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[2010] ZALCCT 17
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Van Rooyen v Commission For Conciliation Mediation And Arbitration and Others (C593/2007) [2010] ZALCCT 17 (26 March 2010)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN CAPE TOWN
NOT
REPORTABLE
CASE
NO: C593/2007
IN
THE MATTER BETWEEN:
ADOLF
VAN
ROOYEN APPLICANT
AND
COMMISSION
FOR CONCILIATION
MEDIATION AND
ARBITRATION 1
ST
RESPONDENT
COMMISSIONER
RUGGIERO
NO 2
ND
RESPONDENT
DENEPET
(PTY) T/A LELIEFONTEIN
BOARDING
KENNELS 3
RD
RESPONDENT
JUDGEMENT
CHEADLE
HJ
INTRODUCTION
[1]
This is an application to review the award
issued by the 2
nd
Respondent (the commissioner) to the effect that his employer, the
3
rd
Respondent (the employer), did not terminate his employment and
accordingly his termination did not constitute a dismissal for
the
purposes of Chapter X of the LRA.
[2]
The Applicant commenced employment in 1997
as a general worker. He resides on the premises with his wife and
children. His version
is that on 7 July 2007 he had a fight with his
stepson in which he sustained a panga wound to his leg. He says that
he raised this
with his employer and asked for two days leave in
order to sort out his problems. After signing what he thought was an
application
for leave, he took two days leave. His wife was told
later that day that he had resigned and cancelled the lease.
[3]
The employer’s version was that he
said he wanted to leave his wife, resign from his job and go and live
with his sister.
He insisted on resigning despite being asked whether
he was sure that he wanted to do this. He insisted and, signed a
resignation
letter and, a letter cancelling the lease and collected
his UIF Card and his will, which had been held in the safe at the
office.
He returned two days later and asked for his job back but was
refused because he had left them at a peak period of their business.
[4]
The Applicant referred a dispute to the
CCMA and on 21 September 2007 the arbitration was held. The Applicant
and his wife gave
evidence on his behalf. Mr Fourie, a director of
the 3
rd
Respondent, his wife and a Ms Coetzee, an employee, gave evidence on
behalf of the, employer. The applicant was represented by
a union
official, a Mr Tuddie, and Mr Fourie represented the 3
rd
Respondent.
[5]
After summarising the evidence, the
commissioner concluded on the balance of probabilities ‘the
Applicant came into the office
after a fight with his stepson and
said that he wanted to resign and that he was going to leave his wife
and move in with his sister’
and accordingly that the Applicant
‘failed to prove on the balance of probabilities that a
dismissal took place’.
[6]
The Applicant then launched a review of the
award under section 145 of the LRA on 23 November 2007. The employer
opposed the application.
After the record was filed by the 1
st
Respondent, the Applicant stood by its notice of motion.
[7]
The opposed application was set down for 3
December 2008 when the matter was
postponed sine die to enable the Applicant to obtain a pro bono
attorney and for the matter to
be set down in the second term of
2009. On 17 November 2009, the employer applied to have the
application to review dismissed on
grounds that the Applicant had
failed to prosecute his claim. That application was set down for
hearing on 17
February
2010. At that hearing, it was agreed between the parties that the
application be postponed to 17 March 2010 and that the
review
application be enrolled on the same day with costs to stand over. The
Applicant filed an opposing affidavit on 16 March
2007, the day
before the hearing.
[8]
On the same day, the Applicant filed an
application for an order ‘condoning for the outstanding issue
of obtaining and appointing
a pro bono attorney to comply with the
order made by the Honourable Justice Francis on 3 December 2008’.
This application
was supported by an affidavit of a Michael Jacobs
who states that he is the Applicant’s representative and
advisor. According
to the official the Applicant secured the services
of a pro bono attorney in December 2008. Nothing was done until the
employer
launched its application to have the review application
dismissed in November 2009, a year later. The affidavit then details
the
attempts to contact the attorney and the attorney’s
subsequent decision not to represent the Applicant. The application
and
affidavit was only served on the employer at the hearing on 17
March.
[9]
The object of the ‘condonation
application’ was to secure another postponement. It was
refused. This matter has dragged
on for over two years. The Applicant
was given ample opportunity to secure legal representation since the
order given by Francis
J in December 2008. He secured that
representation as early as December 2008. He did nothing to prosecute
his application to review
until the employer initiated its
application to have the review dismissed on 17
November 2009. The Applicant knew on
17
February
2010 that the matter was enrolled for the hearing on 17
March.
Grounds
of review
[10]
There are three applications before me. The
first is the Applicant’s application to review. The second is
the employer’s
application to have that application dismissed
on grounds that the Applicant has failed to prosecute it timeously.
The third is
an application to have the commissioner’s award
made an order of court. Since I was not addressed on the second and
third
applications at the hearing and the Applicant was accordingly
not given an opportunity to respond in argument to these
applications,
no order has been made in respect of them.
[11]
The Applicant’s grounds of review are
contained in the handwritten notes attached as part of his founding
affidavit. They
can be summarised as follows:
11.1
The commissioner’s failure to take
into account the fact that Mr Fourie lied under oath;
11.2
The commissioner’s failure to take
into account that Ms Coetzee, an employee witness corroborated the
evidence given by the
Applicant and his wife that Mr Fourie stated
that he had dismissed the Applicant;
11.3
The finding that the employer did not have
any devious intent to get rid of the Applicant in view of the above
and his testimony
that the employer wanted the Applicant and his
family off the farm;
11.4
The failure to take proper account of his
illiteracy;
11.5
The failure to take proper account of the
fact that the employer’s version is so illogical that it cannot
be a probable version.
[11]
There are two bundles of paginated documents. The pleading bundle is
referred to bellow as P followed by the page number and
the paragraph
number if there is one. The bundle containing the record is referred
to as R also followed by the page number and
the number of the
paragraph number if numbered.
The
first ground of review
[12]
The first ground of review is the commissioner’s failure to
take into account the fact that Mr Fourie lied under oath.
Mrs Van
Rooyen, the Applicant’s wife, stated in her evidence that Mr
Fourie had said the following: ‘…Adolf
ek is jammer ek
het you bedank maar ek kan nie anderste nie die saak is alreeds
oorgegee ons moet uitbaklei…’ (R41.13).
The Applicant
anchors this discussion on the Tuesday the 9
th
of July
(when on his version he returned from leave) in which case there was
no referral to the CCMA. In paragraph 27 of his award
the
commissioner records Mrs Van Rooyen’s testimony to that effect.
But later Mr Fourie anchors this discussion after he
returns from
holiday during which he received service of the referral of the
dispute to the CCMA, namely on the 7
th
of August
(R45.1-3). Although Mrs Van Rooyen is not asked to respond to this
statement, she is aware of the version – R41.4-7.
[13]
It is also evident from her testimony that she is phoned while
visiting a prison by Mrs Fourie and asked to come in and discuss
the
matter. She goes on to state that she does not go in but that the
next morning both of them go and listen but do not give an
answer.
Although this conversation is discussed in the context of the
conversation on Tuesday the 9
th
of July, it quite clear
from Mrs Van Rooyen’s testimony that there is another
conversation after the dispute had been referred
to the CCMA.
Although the commissioner does not deal with it specifically, it is
apparent from the record that there were two conversations
at
different dates. Neither Mrs Fourie nor Mr Fourie was cross examined
on the matter. The Applicant notes in his affidavit that
his trade
union representative did not properly present his case but that
failure cannot be laid at the door of the commissioner.
There is no
substance to this ground of review.
The
second ground of review
[14]
The second ground is the commissioner’s failure to take into
account that Ms Coetzee corroborated the evidence of the
Applicant
and his wife that Mr Fourie said that he had dismissed the Applicant.
He appears to refer to her testimony at R91.11-15
in which she says:
‘...op die ou end is hy gevra om of hy wil bedank’. When
cross examined over this statement, she
equivocated claiming not to
remember precisely what she said. The Applicant claims that this
equivocation is a result of Mr Fourie’s
signalling to the
witness his disapproval leading the commissioner to reprimand him –
P8.
[15]
There is no record of such a reprimand during Ms Coetzee’s
testimony. The only reference is to an objection raised by
the Mr
Tuddies that Mr Fourie was shaking his head during the testimony of
Mrs Fourie – R79.6-16. It is also important to
note that Mr
Fourie responded to the objection stating that he has a disability
which was noted by the commissioner. Moreover,
Mrs Fourie did ask the
Applicant if he wanted to resign. The only difference between Ms
Coetzee’s initial statement and Mrs
Fourie’s testimony is
when the question was asked. In any event the commissioner took
account of the vague nature of Ms Coetzee’s
testimony in his
analysis – P24.60.
[16]
There is accordingly no substance to the second ground of review.
Third
ground of review
[17]
The Applicant contends that the commissioner’s finding that the
employer was not devious is inconsistent with the evidence
before
him. That evidence is that Mr Fourie lied (the first ground), Mr
Fourie interfered with a witness (part of the second ground)
and that
Mr Fourie wanted to have him and his family removed from the farm. I
have found the first two grounds to be unsubstantiated.
In so far as
the third piece of evidence is concerned, the Applicant did not lead
any evidence of the employer’s intention
to rid himself of the
Applicant and his family. There is accordingly no substance to this
ground of review.
Fourth
ground of review
[18]
The Applicant states that the commissioner failed to take proper
account of his illiteracy. In the commissioner reasons
for the award,
he states that the ‘extent of his illiteracy would not prevent
him from distinguishing between a formal leave
application form which
is a full A4 page, compared to the letter of resignation which is
only a few lines’ and that the Applicant
signed other forms
namely a UIF form and his testimonial – P25.62.
[19]
It is clear from his reasoning that he does not rely on the
employee’s illiteracy so much (although there was testimony
that he was not completely illiterate) as relying on what the
documents looked like and more particularly the fact that he signed
several documents when an application for leave would only have
required the signature of one document. It should also be borne
in
mind that the commissioner accepted Mrs Fourie’s testimony,
corroborated by Ms Coetzee, that the resignation letter was
read out
to him before he signed it.
[20]
There is accordingly no basis for a challenge on this ground.
Fifth
ground of review
[21]
The Applicant argues that the employer’s version is so
illogical that the commissioner should have found it improbable
on
its own terms. But the fact that it was an irrational decision does
not make it improbable. Indeed there is a logic linking
the injury
caused by his stepson, leaving his wife and his work and moving in
with his sister. The circumstances of the assault
make such an
irrational response quite probable. Moreover, the commissioner deals
with the irrationality – he states that
he may have come to a
different conclusion had the Applicant stated that he had resigned in
anger and that it would have been unfair
for the 3
rd
Respondent to have accepted his resignation in those circumstances –
P25.64. But that was not the case that the Applicant
advanced.
[22]
Although the employer has been successful in opposing the Application
to review the commissioner’s award, a costs order
against
employees may have chilling effect on employees’ access to
courts. I accordingly decline to make an order as to costs.
[23]
The Application to review is dismissed with no order as to costs.
_______________
CHEADLE AJ
Date
of Hearing :
17/03/2010
Date
of Judgment : 26/03/2010
Appearances
For
the Applicant
: Mr Van Rooyen in person
For
the Respondent
:
Adv J Rysbergen
Instructed
by
: Byron Nicholas