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[2008] ZALCJHB 29
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Evertrade v Kriel NO and Others (JR1054/07) [2008] ZALCJHB 29 (8 February 2008)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT JOHANNESBURG
CASE
NO: JR1054/07
In
the matter between:
EVERTRADE
Applicant
and
A
KRIEL
N.O.
First
Respondent
COMMISSION FOR
CONCILIATION, MEDIATION
AND
ARBITRATION
Second
Respondent
KIM
BOTES
Third
Respondent
JUDGMENT
1.
This matter is an unopposed review
application that was argued on 6 February 2008. Mr Snyman
who appeared for the applicant
referred me to the judgment of the
Labour Appeal Court in
Solid Doors (Pty)
Ltd v Commissioner Theron and Others
(2004) 25 ILJ 2337 (LAC), that I was not familiar with. I
accordingly undertook to read the judgment and to deliver a brief
judgment on 8 February 2008.
Facts
2.
Third respondent was employed by the
applicant as an Import and Distribution Clerk. On 16 February
2007 Mr Strike, the applicant’s
Managing Director ascertained
that the third respondent was conducting a business in opposition
with the applicant’s business.
He was clearly upset about
this and confronted the third respondent about this fact on that
day. The contents of the discussion
and more particularly
whether Mr Strike had dismissed the third respondent, are in dispute
and I shall revert to it. Be that
as it may, the third
respondent left her employment on that date and never returned.
3.
On 19 February 2007 the third respondent
referred a dispute relating to her alleged unfair dismissal to the
CCMA and served a copy
thereof on the applicant. Despite being
in receipt of this referral, the applicant addressed a letter dated
21 February 2007
to the third respondent, advising her that she was
absent without authority and calling on her to contact the applicant
to explain
her absence. On 27 February 2007 the applicant sent
a follow up letter to the third respondent.
4.
The third respondent testified at the
arbitration proceedings that these letters had only come to her
knowledge at the conciliation
meeting, when the applicant’s
representative enquired about them.
5.
I now turn to the disputed contents of the
meeting between Mr Strike and the third respondent on 16 January
2007. It is clear
that Mr Strike was upset, and rightfully so.
He had just received information that the third respondent had been
competing
with the applicant. It is common cause that he
confronted the third respondent. Mr Strike testified that he
informed
the Third Respondent that she had to ...
go
home for the day, see you on Monday…
The crux of the third respondent’s evidence was that Mr Strike
told her to …
clear out your
personal belongings and go home. And then I asked him if I can
work until the end of February or if I can work
some sort of period,
notice period, he said no he wants me to leave immediately.
6.
She then went home and phoned the CCMA in
order to open a case. First respondent found that.
The
version of the applicant is the most probable of what transpired in
this matter.
He found that she had been
dismissed. He found that the dismissal was procedurally unfair
and awarded the third respondent
compensation of one month’s
remuneration.
The
test on review:
7.
Mr Snyman contended that the
Solid
Doors
judgment (supra) had the
implication that:
7.1.
When an arbitrator had to rule on whether a
dismissal occurred or not, this constituted a jurisdictional fact.
7.2.
A court on review had to decide for itself
on an objective basis whether the jurisdictional fact in question was
present or not.
8.
The paragraph 29 of the Solid Doors
judgment bears this out.
[29]
Having established what the requirements are for a constructive
dismissal, it is
necessary to make the observation at this stage of
the judgment that the question whether the employee was
constructively dismissed
or not is a jurisdictional fact that - even
on review - must be established objectively. That is so because if
there was no constructive
dismissal - the CCMA would not have the
jurisdiction to arbitrate. A tribunal such as the CCMA cannot give
itself jurisdiction
by wrongly finding that a state of affairs
necessary to give it jurisdiction exists when such state of affairs
does not exist.
Accordingly, the enquiry is not really whether the
commissioner's finding that the employee was constructively dismissed
was unjustifiable.
The question in a case such as this one - even on
review - is simply whether or not the employee was constructively
dismissed.
If I find that he was constructively dismissed, it will be
necessary to consider other issues. However, if I find that he was
not
constructively dismissed, that will be the end of the matter and
the commissioner's award will stand to be reviewed and set aside.
9.
Mr Snyman correctly contended that the
third respondent had the onus to prove that she had indeed been
dismissed. Bearing
in mind the test, as set out in
Solid
Doors
, I now turn to the question as to
whether she had discharged that onus.
10.
I do not have the benefit of having
observed the witnesses when they were testifying. Accordingly I
am constrained to decide
the matter on …
the
absence of interest or bias, the inherent merits or demerits of the
testimony itself, any inconsistencies or contradictions,
corroboration, and all other relevant factors
.
S v Civa 1974 (3) SA 844 (T).
11.
Both witnesses had an interest in their
version being accepted. The requirement of
any
inconsistencies or contradictions
does
however favour the third respondent. She clearly left work with
the understanding that she had been dismissed.
She would not
otherwise have immediately phoned the CCMA in order to open a case.
There is no reason on the record to find
that she had referred the
dismissal dispute in order to “manufacture a case”
against the applicant.
12.
On the other hand, the letter dated 21
February 2007, addressed by the applicant to the third respondent,
certainly raises some
question marks. One would have expected
it to refer to the investigation into the unlawful competition and to
deal with the
allegation by the applicant in her referral form, that
she had been dismissed. The letter does not do so, and this
fact was
not satisfactorily explained by the applicant at the
arbitration proceedings. The other aspect that, in my view,
favours
the third respondent, is Mr Strike’s extreme reluctance
at the arbitration to respond to the question as to the status of
the
third respondent at the time of the arbitration.
Conclusion:
13.
In view of the aforegoing I find, as the
first respondent had done, that the applicant had been dismissed (and
that it had to follow
that such dismissal was procedurally unfair).
14.
Mr Snyman, in his heads, mounted quite an
attack on the decision of the first respondent to award compensation
equal to one month’s
remuneration. However, in my view
correctly, he did not pursue this point in argument.
In view of the
aforegoing, I make the following order:
The
application for review is dismissed.
_________________
NIEUWOUDT
AJ
DATE
OF HEARING:
6 February 2008
DATE
OF JUDGMENT:
8 February 2008
APPEARANCE
FOR
THE APPLICANT:
Mr Snyman
OF:
Snyman Attorneys