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[2015] ZALCJHB 277
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Mnguti v Commission for Conciliation, Mediation and Arbitration and Others (JR 349/12) [2015] ZALCJHB 277; (2015) 36 ILJ 3111 (LC) (28 August 2015)
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case
no: jR 349 / 12
In the matter between:
NATHANIEL ANDILE
MNGUTI
Applicant
and
COMMISSION FOR
CONCILIATION, MEDIATION
AND ARBITRATION
First Respondent
JABULANI JELMOND
MASHABA N.O.
Second Respondent
QK MEATS SA (PTY) LTD
t/a DAWN FARM
Third Respondent
Heard
:
30 June 2015
Delivered
:
28 August 2015
Summary:
CCMA
arbitration proceedings – Review of proceedings, decisions and
awards of commissioners – Test for review –
Section 145
of LRA 1995 – Review concerning issue of jurisdiction –
Test of rationally and reasonableness does not
apply – award
considered
de
novo
on the basis of being right or wrong.
Resignation –
conduct constituting resignation – principles consi
dered.
Dismissal –
determination of existence of dismissal – finding that no
dismissal exists upheld.
Review of award –
conclusion of arbitrator correct – Arbitration award upheld –
review dismissed.
JUDGMENT
SNYMAN, AJ
Introduction
[1]
This
matter concerns an application by the applicant to review and set
aside an arbitration award of the second respondent in his
capacity
as a commissioner of the CCMA (the first respondent). This
application has been brought in terms of Section 145 of the
Labour
Relations Act
[1]
(‘the
LRA’).
[2]
The
second respondent was called upon to decide whether the applicant had
indeed been dismissed by the third respondent. According
to the
applicant, the third respondent simply dismissed him out of hand,
whilst according to the third respondent the applicant
had verbally
resigned and left. In an award dated 25 October 2011, the
second respondent then decided that the applicant
had verbally
resigned and left, and had not been dismissed by the third
respondent. The second respondent then dismissed
the
applicant’s referral. It is this determination by the
second respondent that forms the subject matter of the review
application brought by the applicant.
The
relevant evidence
[3]
The
applicant had been employed by the third respondent as a team leader
on 1 March 2005, and continued employment in this capacity
until the
termination of his employment on 31 August 2011. The applicant
reported to Andrew Jordan (‘Jordan’),
the third
respondent’s production manager. The events giving rise
to this matter took place on 31 August 2011, and
are set out
hereunder.
[4]
The
applicant and the third respondent had different versions about what
happened on 31 August 2011. Starting with the version
of the
applicant, he said that he had an argument with Jordan on that day.
According to the applicant, Jordan told him in
the course of the
argument that if the applicant wanted to leave, he (Jordan) wanted a
resignation letter from the applicant.
The applicant said he
told Jordan that he did not have time to write a resignation letter
and he then left. The applicant
also contended that Jordan told
him to leave. According to the applicant, Jordan also asked him
to hand over his clock card
at the main gate.
[5]
Jordan
testified that on 31 August 2011, he was returning from a stock
meeting, when he noticed the applicant appeared to be agitated
and
frustrated. Jordan proceeded to enquire from the applicant
about his daily production tasks. In the course of this
discussion the applicant, who remained agitated, told Jordan that he
was resigning and was leaving. Jordan did not immediately
address this further, but saw the applicant walking to the technical
office, where the technical manager, Lebogang Harris (‘Harris’)
was, and then speaking to Harris. Jordan went to the office
where the applicant again said he wanted to leave. In the
presence of Harris, Jordan then told the applicant that if he wanted
to resign, he needed to submit a resignation letter in writing
so the
third respondent could know when he wanted to leave. According
to Jordan, the applicant refused to hand in a resignation
letter and
simply left. Jordan said he never asked the applicant to return
his clock card, and the applicant simply handed
it in himself upon
leaving.
[6]
Harris
also testified, and said that the applicant made it clear to her on
31 August 2011 that he wanted to ‘leave the company’.
Harris also confirmed that in her presence, Jordan said to the
applicant that if he wanted to resign, he had to put it in writing.
Harris said that the applicant did not put it in writing and simply
walked out, and that was the last Harris saw of him.
Later that
day, one of the other team leaders reported to Harris that the
applicant had left his access card at the gate.
[7]
What
is undisputed is that after the applicant had left, Jordan
immediately sent an e-mail notice to
inter
alia
the HR manager, Juanisa Brits (‘Brits’), recording that
the applicant had several times told him that the applicant
was
resigning and had left at about 12h00 on the same day.
[8]
With
Jordan having reported the applicant’s resignation to the third
respondent’s HR department, a telegram was sent
by Varshaa
Singh (‘Singh’), the HR officer, to the applicant the
very same day, confirming that his verbal resignation
to Jordan was
accepted by the third respondent, and that he was required to contact
the HR department to arrange to complete the
relevant withdrawal
documents. The telegram was delivered on 1 September 2011 but
was not signed for by the applicant.
The applicant said he
never received the telegram, but did confirm that the address on the
telegram where it was delivered to was
his correct address.
[9]
Harris
wrote her own e-mail to HR on 1 September 2011, informing Brits that
the applicant had said he was leaving the factory that
Jordan had
asked the applicant to follow procedure and submit a resignation
letter, but the applicant refused.
[10]
The
applicant testified that he returned to work on 5 September 2011, and
spoke to someone by the name of Serita, who told him to
come back to
work on Friday (9 September 2011). The applicant was referring
to one of the other HR officers of the third
respondent, being Serita
Van Graan (‘Van Graan’). According to the applicant, and
when he came back on 9 September
2011, Van Graan was not there.
The applicant then spoke to Singh who told the applicant that he will
be telephoned on Monday
12 September 2011. When the applicant
was not telephoned on 12 September 2011, he came back on 13 September
2011, and from
the security office at the gate, he called Van Graan.
The applicant said that Van Graan then told him that she had
heard
that the applicant had resigned and the applicant told her that
he did not. Van Graan then told the applicant to go home and
that he would be contacted, but he was never so contacted.
[11]
The
third respondent’s version was different to what the applicant
said, above. Van Graan testified that the applicant
made
contact with her only about two weeks after he resigned (12 September
2011), and said he wanted to make an appointment to
see her. She
asked him if he wanted to come and see her to fill in the pension
fund forms, and he said that he wanted to
come and see her because he
did not resign. She then told him that he had resigned ‘with
his manager’ and a telegram
was sent accepting his
resignation. There was no further discussion about this issue
at the time, and the applicant did not
come to see her. Van
Graan testified that only on 26 September 2011, the applicant
contacted her again to make arrangements
to come and complete his
pension withdrawal forms, and it was arranged that he would come on
28 September 2011 to do so.
The applicant then came to see her
on 28 September 2011 and completed the pension withdrawal documents.
Van Graan further
said that the applicant handed in his access card
on 31 August 2011, and it had been re-issued to someone else.
[12]
In
the documentary evidence, there is an e-mail exchange between the
applicant and Brits, which took place on 26 September 2011.
In
an e-mail sent by the applicant to Brits, he complains that he was
waiting for two weeks’ for Brits to call him, and had
been sent
away twice by Van Graan, saying she in turn was waiting for Brits.
The applicant asked for clarity on what he should
do. Brits
answered on the same day, saying that the applicant resigned and left
on 31 August 2011, and informed him that
he should contact Van Graan
to complete the pension withdrawal documents. There was no
further response by the applicant
to this last e-mail from Brits.
The applicant however then did contact Van Graan to make arrangements
to complete the pension
withdrawal documents.
[13]
The
above was, in summary, the facts as they came before the second
respondent as arbitrator. The second respondent decided,
based
on these facts, and other considerations I address hereunder, that
the applicant had not been dismissed by the third respondent,
but had
repudiated his contract of employment by verbally resigning and
leaving on 31 August 2011. The second respondent
then dismissed
the applicant’s referral, giving rise to the current review
application.
The
test for review
[14]
The
issue whether or not a dismissal exists concerns the jurisdiction of
the CCMA. If there is no dismissal, then the CCMA
has no
jurisdiction to entertain an unfair dismissal claim. Where a
commissioner thus finds that no dismissal exists, that
commissioner
in essence determines that the CCMA does not have jurisdiction and
the matter is then dismissed on that basis.
Where such a
determination by a commissioner is then challenged on review to the
Labour Court, on what basis is such review then
decided?
[15]
In
Fidelity
Cash Management Service v Commission for Conciliation, Mediation and
Arbitration and Others
[2]
the Court considered the review test postulated by
Sidumo
and Another v Rustenburg Platinum Mines Ltd and Others
[3]
and said:
‘…
.
Nothing
said in Sidumo means that the CCMA’s arbitration award can no
longer be reviewed on the grounds, for example, that
the CCMA had no
jurisdiction in a matter or any of the other grounds specified in
section 145 of the Act.
If
the CCMA had no jurisdiction in a matter, the question of the
reasonableness of its decision would not arise
…. ’ (emphasis added)
[16]
In
simple terms, where the issue to be considered on review is about the
jurisdiction of the CCMA, the Labour Court is entitled
to, if not
obliged, to determine the issue of jurisdiction of its own accord. In
doing so, the Labour Court determines the issue
de
novo
in order to decide whether the determination by the commissioner on
jurisdiction is right or wrong. In
Zeuna-Starker
Bop (Pty) Ltd v National Union of Metalworkers of SA,
the Court held:
[4]
‘
The
commissioner could not finally decide whether he had jurisdiction
because
if he made a wrong decision, his decision could be reviewed by the
Labour Court
on
objectively justiciable grounds
....’
(emphasis added)
[17]
In
SA
Rugby Players Association and Others v SA Rugby (Pty) Ltd and
Others,
[5]
the Labour Appeal Court articulated the enquiry as follows:
‘
The
issue that was before the commissioner was whether there had been a
dismissal or not. It is an issue that goes to the jurisdiction
of the
CCMA. The significance of establishing whether there was a dismissal
or not is to determine whether the CCMA had jurisdiction
to entertain
the dispute. It follows that if there was no dismissal, then, the
CCMA had no jurisdiction to entertain the dispute
in terms of s 191
of the Act.
The CCMA is a creature of
statute and is not a court of law. As a general rule, it cannot
decide its own jurisdiction. It can only
make a ruling for
convenience. Whether it has jurisdiction or not in a particular
matter is a matter to be decided by the Labour
Court…’
[18]
I
have had the opportunity to deal with this kind of review test,
specifically in the context of whether a dismissal exists, in
Trio
Glass t/a The Glass Group v Molapo NO and Others
[6]
and
said:
‘
The
Labour Court thus, in what can be labelled a 'jurisdictional' review
of CCMA proceedings, is in fact entitled, if not obliged,
to
determine the issue of jurisdiction of its own accord. In doing so,
the Labour Court is not limited only to the accepted test
of review,
but can in fact determine the issue de novo in order to decide
whether the determination by the commissioner is
right or
wrong.’
[19]
This
‘right or wrong’ review approach has been consistently
applied in a number of judgments, in instances where the
issue for
determination on review concerned the jurisdiction of the CCMA where
the commissioner had to decide whether a dismissal
exists, including
the judgments of
Asara
Wine Estate and Hotel (Pty) Ltd v Van Rooyen and Others
[7]
,
Hickman
v Tsatsimpe NO and Others,
[8]
Protect
a Partner (Pty) Ltd v Machaba-Abiodun and Others,
[9]
Gubevu
Security Group (Pty) Ltd v Ruggiero NO and Others,
[10]
Workforce
Group (Pty) Ltd v CCMA and Others
[11]
and
Stars
Away International Airlines (Pty) Ltd t/a Stars Away Aviation v Thee
NO and Others.
[12]
[20]
I
will therefore decide whether the determination of the second
respondent that the applicant was not dismissed, but resigned, was
right or wrong, by way of a
de
novo
consideration of the justiciable facts on record.
The
merits of the review
[21]
The
application of the proper review test in the case of a jurisdictional
determination as is set out above, leaves a simple question
to be
decided, namely whether the second respondent’s finding that
the applicant was not dismissed was wrong. If this
determination was wrong, then the review must succeed. But if
this determination was right, the review must fail. In
answering this question, it must also be considered that the
applicant had the onus to prove that he was dismissed.
[13]
[22]
Before
analysing the applicant’s case and evidence, I will firstly
deal with the third respondent’s case that the applicant
resigned. In this instance, there is no written resignation by
the applicant. The case is that the applicant verbally
resigned
on 31 August 2011, and left on the same date. It is possible
for an employee to resign in such a manner, and for
an employer to
rely upon such a resignation to bring about a termination of the
employment relationship? In
Sihlali
v SA Broadcasting Corporation Ltd
[14]
the Court said:
‘
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 ….
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 …. 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.’
The
Court further held:
[15]
‘
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 ….’
[23]
Similarly,
and in
Lottering
and Others v Stellenbosch Municipality
[16]
the Court said:
‘
The
common-law rules relating to termination on notice by an employee can
be summarized as follows:
15.1 Notice
of termination must be unequivocal -
Putco Ltd v TV & Radio
Guarantee Co (Pty) Ltd
1985 (4) SA 809
(A) at 830E.
15.2 Once
communicated, a notice of termination cannot be withdrawn unless
agreed -
Rustenburg
Town Council v Minister of Labour
1942 TPD 220
;
Du
Toit v Sasko (Pty) Ltd
(1999)
20 ILJ 1253 (LC); and
Sihlali
v SA Broadcasting Corporation
(2010)
31 ILJ 1477 (LC)
at
para 11.
15.3 Termination
on notice is a unilateral act - it does not require acceptance by the
employer -
Sihlali
at
para 11; Wallis
Labour
and Employment Law
para 33 at 5-10 ….
’
[24]
The
Court in
African
National Congress v Municipal Manager, George Local Municipality and
Others
[17]
added a further requirement, where it comes to a resignation, being
that the resignation
‘…
.
must be effective immediately or from a specified date ….
’
.
[25]
I
accept that the above authorities set out the proper and correct
state of the law where it comes to the issue of employment contracts
being brought an end by way of resignation on the part of an
employee. It therefore possible for an employee to resign
by way of conduct, or verbally, without a written resignation being
submitted. In deciding whether such a resignation indeed
exists, the conduct of the employee must be considered, in order to
decide if it falls within the parameters of the abovementioned
principles. I shall now proceed to apply these principles to
the facts
in
casu
,
commencing with an evaluation and determination of the evidence.
[26]
In
considering the evidence in this case, I must immediately say that I
have difficulties with the applicant’s case, as it
appears from
his own testimony. In short, his evidence was entirely
contradictory. In his opening address, the applicant
says that
he was not dismissed on 31 August 2011, as this was just the day that
he left, and says he was actually dismissed on
28 September 2011.
When giving evidence in chief, the applicant said nothing about
Jordan dismissing him on 31 August 2011,
and the high water mark of
his case in chief was that Jordan had ‘authorized’ the
applicant to leave, clearly meaning
giving him permission to go home
but contemplating his return. But then, and under cross
examination, the applicant says
that he was told on 31 August 2011 by
Jordan to ‘leave the company’, meaning he was finally
dismissed out of hand.
In response to questions by the second
respondent, the applicant says that he ‘walked out’ of
the company on 31 August
2011. Finally, and again in response
to a question by the second respondent, the applicant says that
Jordan was ‘forcing’
him to resign. All of these
different versions are incompatible, and an entirely unsatisfactory
state of affairs. Notwithstanding
the fact that this must
surely materially detract from the applicant’s credibility,
this in my view causes applicant to simply
fail to make out a
probable case that he was dismissed, considering he has the
onus
.
[27]
As
opposed to this unsatisfactory evidence of the applicant, the
evidence of Jordan as to the events on 31 August 2011 was
consistent.
His testimony made it clear that the applicant had
twice said that he was resigning and would leave the company.
The testimony
of Harris confirmed this. Jordan and Harris
immediately reported this to HR. Added to this, and before any
dispute
even arose, the third respondent dealt with the applicant
having left on 31 August 2011, as a resignation. This is
evident
from the e-mails from Jordan and Harris to HR, and the
telegram that was sent to the applicant confirming and then accepting
his
resignation. A final consideration is the undisputed
evidence of Brits that where employees are dismissed, proper
disciplinary
processes are applied.
[28]
A
further critical consideration is a piece of undisputed evidence,
being that Jordan told the applicant that if he wanted to leave,
he
had to submit a letter of resignation, and the applicant then
answered that he did not have time to complete a resignation letter,
and then left. Considering this undisputed evidence, the
immediate question that arises is why would Jordan ask the applicant
for a resignation letter if he simply dismissed the applicant out of
hand? And further, why would the applicant answer that
he did
not have time to complete a resignation letter if he never resigned
in the first place? If Jordan simply dismissed
the applicant
out of hand, then surely the applicant would not say such a thing as
not having time to complete a resignation letter.
It is equally
undisputed that the applicant immediately left when saying this, half
way through his working day, leaving his access
card at the gate when
leaving. I accept Jordan’s testimony that he never told
the applicant to hand in his access card,
and reject the applicant’s
contention in this respect. All of this must also be considered
in the context that there
was never any reason provided as to why
Jordan would simply dismiss the applicant.
[29]
If
the applicant was indeed dismissed out of hand, then why does he not
refer an unfair dismissal dispute to the CCMA immediately?
I
also consider the fact that when the applicant then finally refers
his dispute to the CCMA, he only does so after having completed
his
pension withdrawal forms. Also, and now having had time to
reflect at the point of referring the dispute to the CCMA
on 28
September 2011, the applicant in the dispute referral form itself
never says that he was dismissed out of hand by Jordan
on 31 August
2011. Instead, and in summary of facts contained in the
referral, the applicant says that he was told to leave
and wait to be
called, and he was still waiting to be called when he received the
letter saying he resigned. Notwithstanding
the fact that this
is yet another contradictory version by the applicant, what is
recorded in the referral is consistent with the
applicant indeed
having resigned, and the third respondent having dealt with him as
such. I may add that the applicant in
giving evidence disputed
that he received the telegram, but in the referral indicates that he
did receive it.
[30]
The
applicant also clearly had a difficulty with Jordan. He said he
had an argument with Jordan and complained about him to
Harris.
Jordan disputed there was an argument, but conceded the applicant was
agitated. On the probabilities, the applicant
clearly had
unresolved personal issues with Jordan. In my view, it is these
issues motivated him to act as he did.
This was the context
giving rise to the events on 31 August 2011, and is equally
consistent with the applicant deciding to leave
the employ of the
third respondent of his own accord. Again, there was simply no
reason for Jordan to dismiss him.
[31]
The
second respondent put a number of pertinent questions to the
applicant, which also highlighted the unacceptable nature of his
testimony. As I have touched on above, the second respondent
asked the applicant why Jordan was asking for resignation letter
and
the applicant answered ‘he was forcing me to resign’.
The second respondent asked the applicant why he left
if he did not
resign, and the applicant said that Jordan instructed him to leave.
The questions of the second respondent
also confirmed that Jordan
said to the applicant that if the applicant left, he had to hand in a
resignation letter, meaning it
was the applicant’s decision to
leave. Finally, the applicant said to the second respondent in
so many words that he
‘walked out’ on 31 August 2011.
One can in the circumstances hardly take issue with the second
respondent concluding
that the applicant resigned and left of his own
accord.
[32]
A
final issue to consider is the fact the applicant, when he e-mails
Brits on 26 September 2011, never even makes mention of being
dismissed by Jordan. When Brits answered him and said that he
resigned and had to make an appointment to come and sign the
pension
withdrawal documents, the applicant equally raises no complaint and
disputes that he resigned, which one would expect if
this was not the
case. Instead, the applicant in fact immediately on the same
day makes arrangements to come and sign these
documents, and then
does so. Again, this is not behaviour consistent with an
employee that has been arbitrarily dismissed,
out of hand, by his
manager, but is consistent with the conduct of an employee that
resigned of his own accord.
[33]
In
the end, a proper consideration of the evidence, as I have set out
above, leaves me with little doubt that the applicant verbally
resigned on 31 August 2011, and himself decided to finally leave the
employment of the third respondent on that date of his own
accord.
All the elements constituting a termination of employment by the
applicant is present, in that:
33.1
The applicant clearly, unambiguously and unequivocally indicated his
intention
to the third respondent that he wanted to leave employment;
33.2
The applicant indicated that he wanted to leave employment, effective
immediately;
33.3
The conduct of the applicant was unilateral, and final;
33.4
The conduct of the applicant, established holistically from the
evidence, would
leave a reasonable person with the belief that the
applicant had the intention to bring the employment relationship to
an end,
and then acted accordingly;
33.5
The contradictory nature of the applicant’s evidence as to the
circumstances
of his termination of employment is indicative of a
situation of the applicant disingenuously trying to extract himself
from what
he did, of his own accord, and after the fact.
[34]
I
am aware of the dictum in
Chemical
Energy Paper Printing Wood and Allied Workers Union and Another v
Glass and Aluminium 2000 CC
[18]
where the Court said: ‘Resignation brings the contract to
an end
if
it is accepted by the employer
….
’
(emphasis
added). This of course contradicts the abovementioned
authorities to the effect that no acceptance by the employer
is
required. However, and even if acceptance is required, it is
clear from the evidence that the third respondent indeed
accepted the
resignation, by way of the telegram sent on 31 August 2011. The
employment contract was thus indeed brought
to an end due to the
resignation of the applicant.
[35]
All
being said, the award of the second respondent was thus correct.
The second respondent properly considered the evidence
and all the
applicable legal principles. The applicant was never dismissed,
but in fact verbally resigned on 31 August 2015
in a final and
unilateral act, and left. The second respondent’s award
must thus be sustained, and the applicant’s
review application
falls to be dismissed.
[36]
This
then only leaves the issue of costs. In terms of section 162 of
the LRA, I have a wide discretion where it comes to the
issue of
costs. The applicant throughout represented himself. I do not
think he acted unreasonably in wanting to pursue his
matter to
finality, in the Labour Court. Therefore, and although the
applicant was not successful, I consider it to be in
the interest of
fairness that no costs order be made.
Order
[37]
In
the premises, I make the following order:
1.
The
applicant’s review application is dismissed.
2.
There
is no order as to costs.
_____________________
S.Snyman
Acting
Judge of the Labour Court
Appearances:
For
the Applicant:
In
person
For
the Third Respondent:
Advocate C Morend
Instructed
by:
Allardyce & Partners Attorneys
[1]
Act 66 of 1995.
[2]
(2008) 29 ILJ 964
(LAC) at para 101.
[3]
(2007)
28 ILJ 2405 (CC).
[4]
(1999)
20 ILJ 108 (LAC) at para 6.
[5]
(2008)
29
ILJ
2218
(LAC)
at paras 39 – 40.
[6]
(2013) 34
ILJ
2662 (LC) at para 22.
[7]
(2012) 33
ILJ
363 (LC) at para 23.
[8]
(2012) 33
ILJ
1179 (LC) at para 10.
[9]
(2013) 34
ILJ
392 (LC) at paras 5–6.
[10]
(2012)
33
ILJ
1171 (LC) at para 14.
[11]
(2012)
33
ILJ
738
(LC)
at para 2.
[12]
(2013) 34
ILJ
1272
(LC) at para 21.
[13]
See
Section 192(1) which reads:
‘
In
any proceedings concerning any dismissal, the employee must
establish the existence of the dismissal’.
[14]
(2010) 31 ILJ
1477 (LC) at para 11. See also
Uthingo
Management (Pty) Ltd v Shear NO and Others
(2009) 30 ILJ 2152 (LC) at paras 16 – 19.
[15]
Id
at para 13.
[16]
(2010) 31 ILJ
2923 (LC) at para 15.
[17]
(2010) 31 ILJ 69
(SCA) at para 11.
[18]
(2002) 23 ILJ 695
(LAC) at para 33.