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[2012] ZALCD 24
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Mkhize v Umhlanga Spar (D01/07) [2012] ZALCD 24 (16 April 2012)
17
REPUBLIC OF SOUTH AFRICA
IN
THE LABOUR COURT OF SOUTH AFRICA
,
DURBAN
JUDGMENT
Case no: D01/07
Reportable
In the matter between:
WISEMAN BHEKISISA
MKHIZE
.....................................................................
Applicant
and
UMHLANGA SPAR
......................................................................................
Respondent
Heard: 16 September
2011
Delivered: 16 April
2012.
Summary: Automatically
unfair dismissal – s197 protected rights of employee –
employer forcing employee to sign a new
contract of employment.
JUDGMENT
Cele J
Introduction
[1]
This
is a claim of an automatically unfair dismissal of the applicant by
the respondent. The applicant contended that the respondent
attempted
to compel him to accept a demand in respect of a matter of mutual
interest, thus contravening section 187 (1) (c) of
the Labour
Relations Act (LRA)
1
.
The applicant further contended that his terms of employment were
protected from changing to the worse by section 197(4) of the
Act
when there was a transfer of the business as a going concern. The
respondent disputed the alleged dismissal by saying that
the
applicant resigned from his employment. The respondent averred that
the terms and conditions of employment, as set out in the
contract of
employment of the applicant, were not less favourable than those
under which he was previouslyemployed by the respondent.The
respondent conceded that the applicant’s years of service at
the respondent were transferred to its current owner.
Factual background.
[2] The applicant
commenced his employment with the respondent sometime in 1983. In
2006 he held the position of Perishable Merchandiser
in respondent’s
shop, reporting to a Mr Gansen, floor Manager. The ownership of the
business changed at various intervals.
When the previous owner of the
respondent, Bamford Retail Stores CC was liquidated, Spar Head Office
took over the shop and appointed
Mr Mark Anderson to manage it for
about 6 months. During that time voluntary retrenchment packages were
offered and given to some
staff. The applicant applied for a package
but it was denied.
[3] On 21 June 2005 Mr
Mark Anderson purchased the franchise through his close corporation,
Andgov Trading Deals CC. On 20 September
2005 Mr Anderson required of
his employees to sign a fixed term contract of employment with effect
from 21 June 2005 to 20 September
2005. He said that he copied the
practice from his previous employer Makro as he was not at that time
aware of the provisions of
the Act regarding the transfer of
contracts of employment. All employees signed the new contract except
the applicant. Two dissimilar
documents were produced by the parties
as being the contract which each said was given to the applicant to
sign. The one produced
by the respondent is a letter of one sentence
and it then outlines the terms and conditions of employment which but
for leave and
sick leave are similar to those outlined in applicant’s
document. The one sentence on respondent’s contract reads:
‘
I have pleasure in confirming
your appointment in the abovementioned position with effect from 21
June 2005’
The first part of the
document produced by the applicant, whichis also contained on page 3
of bundle 1 of documents produced by
the respondent, is a letter, the
main part of which reads:
‘
PERIOD: From 21 June 2005 to 20
September 2005
We have pleasure in confirming the
above contract position.
We are delighted at the prospect of
having you as part of the team at Umhlanga Spar and look forward to
the positive contribution,
which we are confident you will make.
A total commitment to providing or
contributing to customer satisfaction is of paramount importance to
all members of the Umhlanga
Spar team. At Umhlanga Spar we recognize
that our primary purpose is to satisfy and keep our promises to our
customers. Your membership
of the team is, therefore, conditional
upon your full participation in our drive towards excellence in
customer satisfaction in
the broadest sense.
This letter constitutes an offer of
Employment in the Umhlanga Spar store and the main terms and
conditions of this offer are outlined
in the Addendum attached
hereto.
Welcome to the Umhlanga Spar team. We
trust that our relationship will be happy and mutually beneficial.’
[4]
After the three-month period aforesaid, new permanent
contracts of employment were prepared for all employees.In October
2005 those
contracts were distributed to all employees, including the
applicant.All employees, except the applicant and anemployee known as
“Juluka”, signed the contract. The first paragraph of the
letter of appointment reads:
‘
I have the
pleasure in confirming your appointment in the abovementioned
position with effect from 21 June 2003.’
[5] A meeting was held in
November 2005 with the applicant as to the reasons why he had not yet
signed his contract. He indicated
that it was with his lawyer.
Subsequent to this, upon an audit by SARS, it was drawn to Mr
Anderson's attention that two of the
contracts had still not been
signed. He was informed that, from the applicant's point of view, the
contract of employment was still
with his attorney.Julukasaid he did
not understand the contract which was in English.
[6] On 9 January 2006,
the applicant was issued with a notification of a disciplinary
enquiry scheduled for 11 January 2006 in relation
to certain
insolence and insulting behaviour towards one of his supervisors.One
of the issues was that the applicant had complained
about his working
conditions, in front of customers. He attended the hearing. He was
reminded that his contract of employment contained
a confidentiality
clause, upon which the applicant stated that he had not signed his
contract and that it was still with his lawyer.According
to the
respondent, it also emerged during this hearing that the applicant
had invited the respondent to fire him and that he no
longer wished
to work for the respondent. He was given a final written warning.
[7] Following the
hearing, on 11 January 2006, Mr Anderson phoned MsBev Chetty of the
Department of Labour to enquire as to what
he should do about the
applicant not signing the contract. He was advised to give the
applicant a letter to sign a contract within
two days, failing which
an enquiry would be held.Still on 11 January 2006, Anderson addressed
a letter to the applicant instructing
him to sign his contract of
employment and to return it within 24 hours.The letter pointed out
that he had been requested on three
occasions to sign the contract.It
informed him that if he did not sign the contract, an enquiry would
be conducted against him
and that he would no longer be in the
respondent’s employment. The applicant still failed to sign the
contract of employment.
[8] On 16 January 2006,
the applicant was issued with a further notice to attend a
disciplinary enquiry on 19 January 2006, regarding
his failure to
sign the contract of employment. The enquiry on 19 January 2006 was
attended by both Mr Anderson who chaired it
and kept the minutesand
Mr Briggswho was the complainant.
[9] The minutes of the
meeting recorded that the applicant spoke to the Department of
Labour.Theystated that it was decided that
there was no need for the
enquiry to continue and a discussion was held with him. Mr Anderson
asked the applicant what parts of
the contract he disputed. The
applicant only mentioned sick leave. The applicant further mentioned
that his floor manager was "different",
but he could not
elaborate. The applicant was then asked to sign the agreement but he
still refused and he walked out of the office.
[10] On the following day
the applicant arrived at the work place. He left work with a letter
issued by Mr Anderson. There is a
live dispute pertaining to the
circumstances under which the applicant left his working place He
never returned to work again,
instead he referred an unfair dismissal
dispute for conciliation and thereafter for trial. The letter issued
to him reads:
‘
20
January2006
Re: Outcome of discussion –
19/01/2006
This letter serves to confirm our
discussion regarding you not wanting to sign your letter of
appointment/contract.
You were issued with your contract on
the 4th July 2005. We continued to request that you sign and return
your contract. You said
you had given it to your lawyers. On the 21st
September 2005 we again requested the contract. You said it was still
with your lawyers.
On the 11th January 2006 we again requested it,
again told me it was with your lawyer. You then had a discussion with
Brian and
told him you will not sign it. We called you in and you
still refused to sign. I then had a discussion with Department of
Labour
and they instructed me in accordance to my actions(sic).
We issued you with a letter giving you
appropriate time to sign and return contract. When this time had
lapsed you were called in
and asked why you have not signed. You
informed us that you will still not sign it. We then issued you with
a letter informing
you attend an enquiry as to why you do not want to
sign your contract. In the enquiry you were again asked if there was
anything
wrong with the contract. You finally answered saying it was
different to your previous contract. We explained that all business
owners operate differently? You said that the sick leave, but you
were not specific. (sic)
We explained our clause is in
accordance to the Sectional Determination Act and calculated
accordingly.
I asked if there was anything else you
disagreed with. You went on about Gansen having changed. This had
nothing to do with the
matter at hand.
You were finally asked if you had any
intensions to sign. You said you will not sign and walked out of the
office.(sic)
Based on the outcome there is no
longer an employment relationship between us with you opting not to
sign. Unfortunately you are
as from today no longer in our employ.
This is not a dismissal as you have
chosen not to sign the contract and have terminated your employ on
your behalf.’
The issue
[11] Court is called upon
to determine whether the respondent dismissed the applicant and if
so, the circumstances of such a dismissal.
If court finds that the
applicant walked out of his employment and that there was no
dismissal that will be the end of the dispute
premised on unfair
dismissal. The applicant has raised the issue of an outstanding
salary, a matter that was not pleaded. The issue
of victimization was
neither pleaded nor properly traversed during the trial and no
reference will consequently be made to it.
Evidence on disputed
issues.
Applicant’s
version
[12] In respect of thenew
contract of employment, hesaid as they were busy doing their daily
activities, a white lady came and handedto
each employeea document
and ask them to sign it when they found time such as during lunch
break. He tookthat document away with
him home seeing that he was not
happy with the way it was handed to them because they were not called
into a meeting as it was
the case with the previous contract. So he
felt he had to peruse it thoroughly at home. He noticed that it was
dissimilar to the
one that they had signed before. For instance, in
the first one, the boss had even mentioned to them that it was an
ongoing contract
as he had taken over a previous working
relationship.However in thecontested terms, there was nothing which
stipulated any permanent
status of the employment relationship.
[13] He agreed that he
had the same annual leave, the same working hours, same notice for
termination of contract, same workplace
and the same salary. He said
he took the contract home on the day he received it. His neighbours
advised him to have it looked
at by the CCMA in town and they would
confirm for him if it was necessary to sign such a contract. At the
counter at CCMA, the
officials clarified and explained everything in
his particular language and then he came to notice things that put
him in an awkward
position. From all the deliberations that were
carried out between himself and the CCMA, it became apparently clear
that when he
produced the two different contracts to them, the
contract in question left much to be desired.He said that
the
CCMA people were the first ones to alert himagainst signing the
contract as hestood to losehis service of 20 plus years.
In all
the hearings that he was summoned to by the respondent, his
reluctance to sign the contract would be discussed and he would
place
the same reasonby maintaining that the contracts were dissimilar.He
said that during lunch times when the workers would discuss
the
contracts, all of them would produce a uniformed contract that
oppressed or forcedthem to a three months fixed contract as
opposed
to a permanent contract. Heinsisted that Mr Anderson was always
reluctant to explain thecontractduringthe inquiries or
hearings. Mr
Anderson would say it was similar to the one that was issued by the
previous employer and he wouldnot entertain the
request to go through
it and to clarify it in details.
[14] Upon looking on the
second page of the document, he noticed that it was written to be a
three months contract. Further, he
was taken aback by the condition
that they were not supposed to share their remuneration information
with fellow employees. There
was a specialised way of searching,that
is polygraph test, that was being introduced upon signing the
contract, whereas he was
aware that there were cameras or CCTV’s
all over which were sufficient with regards to searching.
[15] What also puzzled
himwas that it was expected of the employees to work in excess of
their normal working hours. He said that
the normal procedure would
be, if the boss requiredone to work overtime he would request one and
indicate to him or her how much
longer he or she would have to work
and likewise promise to pay overtime in respect thereof. The new
contract stated: ‘
When given daily tasks are not
completed due to insufficiency from an employee, you will be required
to complete that task and no
overtime is due.’
That
too he said was dissatisfactory in the sense that there was no
agreement reached between themselves as staff and management.
It was
just imposed upon them. As to why the employer would want to be
discussing a contract in January 2006 that ended on 20 September
2005
the applicant said was because that contract became the basis of the
misunderstanding between the manager and himself when
the manager
instructed him to do the work of an absent person whereupon he asked
the manager how it came about that he was given
an instruction to act
in that person’s stance. The manager said that he could
instruct him as it was contained in his contract
which he had signed.
[16] Page 5 of the
proposed contract he said had the first sentence which read
:
‘I have read and fully understand and accept the terms and
conditions of service contained in the above letter of appointment
and addenda. I attach my signature to this document willingly and of
my own accord.’
For his part, he said that he did
not sign it because there was no agreement reached nor any
clarification of the contract that
was entered in between the
parties.
[17]
As to what transpired on 19 January 2006,
the evidence of the applicant was that, after the discussion on that
day, he was instructed
go back to his workstation so that the
respondent could discuss the issue with his CCMA consultant or legal
adviser. He duly complied
and he worked a full day and then signed
out as usual. He denied that a contract of employment was placed on
the table for him
to sign. He denied that Mr Briggs attended the
hearing on that day.
[18] He said that he
returned to work on the following day and continued with his routine
duties.At about 12h30 he was called by
Mr Anderson whothen simply
handed the letter of 20 January 2006 to the effect that he was no
longer in the employ of the company.The
letter was enveloped.He
simply took it and put it in his pocket. He took his price gun and
went on to price the eggs and whilst
doing that, Mr Briggs came,
manhandled himand said:‘
You no longer have to be working
and the employment relationship is finished.’
The
applicant tried to walk through the front door butMr Briggstold him
that he was not entitled to use it and he pointed him to
another
door. He said there was nothing untoward about being handed the
letter.If he were being dismissed, he would expect to see
a package
of his notes so that package should be thicker than just a letter.
[19] Upon the
commencement of his action he went to the Department of Labour and
told them that his company saidit was dismissing
him but said he was
not going to be given any UIF benefits. Hewas asked if he was paid at
all and he reported that he had not been
paidand was told to go and
ask for his salary. As he went to his workplace for that salary, Mr
Briggs took notes, put them together
and he started filling in a
payslip and asked him to sign on the dotted line.The applicantqueried
his payslip being filled in by
hand.He decidedto check the whole
thing and then queried what had been done,sayinghe was not going to
sign that document. Mr Briggstold
him that he was not going to get
his pay. His final pay was neverpaid to him by the company.
[20] He went back to the
Department of Labour where he was given a set of UIF claim documents
which hetook back to the company to
fill in.When he was firedhe was
told that he would not be entitled to any UIF benefits.Once the forms
were completed and submitted
he receivedUIF benefits. Heasked to have
all the payments due paid over to himself, including the December
overtime pay as well
as the January salary which hesaid he did not
get sincehe had been fired. His monthly salary as reflected in a pay
slip was R2
460.00. Heasked to be compensated for the time lost and
to be reinstated. He said that he had not been able to get
alternative
employment.There was never a stage whenhe wished to be
dismissed from the company, taking into account that Mr Anderson had
himself
indicated that he had faith in him, in the sense that they
could proceed to build up the company together. The Indian manager
who
was trying to drive a wedge between him and Mr Anderson would say
things about him which were not true.
Respondent’s
version
[21] Mr Anderson said
that when the voluntary retrenchment were offered by the Spar Group
to certain employees, the applicant unsuccessfully
applied for it
with the result that he thereafter frequently expressed anger at not
being granted such voluntary retrenchment.
[22] Mr Anderson said
that the contract of employment relied on by the respondent, with a
one paragraph letter, appearing on pages
4 to 5b of bundle 1, was
handed to every employee at Umhlanga Spar, around 21 September 2005.
He said that all that the contract
had was a probation period of
three months which by the time the contract was handed to the
employees, had already passed in any
event.He said that he issued
this document to his staff because he was also initially given three
months period when he purchased
the business.He together with a lady
who worked at the shop explained the contents of the contract to each
employee. In about November
2005, the Department of Labour came and
did an audit at their premises.They discovered that there were two
contracts of employment
which had not been filed back from the
employees. One was of the applicant. At that time Mr Anderson was
under the impression that
all employees had signed and returned their
contracts. On or about 21 November 2005, Mr Anderson together
with a manager had
a meeting with the applicant to discuss why he had
not signed his contract aspointed out by the Department. In those
discussions
that he had, it was the contract at page 4 to 5b of
bundle 1 that was on the table in the meetings with the applicant.
[23] Mr Anderson saidthat
he gave the applicant that contract but he gave him a new contract.At
that meeting he made a note on the
contract of employment that was
there for discussion, that the applicant said thathe gave his
contract to his lawyer andhe was
waiting for thelawyer’s input.
The applicant said that he noted something wrong regarding the sick
leave provision.
[24] Mr Anderson also
said that on about 21 December 2005, after they had been visited by
the South African Revenue Services, SARS,it
was discovered that the
applicant had not submitted his contract. SARS officials gave him two
weeks within which to sort out the
problem and he was told that if
the problem was not resolved, inspectors from the Department would be
sent. They again approached
the applicant and asked if he had signed
the contract, to which he replied that it was still with his
lawyers.The next probe on
the issue arose in a disciplinary enquiry
held against the applicant on 11 January 2006 pertaining to some
insolent and insulting
behaviour towards his supervisor.The applicant
was on that day given 24 hours within which to return a signed
contract.Still he
did not comply.
Events of 19 January
2006
[25] A disciplinary
enquiry was scheduled for 19 January 2006 to deal with the refusal of
the applicant to return a signed contract
of employment. Mr Briggs
attended as the complainant and Mr Anderson captured notes of the
hearing as the Chairperson. Only two
issues were raised by the
applicant as reasons for contending that the contract was different
from the initial one signed by employees
with the previous shop
owners. Those were the sick leave and the floor manager, Mr Gansen’s
changed attitude. From the side
of the respondent, there was no
change on the sick leave as it was regulated by Government
legislation. The applicant then walked
out of the discussion which
was in progress. It had lasted for about 5 to 10 minutes. Mr Anderson
then told Mr Briggs that he had
to go even though they had not
completed what they set out to do. He had another meeting to
attend.
Before leaving the shop Mr Anderson went to
do shopping for his wife. He met Mr Briggs who reported to him that
the applicant had
left his working place.
[26] Mr Hiruchand Bastew
otherwise known as Baboo was the Assistant Manager perishable goods
at the shop of the respondent. During
the time of 14h00 to 15h00 he
was working at the Receiving end of the shop, attending to
deliveries. He saw the applicant, who
had bought a newspaper,as he
would often do before going home. The applicant came to sign off and
exited the shop through the receiving
point. Mr Bastew assumed that
the applicant was going home when he was supposed to be working with
perishables.
[27] Mr Briggs confirmed
the various times that the applicant was asked to return a signed
contract and that he failed to do so.
He confirmed having attended
the disciplinary hearing of 19 January 2006 against the applicant and
that it was decided to convert
it to a discussion. The applicant said
that the contract was different from the initial one on the sick
leave provision. He was
told that the provision was in terms of the
government legislation. He also complained about a changed attitude
of Mr Gansen but
failed to substantiate his claim. The applicant then
left the meeting which had lasted for about 15 minutes. He went to
take his
jersey and a newspaper and left the shop from the receiving
end without completing his shift.
Events of 20 January
2006
[28] Messrs Briggs and
Bastew reported for duty at 06h00 as usual and the rest of the staff
came in at different times. The applicant
was to report either at
07h00 till 16h00 or at 08h00 till 17h00. At about 08h00 the applicant
was seen by Mr Briggs sitting on
a bench next to the chemist close to
the respondent’s shop, without reporting for duty. According to
Mr Bastew the applicant
signed on for duty on 20 January 2006 and
signed off. Upon re-examination however, he changed and said that he
first saw the applicant
sitting on the bench and did not see him sign
on or off.
[29] On 20 January 2006
Mr Anderson first went to his shop in Pinetown and he proceeded to
the Umhlanga branch at about 10h30 to
11h30. He found the applicant
sitting on a bench opposite the chemist. He asked the applicant as to
what was happening and the
applicant said he came to collect his
money. Mr Anderson went passed the applicant to the shop book- keeper
known as Hubetjie.
Both sat down and calculatedan amountof what was
to be paid to the applicant.
[30] Mr Anderson then
used the notes he compiled on the previous day todraft a letter which
he thereafter asked Hubetjie to type
(as per paragraph 10 hereof). He
thereafter signed it but had not carefully read it. He also explained
to Mr Briggs what was going
on and asked him to call the applicant
in. The applicant came in and he never complained of having been
manhandled by Mr Briggs,
which allegation was also denied by Mr
Briggs. The applicant showed no intention of wanting to work. He
appeared frustrated and
wanted his package. According to Mr Anderson
the latter was given to the applicant, he opened it and dropped it’s
envelop
on the floor. According to Mr Briggs Mr Anderson read the
letter out for the applicant in English and handed it to him. The
applicant
made no request for an explanation on the letter.Instead he
walked out of the office and never came back to tender his services.
[31]
Mr Briggs took the manner of deserting his post as abscondingbut he
did not consider it necessary to initiate disciplinary
actions
against him.After the dismissal dispute had been conciliated, the
applicant came to the shop to ask for his pay. He was
presented with
a pay slip with an endorsement “full and final settlement”,
which was to be understood to refer to
“
full
and final settlement of his salary for that particular month and his
leave pay. The applicant refused to accept payment under
those
conditions and he left.
Analysis
[32] While it remained
common cause between the parties that the employment of the applicant
by the respondent came to an abrupt
end on 20 January 2006, there is
a live dispute about whether such termination was a dismissal. In
terms of section 192 (1) of
the Act the applicant had to prove the
existence of the alleged dismissal. The versions of the parties on
the events of, and those
that followed the meeting of 19 January 2006
until the morning of 20 January 2006 are so materially contradictory
that they cannot
co-exist. Yet it is from these events that the
probabilities of whether there was a dismissal largely depend.
[33] The single evidence
of the applicant is simply that he left the meeting on 19 January
2006 and proceeded to his working station
until the end of his shift.
On the following day he reported for duty as usual until Mr Briggs
called him to Mr Anderson’s
office where he was given a letter
dated 20 January 2006.This version is sharply contradicted by that of
the respondent’s
witnesses who said that the applicant left the
meeting, went to his work station and was seen leaving his post early
without permission,
carrying a newspaper and his jersey. On the
following day he did not report for duty. Instead he sat on a bench
and when Mr Anderson
arrived, the applicant demanded his package from
him, making it abundantly clear that he no longer wanted to tender
his services.
[34] The letter of 20
January 2006 issued by the respondent to the applicant becomes
relevant as evidential material. Both parties
relied on it in support
of their cases. The first and the last three paragraphs read:
‘
Re:
Outcome of discussion – 19/01/2006
This letter serves to confirm our
discussion regarding you no wanting to sign your letter of
appointment/contract.
…………
…………
You were finally asked if you had any
intensions to sign. You said you will not sign and walked out of the
office.(sic)
Based on the outcome there is no
longer an employment relationship between us with you opting not to
sign. Unfortunately you are
as from today no longer in our employ.
This is not a dismissal as you have
chosen not to sign the contract and have terminated your employ on
your behalf.’
[35]
There
clearly is no doubt that when Mr Anderson handed the letter to the
applicant he was communicating a decision which the respondent
had
taken against a person it regarded as its employee at that very
moment. The decision taken was that: ‘
Based on
the outcome there is no longer an employment relationship between us
with you opting not to sign. Unfortunately you are
as from today no
longer in our employ...’
[36] If the intention of
Mr Anderson was to communicate in writing that the employment
relationship with the applicant terminated
because the applicant
resigned or absconded from his employment, he certainly would have
said so in his letter. He deliberately
chose not to. Resignation and
abscondment are seriou
s acts
by an employee which once communicated to the employer it calls for a
reaction from such an employer.
[37] When the letter is
seen against what the applicant probably did between 19 and 20
January 2006, the letter is reconcilable
with the version of the
applicant, to the exclusion of that of the respondent. The
probabilities of this matter do not favour the
version that the
letter was written to an employee who was found sitting on a bench
and who thereafter demanded his salary package.
If the applicant had
behaved as described by the respondent, he would have made it very
easy for the employer to facilitate the
termination of employment.
There would have been no need for Mr Anderson to revert to events of
the previous day.
[38] There are further
pointers that the version of the applicant is favoured by a balance
of probabilities. Mr Bastew was a hopeless
witness in an attempt to
say that the applicant left his post early on 19 January 2006. He
could not explain why he remembered
the events of 19 January 2006 as
opposed to events of other days he was challenged on. His initial
evidence was that the applicant
signed on and off as usual on 20
January 2006, a version presented by the applicant. During
re-examination he contradicted his
own version without explaining
why.
[39] When the applicant
returned to demand his outstanding salary pay, he was presented with
a pay slip written: “Full and
final settlement.”The
explanation that the phrase was used in all pay slips is highly
improbable in the circumstances. The
applicant came to collect his
pay. If the phrase was in common use he would have accepted its use
as a common practice. In his
evidence he denied the used of the
phrase and he said there was a book where they signed for the receipt
of their salaries. That
evidence was never challenged and is
accepted.
[40] I
conclude therefore, that it is the respondent who terminated the
employer/employee relationship which subsisted between the
parties
until 20 January 2006. The next probe turns on whether such
termination was a dismissal. The applicant referred to the
letter of
20 January 2006 as a dismissal letter. Section 186 (1) of the Act
defines a dismissal to,
inter
alia,
mean:
‘
An employer has terminated a
contract of employment with or without notice.
…
..
…
.
An employee terminated a contract of
employment with or without notice because the new employer, after a
transfer in terms of
section 197 or section 197A, provided the
employee with conditions or circumstances at work that are
substantially less favourable
to the employee than those provided by
the old employer.’
[41] It has always stood
as common cause between the parties that even before the respondent
was taken over by Mr Anderson, in terms
of section 197 of the Act,
there was a valid written contract of employment between the
applicant, as one of the employees, and
the respondent. A refusal by
the applicant to sign a new contract of employment had the result
that the parties were still bound
by that old contract. What Mr
Anderson did on 20 January 2006 was to terminate that contract of
employment without notice, as it
was effective immediately. It has
therefore been shown that the respondent dismissed the applicant. The
next probe turns on the
fairness of such a dismissal. The onus here
rests on the respondent, section192 (2) of the Act states as follows:
‘
(2) if the
existence of the dismissal is established, the employer must prove
that the dismissal is fair.’
[42] No effort was ever
made by or on behalf of the respondent to lead evidence to prove the
fairness of the dismissal. The last
two paragraphs of the heads of
argument submitted on behalf of the respondent put this issue beyond
doubt as they read:
‘
Bearing in
mind that the onus is on the Applicant to prove that he was
dismissed, it is submitted that the Applicant has fallen
woefully
short of proving dismissal. If he has not proven that he was
dismissed, then there is no need for an enquiry as to whether
such
dismissal was automatically unfair. On this latter issue, given that
the very contract on which Applicant seeks to rely is
not in fact the
contract which he was asked to sign, and which is not materially
different to his existing contract of employment,
there can be no
basis for alleging an automatically unfair dismissal.’
In such circumstances, the Applicant's
claim falls to be dismissed with costs.’
[43] In his evidence the
applicant identified the disparities in the new contract he was
called upon to sign, see paragraphs 14
and 15 hereof. Page 1 of the
contract he was asked to sign contains congratulatory words for his
appointment with effect from 21
June 2003. In 2005 the applicant was
speaking of having had experience in the region of 20 years with the
respondent. That evidence
was never challenged. The contract had a
probation period of three months. It was never explained what this
provision was doing
in a contract of a person of about 20 years of
experience.
[44] The consequence is
that the applicant was able to show that the respondent attempted to
compel him to accept a demand in respect
of a matter of mutual
interest, thus contravening section 187 (1) (c) of the Act when his
terms of employment were protected from
changing to the worse by
section 197(4) of the Act.
[45] The applicant seeks
to be accorded the primary relief of reinstatement permitted in terms
of section 194 of the Act. Court
has an obligation to also consider
the delay there has been in this matter since the date of dismissal
and therefore, the practicability
of a reinstatement. It needs to be
pointed out though, that the financial loss experienced by the
applicant cannot be adequately
compensated by the maximum prescribed
compensation in terms of section 194 of the Act. This matter was
initially set down for a
default judgment on 16 March 2007 as it was
then unopposed. On 3 June 2008 the respondent was granted condonation
for the late
filing of its statement of defense. Trial only started
on 22 June 2009. Between 2009 and 2011 the matter was delayed between
the
parties. At some stage a transcript had to be obtained. In my
view reinstatement ought not to be declined on the basis of the trial
related delay. The nature of the job done by the applicant is not of
a technical nature as to make reinstatement impracticable.
To
mitigate the financial position of the respondent, interest payable
will be limited to the salary which was due and payable
as on 20
January 2006.
[46] The following order
shall issue:
The respondent is
ordered to reinstate the applicant from the date of dismissal, that
is, 20 January 2006, with no loss of earnings
and/or benefits which
the applicant was entitled to. Such outstanding salary is to be paid
to the applicant on 23 April 2012.
The applicant is to
report for duty on 23 April 2012 at 08h00.
The respondent is to pay
costs of this application.
The respondent is
ordered to pay interest of any salary that was outstanding to the
applicant as on 20 January 2006, to be calculated
from 20 January
2006. Interest of any payment ordered in paragraph 1 of this order
begins to run from 23 April 2012.
______________
Cele J.
Judge of the Labour
Court.
APPEARANCES:
FOR THE APPLICANT: Mr
Jafta of Jafta Incorporated.
FOR THE RESPONDENT: Mr
Forster of Forster Attorneys.
1
Act
Number 66 of 1995.