IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT PORT ELIZABETH
CASE NO. P250/98
In the matter between
JACOBUS PETRUS LOMBARD Applicant
and
COMMISSIONER NONKOSI MHLANTLA 1st Respondent
ABSA BANK LIMITED 2nd Respondent
JUDGMENT
GON, AJ
1. This application is brought in terms of section 158(1)(g) of the Labour
Relations Act 66 of 1995 to review the decision by the first respondent to
grant condonation for the late filing of a referral to the Commission for
Conciliation, Mediation and Arbitration for conciliation.
2. The second respondent’s first submission was that the employment was
terminated by agreement between the parties and that there was no
dismissal. In this case, neither this court nor the CCMA has jurisdiction to
consider an alleged dispute that arises from an agreement to terminate
employment in the absence of a dismissal.
3. The enquiry into the condonation decision only becomes relevant if I
find that there was a dismissal. This question then falls to be determined
first.
4. The applicant argued that a dismissal occurred which was confirmed on
appeal. Thereafter the parties agreed that it be recorded as resignation in
order to keep the applicant’s personnel (and personal) record clean and to
obtain more favourable pension benefits.
5. The second respondent argued that the dismissal of 3 December 1997
was revoked when the applicant’s employment was terminated by
agreement on 21 January 1998.
6. The second respondent further argued that, despite the lack of
jurisdiction mentioned above, the applicant failed to attack the validity of
the agreement which reflects poorly on the prospects of success in
arbitration and consequently in the application.
7. In his founding affidavit the applicant alleged that the second
respondent, after the applicant’s appeal was turned down, gave him the
option of resignation. Either he resigns or he is dismissed. He repeats that
“If I did not resign I would be dismissed. This was clear. The resignation
option was given to me after I suggested and I only suggested it after
my dismissal was confirmed.”
8. The applicant prevaricates. Within the same paragraph, he implies that
he was given an ultimatum by the second respondent implying he was
constructively dismissed . Immediately thereafter he concedes that he
suggested resignation after his dismissal was confirmed. He cannot have it
both ways .
9. In its submissions to the first respondent on condonation, the second
respondent sets out the sequence of events , stating that the applicant and his
union representative approached the chairperson (of the appeal hearing)
with a request to resign instead of remaining dismissed which was agreed to
by the second respondent with effect from 21 January 1998. This statement
is supported by a affidavit, which appears to be unintentionally not
properly sworn, by Ncedisa Phakama Maqoma who was a consultant to the
second respondent at the time of these events.
10. Ms. Maqoma stated that after the applicant’s appeal, his union
10. Ms. Maqoma stated that after the applicant’s appeal, his union
representative, Charmaine Olsen, asked her (Ms. Maqoma) if she would
ask the appeal chairman, Deon le Roux, if he would not rather accept a
resignation from the applicant, or otherwise “take this case further to the
CCMA. This would prevent a reflection of a record of discipline so that he
could find a job easier as it is difficult now for a white male to find
employment”. Ms. Maqoma notes further that the applicant was not forced
to resign and that he was present when his representative made the request.
Her affidavit was made on 7 May 1998.
11. The above evidence is completely at one with the applicant’s grudging
admission in his founding affidavit that the request to resign was his and not
an ultimatum by the second respondent.
12. I return to the applicant’s argument that agreement was only intended to
keep his record clean and to obtain better pension benefits, that it was never
intended to revoke the dismissal.
13. I do not agree. It cannot be that the dismissal remains but the
resignation is recorded just for effect. The very act of keeping a personal
record clean means that in the event of any potential employer of the
applicant’s seeking the reasons for the termination of his employment, the
second respondent would be obliged to state that he resigned. It could not
say that in fact he had been dismissed but it was agreed he could resign for
appearances sake. This would defeat the purpose of the agreement and it
would amount to a breach of the agreement.
14. Accordingly I agree with the second respondent. The parties
relationship was ultimately terminated on an agreed basis that the applicant
resign, the dismissal having been revoked.
15. Accordingly this court has no jurisdiction to hear this matter. The
application is dismissed with costs.
..................................
S GON
ACTING JUDGE OF THE LABOUR COURT
Date of hearing: 4 March 1999
Date of judgment: 12 March 1999
For the Applicant: Mr. Hornigold of Angus Hornigold
Attorneys
For the Respondent: Mr. H S Coetzee of Hofmeyr Herbstein
Gihwala &
Cluver Inc