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[2001] ZALCJHB 7
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Dieckmann v CCMA (JR476/2001) [2001] ZALCJHB 7 (26 October 2001)
[COMMENT1]
Sneller
Verbatim/MS
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR476/2001
2001-10-26
In the matter between
RUDOLPH M
DIECKMANN Applicant
and
CCMA Respondent
J U
D G M E N T
LANDMAN,
J:
Mr Rudolph
Dieckmann says he was dismissed by his employer S A Freight Goodwin
Project (Pty) Limited. His employer
denies this and says that
he resigned. His employer points to its letter of 31 May 1999
which reads as follows:
"Dear Rudi.
We confirm that your
services with our company are no longer required with effect from 31
May 1999.
In terms of your letter
of appointment you are due to provide a calender month's notice to
the company. In this respect as
agreed with yourself, the
writer and George Du Plessis you will be free to look for alternative
employment during your notice period
but are to hold yourself
available should we require your services during this period.
As also agreed you will hand over
to George Du Plessis all
documentation relating to the work that you have been engaged in and
all supply information etc.
We thank you for your
input during your period with our company and wish you every success
in the future."
The matter proceeded to
arbitration before a Commissioner of the CCMA. The Commissioner
heard Mr Dieckmann's evidence and
that of four witnesses called by
the employer. The Commissioner concluded that Mr Dieckmann had
resigned and dismissed his
application for relief. Mr Dieckmann
launched an application to review and set aside the award. This
application was
so defective that my brother CASSIM, AJ
directed that it be withdrawn and replaced by a fresh application.
The fresh
application is out of time but for present purposes the
late filing of the application is condoned.
It is convenient so
summarise Mr Dieckmann's evidence starting with the events which took
place on 22 May 1999. Mr Dieckmann
says that on Friday 22 May
1999 he experienced a shortage of personal funds due to unforeseen
car repairs. He approached
a certain Mr Theron, who works for
the company, and asked him how long he would have to wait for the
reimbursement of his travelling
expenses. His expenses amounted
to R1 500,00. There was some difficulty in securing payment of
those expenses.
Mr Theron told Mr Dieckmann to stop harassing
him. Mr Theron said, "Ag Rudi stop harassing me, fuck
off."
On 24 May Mr Dieckmann
went to the Department of Labour and was referred to the labour
officer in Kempton Park. He explained
his difficulty to them.
Thereafter he returned to the company and spoke to Mr Goodwin and Mr
Du Plessis. He says that
Mr Du Plessis told him to clear out
and he began removing his belongings. Three days later on 31
May Ms Carron, Mr Goodwin's
secretary, handed him the letter dated 31
May. Mr Dieckman viewed this letter as a letter of dismissal.
The employer led four
witnesses. The fourth witness was Ms Carron. When all the
evidence had been led Mr Dieckmann addressed
the Commissioner and, in
the course of his address, said at page 56 of the typed record: "Okay
I say apart from Ms Carron
the witnesses brought forward by the
company are lying." The result is that Mr Dieckmann
apparently accepts that
Ms Carron's testimony is truthful and
therefore it is important to see what she said. Ms Carron said
that she saw Mr Du Plessis
on the afternoon of 24 May in the
reception area. She also saw Mr Dieckmann. Mr
Dieckmann approached Mr Du Plessis
and asked him whether he was fired
to which Mr Du Plessis replied “No”. She went on to
say "then Mr Dieckmann
(inaudible) and Mr Du Plessis said no you
are not fired but that you have resigned earlier." She
also knew that sometime
in the month of May Mr Dieckmann had said
that he was unhappy and was looking for other jobs and was going for
interviews.
She also told the
Commissioner what happened earlier on 24 May. Mr Dieckmann came into
the board room where Mr Goodwin and Mr Du
Plessis and Ms Carron were
present. He was highly agitated and he said something to the
effect that he had enough and that
he was leaving and that he was
taking legal action. She says she does not remember him using
the word "resign"
but that he said that he was fed up and
had enough and was leaving.
I have already mentioned
that Mr Dieckmann regarded Miss Carron as a truthful witness.
However during the course of his address
he also had the following to
say. "I am leaving. This was not the truth Ms Carron
probably misunderstood what was said”.
Mr Du Plessis who was at
that meeting also commented on what transpired between Mr Dieckmann
and the other persons in the room.
He also confirms that Mr
Dieckmann did not use the word "resign" but he did say "I
am leaving I am out of here.
I am packing my stuff I am going."
The clear implication of all this is that Mr Dieckmann was not
dismissed. He
tendered his resignation on 24 May and this is
how the Commissioner saw it. There is nothing which indicates
that her finding
in this respect was defective or irregular in any
manner.
However, later on 26 May
Mr Dieckmann returned to the company. He returned because the
Department of Labour phoned the company
on his behalf.
According to him the official was told that the company had not
dismissed Mr Dieckmann.
On his return the matter
of his continued employment was taken up by Mr Goodwin and Mr Du
Plessis. Their evidence is that
Mr Dieckmann said to them that
he had a job offer or that he was on a short list for jobs with other
companies and indeed this
was true. The letter of 31 May is
consistent with the version of Mr Goodwin and Mr Du Plessis.
They accepted his resignation
and said that he need not work out his
period of notice but that he should be on hand if they required him
and he was required
to hand over information belonging to the
company. The Commissioner accepted this, and concluded that the
letter of 31 May
constituted an acceptance of Mr Dieckmann's
resignation. I can find no reason why this court should interfere
with that finding.
Mr Dieckmann, in his
application to review and set aside the award, set out a series of
complaints about the conducts and findings
of the Commissioner.
Some of these allegations are extremely serious but they are not
justified by a reading of the transcript.
For instance it is
alleged that the Commissioner failed to inform him of his rights
regarding legal representation. Why this
should be necessary
when, on Mr Dieckmann's own version his attorney, was sitting outside
the arbitration chamber is not explained.
This does not
constitute misconduct. Had his attorney wish to address the
Commissioner the attorney should have done that.
If the
application has turned down then the attorney could have sat
outside. Mr Dieckmann could have informed the Commissioner
that
his attorney was outside. This was not done. There can be
no suggestion of any irregularity on the part of the
Commissioner.
I should mention another
example. Mr Dieckmann complains that the Commissioner should
have investigated the possibility of
a constructive dismissal.
There was, however, no reason for her to do so. On page 18 of
the typed record Mr Dieckmann
says:
"
MR
DIECKMANN
: I am not making a case of
constructive dismissal. I was clearly dismissed. That was
constructive it was a dismissal
or a constructive dismissal.
What I am saying here is that prior to my dismissal the company try
to bring about a constructive
dismissal.
MR
ISRAELSTAM
: Thank you for the
clarification so we have it then on record there is no application
for constructive dismissal?
COMMISSIONER
:
No.
MR
ISRAELSTAM
: We are talking about
a straight forward dismissal?
MR
DIECKMANN
: Yes."
It is not permissable for
Mr Dieckmann to complain at this stage that the Commissioner did not
make a finding about constructive
dismissal when he led her to
believe that, that was not his case.
Mr Dieckmann also alleges
that the Commissioner should have found that he had not resigned as
he had not provided a written notice
of resignation in accordance
with the
Basic Conditions of Employment Act of 1997
. It is
quite correct that he did not do so. The Commissioner was aware
of this but she concluded that he had said he
was resigning and that
he was obliged to tender the resignation in writing. He did not
do so and the Commissioner says that,
that did not effect the
situation.
In my view the
Commissioner's finding is a justifiable one. Once a senior
employee makes it clear that he does not wish to
work any longer and
that he resigns then the rest is a mere formality and he cannot hide
behind that. The Commissioner considered
all the evidence which
was placed before her including the facts set out in the unsworn
address which was directed to her at the
opening of the arbitration.
If there was a deficiency in the arbitration proceedings in the
sense that Mr Dieckmann was unaware
that his statement should have
been made under oath then this was cured by the way in which the
Commissioner dealt with the evidence.
There
is therefore no reason to interfere with the award and in the
premises the application is dismissed.
______________________
A
A Landman
Judge
of the Labour Court of South Africa
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[COMMENT1]
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