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[2010] ZALCCT 11
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Lesolo v Petro South Africa Ltd (C204/2009) [2010] ZALCCT 11 (23 February 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
(HELD
AT CAPE TOWN)
CASE
NO: C204/2009
DATE:
23 FEBRUARY 2010
In the matter between:
LERATO
LESOLO
APPLICANT
and
PETRO
SOUTH AFRICA
LTD
RESPONDENT
J U
D G M E N T
CHEADLE,
AJ
:
[1]
This matter started out life as a statement of claim for the
reinstatement of the applicant and compensation based on allegations
to the effect that he had been charged for misconduct that was both
substantively unfair and procedurally unfair.
[2]
One element of the statement of claim was to the effect that in order
to get rid of the applicant, the respondent employer had
offered the
applicant a salary package on condition that the applicant resigns
from the respondent’s employ. Then, in his
description of the
legal issues arising from the facts set out in his statement of claim
in Bundle A pages 19 and onwards, it is
stated there that the
dismissal was substantively and procedurally unfair because no fair
reasons relating to conduct were given
and there was a failure to
adhere to the principle of
audi alteram
partem
(15.1). Furthermore, he
claims that the dismissal was automatically unfair in terms of
section 187(1)(c) and (1)(d) in that
the respondent dismissed him for
initiating an investigation against the chief financial officer; for
approving the National Intelligence
Agency to conduct a sweep at the
company’s offices; and for having rejected the voluntary salary
package offered to him by
the respondent. He also claims that he was
dismissed for exercising his rights under the LRA in contravention of
section 5(1) of
that Act.
[3]
Accordingly, there are two aspects of section 187 that are at play.
The first is the automatically unfair dismissal for
compelling an
employee to accept a demand in respect of any matter of mutual
interest between the employer and employee (187(1)(c));
and 187(1)(d)
that the employee took action or indicated an intention to take
action against the employer by exercising any right
conferred by this
Act. The same applies in respect of section 5(1).
[4]
The respondent denies that the dismissal was unfair insofar as it was
based on the applicant’s conduct and denies both
factually and
legally that what has transpired is an automatically unfair dismissal
under section 187(1)(c).
[5]
In the pre-trial minute the parties agreed at Bundle A94 paragraph
4.1:
“
The
parties agreed that as a means of shortening the proceedings as a
matter of convenience and hope of saving unnecessary costs
and waste
of time that the Court will be required to determine as an initial
issue and before any other issues in dispute, whether
or not the
dismissal of the applicant was such that he is entitled to claim that
the dismissal was automatically unfair in terms
of 187(1) of the
Labour Relations Act.
…
Should
the applicant succeed in the initial issue the only remaining
question will be one of
quantum
and should the respondent be successful in the initial issue that
will bring an end to these proceedings in this Court and this
Court
having no jurisdiction to determine the dispute since it is required
to be referred to arbitration under the auspices of
the Bargaining
Council in section 191(5) of the Act”.
[6]
I requested argument yesterday on whether or not the facts as pleaded
gave rise to an automatically unfair dismissal as contemplated
in
section 187(1)(c) and (d). Insofar as 187(1)(d) is concerned, the
allegations made at page 20 of Bundle A are that the respondent
dismissed the applicant for initiating an investigation and approving
a sweep by the National Intelligence Agency. This the applicant
argued constituted a contravention of section 5(1) and an
automatically unfair dismissal for exercising a right conferred by
the
LRA.
[7]
Neither of those are actions constitute a right conferred by the
Labour Relations Act. They may be rights and duties imposed
by the
contract but they are not rights that are conferred on the applicant
by the Labour Relations Act and that is why I made
the ruling that I
did this morning.
[8]
Insofar as 187(1)(c) is concerned and the allegation that he was
dismissed for having rejected a voluntary salary package offered
to
him by the respondent as it is pleaded, I was troubled as to whether
or not it fell within the ambit of section 187(1)(c), but
given the
fact that the parties had themselves specifically reserved these as
facts in dispute to be determined by the Court (page
91 paragraph
3.4) I decided that I would hear evidence on that limited issue.
Much of the evidence, however, went much wider
than was necessary.
[9]
Very briefly, the background of this matter is that the applicant was
the chief compliance officer of the respondent. As
such he
received complaints, initiated investigations, prepared reports and
the like. He received whistle-blower reports
concerning the
chief financial officer in September 2007 and in December 2007
supplied those reports to the chief executive officer.
[10]
In April 2008 there was a whistle-blower report in respect of the
chief executive officer himself. Then in April(according
to the
applicant) or May (according to the the chief executive officer Mr
Lukiso who gave evidence), the applicant was given a
proposed
settlement agreement, which is Annexure M in Bundle B at page 177.
The proposed agreement was drafted by Edward
Nathan Sonnenberg and
provides that the company and the employee agree to sever their
employment relationship by mutual agreement
on various terms which
involve the payment of a lump sum of three months’ salary and
all the other payments that follow up
termination. It also
deals with tax liability, the medical aid and retirement fund, all
issues that are typically associated
with termination and also a
confidentiality clause which recorded that the terms and conditions
of the agreement be kept confidential.
[11]
It is common cause that he was given that settlement agreement by the
chief executive officer and that two or three days later
the
applicant returned and refused to enter into the agreement. In
September charges were brought against him and these charges
were
based on a report prepared by Edward Nathan Sonnenberg instructed by
the chief executive officer through Mr Tobias, the chief
legal
officer, to investigate first of all the manner in which the
investigations had been conducted by the applicant; whether
or not
there were breaches of the policy dealing with fraud and compliance;
and thirdly the charges against the CFO himself.
As a result of
that charges were brought against the applicant and in December,
after several hearings, the applicant was dismissed.
[12]
Without having to deal with the probabilities as between the two
contrary versions, just on the applicant’s case alone
this is
what the applicant’s case is. Applicant’s case is
that investigations were initiated against the chief
financial
officer and that this led to some disharmony between the applicant
and the chief executive officer. During the
relevant times
there was also a whistle-blower report against the chief executive
officer and as a result of these investigations
the chief executive
officer tried to get rid of him by offering him a settlement
agreement in the hope that he would then leave
without any dispute.
When the applicant refused to agree to the settlement charges were
trumped up to get rid of him on other grounds
and it is on that basis
that he was dismissed.
[13]
Insofar as the refusal of the agreement is concerned, he states that
there were several reasons, the first is that he did not
know why the
settlement agreement was being given to him; he did not know the
reasons for why it was necessary for him to leave;
the contents of
many of the provisions in the terms and conditions were ridiculous
and particularly the confidentiality requirement
and also that it had
been unilaterally drawn up by the respondent’s attorneys.
[14]
The second important statement for the applicant is that the chief
executive officer allegedly said “you are going to
regret it
I’m going to fire you” and this is in April 2008. He is
then charged five months later after a refusal to
sign.
Importantly the applicant states that at the time of the charges, the
settlement agreement was no longer open for acceptance.
After
being put the same question several times he stated under
cross-examination that by the time the charges were brought against
him and he was dismissed, the settlement agreement was history.
[15]
Now if we look at section 187(1)(c) one sees that the structure of
the provision is such that the reason for the dismissal
must be to
compel the employee to accept a demand in respect of any matter of
mutual interest. To translate that in the context
of these
facts, the applicant has to demonstrate that the reason for dismissal
in December was to compel him to accept a demand,
namely to agree to
the contents of the settlement agreement, handed to him and refused
by him in April 2008.
[16]
There is no evidence of compulsion and that is what section 187(1)(c)
requires. It may well be that his refusal to accept
the
settlement agreement may have triggered the charges, which on the
applicant’s version are “trumped up”, but
that does
not mean that the charges were brought in order to compel him to
accept the terms contained in the settlement agreement.
[17]
The applicant was given what was called a “settlement offer”,
he responded to that offer by refusing it and it
was only several
months later that he was charged and several months after that that
he was dismissed. On his own version
that at the time of the
charges and at the time of the dismissal the offer was no longer open
for acceptance. That means
that the dismissal in December 2008
could not have as its objective to compel the applicant to accept the
settlement agreement
that he had refused several months beforehand.
[18]
When one looks at the decision in the Labour Appeal Court in
Fryer’s
Metals
the interpretation of section
187(1)(c) supported by the Supreme Court of Appeal is that the
dismissal has to be a conditional
dismissal. In other words it’s
a dismissal that will be withdrawn if the employee accepted the new
terms or the demanded
terms.
[19]
It is quite clear from the facts of this particular matter, even on
the applicant’s version, that the dismissal in December
2008
was not conditional and accordingly it is not the kind of dismissal
that is contemplated by section 187(1)(c). It follows
then that even
on the applicant’s version he has failed to demonstrate that he
was dismissed in December 2008 to accept a
settlement agreement in
April 2008.
[20]
Returning to the pre-trial minute it says that the Court has to
determine as an initial issue whether or not the dismissal
of the
applicant was entitled to claim automatically unfair in terms of
section 187(1) and I now find that it was not automatically
unfair,
that is my determination. It then goes on to say “should
the respondent be successful in the initial issue
that will bring an
end to the proceedings in this court, this Court having no
jurisdiction to deal with the other allegations which
are
conduct-related allegations”.
[21]
I raised a concern as to the purport of paragraph 4.2of the minute,
which states “once the initial issue has been determined,
the
Court will be required to determine in addition whether or not the
respondent acted in contravention of Schedule 8(2)(a) and
(c) to the
Act, Code of Good Practice, which appears to deal with probation. I
was advised by the legal representatives of the
parties that that 4.2
should be struck from the pre-trial minute and that there is nothing
further for the Court to determine other
than the issue of costs.
[22]
Accordingly, the limited issue that I was required to determine is
dismissed and it is quite important to understand in that
respect
that all the other allegations in relation to the conduct and all of
that still remains in dispute and has not been determined
by this
Court. That is also why I have refrained from dealing with the
probabilities of the contending version in the evidence
led before
this Court because these factual disputes should more properly be
decided before an arbitrator.
[23]
On the very limited issue as to whether or not the conduct alleged in
the statement of claim amounts to an automatically
unfair dismissal
that part is dismissed, with costs.
CHEADLE,
AJ