About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Johannesburg Labour Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: Johannesburg Labour Court, Johannesburg
>>
2016
>>
[2016] ZALCJHB 42
|
|
Tadyn Trading CC t/a Tadyn Consulting Services v Steiner and Others (JR848/13) [2016] ZALCJHB 42 (8 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
Number: JR848/13
In
the matter between:
TADYN TADING CC
t/a TADYN CONSULTING SERVICES
Applicant
and
YVONNE STEINER
First
Respondent
JOSEPH
WILSON THEE
N.O
Second Respondent
CCMA
Third
Respondent
Date
heard: 5 August 2015
Delivered:
8 February 2016
JUDGMENT
RABKIN-NAICKER
J
[1]
This is an opposed application to review an arbitration award under
case number GAJB 32999-12. The applicant applied for condonation
for
the late filing of the record in terms of Rule 7A(8). The award
sought to be reviewed found that first respondent had been
dismissed,
and that the dismissal was procedurally and substantively unfair. The
Commissioner awarded her an amount of R204,000.00
representing 3
months compensation.
[2]
It was common cause that Steiner was employed by the applicant in
terms of a written contract of employment dated 7 November
2011 as a
Strategic Business Analyst. The commencement date of the contract was
7 November 2011 and termination date 31 July 2012.
It was extended by
agreement to 31 January 2013.
[3]
Steiner was placed by the applicant at its client First National Bank
(FNB) and she performed her services at FNB. She was told
to leave
the premises of FNB on the 22 November 2012 following a restructuring
by FNB of its operations. FNB had informed applicant
that Steiner’s
services were no longer required.
[4]
In his award the Commissioner records Steiner’s evidence
inter
alia
as follows:
“
The
respondent owes her a total amount outstanding of R68,000. Matroos
had never raised any questions about her absence from work
or when
she had asked for the UI-19 form to claim unemployment insurance. She
is unemployed and has no income and had no success
with work
applications. She is married with dependents and her husband is
self-employed. Her employment had caused economic strain
on her
family and they had to borrow money from family members to survive.
During
cross-examination Steiner testified the following. She earned a
salary of R68,000, 00 per month based on a rate of R380,00
per hour.
She asked that her outstanding salary be paid out until her
contract
formally expires plus her statutory monies.”
[5]
The arbitrator further recorded that:
“
It
is further common cause that the respondent had not orally or in
writing terminated the applicant’s contract of employment.
Despite this being the case the applicant had not reported for duty
nor did the respondent made (sic) any effort to enforce
the
contractual obligations…..
The
applicant admitted that the respondent had not in any expressive way
terminated her contract of employment. She had assumed
that her
contract had terminated and that her employer had not intervened.
The
Basic Conditions of Employment Act (BCEA) requires that notice of
termination of an employment contract must be in writing.
It was not
disputed by the respondent and therefore is abundantly clear that the
respondent had not complied with this provision.
It
is trite law that a verbal termination of a contract will not be
recognised as a dismissal. In my view any reasonable person
would
have used the opportunity to correct any misunderstanding. The
respondent had ignored all the issues and failed to make any
interventions in this regard. It is generally acceptable that an
employee can only claim unemployed insurance by completing a U
19
form if a dismissal had occurred.
In
my view the respondent’s conduct had created an inference that
the applicant was dismissed…..”
[6]
The applicant pleads that there was no basis to find that Steiner had
been dismissed. It was submitted on behalf of Steiner
that while the
award is “not in every respect a model of clarity, the Second
Respondent’s finding as to a dismissal
is not one that a
reasonable arbitrator could not reach on all the material facts
before the arbitrator”.
[7]
The review test on the existence of a dismissal is not
“reasonableness” but whether on the facts before the
Commissioner
his finding was correct.
[1]
On Steiner’s own version, she did not tender her services to
applicant after FNB ended the contract as far as her services
were
concerned. She assumed her employment was at an end and asked for her
UIF forms to be signed. In a letter to Steiner’s
attorneys on
the 7 December 2012 it was stated by applicant’s employer’s
organisation that:
“
Your
client was been (sic) initially employed on a temporary contract
basis which expired on 31 July 2012. As a result of an initial
project not being finalised the contract was renewed/rolled over for
a further period of 6 months, such renewal/roll over was by
mutual
agreement.
We
would record that the new agreed termination date is 31 January 2012.
Your client is and has always been employed by our member
and will
continue to be employed until the agreed contract termination date.”
[8]
The reply to this from Steiner’s attorneys of record dated 11
December 2012 included the following paragraph:
“
No
further purpose would be served in debating this matter by way of
correspondence. Your client’s contentions are wholly
disingenuous and our client will now proceed to enforce her rights in
law.”
[9]
Under cross-examination, Steiner confirmed she that she knew her
contract was to end on the 31 January 2013. She was also asked
why
after the applicant’s letter of the 7
th
December,
she did not return to work. She stated that “I was advised by
my attorney that I shouldn’t go back to work.”
[10]
Steiner could have tendered her services on receipt of the 7 December
2012 letter and would have been entitled to her monthly
remuneration
up until the termination of her fixed term contract. She elected
instead to refer an unfair dismissal dispute to the
CCMA. She did not
allege an expectation of renewal of the fixed term contract at
arbitration. There was no evidence before the
Commissioner to support
the legal conclusion that a dismissal had taken place, given the
definition of same in section 186 (a)
– (f) of the LRA
[2]
.
This is even the case on Steiner’s own version before him.
[11]
I note in passing that the Commissioner made an error of law in
dealing with “verbal termination of employment”.
What the
BCEA provides in section 37 which has the title ‘termination of
employment’, is
inter alia
for employees to be given
notice in writing (unless they are illiterate) about the termination
of their employment, with the proviso
in subsection (6) thereof that:
“
(6)
Nothing in this section affects the right-
(a)
of a dismissed employee to dispute the lawfulness or fairness of the
dismissal in terms of Chapter VIII
of the
Labour Relations Act, 1995
,
or any other law; and
(b)
of an employer or an employee to terminate a contract of employment
without notice for any cause recognised
by law.”
[12]
Steiner had only wanted to be paid the remuneration owed to her and
any statutory entitlements. Unfortunately she embarked
on the wrong
path in seeking a remedy. I do not consider that she should be
mulcted in costs for defending the award. Given
the merits in this
matter the application for condonation is granted. I make the
following order:
Order
1.
Condonation is granted for the late filing of the record.
2.
The award under case number
GAJB 32999-12
is reviewed and set aside and substituted
as follows:
“
2.1
The termination of the employment relationship between Tadyn Trading
CC t/a Tadyn Consulting services and Yvonne
Steiner did not
constitute a dismissal.”
3.
There is no order as to costs.
_______________
H.
Rabkin-Naicker
Judge
of the Labour Court of South Africa
Appearances:
Applicant:
Ross Atcheson
of Lee and McAdam Attorneys
Third
Respondent:
Advocate Jennings
Instructed
by:
Wright Rose Innes Inc
[1]
SA
Rugby Players Association & others v SA Rugby (Pty) Ltd &
others; SA Rugby (Pty) Ltd v SA Rugby Players Union &
another
(2008) 29 ILJ 2218 (LAC)
[2]
(1)
'Dismissal' means that-
(a)
an employer has terminated employment with or without notice;
(b)
an employee employed in terms of a fixed-term contract of employment
reasonably
expected the employer-
(i)
to renew a fixed-term contract of employment on the same or similar
terms but the employer
offered to renew it on less favourable terms,
or did not renew it; or
(ii)
to retain the employee in employment on an indefinite basis but
otherwise on the
same or similar terms as the fixed-term contract,
but the employer offered to retain the employee on less favourable
terms, or
did not offer to retain the employee;
(c)
an employer refused to allow an employee to resume work after she-
(i)
took maternity leave in terms of any law, collective agreement or
her contract of employment;
or
(ii)
......
(d)
an employer who dismissed a number of employees for the same or
similar reasons
has offered to re-employ one or more of them but has
refused to re-employ another; or
(e)
an employee terminated employment with or without notice because the
employer made
continued employment intolerable for the employee; or
(f)
an employee terminated 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.