About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Port Elizabeth Labour Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Port Elizabeth Labour Court, Port Elizabeth
>>
2016
>>
[2016] ZALCPE 20
|
|
Trupik Restaurant CC v Commission for Conciliation, Meditation and Arbitration and Others (PR79/15) [2016] ZALCPE 20 (4 November 2016)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT PORT ELIZABETH
Of
interest to other judges
Case
no: Pr 79-15
In
the matter between:
TRUPIK
RESTAURANT CC
Applicant
and
COMMISSION FOR
CONCILIATION,
MEDIATION AND
ARBITRATION
First Respondent
FREDERICK SAULS
N.O
Second
Respondent
NICOLA VAN NOORT
Third Respondent
Heard
:
3 November 2016
Delivered
:
4 November 2016
Summary:
(Review – jurisdiction – existence of
a dismissal or demotion – employee appointed under new contract
of service
as a manager on probation – contract terminated
during probation period)
JUDGMENT
LAGRANGE
J
Introduction
[1]
In this matter, the arbitrator had decided
that the employee Ms N van Noort (‘van Noort’), the third
respondent, had
been unfairly dismissed when her employer told her
that she could no longer be a manager owing to her personal issues,
mainly pertaining
to time off to attend to the needs of children,
becoming a problem for the business, a Wimpy outlet. The arbitrator
accepted that
at the time the dispute arose van Noort was on
probation as a manager from 20 January 2015. She had previously
been engaged
under a contract of service as a cashier on 1 December
2013.
[2]
According to van Noort’s testimony
when she returned to work on 1 March 2015, after a day’s
absence necessitated by
having to take her son for an emergency
appendicitis operation, she was told after a discussion with the
owners that she was longer
manager and could be a cashier, which was
her previous position. After the discussion she was asked to hand
back the keys. She
took it that she was dismissed and did not return
to work. Managers normally kept the keys to the business.
[3]
About three days after she left the
employer sent her a letter informing her that if she failed within 24
hours to give reasons
why she did not report for duty the employer
would accept that she had dismissed herself without any further
remuneration. Van
Noort did not respond to this letter which she only
received some two weeks after the date on the letter. She claimed to
have been
surprised to receive it as she believed she had clearly
been dismissed as a manager.
[4]
The arbitrator accepted that Noort had been
on a probationary period as a manager, and took the view that she had
been removed as
a manager without any of the normal steps being taken
by the employer before dismissing a probationary employee. The
arbitrator
was understandably sympathetic to the employee about the
employer’s apparent unwillingness to accommodate the employee’s
parental commitments and commented that such conduct bordered on
discrimination. However he accepted that a claim of discrimination
was not an issue in the case before him. He concluded that the
employer had dismissed the third respondent whilst she was on
probation
as a manager.
Amendment
of citation
[5]
In the arbitration proceedings the
applicant had been cited as ‘Wimpey Jeffreys Bay Oosterland’
and in the review application
also cited itself as ‘Wimpy
Jeffreys Bay Oosterlund (Pty) Ltd’. It belatedly applied to
amend the citation and all
other references to either of these
two trading names of the applicant to ‘Trupik Restaurant CC’
on the basis
that all previous citations were incorrect. The
application to amend the citation was unopposed and was granted when
the matter
was heard. Presumably, the CCMA would also amend the
citation of the applicant in the arbitration award if necessary
.
Condonation
[6]
The award was handed down on 5 May 2015 and
the review application was filed on 14 July 2015. Consequently, the
review application
was filed about a month late. The reason for the
delay was attributed to the fact that the parties were engaged in
settlement discussions
for about six weeks, regrettably without
success. Van Noort does not dispute this and does not oppose the
condonation application.
In view of the lack of opposition and the
reason given for the delay, quite apart from the merits of the
application, the late
filing of the review should be condoned.
Grounds
of review
[7]
The
crux of the matter, and the only ground of review, concerns whether
the arbitrator correctly decided that the employee had been
dismissed
rather than simply reverting to her former position as a cashier.
[1]
The applicant contends that even on van Noort’s own version at
best it amounted to a demotion but could never have amounted
to a
dismissal.
[8]
When van Noort was employed as a manager
she entered into a new employment contract containing a probation
period of eight weeks.
In terms of clause 2.2, the employer was
entitled to extend the probation period or terminate the service
contract during the probation
period if the employer’s
requirements were not met. The contract says nothing about the
employee reverting to her previous
contract as a cashier and appears
to be a self-standing employment contract. Mrs T Viljoen, apparently
a co-owner of the business
with her husband, also confirmed that the
two contracts were separate.
[9]
The employer’s version at the
arbitration was that when the owners had a discussion with the
employee about her parental commitments
creating a problem for her
managerial duties, Mr Vijoen simply told her that she would revert
back to being a cashier and that
she had to hand over of the keys of
the store because only managers held keys to the store. It was
claimed that the employee said
she would not be interested in
becoming a cashier again and she simply never returned despite them
sending her a letter. Later
in the employer’s testimony it was
said that the employee had agreed to reverting back to being a
cashier but went home and
never contacted the employer again.
[10]
The employer sent a letter to van Noort
dated 4 March 2015 giving her 24 hours to explain why she should not
be dismissed, failing
which she would have been assumed to have
dismissed herself. However, the employee claims she only received the
letter on 18 March.
Van Noort testified that after she had taken time
off to attend to her son’s appendicitis she had been called in
by the owners
who started the conversation saying that she had said
her children would not be a problem now they were. Then she was
questioned
about other issues such as her cell usage talking to
visitors to the store. She testified that after the conversation had
gone
back and forth about various issues Mr Viljoen had stood
at and said she was no longer the manager “and” and that
he did not make any remark as to her going back to be a cashier. She
also claims she said that she did not want to be a cashier
as she was
a manager and worked hard for that position and had a contract as a
manager and they had not given her any valid reasons
(for terminating
that contract) she claimed that after that Mr Viljoen walked out.
When she was told to hand back the keys she
felt that confirmed the
fact that she was convinced it was her last shift and that she had
been dismissed.
[11]
Considering the evidence, if the employer
had genuinely intended that she would return to her work as a cashier
it is strange that
it made no attempt to contact her when she did not
return to work and chose rather than phoning her to write her letter
which only
reached her three weeks later. However, this is not
something that was canvassed with Mrs Viljoen in the arbitration and
accordingly,
must be regarded as an indeterminate factor in deciding
if a dismissal took place.
[12]
Nevertheless, it does seem clear that the
issue of van Noort reverting to being a cashier did come up, and that
the employer might
have intended simply to demote van Noort back to
her former position. What it cannot avoid though is that it
terminated van Noort’s
appointment as a manager during her
probation period. That appointment had been entered into in terms of
a distinct self-standing
employment contract terminable under certain
conditions. The employer’s actions effectively terminated van
Noort‘s
employment under that contract on the basis that it was
not meeting its requirements during her probation. Nothing in the
wording
of the contract suggests that if her appointment as a manager
was terminated during her probation period she would simply revert
back to her previous employment. Any revival of her former
appointment as a cashier would require a new agreement between the
parties. The employer could not simply terminate her appointment as a
manager unless it did so in the terms of the employment contract.
That entailed a termination of her contract of service. Unless the
parties agreed otherwise that was the effect of terminating
her
appointment. They plainly did not agree that she would resume
employment in her former position. Van Noort did not accept
reverting
to her former appointment as she believed she should be given an
opportunity to complete her probation because she had
worked hard for
appointment as a manager.
[13]
The employer contends that it was common
cause that the employee had been demoted, but on the evidence the
probabilities show that
this was its unilateral decision, not a
consensual one. It could not do this without unavoidably terminating
van Noort’s
employment as a manager during the
probation period because the terms
of her appointment as a manager were governed by the new contract. It
was for van Noort to elect
whether to agree to resume employment as a
cashier or to challenge the termination of her employment contract as
a manager. Any
reversion of van Noort to being employed as a cashier
would mean concluding a new contract of employment. There was nothing
on
the face of the contracts to suggest that her former engagement as
a cashier under a separate contract continued to subsist beneath
the
new managerial contract of employment, even if her service was
uninterrupted.
[14]
In conclusion, I am satisfied on a balance
of probabilities that van Noort’s contract of employment as a
manager was terminated
during the course of her probation. Any
further employment relationship between the parties would have
entailed the conclusion
of a new contract.
Order
[15]
The citation of the applicant in all
pleadings in this matter is amended to read ‘Trupik Restaurant
CC’ and all references
to Trudie Viljoen and are amended
to read Trumie Viljoen.
[16]
The applicant’s late filing of its
review application is condoned.
[17]
The review application is dismissed with
costs.
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
APPEARANCES
APPLICANT:
M
Grobler instructed by Van Wyk Attorneys
THIRD
RESPONDENT:
R
de Lange instructed by Tasso Antoniou Attorneys
[1]
See at
SA
Rugby Players Association & Others v SA Rugby (Pty) Ltd &
Others
(2008) 29
ILJ
2218 (LAC) on the proper test of review of jurisdictional rulings at
2230:
“
[41]
The question before the court a quo was whether
on the facts of the case a dismissal had taken place.
The question
was not whether the finding of the commissioner that there had been
a dismissal of the three players was justifiable,
rational or
reasonable. The issue was simply whether objectively speaking, the
facts which would give the CCMA jurisdiction to
entertain the
dispute existed. If such facts did not exist the CCMA had no
jurisdiction irrespective of its finding to the contrary.”