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[2017] ZALCJHB 39
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Sunshield Solutions (Pty) Limited v Ngwenya and Others (JR1629/2016) [2017] ZALCJHB 39 (7 February 2017)
REPUBLIC
OF SOUTH AFRICA
THE
LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Not
Reportable
Case
No:
JR1629/2016
In
the matter between:
SUNSHIELD SOLUTIONS
(PTY) LIMITED
Applicant
And
NGWENYA: DUMISANE
JOHANESS N.O.
1
st
Respondent
THE COMMISSION FOR
CONCILIATION, MEDIATION AND
ARBITRATION
2
nd
Respondent
STEENKAMP: DESMOND
WARREN
3
rd
Respondent
Date heard: 20
January 2017
Date delivered: 7
February 2017
JUDGMENT
NAIDOO
AJ
Background
[1]
The
third respondent was employed by the applicant as a production
manager. The applicant is a company that markets and installs
sunshield awnings. During 2015 the third respondent got increasingly
discontented about his conditions of service. He explained
that he
was unhappy about being tasked to do installations.
[2]
The
applicant averred that the third respondent had resigned on 8
December 2015. He did so by communicating his resignation at a
meeting orally to the finance director, Ms Jenny Ellis (“the
oral resignation”). Shortly thereafter, on that same day,
at
lunch time, the third respondent announced in the kitchen that he was
leaving and added:
“
you
will be happy after I left”.
The
applicant asserted that several employees had witnessed this
pronouncement. The third respondent disputed that he orally resigned
and had then made the announcement in the kitchen.
[3]
The
third respondent averred that he typed a resignation letter (“the
resignation letter”) in the evening of 8 December
2015. He
thereafter took the letter to his workplace. He placed it in an
envelope, addressed it to Caron, who was a director, and
sealed it.
He, however, changed his mind and decided not to hand in the letter
of resignation. He left it in his top desk-drawer
in his office.
[4]
The
third respondent averred that, on 11 December 2015, Mr Peter
Oupa Ricks, a co-worker, had asked him:
“…
why
are you leaving the company?”.
The
third respondent responded:
“…
so
who is going to take my place?”.Mr Ricks
replied
that it was going to be Trevor, Ms Ellis’s husband.
[5]
On
23 December 2015 the third respondent took the sealed envelope from
his top desk-drawer and placed it, under some papers, in
his second
desk-drawer. He then went on leave.
[6]
The
third respondent visited his office on 7 January 2016. He averred
that he was still on leave. He only visited his office to
collect his
tools. On his arrival he observed that Ms Ellis and Trevor were in
his office. Trevor was sitting at the third respondent’s
desk
and both he and Ms Ellis were working at his desktop computer.
[7]
The
third respondent returned to worked, after his leave, on 11 January
2016. On his arrival Ms Ellis told him:
“…
I have your
resignation and I accept it”.
[8]
The
third respondent referred an unfair dismissal dispute with the second
respondent. The LRA Form 7.11 was served on the applicant,
and filed
with second respondent, by email on 3 February 2016. The third
respondent stated, in the LRA Form 7.11, that he was unfairly
dismissed on 11 January 2016. The dispute was conciliated on 8 March
2016. It remained unresolved. The conciliator recorded, on
the LRA
Form 7.12, that the unfair dismissal related to
“
reason
unknown”.
The
third respondent referred the dispute for arbitration on 8 March
2016. He stated, on the LRA Form 7.13:
“
Employer
acted on a resignation letter not served on the director and
dismissed Mr Steenkamp on returning from leave”.
[9]
The
first respondent arbitrated the dispute and issued an award in the
matter under case number GAEK1337-16 dated 31 July 2016.
He found
that the applicant had
dismissed
the
third respondent and that the
dismissal
was unfair, both procedurally and substantively. He awarded the
applicant compensation of R180 000 being equivalent to six
months of the third respondent’s salary (“the award”).
[10]
The
applicant issued the current application to review and set aside the
award. It sought the relief that the award be substituted
by an order
declaring that the applicant was not dismissed. None of the
respondents filed a notice to oppose the application. The
second
respondent filed a notice that it would abide by the decision of this
Court. No opposing affidavits were filed. Only the
applicant was
present and represented in Court during argument.
The review application
[11]
The
applicant alleged that the third respondent had referred:
“…
an
alleged transgression by the applicant within the meaning of section
191(5)(a)(iii) of the LRA by failing to provide the third
respondent
with reasons for his dismissal”.
It
argued that the first respondent was therefore:
“…
precluded from
adjudicating a dispute with regards to an alleged unfair dismissal
…”.
I
am at a loss to understand the applicant’s argument. Clearly
the third respondent had referred an unfair dismissal based
on
reasons
unknown;
and therefore, the first and second respondents were seized with the
duty to conciliate and arbitrate it.
[12]
The
applicant submitted that the first respondent had erred, in his
analysis of the evidence, when he made the finding that the
third
respondent was
dismissed
in January 1996; whereas he should have found that the third
respondent had
resigned
on 8 December 2015. In this regard the applicant averred that the
first respondent erred in not taking into account the testimony
of
the third respondent when he allegedly admitted that he had told Mr
Ricks, a co-worker, on 11 December 2015, that he (the third
respondent) was in fact leaving the employ of the applicant. The
applicant alleged further that the third respondent had admitted,
in
his testimony, that he had in fact resigned. I shall deal with the
issue relating to the resignation later in this judgement.
[13]
The
applicant submitted that the first respondent did not have any
evidence before him on what the third respondent’s monthly
salary was. This is not true. The first respondent had established,
during the
narrowing
down of the issues,
at
the inception of the proceedings; that the third respondent’s
monthly income was R30 000.
The award -
resignation
[14]
The
foremost issue before the first respondent was whether the third
respondent was dismissed. The first respondent found that,
although
the third respondent had in fact typed out the resignation letter on
8 December 2015; he (the third respondent) had changed
his mind and
decided not to communicate it to the applicant. He found that the
applicant had discovered the resignation letter
in the third
respondent’s office, during his absence, when he was on leave
between 24 December 2015 until 10 January 2016.
[15]
The
first respondent reasoned that, if the third respondent had indeed
communicated his resignation, whether orally or in writing,
on 8
December 2015, as the applicant had averred; then it begs the
question: why did he continue tendering his services into January
2016? The first respondent concluded that the only probable reason
for this was that the third respondent had not communicated
his
resignation on 8 December 2015. Hence, his termination in January
2016, when he returned to work, was not due to his resignation
on 8
December 2015; but amounted, in fact, to his
dismissal
.
[16]
The
applicant had presented no evidence to motivate that such dismissal
was procedurally and/or substantively fair. The first respondent
found that the dismissal was not procedurally and substantively fair.
He granted R180 000 compensation in favour of the third
respondent. The third respondent had sought only compensation.
[17]
The
applicant submitted that the first respondent had exceeded his
authority by assisting the third respondent during the re-examination
stage of his testimony.
The award –
first respondent exceeded his authority during re-examination
[18]
During the cross examination of the third respondent, the applicant’s
representative asked the former:
“
Now
M
r
Ricks will testify … (T)hat on the 11th of December whilst
coming back from Pretoria, you said you were driving in the
same
vehicle, you then said to him that you are leaving …And he
will also testify (that he) … asked Des are you leaving
the
job just like that and you said just like that. Do you have any
comment that you wanted to make if that evidence will be led?”
[19]
In
response, the third respondent said:
“
And
that was my response to him. Because I am not going to say Jenny this
and Jenny that and the company this …I said to
him I am
leaving just like that.
[20]
During th
e
re-examination phase of the third respondent’s testimony the
first respondent asked the former:
“…
you
had a discussion with Peter where you actually disclosed that you are
leaving and (inaudible) discuss the context under which
(inaudible)
disclosure was made. Remember you said that to him and then he moved
onto other questions, so you were not able to
expand on that. That is
what I mean by clarifying.”
[21]
In
response, the third respondent stated:
“…
I
dispute it totally. …We had a discussion about work that he
was unhappy about the environment, we were both unhappy that
we were
running our butts off and doing installations that we didn’t
sign up for and it became almost a daily operation …I
think I
used (inaudible) I am gatvol of doing this, I did not sign up for
this. He then raised the question and he said but why
are you leave.
I never said to him or any of the staff that I was leaving … I
said I was unhappy about issues but I never
ever said that I was
resigning …”
Did the first
respondent exceed his authority during re-examination
[22]
The
broad principal applicable is that commissioners should exercise
caution when they intervene in the proceedings over which they
preside.
[1]
Presiding officers
have the common law power to clarify aspects of the evidence and to
establish the truth. In this sense, the
presiding officer is more
than referee whose duty is to see to it that the rules of the game
are observed by the parties. The presiding
officer is an
administrator of justice and must see to it that justice is done
[2]
Moreover, a commissioner conducting arbitration proceedings is,
strictly speaking, not obliged to follow the rules of procedure
applicable to courts. Section 138(1) of the LRA provides that the
commissioner must:
“
determine
the disputes fairly and quickly but must deal with the substantial
merits of the dispute with the minimum of legal formalities”
[23]
Hence,
the LRA gives an arbitrator a wide discretion on how to conduct
proceedings; as long as the procedure followed is fair and
does not
result in prejudice to any of the parties involved.
[3]
[24]
In
the current matter it is clear that the first respondent intervened
to clarify the third respondent’s earlier testimony
in light of
the fact that he was unrepresented and the testimony was somewhat
unclear. He did not exceed his authority in so doing.
The evidence -
resignation
[25]
The
applicant’s version was that the third respondent had
communicated his resignation orally to Ms Ellis on 8 December 2015.
He thereafter walked into the kitchen, during lunch time, and
announced to the workers congregated there, that he had in fact
decided to leave the applicant’s employ. Three of the workers
who witnessed this were Mr Ricks, Mr Mabusa and Ms Monica.
[26]
The
third respondent had again, on 11 December 2015, told Mr Ricks that
he was leaving the applicant’s employ. The third respondent
conceded that he had such a conversation with Mr Ricks; but clarified
that Mr Ricks was a co-worker and the discussion was within
the
context of their mutual frustration relating to their operations.
[27]
Someone
found the third respondent’s letter of resignation in his
office after he had left on 23 December 2015. The actual
date when
the letter was found by the applicant is unknown; but it was before
11 January 2016, when the applicant had returned
to work after the
festive season.
[28]
The
third respondent did not dispute that he had drafted the letter of
resignation on 8 December 2015. He disputed that he had orally
communicated his resignation to Ms Ellis on 8 December 2015 and
placed the letter of resignation on his desk under a stapler. He
also
disputed that he had announced, in the kitchen, that he was leaving
the applicant’s employ. He further disputed that
he had told Mr
Ricks on 11 December 2015 that he was leaving the company.
[29]
The
third respondent averred that he had drafted the letter of
resignation in the evening of 8 December 2015. On 9 December 2015
he
signed the letter of resignation, placed it in a sealed envelope,
addressed it to Ms Caron; but had a change of heart. He decided
not
to bring it to the notice of the applicant. Instead, he placed it in
his top desk-drawer, in his office. The letter of resignation
remained in this drawer, while the third respondent continued his
duties as an employee; until 23 December 2015, when he took the
letter of resignation out of the top drawer and concealed it under
some papers, in the second drawer of the desk. The third respondent
was on leave from 24 December 2015 until 10 January 2016. However,
when he visited his office on 7 January 2016 to collect some
tools,
he observed that Mr Trevor was working at his (third respondent’s)
desk. When he returned to his office on 11 January
2016 Ms Ellis told
him:
“
I
have your resignation and I accept it”.
[30]
The
applicant’s representative had vigorously put the applicant’s
version to the third respondent during cross examination.
The third
respondent, in turn, vigorously disputed the version saying that it
was a fabrication
.
The
applicant’s representative persistently stated, during the
cross examination, that several witnesses would be called,
including
Ms Ellis, Mr Ricks, Mr Mabusa and Ms Monica; to attest to the version
that the third respondent had indeed orally communicated
his
resignation to Ms Ellis on 8 December 2015 and had subsequently
announced this in the kitchen at lunch time. The applicant,
however,
did not call any witnesses. Instead it closed its case immediately
after the third respondent had testified. The only
testimony that the
first respondent had before him was that of the third respondent.
The
review test
[31]
Section 138 of the LRA provides that the Commissioner must
expeditiously determine whether a disputed dismissal is fair. The
Constitutional Court (“CC”), in Sidumo and Another v
Rustenburg Platinum Mines Limited and Others[4] (“the Sidumo
case”), stated:
“
There
is nothing in the constitutional and statutory scheme that suggests
that, in determining the fairness of a dismissal, a commissioner
must
approach the matter from the perspective of the employer. All the
indications are to the contrary. A plain reading of all
the relevant
provisions compels the conclusion that a commissioner is to determine
the dismissal dispute as an impartial adjudicator.”
[32]
A
party aggrieved by a commissioner’s award, issued in terms of
section 138 of the LRA, may do so under very limited grounds
in terms
of section 145 of the LRA. The CC rejected, in the
Sidumo
case,
the
“
justifiability
of an arbitration award in relation to reasons given for it as a
ground of review of CCMA awards”
[5]
.
[33]
The
court reasoned that such awards may be reviewed, in terms of section
145, on the ground of unreasonableness. The test is whether
the
commissioner’s decision is one that a reasonable decision maker
could not have reached. If it is, then such decision
is reasonable.
If it is not, then such a decision is unreasonable and stand to be
set aside on review on that ground. In applying
this test parties are
assured of their constitutional right to fair labour practices and
their right to lawful, reasonable and
procedurally fair
administrative action.
[6]
Resignation –
legal principles
[34]
Van
Niekerk J correctly held, in
Sihlali
v South African Broadcasting Corporation Ltd
[7]
(“the
SABC
case”), that a resignation is a unilateral act by an employee
to terminate his/her contract of employment. The learned judge
pointed out that an employee, in so resigning, must demonstrate:
“…
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.”
[8]
[35]
Once
the employee delivers the resignation to the employer it cannot be
withdrawn. The employer may consent to such a withdrawal.
In the
absence of such consent, it is a final and unilateral act by the
employee.
[9]
Van Niekerk J
stressed that:
“…
it
is not necessary for an employer to accept a 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.”
[10]
[36]
However,
an employee need not communicate his/her resignation to the employer
for it to be effective.
[11]
As
Van Niekerk J pointed out, a resignation may be:
“…
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.”[12]
[37]
The
LAC held in
Fijen
v Council for Scientific & Industrial Research
[13]
that, for a resignation to be effective, an employee must:
“…
either
by words or conduct, evidence a clear and unambiguous intention not
to go on with his contract of employment. … (The
employee
must) 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”
Resignation -
application of the principles
[38]
The
issue in the current matter is whether the third respondent had
orally resigned on 8 December 2015. The applicant asserted that
he
communicated this to Ms Ellis in a meeting. The third respondent
disputed this. The applicant did not call Ms Ellis to rebut
the third
respondent’s testimony in this regard.
[39]
The
applicant admitted that he had, on that very evening of 8 December
2015, written out the letter of resignation which stated
that he will
resign with effect from the end of December 2015. He was adamant,
throughout the arbitration, that he had changed
his mind and had not
communicated this intention to the applicant by his subsequent
conduct when he had announced this to the staff
in the kitchen. The
third respondent disputed this. The applicant did not call any of the
staff members to attest to this allegation.
The applicant also failed
to call Mr Ricks to testify about his conversation with the third
respondent on 11 December 2015.
[40]
The
third respondent’s version was clear, unambiguous and in direct
contrast to that of the applicant. All the applicant needed
to do to
prove its version was to call, as witnesses, the various people who
had witnessed the applicant’s conduct evincing
his resignation.
It failed to do so. This left the first respondent with just the
third respondent’s testimony. It also left
open, the risk, that
the first respondent would draw a negative inference on the
conspicuous absence of the various witnesses implicated
in the
applicant’s version. If the third respondent had indeed told Ms
Ellis of his resignation on 8 December 2015, it begs
the question:
why did Ms Ellis or some other person in authority, not confirm the
resignation in writing to the third respondent?
Moreover, why did Ms
Ellis tell the third respondent on 11 January 2016 that his
resignation was accepted, if this was already
done orally on 8
December 2015?
[41]
In
the light of evidence before the first respondent it is apparent that
he had acted reasonably in making the finding that the
applicant’s
termination, when he returned to work, amounted to a dismissal
.
The
applicant had not provided any evidence to demonstrate that the
dismissal was fair. His finding that the dismissal was unfair
was a
reasonable one. There was no challenge on the amount of the
compensation awarded other than whether evidence was led about
the
third respondent’s monthly salary. I have dealt with this issue
above.
[42]
In
light of the above analyses, I am satisfied that the first
respondent’s award should stand.
The order
[43]
The
application is dismissed.
[44]
No
order is made as to costs
_____________________
Naidoo
AJ
Acting
Judge of the Labour Court
Appearances:
For
the applicant: Mr E Ungerer
Instructed
by:
Klopper Jonker Inc
[1]
Innovation
Maven (Pty) Ltd v Commission for Conciliation, Mediation and
Arbitration and Others
(2016) 37 ILJ 465 (LC) at [6]
[2]
Leboho v
Commission for CCMA and Others
(JR689/2004)
[2005] ZALC 65
(14 April 2005) at [5] (“the
Leboho
case”)
[3]
The
Leboho
case
at [8]
[4]
[2007] ZACC 22
;
2008 (2) BCLR 158
at
[61]
[5]
Maepe v
Commission for Conciliation, Mediation and Arbitration and Another
(2008)
29 ILJ 2189 (LAC
)
at
[40] (“the
Maepe
case”)
[6]
The
Maepe
case
at [40]
[7]
[2010] 5 BLLR 542
(LC) at [11]
[8]
See also
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) – as referred to by Van Niekerk J in the
SABC
case
at [11]
[9]
See the
SABC
case
at [11];
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 [11]
[10]
The
SABC
case at [11]
[11]
The
SABC
case
at [12]
[12]
The
SABC
case
at [13]
[13]
(1994) 15 ILJ 759
(LAC) at [772C-D]