IN THE LABOUR COURT OF SOUTH AFRICA
(HELD AT CAPE TOWN)
CASE NO: C218/2003
AMERICAN LEISURE CORPORATION,
DURBANVILLE CC t/a PLANET FITNESS Applicant
and
JOHAN VAN WYK First Respondent
WILLEM CONNAN N.O. Second
Respondent
COMMISSION FOR CONCILIATION,
MEDIATION AND ARBITRATION Third
Respondent
JUDGMENT
MURPHY AJ,
1. The applicant seeks an order in terms of section 145 of the Labour Relations Act of
1995 (“the LRA”) setting aside the award of the second respondent (“the
commissioner”) under case number WE 1033902 on 27 March 2003 in which he
held that the first respondent (van Wyk) was dismissed in a manner which was
procedurally and substantively unfair, and in respect of which he ordered the
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payment of compensation in the amount of R79286, 66.
2. The applicant has raised a number of grounds of review alleging irregularities of
one kind or another on the part of the commissioner. In addition, disputes have
arisen regarding the late filing of papers at various points in the process resulting in
opposed applications for condonation and an application for dismissal of the main
review application. I propose to return to these applications after consideration of
the merits of the review application.
3. The applicant’s various grounds of review challenge the justifiability and rationality
of the award, and in particular some of the commissioner’s evidentiary findings and
legal conclusions. The applicant’s case is that the commissioner in making his
determination failed properly to consider and evaluate the evidence and thus
committed a gross irregularity because there is no rational connection between the
evidence and the findings in the award. In short, the argument is that the award is
not justifiable. However, throughout the papers it is clear that the applicant is of the
view that van Wyk was not dismissed, and, although not cogently argued in such
terms, it is accordingly intimated that the commissioner erred in assuming
jurisdiction. An erroneous assumption of jurisdiction normally would constitute an
error of law resulting in the commissioner exceeding his or her powers, a defect in
terms of section 145(2)(a)(iii) of the LRA, rather than a gross irregularity in terms of
section 145(2)(a)(ii).
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4. A commissioner’s power to arbitrate unfair dismissal cases is conferred
by section 191(5)(a) read with section 136(1) of the LRA. The
jurisdictional precondition to the exercise of that power is the
requirement that there be a dispute about the fairness of a dismissal as
defined. Section 186 defines a dismissal to mean:
(a) an employer has terminated a contract of employment with or without notice;
(b) an employee reasonably expected the employer to renew a fixed term contract of
employment on the same or similar terms but the employer offered to renew it on less
favourable terms, or did not renew it;
(c) an employer refused to allow an employee to resume work after she took maternity
leave in terms of any law, collective agreement or her contract of employment;
(d) an employer who dismissed a number of employees for the same or similar reasons
has offered to reemploy one or more of them but has refused to reemploy another;
(e) an employee terminated a contract of employment with or without notice because the
employer made continued employment intolerable for the employee; or
(f) an employee terminated a contract of employment with or without notice because the
new employer, after a transfer in terms of section 197 or section 197A, provided the
employee with conditions or circumstances at work that are substantially less
favourable to the employee than those provided by the old employer.
5. In paragraph 5.5 of the founding affidavit, Ms Lynda Niethammer, the applicant’s
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Industrial Relations Manager, states correctly that the gist of the dispute between
the parties is whether van Wyk was dismissed and avers further that applicant
never dismissed van Wyk as he alleges. In paragraph 6.7.3 she makes the general
allegation that the commissioner has exceeded his powers. Taking these
averments together, and notwithstanding counsel for the applicant not formulating
his submissions quite in this way, I am of the opinion that the primary issue for
determination is whether the commissioner had jurisdiction to make the award.
This, to state the obvious, necessitates consideration of whether or not a dismissal
occurred, in fact and in law. If indeed there was no dismissal the matter ends there.
If, on the other hand, there was a dismissal, the other grounds of review going to
the justifiability of the findings of unfairness and the award of compensation will
come into play.
6. Van Wyk commenced employment with the applicant as a sales representative on
13 May 2002. His function was to sell membership of the Planet Fitness club in
Durbanville to users of its facilities. The last day on which he put in an appearance
at work was 28 August 2002. Van Wyk says he was dismissed. The applicant
claims he absconded or resigned. Whatever the case, his employment endured for
a total period of about three and a half months. By all accounts van Wyk proved to
be a good sales consultant and performed well. His immediate superior was
Mauritz Fensham, the applicant’s sales manager at Planet Fitness Durbanville.
The relationship between van Wyk and Fensham became troubled after the latter
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issued a warning to all the sales consultants under him for not meeting their
targets, which van Wyk considered unjustified in the circumstances. He took the
matter up with the club manager, Smuts, but since he did not formally lodge a
grievance his complaint went no further, but seems to have left a lingering sense of
injustice.
7. On 28 August 2002 van Wyk began to show the symptoms of flu and a throat
infection. Early on the morning of 29 August 2002 he came to work with the
purpose of informing Fensham that he was ill. Fensham was not there at the time.
He returned to the club the following day, 30 August 2002, again with the intention
of speaking to Fensham who was once more not present. However, on both
occasions he communicated to other employees that he would be absent on
account of his ill health.
8. After 30 August 2002, van Wyk had no direct contact with Fensham until he spoke
to him on the telephone on 11 September 2002 and never returned to work
thereafter. Van Wyk alleges he was dismissed somewhere between 30 August and
11 September 2002, and, as already stated, the applicant claims to the contrary
never to have dismissed him.
9. Van Wyk’s version of what transpired was presented at the arbitration as follows.
He began to feel sick on 27 August 2002 and mentioned this fact to Fensham who
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suggested he use certain medication. When he reported to work early on 29
August 2002 he did so with the intention of informing Fensham of his ill health. He
lived in close proximity to the club and thus presumably did not see it as too great
an inconvenience to report ill in person rather than by phone. On arrival he
discovered that Fensham was not there. Only Corlia Eykelenboom (a receptionist)
and Vernon Smuts (the club manager) were present. He spoke to Smuts who told
him to inform Fensham of his illness, when he failed to find Fensham he went to
the reception to enquire where he might be. On being told that he had not come in,
he left a message for him with a colleague, Jakes, that he had gone home on
account of his illness. He then visited his doctor who put him on a course of anti
biotics and booked him off sick for the period 29 August 7 September 2002.
However, the next day, in response to an SMS from a colleague indicating that
there might be a problem, he returned to the club, again early in the morning. On
arrival he went to his desk and saw that his desk had been cleared and that
another consultant’s diary was on his desk. He looked around the office for his
correspondence but was unable to find it. He than spoke to Eykelenboom who he
claimed warned him that she believed Fensham wanted to get rid of him and drew
his attention to the fact that his name had been removed from the white board on
which the consultants’ sale targets and performance were recorded. Normally, so
he testified, a consultant’s name would be removed from the board only on leaving
the applicant’s employ.
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10. When asked why he had not returned to work at the expiry of his sick leave on 7
September 2002, van Wyk claimed that Fensham had issued an instruction to one
of the receptionists that he was to be barred entry to the club. Van Wyk called Mr.
Graeme Lilley, a receptionist, to corroborate this. Lilley confirmed that he had
received an instruction from Fensham but had some difficulty in remembering its
precise content. Initially he testified that the instruction was “to that effect don’t let
him in under any circumstances, if he wants to speak to Mauritz (Fensham) then
call Mauritz”. However, under crossexamination he conceded that the instruction
could merely have been one to hold van Wyk at reception so that Fensham could
speak to him as he came in. The book kept at reception for recording messages
and instructions for the relevant period has disappeared.
11. Despite not having spoken to either Fensham or Smuts about his position, van
Wyk, on the basis of his cleared desk, his name not appearing on the white board,
Eykelenboom’s warning and the alleged instruction (which he never saw recorded
in the reception book), concluded that the had been dismissed on 30 August 2002.
12. The applicant saw things in a different light. When van Wyk failed to make
direct contact with him in the days after 28 August 2002, Fensham, so he said,
directed three written communications to van Wyk in early September 2002
calling upon him to report to work. The first is a letter dated 2 September
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2002 which reads:
Hi Johan would you be so kind as to give me a call or let me know what is going on,
because we have not seen you since Tuesday 27 th August 2002.
11. The second letter dated 3 September 2002 reads:
We refer to the above matter and your absence from work on 27 August 2002 until to
date 3 rd of September. You have made no attempt to contact your employer.
Kindly note that your aforesaid actions are without permission and constitute absconsion.
In the circumstances, you are hereby instructed to report to the company by no later
than the 4 th of September at 12 am sharp in order to investigate your actions.
Further note that should you fail to report for duty on the above mentioned date and time your
actions and / or omissions will be construed to be that of absconsion, without the intention to
return to work, and your contract of employment will terminate automatically.
12. The third written communication was in the form of a telegram sent on 4
September 2002, notably in a less formal tone than the letter of the preceding day,
which said:
Johan laat weet my asb wat gebeur , ek het vir jou al ‘n brief gestuur saam met Jakes op die 2de
September”.
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What is conspicuous about the telegram, in addition to its friendlier and less
formal tone, is the absence of any reference to the formal, legalistic letter of the
preceding day. Van Wyk denied ever having received the letters of 2 or 3
September 2002, but admitted to receiving the telegram on 6 September 2002.
The first time he saw the two letters, he claims, was at the conciliation
proceedings of the CCMA in December 2002.
On receiving the telegram on 6 September 2002, van Wyk did not contact
Fensham as requested. His explanation in this regard was that he had lost trust
in Fensham on account of his desk having been cleared and his name not
appearing on the consultants’ board. In response to a somewhat leading
question he claimed that he was under the impression that he had been
dismissed. The interchange with his attorney on this score is revealing:
Attorney: Nou hoekom het u hom nie gekontak nie?
Van Wyk : Omdat ek alreeds gerreet het op daardie stadium en dit gesien het dat mnr
Fensham my lessenaar ontruim het, dat my naam van die konsultantebord gehaal is, dat
ek nie n die klub mag kom nie. Op daardie stadium het ek al my vertroue in mnr
Fensham verloor.
Attorney: Was u indruk dat u nog in diens was van die werknemer op daardie stadium?
Van Wyk : Ek het nie hierdie brief, hierdie telegram het ek nie ek nie begryp waaroor hierdie
telegram gaan nie want op daardie stadium was ek onder die indruk dat ek my werk verloor het
by Planet Fitness.
13. Van Wyk in his testimony defended his presumption that he had been dismissed
with reference to subsequent events. In particular, on 6 September 2002 he was
contacted by one of his clients, Mr. Chris van der Merwe, who told him that on 2
September he (van der Merwe) had been told by one of the consultants and the
receptionist at Planet Fitness that van Wyk no longer worked there. Despite van
receptionist at Planet Fitness that van Wyk no longer worked there. Despite van
Wyk indicating during his testimony that van der Merwe would be called as a
witness to corroborate this, van der Merwe did not in fact testify and hence the
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hearsay evidence regarding the content of the conversation between van der
Merwe and the staff should be regarded with caution. Nonetheless, according to
van Wyk, it further influenced his impression that he had been dismissed, even
though, as he reported it, the staff members merely informed van der Merwe that
he no longer worked there. As van Wyk put it:
”Hy was by een van die ontvangsdames en hy was by een van die konsultante wat
hom meegedeel het dat ek nie meer werksaam is by Planet Fitness nie”.
14. Because he had lost trust in Fensham, van Wyk felt justified in not contacting him.
Instead he sent an SMS to Mr. E van der Berg, the person in charge of all the
receptionists in the applicants’ clubs nationally. When he did so, is not evident. Nor
is it clear what he said in the SMS, or why he considered it necessary to contact
her at all. When he received no response from her, he contacted Ms Louette
Robertson, the Human Resources Manager, based in Johannesburg. Again it is
not clear when he made contact with Ms Robertson or what the purpose of his call
was. It would seem that he phoned her sometime after receiving the telegram on 6
September 2002 at which stage, according to his earlier testimony, he was under
the impression that he had already been dismissed, However, his testimony on the
point is slightly at odds with that conclusion. In response to a question asking what
they had discussed, he said:
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“Ek het haar genoem wat besig is om by, wat plaasgevind het by Planet Fitness in Durbanville.
Ek het ook vir haar gese dat ek nie graag sou wou gehad het dat dit was nie my eerste keuse
gewees om haar te kontak nie omdat mnr Fenshan nie daarvan gehou het dat ons senior
personeellede in Johannesburg moet kontak oor gebeure op plaaslike vlak wat in Durbanville self
aangaan nie”
15. Robertson told him to contact Fensham, which he did shortly thereafter on 11
September 2002 by telephone and proposed that they meet outside the club, off
the work premises. His unsolicited explanation for wanting to meet off the premises
was that he was convinced that he had been barred from the club. Fensham
refused to meet him off the premises, but according to van Wyk said he was
welcome to come to the club to meet and discuss his “personal affairs”. Van Wyk
claims to have indicated during this conversation that he wished to return to work,
to which Fensham allegedly said that under no circumstances would he be allowed
to return, as he did not wish to create a precedent. This was van Wyk’s only
contact with Fensham after taking sick leave. He interpreted the conversation as
confirming what had gone before, namely that he had been dismissed.
16. Van Wyk thereafter again spoke to Robertson and relayed to her the content of his
telephonic conversation with Fensham. According to him she was surprised and
enquired about what he proposed to do next. He appears to have reserved his
rights and shortly afterwards referred a dispute to the CCMA.
17. Under crossexamination van Wyk initially tried to justify his failure to communicate
with Fensham between 28 August and 11 September on the grounds that he did
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not have his cell phone number, but could offer no convincing explanation for
failing to contact him on the club’s land line, limiting himself to a claim (somewhat
at variance with his earlier stated assumption that he had been dismissed) that he
assumed Fensham would have heard via Smuts that he was sick at home. Later in
his testimony he sought to excuse his failure to communicate with Fensham on the
basis that his desk had been cleared. He could not explain why he had chosen not
to challenge Fensham about this. Nor could he convincingly clarify why he had not
approached Smuts, the club manager, something he had done readily in the past,
in particular when he felt aggrieved by the warning given to all the consultants in
July 2002. His specific response to this was to say that he had lost trust in
Fensham. Such a nonresponsive answer sheds little light on his failure to
approach the next level of management at the club. He could also offer no
satisfactory answer for why he had not come back to the club to clear things up
between 28 August and 11 September 2002, despite living in close proximity and
having left his sick bed during that time to visit his doctor on more than one
occasion.
18. Furthermore, he admitted that neither Smuts nor Robertson had informed him that
he had been dismissed and that he had relied solely on his own perceptions, which
he felt were confirmed in the telephone conversation with Fensham on 11
September 2002. Somewhat illogically he maintained that he did not respond to
Fensham’s invitation to meet at the club, because he had previously been barred
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(by Fensham) from entering the club, and also because Fensham sought to limit
the proposed discussion to his personal affairs rather than work related matters.
And finally he explained that his failure to take the matter up with Smuts was on
account of his having assumed by 30 August 2002 that he had already had been
dismissed. He could offer no persuasive reason for relying on the say so of junior
employees such as Eykelenboom without seeking to verify the position with Smuts.
19. Van Wyk further acknowledged that during the CCMA conciliation proceedings in
December 2002 he had declined to accept the applicant’s offer of reinstatement or
reemployment on the grounds that the offer did not include payment of back pay
for the period he had not worked, being 3 months, and also because the offer was
to work in Claremont, while he preferred to work in Table View.
20. Besides calling Lilley (the receptionist), van Wyk called Vernon Smuts, Jeanette
van der Westhuizen and Corlia Eykelenboom as witnesses. Smuts’ evidence was
aimed at supporting certain factual aspects of van Wyk’s testimony. In relation to
the issue of whether a dismissal occurred, one or two points proved to be of
considerable relevance. Firstly, Smuts confirmed that van Wyk had been unhappy
about the verbal warning issued to all the sales consultants in July 2002. Secondly,
he testified that as club manager all disciplinary action fell within the scope of his
responsibility. Normally any dismissal effected by Fensham would have to have
been done in conjunction with him (Smuts) and the regional manager, Neil
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Strangelman. He stated that he had not dismissed van Wyk but that in conjunction
with Fensham had tried to sort the problem out. Under reexamination by van
Wyk’s attorney he explained the course of action he took as follows:
Attorney: And what was this action that you took?
Smuts: Sending out, we tried to get hold of Johan, (van Wyk), phone calls and then we just
formalized it by giving a telegram.
Attorney: And that was that, you left it at that?
Smuts: Ja. The thing is the ball is put into his court that he got, we opened the door saying Johan
come in, lets listen what’s wrong, sort the whole thing out and we can just put it to bed. As far as I
know he never contacted the club at all.
21. Ms van der Westhuizen, the applicants’ administration manager, testified that she
had received an instruction from Fensham at the end of August 2002, to remove
van Wyk’s name from the white board, that he was removed from the financial
statements (recording consultants’ performance) at the end of September and that
Fensham had told her that van Wyk no longer worked for the applicant. While her
evidence was clear that the instruction to remove his name from the board was
given on 30 August 2002 and that he was removed from the statements at the end
of September, it is not clear from her evidence precisely when Fensham told her
van Wyk no longer worked for the applicant.
22. Ms Eykelenboom confirmed that on 29 August 2002 she noticed that van Wyk’s
desk had been cleared and that his name had been removed from the white board,
and that Jakes, a fellow consultant, was working at van Wyk’s desk. She qualified
her testimony by conceding that she could not say unequivocally that van Wyk’s
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correspondence and belongings were not on his desk. She could also not
contradict that there were at that stage 13 consultants in employment and only 11
available desks, thus justifying the use by Jakes of van Wyk’s desk during the
latter’s absence. She said nothing at all, and was not questioned by either party,
about the warning van Wyk said she had given him about Fensham’s alleged
intentions to get rid of him.
23. Three witnesses testified on behalf of the applicant at the CCMA arbitration
proceedings, namely Fensham, Smith and Pienaar.
24. Fensham testified he was aware on 27 August 2002 that van Wyk had flu, but, as
he saw it, van Wyk simply disappeared. When he failed to hear from van Wyk he
tried to contact him telephonically without success and later addressed the three
written communications to him. He also instructed other staff members to contact
van Wyk by phone, who reported that his phone was switched off. Certain
employees did report seeing him in the evening at the local supermarket. When
van Wyk persisted in not reporting for work he sent Jakes with the letter dated 1
September 2002 to van Wyk’s home. Jakes reported to him that he had delivered
the letter by hand and placed it in van Wyk’s letterbox. When there was no
response to the letter it was decided to resort to the telegram.
25. Fensham confirmed that the first contact he had with van Wyk after 28 August
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2002 was when van Wyk phoned him on 11 September. Fensham’s version of the
phone call differs materially from that of van Wyk. He acknowledged that he had
invited van Wyk to come see him at the club and had mentioned that he did not
want to create a precedent. However, because of van Wyk’s exceptional sales
performance he was prepared to give him a second chance. In explaining what he
meant by not wanting to set a precedent, he said:
“Want daar moet eers regstappe geneem word sodat ek nie presedent skep by my
personeel nie, anderster gaan dit n “ongoing” ding word en dan kan elke tweede
personeellid vir my dit gebruik as n voorbeeld en dieselfde met hulle, hulle kan dieselfde
doen en daar sal geen aksie geneem word, dis nie net van terugkom nie, ons gaan
stappe neem, ek gaan daarvandaan af kyk”
26. By this one understands Fensham to have communicated that his intention was
not to dismiss but to institute disciplinary action against van Wyk for his absence
and refusal to contact him immediately upon receiving the telegram. However,
Fensham pointed out that he had a selfinterest in van Wyk’s continued
employment, since his own salary was determined by the performance of his sales
consultants, of which van Wyk appears to have been one of the top performers. He
denied dismissing van Wyk and claimed he told him to come back to work, but
reiterated the fact that he would have to face discipline. The conversation ended
on that note and that was their last contact until the CCMA proceedings. Fensham
at that point remained under the impression and the hope that van Wyk would
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return. He further denied that he intended to restrict the discussion at the proposed
meeting to van Wyk’s personal affairs, saying he had no interest in such matters
being concerned only about the work situation.
27. When Fensham was asked if he had cleared van Wyk’s desk on 29 August 2002,
he replied strongly that the accusation was absolute rubbish. He explained that
there were 13 consultants and not enough desks and he had accordingly
instructed Jakes to use van Wyk’s desk during his absence. Van Wyk’s
possessions on top of the desk were moved behind the computer while others
were left untouched in the desk drawer. When asked why this had not been put to
van Wyk in crossexamination, Fensham claimed to have recalled the situation on
the evening prior to giving testimony. Basically, his testimony was to the effect that
during van Wyk’s absence Jakes had used his desk and had moved his
possessions aside for that purpose.
28. As for the removal of van Wyk’s name from the white board, Fensham explained:
“Dis baie eenvoudig. Ons aktiwiteite goed en wel, dit word op n weeklikse sowel as n
maandelikse sowel as n daaglikse basis word dit verander op die wit bord, dis hoekom dit
met koki wat afgevee kan word gedoen word. Johan was op daardie stadium drie of vier
dae nie by die werk nie, haal sy naam af, as hy terugkom sit maar net sy naam weer by.
Daar is n 13de persoon of n 12de persoon wat se naam op die bord geskryf kan word”
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29. He elaborated further that the information on the board could change daily or more
frequently depending on what needed to be reflected. There is no policy or
procedure regarding what has to be reflected on the board. The board is used as a
management tool to be applied entirely within his discretion to monitor the
performance of the sales consultants on a daily basis. In the nature of things, if a
consultant was absent for a period, his name would not be reflected on the board.
30. He justified the instruction he gave van der Westhuizen to remove van Wyk’s
name from the financial statements on the grounds that van Wyk’s not writing
business during his absence would have reflected poorly on the performance of his
team of consultants as a whole, which he wished to avoid because this might
create the perception with management that he was underperforming.
31. Finally, he also admitted giving the receptionist an instruction regarding van Wyk’s entry
on return to the club. However, here again, his explanation differs materially from the
inference van Wyk drew from the instruction. When asked if he had given the instruction,
he replied:
“Nee dis 100% korrek, dit was my instruksie, maar ek het gese ek wil, hulle mag nie
Johan nie in die klub toelaat nie alvorens hulle my roep nie,mits hulle my roep nie, die
eenvoudige rede, niemand kan met Johan kontak maak nie na aanleiding van my drie
oproepe wat ek hom in die hande probeer kry het, die briewe was uitgestuur was en dan
natuurlik geen terugvoering van sy kant af na my toe nie, geen kommunikasie nie……..
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Maar nietemin na aanleiding van dit, omdat ek persoonlik nie self kontak kon maak met
Johan nie en omdat hy kee seweuur, agt uur in die oggend in die klub inkom en hy weet
goed ek begin kwart voor nege werk hoekom het my nie kwart voor nege genader nie. So
die enigste (onduidelik) wat ek met hom kontak kan maak is wanneer hulle my roep, en
dis hoekom my instruksie was wat hy was, dis ook my reg om dit te doen”
32. He elaborated that it was necessary to make such an instruction in the interests of
securing his disciplinary authority.
33. Lastly Fensham expressed disquiet and frustration at the fact that van Wyk had
not at first approached him directly about whether he had been dismissed but had
instead chosen to rely on a conversation he had held with other staff members. He
also testified that he had never dismissed any of his sales consultants since being
employed by the applicant.
34. Under crossexamination Fensham was unable to remember precisely when van
Wyk’s name had been removed from the white board. In his evidence in chief he
had remarked that this had been done only after van Wyk had been absent for 34
days. He failed however to effectively counter the testimony of Eykelenboom and
van Wyk that it was in fact removed on 29 August, a day after van Wyk took sick
leave. He felt in any event that it was a matter within his discretion and that no
negative inference could be drawn from his conduct in that regard.
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35. Also under crossexamination Fensham made it clear that head office would have
to have got involved in dismissing van Wyk, and hence he would not have had the
authority to effect a dismissal during the telephone call of 11 September 2002.
36. The applicant called Jacques Smith, its assistant sales manager at Durbanville, as
its second witness at the arbitration hearing. His testimony corroborated the
evidence of Fensham in a number of respects, namely that van Wyk’s desk had
not been cleared but rather that his few possessions had been removed behind the
computer, that the purpose of the white board was to record the daily statistics,
that he understood the instruction to the receptionist to be intended to keep van
Wyk at reception so that Fensham could talk to him, that attempts had been made
to contact van Wyk telephonically and that normally the club manager and the
regional manager would be involved in meting out disciplinary action. He also re
called the letter of 1 September and seeing Jakes taking it to van Wyk, though he
did not accompany him to deliver it.
37. On the question of the white board, Smith testified under crossexamination initially
that the consultants’ names as a rule remained on the board and only the figures
or statistics would be altered on a daily basis. He subsequently sought to qualify
this with a somewhat unclear explanation suggesting that there were occasions
where a consultant’s name might be taken off the board.
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38. The last witness called by the applicant at the arbitration was PJ Pienaar, a sale
consultant. His testimony was directed at showing the difficulty experienced in
making contact with van Wyk. Pienaar had lent van Wyk a television set which he
wanted back. When he encountered van Wyk by chance on a public road in early
September 2002, the latter informed him that he would return the television once
he had found alternative accommodation. Pienaar corroborated Fensham’s version
regarding the alleged clearing of the desk, the dispatch of the letter with Jakes and
the instruction to the receptionist.
39. Turning now to the award. In it the commissioner accurately and conscientiously
summarized the evidence, and correctly defined the issue to be whether a
dismissal had taken place. Section 192(1) of the LRA requires that the employer
must establish the existence of the dismissal, meaning that the onus was on van
Wyk to establish on a balance of probabilities that he had been dismissed. The
commissioner proceeded to determine whether there had been a dismissal within
the meaning of section 186(a) of the LRA, namely a termination of the contract of
employment at the instance of the employer with or without notice. Again he was
correct to assume (though he did not explicitly say as much) that the species of
dismissals falling within subsections 186(b)(f) were of no application, because of
the circumstances, and particularly insofar as a constructive dismissal (section
186(e)) might have been relevant, on account of such not having been pleaded.
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40. The commissioner concluded that there had indeed been a dismissal in the
meaning of section 186(a). He reasoned as follows. Firstly, he rejected van Wyk’s
version that he had been dismissed when he discovered his desk had been
cleared and his name removed from the board. He held properly that there was a
duty on van Wyk at that stage to clarify the issue with the employer and to give the
employer an opportunity to rectify Fensham’s actions, by raising the matter with
Smuts. He could also have lodged an internal grievance. In effect, the
commissioner ruled that van Wyk was wrong to rely on these two events to
assume that he had been dismissed. Therefore he concluded that van Wyk had
not been dismissed on 30 August 2002.
41. However, he then went on to examine aspects of the evidence and attached particular
importance to the letter of 3 September 2002 (which had hardly been canvassed in
evidence). He noted that the telegram of 4 September 2002 made no reference to this letter
but only to the letter of 1 September 2002. On this basis he concluded that the letter of 3
September 2002 was an ex post facto fabrication. Having so found, he then
somewhat boldly leapt to the conclusion that “if the employer could fabricate one
letter they(sic) could fabricate their entire testimony”. He accordingly, for all intents
and purposes, made an adverse credibility finding against Fensham and rejected
most (but not all) of his testimony. On that basis he believed the evidence of van
Wyk regarding the content of the telephone discussion of 11 September 2002,
accepting in particular that Fensham had told van Wyk that he would not allow him
22
to return to work. This, in the commissioner’s assessment, was sufficient to
constitute a dismissal at the instance of the employer. He went on to find the
dismissal to have been both procedurally and substantively unfair and awarded
compensation.
42. As indicated at the outset, the applicant has raised various grounds of review
attacking the rationality and justifiability of the award. For present purposes it is
sufficient to consider those pertaining to the finding that Fensham dismissed van
Wyk during the course of the telephone conversation of 11 September 2002. The
first is that the absence of any mention of the letter of 3 September 2002 in the
telegram was not raised in evidence or argument before the commissioner and
hence, it was argued, his finding in that regard was untenable. Secondly, the
commissioner, while accepting certain aspects of Fensham evidence as credible,
erred in rejecting the balance of his testimony on the basis of the fabricated letter
of 3 September. Thirdly, the commissioner failed to explain why he rejected the
evidence of Fensham inviting van Wyk to return to work. And finally, the
commissioner ignored or failed to consider key evidence and certain contradictions
in the evidence.
43. As I indicated at the outset, my approach to the issues in dispute differs in an
important respect from that pursued by counsel. The primary question is whether
there was in fact and in law a dismissal. If not, the commissioner lacked jurisdiction
23
and the award should be set aside because he exceeded his powers, or acted
ultra vires .
44. With the exception of certain material facts, many of the facta probantia in this
matter are not in dispute. Some of the differences that do exist, boil down to
disputes of interpretation about the proper inferences to be drawn from certain
facts. Nevertheless in order to determine whether a dismissal did or did not occur
these differences require resolution and it is necessary to make a clear
pronouncement of the proven or accepted facts.
45. To start with there is no dispute that van Wyk absented himself from work from 29
August 2002 and that he had no direct contact with his immediate superior
Fensham until he phoned him on 11 September 2002. It is also common cause
that van Wyk returned to work briefly on 30 August 2002 and noticed his desk had
been cleared and that his name was not on the white board. Furthermore there is
agreement that Fensham did in fact issue an instruction to Graeme Lilley at
reception regarding van Wyk’s admission to the club, though there is some dispute
about the scope and purpose of that instruction.
46. Perhaps more controversially, van Wyk testified that Corlia Eykelenboom had
warned him that she believed Fensham wanted to get rid of him. This testimony
was not pertinently challenged in crossexamination. Additionally, Eykelenboom
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was called as a witness on behalf of van Wyk and made no mention of any such
plan either in her evidence in chief or under crossexamination. Accordingly, little
weight can be attached to this unsubstantiated reported statement of a person
specifically called as a witness who then failed to confirm the statement attributed
her. Indeed, more legitimately, one may draw an adverse inference from the failure
to substantiate the statement and conclude in fact that Eykelenboom issued no
such warning on the common sense basis that had it been true she would have
been prompted to say so in evidence.
47. The three written communications sent to van Wyk in early September 2002 pose
their own evidentiary challenges. Firstly, it is common cause that van Wyk received
the telegram on 6 September 2002. The applicants three witnesses all testified to
the fact that Jakes, a fellow employee, was dispatched to deliver the letter of 1
September 2002 and that he placed it in van Wyk’s letter box. Van Wyk denied
ever having received this letter. For reasons not immediately obvious from the
record, Jakes was not called as a witness to confirm his delivery of the letter.
Without any evidence regarding the availability of Jakes as a witness, I hesitate to
draw any adverse conclusion from his failure to testify. Moreover, the reference to
this letter in the telegram is a strong indication that it was in fact dispatched.
However, proof of dispatch does not equate to proof of delivery. As the applicant
sought to rely on the delivery of the letter of 1 September 2002 to further its case, it
bore the evidentiary burden to prove that the letter was in fact delivered. Without
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the direct testimony of Jakes that he did indeed deliver the letter, the only evidence
of delivery is the hearsay evidence of the applicant’s witnesses that Jakes told
them he had delivered it. In terms of section 3(1) of the Law of Evidence
Amendment Act 1988, absent an agreement between the parties, courts have a
discretion to admit such evidence in the interests of justice. Normally, given the
dangers, such should only be done when a clear explanation is given for the failure
to call the witness upon whose credibility the probative value of such evidence
depends. Without any explanation of the kind I am unwilling to make a finding that
the letter of 1 September 2002 was in fact delivered to or received by van Wyk.
48. This brings me to the letter of 3 September 2002. Fensham said little about this
letter in his testimony, other than that he had written and sent it. I have serious
doubts about the truth of that statement. The tone of the letter is legalistic, formal
and adversarial. It differs markedly from the letter written two days before and the
telegram written the day after. It is the kind of letter a lawyer would write,
commencing with the formal prescription routinely resorted to by lawyers, namely:
“We refer to the above matter….”; whereas the letter of 1 September begins “Hi
Johan” and the telegram “Johan laat weet my asb”. Moreover, it threatens legal
consequences warning that “your action and/or omissions will be construed to be
that of absconsion”, leading to the automatic termination of the contract of
employment. As such, it stands in stark contrast to the more amicable, pleading
tone of the telegram dispatched on the following day. Add to that the fact that the
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telegram makes no reference to this letter, but only to the “brief gestuur saam met
Jakes op 2de September”. Had it indeed been sent by registered post the day
before, given its tone and import it arguably would have been uppermost in
Fensham’s mind, and having chosen to refer to previous correspondence in the
telegram he most likely would have made reference to it too. Consequently, I share
the commissioner’s suspicion that this letter was possibly a fabrication put together
by a less than ethical adviser some time after van Wyk brought suit, reflecting, as it
does, poor insight into the merits of the dispute.
49. The letter of 3 September 2002 adds little to the applicant’s case. If anything it
potentially causes some damage. Had this aspect been explored in cross
examination, it could justifiably have led to an adverse finding about Fensham’s
credibility. Unfortunately the inconsistency was not picked up and Fensham was
not questioned about it. Other equally plausible inferences may be drawn
regarding its tone and the failure to mention it in the telegram. For instance, an
adviser may well have dictated the letter to Fensham, or written it on his behalf.
The reason for not mentioning it in the telegram may have been because, unlike
the letter of 1 September 2002 that had been delivered by hand, it had been
dispatched by post and would not have reached van Wyk before he received the
telegram. As the commissioner’s interpretation was not put to Fensham during his
testimony, there was no occasion to consider alternative explanations or to
observe Fensham’s demeanour in tendering them. It follows that no adverse
27
finding can legitimately be made regarding Fensham’s credibility on this basis.
Accordingly, the commissioner erred in doing so, and especially in rejecting his
testimony about the telephone conversation of 11 September 2002 on this basis.
Nevertheless, there is also no evidence proving that the letter was delivered to van
Wyk, who denied ever having received it. Consequently, it too must be left out of
account.
50. In the final analysis, therefore, I am constrained to accept van Wyk’s evidence that
he only received the one written communication, namely the telegram, on 6
September 2002.
51. At this point I pause to reflect upon the critical issue of van Wyk’s state of mind on
the day he received the telegram. At repeated intervals throughout his testimony
van Wyk defended not making contact with Fensham or Smuts in the period after
30 August 2002 on the ground that he had lost trust in Fensham. The factual
bases upon which he relied to rationalize that loss of trust, we have seen, was the
clearing of his desk, the removal of his name from the white board, the warning he
allegedly received from Eykelenboom, his comprehension of the instruction
regarding his admission to the premises and the hearsay relayed to him
telephonically by his customer Chris van der Merwe. These facts and
circumstances, van Wyk maintained, not only vindicated his loss of trust in
Fensham but also led him to believe that he had in fact been dismissed. Here
28
again I find myself in agreement with the commissioner that van Wyk’s
assumptions in that regard were neither rational nor reasonable.
52. The clearing of van Wyk’s desk and the removal of his name from the white board
both have innocent explanations as accounted for by all three of the applicant’s
witnesses, and which stood up under crossexamination. Even if one were to
accept that Fensham was acting spitefully, unfairly or heavyhandedly, his conduct
did not justify van Wyk’s inert stance and assumption that he had been dismissed.
As the commissioner correctly pointed out, it was incumbent upon van Wyk to
challenge Fensham’s conduct by lodging a grievance with Smuts or someone
higher up in the organization. By all accounts, van Wyk is an extremely successful
sales consultant and thus likely to be no easy pushover. Moreover, in the past, he
experienced no difficulty in complaining to Smuts about the verbal warning given
by Fensham to the sales consultants in July 2002.
53. Similar considerations attend the instruction given by Fensham to Lilley regarding
van Wyk’s admission to the premises. Van Wyk’s interpretation that he was barred
from the premises under any circumstances strikes me as selfserving and not
entirely consistent with the objective facts, in particular the request made in the
telegram. If Fensham had intended to bar van Wyk from the premises for all time
and under any circumstances it is unlikely that he would have requested him to
contact him, as he did in the letter of 1 September 2002 and in the telegram. Nor
29
would he have invited him to come to the club as he did on 11 September 2002
during their telephone conversation. I find Fensham’s explanation that he
instructed Lilley to keep him at reception on his arrival more plausible. He wanted
to confront him and to perhaps institute disciplinary action. His intention was to
assert his authority, not to ratify a dismissal. Moreover, Lilley, who was called on
behalf of van Wyk, confirmed that the instruction could be interpreted in the
manner suggested by Fensham. Thus in his evidence in chief he said: “ I can’t
remember exactly what the exact words were, but to that effect don’t let him in
under any circumstances, if he wants to speak to Mauritz then call Mauritz”.
54. In effect, the instruction was not intended as an absolute bar to van Wyk’s
admission from which an inference of dismissal could be drawn, rather, as I have
said, Fensham was asserting his authority by ensuring that van Wyk was referred
to him on arrival at the club for the purpose of investigating or discussing his
absence and the possibility of discipline. Taking into account the fact that on two
previous days i.e. 29 and 30 August 2002, van Wyk had tried and failed to see
Fensham, the instruction was appropriate and reasonable in the circumstances.
55. For the reasons already explained, little reliance can be placed on van Wyk’s
testimony that Eykelenboom had warned him of Fensham’s intention to get rid of
him. In spite of testifying she did not substantiate that assertion. Moreover, I incline
to accept Fensham’s contrary contention that he had considerable selfinterest in
30
retaining the services of van Wyk because he had proved to be something of a
moneyspinner. More than once Fensham emphasized that his salary was directly
determined by the performance of his sales consultants. Keeping van Wyk on
board was in Fensham’s personal interest in earning more remuneration for
himself.
56. Finally, van Wyk’s reliance on van der Merwe’s hearsay that he was no longer
employed also lacks credibility. First of all, as reported by van Wyk, van der Merwe
did not specifically state that he was told van Wyk had been dismissed. He said
that he had heard van Wyk no longer worked at the club. Moreover, and more
importantly, van Wyk spoke to van der Merwe on 6 September 2002, the same day
he received the telegram. His assumption that he had been dismissed is not
consistent with the request made in the telegram. Both in tone and content the
telegram is seeking clarification of van Wyk’s intentions and extends on invitation
to discuss matters. Nothing in it evokes a signal of any intention to terminate van
Wyk’s employment. Accordingly, there can be no good reason for relying on what
van der Merwe might have said in contrast to what was communicated in the
telegram by Fensham.
57. In the premises, van Wyk’s assertion that by 6 September 2002 he had lost trust in
Fensham and accordingly was entitled to assume that he had been dismissed at
that point is doubtful. He had no reasonable, legitimate or plausible reason to
31
reach that conclusion. Had he received the letter of 3 September 2002 his case
may have been stronger, but, as I have already held, that letter was not in his
possession at the time.
58. Van Wyk’s explanation for not responding to the telegram by phoning Fensham as
requested is also not convincing and reflects upon his state of mind, in my view, by
this stage tending in the direction of repudiation. There is no evidence that he
tendered his services during his telephone conversation with Robertson, the
Human Resources Manager in Johannesburg. When he eventually phoned
Fensham on 11 September 2002, his opening gambit was to request a meeting off
the premises, intimating a desire not to return. Had he wanted to go back to work,
he surely would have gone when invited to do so. Nor had Fensham’s conduct
reached the standard of intolerability that might have permitted resignation and
supported a claim of constructive dismissal. Van Wyk’s explanation that he
preferred to meet off the premise because Fensham had barred him from the club
makes no sense. Fensham was inviting him to come discuss his situation. Had the
bar indeed been imposed, once Fensham extended an invitation to meet, by any
logical standard, it could be considered lifted. Van Wyk’s weak and irrational
excuse, taken together with the delay in responding to the telegram, tellingly
reveals a reluctance on his part to tender his services and return to work. In my
assessment, at that point, van Wyk was repudiating his obligations.
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59. Similarly, van Wyk’s claim that Fensham’s invitation was limited to a discussion
about his personal affairs and not his work circumstances is also not believable.
The issue at hand was van Wyk’s work situation. The invitation, extended initially in
writing and then telephonically, was in the nature of the situation aimed at resolving
van Wyk’s employment issues. But whatever the case, the invitation was there and
van Wyk refused to take it up, nor did he pursue the matter with Smuts, the club
manager, or Robertson, the Human Resources Manager. Instead, without
tendering his services in writing, (although he claims to have done so verbally
during the telephone conversation, a contention seemingly unlikely in the face of
his refusal to report to the club), he referred a dispute to the CCMA alleging unfair
dismissal seeking 12 months compensation, but not reinstatement, an offer of
which he later refused.
60. To sum up: there is no clear evidence supporting the contention that the applicant
dismissed van Wyk at any point between 30 August and 11 September 2002. First,
it has not been shown that Fensham was possessed of the necessary authority to
effect a dismissal. Smuts’ testimony that the authority to dismiss had to be
exercised in conjunction with the regional manager, Strangelman, is supported by
the fact that Fensham has never dismissed any employee previously or since.
Secondly, Smuts’ evidence that the door remained open to van Wyk stands
unchallenged. Thirdly, it is common cause that Fensham invited van Wyk to return
to the club. Thereby he created an opportunity for van Wyk to take the matter up
33
with Smuts. Van Wyk’s explanation for refusing to meet on the premises is
spurious, if not disingenuous, and smacks of pique and an intention to repudiate.
Fourth, there is no unequivocal evidence that Robertson considered van Wyk as
having been dismissed. On the contrary she wanted conciliation. Finally, the fact
that van Wyk only sought compensation in his referral to the CCMA is a clear sign
that he preferred not to return to work. Although he was within his rights to limit his
claim in this way, for reasons already explained his supposed loss of trust in
Fensham rested on a questionable foundation and was hardly justified.
Nevertheless, his rejection of the offer at the CCMA bears out his reluctance to
return to work and his intention to repudiate his obligations. Additionally,
Fensham’s invitation, Smuts’ claim that the door remained open, Robertson ‘s
encouragement of conciliation and the offer made at the CCMA all point to the
employer not being quick to accept the repudiation in order to cancel the contract
of employment.
61. For these reasons I do not accept that Fensham told van Wyk that he would not
take him back under any circumstances. Fensham readily admitted that he said he
did not want to set a precedent and intended to impose discipline. Such may have
added to van Wyk’s resolve to repudiate. Clearly van Wyk had taken umbrage at
the events of the preceding two weeks. But no specific facts, taken alone or
cumulatively, point to an intention by any duly authorized agent of the applicant to
terminate van Wyk’s employment. Rather, it would seem, van Wyk (perhaps
34
legitimately offended) presumptively and without good cause assumed he was
being unfairly treated and repudiated his obligations. There is no unambiguous
evidence that the applicant accepted van Wyk’s repudiation, leading in contractual
terms to the cancellation of the contract. The contract was therefore not terminated
at the instance of the employer within the meaning of section 186(a) of the LRA. In
the end result, van Wyk has failed to discharge the onus upon him to establish on
a balance of probabilities that the applicant terminated his contract of employment.
62. Absent a dismissal, the commissioner lacked jurisdiction and acted ultra vires . His award
must therefore be set aside on that ground. Accordingly there is no need to deal
further with counsels’ different submissions regarding the justifiability of the
commissioner’s other findings.
63. The conduct of this review application did not proceed smoothly. As a result there
are four interlocutory applications. The first is an application by van Wyk for orders
dismissing the review application and making the arbitration award an order of
court in terms of section 158(1)(c). The applicant in turn seeks condonation for the
late filing of documents contemplated in terms of rules 7A(6) and 7A(8), and van
Wyk has applied for condonation of the late filing of his answering affidavit. All
these applications are opposed.
64. To avoid unnecessary prolixity in this judgment I propose not to canvass the
35
applications for condonation fully. I am satisfied that good cause exists to condone
the lapses on both sides and will provide fuller reasons at a later stage should that
prove necessary.
65. Regarding the application for dismissal, I accept the proposition that this court has
jurisdiction to dismiss an application for review where the applicant delays unduly
in prosecuting a review in terms of rule 7A. However, considering the drastic
nature of imposing a bar of this kind, respondents seeking to impose a bar should
in the spirit of rule 30A of the Uniform Rules of the High Court first give the erring
party an opportunity to rectify the error. Although I am unimpressed by the
lackadaisical approach taken by the applicant in conducting these proceedings, I
accept that absent service of a definite notice for rectification in this instance, the
application for dismissal was premature and should be dismissed.
66. Both parties seek costs awards in respect of all five opposed applications.
Although, I am persuaded that van Wyk’s prosecution of his unfair dismissal suit
comes perilously close to being unreasonable to a degree sufficient to attract an
adverse costs award, the applicant’s unsatisfactory conduct in progressing the
review leaves me with less sympathy for it. In the circumstances, I prefer to make
no costs award in any of the applications.
67. In the premises, I make the following orders:
36
64.1. The first respondent’s application for an order making the second
respondent’s award an order of court in terms of section 158(1)(c) is dismissed.
64.2. The first respondent’s application for the dismissal of the applicant’s
application to review and set aside the second respondent’s award is dismissed.
64.3. The late filing of the first respondent’s answering affidavit is condoned.
64.4. The late filing of the applicant’s notice in terms of rule 7A(8) is condoned.
64.5. The late filing of the record in terms of rule 7A(6) is condoned.
64.6. The award of the second respondent under case number WE 1033902
made on 27 March 2003 is hereby set aside.
64.7. It is declared that the first respondent was not unfairly dismissed.
64.8. There is no order as to costs.
____________
Murphy AJ,
Date of hearing: 3 December 2004
Date of judgment: 21 June 2005
Applicant’s representative: Adv M Lennox instructed by Moni Attorneys.
Respondent’s representative: Adv E Spamer instructed by De Klerk and
van Gend.
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38