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[2018] ZALCCT 20
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Coetzee v Zeitz Mocaa Foundation Trust and Another (C517/2018) [2018] ZALCCT 20; (2018) 39 ILJ 2529 (LC) (14 June 2018)
IN
THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Reportable
C
ase
no: C517/2018
In the
matter between
MARK
MICHAEL
COETZEE
Applicant
and
THE
ZEITZ MOCAA FOUNDATION TRUST
(TRUST
NO: IT000844/2015(c)
First Respondent
THE
TRUSTEES FOR THE TIME BEING OF THE
ZEITZ
MOCAA FOUNDATION TRUST
2
nd
to 5
th
Respondents
Heard: 8 June 2018
Delivered: 14 June 2018
Summary:
An employer has an election as to whether or not to accept an
employee’s resignation and hold her to her notice period
and to
discipline such employee during the notice period.
JUDGMENT
RABKIN-NAICKER J
[1] This is an urgent
application in which the applicant seeks the following relief:
“
2.
Declaring the disciplinary process instituted by the First Respondent
against the Applicant on 15 M
ay
2018 to be unlawful, invalid and of no force and effect;
alternatively
3.
Interdicting and restraining the Respondents from continuing and
finalising the disciplinary process instituted against the Applicant
in his capacity as employee of the First Respondent, which process
was initiated on 15 May 2018 in the light of the Applicant’s
resignation from employment with immediate effect on 16 May 2018,
alternatively 25 May 2018;
4.
Declaring that the Respondent had no jurisdiction to discipline and
interdicting the Respondents from continuing with the disciplinary
investigation/disciplinary process after 16 May 2018, alternatively
25 May 2018, following the Applicant’s unequivocal and
immediate resignation without notice;
5.
Insofar as the Respondents may have continued with the disciplinary
process instituted on 15 May 2018 against the Applicant,
declaring
that any disciplinary procedure or process taken (alternatively
disciplinary process being finalised) after 16 May 2018,
alternatively 25 May 2018, be declared null and void and accordingly
be set aside.
6.
That the Respondents be ordered to pay the Applicant’s costs of
the application, on the scale as between attorney-and-own
client, the
one paying the others to be absolved.”
[2]
The applicant was invited to make written representations in respect
of allegations of serious misconduct in his capacity as
Executive
Director and Head Curator of the Zeitz Museum of Contemporary Art
Africa. The invitation was made by means of a letter
dated 15 May
2018. Clause 2 and 3 of the letter reads as follows:
“
2.
The allegations are set out herein-below. In compiling your
response(s), you may be assisted by a legal representative of your
choice. Be advised that the Trust shall not be convening a formal
disciplinary hearing. This letter and the invitation for you
to
respond hereto constitutes your opportunity to be heard which is in
line with the relevant provisions of the
Labour Relations Act, 1995
as read with your conditions of employment and the Company’s
Disciplinary Code.
3.
Your response to these allegations is required by no later than 12h00
on Tuesday 29 May 2018. In the event that you fail to respond
by this
deadline, the Trust shall proceed to determine the allegations
against you and to impose an appropriate sanction.”
Applicable legal
principles
[3]
The submissions in regard to the legal principles applicable to the
dispute are set out on behalf of the respondents are as
follows:
3.1
An employee is entitled to resign with
immediate effect only in the case of a preceding material breach
of
contract by the employer, which is not pleaded, much less proven,
here;
3.2
Statutorily and contractually, the Applicant is bound to give at
least four weeks’
notice of his resignation, which period the
parties have agreed expires on 22 June 2018, in the event that this
application fails;
3.3
If an employee wrongfully purports to resign on no notice, the
employer remains entitled
to exercise its contractual rights during a
notice period;
3.4
During an employee’s notice period, there is no legal
impediment to the prosecution
of disciplinary proceedings and, if
warranted, the subsequent dismissal of an employee for misconduct.
[4]
In
Vodacom
(Pty) Ltd v Motsa and Another
[1]
the Court per Van Niekerk J stated the following:
“
[19] The principles that
regulate a resignation are well established. Resignation is a
unilateral act (see Sihlali v SA Broadcasting
Corporation Ltd
(2010) 31 ILJ 1477 (LC) (LC J799/08; 14 January 2009)). When an
employee gives the required notice,
the contract terminates at the
end of the notice period. When an employee leaves his or her
employment without giving the required
period of notice, the employee
breaches the contract. Ordinary contractual rules dictate that the
employer may hold the employee
to the contract and seek an order of
specific performance requiring the employee to serve the period of
notice. Alternatively,
the employer may elect to accept the
employee's repudiation, cancel the contract and claim damages. Of
course, it is always open
to the parties to terminate an employment
contract on agreed terms and for either of them to waive whatever
rights they might otherwise
have enjoyed.”
[5]
The above statement is a correct reflection of the law. Reference was
made to the case of
Mtati
v KPMG Services (Pty) Ltd
[2]
in submission before me. This judgment has recently been overturned
on appeal on the basis, (as far as can be gleaned from the
LAC ex
tempore order) that the dispute before the Labour Court was moot. In
as far as that judgment was in conflict with the summary
of the law
above, it is no longer persuasive. There is no need for the
Court to deal with the facts and law applied in that
case. However,
for clarity of the legal position, that an employee’s
contract of employment comes to an end only once
his resignation
takes effect at the end of his notice period, the following obiter
dictum of Zondo J (as he then was) in his dissenting
judgment in
Toyota
SA Motors (Pty) Ltd v Commission for Conciliation, Mediation &
Arbitration & others
[3]
is set out:
“
[144]
Since an employee has no right of withdrawing a valid and lawful
resignation once it has been communicated to the employer
except with
the consent of the employer, this means that as at the date of his
dismissal, Mr Makhotla was bound to leave
Toyota's employ on 31 March
2011. As already indicated, Mr Makhotla was dismissed a few days
before his resignation would take
effect. One can, therefore, say
that the dismissal interrupted the resignation. That is why we cannot
say that Mr Makhotla's employment
with Toyota came to an end as a
result of his resignation. We say that it came to an end as a result
of his dismissal on 24 March
2011.”
The Applicant’s
case
[6]
The Court has to determine whether on the papers before me, the
employer elected to hold the applicant to a notice period as
it
claims in this matter. The founding papers set out the following
material allegations:
6.1
That at a meeting on the 15 of May 2018 the applicant was handed the
invitation to make
written representations and given a document
entitled “precautionary suspension from employment”;
6.2
That the next day at a meeting, on 16 May 2016, he informed the first
respondent that he
wanted to tender his immediate resignation since:
“I didn’t want to hurt anyone or the First Respondent.”
He
did not do so in writing but an agreed statement was discussed
with his employer to be given to the press.
6.3
In terms of the agreed statement, the first respondent announced to
the press that: “an
enquiry into Mr Coetzee’s
professional conduct has been initiated by the trustees. Mr Coetzee
has since tendered his resignation.”
6.4
That in the eyes of the world, he had resigned with immediate effect
and that should have
been the end of the matter.
6.5
That it appeared to him that certain of the Trustees were hell-bent
on proceeding with the
allegations against him and instructed his
attorney to get confirmation in writing that “it is indeed your
view that our
client has resigned from your service and is therefore
not employed by you”.
6.6
The employer’s response through its attorneys of record was, as
recorded in correspondence
dated 22 May 2018 and annexed to the
founding affidavit, that: “As matters presently stand, based on
the facts as recorded
above, our client regards your client as having
resigned with effect from 16 May 2018, subject to four weeks’
notice as provided
for in terms of law.”
[7]
The replying papers reiterate the applicant’s averment in his
founding papers that he resigned with immediate effect and
in
addition, annex his pay slips, including that of May 2018 which
reflects his employment termination date as 16 May 2018 and
the
‘ordinary’ days worked as 16 (sixteen). The applicant is
coy as to when he asked for his payslips, he avers that
he did so
‘recently’. However, the email requesting his May payslip
annexed as “R10” to the replying papers
was dated 1 June
2018 and reads as follows:
“
Dear Nazeer
I am unable to access my
payslip for May as it is sent to the Zeitz MOCAA email.
Could you please send my
May payslip in the format attached.
It would also be helpful
if you could send me March and April as well for my records.
Thank you for your help.
Best
regards
Mike”
[8]
I note that the email reflects that a format was attached for the
financial department to use to capture the May payslip. That
attachment is not annexed to the replying affidavit.
[9]
The replying affidavit elicited an application for the filing of a
“supplementary answering affidavit” by the respondents
in
material part dealing with the payslips.
[10]
I declined to admit the said affidavit based on the relevant
authorities which were succinctly set out
Porterstraat
69 Eiendomme
v P A
Venter
[4]
in which the Court stated:
“
In
terms of the decisions in Mkwanazi v Van der Merwe and Another
1970
(1) SA 609
(A) at 626A - G and in Barclays Western Bank Ltd v
Gunas and Another 1981 (3) SA 91 (D) at 95C - 96E the relevant
considerations
in such an application are:
(i)
The reason why the evidence was not led timeously.
(ii)
The degree of materiality of the evidence.
(iii)
The possibility that it may have been shaped to 'relieve the pinch of
the shoe'.
(iv)
The balance of prejudice, viz the prejudice to the plaintiff if the
application is refused and the prejudice to the defendant
if it is
granted.
(v)
The stage which the particular litigation has reached. Where
judgment has been
reserved after all evidence has been heard and,
before judgment is delivered, plaintiff asks for leave to lead
further evidence,
it may well be that he or she will have a greater
burden because of factors such as the increased possibility of
prejudice to the
defendant, the greater need for finality, and the
undesirability of a reconsideration of the
whole case,
and perhaps also the convenience of the Court.
(vi)
The 'healing balm' of an appropriate order as to costs.
(vii)
The general need for finality in judicial proceedings.
(viii)
The appropriateness, or otherwise, in all the circumstances, of
visiting the fault of the attorney
upon the head of his client.”
[11]
In my view, the application was a classic case of trying to “relieve
the pinch of the shoe”
[5]
.
In any event, the defence put up by the respondents in the
supplementary affidavit in regard to the payslips was not a dispute
of fact, but a legal defence which could not have been decided on
these papers.
Respondents’
Case
[12]
The answering papers allege that at no stage did the employer agree
that the applicant’s resignation would have immediate
effect or
waive the Trust’s right to notice and that this was explained
to the applicant on the 16 May 2018. In effect the
respondents’
case is that they hold Coetzee to at least 4 weeks’ notice
period being the statutory minimum. It is stated
in answer that at no
stage did the applicant say he was resigning with immediate effect.
The answering affidavit also refers to
and annexes an unsigned
employment agreement between the parties. It is averred that although
the employment agreement was never
signed “its terms reflect
what was agreed between us and its terms have been implemented by
both parties to date.”
[13]
The said contract contains a “Resignation Clause” which
reads “The Employee may resign from his employment
with the
Trust at any time on giving not less than 6 (six) months prior
written notice to the Trust.” Much was made in submission
of
the difference between this clause and the four week notice period
given to the applicant. However, nothing would preclude the
respondents from waiving a large part of the notice period. In any
event, the parties have agreed that should this application
not
succeed, the notice period would come to an end on 22 June 2018.
[14]
The material issue in dispute in this application is whether the
respondents in fact accepted the immediate resignation of
the
applicant on 16 May 2016. The respondents have admitted the content
of the statement issued by the Museum on the 16 May 2018.
The
statement reads that applicant “had tendered his resignation”
and
not
that he had resigned. The deponent to the answering affidavit,
deals with the meeting of the 16 May 2018 as follows:
“
A
follow-up meeting was held between myself, Zeitz and Coetzee the
following morning, Wednesday, 16 May 2018. During this meeting,
Coetzee stated that he intended to resign. At no stage did he state
or indicate that his resignation was to be with immediate effect
or
without notice. In fact it was specifically discussed that the Trust
would be continuing with an investigation into the allegations.
We
repeatedly encouraged Coetzee to seek legal advice and to respond to
the allegations contained in the Notice.”
[15]
The first respondent thus unequivocally denies that the tendered
resignation was agreed by the Trust or the Trustees. In addition,
the
answering papers aver the following:
“
It
is also striking that the letter sent by Coetzee’s attorneys of
record on 21 May 2018, annexed to the founding affidavit
as Annexure
“F”, seeks clarification from the Trust as to whether it
regarded Coetzee as having resigned. Notably,
the letter fails to
allege that Coetzee had in fact already resigned, much less that he
had already done so with immediate effect.”
Evaluation
[16] It is trite that an
application for final relief stands to be decided on the principles
as set out in
Plascon
Evans
[6]
that
“…
where
in proceedings on notice of motion disputes of fact have arisen on
the affidavits, a final order, whether it be an interdict
or some
other form of relief, may be granted if those facts averred in the
applicant's affidavits which have been admitted by the
respondent,
together with the facts alleged by the respondent, justify such an
order. The power of the Court to give such final
relief on the papers
before it is, however, not confined to such a situation. In certain
instances the denial by respondent of
a fact alleged by the applicant
may not be such as to raise a real, genuine or bona fide dispute of
fact (see in this regard Room
Hire Co (Pty) Ltd v Jeppe Street
Mansions (Pty) Ltd
1949 (3) SA 1155
(T) at 1163 - 5; Da Mata v
Otto NO
1972 (3) SA 858
(A) at 882D - H).”
[7]
[17]
On respondent’s version then, the Court is bound to find that
the tender of notice was not accepted as an immediate resignation.
The applicant’s replying papers, in which he attaches the May
pay slip to bolster his case regarding the end date of his
employment, do not come to his assistance. This is because on his own
version he sent a ‘format’ to the Finance Department
for
the May pay slip to be drafted.
[18]
Mr Bekker for the applicant made a number of submissions regarding
the disciplinary procedure being used by the respondents.
However,
these issues must be dealt with, if necessary, at a later stage. It
would not be proper for this Court to comment on them
at this
juncture. Nor is it necessary or relevant to delve into the charges
of serious misconduct against the applicant.
[19]
In sum, the applicant has not made out a case for the relief he seeks
in the Notice of Motion. I note that if his application
is dismissed,
as it stands to be, the parties have agreed that his notice period
comes to an end on the 22 June 2018. In as far
as costs are
concerned, I am not inclined to make a costs order. The application
was not frivolous and was considered urgent by
both parties. Indeed
it seemed to me that both parties welcomes a consideration of the
matter by the Court.
[20] In the result, I
make the following order:
Order
1. The application is
dismissed.
2. There is no order as
to costs.
_______________
H. Rabkin-Naicker
Judge of the Labour Court
Appearances
Applicant:
W.P. Bekker instructed by Gildenhuys Malatji Incorporated Attorneys
Respondents
: Alex Freund SC with Karla Saller instructed by CDH
[1]
2016
(3) SA 116 (LC)
[2]
(2017)
38 ILJ 1362
[3]
(2016)
37 ILJ 313 (CC). The issue was not a contentious one in both
judgments in the matter.
[4]
2000(4) SA 598 CPD @617 B-F
[6]
Plascon-Evans Paints Ltd v Van Riebeeck Paints
(Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A) 634H – I applied
[7]
at 634H – I