnson (Pty) Ltd
[1997]
9 BLLR 1186 (LC).
[2]
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and Others
(2008) 29 ILJ 2218 (LAC) para [41].