JR1569.01Sneller Verbatim/HVDM
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JR1569/01
2003-02-10
In the matter between
LUCAS MACANDA AND ANOTHER Applicant
and
SINGE TECHNOLOGY (PTY) LTD Respondent
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J U D G M E N T
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LANDMAN J: Mr Lucas Macanda was employed by Serge
Technology (Pty) Ltd in Randburg. Mr Macanda and another
employee left their place of work to go to the bank. Mr
Macanda believed that his companion had also obtained
permission for him to leave the workplace. On his return he
was called to the managing director's office. Mr Macanda
explained how it came about how he left the premises and
apologised to the managing director. The managing director
said that he didn't want to listen to him or his story and added
"get out just now, otherwise if you don't want to go out I will
kick you out". Mr Macanda said: "So I did try my best to talk
to him but he didn't want to listen to me. So finally I decided
to go. Mr Macanda clocked out and left, but the production
manager's secretary, one Vicky, called him to sign a letter. He
did so and he left. The letter is a letter in terms of which Mr
Macanda resigns with immediate effect. Mr Macanda says that
he thought the letter was one regarding a suspension
preparatory to a disciplinary hearing. Later Mr Macanda
signed a letter in full and final settlement and received a
cheque. He says he thought that he was signing this as a
receipt for the cheque. He later phoned his manager, who was
not the production manager, and his manager reported to him
that he had spoken to the MD but the company would not
change its stance.
Mr Robertson, the only witness called by the company
said that looking through a glass window he saw Mr Macanda
signing the letter of resignation. He was unable to hear what
was being said. He also said that he knew that Mr Macanda
could read and indeed Mr Macanda acknowledged this at the
arbitration hearing.
The issue confronting the commissioner was whether
Mr Macanda had been dismissed by the company. The onus of
proving this lay upon Mr Macanda. The commissioner found
for Mr Macanda and ordered his retrospective reinstatement.
The company seeks to review and set aside the award on
the following grounds:
(a) The commissioner committed a misconduct in relation to his
duties as an arbitrator, or
(b) the commissioner committed a gross irregularity in the
conduct on the arbitration proceedings, or
(c) the commissioner exceeded his powers, or
(d) the award was improperly obtained.
There no suggestion that the award was improperly
obtained or that the commissioner committed misconduct.
The commissioner's finding that Mr Macanda could not read
runs counter to Mr Macanda's own evidence, but is not so
material as to constitute a gross irregularity. The
commissioner's finding that the company failed to prove on
the balance of probabilities that there was no dismissal while
Mr Macanda has proved the contrary is an unfortunate choice
of words, that the commissioner is of the view that Mr
Macanda proved on a balance of probabilities that he had been
dismissed.
It is important to appreciate that it was Mr Macanda's
case that he was actually dismissed by the managing director.
It was not his case that he had been constructively dismissed.
He, as the commissioner found, did not initiate the letter of
resignation. It was a document prepared by Vicky, the
secretary, presumably at the instance of the managing
director. It was not a voluntary resignation, he had already
been fired before he signed it.
The commissioner's finding that Mr Macanda did not
intend resigning is also justifiable. Neither the managing
director nor Vicky testified. Mr Macanda's version regarding
the managing director and what he said is set out clearly in
the form LRA711. The company was therefore alerted to the
issues and that they would feature during the arbitration.
There are a few matters such as the allegation that
Mr Macanda was dismissed for drunkenness, which are
puzzling, but this allegations appears to have been raised at
the conciliation meeting by the company's representative. Her
name has not been recorded. She too did not give evidence.
None of the other grounds of review have any merit.
Once the commissioner found that the company had dismissed
Mr Macanda the company bore the onus of proving that the
dismissal was fair. This onus was not acquitted.
In the result the application to review the award is
dismissed with costs.
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PRESIDING OFFICER: LANDMAN J
ON BEHALF OF APPLICANT:
ON BEHALF OF RESPONDENT: