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[2003] ZALCJHB 1
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Macanda and Another v Singe Technology (Pty) Ltd (JR1569/01) [2003] ZALCJHB 1 (10 February 2003)
[COMMENT1]
JR1569.01Sneller
Verbatim/HVDM
IN THE LABOUR COURT OF
SOUTH AFRICA
BRAAMFONTEIN
CASE
NO: JR1569/01
DATE:
2003-02-10
In
the matter between
LUCAS
MACANDA AND
ANOTHER Applicant
and
SINGE
TECHNOLOGY (PTY) LTD
Respondent
J
U D G M E N T
LANDMAN
J
:
Mr
Lucas Macanda was employed by Serge Technology (Pty) Ltd in
Randburg. Mr Macanda and another employee left their place
of
work to go to the bank. Mr Macanda believed that his companion
had also obtained permission for him to leave the workplace.
On
his return he was called to the managing director's office. Mr
Macanda explained how it came about how he left the premises
and
apologised to the managing director. The managing director said
that he didn't want to listen to him or his story and
added "get
out just now, otherwise if you don't want to go out I will kick you
out". Mr Macanda said: "So
I did try my best to
talk to him but he didn't want to listen to me. So finally I
decided to go. Mr Macanda clocked
out and left, but the
production manager's secretary, one Vicky, called him to sign a
letter. He did so and he left.
The letter is a letter in
terms of which Mr Macanda resigns with immediate effect. Mr
Macanda says that he thought the letter
was one regarding a
suspension preparatory to a disciplinary hearing. Later
Mr Macanda signed a letter in full and final
settlement and
received a cheque. He says he thought that he was signing this
as a receipt for the cheque. He later
phoned his manager, who
was not the production manager, and his manager reported to him that
he had spoken to the MD but the company
would not change its stance.
Mr Robertson, the only
witness called by the company said that looking through a glass
window he saw Mr Macanda signing the letter
of resignation. He
was unable to hear what was being said. He also said that he
knew that Mr Macanda could read and
indeed Mr Macanda
acknowledged this at the arbitration hearing.
The issue confronting the
commissioner was whether Mr Macanda had been dismissed by the
company. The onus of proving
this lay upon Mr Macanda.
The commissioner found for Mr Macanda and ordered his
retrospective reinstatement.
The company seeks to
review and set aside the award on the following grounds:
(a)
The commissioner committed a misconduct in relation to his duties as
an arbitrator, or
(b)
the commissioner committed a gross irregularity in the conduct on the
arbitration proceedings,
or
(c)
the commissioner exceeded his powers, or
(d)
the award was improperly obtained.
There no suggestion that
the award was improperly obtained or that the commissioner committed
misconduct. The commissioner's
finding that Mr Macanda could
not read runs counter to Mr Macanda's own evidence, but is not
so material as to constitute
a gross irregularity. The
commissioner's finding that the company failed to prove on the
balance of probabilities that there
was no dismissal while Mr Macanda
has proved the contrary is an unfortunate choice of words, that the
commissioner is of the
view that Mr Macanda proved on a balance of
probabilities that he had been dismissed.
It is important to
appreciate that it was Mr Macanda's case that he was actually
dismissed by the managing director. It was
not his case that he
had been constructively dismissed. He, as the commissioner
found, did not initiate the letter of resignation.
It was a
document prepared by Vicky, the secretary, presumably at the instance
of the managing director. It was not a voluntary
resignation,
he had already been fired before he signed it.
The commissioner's
finding that Mr Macanda did not intend resigning is also
justifiable. Neither the managing director nor
Vicky
testified. Mr Macanda's version regarding the managing director
and what he said is set out clearly in the form LRA711.
The
company was therefore alerted to the issues and that they would
feature during the arbitration.
There are a few matters
such as the allegation that Mr Macanda was dismissed for
drunkenness, which are puzzling, but this
allegations appears to have
been raised at the conciliation meeting by the company's
representative. Her name has not been
recorded. She too
did not give evidence.
None of the other grounds
of review have any merit. Once the commissioner found that the
company had dismissed Mr Macanda
the company bore the onus of
proving that the dismissal was fair. This onus was not
acquitted.
In the result the
application to review the award is dismissed with costs.
---oOo---
PRESIDING
OFFICER
:
LANDMAN J
ON
BEHALF OF APPLICANT
:
ON
BEHALF OF RESPONDENT
:
[COMMENT1]
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