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[2017] ZALCJHB 153
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Radebe v Kangra Coal (Pty) Ltd and Others (JS830/14) [2017] ZALCJHB 153 (9 May 2017)
THE
LABOUR COURT OF SOUTH AFRICA
JOHANNESBURG
Not Reportable
Case no: JS830/14
In
the matter between:
OLIVIA
RADEBE
Applicant
and
KANGRA COAL (PTY)
LTD
First Respondent
SHANDUKA GROUP (PTY)
LTD
Second Respondent
Decided:
In chambers
Delivered:
9 May 2017
JUDGMENT
– APPLICATION FOR LEAVE TO APPEAL
BALOYI,
AJ
Introduction
[1]
The
applicant seeks leave to appeal against the judgment and order in
which I dismissed her claim of unfair dismissal by the first
and
second respondent. The application for leave to appeal is opposed by
the first respondent.
[2]
I do not consider it necessary to traverse the facts in detail as
these are fully set out in the judgment and the following
summary
suffices. The applicant was employed by the first respondent, of
which the second respondent is a shareholder. In the cause
of her
duties, the applicant was requested to provide information to the
second respondent which information ordinarily fell within
her area
of work relating to environmental affairs. Similar requests for
information were previously made to the applicant and
she provided
the requested information. In the present matter, whilst the
applicant initially agreed to provide the information
requested of
her, and in this regard exchanged cordial emails with,
inter alia
,
the first respondent’s Nkosinathi Kunene and the second
respondent’s Tozama Kulati-Siwisa (including providing some
of
the information, offering suggestions about how to improve the
requested information and undertaking to complete the task by
a later
date), and later with her newly appointed immediate superior, Fredah
Moatshe, the tenor of the email exchanges soon changed
with
complaints that the applicant was failing to deliver the information
as undertaken by her, and the applicant for her part,
asserting to
Moatshe that Moatshe, and not the applicant, made commitments to
Kulati-Siwisa to provide information. In addition,
the applicant
demanded that issues that she raised about the communication line or
protocol with the second respondent be resolved
before she dealt with
the issue of the outstanding information (the issue the applicant
sought to be resolved pertained to her
complaint that she was
excluded from liasing directly with the second respondent which she
did before the appointment of Moatshe).
The dates of and the various
email exchanges are set out in the judgment. This last conduct of the
applicant resulted in the applicant’s
dismissal from employment
following a disciplinary hearing on charges of “Disobedience –
(i) deliberate refusal to
obey a legitimate order; (ii) failure to
submit a Shanduka report as requested, made a commitment and not
commit to even after
some emails requesting the documents; therefore
putting the company into disrepute.”
[3]
The
applicant seeks leave to appeal on the ground that I erred in - (i)
finding that there is no evidence to support the allegation
that the
applicant’s dismissal was automatically unfair; (ii) admitting
hearsay evidence; and (iii) I failed to consider
the procedural
fairness of the applicant’s dismissal.
[4]
Leave
to appeal is granted only if this Court is satisfied that another
court might reasonably reach a conclusion different from
that
appealed against.
[1]
It
follows that for the Applicant to succeed, I must be satisfied that
another court may reasonably come to a different conclusion
from
mine.
[5]
I now
turn to consider the various grounds of appeal.
(i) Automatically
Unfair Dismissal
[6]
The Applicant contends that I erred in finding that her reliance on
section 5(2)(c)(vi) of the Labour Relations Act
[2]
(LRA) had no merit and that I should have found that the Applicant
was disciplined and dismissed because she intended to refer
a dispute
to the Commission for Conciliation Mediation and Arbitration (CCMA).
In particular, the applicant asserts that in the
absence of the
evidence of Moatshe and Kulati-Siwisa, both of whom did not testify,
I should have accepted her evidence that she
was dismissed because
she exercised her right to refer a dispute to the CCMA and I should
have accordingly found that her dismissal
is unfair as contemplated
in section 187(1)(c) of the LRA.
[7]
I found that there is no evidence that the applicant was subjected to
the disciplinary hearing and subsequently dismissed as
a result of
her referring a dispute to the CCMA. Quite significantly, I make
mention that the applicant, on her own account before
me, did not
refer the intended dispute to the CCMA because of her decision to
seek an amicable resolution of whatever concerns
she has. The
applicant did not point to any facts, and I could find none, that
point to or otherwise manifest that the disciplinary
action against
her was the result of her having informed Moatshe of an intention to
refer a dispute to the CCMA, an intention which
did not manifest. In
the event, the applicant could not succeed on this ground and I found
accordingly. I am not persuaded or otherwise
satisfied that another
court may reasonably arrive at a different conclusion in this regard.
It follows that this ground must fail.
[8]
In so far as this ground of appeal relies on the contention that I
should have rejected evidence pertaining to Moatshe and
Kulati-Siwisa, I deal with the issue in the next paragraph.
(ii)
Admission of hearsay evidence
[9]
This ground for leave to appeal permeates both the complaint about my
finding that the applicant has not made out a case for
an automatic
unfair dismissal and for a substantively unfair dismissal.
Accordingly, what I say is equally applicable to both.
[9]
As I understand it, the applicant’s case is that in the absence
of the testimony of Moatshe and Kulati-Siwisa before me,
I should
have found that evidence of the email exchanges between Moatshe,
Kulati-Siwisa and the applicant is hearsay evidence.
This is, so it
is contended by the applicant, because neither Moatshe nor
Kulati-Siwisa testified before me and the applicant did
not have the
opportunity to cross examine them. For this reason, I should not have
admitted this evidence, so it is contended.
[10]
Whilst it is so that Moatshe and Kulati-Siwisa did not testify before
me, the contention of the applicant that I should have
disregarded
the evidence regarding them and their involvement in the facts that
culminated in the dismissal of the applicant is
without merit.
[11]
The email exchanges that were relied upon by the first respondent
span the period October 2013 to March 2014 (copies thereof
were part
of the evidence). The applicant did not deny, in fact admitted that
the documents provided were copies of the emails
exchanged with her.
She did not deny the contents of the emails but in fact spoke to
their contents and sought only to dispute
– (i) that she did
not provide the information; and (ii) that she was under an
obligation to provide the information to the
second respondent.
[12]
Notwithstanding her contention before me that she provided the
required information in November 2012, it is apparent on the
face of
the email copies that as at December 2013, the applicant had not
provided all the information. This is apparent from her
email of 17
December 2013 in which she undertakes to complete the task by the
next Friday of that date.
[13]
Two witnesses of the first respondent with intimate knowledge of the
issues raised in the emails testified to the emails and
their
knowledge of the issues raised in the emails was not challenged.
Technical Manager Harry Jennings who was initially the applicant’s
superior, and later Moatshe’s superior (to whom the applicant
reported), testified to his knowledge of the issues raised
in the
email which resulted in the dismissal of the applicant, and to the
applicant’s unhappiness with the fact that she
was now required
to report to Moatshe and not to Jennings directly. Jennings also
testified in the internal disciplinary hearing.
It was never
contended by the applicant that Jennings has no knowledge of the
issues raised in the email exchanges pertaining to
the applicant’s
failure to provide the information when requested. The other witness
was the first respondent’s Stakeholder
Relations Manager,
Nkosinathi Kunene, who is included in at least some of the email
exchanges. He testified to the content of the
emails, in particular,
that the information that the applicant was required to provide fell
within her domain and that she was
responsible to provide the
information, and that she had previously been required and in fact
provided similar information. Both
witnesses were cross-examined
about the content of the emails and about the first respondent’s
contention that the applicant
was obliged to provide the information
that was required from her.
[14]
Jennings and Kunene also testified that the applicant was required
and obliged, by virtue of her position with the first respondent,
and
by virtue of a contractual relationship between the first and second
respondents, to provide the required information to the
second
respondent. I have given my reasons why I did not accept the
applicant’s contention that she had no contractual obligation
to provide the requested information to the first respondent and in
fact accepted the evidence of Kunene that the first respondent,
and
therefore the applicant, was obliged to provide the information to
the second respondent. That no written contract to evidence
this
obligation of the first respondent to the second respondent is a red
herring and this was not a pertinent issue to determine
whether such
an obligation existed. In any event, on the evidence that was before
me, it is clear that the applicant has previously
not contested the
first respondent’s obligation to provide information to the
second respondent, and the request to her to
provide the information.
She initially helpfully participated in the task of providing the
requested information, including in
this instance until she changed
her mind about this.
[15]
The contents of the emails exchanged between the applicant, Moatshe
and Kulati-Siwisa are self-evident. It was not necessary
that Moatshe
and Kulati-Siwisa testify that the emails were exchanged, more
particularly that the exchanges contained therein occurred.
It was
not necessary that either testify that the applicant did not provide
the information as it is evident from the email exchange
between the
applicant and Kulati-Siwisa that as at December 2013, the applicant
had not provided certain outstanding information,
notwithstanding
previous undertakings. It is also evident from email exchange between
the applicant and Moatshe that as at 4 March
2014, the applicant had
not provided all the requested information. Her obligation to provide
the information appears not only
from the said emails, but is also
explained in the evidence of Jennings and Kunene in particular. I
found the witnesses credible
and accepted their evidence in this
regard. I am satisfied that there is no basis in law why I should not
have accepted this evidence
of the two witnesses..
[16]
The applicant contends that she was denied the opportunity to
cross-examine Tozama Kulati-Siwisa and Moatshe. By her own admission,
the two persons referred to were not called as witnesses by the
employer. It follows that they were not liable to cross-examination
by the applicant. However, and more importantly, the applicant did
not call these persons as witnesses, under subpoena if necessary,
to
testify in furtherance of her claim and she offered no explanation
why she did not do so. The applicant had the right, and
responsibility, to subpoena the two witnesses if she considered them
necessary for the determination of her claim.
[3]
The
failure to bring them before court in the circumstances cannot be
placed at the door of the respondents at all. I find that
there is no
merit to this complaint or ground for leave to appeal. It follows
that I am not persuaded that another court will find
that I erred in
accepting this evidence of the first respondent.
(iii)
Failure to consider the procedural fairness of the dismissal.
[17]
With this complaint, the applicant’s contention is that in
invoking section 158(2) of the LRA, and considering the merits
of the
applicant’s dismissal, I was required to considered both the
substantive and procedural fairness of the dismissal
and that I
failed to consider the latter. I do not agree.
[18]
Notwithstanding that the applicant belatedly raised the complaint of
procedural unfairness in her evidence, and notwithstanding
that I
agree with the first respondent that the applicant was precluded from
raising procedural unfairness at this stage, I nonetheless
considered
the complaint of unprocedural unfairness as alleged by the applicant.
The applicant contends that her dismissal is rendered
procedurally
unfair by the fact that Moatshe, and not the CEO, dismissed the
applicant. Accordingly, the applicant was dismissed
by a person who
has no authority to dismiss her, so it is contended by the applicant.
This contention is founded on the evidence
that the applicant’s
letter of dismissal was signed by Moatshe whereas the first
respondent’s Code of Discipline prescribes
that the authority
to dismiss an employee rests with the CEO of the first respondent. On
its face, the letter of dismissal records
that Moatshe signed the
letter of dismissal on behalf of the General Manager, indicated with
“
pp
”
which ordinarily denotes that the signatory does so on behalf of
another. It follows that I could not find that Moatshe
dismissed the
applicant. I found that there is no evidence that Moatshe was not
authorized to sign on behalf of the General Manager
concerned as she
did. It was also not contended by the applicant that the General
Manager on whose behalf Moatshe signed did not
have the authority to
dismiss the applicant. In the result, this ground of complaint must
fail.
[19]
In the event, I find that the applicant has not shown that a court of
appeal may reasonably come to a different decision. Accordingly,
I
make the following order:
(i)
The application for leave to appeal is dismissed.
___________
MS Baloyi
Acting
Judge of the Labour Court
[1]
Van
Der Merwe v Du Plessis
[1999]
5 BLLR 531 (LC)
[2]
LRA
[3]
Rule
32 of the Rules for the Conduct of Proceedings in the Labour Court.