JR476/2001-MS
Sneller Verbatim/MS
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR476/2001
2001-10-26
In the matter between
RUDOLPH M DIECKMANN Applicant
and
CCMA Respondent
___________________________________________________________
J U D G M E N T
___________________________________________________________
LANDMAN, J: Mr Rudolph Dieckmann says he was dismissed by his employer S A
Freight Goodwin Project (Pty) Limited. His employer denies this and says that he
resigned. His employer points to its letter of 31 May 1999 which reads as follows:
"Dear Rudi.
We confirm that your services with our company are no longer required with effect
from 31 May 1999.
In terms of your letter of appointment you are due to provide a calender month's
notice to the company. In this respect as agreed with yourself, the writer and
George Du Plessis you will be free to look for alternative employment during your
1
JUDGMENT1
notice period but are to hold yourself available should we require your services
during this period. As also agreed you will hand over to George Du Plessis all
documentation relating to the work that you have been engaged in and all supply
information etc.
We thank you for your input during your period with our company and wish you
every success in the future."
The matter proceeded to arbitration before a Commissioner of the CCMA.
The Commissioner heard Mr Dieckmann's evidence and that of four witnesses
called by the employer. The Commissioner concluded that Mr Dieckmann had
resigned and dismissed his application for relief. Mr Dieckmann launched an
application to review and set aside the award. This application was so defective
that my brother CASSIM, AJ directed that it be withdrawn and replaced by a fresh
application. The fresh application is out of time but for present purposes the late
filing of the application is condoned.
It is convenient so summarise Mr Dieckmann's evidence starting with the
events which took place on 22 May 1999. Mr Dieckmann says that on Friday 22
May 1999 he experienced a shortage of personal funds due to unforeseen car
repairs. He approached a certain Mr Theron, who works for the company, and
asked him how long he would have to wait for the reimbursement of his travelling
expenses. His expenses amounted to R1 500,00. There was some difficulty in
securing payment of those expenses. Mr Theron told Mr Dieckmann to stop
harassing him. Mr Theron said, "Ag Rudi stop harassing me, fuck off."
On 24 May Mr Dieckmann went to the Department of Labour and was
referred to the labour officer in Kempton Park. He explained his difficulty to them.
Thereafter he returned to the company and spoke to Mr Goodwin and Mr Du
Plessis. He says that Mr Du Plessis told him to clear out and he began removing
JR476/2001-MS
his belongings. Three days later on 31 May Ms Carron, Mr Goodwin's secretary,
handed him the letter dated 31 May. Mr Dieckman viewed this letter as a letter of
dismissal.
The employer led four witnesses. The fourth witness was Ms Carron. When
all the evidence had been led Mr Dieckmann addressed the Commissioner and, in
the course of his address, said at page 56 of the typed record: "Okay I say apart
from Ms Carron the witnesses brought forward by the company are lying." The
result is that Mr Dieckmann apparently accepts that Ms Carron's testimony is
truthful and therefore it is important to see what she said. Ms Carron said that she
saw Mr Du Plessis on the afternoon of 24 May in the reception area. She also saw
Mr Dieckmann. Mr Dieckmann approached Mr Du Plessis and asked him whether
he was fired to which Mr Du Plessis replied “No”. She went on to say "then Mr
Dieckmann (inaudible) and Mr Du Plessis said no you are not fired but that you
have resigned earlier." She also knew that sometime in the month of May Mr
Dieckmann had said that he was unhappy and was looking for other jobs and was
going for interviews.
She also told the Commissioner what happened earlier on 24 May. Mr
Dieckmann came into the board room where Mr Goodwin and Mr Du Plessis and
Ms Carron were present. He was highly agitated and he said something to the
effect that he had enough and that he was leaving and that he was taking legal
action. She says she does not remember him using the word "resign" but that he
said that he was fed up and had enough and was leaving.
I have already mentioned that Mr Dieckmann regarded Miss Carron as a
truthful witness. However during the course of his address he also had the
following to say. "I am leaving. This was not the truth Ms Carron probably
misunderstood what was said”.
3
JUDGMENT3
Mr Du Plessis who was at that meeting also commented on what transpired
between Mr Dieckmann and the other persons in the room. He also confirms that
Mr Dieckmann did not use the word "resign" but he did say "I am leaving I am out
of here. I am packing my stuff I am going." The clear implication of all this is that
Mr Dieckmann was not dismissed. He tendered his resignation on 24 May and this
is how the Commissioner saw it. There is nothing which indicates that her finding
in this respect was defective or irregular in any manner.
However, later on 26 May Mr Dieckmann returned to the company. He
returned because the Department of Labour phoned the company on his behalf.
According to him the official was told that the company had not dismissed Mr
Dieckmann.
On his return the matter of his continued employment was taken up by Mr
Goodwin and Mr Du Plessis. Their evidence is that Mr Dieckmann said to them
that he had a job offer or that he was on a short list for jobs with other companies
and indeed this was true. The letter of 31 May is consistent with the version of Mr
Goodwin and Mr Du Plessis. They accepted his resignation and said that he need
not work out his period of notice but that he should be on hand if they required
him and he was required to hand over information belonging to the company. The
Commissioner accepted this, and concluded that the letter of 31 May constituted
an acceptance of Mr Dieckmann's resignation. I can find no reason why this
court should interfere with that finding.
Mr Dieckmann, in his application to review and set aside the award, set out a
series of complaints about the conducts and findings of the Commissioner. Some
of these allegations are extremely serious but they are not justified by a reading
of the transcript. For instance it is alleged that the Commissioner failed to inform
him of his rights regarding legal representation. Why this should be necessary
JR476/2001-MS
when, on Mr Dieckmann's own version his attorney, was sitting outside the
arbitration chamber is not explained. This does not constitute misconduct. Had
his attorney wish to address the Commissioner the attorney should have done
that. If the application has turned down then the attorney could have sat outside.
Mr Dieckmann could have informed the Commissioner that his attorney was
outside. This was not done. There can be no suggestion of any irregularity on the
part of the Commissioner.
I should mention another example. Mr Dieckmann complains that the
Commissioner should have investigated the possibility of a constructive dismissal.
There was, however, no reason for her to do so. On page 18 of the typed record
Mr Dieckmann says:
"MR DIECKMANN: I am not making a case of constructive dismissal. I was clearly
dismissed. That was constructive it was a dismissal or a constructive dismissal.
What I am saying here is that prior to my dismissal the company try to bring about
a constructive dismissal.
MR ISRAELSTAM : Thank you for the clarification so we have it then on record
there is no application for constructive dismissal? COMMISSIONER: No.
MR ISRAELSTAM: We are talking about a straight forward dismissal?
MR DIECKMANN: Yes."
It is not permissable for Mr Dieckmann to complain at this stage that the
Commissioner did not make a finding about constructive dismissal when he led
her to believe that, that was not his case.
Mr Dieckmann also alleges that the Commissioner should have found that he
had not resigned as he had not provided a written notice of resignation in
accordance with the Basic Conditions of Employment Act of 1997. It is quite
correct that he did not do so. The Commissioner was aware of this but she
5
JUDGMENT5
concluded that he had said he was resigning and that he was obliged to tender the
resignation in writing. He did not do so and the Commissioner says that, that did
not effect the situation.
In my view the Commissioner's finding is a justifiable one. Once a senior
employee makes it clear that he does not wish to work any longer and that he
resigns then the rest is a mere formality and he cannot hide behind that. The
Commissioner considered all the evidence which was placed before her including
the facts set out in the unsworn address which was directed to her at the opening
of the arbitration. If there was a deficiency in the arbitration proceedings in the
sense that Mr Dieckmann was unaware that his statement should have been made
under oath then this was cured by the way in which the Commissioner dealt with
the evidence.
There is therefore no reason to interfere with the award and in the premises
the application is dismissed.
______________________
A A Landman
Judge of the Labour Court of South Africa
---oo0oo---