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[2017] ZALCJHB 267
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Manson v Oracle Corporation (South Africa) (Pty) Ltd (J1556/17) [2017] ZALCJHB 267 (18 July 2017)
IN
THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG
Not
Reportable
Case
no: J 1556/17
In
the matter between:
ROBERT
MANSON
Applicant
and
ORACLE
CORPORATION (SOUTH AFRICA) (PTY) LTD
Respondent
Heard:
18 July 2017
Delivered:
18 July 2017
Edited: 20 July 2017
EX TEMPORE
JUDGMENT
CELE,
J:
Introduction:
[1]
The application before me is one brought in terms of section 158 (1)
(a) of the Act in terms of it being urgent, but I believe
it is
premised on the provisions of section 77 (3) of the Basic Conditions
of Employment Act. Where the applicant then seeks
to be granted
an order which is couched in the following terms:
[1.1]
Declaring
the applicant’s resignation on 23 May 2017 to be invalid;
[1.2]
Alternatively,
declaring the applicant’s retraction of his resignation on or
about 5 June to have been accepted by the respondent.
Whether
tacitly or otherwise. And,
[1.3]
Declaring
the employment relationship between the applicant and the respondent
to be on-going;
[1.4]
Such
further and alternate relief as the court might deem fit
[1.5]
And
the costs against the respondent on a punitive scale.
[2]
The application is opposed by the respondent in his capacity as the
erstwhile employer, or even current employer according to
the
applicant, of the applicant.
Background:
[3]
Very briefly, on 18 May 2015 the applicant was issued with a notice
to attend a disciplinary enquiry which was scheduled to
proceed on 25
May 2017 before an independent chairperson who was identified.
Later, that person turned out to be Advocate
van As.
[4]
The applicant engaged his line manager and others in some
discussions. As a result of those discussions, the applicant
formulated an opinion that the intention of the respondent was to
have him dismissed.
[5]
He then tendered a letter of resignation. That letter, to the
extent relevant, reads:
“
I
do hereby tender by resignation from Oracle South Africa as the
senior director for ZASADC effectively the 23 May 2017.
My last
working day will be 30 June 2017. I would like to state it on record
that even though I will be officially on garden leave
from 1 June
2017 till 30 June 2017, it is on this condition that I submit this
resignation, that I must be compensated for my backlog
commission as
well as for all the deals that will be booked on or before 30 June
2017. The failure to honour this agreement by
Oracle will render this
resignation null and void. It was great working for Oracle over the
last two years.
I
trust you will find the above in order.”
[6]
The document is dated 23 May 2017. On the same date, after some
exchanges between the applicant and the respondent, there
is similar
letter, but adapted, which was handed in to replace the one I just
read. It therefore reads, essentially:
“
I
do hereby render my resignation from Oracle South Africa as a senior
director for ZASADC effectively, the 23 May 2017. My
last
working day will be 30 June 2017.
I
would like to state it on record that even though I will be
officially on garden leave from 1 June 2017 till 30 June 2017, it
is
on this basis that I submit this resignation. That I must be
compensation for my backlog commission, as well as for all
the deals
that will be booked on or before 30 June 2017.
It
was great working for Oracle over the last two years.”
[7]
What essentially is the different is then the withdrawal of the
clause, “
The failure to honour this agreement by Oracle will
render this resignation null and void.”
That is the
essential difference between the two letters.
[8]
On 5 June 2017 the following letter was written at the instance of
the applicant:
“
Constructive
dismissal of Robert Manson by Oracle Corporation.
We
represent Robert Manson who informs us of the following:
1.1.
On 18 May 2017 our client received a disciplinary notification
containing a number of spurious charges. He was then informed
that should he not resign, he will be dismissed. A lot of
utterances and insinuations were made leading up to this indication
that these charges were meant to force our client to resign.
Due to this, he then resigned.
1.2.
The spurious nature of the charges, together with the said threats
and utterances make it clear that the employer was aware
that it had
no case, and instead of proceeding with the hearing coerced our
client into resignation. This constitutes constructive
dismissal in terms of section 186 (1) (e) of the Labour Relations
Act.
2.
You are notified that it is our client’s intention to take up
this matter with the CCMA, and to get to the Labour Court
if
necessary.
3.
You are required to provide ourselves with the following documents by
6 June: Oracle Corporation’s Code of Ethics; Oracle
Corporation’s Disciplinary Code, listing the penalties
indicated for each type of misconduct.”
[9]
It is clear from this letter, 5 June, that nowhere does the applicant
clearly indicate that he then withdraws the letters of
resignation,
be they Item 1, as the first letter of resignation, or Item 2, as the
second adapted letter of resignation. And it
is clear from this
letter what events had ensued after the tender of resignation.
That the company indicated its intention
to exercise its prerogative
to discipline the employee. Here I refer to for instance, the
letter dated 23 May 2017, which
is an email written by Queen:
“
Good
day Robert,
As
you know, you are invited to attend a hearing to discuss various
allegations against you. On receipt of the invitation
to that
hearing, you asked whether you could resign instead of going through
the disciplinary process. Please note your email
below. The
company agreed to that on the condition that you spend your notice
period on garden leave. If you no longer
wish to resign,
we will proceed with the disciplinary hearing on 25 May 2017 at 09:00
to 13:00. To be clear, there is no settlement
option on the table.”
[10]
The email referred to below reads (it comes from the applicant):
“
As
discussed, I propose that I tender my resignation and work a month’s
notice, and leave Oracle end of June, so that I do
not go through the
enquiry process scheduled on 25 May. Queen said it is not
possible. I am open to that.”
[11]
This forms the essential factual basis of the case that is before me,
save to add that there is a letter, email dated 23 May
2017, which
reads:
“
Your
resignation is noted as accepted by Hurde. Please note points around
commission on your resignation letter will be addressed,
based on
Oracle commission guidelines.”
Analysis
[12]
It is clear from the reading of the documents I have referred to that
the applicant did not says that he was resigning on condition
that he
would never, ever be subjected to a disciplinary hearing. It is
clear that he did not want to be subjected to that
disciplinary
hearing. One can understand that. But the applicant, on the
first letter, Item 1, put two conditions under which
he wanted to
tender his resignation. One, related to the payment of the
backlog money, and the second related to the honouring
of what he
referred to as an agreement.
[13]
But it is clear that there was never any such an agreement and I
engaged Ms Govender for the Applicant on it, on a discussion
here
relating to that very issue, and it has been conceded that in fact
there was no such agreement but the word ‘agreement’
in
Item 1 relates to that discussion that took place between the
parties.
[14]
But there never was any agreement entered into by the parties in
terms of which the employee was supposed to resign. The employee
now
wants this court to declare his letter of resignation as being
invalid, premised on the events that ensued. And yet,
from all
of the evidence that is tendered in the founding and in the replying
affidavits, it does not appear to me that the employer
did anything
on the basis of which the applicant felt the condition for
resignation was infringed by the employer.
[15]
The employer never said that there would be no disciplinary action if
the employee resigned. But the employee indicated that
if he does
resign, he might not be subjected to a hearing. In other words,
the prerogative of the employer in its capacity
to discipline its
employee remained, and in fact it did say he might not be
disciplined, or the hearing might not proceed on 25
May 2017.
It was not a final or definitive decision.
[16]
The employer clearly would have wanted to accept the resignation if
the employee wanted to go, and put no conditions that were
contrary
to any policies of the company. And it is clear from what has
happened, as chronology shows it, that the company did take
a
position that the backlog commission could possibly have been paid if
it was in line with the policy of the company. So
the backlog
commission does not appear to be the basis for the application that
is before me.
[17]
The applicant, simply put, has not shown therefore, or has not
clearly established a right on the basis of which he seeks the
relief
that he has carved in the Notice of Motion. That is the first
finding that I make.
[18]
The second finding relates to the absence of urgency. The
applicant has an alternative, that is, of referring a dispute
to
conciliation for constructive dismissal or in whatever way the
applicant considers or feels he has been dismissed.
[19]
In my view there is no urgency that is shown by the applicant in this
matter because there is no indication in these papers
as to exactly
what the irreparable harm there is, that would be suffered by the
applicant if the application that is before me
is not granted.
[20]
I am of the view that this is a matter that clearly could very easily
have been referred in terms of the LRA. I am not
persuaded that
there is shown to be the right, on the basis of which the application
is premised, and also, I am not shown that
there is the necessary
urgency of the matter which, if it is not accorded to the matter,
irreparable harm will be suffered by the
applicant.
[21]
On those bases alone, this application is ill-begotten and in the
premises, the following order is made:
Order:
1. The application is truck-off the
roll;
2. The applicant is ordered to pay the
costs thereof.
__________________
H Cele
Judge
of the Labour Court of South Africa
APPEARANCES:
For
the Applicant:
Adv. T Govender
Instructed
by:
Thapelo Kharametsane Attorneys
For
the Fourth Respondent:
Mr. F Milan of Edward Nathan Sonnenberg Inc.