Sneller Verbatim/MB
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: J668/00
2001-06-28
In the matter between
BIG FIVE RECRUITMENT Applicant
and
SHEAR LARRY AND CCMA Respondent
________________________________________________________________
J U D G M E N T
________________________________________________________________
REVELAS J:
1.This is an application to review or set aside an arbitration award of the
first respondent, in favour of the third respondent. The application is
brought in terms of Section 145 of the Labour Relations Act 1995, (“ the
Act”).
2.The third respondent in this matter filed its heads of argument as late as
25 June 2000. It has become a very strict practice in this court that
heads of argument which filed late are not accepted. However, in view
of the affidavit filed of record by the third respondent's counsel I
granted the condonation of the late filing of the heads of argument.
3.The third respondent was employed by the applicant as a personnel
consultant since 22 June 1998. It appears that Mr Walsh of the
applicant, was not particularly satisfied with the third respondent's
work and had counselled and addressed this issue with her.
4.On 15 October Mr Walsh wanted the applicant to attend to certain paper work
in respect of a task allocated to her, referred to as “the Osmon
Placement”. This placement had to be completed on that day and since it
was not, Mr Walsh contacted the third respondent on her cell phone and
asked her to return to work to complete the paperwork. Mr Walsh was
informed that she was on her way to see a client. It is in dispute what
the third respondent's real whereabouts was on this day, but according
to Mr Walsh she had told to him that she had an appointment with a
certain Mr van Staden, who upon further telephonic investigation by Mr
Walsh, denied any knowledge of any appointment with the third
respondent.
5.The third respondent also then changed her version, according to Mr Walsh,
when confronted and stated that her appointment was with one Joan
Robertson and according to Mr Walsh, the third respondent could not have
had any appointment with Mrs Robertson as the latter only worked for
half a day. He therefore believed the applicant had lied to him.
6.The third respondent also denied that she ever had an appointment with Mr
van Staden.
7.Mr Walsh felt that the third respondent was dishonest and this apparently
angered him. It is common cause that he then called the third
respondent into his office, which had glass windows, and there
confronted her with these aforesaid allegations. He felt that she was
dishonest. She testified that he had called her a liar.
8.According to Mr Walsh, and this is what he had told the arbitrator, he told
the third respondent that she should rather "go". On the other hand the
third respondent testified that he told her to “pack her things and go”,
whereas she had previously in evidence said he had told her that she
“was fired”. She maintained that Mr Walsh had dismissed her and that
she had understood that she was dismissed. Mr Walsh contended before
she had understood that she was dismissed. Mr Walsh contended before
the arbitrator that he never intended to dismiss the third respondent.
9.On 19 October the third respondent's attorneys addressed a letter to the
applicant claiming that the third respondent had been unfairly dismissed
on 16 October 1998 and demanded compensation. Here it is important to
note that the third respondent, (at page 77 of the record), stated that
when she went to see her attorneys she did not regard herself as being
dismissed.
10.It was argued on behalf of the third respondent at the arbitration
hearing, that a dismissal had indeed occurred, otherwise the applicant's
attorneys would not have on 20 October 1998 addressed the letter to the
third respondent's attorneys advising that the third respondent, insofar
as it may be considered that she had been dismissed, was immediately and
unconditionally reinstated in her position without any loss of benefits.
11.She was asked to report for work on 22 October 1998. There was no
response. Despite this request the applicant afforded the third
respondent a third opportunity to report for duty by 26 October. On
this day, when the third respondent did not arrive the applicant
regarded her as having absconded.
12.The arbitrator found that the third respondent was unfairly dismissed and
that she had not unreasonably refused to resume her duties.
13.In this regard it is significant that the applicant offered a full
investigation into all of the allegations made in the letter written by
the third respondent's attorneys. According to her evidence during
crossexamination, the third respondent stated that she did not want to
return to work because Mr Walsh would continue to give her warnings and
finally dismiss her.
14.The arbitrator remarked that he was "aware that the labour court has held
that if an employee unreasonably refuses an offer of reinstatement which
is made in good faith and within reasonable proximity of the date of
is made in good faith and within reasonable proximity of the date of
dismissal, the refusal to accept the offer without good cause may
disallow an employee from seeking and receiving compensation."
15.There is no evidence, and the arbitrator gives no reason as to why, and
makes no specific finding either, that the applicant's offer was not
made in good faith. There is nothing on the evidence before the second
respondent to suggest that it was made in bad faith. The offer was also
twice repeated without any reservation. The offer was also made clearly
in very close proximity to the dismissal, being made on the second
working day after the incident took place and may repeated two days
later.
16.Insofar as the question is concerned whether the refusal of the applicant
to return to work was reasonable, the second respondent merely accepted
that the third respondent was humiliated because she was called a liar
in front of third parties. This is factually incorrect. He spoke to her
in his office. The fact that it had glass windows does not render it as
part of the public area.
17.On the applicant’s version, the third respondent had lied to him about her
whereabouts on two occasions and shirked her duties. In such
circumstances an employer is entitled to demand from an employee where
she had been all day and if he had been given information which
indicated misconduct, most certainly Mr Walsh was entitled to
investigate this. It was not open to the third respondent to avoid an
investigation by refusing to accept the offer of reemployment.
18.The third respondent’s refusal to return to work was thus expressed as:
"no, so that he can give me written warnings and make good his mess up ".
In my view, such an answer indicates that the third respondent did not
want to afford the applicant an opportunity to remedy the defect that
existed, as it would prejudice her claim for compensation. If she was
innocent of the misconduct as alleged by Mr Walsh, this would have been
innocent of the misconduct as alleged by Mr Walsh, this would have been
proved at a hearing and she could have remedied the matter there. If
she was then dismissed and she felt the dismissal was unfair she could
then pursue other remedies from there, such as invoking the mechanisms
of the Labour Relations Act and refer the dispute to the Commission for
Conciliation, Mediation and Arbitration. It is in my view not open to
an employee to frustrate such an investigation and the remedy formula
contained in section 194(1) of the Labour Relations Act should not be
abused.
19.In Johnson & Johnson (Pty) Ltd. v CWIU 1999 (20) ILJ 89 LAC [1998] 12 ELLR
1209 LAC, the Labour Appeal Court stated as follows at 1219J to 1220E:
"If a dismissal is found to be unfair solely for want of compliance with the proper
procedure, the Labour Court or an arbitrator appointed under the LRA, does have a
discretion whether to award compensation or not. If compensation is awarded, it
must be in accordance with a formula set out in section 194(1), nothing more,
nothing less. The discretion not to award compensation in the particular
circumstances of a case, must of course, be exercised judicially. The compensation
for the wrong in failing to give effect to an employee's right to a fair procedure is
not based on patrimonial loss or actual loss, it is in the nature of a solatium for the
loss of the right and is punitive to the extent that employers who breach the right
must pay a fixed penalty - the party who committed the wrong is usually not
allowed to benefit from external factors which might have ameliorated the wrong
in some way or another, so too in this instance. The nature of an employee's right
to compensation under Section 194(1) also implies that the discretion not to award
that compensation may be exercised in circumstances where the employer has
already provided the employee with substantially the same kind of redress [always
taking into account the provisions of Section 194(1)] or where the employer's
ability and willingness to make that redress frustrated by the conduct of the
employee."
employee."
20.Another matter in point, is Mkhonto v Ford & Others 2000 (21) ILJ 1312
LAC. This judgment concerned a matter where it was not disputed by the
employer that the dismissal was procedurally unfair, as indeed the CCMA
commissioner found it was. The dispute centred around an offer of
reinstatement made to the employee immediately following the dismissal.
The Labour Court held that by making such an offer, the employee had
been offered substantial redress and that the award of compensation for
her procedurally unfair dismissal was insupportable. In this matter
Conradie JA, held that " without a consideration of this aspect of the case
(referring to the letter with an offer of reinstatement) the first respondent
misconceived the whole nature of the inquiry. The inquiry was not merely whether
the appellant was entitled to compensation according to the formula in Section
194(1) of Act 66 of 1995 (“The Act”) but whether she should have received any
compensation at all.” (See also: Johnson & Johnson (Pty) Ltd v Chemical Workers
Industrial Union (1999) 20 ILJ 89 LAC at 991 to 100A.)
21.In Scribante v Afgold Ltd Hartebeesfontein Division 2000 21 IlJ 1864 (LC),
it was held as follows at 1872 AC in the context of a retrenchment:
"Having weighed up all the authorities, in my view, the relevant factors to be
taken into account in determining whether to award compensation or not are the
following:
- Whether the employer has already provided the employee with substantially the
same kind of redress;
- Whether the employer's ability and willingness to make that redress is frustrated
by the conduct of the employee;
- The degree that the employer deviated from the requirements of a fair procedure;
and
- Whether the employer secured alternative employment for the employee. “
(See also: Fourie & Another v Eskol Ltd 2000 21 ILJ 2018 LC at 2034G to 2035H).
22.The second respondent did not apply his mind to the issue whether the
third respondent was indeed offered substantial redress and unreasonably
refused to accept it. The conduct of the third respondent was clearly
refused to accept it. The conduct of the third respondent was clearly
motivated in pursuance of compensation. The third respondent was in
fact, and in law, not entitled to any compensation, and the first
respondent’s finding to the contrary, is not reasonably connected to the
facts of the matter.
23.In the circumstances the arbitration award issued under case number
GA48154 dated 9 December 1999 is reviewed and set aside, and the third
respondent is to pay the applicant's costs.
__________________
E. Revelas