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[2014] ZALCJHB 333
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Sihlali v South African Broadcasting Corporation Ltd (J700/08) [2014] ZALCJHB 333 (14 January 2014)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
IN BRAAMFONTEIN
CASE
NO: J 700/08
In
the matter between:
SIHLALI,
MAFIKA
Applicant
and
SOUTH
AFRICAN BROADCASTING CORPORATION LTD
Respondent
JUDGMENT
VAN
NIEKERK J
Introduction
[1]
The applicant was employed by the respondent (the SABC) as its legal
adviser in terms of a fixed term contract concluded on
1 August 2006.
The contract was to terminate automatically three years later, on 31
July 2009. On 25 August 2007, the applicant
sent a sms to the SABC’s
group chief executive officer, Mpofu, indicating that he “quit
with immediate effect”.
The applicant contends that the sms did
not constitute a valid termination of his employment contract because
any notice of termination
of employment had to be given in writing
and because in any event, he withdrew his resignation before it was
accepted by the SABC.
In these proceedings, instituted in terms of s
77 of the Basic Conditions of Employment Act (BCEA), the applicant
claims his remuneration
for the period August 2007 to the end of the
agreed fixed term. The SABC contends that it is not liable to the
applicant because
the sms sent on 25 August 2007 constituted a valid
resignation; alternatively, because the applicant repudiated his
contract of
employment by sending the sms and failing afterward to
tender his services.
[2]
The parties’ legal representatives agreed that the preliminary
issues raised by the pleadings were whether the sms sent
by the
applicant on 25 August 2007 constituted a valid resignation and if
so, whether it was open to the applicant to revoke his
resignation
prior to its being accepted by the SABC. I directed that evidence be
led initially only in respect of those issues.
[3]
The applicant led evidence on his own behalf, and called a further
witness, a Mr Thabang Mothibe. After the applicant had closed
his
case, Mr Pretorius SC, who appeared for the SABC, applied for
absolution from the instance. This is my ruling on that application.
The
applicable principles: absolution from the instance
[4]
This Court recently affirmed its power to grant absolution
from the instance in appropriate circumstances. The test is whether
at
the close of a plaintiff’s case, there is evidence upon
which a court, applying its mind reasonably to that evidence, could
or might find for the plaintiff (see:
Minister of Safety and
Security v Madisha & others
(2009) 30
ILJ
591 (LC),
referring to
Claude Neon Lights (Pty) Ltd v Daniel
1976 (4) SA
403
(A)). In
Claude Neon
, the court formulated the test as
follows:
“
When absolution
from the instance is sought at the close of plaintiff’s case,
the test to be applied is not whether the evidence
led by the
plaintiff establishes what would finally be required to be
established, but whether there is evidence upon which a Court,
applying its mind reasonably to such evidence, could or might (not
should, nor ought to) find for the plaintiff (Gascoyne v Paul
and
Hunter
1917 TPD 170
at 173, Ruto Flour Mills (Pty) Ltd v Adelson (2)
1958 (4) SA 307
(T)”
Harms JA approved this
approach recently in
Gordon Lloyd Page & Associates v Rivera &
another
2001 (1) SA 88
(SCA) at 92 G, where he added:
“
This
implies that a plaintiff has to make out a prima facie case –
in the sense that there is evidence relating to all the
elements of
the claim – to survive absolution because without such evidence
no court could find for the plaintiff…”
The
evidence
[5]
It is common cause that the applicant’s contract of employment
no longer subsists. The applicant’s contract contemplated
that
he would be employed for a period of 36 months, from 1 August 2006
until 31 July 2009, when the contract would ‘terminate
automatically’. Despite the contemplated duration of the
contract, the SABC’s personnel regulations (which form an
integral part of his contract of employment) contemplate a prior
termination at the initiative of either party. The relevant clause
in
the regulations reads as follows:
“
TERMINATION
OF SERVICE
(a)
An employee’s services may be
terminated at any stage for misconduct, incapacity, poor performance
or for operational requirements
of the Corporation or for any reason
justified in law.
(b)
With the exception of staff
appointed on extraordinary terms and conditions of employment, and
subject to the provisions of Part
VI of these legislations, the
services of any employee may be terminated in writing as follows:
(i)
One (1) week’s notice if the employee has been employed for
four (4) weeks
or less;
(ii) Two (2) weeks’
notice if the employee has been employed for more than four (4) weeks
but not more than one year;
(iii)
Four (4) weeks’ notice if the employee has been employed
for 1
(one) years or more.
(c)
…
(d)
The Group Chief Executive may, in his
discretion, agree to a shorter period of notice given by an employee.
Where an employee gives
a shorter period of notice and the Group
Chief Executive accepts the shorter period of notice, the employee
shall not be entitled
to receive notice pay in lieu of that period of
notice which the Group Chief Executive has agreed to waive.”
[6]
The material facts preceding the sending of the sms to Mpofu on 25
August 2007 are briefly the following. In late 2006, the
applicant,
who was head of the SABC’s legal department, commenced an
investigation into breaches of the Public Financial
Management Act by
senior SABC officials. The investigation culminated in a memorandum
submitted to Mpofu recommending that disciplinary
steps be taken
against two senior executives, including the chief financial officer.
In April 2007, the applicant was advised that
a resolution had been
adopted to investigate the law firm of which the applicant was a
director prior to his appointment at the
SABC, following allegations
that emanated from the SABC’s internal audit department. The
applicant denied any impropriety,
but agreed with Mpofu that he would
take two weeks’ leave during which the audit committee would
conduct an investigation.
The applicant returned to work on 15 May
2007, and after further discussion agreed with Mpofu that he would
take further ‘special
leave’ until 5 June 2007. When the
applicant returned to work in July 2007, the Mail and Guardian
newspaper requested the
applicant to respond to allegations
apparently contained in an internal audit report, which the applicant
had not seen. On 20 July
2007, the applicant obtained an interim
interdict against the Mail and Guardian, preventing the publication
of any allegations
contained in the report. On 21 July 2007, the
applicant sent a sms to Mpofu, stating that he intended to resign. He
met with Mpofu
on 22 July, and after a discussion with Mpofu, the
applicant agreed not to resign. The Mail and Guardian later succeeded
in having
the interim order discharged, and published an article on 3
August reporting the allegations made against the applicant. On 13
July 2007, the applicant received a letter from Mpofu calling on him
to furnish reasons why he should not be suspended pending a
disciplinary enquiry. The applicant again brought an urgent
application in the High Court, this time seeking to interdict a
meeting
convened to decide whether he should be suspended. The
application was dismissed. On Saturday 25 August 2007, the SABC
issued a
press statement to the effect that the applicant had been
suspended on full pay pending a disciplinary enquiry.
[7]
The applicant testified in these proceedings that at approximately
11h30 on Sunday 25 August, he sent Mpofu the sms stating
that he
‘quit with immediate effect’. He did so after the
accumulation of the events referred to above, the catalyst
being a
radio news bulletin broadcast earlier that morning in which his
suspension was announced. The applicant stated that at
this point, he
felt that he was being sacrificed – he considered that he had
been unfairly accused of misconduct, and was
not getting the support
to which he was entitled. Feeling betrayed, angry and in a ‘blood
rush’, he decided to resign,
and sent the sms.
[8] The applicant
testified further that in the period between 25 August 2007 and 11
October 2007, he had a vague recollection of
events. He spent time at
home, seldom venturing out, in what he described as a ‘dark
period’ of his life. During this
period, he realised that he
was not thinking straight when he sent the sms to Mpofu and that,
looking at the longer term implications,
he was concerned that it
could have been construed as an attempt to avoid the disciplinary
charges against him. The only way for
him to clear his name and
reputation was for the enquiry to proceed, so that the matter could
be cleared up one way or another.
For these reasons, on 11 October
2007, the applicant sent Mpofu an email. The email read:
“
Dali
my contract still subsists. You should proceed with your disciplinary
charges within the next 14 days. Otherwise I will take
it as
repudiated.”
[9]
On 12 October 2007, Mpofu’s executive assistant sent the
applicant the following email:
“
Mafika
Thank
you for your note – Dali is currently in Korea and his cell
phone is not working, but I will try to get it to him.
In
the meantime, please receive the attached letter that I have been
trying to send you for the last two weeks without success as
we never
find anybody at the address on your personnel file (8 Rudderford
Street, Sunninghill)”
[10] The attached letter,
dated 28 September 2007, reads as follows:
“
Dear
Mr Sihlali,
TERMINATION
OF EMPLOYMENT RELATIONSHIP
I
wish to confirm that on 25 August 2007, you sent me an sms indicating
your decision to resign your employment with the SABC. On
the same
day you made statements to the media announcing the same decision.
While
accepting your decision I subsequently sent you a massage to submit a
letter of resignation, which you have ignored.
I
wish to reconfirm that from the SABC point of view your resignation
was accepted and that you are now obliged, before 31 October
2007, to
return any property of the SABC within your possession and control
and to finalise any outstanding matters with the Human
resources
Division.
It
remains for me to thank you for your service and wish you luck in
your future endeavours.
Yours
faithfully
Dali Mpofu
Group
CEO”
It
is common cause that the first occasion on which the applicant had
sight of this letter was 12 October 2007, the day the applicant
received the email from Mpofu’s assistant.
Resignation
[11]
A resignation is a unilateral termination of a contract of employment
by the employee. The Courts have held that the employee
must evince a
clear and unambiguous intention not to go on with the contract of
employment, by words or conduct that would lead
a reasonable person
to believe that the employee harboured such an intention (see
Council
for Scientific & Industrial Research (CSIR) v Fijen
(1996) 17
ILJ
18
(AD), and
Fijen v Council for Scientific
& Industrial Research
(1994) 15
ILJ
759 (LAC)). Notice of termination of employment given by an employee
is a final unilateral act which once given cannot be withdrawn
without the employer’s consent (see
Rustenburg
Town Council v Minister of Labour & others
1942
TPD 220
;
Potgietersrus Hospital Board v
Simons
1943 TPD 269
,
Du Toit v Sasko (Pty) Ltd
(1999) 20
ILJ
1253 (LC) and
African National Congress
v Municipal Manager, George & others
(550/08)
[2009] ZASCA 139
(17 November 2009) at para [11]). In other
words, it is not necessary for the employer to accept any resignation
that is tendered
by an employee or to concur in it, nor is the
employer party entitled to refuse to accept a resignation or decline
to act on it.
(See
Rosebank Television &
Appliance Co (Pty) Ltd v Orbit Sales Corporation (Pty) Ltd
1969 (1) SA 300
(T)). If a resignation to be valid only once it is
accepted by an employer, the latter would in effect be entitled, by a
simple
stratagem of refusing to accept a tendered resignation, to
require an employee to remain in employment against his or her will.
This cannot be – it would reduce the employment relationship to
a form of indentured labour.
[12]
This is not to say that a resignation need not be communicated to the
employer party to be effective – indeed, it must,
at least in
the absence of a contrary stipulation (
African
National Congress v Municipal Manager, George & others
(
supra
)).
[13]
A resignation is established by a subjective intention to terminate
the employment relationship, and words or conduct by the
employee
that objectively viewed clearly and unambiguously evince that
intention. The Courts generally look for unambiguous, unequivocal
words that amount to a resignation- see, for example,
Fijen
v Council for Scientific & Industrial Research
(s
upra
)
where the Labour Appeal Court stated that to resign, the employee had
to ‘act in such a way as to lead a reasonable person
to the
conclusion that he did not intend to fulfil his part of the
contract.’
[1]
[14]
The requirement of a clear and unambiguous intention to terminate the
contract may often be more easily stated than applied.
As Mark
Freedland observes, if a worker utters words seeming to indicate an
intention to leave employment, the utterance may be
unclear, the
product of uncertainty, or a manifestation of anger rather than an
expression of a definite intention to terminate
the employment
relationship. When it is claimed that an employee has decided to
terminate his or her employment of his or her own
volition, it may be
necessary to scrutinise the genuineness of that volition to
determine, for example, whether the employee’s
action is the
result of an unacceptable degree of pressure by the employer, or
whether the employer has been over-eager to treat
an impulsive
decision as a settled one.
[2]
Analysis
[15]
To the extent that the applicant testified that he made the decision
to terminate his employment in stressful circumstances
and in an
angry response to his suspension, the applicant did not claim that he
was incapable of appreciating what he was doing,
or the consequences
of his actions. On the contrary, his testimony was that when he sent
the sms, he intended to resign but that
some six weeks later he
regretted the decision. In the email subsequently addressed to Mpofu,
the applicant contended that his
contract remained in existence not
on account of any diminished capacity at the time he sent the sms,
but because after a lengthy
period of reflection he considered his
continued employment a means to the end of his restored reputation.
However noble this motive
may be, it cannot in law serve as a basis
to resurrect the applicant’s contract of employment some six
weeks after its termination
in circumstances where the demise of the
contract was brought about by his applicant’s voluntary and
deliberate conduct.
[16]
In my view, the sms sent by the applicant to Mpofu on 25 August 2007
is a clear statement of the applicant’s intention
to terminate
his employment. There is nothing unclear or equivocal about the
communication to Mpofu, and its terms are not ambiguous.
[17]
Mr Hardie, who appeared for the applicant, contended that the sms
sent by the applicant to Mpofu on 25 August did not constitute
a
valid resignation. For the applicant’s resignation to have been
effective, Mr Hardie submitted, it must have been tendered
in writing
and accepted by the SABC. Since neither condition had been met, the
applicant’s contract continued to subsist
beyond 25 August
2007.
[18] In support of the
first leg of his argument, Mr Hardie relied on s 37 (4) (a) of the
BCEA, which requires that notice of termination
of a contract of
employment must be given in writing, except when it is given by an
illiterate employee, and paragraph 9 of the
personnel regulations,
which similarly refer to notice of termination ‘in writing’.
I am not convinced that where there
is a resignation in the form of a
clear and unequivocal intention by an employee not to continue with
the employment contract,
it is invalid only because it was not
reduced to writing – it seems to me that this is a requirement
that may be waived.
But I need make no finding in this regard - a
communication by sms is a communication in writing. Section 12 of the
Electronic Communications and Transactions Act, 25 of 2002
provides:
“
A
requirement in law that a document or Information must be in writing
is met if the document or Information is-
(a)
in the form of a data message; and
(b)
accessible in a manner usable for subsequent reference…”
Section 1
defines a ‘data
message’ to mean ‘data generated, sent, received or
stored by electronic means…’
(See
also the recent decision by this court in
Jafta
v Ezemvelo KZN Wildlife
[2008] ZALC 84
;
[2008] 10 BLLR
954
(LC)). The applicant’s resignation by sms was therefore a
resignation submitted in writing.
[19]
In support of the second leg of his argument, Mr Hardie contended
that I was bound by the judgment of the Labour Appeal Court
in
CEPPWAWU & another v Glass and
Aluminium 2000 cc
[2002] 5 BLLR 399
(LAC), and the principle established in that judgment to the effect
that a resignation tendered by an employee requires acceptance
by the
employer party. In his judgment, Nicholson JA dealt with a claim of
constructive dismissal, i.e. a claim by an employee
that he resigned
because the employer had made continued employment intolerable. The
employee concerned, a shop steward, had left
his employment ‘in
the heat of the moment’. In the course of his judgment, and in
the context of a discussion on resignation
generally and how
ambiguous statements and conduct should be interpreted, Nicholson JA
stated that “Resignation brings the
contract to an end if it is
accepted by the employer” (at paragraph [33] of the judgment).
There is no authority cited for
this statement, which has been
criticised as an incorrect reflection of the law. (See, for example,
Grogan
Dismissal, Discrimination and
Unfair Labour Practices
, at p145; PAK
le Roux
Current Labour Law
2002, at p 4). Mr Hardie found support for his submission in
Uthingo
Management (Pty) ltd v Shear NO & others
(2009) 30
ILJ
2152 (LC), where this court, referring to
Glass
and Aluminium
, appears to have accepted
that the intention of an employer in accepting notice given by an
employee must be ‘clear and unconditional’
(at 2155J).
[20]
The statements made in
Glass and
Aluminium
and
Uthingo
to the effect that it is necessary for
a resignation to be accepted by an employer are
obiter
.
Glass and Aluminium
concerned a statutory claim of unfair dismissal and the
interpretation of
s 186
(1) of the LRA rather than a contractual
claim such as the present;
Uthingo
was
a review of an arbitration award in an unfair dismissal dispute, an
element of which concerned the application of a notice clause
in an
employment contract and the definition of ‘dismissal’ in
s 186.
I see no reason to depart from the long line of authorities
referred to in paragraph [11] above, all of which directly concern
themselves, as does this case, with contractual disputes. The effect
of the authorities is that a resignation is a unilateral act
by an
employee that does not require acceptance by the employer.
[21]
In summary: on the facts disclosed by the evidence (and admitted in
the pleadings and the pre-trial minute), the legal issues
determine
the matter against the applicant. The applicant resigned. To the
extent that it was necessary, his resignation was tendered
in
writing. His resignation could not be withdrawn without the SABC’s
consent, which was never given. In these circumstances,
the applicant
cannot survive absolution.
I
accordingly make the following order:
1.
Absolution from the instance is granted,
with costs.
ANDRE
VAN NIEKERK
JUDGE
OF THE LABOUR COURT
Date
of hearing: 23 November 2009
Date
of Judgment: 14 January 2010
Appearances:
For
the Applicant: Mr. Hardie from Stephen Hardie Attorneys
For
the Respondent: Adv P Pretorius SC; with Adv M Dewrance
Instructed
by: Eversheds
[1]
.
See also
Southern
v Franks Charlsely and Co
[1981] IRLR 278.
[2]
MR
Freedland
The
Personal Employment Contract
(OUP. Oxford, 2003) at p. 420. See also
CEPPWAWU
& another v Glass and Aluminium 2000 cc
[2002] 5 BLLR 399
(LAC),