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[2004] ZALCJHB 3
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Ideal Patternmakers And Tooling (Pty) Ltd v Metal And Engineering Industries and Others (JR633/02) [2004] ZALCJHB 3 (13 February 2004)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO. JR633/02
In
the matter between:
IDEAL
PATTERNMAKERS AND TOOLING (PTY) LIMITED
Applicant
and
METAL
AND ENGINEERING INDUSTRIES
BARGAINING
COUNCIL First
Respondent
S
E KOEKEMOER
N.O. Second
Respondent
MICHAEL
J DE
WEIJER Third
Respondent
JUDGMENT
NDLOVU
AJ
Introduction
[1]
The second respondent, in his capacity as conciliator under the
auspices of the first respondent (“the bargaining council”)
issued a ruling on 3 April 2002 under reference number 02-01-168
(“the Ruling”) whereby the second respondent ruled
that
the bargaining council had the jurisdiction to conciliate the dispute
between the third respondent (“the employee”)
and the
applicant, his alleged erstwhile employer (“the employer”).
It was against this ruling that the
employer sought an order to have
it reviewed and set aside.
Factual
Background
[2]
The employee commenced his employment with the employer on 1 January
1999 as its financial manager. His father was a partner
in the
employer’s business. It would appear the employee’s
father at some point had problems with other shareholders
including a
Mr Hugo O’Doherty who was the major shareholder. The
employer believed that the employee was the root cause
of the
problem. Certain meetings were convened and discussions held
with a view to resolving the impasse. On 2 April
2001 a meeting
was called at which the employer suggested that the employee should
resign which the employer thought could ameliorate
the situation.
However, the employee resisted this suggestion. The employee
submitted that during the same meeting,
which he had tape-recorded,
O’Doherty had proceeded and terminated his services after he
(the employee) had refused to resign.
The employee
further averred that the portion of the conversation at which
O’Doherty would have been heard (on the tape)
dismissing him
from work was unfortunately not tape-recorded because the battery of
the tape-recorder had gone flat.
He claimed that his
dismissal as such (on 2 April 2001) was unfair. He further
alleged that O’Doherty had employed
a Mr Willie Jansen as his
replacement. O’Doherty denied the alleged dismissal and
the alleged employment of Jansen
as the employee’s replacement.
[3]
On 26 April 2001 the employee referred his dispute to the bargaining
council for conciliation. The conciliation process
failed and
the matter was referred to the CCMA for arbitration, which was
subsequently conducted on 29 November 2001. At
the commencement
of the arbitration proceedings the employee’s legal
representative Advocate Geldenhuys submitted that the
employee’s
dispute was based on an alleged unfair dismissal by the employer in
the manner as contemplated in section 186(a)
of the the Labour
Relations Act 66 of 1995 (“the LRA”), alternatively, an
alleged constructive dismissal as envisaged
in section 186(e).
The employer objected to the employee’s claim which it
submitted was premised on two grounds
which were mutually
destructive. As a result of the objection, the employee decided
not to proceed with the dispute on the
basis of alleged constructive
dismissal and proceeded with the allegation that his dismissal was
substantively and procedurally
unfair as envisaged in section 186(a)
of the LRA.
[4]
After due consideration of the arbitration on the merits, the CCMA
Commissioner, Mapale Tsatsimpe, issued the award under Case
No.
GA11260-01 on 12 December 2001 whereby the employee’s claim was
dismissed on the ground that the employee had failed
to prove that he
was dismissed, as required of him to have done in terms of section
192(1). As a result, it was not necessary
for the arbitrator to
determine the fairness aspect of the alleged dismissal.
This then marked the end of the employee’s
claim of his alleged
unfair dismissal on 2 April 2001.
[5]
Since 2 April 2001 the employee did not return to work for the
purpose of tendering his services. According to him, when
he
returned on the following day (i.e. 3 April 2001) it was only to
effect a smooth handing over to Jansen. Indeed, even
after the
CCMA’s arbitration award of 12 December 2001 the employee still
did not return to work. Instead, on
27 December 2001 he
wrote a letter, which he delivered to the employer on 2 January 2002
whereby he tendered his resignation.
The letter read as
follows:
“
Re:
MYSELF/YOURSELF - EMPLOYMENT CONTRACT
I refer to the above
matter and wish to inform you that it has come to my notice that the
arbitrator of the CCMA, Mrs M Tsatsimpe,
has ruled in her award dated
12 December 2001 that I have not been dismissed on 2 April 2001.
That leaves me still
in the employ of yourself.
I hereby resign as
employee of your services and shall be pleased if you can acknowledge
receipt of this letter in the space provided
for below”.
[6]
On 23 January 2002 the employee referred the dispute of alleged
constructive dismissal to the bargaining council for
conciliation, on the ground that the employer had rendered his
continued employment intolerable, hence his resignation on 27
December
2001. He contended that in the light of the
Commissioner’s award (which determined that he was not
dismissed)
he was still employed by the employer. He further
pointed out that the employer retained him as a member of its group
life
assurance and provident fund schemes, a fact which appeared in
his “member investment summary” dated 31 December 2001.
He also alleged that since his letter of resignation was delivered to
the employer on 2 January 2002 then he reckoned this date
as the date
of his constructive dismissal and, therefore, the date when the
dispute arose.
The
Parties’ Contentions
[7]
At the commencement of the conciliation meeting the employer
submitted that the bargaining council had no jurisdiction to
entertain
the dispute since the matter was a res judicata, in that it
had been finally decided by the CCMA on 12 December 2001 under Case
No. GA11260-01. The employer further contended that the dispute
did not arise on 2 January 2002 as alleged by the employee
but that
it arose on 2 April 2001. On that basis, the employer
submitted, in the alternative, that the bargaining council
lacked
jurisdiction by virtue of the fact that the referral was made out of
time and no application for condonation was made by
the employee and
granted by the bargaining council.
[8]
On the other hand, the employee submitted that the dispute which was
determined by the CCMA on 12 December 2001 related to an
alleged
unfair dismissal under section 186(a) of the LRA, which had allegedly
taken place on 2 April 2001, whereas the dispute
which he referred on
23 January 2002 related to his alleged constructive dismissal, in
terms of section 186(e), which he alleged
took place on 2 January
2002. In his submission, therefore, his referral of 23
January 2002 related to a new and separate
dispute which he had made
timeously.
Analysis and
Assessment of the Application
[9]
The employer’s termination of the employment contract as
envisaged in section 186(a) is, in my view, distinguished from
the
employee’s termination of the employment contract as
contemplated in section 186(e). The former relates to
a
dismissal of the employee by the employer, but which is not
necessarily unfair. For the employee’s claim to succeed
the onus is on the employer to prove that the dismissal was fair
(section 192(2)). The latter dismissal relates to
the
scenario where the employer has made the employment conditions so bad
that the employee’s continued employment is rendered
intolerable, thus justifying his/her resignation. This is
termed a constructive dismissal, which is ipso facto unfair. The
two types of dismissals cannot, in my view, be claimed either jointly
or alternatively, arising from the same set of alleged facts.
[10]
It was therefore proper, in my view, for the CCMA (on 29 November
2001) to have allowed the employee to proceed with his claim
only on
the basis of either it be an alleged “direct” dismissal
(in terms of section 186(a)) or an alleged constructive
dismissal (in
terms of section 186(e)) but not both. The employee had to make
a choice, which he, indeed, made and proceeded
with the claim of
“direct” unfair dismissal. By making this election
he thereby abandoned his claim for constructive
dismissal. At
that stage the dispute between the parties became a res judicata and
the bargaining council became functus
officio in terms of its dealing
with the matter again.
[11]
However, according to the employee, his current dispute was not the
same dispute which was finalised by the CCMA on 12 December
2001, but
a new one which he referred on 23 January 2002 based on the new
dispute which arose on 2 January 2002. As stated
already, the
employer raised an objection in limine that the bargaining council
lacked jurisdiction to deal with the matter.
In his ruling the
second respondent concluded as follows:
“
Decision
The employer persisted
that it did not dismiss the employee. The employer did not
terminate the contract when the employee
failed to render his
services. It follows that the contract was still intact when
the employee resigned on the 27 December
2001, which is the date of
termination of employment. This is not a case where it can be
inferred from the facts that both
parties have agreed by implication
that the employment contract had terminated, or that non-performance
by both parties in terms
of the contract terminated the contract.
The only issue dealt with and decided by the arbitrator was whether
the employer
had dismissed the employee. This was prior to 27
December 2001.
The Council has
jurisdiction to entertain the matter”.
[12]
It was common cause that since 2 April 2001 the employee never
returned to work to tender his services. Despite the
Commissioner having determined that the employee was not
dismissed, the employee continued staying away from work. The
second respondent found that the employee’s perpetual absence
from work after 2 April 2001 had, nonetheless, not resulted
in the
termination of the employment contract. In my view, however,
the second respondent failed to consider properly the
validity of the
employer’s defence of res judicata. As I indicated above,
the claim of unfair dismissal cannot validly
be made both under
section 186(a) and 186(e), even in the alternative, for the reason
already stated. Therefore, once the
employee elected to refer
his dispute under section 186(a) he thereby waived his right to claim
for alleged constructive dismissal
based on the same set of alleged
facts. His purported resignation on 27 December 2001 was, in my
view, simply a non-event.
A constructive dismissal can only
arise as a result of the employer having “made continued
employment intolerable for the
employee”. Since the
employee was last at work on 2 April 2001 it followed that the
employer’s alleged conduct
which rendered the employee’s
continued employment intolerable could only have occurred or been
committed by the employer
before and up to 2 April 2001, which period
fell within the ambit of the first dispute in respect whereof the
employee made the
election not to proceed on the basis of
constructive dismissal. Only if the employee actually returned
to work and resumed
duties (after the Commissioner’s decision
of 27 December 2001) would he have had a valid claim of constructive
dismissal
on the basis of the employer’s alleged wrongful
conduct after his date of resumption of duty.
[13]
Therefore, although the employee purported to rely on his “letter
of resignation” dated 27 December 2001 as the
basis of his
claim for constructive dismissal, the second respondent ought not to
have simplistically and naively accepted
this contention, in
the light of the material and information that was presented before
him. He ought to have realised
and, indeed, concluded
that the current claim of constructive dismissal was, in reality,
still founded on the alleged events and
the employer’s alleged
wrongful conduct which occurred prior and up to 2 April 2001 when
the employee finally left the employer’s
workplace, these being
matters which constituted a dispute that was finally decided by the
CCMA on 12 December 2001. In
my view, the second
Respondent’s failure of judgment in this regard constituted a
material misdirection and gross irregularity
on his part, warranting
the Ruling to be set aside.
[14]
In my conclusion, the dispute between the employee and the employer
was finally determined by the CCMA Commissioner in terms
of the
arbitration award issued on 12 December 2001 under case number
GA11260-01. The matter was accordingly a res
judicata and
the bargaining council lacked the jurisdiction to deal with it.
Order
[15]
Accordingly, I make the following order:
1)
The decision issued by the second respondent on 3 April 2002
under
reference number 02-01-168 whereby he ruled that the bargaining
council had jurisdiction to conciliate the dispute between
the
applicant (the employer) and the third respondent (the employee) is
hereby reviewed and set aside and is substituted with the
following
order:
“
The bargaining
council has no jurisdiction to entertain the dispute”.
2)
There is no order as to costs.
______________
NDLOVU,
AJ
Appearances:
For
the Applicant
:
Mr F Wilke
Instructed
by
:
A J Oberlechner Attorney
Sandton
Johannesburg
For
the Third Respondent
:
Mr I G Geldenhuys
Instructed
by
:
Du Plessis De Heus &Van Wyk
Benoni
Date
of Judgment
:
13 February 2004