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[2011] ZALCJHB 140
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Fachin v Age Technologies Johannesburg (Pty) Ltd and Others (JR 891/08) [2011] ZALCJHB 140 (28 February 2011)
Not reportable
Delivered
280211
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD IN BRAAMFONTEIN
CASE NO: JR 891/08
In
the matter between:
RICCARDO
FACHIN
..............................................................................
APPLICANT
and
AGE
TECHNOLOGIES JOHANNESBURG
(PTY)
LTD
....................................................................................
1
ST
RESPONDENT
THE
COMMISSION FOR CONCILIATION
MEDIATION
AND ARBITRATION
.......................................................................
2
ND
RESPONDENT
RAFFEE N.O.
..............................................................................
3
RD
RESPONDENT
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
This is an application to review and set aside an arbitration award
made by the third respondent, to whom I shall refer as ‘the
commissioner’. The arbitration proceedings were convened
following on the referral of an unfair dismissal dispute to the
CCMA,
in which the applicant claimed that his dismissal was substantively
and procedurally unfair.
The
arbitration proceedings
[2]
The evidence at the arbitration hearing disclosed a material dispute
of fact between the parties. It was common cause that the
applicant
commenced employment with the first respondent in June 2005 as a
senior project engineer and that his employment terminated
on 7
December 2007, after a meeting between the applicant and a director
of the respondent, Jackson, on 6 December. The applicant's
version of
the meeting is, in essence, that Jackson required his immediate
resignation, in return for which he made an offer to
pay him of R80
000; R60 000 payable immediately and R20 000 a month later. The
applicant asked Jackson to put the offer in writing
on a letterhead,
which Jackson declined to do. Jackson then told the applicant and
that he should take the rest of the day off,
removed the applicant’s
laptop and told him to go home.
[3]
It is not disputed that on 7 December 2007, the applicant sent the
respondent the following e-mail at 8:38 am
Hi
Norman
Resignation
Please note that I would be
in the office between 1200 and 1300 to hand in my resignation, as per
your request in our meeting yesterday
morning.
I
will also be collecting my personal belongings and handling my
expense claims, as well as making a copy of the personal files
on my
laptop.
Have a good working with
reviews and see you later.
kind
regards.
Riccardo Fachin
[4] It is also not disputed
that after receipt of the email, Jackson, paid R60 000 into the
applicant's bank account. Later the
same day, the applicant submitted
his letter of resignation, which reads
inter
alia
as
follows:
Dear
Sir
Re: Letter of Resignation
I refer to our
conversation on the 6 December 2007 where you called me in and
stated that you required by resignation with the
immediate effect..
You indicated that you do not have any reason for requesting the
termination of my services other than stating
that the “relationship
is not working”. You stated further that if I tendered my
resignation with immediate effect
you would pay me R80 000 to resign
because this was “the money that you would have to spend on
legal services". If
I were to refer the matter to the CCMA as
an unfair labour practice and you stated that you would “rather
give me the money"
…
5. I have taken the
precaution of obtaining legal advice on the position regarding your
conduct towards me and have been advised
that you had committed an
unfair labour practice in terminating my services with the company
salary and with immediate effect.
My resignation is the full tendered
herewith as requested by yourself under protest due to extreme duress
that you have placed
on me to do so.
6. I
have also taken cognizance of the fact that you have transferred the
amount of R60 000 to my account this morning prior to
my tendering my
letter of resignation which monies I shall retain as partial
settlement in lieu of compensation equivalent to 12
months
remuneration which I am entitled to under the circumstances, in law,
due to your unlawful conduct.
7.
Simultaneously with my letter of resignation I am also serving on you
details of the dispute concerning the unilateral termination
of my
services, to the CCMA( LRA form 7.11) in terms of which you will see
that I seek compensation equivalent to 12 months of
remuneration
(i.e. the sum of R420 000.)
[5]
Jackson's version of the meeting was that after a review of the
performance of all employees and after some unhappiness on the
part
of the first respondent’s management with the applicant's work
performance, the applicant was called to a meeting with
Jackson.
Jackson had a mandate to try and reach an agreement with the
applicant on the terms on which his employment might terminate
- the
first respondent was willing to negotiate a settlement in terms of
which the applicant would agree voluntarily to submit
his
resignation, in return for payment of an agreed sum. After some
negotiation, Jackson and the applicant agreed on a figure of
R80 000,
payable on the basis that R60 000 would be immediately payable, and
the balance in a month. It was further agreed that
the agreement
would be confidential, and that the first respondent would give the
applicant a good reference, and that the agreement
was in full and
final settlement. According to Jackson, the applicant had raised a
question concerning the timing of the payment,
as he was concerned
that if he resigned prior to receiving any payment, he would not be
paid. Jackson and the applicant then agreed
that if the applicant
decided to confirm his acceptance of the offer, he would be paid the
R60 000 on confirmation, and that he
would thereafter submit a formal
letter of resignation. Finally, it was agreed that no decision would
be taken that day and that
the applicant could take the rest of the
day off to discuss the situation with his family. Jackson stated that
there was no animosity
between them during the meeting, no harsh
words were exchanged, no threats were made and the applicant’s
resignation was
never demanded. The next morning, Jackson received
the e-mail referred to above, in which the applicant stated that he
would be
in later that day to hand his resignation. Based on what he
considered, following the terms of the discussion the previous day,
to be a acceptance of the offer made to the applicant and
confirmation of the applicant’s resignation, Jackson paid R60
000 into the applicants bank account and paid his outstanding expense
claims. He was surprised subsequently to receive the applicant's
letter of resignation cast in the terms that it was, and to learn of
the referral of a dispute to the CCMA
The
commissioner's award
[6]
In her award, the commissioner reviewed the evidence and concluded as
follows:
14. The balance of
probabilities clearly indicate that the version of the respondent is
more probable than that of the applicant,
in that and offer was
negotiated and a figure of R80,000 was agreed upon. It was on that
basis that the applicant received R60,000
the next morning into his
account. The applicant has simply come to the CCMA after the hope and
prospect of increasing that figure.
How is that the R60 000 was
accepted and then subsequent thereto, the referral to the CCMA is
served with the letter of resignation.
This is clearly indicative of
the Applicant’s mala fides.
15.
The applicant made the following concession during cross-examination
when asked about the reasons he had the rest of the day
off:
(to)
think about the offer he gave me.
16.
No mention of 'request' or invalid, demand' was made.
Findings
1,
The applicant has not discharged the onus in proving a constructive
dismissal.
Grounds for review
[7]
The grounds for review are not articulated with any degree of
precision. The applicant contends
inter
alia
that
the commissioner had to determine whether or not the first respondent
had compelled the applicant’s resignation under
duress, and if
so, whether or not on the facts and evidence before her, the
applicant had been unfairly dismissed. Alternatively,
the applicant
contends that the commissioner was required to decide whether they
had been a meeting of the minds between him and
Jackson, resulting in
a binding agreement of settlement been concluded based on the terms
proposed by Jackson and whether the applicant
had accepted the offer
on those terms and if so, whether the offer and acceptance of it
would obviate the necessity to determine
whether or not an unfair
labour practice had been perpetrated by the acts of the respondent
against the applicant. In particular,
the applicant claims that in
the proceedings before the commissioner, the first respondent's
conduct was implicitly challenged
with regard to substantive and
procedural fairness. In his heads of argument, the applicant's
representative contends that the
real dispute between the parties was
an unfair dismissal, which was effectively clothed as a resignation,
that the commissioner's
finding in regard to the offer and acceptance
is "patently wrong".
[8] The applicant’s
approach to these proceedings is misconceived. First, it overlooks
the essence of the commissioner's ruling,
and secondly, it ignores
the proper approach to an application for review. What the
commissioner found was that the applicant had
failed to prove the
existence of dismissal. It should be recalled that the dispute
referred to the CCMA by the applicant was an
unfair dismissal
dispute. The applicant had never claimed that he was the victim of an
unfair labour practice, nor was an unfair
labour practice dispute
referred to the CCMA. What was before the commissioner, as both
parties to these proceedings acknowledge,
was a dispute of fact in
relation to the events of 6 December 2007. In effect, Jackson
testified that he made an offer to the applicant
terms of which the
applicant would be paid a sum of money in return for the applicant
tendering his resignation. The applicant's
case, short of unnecessary
detail, was that he had been forced to resign. In other words, the
commissioner had to decide whether,
as a matter of fact, the
applicant's employment had been terminated by mutual agreement (in
which case, there was no "dismissal"
the purposes of
section 186) or whether the applicant had resigned in circumstances
in which the first respondent had made his
continued employment
intolerable. The commissioner was not required to determine the
substantive and procedural fairness of what
the applicant claimed to
be a dismissal – it is only once the existence of dismissal has
been established that the onus shifts
to the employer party to
establish that a dismissal was substantively and procedurally fair.
The commissioner, as she was required
to do, decided which of the
versions before her was the more probable. She found that the fact of
the payment of R60,000 to the
applicant supported the probabilities
that the parties had negotiated and concluded an agreement. She
considered too the fact that
the applicant in its cross-examination
had used the word "offer" in the context of a discussion on
the time-off afforded
to the applicant to consider Jackson’s
proposal. Finally, she took into account that the e-mail sent to
Jackson by the applicant
on the morning of 7 December 2007 made no
reference to any demand that he resign. The commissioner also alludes
to the fact that
the applicant, despite denying the existence of an
agreement relating to the termination of his employment, failed to
return the
R60 000 paid to him on 7 December. Had the applicant
genuinely believed that there was no agreement, he would have
tendered return
of the money.
[9]
This court is entitled to interfere with the commissioner's decision
if and only if the decision is one to which no reasonable
decision-maker could come (see
Sidumo
& another v Rustenburg Platinum Mines Ltd and others
(2007)
28
ILJ
2405
(CC)). In my view, the applicant has failed to establish that the
decision under review falls outside of the band of decisions
to which
reasonable people could come on the evidence before the commissioner.
In effect, the applicant seeks to overturn the arbitration
award on
the merits, and in particular, seeks the correction of what he
contends to be substantive errors of fact on the part of
the
commissioner. In doing so, the applicant fails to distinguish between
an appeal and review. This court is not concerned with
the
correctness of the commissioner's decision; what is in issue is
whether it is a reasonable decision. The applicant has failed
to
establish that the commissioner’s finding is not unsupported by
the evidence, that it is based on speculation entirely
disconnected
from the evidence, supported by evidence that is insufficiently
reasonable to justify the decision, or made in ignorance
of evidence
that was not contradicted (see A Myburgh ‘
’
Sidumo
v Rusplats:
How
the Courts deal with it” (2009) 30 ILJ 1).
[10]
In short, I am not persuaded that the commissioner’s ruling
that the applicant had failed to establish the existence
of a
dismissal is a decision that is so unreasonable that on the
applicable test, it stands to be reviewed and set aside. The
application must accordingly fail. There is no reason why an order
for costs should not follow the result.
I
accordingly make the following order:
The
application is dismissed, with costs.
ANDRE VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of application 24 February 2011
Date
of judgment 28 February 2011
Appearances
For
the applicant: Adv O Lagrange instructed by Biccari, Bollo &
Mariano Inc.
For
the respondent: Adv H Gerber, instructed by Mills & Groenewald
Attorneys
7