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[2009] ZALCD 13
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MCL Ukhozi Recruitment Services CC v Khan and Others (D269/08) [2009] ZALCD 13 (9 February 2009)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
CASE
NO: D269/08
In
the matter between:
MCL
UKHOZI RECRUITMENT SERVICES
CC APPLICANT
And
FAIZ
AHMED
KHAN FIRST
RESPONDENT
COMMISSION
FOR CONCLIATION,
MEDIATION
AND
ARBITRATION SECOND
RESPONDENT
COMMISSIONER
LESTER SULLIVAN THIRD
RESPONDENT
JUDGMENT
PILLAY
D, J
This
is an application to review and set aside the award of the third
respondent Commissioner. The issue before the
Commissioner was to determine whether the applicant employer
dismissed the first respondent employee or whether the employee
resigned.
The Commissioner found that the employer had
dismissed the employee.
A
material consideration was documentary evidence. There was an
email before the Commissioner in terms of which the employee
had
written to a third party about an area sales manager job. In
that email he also stated that he "will be without
a job from
the end of December". This email was sent on 2 November
2007. The altercation between the employee
and Mr Lembede for
the employer occurred on 14 December 2007, before the employee went
on leave. The employer alleged that
they were in a discussion
in which the employer was attempting to get a report from the
employee about his work, when the employee
became agitated and angry
and said that he could not work for an employer who did not trust
him. The employee walked out
of the meeting. Thereafter
Mr Lembede found him deleting data off his laptop which belonged to
the employer. Subsequently,
the employer found the email in which the
employee said that he would be without a job from December.
He
also found another email from the employee to a third party in which
he stated that he, the employee, was the owner of Rock Hustlers
Fishing Tackle. This email was sent on 6 August 2007. In this
email the employee was ordering goods for his business.
The
employee admitted that these emails belonged to him and that he was
aware of them.
The
Commissioner, however, paid no attention whatsoever to these emails.
They manifest a clear intention not to be employed
after December.
That was material corroboration of the employer’s version that
the employee did not intend to remain
employed with the employer.
In the circumstances the Commissioner ignored material evidence.
As such, he misdirected
himself.
The
application for review is
GRANTED
.
______________
Pillay
D, J
Date
heard and delivered: 9 February 2009
Edited:
2 April 2009
Appearances:
For
the Applicant: P.O. Jafta – Jafta
Inc
For
the Respondent: No Appearance (Unopposed)
IN THE LABOUR COURT
HELD
AT DURBAN
CASE
NO
:
D269/08
DATE
:
9 FEBRUARY 2009
MCL
INKOSI RECURITMENT SERVICES
versus
F
KHAN
BEFORE
THE HONOURABLE MS JUSTICE PILLAY
ON
BEHALF OF APPLICANT
:
MR JAFTA
ON
BEHALF OF RESPONDENT
:
NO APPEARANCE
INTERPRETER
:
NOT REQUIRED
REPORT ON
RECORDING
EXTREMELY POOR –
Mr Jafta was barely audible.