Title: CASE NO
Author: DonnyB

IN THE LABOUR COURT OF NAMIBIA

In the matter between:

and

JUDGMENT

[2] By July 2008 the respondent had already utilised 21 days of her sick leave allowance due to certain medical problems.

[3] On respondent's version and on account of her employer's dissatisfaction with her work performance, the Respondent was apparently informed at a meeting on 10 July 2010 that 'her contract will not be extended due to the fact that she is no longer interested in her work'. She was allegedly told to come back the next day to sign her papers'. On account of these events the respondent considered herself dismissed.

[4] The appellant disputed that the respondent was so dismissed and the employers version of the events was to the effect that the respondent was indeed called into a meeting on 10 July 2008 at which she was informed that the purpose thereof was to conduct a 'poor performance counselling meeting' and that 'they were counselling her due to her poor performance at the workplace and that she was advised at that time that should her performance not improve her contract would not be extended'.

[5] It was further appellants case that the respondent indicated at such meeting that she rather preferred to resign, in response to which she was told to think this over and then come back on the next day.

[7]     The respondent apparently thereafter enlisted the services of a certain Mr. Hewat Beukes of the Workers Advice Centre in Windhoek who apparently instructed her not to return to work.

[8]     It was indeed common cause that the respondent never returned to work.

[9] Shortly thereafter and under cover of a letter dated 15 July 2008 Mr Beukes informed the appellant as follows:

" ... We are instructed that Mrs. Adriaanse's services had been terminated due to her illness which had been aggravated by smoking in her workplace. No hearing or assessment was held which constitutes unfair dismissal.

She instructs that she has not received her last payments and leave
pay.

Further we are instructed that you have distributed her medical information to your labour consultants which constitutes an offence. Whence, we are instructed to demand immediate payment of her salary.

[10] Appellant was thereafter also informed that all communications by appellant to respondent should from now on be channelled through Mr. Beukes and that appellant should refrain from making any contact with the respondent.
[11] As appellant was of the view that no formal termination of the respondent's employment relationship had occurred, as the oral resignation was, inter alia, not effective as same was not in writing, as is required by Section 47 (2) of the Labour Act 1992, appellant instructed its labour consultants Messrs. Labour Dynamics cc to respond to the letter which had been so received from Mr Beukes and which was done on 17 July in the following terms:

"Our instructions are that the employee has been on sick leave for a total period of twenty-one (21) days in her first five (5) months of employment. Her probation period is for a period of six (6) months. On 10 July 2008 she met with N Du Preez and A Schoombee. She was addressed on the performance of her work and she was in agreement that her work was not up to standard, that the line of work was not for her, that she was unhappy and that she was constantly ill (her illness was a "time bomb"). The employee asked if she could leave (resign) immediately and was informed that she should stay and end her working day if she so chose to do so.

A verbal agreement was then reached between the employer that she would terminate her employment as she chose to do and that she would return on Friday 11 July 2008 for payment etc. On Friday morning she did not return to work and sent a sms via cellular telephone to say that she could no longer make the appointment because of circumstances. Since such time she has not returned to work and neither has she made contact with her employer.

We shall also hand deliver a copy of this document to her last known residential address. Kindly inform her unambiguously that:

1.     Her employer has not only the right but the obligation to counsel her on poor performance.
2.	Where sick leave is excessive or abused the employer also has a right and an obligation to address the employee accordingly.
3.	Her employment has not been terminated in any manner whatsoever by her employer.
4.	She chose to inform her employer that she wanted to leave immediately and that is her good right to do so.
5.	That as far as her employer is concerned she remains an employee of Riverside Service Station with duties and obligations towards her employer.
6.	That currently the employee is on AWOL and faces disciplinary charges in this regard.
7.	That the employee is to return to work immediately and without further delay reporting to Riverside Service Station and in turn immediately reporting by telephone from Riverside Service Station to Mr. N Du Preez that she has returned to work.
8.	That should the employee continue to absent herself from her place of work without official leave she will be held accountable in terms of the disciplinary code of conduct of her employer.

Yours sincerely ... "

[13] In such circumstances a further letter dated 21 July 2008 was faxed and delivered to respondent's representative under cover of which respondent via her representative was again informed as follows:

"Our previous document dated 17 July 2008 in this matter refers.

We reiterate the contents of that document as attached hereto in the event that you did not receive such copy.

Having regard for your message to the employer that they are not to make any contact with their employee we state for the record that the above captioned is indeed an employee of the employer and as such, her employer has the right to communicate and issue instructions to her which to date they have done and through this letter they continue to do.

She has a duty towards her employer in that she is to provide her services in return for remuneration and that she remains subject to the disciplinary code of conduct of her employer. Her failure to comply with the policies of her employer especially in absconding from her place of work will result in the "no work pay - pay rule" being applied.

In any event she must stand and fall with the advice you have provided to her suffice to state that she is still employed by the employer and must return to her place of work immediately or face disciplinary action forthwith.
Kindly take notice that we place on record for the second and final time that she is to return to work immediately.

[14] This letter also had the following hand written notes affixed to its page 2 to the effect that:

"1. 21 July 2008 15H15 - 99 John Meinert Street, WDA spoke to Lee-Ann Adriaanse. She refuses to sign for any documentation.

[16]   It is against this background that the respondent, on the following day, lodged a complaint in the District Labour Court of Windhoek.

[17] On 1 August 2008 appellant instituted disciplinary steps against the respondent. The notice to appear at a disciplinary hearing indicated that the respondent was now charged with being 'absent without leave' and that such hearing was set for 8 August 2008. This notice was initially faxed to the fax number indicated on the letterhead of the Worker's Advice Centre, but all attempts to communicate via fax to this number were not successful. After an alternative fax number was provided the notice apparently 'went through'. On 8 August the hearing was postponed on the instruction of the chairman to 14 August 2008 of which postponement respondent's representative was given notice by facsimile, which read as follows:

"H.BEUKES
WORKERS ADVICE CENTRE
WINDHOEK NAMIBIA 8 AUGUST 2008

Dear Sir,

RE: MS. LEE-ANN ADRIAANSE (EMPLOYEE)

Our Ms. Schoombe failed to get through to the fax number on your letter head (061 220 055). She contacted your offices and was given an alternative fax number of (061 210 226). We have proof that this facsimile went through.
The chairman instructed to do the disciplinary hearing postponed the matter until Monday the 14th of August 2008 at 14:00.

Take note that you and your client in spite of your persistent previous refusal to receive documents and to participate in any proceedings are again forewarned and invited to attend this disciplinary hearing as this is the fair and proper procedure to follow in this instance. Failure to attend the disciplinary hearing will result in the hearing being held in absentia.

Yours sincerely,

MANAGEMENT RIVER SIDE SERVICE STATION "
**** tx report ***** transmission ok
tx/rx no.        connection    210226 id

[19] In the meantime respondent pressed ahead with her complaint in the District Labour Court. On account of the appellant's non-appearance there on 12 May 2009, default judgment was granted in respondent's favour, which judgement was
subsequently rescinded on 6 July 2009.
[20]   On 28 April 2010 the parties went to trial in the District Labour Court, which found that the appellant had terminated the respondent's employment without fair reasons ordering appellant to pay the respondent N$72 000-00 as loss of income as per her salary for one year.

[21]   It is essentially this finding that now forms the central focus of this appeal.

[22] At the core of this issue is the question whether or not the respondent tendered her resignation on 10 July or not, or whether it was the appellant that had terminated her services unlawfully on that date as is alleged by respondent in her complaint.
[23]   All the other grounds of appeal are ancillary to this issue. 
WAS THERE A RESIGNATION?

[24] This question needs to be answered in the first instance in order to determine whether or not there could have been an unfair dismissal.

[26]   In this regard it was submitted by Mr van Zyl, counsel for the appellant, at the hearing of this matter, that the so-called oral resignation of the respondent was invalid and not effective, and was treated as such by the appellant, as such oral notice did not comply with the requirements of section 47 of the Labour Act 1992, which provides that such notice had to be in writing.

[27]   Section 47(2) states indeed that:

2005 NR 413 SC

At p 417 E-G

[31] It must be concluded therefore that the legislature intended that all notices of termination be effected in writing, save in the case of illiterate employees.

[32] For any effective resignation/termination to have occured therefore on the part of respondent on 10 July 2008, such notice had to be in writing.

WAS THERE A DISMISSAL

[37] I have already found that no statutory notice of termination/resignation was given by the respondent.

[38] It was also common cause between the parties that also the appellant had given no statutory notice of termination to the respondent.

45. (1) For purposes of the provisions of section 46, but subject to the provisions of subsection (2) -(a) any employee dismissed, whether or not notice has been given in accordance with any provision of this Act ..."

[40] The fact that no written notice of termination was given by appellant on respondent's version is therefore not decisive herein.

[41] Respondent considered herself terminated due to the oral intimation that 'her contract will not be extended due to the fact that she is no longer interested in her work'. She was apparently also told that her work was not up to standard. She denied that she had been called in to receive counselling in this regard. She denied that she had indicated that she rather wished to resign. On her version she was allegedly told to come back the next day so that she can sign the papers and that she sent a sms to her employer to the effect that she cannot make the appointment as the doctor had called her.

[42] The appellant, on the other hand, all along denied vehemently that the respondent's services had been terminated, as appears from what has already been set out herein above. As the appellant continued to regard respondent as an employee she was repeatedly requested to return to work, (by two letters and orally), and only thereafter and on account of respondent's failure to return to her workplace were disciplinary steps instituted against her, which resulted in her ultimate dismissal.

[51] The high- watermark during Mr Beukes' cross-examination of Mrs Schoombee ran as follows:

"... Is it correct that she started her employment at 11 February 2008? -That is correct, Mr Chairman.

And she was dismissed on 10 July 2008 or rather 8 July 2008? - That is correct Mr Chairman,

Let the record show that I finally got the admission that she was

10th of July.

2009, the salary before deduction incomplete you know. Madam, let me share a little wisdom with you. The truth has an uncanny ability to slip out so often here - (intervention) --- She resigned, that was my answer previously,

Yes, but the truth has that unsavoury characteristic to slip out in an unguarded moment. Her salary was five thousand six hundred and seventy Namibian Dollars (N$5 670-00) per month? - That is correct, Mr Chair...."

[53] In any event it appeared that the versions of the respondent and of the appellant in the court a quo were mutually destructive in the sense that acceptance of the one version necessarily would have involved the total rejection of the other version.

[56] In view of this finding it becomes unnecessary to deal with all the other grounds of appeal as raised in the relevant notice of appeal.

The dismissal of 14 August 2008 was also not specified in the 'Complaint' as being the 'date on which the cause of action' arose

[58] In the premises the appeal is upheld and the order of the District Labour Court, made on 28 May 2010, is hereby set aside and substituted for an order for absolution from the instance.

GEIER, AJ

ON BEHALF OF THE APPELLANT:		Mr. C. van Zyl 

ON BEHALF OF RESPONDENT:			IN PERSON

INSTRUCTED BY: