IN THE LABOUR COURT OF SOUTH AFRICA
HELD AT JOHANNESBURG
Case No.: JR 327/01
In the matter between
LOU’S WHOLESALERS (PTY) LTD Applicant
And
THE COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION 1
st Respondent
PAUL, W NO 2
nd Respondent
VAN BILJON, COLLEEN 3
rd Respondent
JUDGMENT
REVELAS, J.:
[1] This is an application for review of an award m ade by the second
respondent (“the arbitrator”) in favour of the thir d respondent, a former
employee of the applicant. The third respondent le ft the services of the
respondent on 2 December 1999. The precise circums tances of her
departure are in dispute.
[2] The third respondent had referred a dispute abo ut an “unfair
dismissal” and a “failure to pay notice pay” to the first respondent (“the
CCMA”). Conciliation failed and the arbitrator who eventually arbitrated
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the matter, held that the third respondent was inde ed dismissed and that
the dismissal was unfair. In terms of the award th e applicant had to pay
the third respondent compensation in an amount equa l to twelve months’
wages. It is common cause that on 21 April 1999 th e applicant had
employed the third respondent for a fixed period of three months from 1
May to 31 July 1999.
[3] As from 31 August 1999, the third respondent wa s employed in a
permanent capacity as a sales representative. The third respondent
refused to sign the new letter of appointment due t o, what she perceived
to be certain offensive clauses in the letter of appointment.
[4] The third respondent claimed that she had been dismissed unfairly
on 24 December 1999. The applicant’s version is th at when the
applicant’s M.D. insisted that she sign the letter, the third respondent
decided to leave the applicant’s services and did s o voluntarily. The two
clauses which gave rise to the third respondent’s u nhappiness and
unwillingness to sign the letter of appointment, we re firstly a restraint of
trade clause and secondly an obligation to pay the insurance excess on
any accident which occurred involving the company v ehicle she was
driving.
[5] When the third respondent took up her position as sales
representative with effect from 1 August 1999, she made an election to
take a company car instead of a car allowance. She drove the car for the
period August to December 1999.
[6] The restraint of trade clause was a standard ag reement signed by all
sales employees.
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[7] The applicant contended that by her conduct in taking up
employment on 1 August, she worked according to the terms and
conditions of her letter of appointment even though she refused to sign
the letter.
[8] The third respondent testified before the arbit rator that on 24
December 1999, whilst she was no sick leave, she wa s called by the
Managing Director of the applicant. She was due to take up leave on 25
December 1999 to 10 January 2000. He wished to see her about her letter
of appointment. She requested him to deter the mat ter until her return,
but he insisted that the matter had to be dealt wit h immediately.
According to the third respondent, she was told by the Managing Director
that if she did not sign the agreement, she must le ave as she was
dismissed. She then asked him again to reconsider the liability clause.
She was then told to leave her car keys and cell ph one on the desk and
leave.
[9] Mr Dorfling, the applicant’s Managing Director, gave evidence
that the third respondent was offered a permanent p osition after the three
month probation period because she excelled in her duties. Numerous
requests were made to her to sign her letter of appointment containing the
standard clauses. When he wanted her to sign the le tter of appointment
she walked out, leaving her cell phone and telephone on his desk.
[10] The arbitrator reasoned as follows:
“
The respondent refutes the allegation that the appl icant was dismissed, yet
confirms that the applicant had a concern regarding the R20000-00 liability
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clause in the contract. It is also conceded that t he applicant did not tender a
letter of resignation.
The applicant on the other hand claims that she was dismissed on the spot for
not signing the contract.
And she gave evidence that she was on sick leave an d about to go on paid annual
leave, and would not resign, lose her paid leave, a nd above all, be without a lift
back home.
She also argued that she would also not give up her lively hood on the day before
Christmas.
It is clear that the issue of the R20000-00 liability became a serious issue.
In the absence of document proof I must make my awa rd on the balance of
probability. (sic)
It is therefore my opinion that the respondent dism issed the applicant after he
had summoned her by telephone to sign the contract, while she was still on sick
leave.
”
[11] The third respondent made it very clear that s he was not at all
willing to accept the applicant’s policy in terms o f the potential excess
payments. She was not going to continue her employ ment with the
applicant on those terms. Even though the probabil ities in my view
favour the applicant, the arbitrator burdened the a pplicant with the onus
to prove that the third respondent had resigned. T hat is contrary to the
provisions of section 192(1) of the Labour Relation s Act 66 of 1995 as
amended (“the Act”) in terms of which the employee bears the onus of
proving a dismissal.
[12] Having found that there was a dismissal, the a rbitrator simply
jumped to the conclusion that the dismissal was bot h procedurally and
substantively unfair. No reasons are advanced in this regard.
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[13] On the facts the arbitrator should have found the third respondent
was not dismissed. An offer of employment was made to the third
respondent and the parties did not agree on the ter ms thereof. The terms
proposed were reasonable and standard terms for all employees.
Therefore no contract came into being. An employer cannot be expected
to form employment relationships on the terms dicta ted by prospective
employees, failing which the employer faces an unfa ir dismissal finding
against it. That would be unfair and contrary to t he basic principles of
contract and the very nature of an employment relationship.
[14] For the aforesaid reasons the award fell to be set aside and replaced
with a finding that the third respondent was not dismissed.
__________________
REVELAS J
For the applicant:
For the respondent:
Date of hearing:
Date of judgment: