THE LABOUR COURT OF SOUTH AFRICA, CAPE TOWN
Case no: C337/2023
In the matter between:
MARCEL PHARMACY (PTY) LTD
t/a GRABOUW APTEEK Applicant
and
JUSTINE AFRIKA First Respondent
COMMISSION FOR CONCILIATION
MEDIATION AND ARBITRATION Second Respondent
I DE VLIEGER-SEYNHAEVE N.O Third Respondent
Heard : 8 October 2025
Delivered : 11 March 2026
Summary : A review application to set aside an arbitration award on the main
ground that the CCMA lacked jurisdiction to arbitrate a matter where an
employee was not dismissed but was told to leave. Contentions that
the employee was told to leave in anger and that the employer sought
to rectify a mistake it made by recalling the employee not evidence
before the commissioner.
JUDGMENT
(1) Reportable: No
(2) Of interest to other Judges: No
11 March 2026
Signature Date
2
GANDIDZE, J
Introduction
[1] This is an application under section 145, read together with section 158 of the
Labour Relations Act 1 (LRA), to review and set aside an arbitration award
issued under case number WECT503- 23 dated 21 May 2023. If the award is
set aside, the applicant, Marcel Pharmacy (Pty) Ltd (the employer), seeks an
order substituting it with one that declares that the Commission for
Conciliation, Mediation and Arbitration (CCMA) lacked jurisdiction to arbitrate
the dispute, as the first respondent, Justine Afrika (Afrika), was not dismissed.
Alternatively, the employer seeks an order remitting the matter to the CCMA
for a fresh hearing before a different arbitrator.
[2] The award under review found that Afrika was dismissed and that the
dismissal was both substantively and procedurally unfair. Since Afrika did not
wish to be reinstated, considering the circumstances of the dismissal, the
Commissioner awarded her five months' compensation.
Background and the arbitration proceedings
[3] Afrika was employed by the Phar macy as a Pharmacy Assistant since
September 2019.
[4] She testified that on 12 January 2023, the pharmacy was very hot. As they
were not allowed to turn on the air conditioning, she opened the windows and
switched off the lights. Later in the day, the owner of the pharmacy, Mr Marcel
Snyman (Snyman), entered the pharmacy and shouted at her, asking who
had given her permission to switch off the lights, and remarked that “ it looks
like shit in here ”. He was very rude and aggressive towards her. The day
ended without any further incident.
[5] Afrika did not attend work on Friday, 13 January 2023, because she was
unwell.
1 Act 66 of 1995.
3
[6] She returned to work on Saturday, 14 January 2023, and Snyman instructed
her to write a statement stating she had switched off the lights on 12 January
2023. After some reflection, she decided not to do so, as she saw no
necessity. On her way out for tea, she informed Snyman that she would not
write the statement, would not allow him to speak to her that way, and would
not accept any further abuse. Snyman followed her, spoke over her, and
shouted in front of the customers. He told her that if she left the pharmacy,
she must not return. She said she would retrieve her bag and leave. Snyman
changed his mind and told her not to leave, suggesting she go out for tea and
return when she had calmed down. She denied needing to calm down, stating
she was already calm, and that Snyman needed to calm down.
[7] When she returned from tea, the Pharmacy Manager, Ms Andra Moolman,
and Snyman’s fiancée called Afrika to the office. Snyman was also present.
Once inside, Moolman told Afrika to write a statement or leave. She did not
allow her to explain what had happened. Afrika told Moolman she would not
leave because she works at the pharmacy. She returned to her station, and
Moolman telephoned the security company to have her removed. Initially, she
thought Moolman had called the police. Snyman came to Afrika’s statio n,
pointed at her, and told her to leave immediately. She asked him what would
happen, and Snyman said they would phone her. She went to pack her bags
and left before the security arrived. She left because she did not know what
else to do. It was unbelievable.
[8] She could not return to work on Monday, 16 January 2023, because she had
been told to leave. No one contacted her, and she decided to refer a dispute
to the CCMA on that day. The CCMA responded with a date for the
conciliation meeting.
[9] Then, around 16h55 that day, she received an email from the employer
indicating, among other things, that she had not been dismissed. She visited
indicating, among other things, that she had not been dismissed. She visited
the pharmacy the following day to discuss the possible settlement of the
matter she had referred to the CCMA , and was told that the matter would be
discussed, and they would get back to her.
4
[10] Further correspondence ensued, including a notice to attend a disciplinary
hearing.
[11] During cross-examination, Afrika was asked whether she had been told she
was fired, dismissed, or simply told to go home. She replied that Snyman
instructed her to leave immediately and never return. This was heard by the
entire pharmacy. She requested a meeting with the pharmacy, hoping to
resolve the matter, in which case she would have withdrawn the dispute
referred to the CCMA. At the meeting, she asked for six months'
compensation. The request to meet was based on legal advice. She insisted
that she was dismissed and stated that “ I was chased away like a dog
whether you have used the word dismiss or not”.
[12] Moolman testified on behalf of the Pharmacy, but prior to that, she gave an
opening statement. She was employed as the Manager. Afrika refused to
obey the reasonable instruction to explain why she turned off the lights on 12
January 2023. Afrika concluded that she had been dismissed. She was
informed, through several correspondences, that she had not been dismissed
and was requested to return to work, but she did not do so. At the meeting on
Tuesday, 17 January 2023, Afrika requested six months' compensation to
withdraw her dispute at the CCMA, in which she had claimed twenty -four
months' compensation. The employer regarded Afrika’s request as blackmail
and intimidation. Subsequently, Afrika was dismissed, and unlike Afrika, the
Pharmacy was cooperative during the conciliation process of that dispute.
[13] In evidence, Moolman testified that on 12 January 2023, she and Snyman
attended an off -site planning session. When Snyman visited the pharmacy
later that day, the lights were switched off , to which Afrika responded, “ Ons
het warm gekry”. Afrika was off sick on 13 January 2023. When she returned
to work on Saturday, 14 January 2023, Snyman asked her to write a
statement explaining why she had switched the lights off on 12 January 2023.
statement explaining why she had switched the lights off on 12 January 2023.
This is company procedure. Afrika questioned Snyman why this was
necessary, to which he replied that it was an instruction. At tea time, Afrika
approached Snyman and told him she would not write the statement, that she
would not be bullied any longer, and that everyone gets so hot in here and is
5
sweaty, contrary to Pharmacy Regulations. Moolman stated that the
temperature in Grabouw that day was 26 degrees, and therefore Afrika’s
complaint was unfounded, and that if Afrika was unhappy about the
continuous heat in the pharmacy, she could have followed the grievance
policy.
[14] Snyman called her to the pharmacy on her weekend off to diffuse the
situation. Upon arrival, she questioned Afrika why she would not follow an
instruction from her employer, to which she responded that she could not be
forced. The employer regarded switching off the lights as sabotage because,
with the lights off, it appeared as if the pharmacy was closed, even though the
employees had been told that the business was struggling. The lead lights did
not generate heat.
[15] The refusal to follow the instruction led to a hostile situation. The situation was
absurd. Afrika began attacking them and making wild, unfounded accusations.
This is why she was asked to go home to de- escalate the situation and
prevent it from worsening. She was asked to leave several times, and she
refused. She returned to her station and continued serving customers despite
a reasonable instruction to leave. Moolman telephoned security to remove
Afrika. Snyman also approached Afrika at her workstation and asked her
again to go home, to which she replied that she would not leave because it
was her job. She was told that “we will be in contact ”. By the time security
arrived, Afrika had left.
[16] Afrika did not attend work on 16 January 2024, despite multiple
communications requesting her presence. They received the CCMA referral
forms, and she emailed Afrika to say she had not been dismissed but had
been sent home to ease the tension. She also stated that submitting a dispute
to the CCMA was completely inappropriate and that she must return to work
since her absence was unauthorised.
[17] Afrika reported to the pharmacy on the morning of 17 January 2023. Snyman
[17] Afrika reported to the pharmacy on the morning of 17 January 2023. Snyman
instructed her to start counting stock, but she refused and chose to wait in the
car for Moolman. When Moolman arrived, she and Afrika met, and Afrika
6
stated that the matter could be resolved if she could be paid six months'
compensation. The pharmacy viewed this as a threat and almost as
blackmail. She responded that they would discuss it and get back to her. She
also told Afrika that she was not dismissed, that it was business as usual, to
which Afrika replied “Mm-hmm” before she left.
[18] On 18 January 2023, the following day, Moolman sent Afrika another email
stating that she had left work without permission the previous day and had not
reported for duty. Afrika responded on 19 January 2023, making “allegations
and slande r”’. Moolman sent another email with the same instruction on 20
January 2023, stating that this would be the final instruction for Afrika to return
to work. There were further communications between the parties after that,
including a notice to attend a disciplinary hearing for desertion and for the
events of 14 January 2023, when she was grossly insubordinate. Afrika did
not attend the hearing, and she was dismissed on 30 January 2023.
[19] During cross -examination, it was put to Moolman that Snyman instructed
Afrika to write a statement stating that she switched off the lights, not the
reason she did so. It was also put to her that a dark pharmacy did not
necessarily mean the business was closed, given load shedding and the open
door, to which Moolman responded, “ Okay”. When asked why the
environment was hostile, Moolman explained it was because Afrika attacked
them, refused to obey a lawful instruction, and declined to go home when
asked. Explaining the attack, Moolman stated that Afrika insisted she would
not follow the instruction, would no longer work under such conditions, and
claimed she was being bullied. Afrika admitted that she had made those
remarks because she was not given a chance to explain, only to write the
statement or leave.
[20] It was also put to Moolman that her reason for visiting the pharmacy on 14
January 2023 was to chase Afrika away, to which Moolman responded that it
January 2023 was to chase Afrika away, to which Moolman responded that it
was her weekend off. Concerning Afrika’s claim that she had been chased
away, the following exchange took place:
7
‘Ms Moolman: Do you have evidence that you had to run away with your bag,
or did you walk freely, unattended?
Ms Afrika: ‘You called the security on me, ja’.
Ms Moolman: But did they arrive? Did they escort you off the premises?
Ms Afrika: And then Marcel came and pointed at me and said I must
leave right now, in front of the customer.
Ms Moolman: And why were you serving customers when you were told not
to. Any other question for me?’
[21] Regarding the meeting of 17 January 2023, it was put to Moolman that Afrika
did not say she was returning to work, as she stopped working at the
pharmacy on 14 January 2023, but was coming for a meeting to see how the
matter could be resolved. Moolman responded: “ In your mind”, and Afrika’s
further statement was:
‘In fact. You cannot chase somebody away and then a couple of days later
say no, come back, I did not mean it. It does not work like that. There is rules
in place.’
[22] The cross-examination ended on that note.
[23] Snyman also testified. On 14 January 2026, he asked Afrika to prepare an
incident report regarding the lights she had switched off, and she responded
that she would not be bullied like that and would not submit the report.
Moolman arrived and asked Afrika the same thing. Regarding hostility,
Snyman stated that this was not the case, but Afrika returned to her
workstation and continued working rather than going home as instructed. He
approached Afrika and told her to go home as directed by the employer, and
that “we will be in contact”.
[24] During cross -examination, Afrika accused Snyman of interrupting her,
claiming Moolman had only come to tell her to leave, and that Moolman and
Snyman had repeatedly instructed her to do so, after which she departed
under the impression that it was “finished”. Snyman denied this, asserting that
8
Afrika had quietly walked out of the pharmacy, engaging in conversation with
others as she left. Afrika agreed, noting that she did not want to cause a
scene but felt humiliated and embarrassed when told to leave. She denied
that the discussion about leaving took place in the office, stating it began long
before Moolman arrived and in front of customers. Afrika did not think it was
necessary to file an incident report, stating that Snyman had previously torn
up one she had written.
The award
[25] The third respondent commissioner noted that the issue for determination was
whether Afrika was dismissed as contemplated in section 186 of the LRA, and
if so, whether the dismissal was fair.
[26] The commissioner found that Afrika claimed she had been dismissed during
her tea break, but she could not have been dismissed on this occasion
because Snyman changed his mind and asked her not to leave, and she
returned to her workstation.
[27] Concerning the second instance of dismissal , the Commissioner found that it
happened during a meeting with Moolman, who instructed Afrika to write the
incident report or leave the pharmacy, or the police would be called. The
Commissioner noted that telling Afrika she would be contacted could mean
anything and did not help determine whether a dismissal took place. The
Commissioner reasoned that, although Afrika was not explicitly told she was
dismissed, she was not advised she was suspended, nor was she told she
needed to leave for the day and could return on Monday. The Commissioner
also reasoned that calling the police to forcibly remove her, if she did not
leave, would not have created the impression that Afrika was being sent home
temporarily. Additionally, when Afrika did not report for duty on Monday, no
one telephoned to find out her whereabouts, which, according to the
Commissioner, showed that the intention was to dismiss her and that the
pharmacy only contacted her after she referred the dispute to t he CCMA. The
pharmacy only contacted her after she referred the dispute to t he CCMA. The
Commissioner concluded that Afrika was dismissed.
9
[28] Regarding the fairness of the dismissal, the Commissioner concluded that
Afrika had been insubordinate or insolent by refusing to write the incident
report. However, according to the Commissioner, this did not mean that
dismissal was a fair sanction. The Commissioner found that the misconduct
was worsened by the employer’s failure to explain why Afrika needed to write
the statement and by not allowing her to explain her reasons for not wanting
to do so. The Commissioner found that if Moolman and Snyman had engaged
Afrika constructively, the situation that developed could have been avoided.
The Commissioner also noted that Afrika had been employed since 2019 and
had an expired warning for unrelated misconduct.
[29] On procedural fairness, the Commissioner found that Afrika was dismissed on
14 January 2023 without a disciplinary hearing, and that the subsequent
disciplinary hearing did not rectify the unfairness because the chairperson
was chosen by the employer, who also refused to supply the chairperson's
details when Afrika requested the information.
[30] As he found the dismissal to be both substantively and procedurally unfair, the
Commissioner decided that five months' compensation of R92,750.00 was
fair, considering Afrika’s years of service and that she had not secured
alternative employment.
Grounds for review
[31] In the pleadings, the award was challenged on the grounds that it was one no
reasonable decision- maker could have reached, that the Commissioner
committed irregularities and made errors in law, and that the CCMA lacked
jurisdiction to arbitrate the dispute. In the heads of argument and oral
submissions, the ground of review persisted with was that there was no
dismissal, and therefore, the CCMA lacked jurisdiction to arbitrate the matter.
[32] In support of the argument that Afrika was not dismissed, it was submitted
that on 14 January 2023, Afrika was instructed to leave and informed that she
that on 14 January 2023, Afrika was instructed to leave and informed that she
would be telephoned. On 16 January 2023, she was reminded via email that
she had not been dismissed and was instructed to report for duty the following
day. She complied with this instruction and reported to the p harmacy on 17
10
January 2023, but maintained that she had already been dismissed.
Subsequently, she left the Pharmacy.
[33] According to the employer, under cross -examination, Afrika was unable to
confirm that she had been told she was dismissed. The submission was also
that even if she had been told to leave on 14 January 2023, the employer was
entitled to reconsider and call her back to work, which clarified any confusion
that might have been caused.
[34] During oral argument, Mr Du Preez submitted that the test used to determine
if an employee resigned also applies to whether an employee was dismissed.
He referred to this Court's decision in Sihlali v Broadcasting Corporation Ltd
2
(Sihlali), and argued that an employer who tells an employee to leave in anger
should have the same rights as the employee who resigns in anger. He also
asserted that the Court should focus on the words used to decide whether
there was clear communication that the contract would be terminated, and
that the context of the altercation is irrelevant to whether Afrika was dismissed
on 14 January 2023. However, he also submitted that the instruction to leave
was given in anger and could be rectified. Furthermore, he argued that the
instruction to write the statement was part of Afrika’s duties, and that she was
hot-headed when she responded that she would fetch her things and leave.
[35] Before analysing these grounds of review, the relevant legal principles are
briefly outlined.
The Legal Principles
[36] Section 186(1)(a) of the LRA provides:
‘“Dismissal" means that —
(a) an employer has terminated a contract of employment with or
without notice…'
[37] Where s ection 186(1)(a) is relied upon, the burden is on the employee
claiming to have been dismissed to prove that the employer terminated a
2 (2010) 31 ILJ 1477 (LC); [2010] ZALC 1.
11
contract of employment with or without notice. If an employee cannot
discharge that burden, then there was no dismissal, and the CCMA would
lack jurisdiction to arbitrate the matter.
[38] When the CCMA is asked to issue a jurisdictional ruling, this Court is not
bound by that decision on review. Instead, it will determine whether a
dismissal occurred de novo. (See Fidelity Cash Management Service v
Commission for Conciliation, Mediation & Arbitration & others )3. Therefore,
this Court will not be limited to the Commissioner's reasoning. Instead, it will
consider all the evidence presented to the Commissioner and determine
whether the employee has discharged the burden of proving they were
dismissed. If the Court finds that there was no dismissal, that ends the inquiry,
and the review application must succeed.
[39] If a Commissioner accepted that there was a dismissal, and this Court finds
that the decision was correct, then the Court must determine whether the
Commissioner’s findings that the dismissal was substantively and
procedurally unfair are reasonable. The onus of proving that the dismissal
was substantively and procedurally fair lies with the employer.
[40] It is now to be decided, against these principles, whether the award is
reviewable.
Analysis
[41] The high watermark of the employer’s case, both in the arbitration
proceedings and in the review application, is that Afrika was never told she
had been dismissed, and that she was only told to leave. The commissioner
dealt with that contention. He accepted that Afrika was not explicitly told she
was dismissed, but found that she was dismissed for the reasons he set out in
the award, which I summarised above. The Commissioner’s approach cannot
be faulted.
[42] The commissioner was correct that Afrika was dismissed on 14 January 2023
for the further reason that, according to Moolman, Afrika was attacking them
3 (2008) 29 ILJ 964 (LAC); [2007] ZALAC 12.
12
and making wild allegations against them. The intention was not for Afrika to
return on another day, because on Moolman’s version, she had attacked and
made wild allegations against them.
[43] The submission that Afrika did not return to work on Monday, 16 January
2023, despite being reminded that she had not been dismissed, was
unsupported by any evidence presented to the Commissioner. The evidence
indicated that it was only after 16h00 that day , when Afrika had already
referred the matter to the CCMA, and after the CCMA had responded with a
notice of a conciliation meeting, that the employer contacted Afrika. In fact,
the Commissioner pointed out that no one had bothered to look for Afrika
when she did not arrive at work on the morning of 16 January 2023,
suggesting that no one expected her to return to work after her dismissal on
Saturday, 14 January 2023.
[44] In Sihlali, the Court stated that a resignation is established by a subjective
intention to terminate the employment relationship, and words or conduct by
the employee that, when objectively viewed, clearly and unambiguously
evince that intention. The Court went on to state the following:
‘[14] The requirement of a clear and unambiguous intention to terminate
the contract may often be more easily stated than applied. As Mark
Freedland observes, if a worker utters words seeming to indicate an
intention to leave employment, the utterance may be unclear, the
product of uncertainty, or a manifestation of anger rather than an
expression of a definite intention to terminate the employment
relationship. When it is claimed that an employee has decided to
terminate his or her employment of his or her own v olition, it may be
necessary to scrutinize the genuineness of that volition to determine,
for example, whether the employee's action is the result of an
unacceptable degree of pressure by the employer, or whether the
employer has been over -eager to treat an impulsive decision as a
settled one.’
employer has been over -eager to treat an impulsive decision as a
settled one.’
[45] On the facts of the matter before it, the Court concluded that the employee
resigned via an SMS and that, weeks later, he had a change of heart and
13
wished to withdraw his resignation. The Court determined that he was not
entitled to the remuneration for the period after he had resigned.
[46] In distinguishing some of the case authorities that the employee in Sihlali
sought to rely upon, the Court stated this:
‘[20] Glass & Aluminium concerned a statutory claim of unfair dismissal
and the interpretation of s 186(1) of the LRA rather than a contractual
claim such as the present; Uthingo was a review of an arbitration
award in an unfair dismissal dispute, an element of which concerned
the application of a notice clause in an employment contract and the
definition of 'dismissal' in s 186. I see no reason to depart from the
long line of authorities referred to in para 11 above, all of which
directly concern themselves, as does this case, with contractual
disputes.’
[47] Assuming that the principle that an employee who resigns in anger should be
allowed to retract a resignation must also be applied where an employer
dismisses an employee in anger, in the present matter, it was never the
employer’s case before the Commissioner that Afrika was dismissed in anger,
and that the employer was entitled to rectify its actions.
[48] According to Afrika, Snyman was angry the first time he told her to leave, but
then he changed his mind and asked her not to go. The Commissioner
concluded that Afrika was not dismissed on this first occasion, but on the
second.
[49] In that instance, Moolman instructed Afrika to write the statement or leave.
When Afrika refused and returned to her workstation, Moolman telephoned
the security company to have her removed. Snyman followed Afrika to her
workstation and, while pointing at her, ordered her to leave. This was done in
front of the customers and other colleagues, causing Afrika humiliation and
embarrassment. Neither Moolman nor Snyman testified that they told Afrika to
leave in anger. Moolman’s version was that she told Afrika to leave to diffuse
leave in anger. Moolman’s version was that she told Afrika to leave to diffuse
the situation, which was becoming hostile. Interestingly, Snyman denied that
the situation was hostile, stating that Afrika went back to her station and
14
continued serving customers. Therefore, the submission by Mr Du Preez that
because employees who resign in anger have been allowed to retract their
resignations, employers in similar circumstances must be given the same
latitude finds no application, on the facts of this matter.
[50] The submission that the employer erred and attempted to rectify its mistake
by recalling Afrika to work is also unsupported by evidence. This version is not
reflected in any of the letters sent to Afrika between 16 January and her
dismissal on 30 January 2023. Nor was this version presented by Moolman or
Snyman during the arbitration proceedings. The employer consistently
maintained that Afrika was never dismissed on 14 January 2023, but was
asked to leave, and that there is a distinction between the two. The employer
cannot, for the first time in the review proceedings, introduce a defence that
was not raised before the commissioner.
[51] I might also add that, despite admitting that Afrika was asked to leave, in their
evidence, both Moolman and Snyman attempted to depict her as freely
walking out of the pharmacy and chatting with people as she did so. If that
evidence was presented to suggest that Afrika had not been asked to leave,
then both Moolman and Snyman were not credible witnesses.
[52] Mr Du Preez submitted that he was unable to find a case dealing with an
instance where an employee claimed he had been dismissed based on the
employer's conduct.
[53] In Kukard v GKD Delkor (Pty) Ltd
4, an employee had resigned and, contrary
to the restraint -of-trade clause in place, joined a competitor of his former
employer. The parties resolved the matter on the basis that the employee
would not work for the competitor but would be re- employed by his former
employer on the same terms, conditions, and benefits as he enjoyed prior to
his resignation. When the employee returned to the former employer, he was
presented with a document offering him a different position than the one he
presented with a document offering him a different position than the one he
previously held, and the document stated that it was a three- month contract,
whereas he had previously been permanently employed. When the employee
4 (2015) 36 ILJ 640 (LAC); [2014] ZALAC 52.
15
refused to sign the document, he was told that the offer of employment was
withdrawn, that he must hand in the cell phone given to him, and that he must
leave. He claimed that he had been dismissed and referred the matter to the
CCMA. The employer disputed that there had been a dismissal.
[54] When the matter came before the Labour Appeal Court , it held, inter alia, as
follows.
‘[19] Whitford admitted handing the appellant the letter of 4 November
2008, withdrawing the offer of employment of 3 November 2008. He
also admitted instructing the appellant to return the cellphone, but
denied dismissing the appellant by instructing him to leave the
premises. He testified in this regard that he had instructed the
appellant to go to his attorney with the intention of speeding up
negotiations to finalise his employment contract. Whitford's testimony
on this crucial aspect of the dispute is, in my view, completely
implausible and contrary to the contents of the letter of 4 November
2008 withdrawing the offer of employment of 3 November 2008, since
that letter does not suggest that the offer of employment was being
withdrawn until such time that the parties could reach a different and
further agreement.
[20] After handing the appellant the 4 November 2008 letter withdrawing
the offer of employment of 3 November 2008, Whitford instructed the
appellant to hand his cellphone back and leave the premises.
Whitford's conduct, in my view, leaves no doubt in the mind of a
reasonable person that he was terminating Delkor's employment
relationship with the appellant such as to constitute a dismissal as
defined in s 186(1) (a) of the LRA. Although Whitford disputed in his
testimony at the arbitration hearing that he i nstructed the appellant to
leave the company premises, he failed to provide an explanation for
why he instructed the appellant to hand back his cellphone if, as
explained by him, the purpose of the letter of the 4
th and his
explained by him, the purpose of the letter of the 4
th and his
discussion with the appellant was for the appellant to discuss the
terms of the offer with his lawyers and revert with a proposal. The
absence of an explanation by Whitford on this crucial aspect which
counsel for Delkor conceded during argument called for an
16
explanation, compels me to the conclusion that Whitford instructed the
appellant to return the company cellphone because he was
terminating the employment relationship with the appellant. In the
circumstances, I consider the appellant's version that Whitford
instructed him to return the company cellphone and leave the
premises to be plausible. If as explained by Whitford, the purpose of
the letter of the 4 th and his discussion with the appellant, was for the
appellant to discuss the terms of the offer with his lawyer and revert
with a proposal, then there would have been no reason, on the
probabilities, to instruct the appellant to return the company
cellphone.’
[55] Regarding the fact that afterwards the employer wrote to the employee that he
had not been dismissed, the Court stated as follows:
‘[24] The Labour Court also placed much emphasis on the letter of
response from Delkor's attorneys to the appellant's attorneys, dated 4
November 2008, in which it is denied that Delkor dismissed the
appellant on that day. The contents of this letter must be judged
against the background of all the facts and events that took place on 3
and 4 November 2008. Notwithstanding the categorical denial that the
appellant was not dismissed, this letter came a tad too late as
Whitford had by this stage made it abundantly clear that the appellant
was dismissed by inter alia presenting him with the withdrawal letter of
the 4th instance, instructing him to return the company cellphone and
to leave the premises. Needless to say, the letter of 4 November 2008
is completely irreconcilable with the conduct of Whitford on that day,
and it certainly does not sway the general probabilities in favour of
Delkor insofar as the appellant's dismissal is concerned. The Labour
Court accordingly erred in finding that the appellant was not dismissed
by Delkor as defined s 186(1)(a) of the LRA.’
[56] Therefore, where an employer tells an employee to leave the work premises,
[56] Therefore, where an employer tells an employee to leave the work premises,
the c ontext of that exchange needs to be analysed to determine if the
employer was dismissing an employee. In such a case, context is everything,
contrary to what Mr Du Preez submitted. The fact that an employer did not
use the word dismissed is not decisive.
17
[57] Additionally, the fact that an employer later told an employee they were not
dismissed does not mean the employee was not dismissed. All the facts and
events must be considered.
[58] Afrika was told to leave on 14 January 2023, and the employer did not
communicate with her until after she referred a dispute to the CCMA. The
emails claiming there had been no dismissal were only written because Afrika
had referred the matter to the CCMA. These communications were not meant
to clarify any confusion, as submitted on behalf of the employer. Afrika was
firm in her belief that when she left on 14 January 2023, she understood it to
be final. That version was more probable than the versions offered by
Moolman and Snyman.
[59] In Le Grange v Visser t/a Skukuza Medical Practice & Another
5, the Court
made it clear that an employer who dismisses an employee cannot unilaterally
undismiss the employee. The employer’s e- mails to Afrika that she was not
dismissed were an attempt to undo her dismissal, which it could not do.
[60] Afrika did not attend the employer’s premises on 17 January 2023 to work.
She went there for a meeting to discuss a possible settlement of the matter
following her dismissal on 14 January 2023.
[61] Something also needs to be said about the employer’s version that on 17
January 2023, Afrika sought to blackmail it by asking for six months'
compensation in settlement of the dispute. Discussions about settlement are
often without prejudice, and therefore, placing that evidence before the
Commissioner was mischievous. If indeed the employer regarded the
proposed settlement as an attempt to blackmail it, it begs the question why
Afrika was informed that the proposal would be discussed and that they would
revert to her, rather than being told that the proposal was seen as blackmail.
[62] The Commissioner was correct in finding that Afrika was dismissed on 14
January 2023.
5 (2025) 46 ILJ 947 (LAC) para 21.
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[63] The employer did not argue that if the Court finds there was a dismissal, then
such dismissal was, in any event, fair, both substantively and procedurally. On
the facts, the finding that the dismissal was both substantively and
procedurally unfair was reasonable. The award of five months' compensation
was fair. The award will not be interfered with on review.
Costs
[64] The employer sought costs in the event of opposition. In other words, the
employer genuinely believed that opposing such a review application would
be frivolous. Alternatively, the prayer for costs was kept in the notice of motion
as is customary. The employer’s heads of argument wisely did not persist with
the prayer that costs be awarded against Afrika.
[65] Afrika prepared the pleadings with the help of a legal representative and
attended the hearing in person. If she had formally engaged this legal
representative, I would have been inclined to award her costs. The employer
treated her poorly and believed they could use legal manoeuvres by claiming
she had not been dismissed, aiming to dismiss her on false charges. The
review application was frivolous, and with legal advice, the employer would
have been told that an application to review the award had no chance of
success. Recognising the weaknesses in the employer’s case, the legal
representatives sought to build a new case on review, claiming Afrika was
dismissed in anger and that the employer had a right to correct its mistakes.
The Court views such conduct very unfavourably.
[66] In the result, the following order is made:
Order
1. The review application is dismissed.
2. The interest on the compensation amount is to be calculated from the
date specified in the arbitration award to the date of payment.
3. There is no order as to costs.
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_______________________
T. Gandidze
Judge of the Labour Court of South Africa
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Appearances:
For the applicant : Advocate T Du Preez
Instructed by : Vos Maree Attorneys
For the first respondent : In person