IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
CASE NUMBER:
J1614/99
On this the 27 th day of March 2002
Before Revelas J
Applicant
and
1st Respondent
2 nd Respondent
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JUDGMENT
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REVELAS J:
1. This is an application for review of an award issued by the third respondent (“the
arbitrator”), in favour of the second respondent, the erstwhile employee of the
applicant. It is in dispute that the second respondent was dismissed by the
applicant. The applicant insists that the second respondent had resigned from its
employ, whereas the second respondent contends that he was dismissed and that
there was indeed a letter from the applicant, terminating his services, to prove this.
2. The second respondent commenced employment with the applicant on 30 June
1997 and held the position of marketing manager.
3. The facts which gave rise to the present matter before me, occurred during April
1998.
4. On 22 April 1998 the applicant held a cocktail party subsequent to a presentation
given. Several of the applicant’s clients and prospective clients attended.
5. It is common cause that at this gathering, the second respondent expressed the
opinion that he did not believe that the applicant would be operational within a
year’s time. This was said in the presence of potentional clients and existing
clients. The reason he gave for expressing the aforesaid opinion, was the poor
sales figure of the applicant.
6. On 23 April 1998, the second respondent was called to a meeting with Mr. Steven
Price and Mr. Ewins of the applicant and questioned about his conduct of the
previous evening. According to the second respondent he was suspended where
and then. The following week he received a fax dated 24 April 1998 advising him
that he was summarily dismissed. There was no enquiry or hearing prior to his
suspension, nor his dismissal.
7. When the second respondent was appointed by the applicant, he earned a salary of
R10 000,00 plus an allowance of R1 500,00 for a motor vehicle and in January
1998 his salary was amended. His gross salary for February 1998 was R7 500,00
per month, his gross salary for March 1998 was R4 500,00. The second
respondent contends that when these changes were made, it was made clear that if
he did not accepted the reduction in remuneration, he would no longer be
employed.
8. The applicant’s version of events was that on the day of the presentation, the
second respondent indicated to Mr. Ewins that he wished to resign. Mr. Steven
Price, gave evidence that he heard the second respondent saying this.
9. The applicant’s case was further that the third respondent misappropriated his
credit card which was issued to him by the applicant. The applicant also alleged
that the second respondent was involved in numerous accidents with the
respondent’s company vehicle and never reported those incidents. The applicant
alleged that there are many other events which led the second respondent to be
summarily dismissed.
10. It is common cause that the second respondent was never called to a disciplinary
hearing.
1.
11. The arbitrator found that the probabilities favoured the third respondent. In terms
of the second respondent’s contract of employment, he was required to resign in
writing, which was not done.
12. It was also not in dispute before the arbitrator that the second respondent was
suspended after the cocktail party, a step which would have been entirely
unnecessary if the second respondent had in fact resigned.
13. The dismissal letter dated 24 April 1998, indicates clearly that the applicant was
dismissed, since it states categorically that the second respondent was summarily
dismissed without further notice. The contents of this letter was not challenged to
be untrue. Therefore the arbitrator found that he had no reason ro reject it as false.
14. Finally the arbitrator found: “ the probabilities are high (sic) that the applicant
was dismissed rather than having resigned. This also substantiated by the
inconsistency of the respondent’s reason why and how Erasmus’ services
were terminated. On the one hand Mr. Price says that the applicant has to be
dismissed owing to his conduct at the cocktail party, on the other hand it is
submitted that he resigned .”
15. The arbitrator held that the second respondent’s dismissal was procedurally and
substantively unfair. He found that it was procedurally unfair because no
disciplinary enquiry was held. In respect of substantive unfairness he found that
no evidence was submitted to demonstrate that the applicant had breached a rule
which he was well aware of. I assume this breach related to the fact that the third
respondent had discredited the applicant infront of clients. He further found that
evidence relating to the abuse of credit cards and damage to the applicant’s motor
vehicle was unsubstantiated before him and could not justify the dismissal of the
third respondent. The arbitrator found that the applicant was dismissed without
any valid reason.
1.
16. The applicant submitted during the arbitration that the dispute was settled during a
conciliation meeting, and the second respondent was paid a cheque of R4 428,84
in consequence thereof. The second respondent however argued that this payment
was for his outstanding salary and that he was entitled to that payment.
17. The arbitrator referred to the file and stated in his award that the file indicated that
nothing in the file had indicated that settlement was reached at some point and
since there was no documentary prove of such an agreement, he could not accept
that the matter had become settled. It also appears form the pay slip in respect of
April 1998, that the second respondent was paid the cheque in “ Lieu of Final
Notice”.
18. The arbitrator awarded the applicant an amount of R71 500,00 for substantive and
procedural unfairness, being an amount equal to eleven months’ remuneration
calculated at the rate of the second respondent’s remuneration at the time of the
dismissal.
19. The arbitrator held that the total remuneration of the applicant at the time of the
dismissal was R6 500,00 per month. The applicant argued that R1 500,00 the
equivalent of a car allowance should not have been included in this amount.
20. The arbitrator’s award was further attacked on the following grounds:
1. It was argued that the arbitrator was not justified in accepting the uncorroborated
evidence of the second respondent that he had been dismissed, in the face of the
evidence of the applicant’s employee, Mr. Steven Price who had testified that a
postponement prior to the arbitration hearing, in view of the uncertainty as to
whether or not the matter had been settled and would continue. It seems that the
applicant also believed that it could have called a further witness, which it could
not since the postponement was refused.
2. The second respondent was represented at the arbitration hearing by a
representative for a trade union named “Job Security”. The applicant contends that
the representative was from a firm and was not a trade union official. No consent
was sought from the applicant with regards to the representative the second
respondent and neither was any argument presented to the first respondent for the
representative to be allowed to represent the second respondent. The applicant
argues that in permitting Mr. RayHowett to represent the second respondent at
the arbitration proceedings, the arbitrator committed a fatal irregularity which in
itself warrants setting aside of the award.
21. The factual findings of the arbitrator on the probabilities do not warrant
interference. In the face of the letter of dismissal, the third respondent discharged
the onus of proving that there was a dismissal. There was no disciplinary enquiry
and the applicant had no valid reason, on the evidence presented to the arbitrator,
to dismiss him.
22. The next question is whether the refusal to postpone the matter amounts to an
irregularity. In the light of the letter of dismissal and the absence of a hearing, it is
difficult to comprehend to what extent further evidence would have assisted the
applicant’s case. The arbitrator was enjoined to resolve the dispute expeditiously
and had a discretion whether or not to grant a postponement. I am unable to find
that he failed to exercize this discretion properly.
23. The applicant was timeously advised of the arbitration hearing and was legally
represented. As far as representation is concerned, there is nothing before me, nor
was there before the arbitrator to suggest that the representative was not a trade
union member but a legal practioner. In fact he deposed to an affidavit stating that
he was a member of Job Service Trade Union.
24. None of the grounds advanced by the applicant warrants setting aside the
arbitrator’s award, which is made an order of court and the application is
dismissed with costs.
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E.
Revelas