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[1995] ZASCA 143
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Council for Scientific and Industrial Research v Fijen (314/94) [1995] ZASCA 143; 1996 (2) SA 1 (SCA); [1996] 2 All SA 379 (A); [1996] 6 BLLR 685 (AD); (1996) 17 ILJ 18 (A) (24 November 1995)
CASE NO. 314/94
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISION)
In the matter between:
THE COUNCIL FOR SCIENTIFIC AND
INDUSTRIAL
RESEARCH APPELLANT
and
A P M FIJEN RESPONDENT
CORAM
: VAN HEERDEN, SMALBERGER, VAN DEN HEEVER,
HARMS et OLIVIER, JJA
HEARD
: 9 NOVEMBER 1995
DELIVERED
: 24 NOVEMBER 1995
JUDGMENT
HARMS JA/ ...
2
HARMS JA:
This is an appeal from the Labour Appeal Court, Cape (the "LAC"). The LAC
upheld an appeal from the Industrial Court and determined
a labour dispute
between the respondent, as employee, and the appellant, the employer, in favour
of the former. It found that the
dismissal of the respondent by the appellant
was substantively and procedurally unfair and therefore constituted an unfair
labour
practice. An order for compensation was made. The LAC was divided. Farlam
J and one assessor, Mr Dodson, were responsible for the
majority finding.
Another assessor, Mr Loubser, agreed with the view of the Industrial Court (Prof
Schwietering AM) that the dismissal
had been fully justified. The appellant
appeals with the leave of Farlam J against the determination of the unfairness
only. The
amount of the compensation is not in issue.
The respondent is a marine pollution engineer. He
3
obtained his engineering qualification at the University of Delft and
entered the employ of the appellant during November 1985. It
is not disputed
that until the determination of his employment with effect from 30 April 1992,
he had been a conscientious and competent
employee. However, towards the
beginning of that year a confidence crisis developed and this led to his action
referred to later
and the appellant's reaction of dismissing him.
The material facts are not in dispute and the LAC did not make any
factual findings of consequence - it merely recited the evidence.
This Court is
thus not unduly hamstrung by the judgment of the LAC.
During December 1991 the appellant received information from Mr Botes, a
co-worker of the respondent, to the effect that the respondent
had breached his
conditions of service. He had, allegedly, offered to do private work for
remuneration without the consent of the
appellant. Botes also implicated himself
and as a result
4
the respondent and Botes were both charged in January 1992 with
misconduct under the disciplinary code that forms part of the conditions
of
service. Their immediate superior, Mr Russell, seems to have been the only
witness at the hearing on 5 February 1992. The two
accused refused to testify.
They were found not guilty on the basis that the charge had not been proved
beyond reasonable doubt.
After the disciplinary hearing, its chairman and the
head of the division in which the respondent was employed, Dr Swart, had a
conversation
with the respondent. The purpose of the conversation was to smooth
the working relationship between the respondent and Russell. Clearly
it had been
severely damaged: Russell believed that the respondent's questioning of him was
not based on the truth, and the respondent
that Russell had lied. According to
the respondent Swart left the impression with him that Swart did not believe in
his innocence.
It serves no purpose to deal in any
greater
5
detail with the facts except in as far as they appear from
letters exchanged between the parties. Although tedious, it
is necessary to quote them fully.
[1] A letter from the respondent to Dr Swart dated 13
February 1992:
"Herewith I want to confirm in writing a discussion I had with Mr K S
Russell on Thursday February 6th.
I informed Mr Russell
that I do not want to continue being in the employment of the CSIR.
The disciplinary hearing on Wednesday February 5th and the weeks leading
up to this hearing, have made it clear that a normal working
relationship
between the CSIR/EMATEK and myself has been permanently damaged.
I am not putting in my resignation as the reasons for asking termination
of the working relationship are not voluntary. In my opinion,
the actions of the
CSIR/EMATEK are largely responsible for the fact that I consider a normal
working relationship no longer possible.
Maybe a voluntary redundancy, together with a financial package which
include a full pension refund, is the appropriate mechanism
for terminating our
working relationship.
I will be very pleased to receive your early reply."
6
[2] Dr Swart's reply of 24 February:
"I confirm receipt of your letter dated 1992-02-13.
During my discussion with you I explained the policy followed by EMATEK
regarding retrenchments. Your letter, however, necessitates
a more formal
clarification regarding the above.
The procedures followed, leading up to and including the disciplinary
hearing were all correct and necessary under the circumstances.
The resultant
outcome was such that the status quo as prior to the action leading to the
hearing was reinstated.
It is unfortunate if you should regard the working relationship between
EMATEK and yourself as changed in any way. Where EMATEK is
concerned, with
myself as the spokesman, we have concluded a disciplinary procedure and are
regarding the outcome as the conclusion
of the procedure with no resultant
change in the working relationship.
With regards to your suggestion for voluntary retrenchment, I would like to
clarify the CSIR policy and thus rule out any negotiation
regarding this
policy:
Retrenchment is the last action taken after
meticulous investigation into the viability or necessity of certain positions,
linked
to our strategic market focus.
7
It should be noted that once a position has been declared redundant, we are
not allowed to refill the position without having the
objectivity of our
investigation questioned.
In your instance the position you are currently filling is a key position
and we would not consider declaring it redundant as that
would jeopardise our
future operational viability.
Please do not hesitate to contact your programme manager, the Human
Resources department or myself should you have any further questions
in this
regard."
[3] The respondent's immediate reaction of the
same date
but transmitted the following morning:
"TERMINATION OF WORKING RELATIONSHIP
Dear Harry
Reference is made to your LAN-message
dated 24/2/1992 as answer to my original letter dated 13/2/1992.
You will recall that in my original letter I suggested that maybe a
voluntary redundancy would be the appropriate mechanism for terminating
our
working relationship. During our discussion that same day (13/2/1992) after I
handed in my letter, I also stated that this was
only one suggestion and that
there are other mechanisms as well, which would include some form of financial
compensation.
8
The fact remains that a normal working relationship between the
CSIR/EMATEK and myself is totally and permanently damaged.
How can you say in your letter that you regard there is no resultant
change in the working relationship, when you yourself stated
at our meeting
immediately after the hearing, that you thought my relationship with Mr Ken
Russell was seriously damaged? In addition,
several remarks by both you and Mr
Russell, have made it abundantly clear that neither of you have accepted that I
actually really
could be innocent.
You claim in your letter, that the procedures followed leading up to and
including the disciplinary hearing were all correct and necessary,
I disagree.
They were not necessary: an initial discussion between you and me would have
been much more appropriate especially considering
the fact that I have been a
loyal employee for over 6 years. The procedures were also not correct:
*
The letter from
Ms Bodenstein (typed on 13/1/1992 but received on 15/1/1992) assumes I am
guilty.
*
Both this letter
and article 3.2 page B2 of the conditions of contract state that an
investigation will be held. This never took place
according to Mr Russell's
evidence.
*
Only after the
investigation is
it
*
9
decided
that a disciplinary hearing will take place. You however decided on a
disciplinary hearing way before I even got Ms Bodenstein's
letter.
* Mr Russell made various incorrect statements at the hearing.
* Allowing Mr Botes and myself the option to make a statement either under
oath or not under oath is a deviation of the procedures
that is not contained in
the conditions of contract.
* Both you and Mr Russell were clearly biased: You insisted on a hearing
before carrying out an investigation while Mr Russell said
at the hearing that
he still considered that I had sent a private proposal to Mossgas, although he
had absolutely no proof of this
matter
whatsoever.
The above, as well as the
clumsiness of the charges, have the appearance of a 'witch-hunt', rather than
wishing to find out what actually
happened.
As a result I have completely lost faith in you as my divisional director
and in Mr Russell as my immediate supervisor. That is why
our working
relationship is totally and permanently damaged, through actions beyond my
control.
The fact that you consider a redundancy not to be a viable mechanism in
my case can actually also
10
be questioned. I was a marine pollution engineer in the marine pollution
programme. Not only was the marine pollution programme disbanded,
but the group
was also strongly reduced in numbers and project leadership for marine pollution
projects was effectively transferred
to Mss Taljaard and Skibbe (something for
which no reasons were ever given). My position has already disappeared.
Nevertheless you
as director can financially compensate me by any other
mechanism you may care to think of. I am sure you have full authority to write
such a letter right now.
Our working relationship finished the day after the hearing. That was 3
weeks ago already and it is now time to bury this affair.
I look forward to hearing your reply by no later than Friday
morning."
[4] Dr Swart's provisional answer of 28
February:
"RETRENCHMENT
I acknowledge receipt of your telefax dated 1992-02-25.
I refer you to my letter dated the 1992-02-24. I reiterate that retrenchment
is not a possibility as fully discussed in my said letter.
With regard to the other letters [matters] mentioned in your telefax, I must
inform you that I am considering same and am also taking
advice. A further
communication will accordingly be addressed to you as soon as
possible."
11
[5] Dr Swart's final letter of 27 March:
"TERMINATION OF SERVICES
I refer to your electronic mail communication received on 25 February 1992
and my letter to you dated 28 February 1992. I have now
had the opportunity to
consider the matter in detail and wish to advise you as follows.
As previously indicated to you, there are no grounds on which you can be
considered for redundancy. For its part the CSIR has accepted
the findings of
the Disciplinary Committee and regards the matter as closed.
From the contents of your abovementioned communication it is clear, however,
that you do not wish to continue your working relationship
with the CSIR. You
had already indicated in your hand written note date 13 February 1992 that you
'... do not want to continue being
in the employment of the
CSIR'.
This statement together with the heading to your
message of 25 February 1992 (ie TERMINATION OF WORKING RELATIONSHIP) read
together
with the remark in the penultimate paragraph of the latter, namely that
*(o)ur working relationship finished the day after the hearing',
clearly
constitutes a repudiation of your service contract with the CSIR. You have quite
clearly persisted in this attitude in spite
of all efforts from our side to
preserve the working relationship.
In the circumstances I am left with no
12
alternative but to inform you that it has been decided to accept your
repudiation of your service contract. In terms of the CSIR Conditions
of Service
you would ordinarily be obliged to give one (1) calender month's notice of
termination of service. In the circumstances,
however, we are prepared to waive
this requirement and should you so wish your services may terminate immediately.
Should I not hear
from you to the contrary your services will terminate with
close of duty on 30 April 1992.
As your salary for March 1992 has already been paid into your banking
account no further remuneration will be payable to you if you
choose to
terminate your services immediately. As your services have not been terminated
for disciplinary reasons you will, as in
the case of an ordinary resignation, be
entitled to payment of the cash value of the accumulated leave to your credit.
Up to the
end of March 1992, ten (10) days leave are due to you to the value of
R3022,84. You will also be paid a pro rata share of your annual
service
bonus.
The Associated Institutions Pension Fund of which you are a member will
be notified of the termination of your services immediately
and the resignation
benefit to which you will be entitled will be forwarded to you upon receipt.
Please keep us advised of any change
of address.
It would be appreciated if you would kindly hand back all CSIR property
in your possession, such as library books, calculators etc.
Your CSIR identity
card must please be handed to the
13
Personnel Office upon your departure.
In closing, I would like to wish you success in your future
career."
This letter did not bring to an end the
argument, but the subsequent correspondence is not of relevance in determining
whether or
not the termination of the respondent's services was an unfair labour
practice.
The respondent based his claim before
the
Industrial Court on two grounds. The first was that
his
dismissal was substantively unlawful and unfair in that
he
had been dismissed without having breached his contract
of
employment. His dismissal was thus without lawful cause
or
without a valid, fair or sufficient reason. The
other
ground was that it had been procedurally unfair because
he
was dismissed without being afforded a hearing. Although
it
is usually convenient in considering whether a
dismissal
amounts to an unfair labour practice to have the
twofold
inquiry envisaged in the claim, it is hardly
essential.
Sometimes it may even be impossible to do so. It is in
this
14
case particularly difficult to maintain the dichotomy, but I shall
nevertheless attempt to do so.
The appellant's case was, to an
extent, that it did not dismiss the respondent; it was the respondent who had
ended the working relationship.
It is true that in the letter [5] the appellant
did at times attempt to interpret the respondent's action as a resignation, but
I
agree with the LAC that the appellant's argument must, in this regard, be
rejected. There can be no doubt that the respondent was
dismissed. The fact that
the appellant annexed unilateral conditions to the dismissal, makes no
difference to that conclusion. (I
refer here to the fact that the dismissal was
only to take effect on 30 April and that the ordinary "resignation benefits"
were accorded
to the respondent.)
As far as the respondent's allegation that he was dismissed without
having breached his contract is concerned, the appellant's response
in its
"pleading" was that the respondent's "attitude" evinced in the quoted
15
letters "constituted a repudiation of his service contract". Both the
Industrial Court and the majority of the LAC came to the conclusion
that the
letters did not amount to a repudiation of the contract. It was on the simple
basis that the respondent in both letters
made it quite clear that he wished to
remain in the employ of the appellant pending a settlement of his claim. He was
entitled to
inform his employer of his intention to leave at some future date
and to attempt to extract in the meantime some kind of compensation.
He
continued in his employment and proceeded to do his day-to-day work on a
full-time and satisfactory basis. He thus did not evince
a clear and unambiguous
intention not to go on with his contract of employment.
I agree that the respondent did not repudiate the contract of employment
in the narrow sense set out by the courts below. That is
not the end of the
inquiry. The correct question to ask appears to me to be whether the
16
respondent's "attitude" constituted a material breach of his contract
("repudiation" in the wide sense), a breach that entitled the
appellant to
cancel it. This issue was, in spite of the label of "repudiation", properly
raised by the appellant.
Before attempting to answer the question thus formulated, it should be
noted that the conditions of service do not allow the employer
to cancel the
employment contract on notice unless certain other factors are present, none of
which is now pertinent. The disciplinary
code permits the dismissal if, after a
formal hearing, the employee is found guilty of "misconduct", a term defined in
the code with
a great degree of particularity. I shall in due course return to
the applicability of the code. It suffices to state at this juncture
that the
respondent was not dismissed in accordance with the provisions of his
contract.
Mr Pretorius, on behalf of the appellant,
relied
17
on an English rule of law. It is that in every contract
of
employment there is an implied term that the employer
will
not, without reasonable and probable cause, conduct
itself
in a manner calculated or likely to destroy or
seriously
damage the relationship of confidence and trust between
the
parties. This implied term may be breached without
the
intention to repudiate the contract. It is sufficient
if
the effect of the employer's conduct as a whole,
judged
reasonably and sensibly, is such that the employee
cannot
be expected to put up with it. See Halsbury's Laws
of
England, 4th edition (reissue) par 44 and the cases
there
cited. He submitted that a reciprocal duty rests on
the
employee although he was not able to quote any
English
authority to that effect. These principles, he said,
apply
in our law.
It is well established that the relationship between employer and
employee is in essence one of trust and confidence and that, at
common law,
conduct clearly
18
inconsistent therewith entitles the "innocent" party
to
cancel the agreement (Angehrn and Piel v Federal
Cold
Storage Co Ltd
1908 TS 761
at 777-778.) On that basis
it
appears to me that our law has to be the same as that
of
English law and also that a reciprocal duty as suggested
by
counsel rests upon the employee. There are some
judgments
in the LAC to this effect (e g Humphries & Jewell
(Pty)
Ltd v Federal Council of Retail and Allied
Workers
Union (1991) 12 ILJ 1032 (LAC) 1037G). I may add that
this
much was not placed in issue for the respondent by
Mr
Scholtz. It does seem to me that, in our law, it is
not
necessary to work with the concept of an implied term.
The
duties referred to simply flow from naturalia
contractus.
As far as the breach of the duty by
the
respondent is concerned, Mr Scholtz, quite correctly in
my
view, conceded that the letters do establish it.
The
respondent not merely stated his intention to leave
the
employ. He repeatedly emphasised that the working
19
relationship between him and the appellant, and
also
between him and his superiors, had been permanently
and
totally damaged and "was finished". He accused
his
superiors of "clear bias" and stated that he had lost
all
faith in them. He accused them of conducting a witch
hunt
against him. And he emphasised that he was only staying
on
in order to extract from the appellant (a public
statutory
body) a payment to which he had no entitlement.
The
expression of such sentiments places an employer in
an
invidious position. It destroys his faith in and
goodwill
towards the employee. This means that the appellant was,
in
my view, in law entitled to dismiss the respondent.
The LAC held that since the conduct of the respondent "did not go so far
as to constitute a repudiation", his conduct did not amount
to a fair reason for
dismissal and that in these circumstances the dismissal was substantively
unfair. I have already expressed the
view that the conduct complained of did
amount to a material
20
breach of the contract in the sense set out. It follows
that I disagree with the basis of the LAC's judgment on
this aspect of the case.
A lawful dismissal is not necessarily a fair
dismissal. On this part of the inquiry Schwietering AM in
the Industrial Court held as follows:
"Why did respondent [the present appellant] terminate applicant's
employment? Because it wanted to get rid of an employee who had
made up his mind
and who had made it quite clear to respondent that he wanted to remain in
respondent' s employment for only as long
as it took him to induce respondent to
sever relations with applicant on a basis which applicant found acceptable.
Respondent could
not be expected to put up indefinitely with an ongoing
confrontation in which mutually contradictory arguments were tossed to and
fro.
Applicant since the hearing in February had taken the stand that a healthy
working relationship had ceased to exist. He tried
to bring the unhealthy
relationship to an end in a certain way. Respondent told him that that way was
not open. Applicant would not
take no for an answer. He thought that respondent
would eventually capitulate. Respondent decided to end the game. I cannot regard
this as a decision not based upon a fair
reason."
The majority of the LAC
disagreed. It was of the
21
view that the respondent was merely proposing
the
termination of the agreement and he had the right
to
motivate it. This is in my judgment not a
fair
interpretation of the correspondence. It emphasises the
one
leg of the letters and ignores the other. The majority
of
the LAC also found that the evidence is clear that
the
appellant took no steps, once the
respondent's
dissatisfaction became clear, to restore a normal
working
relationship between the respondent and his superiors.
What
these steps should have been, was not stated. Mr
Scholtz
suggested that there should have been a consultation.
Since
the respondent was only interested in discussing
financial
compensation as a condition for his resignation, I fail
to
see what the purpose of the consultation would have
been.
I believe that the letter [2] was a fair and
reasonable
response from an employer in the circumstances of the
case.
The respondent's emotional outburst in [3]
was
inappropriate, especially if one considers that he is
a
22
well-educated professional employed by a scientific, public and
professional body.
A value judgment must now be made, taking into account all the evidence
and factors set out earlier. On balance I believe the dismissal
was fair
especially in the light of the seriousness of the respondent's allegations
against his employer. His fixed state of mind
as expressed in his letters did
not require of the appellant to act in any other manner. Had the nature of the
employment been different
and the employee an unsophisticated labourer, the
conclusion may have been different.
As far as procedural fairness is concerned, Mr Scholtz relied on the
disciplinary code. He submitted that the respondent's conduct
as manifested in
his letters amounted to misconduct as defined in the code; the respondent should
have been charged; the prescribed
procedure should have been followed; the
failure to comply with the prescribed and agreed procedure made the
dismissal
23
unfair. This was never the respondent's case. The definition of
"misconduct" relied upon by counsel does in any event not fit the
facts of this
case. By no stretch of the imagination can it be said that the respondent
refused or neglected "to comply with any
of these conditions of service which
apply to him" or that he conducted himself "in a disgraceful, improper or
unbecoming manner".
I should point out that although no hearing in the conventional sense of
the word preceded the dismissal, it does not mean that the
audi alteram partem
rule was not complied with. This rule has no fixed content. The respondent
stated his case twice, in [1] and
[3]. The appellant had no factual version to
put to the respondent. There were no facts that the respondent had to meet.
There were
no allegations he had to answer. His views, stated plainly, were
known. All that was really left, was for the appellant to value
their import and
to decide how to act or react.
24
It was submitted that the respondent was entitled to a reasonable
ultimatum. He had received none. The LAC took a similar approach
to the issue.
It relied on a dictum by Smalberger JA in a minority judgment in Administrator
Transvaal v Theletsane
[1990] ZASCA 156
;
1991 (2) SA 192
(A) at 206D to the effect that a hearing
cannot be said to be fair unless there is "notice of the contemplated action",
something
that is missing in this case.
In Performing Arts Council of the Transvaal v Paper Printing Wood and
Allied Workers Union
[1993] ZASCA 201
;
1994 (2) SA 204
(A) it was held, in the context of
dismissal due to disciplinary reasons, that an employer should not act
overhastily and that a
reasonable ultimatum should first issue (at 216B-D). That
was not a legal requirement but was predicated on the facts of the particular
case (cf at 215F-216B). See also Slagment (Pty) Ltd v Building Construction and
Allied Workers' Union
1995 (1) SA 742
(A) at 755F-756B. The appellant in this
case did not act
25
with undue haste. On the contrary, Mr Scholtz argued that the appellant
was dilatory in not acting sooner after the receipt of the
letter [3] - it had
delayed its action for a month. As far as the lack of an ultimatum is concerned,
it should be noted that it was
not an issue raised by the respondent in its
statement of case and I doubt that he is entitled to rely on this point. It was
not
even canvassed during the evidence. (Of Slagment at 752H-J.) In addition, I
again fail to see what an ultimatum should have comprised
or what its purpose
would have been. It may have been different if the respondent's breach were not
accompanied by the expression
of his fixed intention to leave.
Concerning the dictum from Theletsane, I am unable to subscribe to it as
a general proposition. It is not expected of a judicial officer
to give notice
of his "contemplated action" in, say, a criminal trial and there is no reason
why, as a general rule, an employer
should do so. To "contemplate" the specific
action before the hearing
26
may also, in given circumstances, be unfair. The employee need not be
informed of all the alternative disciplinary measures available
to the employer
to make a hearing fair. In any event, I do not believe that Smalberger JA
intended to formulate a general rule for
fairness. This appears from his remarks
(at 206A-D) preceding the quoted dictum. Having concluded earlier that an
ultimatum was not
called for, it follows that in my judgment it was not
incumbent on the appellant to have given the respondent notice of the
contemplated
action of dismissal.
In the result the appeal must succeed and the following order is
made:
1.
The appeal is
upheld with costs, including the costs of two
counsel.
2.
The order of the
court a quo is set aside and replaced by an order that "the appeal from
the
27 Industrial Court is dismissed with costs."
L T C
HARMS JUDGE OF APPEAL
VAN HEERDEN, JA )
VAN DEN HEEVER, JA )
AGREE
OLIVIER, JA )
SMALBERGER,JA:
I have had the privilege of considering the judgment of my colleague
HARMS. I regret that I am unable to agree with his
2
conclusions.
The respondent made it clear from the outset
that he did not intend to resign because he did not consider the situation that
had arisen
to be of his making. There is no doubt that there existed a crisis of
confidence; that the respondent no longer wished to continue
to work for the
appellant; that their working relationship had been permanently damaged. It was
always open to the respondent to
attempt to negotiate terms with the appellant
to facilitate his leaving. That he wanted to obtain a beneficial financial
settlement
is obvious. He was negotiating to this end when he was effectively
dismissed. His original letter [1] raised the question of retrenchment
and
accompanying benefits. This was turned down for reasons that appear from the
letter [2]. The respondent did not persist in the
same demand. In his sharply
worded response [3] he referred to a previous discussion during which he had
pointed out that retrenchment
(or voluntary
3
redundancy) "was only one suggestion and that there are other
mechanisms as well, which would include some form of
financial
compensation". The letter goes on to state that " you
as
director can financially compensate me by any other mechanism you
may care to think of". Whatever else it might have said, the letter
[3] was
clearly one requesting other possible means of compensation to be considered.
The reply [4] with regard to matters raised
in that letter that "I am
considering same and am also taking advice" was followed by the letter [5]
terminating the respondent's
services. It never dealt with any alternative means
of financial compensation raised by the respondent.
I agree with the finding of HARMS JA that the respondent did not evince a
clear and unequivocal intention not to continue with his
contract of employment.
In that (narrow) sense he did not repudiate the contract. My colleague
concludes, however, that the respondent
committed a material breach of the
contract by
4
conducting himself in a manner calculated or likely to destroy
or
seriously damage the relationship of trust and confidence
between
the parties (repudiation in the "wider" sense). Consequently
the
appellant was entitled to cancel the contract.
The appellant, in my view, never sought or purported
to
cancel the contract on that basis. The factors on
which HARMS
JA relies for his conclusion are already to be discerned in the
letter
[1], although in terms less explicit than in letter [3]. The
appellant
did not draw attention to, or complain about, the respondent's
conduct in this respect in letter [2]. Nor did it seek to rely
thereon
in letter [5]. Its attitude appears clearly from the third and
fourth
paragraphs of that letter. They bear repitition:
"From the contents of your abovementioned communication it is clear,
however, that you do not wish to continue your working relationship
with the
CSIR. You had already indicated in your hand written note dated 13 February 1992
that you ' .... do not want to continue
being in the employment of the
CSIR'.
5
This statement together with the heading to your message of 25 February 1992
(ie TERMINATION OF WORKING RELATIONSHIP) read together
with the remark in the
penultimate paragraph of the latter, namely that '(o)ur working relationship
finished the day after the hearing',
clearly constitutes a repudiation of your
service contract with the CSIR. You have quite clearly persisted in this
attitude in spite
of all efforts from our side to preserve the working
relationship."
From this letter it is in my view apparent that the only
form
of repudiation on which the appellant sought to
rely was that in the
"narrow" sense. Nor did the appellant's reply in the Industrial
Court
to the respondent's statement of case go any further than
that. The
appellant did not raise, nor did it canvass in evidence
with the
respondent, the conduct on which it now seeks to rely
as
constituting a material breach. The appellant's case in the
Industrial
Court is encapsulated in the following proposition put to the
respondent under cross-examination:
"The simple fact of the matter is - and I am putting this to you because
this is the company's case - the company had
6
and still has a high regard for you and for your competence. It is for that
reason that the acknowledged offer of reinstatement [made
during the
Conciliation Board proceedings] was made to you. It's hardly an offer of
reinstatement that would have been made to somebody
whom the company didn't want
anything more to do with. And the company's contention is going to be that the
fixed and settled determination
to end this relationship was not the company's
but yours, but that you were not simply prepared to walk away from it; you
wanted
to make something out of it, hence the campaign, if you wish, to obtain
some kind of financial compensation."
There is no
suggestion in the passage quoted - indeed the contrary appears to be the case -
that the appellant's faith in and goodwill
towards the respondent had been
destroyed.
Notwithstanding concessions made by the respondent's counsel it is in my
view inappropriate to hold that the appellant was entitled
to cancel the
contract on a ground that was neither properly "pleaded" nor fully canvassed,
and was relied on for the first time
in argument in this Court. (cf
Slagment
(Pty) Ltd v Building
7
Construction and Allied Workers Union and Others
1995(1) SA 742(A)
at 752H - 753C;
Lanzerac Manor (Pty)Ltd v de Vries and Others
-
unreported Appellate Division judgment delivered on 28 September 1995 pp 17/18).
In general it also seems fair to say that in terms
of the labour dispensation an
employer should not be entitled to rely in later proceedings on reasons for
dismissal not advanced
or relied upon at the time of dismissal (cf
Yichiho
Plastics (Pty) Ltd v Muller
1994 ILJ 593(LAC) at 595F-H).
I accordingly agree with the view held by the majority of the LAC that
the respondent's conduct "did not go so far as to constitute
a repudiation" (in
the only sense relied upon by the appellant), and that the appellant's dismissal
of the respondent was consequently
substantively unfair.
Even if the respondent materially breached his contract of employment,
and was lawfully dismissed, the appellant's conduct in the
circumstances, in my
view, was lacking in fairness. The
8
correspondence shows that the respondent was seeking to terminate his
services on a basis favourable to himself. The appellant intimated
in letter [3]
that it was considering what had been put forward by the respondent in that
regard. But it never gave him an answer.
It simply brought further negotiations
to an end by effectively dismissing the respondent. Within an employer/employee
relationship
the appellant's response was neither reasonable nor fair. An
appropriate response, one dictated by fairness, would have been to inform
the
respondent finally that he was not entitled to, nor would he be given, any form
of financial recompense, and that it was for
him to decide whether he wished to
continue in employment (and by necessary implication, try and rebuild a working
relationship)
or resign. This was in essence the appellant's response to Botes.
He too had expressed dissatisfaction about his position and was
seeking a way to
terminate his employment provided he could secure some financial benefit.
The
9
respondent was admittedly far more outspoken than Botes, but that in
itself was no reason for treating him differently. At the very
least the
respondent should have been warned or given an ultimatum that if he persisted in
his attitude towards the appellant he
faced dismissal for breach of contract.
This was not done. It is true that this was not pertinently raised by the
respondent in his
statement of case. But his case was premised on his not having
repudiated his contract. He was never in my view called upon to deal
with an
alleged material breach of contract.
I do not End it necessary, for the purposes of my judgment, to deal with
what was said by me in
Administrator Transvaal v Theletsane
1991(2) SA
192(A) at 206D.
I would dismiss the appeal with costs.
J W SMALBERGER JUDGE OF APPEAL