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[2016] ZALCD 4
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Munro v Pride Milling (Pty) Ltd (D277/14) [2016] ZALCD 4 (25 February 2016)
IN
THE LABOUR COURT OF SOUTH AFRICA
HELD
AT DURBAN
Case
No: D277/14
DATE:
25 FEBRUARY 2016
Not
Reportable
In
the matter between:
BARRY
MUNRO
......................................................................................................................
Applicant
And
PRIDE
MILLING (PTY)
LTD
.............................................................................................
Respondent
Heard:
30 October 2013
Delivered:
25 February 2016
Summary:
Claim of unfair dismissal of the applicant due to operational
requirements of respondent following closure of branch –
termination not proved to be a retrenchment – applicant
resigned.
JUDGMENT
Cele
J
Introduction
[1]
This is a claim of unfair dismissal of the Applicant by the
Respondent due to its
operational requirements in terms of section
189 (3) of the Labour Relations Act.
[1]
The Respondent opposed the claim by contending that the Applicant
resigned from his employment.
Factual
Background
[2]
The Applicant was an employee of the Respondent from 1996 to 2013 and
therefore for
a period of approximately 17 years. The Applicant was
based at the Respondent’s offices in Pietermaritzburg,
KwaZulu-Natal.
In 2013 he was the most senior employee of the
Respondent. He reported to senior management in Respondent’s
Head Offices
in Nigel, Gauteng Province. In Pietermaritzburg he
worked with Ms Derasha Pullen, Mr Deon Pillay and Ms Maya Bhagelu.
The Pietermaritzburg
team had a feeling in 2013 that their stock
sales were not doing very well. One of their colleagues, a Manager Mr
Gert De Bruin,
had even transferred from Pietermaritzburg to Nigel in
2012 due to concerns on the viability of the business operations of
the
Respondent in Pietermaritzburg.
[3]
On 9 May 2013, Mr De Bruin came down from Nigel to the
Pietermaritzburg Branch and
conducted a meeting with the staff.
During that meeting the Applicant and the three other staff members
of the Pietermaritzburg
Branch were informed that the Respondent
would be closing its Pietermaritzburg Branch and that the
Pietermaritzburg employees had
to choose between being transferred to
Nigel or to be retrenched. Minutes of that meeting were captured.
They bear no indication
of what time frames were given to the staff
to make their election.
[4]
At the meeting Ms Pullen indicated that she could not leave
KwaZulu-Natal as she could
not uproot her family. Accordingly, she
elected to be retrenched and to be paid her retrenchment package. Mr
Pillay elected to
be transferred to the Nigel Branch. Ms Maya Bhagelu
elected to be transferred to Nigel and was transferred but later
changed her
mind, after spending some time in Gauteng. She indicated
that she did not wish to continue her employment in Nigel. She wanted
to be retrenched but was told by the Respondent that her termination
had to be a resignation as she had accepted a transfer. The
Respondent told her to tender a written resignation. She duly
complied. The position of the Applicant is part of the bone of
contention.
[5]
What remained undisputed though is that the Applicant indicated that
he required time, in
order to consider his options and to discuss the
matter with his family, before making the decision. He finalized the
closure of
the Pietermaritzburg Branch, which eventually closed on 31
July 2013. During the period 9 May 2013 to 31 July 2013 the
Applicant
discussed the issue with his wife and did much research on
issues such as housing, schooling, church congregations and various
other issues such as crime and traffic in Nigel. Furthermore,
several options were considered including acting as an agent
for
various enterprises in KwaZulu-Natal, the Respondent inclusive. On 15
July 2013 Mr De Bruin issued a letter addressed to Mr
Jorrie Jordaan
about the KwaZulu-Natal staff, in particular about Messrs Deon Pillay
and the Applicant. The letter indicated the
salaries that the two
employees were to earn from the Respondent and that each was to be
paid by the Respondent R100 000 net as
a relocation allowance, the
transfer costs of the new property and for furniture removal.
[6]
From August 2013 to December 2013 the Applicant was working for the
Respondent at Nigel.
He stayed at a Bed and Breakfast residence with
Ms Bhagelu and Mr Pillay and on weekends he would visit his family in
KwaZulu-Natal.
The Respondent refurbished a plant which was to
produce maize meal and was to serve new customers. The Applicant was
tasked with
having to find customers for it. There are “WhatsApp
messages” which he frequently exchanged with Mr De Bruin in the
course of their duties penning the period 8 May to 15 November 2013.
The Applicant received one message dated 20 August 2013 at
19h16 from
Mr De Bruin which reads:
“
Spoke to
Allen, he says jorrie did not say anything to him regarding you –
he just said he is waiting for an answer from you
by Thurs. He says
they were busy discussing his organogram when your name came up.”
[7]
Then on 15 November 2013 the Applicant sent out a message to Mr De
Bruin who also responded to it on the same date and the exchange
between them reads:
“
09:26, 15 Nov
– Berry: Hi Gert, is everything on track for my retrenchment
payout? Do you know if it gets paid out now or
in December?
13:51, 15 Nov –
Gert De Bruin: Are you still at Nigel, If so is Jorrie there, then
you maybe can ask him, else I will follow
up on Monday.”
[8]
Further correspondence between the Applicant and Mr De Bruin was by
means of the short message service, known as the “sms”.
The relevant portions were on 6 December 2013, which read:
“
Hi Gert, Just
wanted to check if you managed to speak to jorrie yesterday. I just
wanted to confirm the retrenchment will be paid
this month.
Hi Barry, pls send
me your email address.
barmunro@gmail.com
Please tell me you
are joking?
I wouldn’t
joke about something like this, I tried arguing for you, but to no
avail, also spoke to Kobus & he also said
they have the right to
do it. Maybe you must speak to someone there.
That is so wrong.
I will get advice. I
thought they would have a little more integrity then that.
Are you able to send
me a copy of the exit interview?”
[9]
After the Applicant supplied Mr De Bruin with his email address, Mr
De Bruin issued to him
a letter dated 6 December 2013, to which the
Applicant responded by saying “Please tell me you are joking?”
That letter
was an attachment to a letter which reads:
“
Hi Berry,
attached please find a letter from the company.
I am very sorry
that I am the bearer of bad news; but the company has decided that it
will not be handled as a retrenchment, but
as a resignation.
I am just going
into the exec meeting & will be available from 13h00.”
[10]
The attached letter itself reads:
“
At the end of
July 2013 the PMB Branch where you were stationed closed down.
Because of this you were offered a retrenchment package
or the
alternative to transfer to Pride Milling Nigel.
You indicated your
acceptance of the position of Industrial Rep based in Nigel, thereby
declining the retrenchment option.
You reported for
duty in Nigel during the month of August and to management’s
knowledge, you were looking for a house to relocate.
During the month of
August you indicated that you were no longer willing to relocate to
Nigel due to personal reasons. You were
then requested to give the
company 3 months’ notice (September, October and November) in
order for the company to find a
replacement for you.
Management did not
receive any written resignation from you to date, therefore the
company will be dealing with this situation as
a resignation.
At the end of
December 2013 any leave due as per company protocol will be paid out
to you. The required pension forms will be forwarded
to yourself for
completion and to be submitted back for processing.
Kindly contact the
writer should you require any additional information.”
[11]
By means of a letter dated 10 December 2013 the Applicant insisted
that he had not resigned but was
awaiting a due process for
retrenchment which he said had not yet materialized. With a letter
dated 13 December 2013, the Respondent
said that the Applicant had
accepted a position in Nigel as an alternative to retrenchment which
was evidenced by his commencement
date in Nigel. It referred him to
the benefits for a transfer as were outlined in the letter of 15 July
2013, referred to earlier.
The Applicant then referred an unfair
dismissal dispute for conciliation and thereafter for trial in this
Court.
Evidence
of the parties
[12]
At the heart of the dispute between the parties is the question
whether the Applicant resigned as alleged
by the Respondent or that
he was retrenched as his version showed. Dismissal alleged by the
applicant has therefore been placed
in dispute by the Respondent. The
Applicant had to prove the dismissal alleged. If successful, the
Respondent had to prove the
fairness thereof. If the Applicant’s
version is not probable, it will follow that he resigned and that
would be the end of
the matter.
Applicant’s
version
[13]
He said that at the meeting of 9 May 2013, he was given the choice to
either be retrenched or to be
transferred to Nigel. He
indicated that he required time, in order to consider his options and
to discuss the matter with
his family, before making the decision. He
thereafter proceeded to finalize the closure of the Pietermaritzburg
office while he
discussed the possible move with his wife. He did
some research on Nigel as he considered a move to Gauteng but was
loathe in doing
so as it meant uprooting his family. He considered
several options including acting as an agent for various enterprises
in KwaZulu-Natal,
the Respondent inclusive.
[14]
The Applicant said that he made up his mind by choosing retrenchment
and he conveyed his election to
the Respondent’s employees on
23 August 2013. He averred that he was requested to assist the
Respondent by working for a
further three months until a replacement
could be found for him. He said that he agreed on the proviso that,
after the conclusion
of the three month period, the termination of
his employment would still be considered as a retrenchment. The
Applicant denied
that he resigned from the Respondent, effective 31
August 2013, and that he was required to work out a mandatory 3
months’
notice period from 1 September 2013 to 30 November
2013. He said that according to the company written policy he
was only
required to serve a notice period of 30 days.
[15]
The Applicant said that it was not apparent from the meeting of 9 May
2013, that the election had to
be made quickly and he denied that he
would not have been given until August 2013 to make his election. The
Applicant testified
that no time period was ever limited for making
his election. He referred to the electronic exchanges that took place
between him
and Mr De Bruin. He denied that there were electronic
exchanges between him and his wife which suggested that he had
elected to
move to Nigel. The emails exchanged on 13 to 15 and 21
August 2013
[2]
suggest that the
Applicant was still mulling on whether to accept the move to Nigel or
to reject it and that he was in discussion
over it with Mr De Bruin.
On the issue of 100 business cards which were allegedly printed for
the Applicant, the Applicant indicated
that he had never seen the new
business cards and had never made use of them.
[16]
Ms Bhagelu was his next witness. She worked as a stock controller.
She was present at the
meeting on 9 May 2013 when they were told
that the Pietermaritzburg office was closing down. This did not
come as a
surprise. She had a suspicion. Sales had gone down
after they lost Pick ‘n Pay as a client. She said that they
were
told at the meeting that the branch would close down as it was
not doing well. They were offered positions in Nigel.
She
was also told that other than the offer in Nigel they could stay back
and take a package. She said that in the meeting
they were not
given a time period within which to respond and that they were not
given an exact date when the branch would close
down. She
averred that there was never pressure placed on her after 9 May 2013
to make a decision. The branch closed
at the end of July.
She and the Applicant had to stay on to close the distribution centre
in Pinetown. It was closed
in August. She was called by Mr De
Bruin and she went to Nigel for a week and worked there. She came
back and thought about it
and decided to move to Nigel. She
called Mr De Bruin in August, on a Monday morning and told him about
her decision
[17]
She said that she went to Nigel at the end of August 2013 with the
Applicant as he would go on
a Monday and return home on a Friday. She
would return with either Mr Pillay or the Applicant. She and the
Applicant often sat
together during dinner and breakfast as they
stayed in the same guest house, together with Messrs Pillay and
Andries Swanepoel.
While i
n Nigel she looked for homes, called
agents, looked on the internet and got assistance from the Applicant.
She went to look at homes.
She physically looked at houses in Nigel
during her lunch break and after work.
She
confirmed that Mr Pillay asked to come up and look at schools and
property in July 2013. She disputed that the Applicant also
asked for
leave to look at schools and property. She confirmed, however, that
his car did break down. She did not know why
he did not come up
to Nigel in July. She worked in September. After the long weekend she
came home. The Applicant and Mr Pillay
were off and so she flew up.
[18]
She testified that the Applicant often told her that there was no way
he could live in Nigel.
She travelled with him for plus minus 500
kilometres home and they definitely always discussed it. He told her
that he could never
bring his family to that area and change his
lifestyle. To her knowledge the Applicant never mentioned telling the
company that
he was going to transfer. In relation to the Applicant
staying on for three months, she said that she gathered from the
Applicant
that he wanted to help with sales for the yellow maize. She
said that, unlike her, the Applicant never looked for a house to buy.
She was certain that the Applicant said he was not going to settle in
Nigel as he was going to take his package and stay in
Pietermaritzburg.
He said he could not live the Nigel lifestyle. He
even wondered how Mr Pillay was able to settle down in Nigel.
[19]
On one weekend while at home her mother asked her
if she did not think there was work in Pietermaritzburg. She thought
about it,
called Mr De Bruin and told him she was sick. On the next
day she told him that she could not come up to Nigel anymore. She
unsuccessfully
sought to be retrenched and therefore resigned. She
was told that she needed to give a letter of resignation to get her
provident
fund money. She emailed it to the human resources personnel
in Nigel.
Respondent’s
evidence.
[20]
The Respondent called and led the evidence of two witnesses. The
first was Mr Deon Pillay, an
employee of the Respondent, who worked
with the Applicant in Pietermaritzburg.
In his
evidence Mr Pillay confirmed that at the meeting on 9 May 2013
Mr Jordaan had indicated the intention to close down
the branch
in Pietermaritzburg. He said that employees were given a timeframe of
one week within which to respond. They were told
of the intention to
close down the branch by the end of July 2013
and that this
had always been the date of its intended closure.
He
was not able to respond in one week and he asked Mr De Bruin for an
extension, saying it was not an easy decision. He ultimately
spoke to
Mr De Bruin on 29 May 2013 in a face-to-face meeting where he told
him that he was prepared to relocate. He started in
July2013 in
Nigel.
[21]
He said that he was given an opportunity to look at Nigel but decided
not to live there as it
did not have good living conditions. He
looked at property in Springs and his family was granted the
opportunity to come up.
It was a huge upheaval to move house
but it was not confirmed in writing. He did not receive an amended
contract of employment.
He did receive a document, which he requested
at the beginning of September 2013, so that he could apply for a
bond. He said that
t
he Applicant did not come up
to Nigel in July 2013 because he had problems with his car but was
given the opportunity to come up.
He found out in mid-August that the
Applicant did not elect to come up.
Mr Pillay testified that
he assumed that the Applicant had elected to be transferred. He said
that the Applicant had worked out
the months of September, October
and November due to the fact that the company also thought that The
Applicant was moving to Nigel.
That put the company in a predicament
and so to assist the company, he worked the three months, but it was
not to work out any
mandatory notice period.
[22]
The next witness for the Respondent was Mr De Bruin. He had
previously been stationed in Pietermaritzburg,
but had moved in
January 2013. He had approached Mr Jordaan, the Managing Director of
the Respondent, in October 2012 and told
him that the volumes in
Pietermaritzburg were declining. He said it was funny that Mr Jordaan
was going to approach him at
the same time asking him if he was
willing to move up to Gauteng to head up sales. It would result
in him moving onto the
Nigel payroll which would reduce the cost to
Pietermaritzburg so that they could bring up the sales in
Pietermaritzburg.
[23]
On 9 May 2013, he came to Pietermaritzburg with Mr Jordaan to have a
meeting with the staff.
Mr Jordaan said to employees that, due to the
decreasing volumes, the company was considering closing the branch
and moving all
the staff to Nigel. The company did not want to lose
any of them. They were given an election. He confirmed that the
company was
entitled to close a branch that was not productive.
An offer was made to employees of R100 000 as a settle in
allowance,
payment of furniture removal and the transfer and bond
costs for new property purchased. Mr De Bruin indicated that the
Pietermaritzburg
employees, at the meeting were given a period of one
week in which to make their election between retrenchment and a
transfer.
He said that it was initially indicated that the
Pietermaritzburg branch would close at the end of June 2013. It only
closed at
the end of July 2013 as there was a three months’
notice period for a lease agreement in operation with a landlord. Mr
Pillay,
Ms Bhakelu and the Applicant went back to him reporting that
they had discussed it with their families but the period that they
were given to provide an answer was too short. They sought and were
granted an extension of another week.
[24]
Mr De Bruin said that the Applicant communicated his decision to him
early in the morning in
Pietermaritzburg on 29 May 2013, while he
raised concerns regarding moving and uprooting his family. They
discussed salary. The
Applicant said that he and his wife, Bridgette,
decided that they would give it a go. To him that was an acceptance
of the alternative
of a transfer to Nigel. He said that Ms Bhakelu
indicated that she wanted to consult with her mother. Even though she
had reservations,
she also accepted to move. The Applicant asked for
his home telephone number, which he gave to him and he asked if his
wife, Bridgette,
could speak to Mr De Bruin’s wife. The
wives spoke for a short while. That was on 16 May 2013. The Applicant
stayed
in Pietermaritzburg to inform suppliers of notices and to wrap
up distribution and stocktake. Mr Pillay indicated that he was
definitely
moving up. He commuted on a weekly basis between Nigel and
Pietermaritzburg. Both Mr Pillay and the Applicant asked if their
kids
and family could move at the end of the year because of
schooling. Mr Jordaan said that was fine, and they could commute at
the
cost to the company prior to that.
[25]
Mr Pillay indicated that he was definitely moving up. He commuted on
a weekly basis between Nigel
and Pietermaritzburg. Mr Pillay
had asked him if the company would pay for his family to come up and
it was eventually agreed
that the company would pay.
Similar
arrangements were made with the Applicant who then filled in his
leave form, but his vehicle gave him gear box troubles.
The Applicant
did not cancel his leave but he cancelled going up to Gauteng. He
said that it was
on 6 August 2013 that the Applicant told him
that they were reconsidering the move because of the children and the
drugs in Gauteng.
Mr De Bruin told him that he would like him to
reconsider. There would be difficulty in finding a job. The Applicant
then
came back to him on 13 August 2013 and said he decided not to
move. According to the Applicant, it was a final decision. Mr
De Bruin telephoned Mr Jordaan on 15 August 2013 to report the
decision. Mr Jordaan said that the Applicant was being silly
in not
accepting and asked him to ask the Applicant to reconsider. The
Applicant’s position never changed and on 23 August
2013
he finally decided not to move.
[26]
He said that
Mr Jordaan instructed him to tell the
Applicant that he must give the company three months’ notice to
find a replacement for
the Applicant because once the Applicant had
accepted the transfer on 29 May 2013, the company had stopped
recruiting. The Applicant
agreed to this and they spoke about his
package. The Applicant asked if the company would still pay the
package even if he changed
his mind and Mr De Bruin said that it was
not his decision but that he was sure that they would. He said he
then spoke to Mr Jordaan
who told him that he did not have the
mandate to suggest that to the Applicant and that the MD’s
decision was final. The
decision was placed in a letter and sent to
the Applicant.
In respect of the intermediary role he played
between the Applicant and Mr Jordaan, including the ‘sms’
exchanges, Mr
De Bruin said that he was merely attempting to assist
the Applicant in getting his retrenchment package even though he was
aware
that the Applicant had given his resignation to him personally.
[27]
Mr De Bruin conceded that all employees who resign were required to
hand in a written notice
of resignation, hence his insistence that Ms
Bhagelu was to hand in such a notice. He also said that the company
printed some 100
business cards for the Applicant containing the
Nigel information, during July 2013, upon the expectation of his
transfer to Nigel.
According to Mr De Bruin the cards would be
required as the Applicant had elected to be transferred on 29 May
2013. He said that
the company would never have gone to such an
expense if it was not certain that the Applicant was transferring to
Nigel.
100 business cards at a price of R 1, 20 per business
card are said to have been printed for the Applicant. Mr De Bruin
indicated
that he had personally seen the Applicant give a Nigel
business card at a meeting with another company and had seen him
slide the
business card across the table.
[28]
Mr De Bruin testified about the transfer of payroll, saying that the
Applicant had to be paid
from Nigel as a result of him accepting a
transfer to work there. He conceded though that after the
Pietermaritzburg office had
closed down, it was not possible to pay
the Applicant from that closed office while he rendered further
services. Mr De Bruin referred
to a letter of 15 July 2013 which he
issued and addressed to Mr Jordaan regarding packages he said were
offered to and accepted
both by the Applicant and Mr Pillay for the
acceptance of their transfers to Nigel. He was questioned about this
offer against
the Applicant having on 29 May 2013 made any election
or any agreement to transfer and he said that Mr Pillay had asked for
the
letter to secure a loan. As regards the relocation allowance, he
then said that the allowance was not paid because the Applicant
changed his mind. It was only to be paid one month before relocation.
[29]
He testified that
Mr Jordaan told him that if the
Applicant had accepted retrenchment at the end of May 2013 he would
have been paid his three and
a half months’ package. At
that stage, in November 2013, the company had already paid him six
months’ salary
and therefore there was no way the company would
still pay him a package. He understood the response from the
Applicant, saying
that this was so wrong, to be a reference to his
years of service for which he thought he would be paid a retrenchment
package.
The exit interview form was completed and the reason of
resignation was ticked on the UIF19 form because the Applicant had
resigned.
[30]
In his closing submissions Mr J P Pretorius, appearing for the
Applicant,
inter alia
, said that the Respondent and its
employees, fabricated their version in an attempt to escape payment
of a retrenchment package
to the Applicant. He submitted that it was
patently clear from all the documentary evidence that the issue of
resignation only
arose during December 2013, after the Applicant had
ceased his employment with the Respondent. Not once, ever, so he
argued, was
the issue raised prior to December 2013 and that it was
clear that Mr De Bruin and Mr Jordaan were opportunistic in that
regard.
He averred that Mr De Bruin’s evidence was
extremely improbable and unconvincing, to say the least. He submitted
that there
was little doubt that the Applicant’s version should
be accepted as being the more probable and, accordingly, it must be
accepted that the Applicant was retrenched.
[31]
Ms L Pillay appearing for the Respondent submitted in her closing
remarks,
inter alia
, that the true nature of the Applicant’s
case was that things were not put in writing and therefore the Court
had to make
a finding against the Respondent. This was not the test
to determine the probabilities, the submission went. All the evidence
must
be considered. It was submitted that the probabilities were that
the applicant did agree to a transfer and then changed his mind
with
the effect that he resigned. Even if it were accepted that there was
no resignation, the Applicant’s own version was
an acceptance
that there was substantive fairness in the retrenchment process.
Despite the omission to provide a section 189 (3)
letter, the purpose
of the Act has been met. She said that there should be no finding
against the Respondent on this aspect. The
submission was that the
Applicant did not lead any evidence that he was not paid his leave
pay and that therefore this claim must
fail together with the main
claim which should be dismissed.
Evaluation
[32]
The Respondent has placed the dismissal of the Applicant in issue. In
any proceedings concerning
any dismissal, the employee must establish
the existence of the dismissal
[3]
and so the Applicant was faced with that challenge from the
commencement of trial. Proof had to be on a balance of probabilities.
It remained common cause in this matter that when the Respondent
announced the closure of its Pietermaritzburg branch it said that
its
entire staff would be accommodated at its Nigel offices. Those who
could not transfer were left with the option of being retrenched.
One
employee immediately opted for retrenchment while the other three
needed some time to consult with their families and to make
up their
minds. Whether the Respondent gave its employees time frames within
which to respond, has become an essential issue in
this matter. The
minutes of the meeting held on 9 May 2013 provide no assistance in
this respect.
[33]
According to the Respondent 29 May 2013 was the ultimate date on
which an election had to be
made. The Applicant disputed this
evidence. Logic dictates that there had to be a definitive date on
which an election had to be
made so that the company would consider
whether to replace those who opted for retrenchment or re-arrange its
affairs with the
existing staff. The case of Mr Pillay and Ms Bhakelu
conformed to this definitive approach as it was clear by 31 July 2013
that
they would move to Nigel. The letter of 15 July 2013 issued by
Mr De Bruin outlining the financial implications of a transfer for
Mr
Pillay and the Applicant support this definitive approach. This
letter was, by the way requested by Mr Pillay and was not a
re-negotiation of the terms as suggested by Mr Pretorius.
[34]
The email exchanges between the Applicant and his wife on 29 May
2013, the very date on which
the Respondent said it wanted a final
response, support the view that the Applicant had made up his mind
that his family had to
move. They then discuss the implications of
the move and the investigative exercise they would have to embark
upon. The exchange
ends with the wife pondering on what was in store
for them. These thoughts are a clear manifestation that the Applicant
had decided
to move to Nigel and his wife agreed to it. There are no
noteworthy developments that took place in June 2013. In July 2013
the
Applicant took leave to go to Nigel and to conduct a study of the
area as their new destination in life. Part of the research conducted
included a telephone call made between the wife of the Applicant and
Mr De Bruin’s wife, which the Applicant was very reluctant
to
concede to. None of these exchanges suggest that the decision to
relocate was to depend on the outcome of the investigative
exercise.
It is quite probable that this study was meant for a move that would
take place in six months later, as proposed in their
exchanges. The
Applicant had motor vehicle problems and could not travel as
planned.
[35]
The exchange of 31 July 2013 at 21:24 reveals what was going on in
the mind of the Applicant
at this time. He was reconsidering the
relocation to Nigel. He spoke of hatred of being away from home,
saying he did not think
he could manage six months of it. He wondered
how others afforded working away from home. The only six months thus
far spoken of
related to relocation, if the Respondent would allow
them to delay it with six months. At 17:17 of the same date his wife
even
suggested that the Applicant was to consider leaving the
Respondent’s employment. Then at 18:00 he counters that
suggestion
by a consideration of other alternatives. The exchange of
13 August 2013 at 08:48 reveals that the Applicant had by then spoken
to Mr De Bruin and told him he no longer wanted to move but was told
to reconsider. By this time the Applicant and his wife were
in
agreement that Johannesburg was not right for them. The Applicant
would have Court believe that it was only at about this time,
in
August 2013, that he responded to an issue that was raised as far
back as 9 May 2013, some three months ago. That version does
not
accord with probabilities of this matter.
[36]
The issue of a business card being passed by the Applicant to a
client while working in Nigel
raised the debate whether it was a card
with a hand written amendment or a new card issued to him. However,
it is not necessary
to resolve the issue. A card that could have been
newly issued to the Applicant was produced in Court. The Applicant
faced a mammoth
task to dispute that new business cards were issued
him. It was never suggested that the card produced in Court was
merely manufactured
to help fabricate the case of the Respondent
during the trial. Neither do I have the basis for upholding that
view. The probabilities
of this matter favour the acceptance of the
version that the Respondent did produce business cards for the
Applicant. Whether such
production was because of a belief that the
Applicant had relocated to Nigel or that an employee of the
Respondent erroneously
issued the cards, is not easy to resolve in
the absence of the evidence of that particular employee who issued
it. This issue therefore
remains a moot point.
[37]
As a witness the Applicant was far from being a satisfactory witness.
When called to give an
account of events of 29 May 2013, he had
amnesia and yet claimed to recall preceding events with no clear
explanation why he recalled
older events better than recent ones. If
according to him nothing was said of significant on 29 May 2013, he
should have had a
clear memory. Yet from the exchanges he had with
his wife on that day, it is clear that he should have remembered the
date and
its developments. This observation is made notwithstanding
the failure of the Respondent to properly traverse events of that day
in its plea. The Applicant did not carry the conviction of his
version as a witness. In my assessment, Ms Bhakelu’s evidence
did not really add much weight to the evidence of the Applicant. When
properly seen it relates to the moment when the Applicant
re-considered the move. She even disputed a common cause issue that
the Applicant also asked for leave and wanted to look at schools
and
property in Nigel.
[38]
As a witness Mr De Bruin came across as much better than the
Applicant. The evidence of Mr Pillay
did not have as much a desired
effect as might have been intended. He expressed the attitude of the
Applicant about the relocation
without substantiation.
[39]
Finally on probabilities, as the Applicant re-considered the move, he
also wanted to be paid
the retrenchment package and he enquired about
it from Mr De Bruin. The Applicant said that he agreed to the three
months’
notice period only on condition that the retrenchment
package stayed in place.
The
probabilities are that an employee could not place such a condition
if it was common cause between them that he was retrenched
and would
receive a package. This version had to have been created to support
his claim that there was agreement that he would
be retrenched.
[40]
From the above, I conclude that:
Ø
The respondent did
put some time frame within which the employees in Pietermaritzburg
had to make an election on whether to relocate
to Nigel or be
retrenched;
Ø
The Applicant made
his decision and communicated it to the Respondent by 31 May 2013;
Ø
The Applicant chose
to relocate and thereafter embarked on an investigative exercise to
inform himself of the prevailing circumstances
in Nigel;
Ø
The Applicant found
the living conditions in Nigel to be unfavourable. He re-considered
the matter, decided not to relocate and
communicated his decision to
Mr De Bruin, asking that the retrenchment package be paid out to him;
Ø
The respondent
declined to pay him the retrenchment package;
Ø
The Applicant
terminated his employment with the Respondent;
Ø
The termination of
employment by the Applicant was not due to the operational
requirements of the Respondent. Applicant resigned.
[39]
Accordingly, the following order shall issue, taking into
consideration the law and fairness
of the prevailing circumstances:
1.
The claim of the Applicant is dismissed;
2.
No costs order is made.
Cele
J
Judge
of the Labour Court of South Africa.
APPEARANCES:
1.
For the Applicant: Mr J P Pretorius.
Instructed by:
Redfern and Findlay Attorneys, Pietermaritzburg.
2.
For the Respondent: Ms L Pillay.
Instructed by:
Yusuf Nagdee Attorneys, Braamfontein.
[1]
Act Number 66 of 1995, hereafter referred to as the Act.
[2]
See pages 32, 35, and 37 of the index to the WhatsApp
correspondence.
[3]
See section 192 (1) of the Act.