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[2012] ZALCJHB 187
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African Realty Trust (Pty) Limited v Maake and Others (R1822/2010) [2012] ZALCJHB 187 (26 October 2012)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case
no: R1822/2010
DATE:
26 OCTOBER 2012
REPORTABLE
In
the matter between
AFRICAN
REALTY TRUST (Pty) Limited
…......................
Applicant
And
MAAKE
J
S
...............................................................
First
Respondent
CCMA
..................................................................
Second
Respondent
PAUL
CORBETT
...................................................
Third
Respondent
Date
of hearing: 26/10/2012
Date
of judgment: 26/10/2012
Summary:
Review application – oral resignation or dismissal – test
- jurisdiction of CCMA – employee orally resigned.
EX
TEMPORE JUDGMENT
COETZEE,
AJ
[1]
This is an application to review and set aside an arbitration award
under case number LP5798/2008, dated 16 June 2010, which
was in
favour of the third respondent holding that he was unfairly
dismissed.
[2]
The third respondent, Mr Paul Corbett ("Corbett"), was
employed by the applicant, African Realty Trust ("the
company"),
as a technologist. The company on the one hand claimed that Corbett
had resigned. Corbett on the other hand claimed
that he was dismissed
and he thus carried the onus to prove the dismissal.
[3]
The company’s main ground of review is that the Commissioner
excluded material evidence and relied solely on an interpretation
of
the termination clause in the contract of employment to arrive at a
finding of unfairness which is based on process related
unfairness,
but it also affected the outcome of the arbitration award in favour
of Corbett.
[4]
The company argues that the Commissioner approached the evidence on a
narrow basis and determined the issue simply on an interpretation
of
the contract of employment in stead of taking into account and giving
consideration to all the evidence.
[5]
It is clear as the law currently stands, that process related
unfairness must relate to material aspects of the evidence or
the
issues excluded or ignored by the Commissioner.
[6]
The company also raised a jurisdictional point that the CCMA did not
have jurisdiction to continue with the arbitration, as
the dispute
between the parties had become settled in terms of a settlement
agreement that was concluded after the first day of
the arbitration
in an ancillary matter. In view of the finding below it is not
necessary to deal with this dispute.
Summary
of the facts
[7]
Corbett, on 9 August 2008, a Saturday morning, according to Van
Wyngaardt a witness for the company and the person to whom Corbett
reported, had a discussion with Van Wyngaardt. Van Wyngaardt is the
company’s general manager. The evidence is that there
is a
direct reporting line from Corbett to the general manager Van
Wyngaardt.
[8]
According to Van Wyngaardt, Corbett during this conversation
announced his resignation with immediate effect. The telephone
reception was poor and the discussion short. Corbett in his evidence
could not recall any such telephonic discussion with Van Wyngaardt
on
the Saturday. He did not outright deny such a discussion and stated
that he from time to time phoned Van Wyngaardt.
[9]
The telephone records that were handed in by Van Wyngaardt did not
reflect that particular call, as it only reflected outgoing
calls and
not incoming calls. Corbett elected not to hand in his telephone
records in order to disprove such a call.
[10]
Following the call on Saturday, 9 August 2008, Corbett was absent
from work for the period from Monday 11 August to Friday
15 August.
During this week a few things occurred. Corbett telephoned Van
Wyngaardt during the morning of Tuesday 12 August, which
call Van
Wyngaardt returned as he was unavailable to take the call at the time
Corbett phoned.
[11]
Van Wyngaardt when returning the call, on his version, conveyed to
Corbett that Corbett could not leave immediately and that
he had to
serve his notice period as the resignation came in a very busy month.
Corbett confirms the telephonic discussion, but
denies during the
discussion informing Van Wyngaardt that he was leaving the company.
[12]
It is common cause that during this call, Corbett did not inform Van
Wyngaardt of his illness. According to Corbett he was
at that point
in time in bed because of the illness and could only attend at a
medical practitioner on the Thursday two days later.
[13]
On the Thursday, in a telephone conversation between Van Wyngaardt
and Me Du Bruin, who is the CEO of the company, and other
members of
company’s management team, all in Australia, it was agreed that
the resignation should be accepted in writing.
Van Wyngaardt had to
record the resignation.
[14]
Corbett did not report for duty after the call on Tuesday 12 August
2008. Van Wyngaardt called Corbett on the Wednesday when
Corbett's
phone remained unanswered.
[15]
Corbett on Thursday for the first time consulted a medical
practitioner regarding his illness. The sick note produced by the
practitioner had never been handed to the company who only became
aware of it during the CCMA proceedings.
[16]
On the sick note the commencement date of his illness was changed
from 14 August 2008 to 11 August 2008. An explanation was
tendered
for this change. According to Corbett he had already informed Andries
on the 13th that he was ill. He then testified
1
that on the Monday he had informed his laboratory supervisor one
Kenneth Blessie of his illness.
[17]
It remains unlikely that he had informed these persons of the reason
for his absence as his direct reporting line was to Van
Wyngaardt to
whom he also spoke on the preceding Saturday.
[18]
At about 17:00 on Thursday, 14 August, as Van Wyngaardt was about to
write the letter accepting the resignation, Corbett phoned
him to
inform him that he was consulting a medical practitioner as he was
indisposed and that he would be resuming his duties soon.
[19]
Van Wyngaardt in his evidence expressed his surprise towards Corbett
as according to him Corbett had resigned and had not reported
for
duty for four days without any explanation other than his oral
resignation, to which Corbett then replied that it would be
his word
against that of Van Wyngaardt as to whether he had actually resigned.
[20]
Corbett later denied that he had said to Van Wyngaardt that it would
be his word against that of Van Wyngaardt.
[21]
On Friday 15 August, with the permission of the chief executive
officer, Van Wyngaardt in writing informed Corbett that the
resignation was accepted and that he would be paid in lieu of notice
and did not have to serve his notice period.
[22]
This letter was hand delivered to the home of Corbett. The letter was
pushed under the door as nobody opened when they knocked
on the door.
According to Corbett’s evidence in the arbitration, he heard
the knock on the door, he got up out of bed and
then recognised the
voice of Van Wyngaardt but elected not to respond or to open the
door.
[23]
His explanation for adopting this attitude was that he was off sick
and did not have to speak to Van Wyngaardt. Van Wyngaardt
on his
version was at that point in time unaware of the illness of Corbett.
Corbett on the same day, according to his evidence,
read the letter
and interpreted the letter to be a termination of his employment on
the instance of the company.
[24]
The company was dismissing him. That was his conclusion. Corbett
conceded that he did not make any enquiries as to why the
company
would have sent him a letter accepting his resignation, if there was
no talk of any resignation. According to him, it was
a complete
fabrication.
[25]
Corbett twice confirmed
2
that he had not taken up this "fabrication" of the
dismissal with his employer in order to get an explanation from the
company.
[26]
The probabilities favour
3
r
the version of the company in this regard in that it could reasonably
be expected of Corbett when receiving a letter out of the
blue,
confirming a resignation that never took place, his reaction would
have been to immediately contact the company and speak
to the
company’s representatives and say what is going on here.
[27]
Corbett confirms that he did not think it prudent to take the
dismissal, this "fabrication", up with the HR manager
or
with the CEO and this is his explanation.
‘
Andries
is general manager and if he made a terribly wrong decision, well
that is the decision that he will have to live with by
dismissing
me’”
[28]
Van Wyngaardt in cross-examination testified that Corbett phoned him
on the Friday confirming receipt of the letter. This was
an
opportunity for Corbett to request an explanation as to why he had
been dismissed. The fact that Corbett phoned Van Wyngaardt,
shows
that they were on speaking terms and it is quite surprising that he
did not raise this "fabrication" with Van Wyngaardt.
This
was an ideal opportunity to do so and the fact that he did not do so
warrants the inference that his version is not to be
accepted.
[29]
Van Wyngaardt confirmed that during this discussion, Corbett had said
that he would be taking the matter further. For Van Wyngaardt
this
made sense, as Corbett had by then turned around and for all
practical purposes, indicated that he would make Van Wyngaardt
out to
be a liar when the latter would say Corbett had resigned.
[30]
This conversation follows after the discussion on the Thursday when
Corbett according to Van Wyngaardt had told him that it
would be his
word against that of Corbett.
[31]
On Monday 18 August, Van Wyngaardt received an e-mail communication
from Corbett in response to his letter confirming the resignation
recording that Corbett had ‘accepted the letter’.
[32]
This e-mail also contained information which prompted the company to
apply for an Anton Piller order. This again, on Monday
18 August, was
a further opportunity for Corbett in the email to question the
alleged resignation which he called a "fabrication",
something he did not do.
[33]
His e-mail does not necessarily mean that he accepted the fact that
he was alleged to have resigned but it clearly demonstrates
that he
did not take issue with his employer for alleging a resignation in
the absence of one. On the probabilities he did not
raise it at the
time because he was going to rely upon ‘the word of the one
against the other’.
[34]
Corbett did not report for duty on Monday, 18 August, and there were
no further communications between the parties, except
in respect of
his retirement benefits. In the meantime the Anton Piller case was
settled which gave rise to further events in the
arbitration
proceedings and as I have stated, I do not need to deal with those.
[35]
The Human Resources Department of the company completed the Momentum
Provident Fund Withdrawal Form, scanned and emailed the
form to
Corbett who then signed the form after having completed some missing
information. On page 4 of this form, it is clearly
stated that the
reason for the withdrawal was that Corbett had resigned. He did not
change this statement on the form.
[36]
Corbett nevertheless signed the form, confirming that the content of
the form was correct. Corbett did not challenge the fact
that the
form reflected that he had resigned. The transcript shows the
following:
‘
Mr
Jacobs: Do you agree with me that if you stated there, if you
changed that to dismissal, it would not have effected your pension
fund payment?
Mr
Corbett: Yes’
[37]
Corbett later on changed his explanation and said the change to
reflect a dismissal might have affected his pension pay-out.
This
seems like a feeble after the event explanation.
[38]
Corbett for the first time on 30 September 2008, in a letter
challenged the allegation that he had resigned. This was also
the
date when he referred the matter to the CCMA. It is quite probable
that by that time he had received advice and thus the protestation
as
to what had occurred.
[39]
Corbett previously had resigned on written notice, but that
resignation was not implemented. It was common cause that the company
had no problem with Corbett and that Corbett had no problem with Van
Wyngaardt, Loubser or any of the other people working at the
company.
[40]
It is thus improbable that the company would have fabricated the
acceptance letter for no reason at all and at the same time
it is
probable that if Corbett had any quarrel with the company about the
company alleging a resignation, he would have taken it
up with any of
a number of people.
[41]
The company, when he first resigned, persuaded Corbett to withdraw
the notice of termination which shows that the company wanted
him to
work for it. The first written resignation is also an indication that
Corbett earlier wanted to leave, was persuaded to
stay on and in
August 2008, probably again of his own accord decided to leave.
[42]
It also demonstrates that he knew his contract requires a written
resignation. This does not convincingly show that Corbett
was at the
time of the view that he could not also resign orally. Corbett’s
contract of employment in respect of the resignation
provides as
follows:
‘
This
agreement may be terminated on written notice of one calendar month,
given by the company or yourself to the other. You will
not be
entitled to take leave during your notice period.’
Assessment
of the facts
[43]
The Commissioner considered these events and whether the ‘purported
telephonic resignation’ occurred. The Commissioner
held that
Van Wyngaardt’s testimony and the evidence that a telephone
call on Saturday in fact took place were in itself
as facts on their
own, inconclusive of whether Corbett had resigned.
[44]
One cannot fault the Commissioner for this finding, except that these
facts should not have been considered in isolation. The
Commissioner
then, in respect of all the individual instances relied upon by
Corbett to prove or disprove Corbett’s resignation
remarks the
following in paragraph 7.4.1 of the arbitration award:
‘
I
ought to make it clear at the outset, that none of the foregoing
scenarios, does when considered individually, becomes conclusive
of
the existence of the purported resignation. At least, each of them
only services (sic) to attack the credibility of Corbett’s
version, with an ultimate purpose of proving the existence of the
purported resignation. However, cumulatively considered, they
have
the potential of succeeding in doing so. It will however, soon be
apparent hereafter that a proper construction of the termination
clause in the employment contract, would prove decisive in the
outcome of there proceedings. In spite of this being against the
cumulative effect of these other scenarios, sketched out elsewhere
above and in particular the Provident Fund Pension issue.
Bearing
in mind the foregoing observations, I however propose the juxtapose
them with what, in my considered opinion is the correct
construction
supposed to be placed on the stipulations of clause 16.1 of the
employment contract which, once again, in my considered
opinion is
vital to the determination of the question of whether or not there
was a resignation by the applicant. In spite of the
scenarios painted
out elsewhere above by the respondent.’
[45]
These individual aspects referred to are now dealt with below. Du
Bruin advised Van Wyngaardt to confirm the resignation. This
advice
could mean that the company wanted certainty on the resignation as
there was uncertainty at that point in time, due to the
denial by
Corbett, but it could also have meant that the company wanted to
record the resignation for record purposes only.
[46]
The fact of the advice is not conclusive, but shows that there was a
consideration of Corbett leaving.
[47]
The next consideration is the letter of Corbett of 18 August 2008,
stating:
‘
Acceptance
of your letter dated 15 August 2008.’
[48]
This in itself does not take the matter any further and is not an
acceptance of the contents of the letter. This however, was
an
opportunity to Corbett to question the company’s contention
that he had resigned, which he failed to do and for which
failure he
could not tender a plausible explanation.
[49]
The next consideration is his lack of recording any objection to the
‘fabrication’, or discussing the matter with
anyone of
the company. This favours the company’s version that he had
resigned. There was a clear opportunity to object to
the contents of
the letter which he received from the company recording a
resignation. More so, because on the Friday after having
received the
letter of 15 August 2008, he had telephonically spoken to Van
Wyngaardt, merely saying that he was going to take the
matter
further.
[50]
Van Wyngaardt’s version that Corbett telephonically resigned
and then on the Thursday changed his mind and said he would
argue
that he was off sick and would resume his duties on Monday 18 August
2008, finds support in the mere statement that the matter
would be
taken further instead of objecting to the "fabrication".
[51]
The call of 15 August 2008 was an opportunity to record Corbett’s
surprise at what was happening to him, but the opportunity
passed
without Corbett saying anything about it. The fact that Corbett only
on 30 September 2008, when he referred the matter
to the CCMA,
replied to the letter of 15 August 2008 disputing the resignation,
favours an interpretation that he probably resigned,
changed his
mind, and eventually decided to take the matter to the CCMA.
[52]
The fact that Corbett was prepared to sign the pension fund form
recording his resignation clearly favours the company’s
version
that he had resigned. In his own words, before he changed his
position, recording a dismissal would not have affected his
pension
pay out.
[53]
The Commissioner also embarked upon a consideration of the effect of
the termination clause. In the end he concluded that a
proper
interpretation of the termination clause requires a resignation in
writing. Because it was not in writing the alleged resignation
was
void anyway and that weighed more heavily than all the other factors
referred to above.
[54]
The Commissioner ultimately resolved the dispute about the
interpretation of the contract of employment in favour of Corbett.
[55]
The Commissioner's provisional finding and the reasoning behind the
provisional finding in paragraph 7.4 of the award that
the events
pointed towards a resignation cannot be faulted and is a finding that
a reasonable Commissioner could have made.
[56]
The provisional finding is correct that the factors jointly pointed
towards Corbett’s resignation and would have resulted
in a
finding that Corbett resigned, either on the probabilities or on
applying the onus.
[57]
The Commissioner however disregards all this evidence and all the
probabilities informing his provisional finding, in favour
of an
award based solely on the interpretation of the termination clause of
the contract of employment. He accepts the fact that
the resignation
had to be in writing to exclude and outweigh all the other factors.
By excluding all the other evidence and probabilities
he committed
gross misconduct in the proceedings and clearly arrived at a wrong
conclusion.
[58]
The logical conclusion is that the Commissioner considered the
events, facts and probabilities and concluded that the probabilities
favoured the version that Corbett resigned. But because of the
termination clause an oral resignation, according to the
Commissioner,
would be invalid and for that reason all the
probabilities are disregarded and the finding is made on the basis of
his legal interpretation
of the termination clause only.
[59]
The Commissioner is in any event incorrect on the legal conclusion as
an oral resignation is not void. In this regard see the
case of
Sihlali v S.A. Broadcasting Corporation Ltd
4
.
[60]
The probabilities favour a resignation rather than the "fabricated"
dismissal. It is not necessary in making a finding
to rely on an
onus. At best, however, for Corbett, he has not discharged the onus
to establish a dismissal.
[61]
Having read the record and considered the probabilities, this Court
is in as good a position as the CCMA Commissioner to substitute
its
finding for that of the Commissioner. In addition this matter arose
in 2008 and it is in the interest of justice to bring an
end to it.
[62]
The Commissioner had to determine whether the CCMA had jurisdiction
to entertain the dispute. The dispute was whether the company
dismissed the employee or whether the employee resigned in which case
the CCMA would not have jurisdiction. The correct test to
apply in
assessing the Arbitrator's award is to determine whether the
Arbitrator correctly or incorrectly assessed the facts and
arguments
and arrived at a conclusion that a reasonable arbitrator could have
arrived at. The Commissioner was clearly wrong in
his finding that
Corbett did not resign because the resignation was not in writing. No
reasonable commissioner could have come
to that conclusion.
[63]
As far as cost is concerned, the law dictates that cost should follow
the result and there is nothing in fairness to come to
a different
conclusion. The following order is made:
63.1
The arbitration award under case number LP5798/2008 dated 16 June
2010 is reviewed and set aside.
63.2
The following award is substituted for the award in the arbitration:
’
The
application is dismissed as the applicant has resigned.’
63.3
The third respondent is to pay the applicant’s costs.
Coetzee
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
FOR
THE APPLICANT: Advocate Riaan Grundling.
Instructed
by: Joubert and May
FOR
THE RESPONDENTS: No appearance
1
Page
56 of the record
2
Record
page
50 and 60
3
Record
p 71 line 1-4
4
(2010)
31 ILJ 1477 (LC)