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[2011] ZALCJHB 50
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Lehari v Mhlave Investment Holdings (Pty) Ltd (J2297/2008) [2011] ZALCJHB 50 (7 June 2011)
Lehari Makhosi v MHLAVE
INVESTMENT HOLDINGS (PTY) LTD – Case No J2297/2008 –
Claim for salary for the notice period
and petrol expenses-Evidence-
resolving conflicting versions. Employee did not attend work after
resignation. - 2 June 2011
IN THE LABOUR COURT OF SOUTH
AFRICA
HELD
IN JOHANNESBURG
Reportable
Case No: J2297/2008
In the matter between:
LEHARI MAKHOSI
…........................................................................................
Applicant
and
MHLAVE INVESTMENT HOLDINGS (PTY)
LTD
…..................................
Respondent
Date of Hearing : 18 March 2011
Date of Judgment : 07 June 2011
JUDGMENT
Molahlehi J
Introduction
The applicant in this matter
claims payment of his outstanding salary together with other amounts
from the respondent based on
his oral contract of employment. In
terms of the oral contract of employment concluded between the
parties, the applicant was
paid a monthly salary in the amount of
R25 000, 00. The applicant was also entitled to receive in addition
to his salary re-imbursement
for travelling on monthly bases.
Background facts
It is common cause that soon
after his return from leave, the applicant submitted his resignation
from his employ to the respondent.
The applicant submitted his
resignation on 24 June 2008. His last working day was the 31 July
2008.
The dispute between the parties
arose from the fact that the applicant stopped working on 4 July
2008. It was for this reason
that the respondent contended that it
did not have to pay the applicant for the months of June and July.
The respondent also
contends that it was also not obliged to pay the
applicant the traveling expenses for the month of April and May
2008. The other
reason for refusing to pay the applicant according
to the respondent was because according to it, the applicant had
taken up
an alternative employment with another employer.
The applicant on the other hand
contends that after his resignation, he was informed by Mr Mabunda,
the director of the respondent
that it was not necessary for him to
report for work during the notice period. The applicant contends
that he is entitled to
be paid R15 000, 00 (fifteen thousand) in
respect of his June salary, less R10 000, 00 (ten thousand) which is
less payment of
R10 000,00 (ten thousand) he received. The other
amounts which the applicant claims are for the payment of R2 445.95
(two thousand
four hundred and forty five and ninety five cents) in
respect of the travelling expenses for April and May 2008 and R25
000,
00 (twenty five thousand) in respect of the July salary.
The applicant testified on his
own behalf and stated that he resigned to go and start his own
business. After submitting his resignation,
he reported for work for
the first four days thereafter. On the fourth day, he was called to
an office by Mr Mabunda who informed
him that he saw no reason why
the applicant should serve his notice period. He thereafter stopped
attending work.
As concerning his duties and
responsibilities, the applicant testified that he was responsible
for developing strategies for the
business of the respondent which
involved a number of pharmacies. Because of the nature of his work,
the applicant had to travel
to the various pharmacies of the
respondent. Because of this reason, the applicant was paid a
travelling allowance. He recorded
his traveling distances in a log
book. The claim he submitted which is part of this claim relates to
the travelling he did during
the month of May.
Mr Mabunda testifying in
support of the case of the respondent, stated that there was no
replacement of the applicant between
24 June and end of July when
the applicant was supposed to have been serving his notice. He
further testified that he called
the applicant on 4
th
June 2008 and enquired about his whereabouts. The applicant
according to him simply indicated that he would revert back to him
which he never did.
Mr Mabunda disputes releasing
the applicant from his duty to serve the notice and stated further
that he could never have released
him because of the nature of his
work. And as concerning the travelling claim, Mr Mabunda contended
that the claim was never
brought to his attention. However he
conceded that the travelling expenses for April would have been
claimed in May and that
the fact that he was not aware of the claim
did not mean that the expense did not exist.
Evaluation and analysis
The issue in this matter turns
around the question of whether the applicant was given permission by
Mr Mabunda not to serve his
notice period after his resignation. In
this regard, the court is faced with two conflicting versions.
The version of the applicant as
stated above is that he was given permission by Mr Mabunda not to
serve his notice period. According
to him, he had intended to serve
his notice period and had expressed that desire in his letter of
resignation where he
inter alia
states:
“
My main thoughts are now
to work towards wrapping up my current responsibilities and to hand
over my responsibilities as smoothly
as possible while serving my 30
days notice.
”
The reason why the applicant
did not fulfil the above undertaking was because Mr Mabunda told him
that it was not necessary for
him to serve the notice period. Mr
Mabunda disputed ever having a meeting with the applicant where he
told him that it was not
necessary for him to serve his notice
period. During cross examination of the applicant, it was put to him
that the reason he
did not attend at work was because he had found
another employment and that a person who employed him or had
business arrangements
with him would be called to testify in that
regard. The respondent never called such a person to the witness
stand.
The applicant disputed having absented
himself because he had found another employment or was involved in a
business transaction
with one of the respondent’s clients.
The assertion that the
applicant did not go to work to serve his notice period has to be
discarded the respondent having failed
to lead evidence of the
person who Mr Mabunda said told him that the applicant had
approached him to do business with when the
applicant was supposed
to have reported for work.
The other point raised by the
respondent in countering the applicant’s claim is that Mr
Mabunda called the applicant on
5 June 2008, to enquire about his
whereabouts upon which the applicant responded by saying that he
would revert back. It would
appear that nothing further was
discussed between the two of them regarding the absence of the
applicant from work. The applicant
denied ever receiving the
telephone call from Mr Mabunda.
It is trite
that the contract of employment does not terminate on the date the
notice of termination is given but when the notice
period expires.
1
This means
that an employee who is serving a notice period is still subject to
the discipline of the employer. The other principle
is however that
an employer is not obliged to pay an employee who does not attend
work during the notice period unless arranged
otherwise.
The
onus
in the
present instance, based on the balance of probabilities, is on the
applicant to show that an agreement was concluded with
Mr Mabunda
that he did not have to work during his notice period. The applicant
in the present instance can succeed, if he was
to show on the
preponderance of probabilities that that his version as opposed to
that of the respondent was true, accurate and
for that reason
acceptable. In arriving at the conclusion as to the accuracy and the
truthfulness of the applicant’s version,
I have to weigh the
assertion of the applicant that an arrangement was made with Mr
Mabunda that he did not have to attend work
during the notice
period. In doing so, I have to take into account the balance of
probabilities and the credibility of the respective
witnesses of the
parties.
2
It has already been indicated
above that the case of the applicant is that an arrangement was made
with the respondent that there
was no need for him to serve the
notice period. That arrangement did not include the non-payment of
the salary of the applicant
for that period.
The
impression I made of the applicant is that whilst he was an honest
witness, he was indeed a difficult witness. As I understand
the
principles of law, it does not necessarily follow that the
credibility of a difficult witness has to be placed on a wooden
block to be chopped. Thus in addition to being satisfied with the
credibility of the applicant, I am after evaluating the totality
of
the evidence submitted, satisfied that the applicant succeeded in
discharging his
onus
of proving
that his version is the more credible and acceptable version of what
happened regarding the arrangement concerning
the serving of the
notice. It follows that I reject the version of the respondent as
concerning what transpired as concerning
the arrangement on the
serving of the notice by the applicant. The version of the
respondent is rejected on the basis that it
was not probable and Mr
Mabunda was not a satisfactory witness with regard to crucial
aspects of facts relating to what happened
with regard to the
arrangement between him and the applicant. He simply denied that a
meeting was ever held between him and the
applicant and in seeking
to counter that version, testified that he phoned the applicant and
asked him where he was. It is quite
strange that an employer who
takes issue with an employee who absented himself would without
further inquiry accept when an employee
says he will revert back.
And when the employee does not revert back makes no follow up but
simply waits for that employee to
claim payment of the outstanding
salary to rely on that telephone enquiry. There is also insufficient
evidence to support that
version.
It would appear that once
confronted with the claim for monies due and owing to the applicant,
the respondent resorted to making
his case as it went along. The
first issue is the telephone call which Mr Mabunda claims to have
made and the second is that
of seeking to explain why the applicant
would not have been able to serve his notice period. In my view, Mr
Mabunda fabricated
the story about the allegation that the applicant
had business commitment with one of the respondent’s client,
and that
is the reason he did not attend work during the notice
period.
I now turn to deal with the
other amounts claimed by the applicant. Mr Mabunda conceded that the
applicant was entitled to claim
the petrol expenses and that the
expenses for April would have been due in May. Mr Mabunda failed to
show that the petrol claims
as submitted by the applicant was
fabricated and or incorrectly calculated. It thus follow that the
applicant has successfully
made out a case regarding his claim for
the petrol expenses.
In light of the above I find
that the applicant has made out a case that the respondent owes him
the amounts claimed in his statement
of case and the amounts are due
to him. I see no reason in fairness and law why the costs should not
follow the results including
the wasted cost occasioned by the
postponement on 10 March 2011.
Order
In the premises I make the
following order:
The respondent is to pay
the applicant R25 000, 00 being the amount due and owing in
respect of the June 2008 salary.
The respondent is to pay
the applicant R25 000, 00 being the applicant’s owing
and due in respect of the July
2008 salary.
The respondent is to pay
the applicant R2 445.95 being the amount due and owing in
respect of the applicant’s
petrol reimbursement for June
2008.
The respondent is to pay
the above amounts at the rate of 15.5%
tempora morae.
The respondent is to pay
the applicant the costs of this suit including the costs
occasion by the postponement of
the matter on 10 March 2011
Molahlehi
J
Appearances
For the Applicant : Adv F
Bezuidenhout instructed by LJ De Jager Attorneys.
For the Respondent: :Mr Lesomo
of Lesomo Attorneys.
1
See
SALSTAFF obo Bezuidenhout v Metrorail
[2001] BALR 926 (AMSA
)
at para
6
and
Lottering
and Others v
Stellenbosch
Municipality
[2010] 12 BLLR 1306(LC).
2
The
approach to be adopted when faced with conflicting and mutually
destructive versions was considered in S
tellenbosch
Farmers
'
Winery
Group Limited and another v Martell & Kie
2003
(1) SA 11
(SCA) at para 5. . See also
National
Employers’ General Insurence CO Ltd v Jagers
1984
(4) SA 437
(E).
9