Court name
Labour Court
Case name
Josob v Namibia Breweries (Pty) Ltd
Media neutral citation
[2008] NALC 2





CASE NO









CASE
NO.: LCA 18/2008











IN
THE LABOUR COURT OF NAMIBIA








In
the matter between:











JACOBUS
JOSOB Appellant





and





NAMIBIA
BREWERIES (PTY) LTD Respondent








CORAM: SILUNGWE,
AJ





Heard
on:
2008.09.19






Delivered on: 2008.10.02









JUDGMENT:








SILUNGWE,
AJ
:


[1] The
appellant appeals against a judgment given on November 12, 2007, in
the District Labour Court for the district of Windhoek.





[2] In
the Court
a quo,
the appellant (then complainant) claimed loss of income and any
consequential losses for unfair dismissal and breach of contract of
employment.





[3] It
its reply, the respondent alleged that the appellant had repudiated
his contract of employment by refusing to accept a position in which
he had been placed (in terms of the contract) and the respondent
accepted such repudiation. The parties will hereafter continue to be
referred to as appellant and respondent, respectively.





[4] After
hearing the matter, the court made the following order:






(a) the
termination of the complainant’s services by the respondent was
unlawful and not in compliance with section 45 or 47 of the Labour
Act and is accordingly set aside;







(b) the
complainant is not to be reinstated, but should be compensated for
loss of income and benefits for a period of twelve months. An amount
of N$12 000-00 which he earned as an employee of the Worker’s
Advice Centre should be deducted from the aforesaid compensation.
This payment should be made on or before 30 November 2007;







(c) interest
at a rate of 20% per annum shall be added to any outstanding amount
not paid before 30 November 2007.





[5]
The appellant’s appeal, which rests on two grounds, is against
the following aspects of the judgment:






(1) The
award for loss of income and loss suffered as a consequence of the
dismissal.





(2) The
order that reinstatement would not be ordered.





These
are the two grounds of appeal:






(1) Respondent
breached a material express and legally enforceable term of the
contract namely to place the appellant after resignation as
shopsteward.






(2) Respondent
acted in extreme bad faith with regard to ground (1)
supra.





[6] The
respondent noted a cross-appeal against the entire judgment of the
District Labour Court.





[7] On
May 22, 2008, the Registrar of the Court addressed a letter to the
appellant and,
inter
alia
,
notified him that his appeal had been set down for hearing on Friday,
19
th
September, 2008, “at 09h00”. The letter was copied to
Engling, Stritter & Partners, the respondent’s legal
practitioners of record and the Clerk of the Court of the Windhoek
District Labour Court.





[8] On
September 11, 2008, the appellant filed a notice of application in
these terms:





1. Removing
respondent’s counter appeal for the roll.





2. Barring
respondent to partake in the hearing of the appeal.





3. Costs
of this application.





4. Further
and/or alternative relief.





TAKE
NOTICE FURTHER THAT THE GROUNDS OF THE APPLICATION ARE AS FOLLOWS:





1. The
counter-appeal has no revenue stamp.





2. The
case number is not 477/06, but DLC 609/05”





[9] At
the appointed time on the hearing day, the appellant, who was to
appear in person, was reportedly not present in Court but Mr Dicks,
learned counsel for the respondent, was reportedly present. At 09h10,
the Court convened as it could no longer wait for the appellant. Mr
Dicks then submitted (in the appellant’s absence) that the
appeal be dismissed and that the cross-appeal be upheld. While the
Court was in the process of preparing a ruling, the appellant
(accompanied by,
inter
alia
,
Mr Hewat Beukes of the Workers’ Advice Centre who had
represented him in the District Labour Court) pitched up, panting
heavily; he verbally apologized for his late arrival as he had
(allegedly) been at the Registry and in the Motion Court. After
telling him that the reason given was unsatisfactory since the appeal
had not been placed on the Motion Court Roll, the Court allowed him
to argue his appeal.





[10] In
pursuit of his application (
in
limine
),
the appellant contended that the respondent’s cross-appeal
should be removed from the roll and further that the respondent
should be barred from challenging the appeal on the basis of the two
grounds aforesaid.





[11] Mr
Dicks countered the appellant’s contention by firstly drawing
attention to page 557 of the original record of appeal (record) which
bears the appropriate N$50 Revenue stamp; and, secondly, to page 542
of the record (the first page of the judgment of the District Labour
Court) which shows the typed Case No. as 477/06 and which had
inadvertently been used by the respondent. He added that nothing
should turn on that inadvertence.





[12] The
first point raised
in
limine

was unwarranted as the requisite revenue stamp had been affixed to
the original record which was (and still is) in the Court’s
possession. That point was accordingly dismissed. With regard to the
second point
in
limine
,
the submission given by Mr Dicks, on behalf of the respondent, was
accepted by the Court with the result that that point too was
dismissed. Immediately after the Court’s ruling, the appellant
asked for a few minutes’ (three to four) break for consultation
(to which there was no objection). He was granted a break for five
minutes.





[13] Upon
resumption of the hearing (approximately ten minutes later), the
appellant told the Court that, under protest, he was no longer going
to take any further part in (prosecuting) the appeal because of the
racist remarks made against him by Mr Dicks. In amplification, he
stated that Mr Dicks had filed racist documents bearing the
expression “master and servant” and which he perceived to
be a racist remark. I pause here to pint out that there is, at least,
a reference to the words “master and servant” in
paragraph 74 of the respondent’s heads of argument which is a
quotation from Rycroft and Jordaan’s book: “A Guide to
South African Labour Court” (1990) at 47-48. He went on the say
that, during the proceedings in the District Labour Court, Mr Dicks
had made a similar remark by referring to him as a parasite
(apparently for having received his monthly salary during the period
of four months and ten days that he rendered no services to the
respondent). He found (all this) unacceptable in the new Namibia. He
then asked for the Court’s ruling on his stance. He was,
however, told that no such ruling was necessary as the decision not
to further prosecute the appeal was entirely his. It was explained to
him that his interpretation of the words complained of as meaning
expressions of racism was misconceived and that, for instance, even
in such countries as England and the United States of America, the
expression of “master and servant”, is used in labour law
or labour matters without any connotation of racism.





[14] Mr
Dicks told the Court, in the appellant’s presence, that his
understanding was that the appeal was not being proceeded with any
further. He nevertheless made it clear that the respondent was going
ahead with the cross-appeal.





[15] At
this point, and notwithstanding the Court’s explanation, the
appellant stuck to his guns and left the Courtroom. For the purpose
of this judgment, however, the parties will continue to be referred
to as appellant and respondent, respectively.





[16] Before
considering the respondent’s cross-appeal, it is expedient to
give a history of the matter under consideration.





[17] It
is common cause that when the events that gave rise to this case
occurred towards the end of 2005, the appellant had been employed by
the respondent for approximately twelve years. He held the position
of Storeman Grade 5 at the time of his appointment as a Shop Steward
in 1999, consequent upon an agreement entered into between the
respondent and the Namibia Food and Allied Workers Union (NAFAU)
(which was apparently the appellant’s union). However, on July
20, 2005, the appellant, due to personal reasons, resigned his
position as full-time Shop Steward with immediate effect and
requested the respondent to accept the resignation. It is not in
dispute that the applicable clause of the agreement aforesaid is 6.3
which reads:





6.3 Should
a Full-Time Shop Steward relinquish his office … the Company
will endeavour to place him in a job that he held prior to his
appointment but in the event of that not being possible the Company
will place him in a job at the same grade as held prior to his or her
appointment as a Full-Time Shop Steward.”





[18]
Thereafter, the respondent endeavoured to place the appellant in an
alternative position by encouraging him to apply for vacancies that
had occurred as a result of a voluntary retrenchment exercise.





[19] The
appellant’s response was that it was the respondent’s
responsibility to place him and that he should not be “burdened”
with having to apply for vacant positions.





[20] At
a later stage, the respondent addressed a letter to the appellant in
which it said,
inter
alia
:





The
company hereby therefore offers you the following positions:





Operator
Point of Sale:


Windhoek
Secondary Distribution: Grade 5





Operator
Point of Sale:


Hansa
Secondary Distribution: Grade 5





Storeman:


Hansa
Secondary Distribution: Grade 5





Kindly
indicate your acceptance of one of the offers above within 2 working
days of this memo so that the process of placement can commence.
Should you have any questions, please do not hesitate to contact Mr
Lawrence as your current line manager.”





[21] The
appellant indicated interest in one of the two vacant positions in
Swakopmund but only on a temporary basis (and without specifying
which one of the two positions) until any of the two positions held
by Messrs Ben Coetzee and Stoffel van Wyk became available in
December 2005, and on condition that the respondent pays for his
accommodation and transport costs. However, the respondent found the
appellant’s intimation to accept one of the vacant positions in
Swakopmund on a temporary basis unacceptable as the available
vacancies were for permanent positions. With regard to the
appellant’s demand for the respondent to bear the cost of
accommodation and transport, should he relocate to Swakopmund, he was
informed that any such relocation could only be done in conformity
with the company’s policy but not otherwise. He was further
informed that the positions of Messrs Coetzee and van Wyk were
unavailable as they were to become redundant.





[22] Pursuant
to the appellant’s demand that he be placed in a position in
terms of the agreement, the respondent addressed a memorandum to him
on November 8, 2005, which reads in part:





The
company therefore places you in the position of Operator POS in
Windhoek effective 9 November 2005. Your cost center will be cc-431.
All other employment conditions will remain unchanged. Please report
to Riaan Jantjies at 08h00 on said effective date. A development plan
will be put in place for you to cover training aspects for this
position.





I
trust that you will find the placement in line with the agreement and
wish you well in this new position. Should you have any queries,
please do not hesitate to call on Mr Jantjies as your line manager.”





[23] On
November 9, the appellant responded that his placement was in bad
faith, that it was proof of the respondent’s intransigence and
a disregard of his rights as an equal negotiator. Besides, the
appellant was of the view that the matter be referred to arbitration
and threatened to bring an action for damages should the respondent
be averse to the arbitration route.





[24] In
its written response of November 11, the respondent stated that
arbitration would not be a suitable process for the reason that
“internal processes” had not been exhausted and added,
inter alia,
that
it had
complied with the terms of the agreement
.
(Emphasis provided).





[25] On
November 16, the appellant replied indicating, among other things,
that the placement was in bad faith and reiterated a referral of the
matter to arbitration. He was, however, willing to discuss the matter
with the respondent.





[26] On
November 22, the respondent, in response to the appellant’s
willingness to discuss the matter, indicated that the meeting was to
take place the next day. It is common cause that the meeting could
not materialize until November 25. At that meeting, the parties were
unable to resolve their dispute. At the end of the meeting, the
respondent made it quite clear to the appellant that, in the event of
his failure to report for duty on Monday, November 28 at 08h00, that
would be construed as a repudiation of his agreement of employment.
The appellant acknowledged the respondent’s threat and,
although he did not “decline” the position offered, he
was going to pursue the arbitration route to bring the matter “to
a logical conclusion.”





[27] In
a letter addressed to the appellant on November 28, the respondent
concluded:





On
Monday morning 28
th
November 2005 you informed Mr Lawrence that you will not report as
requested because you had to go to the Clerk of the Court. Despite
your return during the morning, you still had not reported to Mr R
Jantjies by midday as requested and you are hereby informed that the
Company accepts your repudiation of the contract with effect form 28
November 2005.”





This
therefore confirms that your last working day is 28 November 2005.
You are duly requested to return all company property with immediate
effect as per the attached exit checklist to Mr Jantjies.”





[28] It
is clear from the foregoing synopsis that it was critical for the
trial court to determine whether the appellant had established
dismissal and, if so, whether such dismissal was unfair; or whether,
in reality, the appellant had, by words or conduct, repudiated his
contract of employment, and thus ended the working relationship.





[29] This
brings me to the respondent’s cross-appeal. In its grounds of
appeal, the respondent strives to show that dismissal was not proved
by the appellant, and alleges that the District Labour Court
Chairperson erred in law and/or on the facts in,
inter
alia
,
“Directing the respondent to present its case first and to
prove that dismissal (which the respondent denied occurred) was
fair.”





[30] Section
46(3) of the Labour Act, Act 6 of 1992, stipulates that -





When
in any proceedings in terms of this section it is proved that an
employee was dismissed from his or her employment or that any
disciplinary action has been taken against such employee, it shall be
presumed that, unless the contrary is proved by the employer
concerned, such employee has been dismissed unfairly or that such
disciplinary action has been taken unfairly against such employee.”





On
a proper construction of the said subsection, it is self-evident
that, where an “unfair dismissal is alleged against an
employer, but such dismissal is in dispute, as
in
casu
,
the onus of proof lies upon the employee to show that the (alleged)
dismissal occurred. Once dismissal is proved by the employee (or is
either admitted or not disputed by the employer), the employer “shall
be“ deemed to have dismissed the employee unfairly, unless the
contrary is proved.





[31] It
is not in dispute that, right from the outset of this matter, the
appellant’s alleged dismissal was unquestionably a bone of
contention between the parties. Whereas the appellant alleged that he
had been dismissed and that the dismissal was unfair, the respondent
countered that the appellant had repudiated the contract of
employment.





[32] Rather
strangely, the District Labour Court Chairperson fell into error by
directing the respondent to present its case first. It is probable
that the error stemmed from a misinterpretation of subsection (3) of
section 46 of the Act. The end result of the error was that the
respondent was, according to Mr Dicks’ submission, placed
in an “invidious and unenviable position of having to prove”
that the appellant’s dismissal (which had been disputed) was
fair.





[33] It
is Mr Dicks’ further submission that, when the respondent led
evidence, at no stage during cross-examination of the (respondent’s)
witnesses by the appellant’s representative (Mr Beukes) was it
put to them that the appellant had “accepted his placement in
the position of Operator POS” and/or that he had “reported
to Mr Jantjies for duty on 28 November 2005”). Mr Dicks argued
that, on the appellant’s own version, “he did not report
for duty on 28 November 2005”; and that he refused to accept
his placement by the respondent, claiming that what had been offered
was “a morbid position incompatible” with his
“intellectual ability”. It was only during the
presentation of his case, Mr Dicks contends, that the appellant
“surprisingly and for the first time” indicated (in
cross-examination) that he had accepted the position of Operator POS;
that he had reported for duty to Mr Jantjies; and that he had thus
not repudiated the contract of service with the respondent. It is not
in dispute that, when the appellant closed its case, Mr Dicks filed
an application (on behalf of the respondent), supported by an
affidavit, in which leave was sought to call Mr Riaan Jantjies (who
had not previously testified in the matter) to give rebuttal
evidence. Following the hearing of the application, which was
opposed, the Court
a
quo

dismissed it on the basis that what was sought to be adduced was not
new evidence.





[34] Had
the trial court directed the appellant to present its case first, as
it ought to have done, and the appellant had adduced the evidence
that is now on record, it seems to me that the respondent would most
likely (and naturally) have adduced rebuttal evidence (through its
witnesses, including Mr Jantjies, in particular) to show that the
appellant had failed to prove dismissal and that he had, on the
contrary, repudiated the contract of employment.





[35] It
is trite law that repudiation of a contract can be made (either
expressly or) by words and conduct provided that such words evince
(or such conduct envices) a deliberate and an unequivocal intention
no longer to be bound by the contract. The test is whether the party
repudiating has acted in such a way as to lead a reasonable person to
the conclusion that he does not intend to fulfill his part of the
contract. See:
Nghindama
& Others v Grahamstown Municipality

(1194) 11 BLLR 68 (IC) at 74A-E;
Ponisammy
& Another v Versailles Estates

(Pty) Ltd 1973 (1) SA 372 (A) at 386H-387C.





[36] In
conclusion, the trial court’s failure to direct the appellant
to lead evidence first for the purpose of establishing dismissal
(which, in turn, led to a situation whereby the court
a
quo

refused the respondent’s application to adduce rebuttal
evidence) was fatal. In the premises, it is unnecessary to deal with
any other ground of the respondent’s cross-appeal.





[37] The
following order is made:





1. the
appellant’s appeal is dismissed;





2. the
District Labour Court’s order is set aside in its entirety;





3. to
the extent of paragraphs (1) and (2) above, the respondent’s
cross-appeal is allowed;





4. the
case is remitted to the court
a
quo

for rehearing before another presiding chairperson.











_____________________


SILUNGWE


ACTING
PRESIDENT

















APPELLANT
IN PERSON:


Mr
Josob











COUNSEL
ON BEHALF OF THE RESPONDENT:


Adv
Dicks





Instructed
by:
Engling,
Stritter & Partners