IN THE LABOUR COURT OF SOUTH AFRICA HELD AT CAPE TOWN
CASE NO C704/2002
In the matter between
VIRGIN ACTIVE SA (PTY) LTD Applicant
and
BHANA, S N O First Respondent
THE COMMISSIONER FOR CONCILIATION,
MEDIATION AND ARBITRATION Second Respondent
TELADIA, HAROUN Third Respondent
__________________________________________________________________
JUDGMENT
__________________________________________________________________
JAMMY AJ
1. The Applicant in this matter seeks an order reviewing and setting aside an
arbitration award made by the First Respondent on 24 May 2002 in which the First
Respondent found that the Third Respondent’s dismissal by the Applicant was both
procedurally and substantively unfair and awarded the Third Respondent an amount
equivalent to 6.5 months remuneration as compensation, to be paid within thirty
days of the award. It is common cause in the light of this pending review, that
payment has not as yet been made.
2. The salient background facts of the matter are the following:
2.1 The Third Respondent was employed by a company Leisurenet Limited
which operated a string of fitness centres under the style Health and Racquet
Clubs.
2.2 Those clubs were purchased by the Applicant from the liquidators of
Leisurenet on 1 March 2001, at which time the Third Respondent held the
position of membership manager.
2.3 The Applicant determined that the terms and conditions of the membership
managers required amendment and in May 2001 commenced discussions
with them in that regard. The Third Respondent and other managers retained
attorneys to represent them in those negotiations.
2.4 The Applicant embarked on a significant restructuring programme and all
persons who were former employees of Leisurenet were required to sign new
letters of employment. The Third Respondent, to whom aspects of the new
conditions were unacceptable, declined to do so.
2.5 In September 2001 the Third Respondent approached certain Espach, a
Regional Manager of the Applicant, with whom he discussed the possibility
of the termination of his employment with a severance package. This was
confirmed by him in an email message to Espach on 25 September 2001 in
which he confirmed his reasons for requesting “a separation agreement”.
2.6 The Third Respondent then fell ill, was absent from work for a period and
returned on 1 October 2001 when he was called to a meeting with Espach and
certain Collie, a Club General Manager. The Third Respondent’s evidence
before the First Respondent was that Espach informed him that for various
reasons, including what the Third Respondent conceded was the poor
performance of his club, the Applicant wished him to leave its service. He
was asked to tender a letter of resignation which, at the meeting, he refused to
do, requesting that that requirement be put in writing.
2.7 That was done and later that afternoon he received a letter recording the
company’s rejection of his reasons for refusing to sign a new letter of
appointment, the fact that he was the only one of the previous employees of
Leisurenet who refused to do so, and stating that /*this was an operational
requirement and that in the circumstances the company “proposes to enter
into a consultation process with you regarding termination of your services
based on the company’s operational requirements”. The company’s proposal,
he was told, was to terminate his services on 31 October 2001. He was
however “invited to make representations initially in writing” within three
working days.
2.8 Discussions between the Third Respondent and Collie then ensued regarding
the leave pay due to him and, subsequent thereto, the Third Respondent met
again with Collie and Espach. On that occasion, according to the Third
Respondent, Espach enquired whether he was resigning and was told that he
was not. Reference was made to his discussions with Collie, the Third
Respondent recording that the only discussion had related to payment for
October. Espach mentioned that his wife worked in Gauteng and that he
might in that context be able to assist the Third Respondent in finding another
position. The Third Respondent contributed nothing further to the discussion
position. The Third Respondent contributed nothing further to the discussion
and when Espach left, saying that it was nice knowing him and shaking his
hand, he in turn left Espach’s office.
2.9 In the course of his evidence however Espach testified that he believed that
an agreement had been reached with the Third Respondent.
2.10 In subsequent discussions with his senior management team and sales
consultants on 3 October 2001, the Third Respondent advised them that the
Applicant wished him to leave immediately. He made no reference to any
dismissal or to the conclusion of any agreement nor to the effect that he had
been compelled in any way to go.
2.11 The same day, 3 October 2001, Collie went to the Third Respondent’s club
with a prepared letter of resignation which the Third Respondent indicated
that he was too emotional to sign. He asked Collie when he should go and
was advised to do so immediately. Later that day he sent an email to his
colleagues in the employ of the Applicant in which he bade them farewell and
recorded his “need to move on and pursue the greener” pastures.
2.12 In the light of the fact that the Third Respondent had not signed the letter of
resignation and, as from 3 October 2001, did not tender his services to the
Applicant, Collie telephoned him on 4 October 2001 again requesting a letter
of resignation and when told that the Third Respondent had received legal
advice not to sign this, Collie called upon him to return to work. The Third
Respondent refused to do so.
2.13 On 4 October 2001 the Third Respondent’s attorneys wrote to the Applicant
contending that the Third Respondent had been dismissed on 3 October 2001
“for refusing to accept substantial changes to his terms and conditions of
employment”.
2.14 That contention was rejected by a letter dated 8 October 2001 in which,
denying that the Third Respondent had been dismissed, he was again called
upon, through his attorneys, to return to work immediately. It is common
cause that he did not do so.
2.15 Eventually, in these circumstances, the Third Respondent was charged with
having deserted his workplace and was given written notification to attend a
disciplinary enquiry in that regard on 17 October 2001. He did not do so, the
enquiry was held in his absence, he was found guilty and was dismissed.
2.16 The previous day, 16 October 2001, after he had received notice to attend the
enquiry but before it had been held, the Third Respondent referred a dispute
to the Second Respondent alleging that he had been dismissed on 3 October
2001 “for an unknown reason, but presumably for refusing to accept changes
to my contract of employment”.
2.17 Following the consequent arbitration, the First Respondent in making his
award, found that “Teladia had been told to leave and this amounted to a
dismissal on 3 October 2001”.
3. The grounds for review submitted by the Applicant in these unopposed proceedings
are in essence that the First Respondent’s findings are irreconcilable with the
evidence led during the arbitration. I do not propose to review that evidence in
unnecessary detail but what emerges from the record of those proceedings, and as
the Applicant validly submits, it is clear that the First Respondent failed to attach
sufficient weight to material documentary evidence presented to him, to the fact
that on 25 September 2001 the Third Respondent had himself raised with the
Applicant the question of leaving with a severance package, thereby initiating
discussions in that direction, that he had been told by letter dated 1 October 2001
that if he persisted in his refusal to resign, a process of consultation with him would
be initiated towards terminating his services for operational reasons in due course,
to the fact that some fortyeight hours later the Applicant was alleged to have
deviated from that course of conduct and dismissed him and finally, that in his
communications with his colleagues, the Third Respondent made no reference in
any form to the fact that he was leaving other than voluntarily or that he had been
dismissed. His explanation that he had not done so because he did not wish to
“antagonise people” is manifestly without substance.
4. What is immediately apparent form the conspectus of the evidence adduced in the
arbitration, is that the Third Respondent failed to discharge the onus upon him of proving
that he had been dismissed on 3 October 2001 as alleged by his attorneys. The First
Respondent’s finding to the contrary can only be defined as irrational, illogical and in
complete disregard of the material documentary and oral evidence before him.
5. Significantly, in that regard, and with reference to a number of decided
cases purportedly supporting his view, the First Respondent variously
records that –
“Section 192(1) of the Act requires an Applicant in a dispute of
this nature to prove the existence of a dismissal. However this
does not absolve an employer from having to prove anything”.
“I am of the view that the Respondent did not discharge the onus that Teladia
had resigned verbally or intended to terminate the employment relationship”.
6. It is a trite element of employment law that the primary onus was on the Third Respondent
to prove his dismissal. Clearly, evidence from the Applicant could be used to do so but
manifestly there was no overriding onus, in the perception of the First Respondent, on the
Applicant to prove the Third Respondent’s resignation or intention to terminate his
employment. The cases cited by the First Respondent moreover in support of his
conclusions, and more particularly Jooste v Transnet Ltd t/a SA Airways (1995) 16ILJ
629 (LAC) , which is the leading case on the subject, relate to allegations of constructive
629 (LAC) , which is the leading case on the subject, relate to allegations of constructive
dismissal. Manifestly, the First Respondent, in finding that the Third Respondent had not
resigned but had been dismissed, confuses that situation with one of constructive
dismissal, a concept never at any stage alleged to have been the case by the Third
Respondent, nor pleaded on his behalf in the arbitration proceedings.
7. The Applicant’s evidence in the arbitration was unambiguous in relation to
its requirement, in the face of his refusal to resign, that the Third
Respondent returned to work immediately. That was an unconditional
demand and there is compelling authority that an employee who deserts his
workplace and, having left it, refuses to return to work when required by his
employer to do so, has breached his contract of employment.
See SACTWU v Dyasi (2001) 7BLLR 731 (LAC); South African
Broadcasting Corporation v CCMA and Others (2001) 4BLLR 449 (LC)
8. I am satisfied, on the wellestablished line of Labour Appeal Court cases
now defining that principle, that the First Respondent’s finding in the light of
the evidence before him was irregular and devoid of rational or objective
validity in relation thereto. It cannot, for these reasons, be sustained and in
these circumstances the order that I make in this matter is the following.
8.1 The Third Respondent’s award dated 24 May 2002 in his capacity as a
Commissioner of the Second Respondent is reviewed and set aside.
8.2 The application being unopposed, there is no order as to costs
___________________________
B M JAMMY
Acting Judge of the Labour Court
Date of hearing: 22 August 2003
Date of Judgment: September 2003
Representation:
For the Applicant:
Attorney G Higgins